South Carolina Episcopal Parishes All Win Title To Their Property

In Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, (SC Common Pleas, June 19, 2020), a South Carolina trial court was called upon to interpret a confusing decision by the South Carolina Supreme Court in a long-running property dispute that arose after a split in the Episcopal Church in South Carolina.  In a 2017 decision, the 5-member South Carolina Supreme Court in 5 separate opinions spanning 77 pages purported to resolve the factional property dispute. The trial court concluded that, under the state Supreme Court's decision, 36 parishes are the owners of their parish real estate and accompanying personal property. The court said in part:

This Court must distill the five separate opinions, identify the Court’s intent, and produce a logical directive. It must harmonize these opinions and find common ground among them. The issue is whether the 1979 Dennis Canon or any parish’s alleged accession to that Canon created a legally cognizable trust under South Carolina law....

At issue is ownership of real property, purchased and managed exclusively by the Plaintiff Parishes including land and buildings, considerable funds, and other personal property such as books, silver, and historical archives. The crux of the disagreement rests upon the Dennis Canon and its legal effect on whether this property was ever held in trust for TEC or TECSC....

This Court finds that the Plaintiffs merely promised allegiance to TEC and without more, this promise cannot deprive them of their ownership rights in their property. This Court finds no Parish expressly acceded to the 1979 Dennis Canon. The Dennis Canon was not mentioned by name in any of the evidence, and Defendants admitted that the Dennis Canon is not referenced in any of the deeds of parish property.... As a result, there is no trust created in favor of the Defendants, TEC and TECSC.

Christian Post reports on the decision.

Waiver For Foster Care Agencies To Select Parents Using Religious Criteria Violates Establishment Clause

In Rogers v. U.S. Department of Health and Human Services, (D SC, May 8, 2020), a South Carolina federal district court refused to dismiss Establishment Clause and sexual orientation discrimination claims by a lesbian couple who challenged waivers granted by the state and federal government allowing religious child placement agencies (CPA's) receiving government funds to select foster parents on the basis of religion. (See prior posting.) The court said in part:

Plaintiffs allege that their inability to become foster parents through Miracle Hill was directly caused by the actions of the State Defendants and Federal Defendants because they have affirmatively enabled the discrimination against Plaintiffs by authorizing Miracle Hill and other religiously-affiliated CPAs to use religious criteria to reject prospective foster parents....

[T]he court finds that a reasonable, informed observer could conclude that the Defendants’ actions were taken in an effort to protect a specific CPA, Miracle Hill, and permit discrimination within South Carolina’s foster care program on the basis of Miracle Hill’s religious criteria. Other courts have similarly held that where, as Plaintiffs allege occurred in this case, a state’s authorization for faith-based CPAs to use religious criteria to exclude prospective foster parents “objectively endorses the religious views of those agencies[,] . . . sending a message . . . that [those prospective foster parents who are rejected] are outsiders, not full members of the community.”... Accordingly, taking all facts set forth in the Complaint as true, Plaintiffs have set forth sufficient allegations that Defendants’ actions had the primary effect of advancing and endorsing religion and, thereby, violate the Lemon test and the requirements of the Establishment Clause. ....

Contrary to Defendants’ argument, the Supreme Court has long recognized that the Constitution does not permit “a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions.”... Therefore, to the extent Defendants’ assert that their actions are immune from challenge under the Establishment Clause as “religious accommodation,” such argument is directly contrary to the well-pled allegations in the Complaint and long-established federal jurisprudence and must be rejected at this stage of the proceedings.

Lambda Legal issued a press release announcing the decision.

Suit Challenges South Carolina's Anti-LGBTQ Curriculum Law

Three advocacy organizations filed suit yesterday in a South Carolina federal district court challenging the constitutionality of S.C. Code §59-32-30(A)(5) which prohibits public school sex education programs from discussing "alternate sexual lifestyles from heterosexual relationships including, but not limited to, homosexual relationships except in the context of ... sexually transmitted diseases." The complaint (full text) in Gender and Sexuality Alliance v. Spearman, (D SC, filed 2/26/2020)contends that the law violates the equal protection clause, saying in part:

The Anti-LGBTQ Curriculum Law harms LGBTQ students. It stigmatizes them by creating a state-sanctioned climate of discrimination in schools and denies LGBTQ students health education opportunities equal to those of their heterosexual peers.

