In an adversarial court truth is not the bottom line. It is the attorneys who are in charge determining when, where and what critical evidence may or may not be introduced during the proceedings. The judge has to keep the attorneys in line.

Peter Murphy writing in the Practical Guide to Evidence recalls an instance: "A frustrated judge in an English (adversarial) court finally asked a barrister after witnesses had produced conflicting accounts, 'Am I never to hear the truth?' 'No, Milord, merely the evidence', replied counsel."

What is going on in the South Carolina courtroom is not a matter of "justice is blind". It is an attempt to "blindfold the judge" by using innuendo, misstated truths, half stated truths, false claims, intimidation, bullying, skewered history and biased spin.

Perhaps the most balanced reporting of the daily courtroom skirmishes comes from Allan S. Haley, a respected attorney in California as well as an accomplished canon lawyer. The counsellor-at-law understands the courtroom proceedings from both a legal standpoint — the letter of the law, and the canonical aspect — governing church rules. He also happens to be an Episcopalian who understands Episcopal polity and patrimony.

Many times in posting his daily reports, Haley has had to add editorial comments to explain or clarify TECinSC's courtroom tactics.

Haley, a graduate of Harvard Law School, is more than experienced in real estate law, business law, church law, and civil litigation with appellate experience in state and federal courts including the US Supreme Court. All expertise needed in following the South Carolina case.

The on-going South Carolina case is an entanglement of church canons and real estate law. South Carolina has already determined that in the case of local church property disagreements with a national denomination the natural principles of law are to be followed thus effectively debunking the grip of the Dennis Canon in South Carolina.

In 2009 the South Carolina Supreme Court ruled that "We hereby explicitly reaffirm that, when resolving church dispute cases, South Carolina courts are to apply the neutral principles of law approach as approved by the Supreme Court of the United States in Jones v. Wolf, (1979), and expressed by this Court..."

The South Carolina test case was All Saints Parish Waccamaw v. Protestant Episcopal Church. All South Carolina courts — circuit and appellate — are to follow the South Carolina Supreme Court's dictate in handling church and property disputes according to natural principles of law.

Several states have specially decided to use the Jones v. Wolf opinion in their dealing with church property litigations. That case set the natural principles precedent. States which specially reference Jones v Wolf in using natural principles of law in resolving ecclesial property matters include: Alaska, Arkansas, Illinois, Pennsylvania, Texas, Wisconsin and South Carolina.

In 2004 All Saints Parish Waccamaw disassociated from the Episcopal Diocese of South Carolina over increasing theological differences to affiliate with the Anglican Mission in America (AMiA). At the time Bishop Edward Salmon (XIII South Carolina) was at the diocesan helm.

A 1979 case before the nation’s highest court involved Vineville Presbyterian Church a Presbyterian Church in the United States of America (PCUSA) congregation in Macon, Georgia originally founded 1903. The church membership voted in 1973 to realign with the more theologically conservative Presbyterian Church of America (PCA) taking their property with them.

PCUSA’s position was that Vineville was bound by the control of the Session, Presbytery, Synod, and ultimately, the General Assembly. The congregants could leave but could not take their buildings with them.

Supreme Court Justice Harold Blackmun —noted for his authorship of the Roe v Wade ruling — wrote the majority Jones v. Wolf opinion that states: "The state has an obvious and legitimate interest in the peaceful resolution of property disputes, and in providing a civil forum where the ownership of church property can be determined conclusively," thus upholding the Georgia Supreme Court’s ruling in affirming a lower court’s decision in applying Georgia’s neutral principles of law to the Presbyterian property dispute.

When natural principles of law are applied, the court is to resolve the ownership of church or ecclesial property by looking specifically at what the legal documents — property deeds, articles of incorporation, trusts, charters, contracts, certificates, transfers, wills — read. This then excludes the use any and all denominational canons or religious beliefs and theology in determining legal church land ownership.

Even though the South Carolina Supreme Court has struck down the Dennis Canon as having no sway in the Palmetto State, TECinSC has been insistent on making the Dennis Canon a part of the legal equation thinking that the state's Supreme Court's ruling was specific to All Saints-Waccamaw only and not to all church property disputes tried within the state.

