March 30, 2010
By Mary Frances Schjonberg

Breakaway members of All Saints' Episcopal Church in Waccamaw in Pawleys Island, South Carolina, and those who wished to remain in the Episcopal Church have negotiated an end to what had been one of the Episcopal Church's longest-running property disputes.

The members of the parish who remained members of the Episcopal Diocese of South Carolina were a minority of the congregation. They petitioned the U.S. Supreme Court to review a September 2009 state Supreme Court ruling that overturned a lower court decision in favor of them. The Episcopal Church filed a brief on March 12 asking the court to "summarily reverse" the decision of the Supreme Court of South Carolina without a full review of the lower court's ruling."

The high court had been asked to review a Sept. 19 opinion in which South Carolina Supreme Court said that the majority of the parish members were entitled to retain the parish's property after they left the Episcopal Church and the diocese in 2003 to affiliate with the Anglican Mission in the Americas (AMiA). The state supreme court's opinion arose from two different lawsuits, the earliest filed in 2000, over the issue of who owns the All Saints 50-acre campus that is also home to the AMiA.

The Diocese of South Carolina did not participate in the request, called a petition for writ of certiorari.

The U.S. Supreme Court receives approximately 10,000 such requests each year and normally grants fewer than 100.

The agreement between the two congregations means that the petition for certiorari will be withdrawn. The precise terms of the settlement have not yet been made public.

"The case is resolved; and resolved out of court," South Carolina Bishop Mark Lawrence told the diocesan convention March 26. "The prayers of many have prevailed and the glory is God's. Our gratitude to the leadership of both congregations is now due. This has been a long and painful pathway to walk for those at All Saints' Episcopal as they have stayed faithfully with the Diocese of South Carolina. They have often been misunderstood even by many within our own diocese, for one's heritage, as any South Carolinian knows, is an almost unendurable thing to lose."

There was no comment from the presiding bishop's office. At the time of the state supreme court's ruling against the minority members of the parish, the office issued a statement saying that the opinion was "particularly disappointing in the light of the long struggle in which the Episcopal Church and the Diocese of South Carolina have worked cooperatively to preserve the property of this parish for the mission of the church and the diocese."

Lawrence said that All Saints' Episcopal Church had grown under the leadership of its rector, the Rev. Ed Kelaher, and would soon have a new name.

"Only those who believe in Jesus Christ and walk as ambassadors of reconciliation could have ever believed this would happen after so many hard words had been uttered, family gatherings divided, and pain and distrust felt on both sides," he said.

In an announcement posted at http://www.standfirminfaith.com/?/sf/page/25800, Kelaher said news of the agreement "will be a matter of rejoicing for some members of our church family and a matter of disappointment for others among us."

"Understanding that difference is crucial to the proper Christian love and care we need to be showing one another at this time," he wrote. "No one should be insensitive to the feelings of those who are disappointed that our church will not be returning to Kings River Road, and no one should put a damper on the enthusiasm and spirit of those who now see us free to finally pursue our Gospel ministries, free of litigation and uncertainty."

Kelaher said that the agreement provides "the resolution and finality we needed, whether good news or bad, so that now, either way, we may fully step out in faith and sacrifice for our Lord Jesus and the vision He is setting for us."

The Rev. Terrell Glen, rector of the AMiA-affiliated parish known as All Saints Church, said in a letter to that congregation that "in a desire to bless the work of God in the Episcopal congregation," the vestry had offered All Saints' Episcopal Church $375,000 "to assist in their future ministry in our community." He added that the vestry also "offered several items that represent their participation in the heritage of All Saints Church."

"We also have communicated that those members of their congregation who have historic ties to All Saints will be given the opportunity to use the appropriate buildings in the event of funerals, weddings and other pastoral occasions in accordance with the same guidelines and policies that are followed by our own members," Glen said.

He acknowledged that the vestry realized that some of All Saints Church would be disappointed that the congregation did not wait for the Supreme Court to decline to hear the case.

"Please know that the vestry has spent hours upon hours prayerfully considering what our Lord would have us do to bring this dispute to an end," Glen said. "In addition, all of us are all too aware of the unresolved conflicts, broken relationships and compromised testimony that are a result of this 10-year ordeal. It is the hope of both vestries that this agreement allows our two church families a graceful way to go forward in ministry, seek reconciliation of relationships and forge healthy ways of partnering in the proclamation of the Gospel of Jesus Christ."

The dispute dates to 2000 when one of the two cases at issue arose after the diocese filed a public notice that All Saints, subject to applicable canon law, holds its property in trust for the diocese and the Episcopal Church as a whole. Attorneys for the diocese said that the notice was filed "out of concern that All Saints might attempt to convey its property" to the AMiA.

The parish then sued to have the diocesan notice removed from public records, claiming that legal ownership and control belonged entirely to the parish free from any interest by the Episcopal Church and the diocese.

When in December 2003, All Saints proposed affiliating with the AMiA, then-diocesan Bishop Edward L. Salmon Jr. put the parish under his supervision, and helped it to organize a new vestry. That vestry then filed the second lawsuit, asking the court to recognize them as the proper representatives of All Saints parish, entitled to possession of All Saints' name and property.

The court said it used a "neutral principles" approach, which settles church disputes in terms of state property, trust, and contracts laws as instructed by the First Amendment, as opposed to a "deference approach" which would call for courts to defer to the positions and contentions of ecclesiastical authorities.

"We remain mindful of the First Amendment and its protections of religious liberty," Chief Justice Jean Hoefer Toal wrote for the unanimous court. "Nonetheless, adjudication of this matter does not require us to wade into the waters of religious law, doctrine, or polity."

The court's opinion said that the heirs of the holders of the original 1745 trust deed were not the owners of that land, but "simply acted as custodians of the property" until All Saints was established. The parish corporation is the owner, the court said. The opinion also said a 1903 quit-claim deed from the diocese gave title to the property to the parish.

According to the opinion, neither the "Dennis Canon" (Canon 1.7.4) (passed by the General Convention in 1979 to state that a parish holds its property in trust for the diocese and the Episcopal Church) nor the 2000 notice filed by the diocese "has any legal effect on title to the All Saints congregation's property."

The petition for review filed with the U.S. Supreme Court said the court "should grant review to resolve the deep division among the state courts regarding the legal force of the Dennis Canon and similar trust provisions … and to restore the First Amendment right of hierarchical churches and their members to protect valuable church property from dissident members through appropriate trust provisions."

"TEC has approximately 7,000 congregations nationwide that together hold billions of dollars in property," the petition said. "Ownership of hundreds of millions of dollars of that property is currently being disputed by TEC and parishioners loyal to the general church, on the one hand, and dissident religious organizations and their adherents, on the other."

Episcopal News Service
The Rev. Mary Frances Schjonberg is a national correspondent for the Episcopal News Service and Episcopal News Monthly editor.