WCSC reports on the lawsuit.

Challenge To Religious Anti-Discrimination Waiver Dismissed For Lack of Standing

In Maddonna v. U.S. Department of Health and Human Services, (D SC, Nov. 13, 2019), a South Carolina federal district court dismissed for lack of standing a challenge to action by the federal government and the state that, through a waiver of anti-discrimination requirements, allowed a religiously affiliated foster care agency to place children only with evangelical Christians. The court said in part:

Plaintiff could only conceivably attempt to assert taxpayer standing as to her claims regarding the Establishment Clause. Even then, Plaintiff has not set forth any challenge to any legislative action, but has, rather, challenged discretionary executive actions and appropriations....

 Assuming without deciding that Plaintiff’s other alleged injuries - i.e. that she was denied the opportunity to volunteer and/or become a foster parent through Miracle Hill and was discriminated against in the process - has been sufficiently alleged ..., the court finds that Plaintiff has failed to establish that such injury was fairly traceable to any Defendant....  [A]t the time Plaintiff was denied the ability to volunteer with or foster through Miracle Hill in 2014, the actions of which she complains had not taken place, and, therefore, cannot conceivably have caused or even contributed to Plaintiff’s alleged harm.

The State reports on the decision.

Break-Away Diocese Cannot Use Former Trademarked Names

In vonRosenberg v. Lawrence, (D SC, Sept. 19, 2019), a South Carolina federal district court,in a 73-page opinion, resolved a trademark dispute between The Episcopal Church and a break-away diocese.  As summarize by World Intellectual Property Review:

A US judge has ordered a former South Carolina diocese of the Episcopal Church to change its name, after concluding the breakaway group was infringing the Episcopal Church’s trademark-protected diocesan shield.

On Thursday, September 19, District Judge Richard Gergel issued an injunction against the breakaway diocese, ordering the group not to use nine trademarks associated with the Episcopal Church and ... The Episcopal Church in South Carolina, an affiliate of the national church.

Suit Over Use of Civic Center For Religious Worship Is Settled

A joint consent decree (full text) was filed yesterday in a South Carolina federal district court in Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, (D SC, Aug. 19, 2019), settling a lawsuit over restrictions on the use of the Edisto Beach Civic Center.  The decree reflects the town's action rescinding its prohibition on renting out space in the Civic Center for “religious worship services.” The town also agreed to pay $3112 in damages plus plaintiff's attorney's fees. As explained in a press release from ADF:

Shortly after the lawsuit began, the U.S. Department of Justice filed a statement of interest in the case in favor of the church. The lawsuit argued that the town’s previously amended guidelines were inconsistent and amounted to viewpoint discrimination—allowing some groups “to engage in singing, teaching, social interaction, and similar expressive activities” at the center while denying “access to those groups that engage in those same activities from a religious viewpoint.”

Court Expands Injunction On Prayer At High School Graduations

In American Humanist Association v. Greenville County School District, (D SC, July 18, 2019), a South Carolina federal district court expanded its May 2015 order relating to prayer at high school graduation ceremonies in a South Carolina school district. It issued a permanent injunction that includes the following provisions:

(1) The district shall not include a prayer ... as part of the official program for a graduation ceremony. The district also shall not include an obviously religious piece of music as part of the official program for a graduation ceremony.

(2) The district and/or school officials shall not encourage, promote, advance, endorse, or participate in causing prayers during any graduation ceremony....

(4) The district and/or school officials shall not provide copies of student remarks from any prior year’s graduation ceremony to any students selected to make remarks during an upcoming graduation ceremony.

(5) ... No program or flier may direct the audience or participants to stand for any student’s remarks at a graduation ceremony.