The Dennis Canon started out as Resolution D024 in the 1979 Episcopal General Convention held in Denver, Colorado. The Dennis Canon (Title I.7.4) came on the scene attempting to draw all Episcopal congregations, with their personal and real properties, under its umbrella so that the chattels may be held by or for the benefit and in trust for The Episcopal Church and the local diocese that the parish or mission congregation is located.

The drafter of the Dennis Canon was Canon Walter Dennis, an attorney and Episcopal priest who was engaged in social justice. He first drafted the Dennis Canon to deal with the backlash of Episcopal parishes leaving The Episcopal Church following the ordination of women to the priesthood and the revision of the 1928 Book of Common Prayer. The Episcopal Church had already lost some congregations and the hemorrhaging was expected to increase.

Once the Dennis Canon was passed it more or less became retroactive. All church property, regardless of where it was located or how long the congregation has been in existence, was held in trust for the wider Episcopal Church. Canon I.7.5 further notes that although a diocese may affirm the trust "but no such action shall be necessary for the existence and validity of the trust" thus making the trust mandatory and encompassing all Episcopal church properties with no regard as to where they are found or when real estate was acquired or edifices built. The wider Episcopal Church owns it all.

All Saints-Waccamaw is an historic church in an historic diocese, both of which predate The Episcopal Church. The beginnings of All Saints can be traced back to at least 1737. but the parish was formally established in 1767 by The Colonial Assembly of South Carolina formally established the parish in 1767. Its first written trust deed was signed in 1745 when 60 acres were deeded by Percival and Ann Pawley to George Pawley and William Poole “forever in Trust For the Inhabitants On Waccamaw Neck for Use of A Chapel or Church for divine Worship of the Church of England established by Law․”

In 1820, All Saints cemetery was established and in 1822, the rectory was built. In 1916, the current Classical Revival sanctuary was built to replace a 19th century edifice that was destroyed by fire. All Saints also consists of the Cedar Grove Plantation Chapel, its summer chapel, built on Pawleys Island in 1898.

Fast-forward to 1902 when All Saints became concerned about the status of its charter following the destruction of church documents in a “Great Strom” -- possibly a hurricane around the turn of the 20th century. In 1903, the trustees of the Diocese of South Carolina signed a quitclaim deed thereby transferring any interest the Diocese may have had in the congregation's property to All Saints Parish in Waccamaw. That Colonia-era parish continues to this day.

“The Dennis Canon purports to declare a trust, in favor of the ECUSA and the Diocese, on all real and personal property held by any congregation,” the 2009 South Carolina Supreme Court ruling explains. “No such property canons existed in 1902 when the Diocese directed the congregation to incorporate, or when it executed the 1903 Quit-Claim Deed in favor of the newly created All Saints Parish, Waccamaw, Inc.”

Two weeks ago the Episcopal Diocese of South Carolina presented the court with legal documents and important artifacts proving the historic ownership of their land and buildings; governing documents, properly amended diocesan canons, and parish bylaws.

The Episcopal Diocese of South Carolina earliest roots date to the Colonial period. Several on-going congregations within the Diocese predate the Revolutionary War. The Diocese, itself, was formally established in 1785 and is one of nine original Episcopal dioceses to form the Episcopal General Convention in 1789, long before the Dennis Canon became Episcopal canon law.

The joint TECinSC/TEC legal team headed by TECinEC's Chancellor Thomas Tisdale and David Beers -- the Chancellor to the Presiding Bishop of The Episcopal Church -- keep dragging the hierarchical red herring of the Denis Canon across the courtroom floor in an attempt to get the judge to sit up and take notice of the argument. Even if they are able to convince the court that The Episcopal Church is hierarchical — top down from General Convention to the smallest rural mission — Judge Goodstein is bound by the precedent-setting opinion of the 2009 South Carolina Supreme Court's ruling that church property disputes must be determined according to natural principles — cut and dried — what do the legal documents say.

Beers, in particular, is trying the make the South Carolina case a one-question issue. Is The Episcopal Church hierarchical? If he were able to do that he would shift the court from using "natural principles" to the "deference approach."

Under the "deference approach" a court must only determine whether a church is “congregational” or “hierarchical” in nature. If the church is congregational — self ruled by the congregation's membership — the court could resolve the dispute by deferring to the will of the majority of the congregation. However, if the congregation at issue is part of a hierarchical structure — with a defined chain of command and multiple levels of ecclesial authority — the court could defer to the decision of the higher church authorities.

