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High court avoids theology in deciding church suit

By Charles Swenson
Coastal Observer

The state Supreme Court has overturned a Circuit Court ruling and declared the contested All Saints’ Church property is in the hands of its rightful owners without touching on issues of theology that have divided the Episcopal Church.

The ruling could be appealed to the U.S. Supreme Court.

“We certainly have that option,” said Guerry Green, senior warden of the All Saints’ Episcopal vestry, which had seen the Circuit Court ruling as a victory. “There’s only one court left to go to.”

“It’s a huge decision for us as far as the property issue,” said the Rt. Rev. Terrell Glenn, rector of All Saints’ Church, part of the Anglican Mission in the Americas. “It really isn’t all over yet.”

Chief Justice Jean Toal wrote in the opinion issued last week that the lower court judge misinterpreted the language of colonial era documents that transferred the property to the church and applied the incorrect legal doctrine in determining who controlled the property.

“We remain mindful of the First Amendment and its protections of religious liberty,” Toal wrote, adding that “this matter does not require us to wade into the waters of religious law, doctrine or polity.”

The dispute over property ownership was played out against a background of growing disagreement in the Episcopal Church over biblical authority, a dispute that centered on homosexuality.

But the issue between the Anglican and Episcopal parishes isn’t about theology.

“A lot of people don’t understand that,” Green said. “We were all on the same side of the river. It was just politics.”

Glenn said the ruling could open the way to a reconciliation. He was at a conference in North Carolina this week, and said he had tried unsuccessfully to reach the Rt. Rev. Mark Lawrence, bishop of South Carolina, and the Very Rev. Ed Kelaher, rector of the All Saints’ Episcopal parish.

“We all three very much want to be able to talk to one another,” Glenn said.

The next step in the legal process is for the Episcopal vestry to ask the state Supreme Court to reconsider its ruling.


The ruling settled lawsuits filed in 2000 and 2005 that sought to establish ownership of the property.

In 2006, Judge Thomas Cooper ruled that a 1745 trust that conveyed the church property was still valid, and that the property was held in trust for Waccamaw Neck residents for worship. He also ruled that the vestry of the All Saints’ Episcopal parish owned the property.

The Episcopal parish was reestablished by the Diocese of South Carolina after All Saints’ members voted in 2005 to cut ties with the national church and maintain their link with the worldwide Anglican Communion through the Province of Rwanda. The Episcopal Church and the diocese argued that the parish owned the property in trust for the national church.

Toal said the national church and the diocese have no valid claims on the 60-acre church property. The property is owned by All Saints’ Parish Waccamaw, a corporation that properly amended its charter to sever its relationship with the U.S. Episcopal Church. The current vestry are the “true officers” of that parish, she wrote.

Three other justices concurred in the unanimous decision.

The All Saints’ Anglican vestry continued to occupy the church property after the 2006 ruling. They had argued in a 2000 suit brought against the diocese and the national church that the 1745 trust was valid, and wanted the county Probate Court to name the trustees. That case reached the state Court of Appeals and was sent back to Circuit Court for trial.

In the meantime, the church membership voted to leave the diocese and the national church. That prompted a suit by the Episcopal parish vestry in 2005.

The cases were combined, and went to trial before Cooper in 2006.

In the Supreme Court ruling, Toal said the language that created the 1745 trust was only a convention of the time that allowed land to be set aside for a parish church before the state legislature created the parish. She said the clear intent was to sell the land to the parish.

The land was sold for the equivalent of $277,778, “a price far above nominal value,” Toal said.

And she noted there is no evidence the trustees ever performed any duties.

In 1902, the diocese helped All Saints’ Parish Waccamaw establish a new corporation, and transferred its interest in the property to the parish in a quit-claim deed. That deed “makes it clear that title to the property at issue is currently held by the congregation’s corporate entity,” Toal wrote.

In deciding that the current Anglican vestry are the officers of that corporation, Toal said the court followed a U.S. Supreme Court doctrine dating from 1979 that says courts can decide civil matters in church disputes, but not disputes over religious issues.

Cooper’s ruling followed a 19th century doctrine that deferred to decisions of church authorities, giving weight to the diocese’s claim that the Episcopal vestry controlled the property.

Toal said the application of South Carolina corporate law to the question doesn’t amount to “judicial meddling” in church issues. The votes by All Saints’ members and vestry to amend the parish charter and cut ties with the national church complied with state law, she wrote.

“This decision actually helps the Diocese of South Carolina,” which has considered breaking ties with the national church, Glenn said. “It’s huge for any Episcopal church in South Carolina.”

For the Anglican parish, the impact of the suit had diminished with time, Glenn said.

“We had to get to a place where we’re at peace whether the courts rule in our favor or not,” he said.

He said his vestry was prepared to find a new site and continue with its ministry had Cooper’s decision been upheld. At the same time, it maintained the facilities and renovated the old church.

“There are extraordinary resources in the property,” Glenn said. “It’s a fundamental stewardship issue.”

It’s also an emotional issue, Green said.

“For a lot of people, that property runs deep in their family tradition,” he said. “We’re right where we were six years ago.”

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