(6) If school officials review, revise, or edit a student’s remarks in any way prior to the graduation ceremony, then school officials shall ensure that the student’s remarks do not include prayer.

(7) If school officials do not review, revise, or edit a student’s remarks ..., then a student’s remarks may include prayer, provided that no other persons may be asked to participate or join in the prayer, for example, by being asked to stand or bow one’s head. Moreover, in the event that a student’s remarks contain prayer, no school officials shall join in or otherwise participate in the prayer.

(8) Any program or flier for a graduation ceremony must include the following disclaimer if the ceremony includes a student’s remarks: “The views or opinions expressed by students during this program are their own and do not reflect the policy or position of the school district.”

Greenville News reports on the decision.

Suit By Purchasers of Former PTL Club Properties May Move Forward

MorningStar Fellowship Church v. York County South Carolina, (D SC, June 17, 2019), involves a dispute between a South Carolina county and a large Christian evangelical church that had purchased properties once owned by PTL Club's Jim and Tammy Faye Bakker.  Jim Bakker resigned in the wake of a sexual scandal and was ultimately convicted and imprisoned for fraud. (Background.)  Plaintiff, MorningStar Fellowship, claims that the county prevented it from completing development of an $11 million building, known as the Tower, because of religious animus against the former owners, the Bakkers.  The development agreement between the county and MorningStar Fellowship called for demolition of the Tower if performance and payment bonds were not obtained within 180 days of approval of the site plan for the development. MoruningStar Claims that the county concealed its approval of the site plan in order to create a default.

The court dismissed on statute of limitations grounds MorningStar's claim for damages flowing from violation of its free exercise, due process and equal protection rights. However the court allowed plaintiff to move ahead on claims under the South Carolina constitution and the South Carolina Religious Freedom Act. It also allowed plaintiff to amend its complaint to add substantial burden and discrimination claims under the federal Religious Land Use and Institutionalized Persons Act.

Repeal of Ban On Use of Civic Center For Worship Services Moots Injunctive Relief, But Not Damages

In Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, (D SC, March 18, 2019), a South Carolina federal district court held that a church's request for injunctive relief was moot. The church initially rented space in the town's Civic Center for its worship services.  Subsequently the town changed its rules to bar renting of space for use for religious services. The church sued, and the town rescinded the ban. The church failed to show that the town might reinstate the ban.  The court said in part:

Although the resolution moots Redeemer Fellowship’s request for injunctive relief, it does not moot the church’s request for damages or for declaratory relief. Redeemer Fellowship’s prayer for relief asks that the court declare that the Town engaged in content-based discrimination and violated the church’s rights under the First and Fourteenth Amendments..... Redeemer Fellowship’s damages claim—the success of which depends on the court declaring that its constitutional rights were violated by the Town’s ban on religious worship services—survives this order. The court leaves it to the parties to determine whether or not Redeemer Fellowship did in fact suffer any damages by the Town’s prohibition of the church’s use of the Civic Center for their worship services from May 2018, when the church’s application for use of the Center was denied, until December 2018, when the Town rescinded the ban. 

Suit Challenges Religious Requirements Permitted In South Carolina Faith-Based Foster-Care Agencies

A lawsuit was filed Friday by Americans United for Separation of Church and State on behalf of a Catholic woman challenging actions by the federal government and the state of South Carolina that permit foster-care placement agencies to use religious criteria for approval of foster care families.  The complaint (full text) in Maddonna v. U.S. Department of Health and Human Services, (D SC, filed 2/15/2019) challenges the waiver from the religious discrimination ban in federally funded foster-care programs that the Department of Health and Human Services granted to the state of South Carolina last month. (See prior posting.) It also challenges a March 13, 2018 executive order by the Governor of South Carolina (Executive Order 2018-12) permitting licensed faith-based foster-care child-placement agencies to limit recruitment and training of foster parents to those who share the same faith as the agency. Plaintiff in the case, Aimee Maddonna, was refused participation in a foster care volunteer program by Miracle Hill Ministries because Miracle Hill required participants to be born-again Christians who belong to a Protestant church. The suit alleges Establishment Clause, equal protection and due process violations. AP reports on the lawsuit.