The "deference approach" in resolving church property ownership is not used in South Carolina. In 2009 the South Carolina Supreme Court ruled that natural principles of law are the determining factor in solving church property disputes.

"Church disputes that are resolved under the neutral principles of law approach do not turn on the single question of whether a church is congregational or hierarchical," the 2009 South Carolina Supreme Court ruling explains. "Rather, the neutral principles of law approach permits the application of property, corporate, and other forms of law to church disputes."

It has been the on-going mantra of The Episcopal Church that "individuals can leave the church but dioceses and parishes cannot" and that The Episcopal Church is hierarchical in nature with General Convention being the ultimate definitive authority. That spoken mantra has not been written into canon law. The first time that the word "hierarchical" was codified in canon law was in the 2009 revamp of Title IV where it was narrowly defined. The word "hierarchical" was used only once in connection with clerical discipline and not church property issues.

Title IV.19.1, outlining the general provisions of the discipline of the church, says: "Proceedings under this Title are neither civil nor criminal but ecclesiastical in nature. These proceedings represent the responsibility of the Church to determine who shall serve as Members of the Clergy of the Church, reflecting the polity and order of this hierarchical church..."

The TECinSC/TEC legal tag team is straining their relationship with the South Carolina judge. Several times Judge Goodstein has snipped back at Episcopal litigants.
On Friday, July 11, she respectfully requested the attorneys for both sides get together over the weekend to make a concerted effort to determine a consensus on basic facts and to identify the undisputed facts and documentary evidence in the case before her.

On Monday, July 14, Tisdale tried to qualify the stipulation that both sides had hammered out over the weekend. That did not sit well with the judge. She ordered the attorneys to work things out, giving them 10 minutes to come to a common agreement, before continuing with the bench trial.

Three days later (Thursday, July 17), the defense team received a tongue lashing from the bench when they tried to present a trademark witness, Robert Kline who had been previously ruled out.

Judge Goldstein has also upbraided the defense for its continued tactics to delay and postpone the trial. “You have violated this court three times with regard to experts and now you think you’re going to bring in his [Kline] testimony through the back door? This is not a game! Court’s orders are to be followed! You are an officer of the court. I trust we will not have any more discussion about this witness.”

On Friday, July 18, Judge Goodstein asked the various attorneys to go through the mounds of documents to determine which could be deemed as "relevant" and which could be excluded as “irrelevant.”

On Monday, July 21 Judge Goodstein and the defense legal team once again clashed over a TECinSC/TEC's "expert" witness. This time it was over the admissibility of testimony by University of South Carolina historian Walter Edgar who was to testify about the hierarchical nature of The Episcopal Church and what it means.

“Let me be very clear that in every way the defendants [TECinSC/TEC] have done everything within their ability to establish the hierarchal nature of this church. I accept that,” the judge explained. “Our [South Carolina] courts have said we will not enforce the hierarchical decisions. We’re a neutrality state.”

On Wednesday, July 23, Beers again tried to hammer home his laser-focused argument that the South Carolina case must be resolved by declaring that The Episcopal Church is hierarchal in nature, ergo, the court then must turn over all church properties in DIOofSC to TECinSC with TEC claiming all the spoils.

Judge Goodstein is wearing of that position as she has repeatedly explained that according to the South Carolina Supreme Court, she must rule according to neutral principles of law and not take into account theology, religious doctrine, polity, practice, religious canon law, principle, discipline, custom, or church administration. She needs to know what the legal documents say for her to issue an unbiased ruling.

“In terms of whether or not the parishes in South Carolina and the Diocese in South Carolina were allowed to leave the national church I’m going to make that determination on the basis of neutral principles of law under South Carolina law," she again explained.

The trial in Judge Goodstein's St. George courtroom was to last only two weeks. It is now in its third week. Conventional wisdom says that it should end before this week is out, at which point the judge is to take the case under advisement and issue her ruling after she has had time to examine the documents, including the Constitution and Canons of The Episcopal Church, and weigh all the legal arguments from both sides.

Mary Ann Mueller is a journalist living in Texas. She is a regular contributor to VirtueOnline.