DOJ Files Statement of Interest In Church's Challenge To Limits On Use of Civic Center

As previously reported, in August a suit was filed in a South Carolina federal district court against Edisto Beach challenging the Town's rule change that prohibits renting space in the town's Civic Center for religious worship services.  Now the lawsuit has attracted the attention of the Justice Department. On Tuesday, DOJ filed a Statement of Interest (full text) in Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, arguing in part:

... [T]he Town’s legally erroneous “concerns” about Establishment Clause liability turn First Amendment jurisprudence on its head: the First Amendment prohibits the content-based and viewpoint-based restrictions on protected speech that the Town seeks to permit and permits religious worship services the equal access to government facilities that the Town seeks to prohibit.

Charleston Post and Courier reports on developments.

ESL Teacher At Christian College Loses Suit Because of Ministerial Exception Doctrine

In Yin v. Columbia International University, (D SC, Sept. 30, 2018), a South Carolina federal district court held that the ministerial exception applies to a teacher of English as a second language at a university that trains students for the Christian ministry. Plaintiff's contract was terminated when the university encountered financial difficulties.  The court thus dismissed plaintiff's suit alleging discrimination and retaliation against her on the basis of race, sex, and national origin, as well as violation of the Equal Pay Act and defamation.

Suit Challenges Ban On On Town's Rental of Space For Worship Services

A suit was filed yesterday in a South Carolina federal district court against Edisto Beach challenging the Town's rule change that prohibits renting space in the town's Civic Center for religious worship services.  The complaint (full text) in Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, (D SC, filed 8/27/2018), contends that the ban violates the First and 14rh Amendments.  ADF issued a press release announcing the filing of the lawsuit.

Supreme Court Denies Review In Two Church Property Cases

Today the U.S. Supreme Court denied review in two unrelated cases involving disputes over church property after the break away of a congregation from its parent body..  It denied certiorari in Presbytery of the Twin Cities Area v. Eden Prairie Presbyterian Church, Inc., (Docket No. 17-582, cert. denied 6/11/2018) (Order List).  In the case, the Minnesota Court of Appeals held that it was proper to apply the "neutral principles of law" approach, rather than applying the ecclesiastical abstention doctrine, to decide ownership of property of a congregation which had disaffiliated from the Presbyterian Church USA. (See prior posting).

The court also denied certiorari in Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, (Docket No. 17-1136, cert. denied 6/11/2018) (Order List).  In the case, the 5-member South Carolina Supreme Court in 5 separate opinions resolved a property dispute that arose after a split in the Episcopal Church in South Carolina. (See prior posting.)

More Rulings In South Carolina Episcopal Church Split

Earlier this week, a South Carolina federal district court issued another opinion in the long-running battle between competing Episcopal Church factions in South Carolina.  While the underlying dispute over which faction owns church property has been litigated in state court, a federal court suit was filed alleging a false advertising claim under the Lanham Act. Episcopal Bishop Charles von Rosenberg who heads the minority of congregations in South Carolina that remain loyal to The Episcopal Church sued Bishop Mark Lawrence who heads the larger portion of the congregations that in 2012 broke away from the national church. Von Rosenberg alleged that Lawrence engaged in false advertising by asserting that he remained the Bishop of the Diocese.  In vonRosenberg v. Lawrence, (D SC, April 16, 2018), the court allowed plaintiffs to add as defendants the Diocese, parishes and trustee corporation affiliated with Bishop Lawrence.

In a perhaps more interesting second part of the opinion, the court refused to allow the suit to be expanded to assert a novel breach of trust claim.  Last year, the South Carolina Supreme Court decided the property issue largely in favor of those who remained loyal to The Episcopal Church. (See prior posting.)  Plaintiffs sought to add a claim that "the parishes have breached their fiduciary duties by allowing property held in trust for TEC to be used 'in connection with a denomination' other than TEC."  They sought an order against 28 Parishes "to remove from their vestries any persons who cannot demonstrate to this Court's satisfaction that they are capable of and willing to carry out their fiduciary obligations to The Episcopal Church...."  The court held that it is not "free to use trust law entangle itself with religion like a fly in a spider web."  It continued:

Entry of a judicial order telling 28 congregations whom they may or may not elect to their respective parish vestries would foster excessive judicial entanglement with religion....

Of course, there are other ways for TEC to enforce its property rights. For example, TEC could take legal possession of the parish property held in trust for its benefit, rather than asking a federal court to supervise the local congregation's use the property. 

Charleston Regional Business Journal reports on the decision.

"Parody Marriage" Bills Are Newest Attempt To Challenge To Same-Sex Marriage

A bill titled Marriage and Constitution Restoration Act (H 4949) was introduced into the South Carolina legislature last week (Feb. 15). A similar bill with the same title (HB 0167) was received for introduction in the Wyoming legislature on Feb. 14.  Taking a new approach to challenging same-sex marriage, the bills define marriage that does not involve one man and one woman as "parody marriage."  The bills then declare that parody marriages, as well as treating sexual orientation as a suspect class, violate the Establishment Clause because they are part of the religion of Secular Humanism.  They declare, on the other hand, that marriages between one man and one woman are secular because they arise "out of the nature of things" and are "natural, neutral and noncontroversial."   According to the Charleston City Paper, the bills in both states were written with the advice of Chris Sevier. Sevier has gained notice by filing lawsuits seeking to have his marriage to his computer recognized--- suits filed in an attempt to discredit non-traditional marriages. (See prior posting.)

Cert. Filed In Episcopal Church Property Dispute

A petition for certiorari (full text) was filed last week with the U.S. Supreme Court in Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, (cert. filed 2/9/2018).  In the case, the 5-member South Carolina Supreme Court in 5 separate opinions spanning 77 pages resolved a property dispute that arose after a split in the Episcopal Church in South Carolina. (See prior posting.)  The question presented in the cert petition is:

Whether the "neutral principles of law" approach to resolving church property disputes requires court to recognize a trust on church property even if the alleged trust does not comply with the State's ordinary trust and property law.

Anglican Curmudgeon blog discusses the cert. petition at length. [Thanks to Don Nichol for the lead.]

School Graduation In Christian Chapel Violates Establishment Clause

In American Humanist Association v. Greenville County School District, (D SC, Dec. 12, 2017), in a case on remand from the 4th Circuit (see prior posting), a South Carolina federal district court held that a South Carolina school district's practice of holding elementary school graduation ceremonies in the Christian Chapel of a local university violates the Establishment Clause. The court awarded plaintiffs $1 in nominal damages. The court said in part:

... [T]his ruling is limited to the specific facts of this case and should not be construed as a bright line rule regarding a school district’s use of a church-owned facility.... The fact that the district chose to hold the ceremony (which included school-endorsed Christian prayers) in a clearly Christian place of worship in the presence of religious iconography, including, among other things, a cross on the podium and eight stained glass windows depicting Christian imagery, only further created a likelihood that observers would perceive the district as endorsing a particular set of religious beliefs. There has been no showing that the chapel was the only available venue for the graduation ceremony, and in view of the overall circumstances of the event, there can be no doubt that the setting in which the ceremony occurred conveyed a message of religious endorsement and created a likelihood that the school-aged children would perceive a link between church and state.

 In a prior opinion in the case, the court had concluded student-led prayer at the school's past graduation ceremonies was unconstitutional.  In this case, the court held that the organizational plaintiff has standing to challenge the school's revised prayer policy as it is being applied.  Plaintiffs claim that as implemented, the revised policy merely continues past practices.  The court ordered the parties to attempt mediation before proceeding further. American Humanist Association issued a press release announcing the opinion.

South Carolina Supreme Court Resolves Property Dispute In Episcopal Church

In The Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, (SC Sup. Ct., Aug. 2, 2017), the 5-member South Carolina Supreme Court in 5 separate opinions spanning 77 pages resolved a property dispute that arose after a split in the Episcopal Church in South Carolina. AP summarized the background:

The conservative Diocese of South Carolina, dating to 1785 and one of the original dioceses that joined to form the Episcopal Church, left the national church in 2012 amid differences over theological issues, including the authority of Scripture and the ordination of gays. The group has since affiliated with the Anglican Church in North America, a group that formed in 2009.

Parishes in the region that didn’t leave the national church formed a diocese now known as The Episcopal Church in South Carolina.

The conservative diocese sued in efforts to protect its identity, the diocesan seal and other symbols it uses, and $500 million in church property, including the individual parishes’ holdings, as well as large properties including an Episcopal church camp in the Charleston area.

While the Supreme Court's opinions are complex, Acting Justice Toal in her dissenting opinion summarized the resulting holdings:

A majority of the Court ... agree that ... in secular church disputes, our state courts should apply neutral principles of law to resolve the case....  [T]he same majority would find this is a secular church dispute, and the Court must therefore apply longstanding trust law to resolve the questions before us. I would find the parties' actions did not comply with the formalities required to create a trust in this state....  Justice Kittredge would find the parties created a revocable trust in favor of the national church, but the plaintiffs later took steps to revoke their accession to the trust.... However ... a ... majority of the Court ... would ... transfer title of all but eight of the plaintiffs' properties to the defendants. While [2 justices] ... would do so because they believe this is an ecclesiastical dispute and the Court must therefore defer to the national church's decision on the matter, [another] would do so because he believes all but eight of the plaintiffs acceded to the Dennis Canon in a manner recognizable under South Carolina's trust law. Thus, the result reached on title is: 1) with regard to the eight church organizations which did not accede to the Dennis Canon, [3 justices] ... would hold that title remains in the eight plaintiff church organizations; 2) with regard to the twenty-eight church organizations which acceded to the Dennis Canon, [3 justices]... would hold that a trust in favor of the national church is imposed on the property and therefore, title is in the national church; and 3) with regard to Camp St. Christopher, [3 justices] would hold title is in the trustee corporation for the benefit of the associated diocese, whereas [2 others] ... would hold that the trustee corporation holds title for the benefit of the disassociated diocese. 

As to the second issue on appeal, involving the plaintiffs' claims for service mark infringement, [3 justices] ... would find the marks are validly registered under state law, but leave the ultimate resolution of the parties' conflicting claims to the pending federal case.

[Thanks to Tom Rutledge for the lead.]

Court Rejects Commerce Clause Challenge To Dylann Roof's Church Shooting Conviction

A South Carolina federal district court has rejected challenges by Dylann Roof to his conviction in the widely publicized 2015 killing of 9 individuals in a Bible study class at Mother Emanuel AME Church in Charleston, South Carolina.  In United States v. Roof, (D SC, May 10, 2017), the court upheld against a commerce clause challenge Roof's conviction for violating 18 USC §247 which prohibits obstructing by force a person's free exercise of religion where the offense is in or affects interstate or foreign commerce. The court said in part:

Defendant argues that because his offense was noneconomic, because he did not travel in interstate commerce to commit it, and because he used items purchased in South Carolina, the Government failed to establish that the offense-- that is, the intentional, forcible obstruction of the free exercise of religion-- was in or affected interstate commerce....

Defendant used the internet to conduct research and identify Mother Emanuel as his target, a telephone to contact the church directly, and GPS navigation satellites to navigate interstate highways on his multiple trips to and from the vicinity of the church. He used a Russia-based service to host the online manifesto he posted shortly before the attack at Mother Emanuel, which explained his motives. In preparation for the attack, Defendant purchased hollow-point bullets, magazines, and a firearm that had all travelled in interstate commerce. Defendant entered Mother Emanuel carrying the firearm and loaded magazines in a tactical pouch that had travelled in interstate commerce. Inside the church, Defendant used the items he procured to kill nine parishioners....

Defendant argues that the proper test is whether the offense was in interstate commerce, not whether the items used to commit the offense were in interstate commerce.... The Court finds that argument unpersuasive.