Legal response makes First Amendment case for injunction against Mark Lawrence
April 24, 2013
The dispute over who is Bishop of the Diocese of South Carolina is a question of church polity, not property, and must be determined by federal First Amendment principles rather than state laws that govern corporations, according to a legal response filed on behalf of Bishop Charles G. vonRosenberg this week.
Bishop vonRosenberg, who is recognized by The Episcopal Church as the bishop of the Diocese, should be granted an preliminary injunction by the U.S. District Court in Charleston to prevent Mark Lawrence from falsely claiming that he remains the bishop, according to a reply filed Monday, April 22 by Bishop vonRosenberg in the case, vonRosenberg v. Lawrence, that is now before U.S. District Judge C. Weston Houck.
Bishop vonRosenberg filed the suit March 5 under the federal trademark law known as the Lanham Act, and is seeking a preliminary injunction to prevent further damage and confusion about who is authorized to act as the bishop and use the name and marks of the diocese.
In October 2012, a Disciplinary Board of The Episcopal Church found that Bishop Lawrence had engaged in conduct “constituting abandonment of The Episcopal Church by an open renunciation of the Discipline of the Church.” The Presiding Bishop, the Most Reverend Katharine Jefferts Schori, restricted Bishop Lawrence from exercising his ministry.
In response, Bishop Lawrence announced that he and the diocese were no longer associated with The Episcopal Church. The Presiding Bishop accepted Bishop Lawrence’s renunciation of ministry in The Episcopal Church in December, and removed him from ordained ministry. She convened a Special Convention of the Diocese on January 26, where Bishop vonRosenberg was elected and invested as Provisional Bishop of the diocese.
Bishop Lawrence has argued that he is still the bishop because the diocese had seceded from The Episcopal Church before he was removed. But the issue of whether a diocese may secede is a First Amendment question, “a quintessential question of ‘church polity and church administration’ on which civil courts must defer to ‘the highest ecclesiastical tribunals in which church law vests authority to make that interpretation,’” according to a 1976 U.S. Supreme Court case known as Serbian Eastern Orthodox Diocese v. Milivojevich.
Attorneys for Bishop Lawrence contend that the First Amendment question is irrelevant because South Carolina adopted a “neutral principles of law” approach to disputes over church property, notably in the case of All Saints Parish Waccamaw. But “neutral principles of law” can resolve only property disputes, not religious disputes over who holds religious office. Since the question before the court is one of church polity – whether dioceses may secede, and who is the bishop – not a question of property, the First Amendment requires that civil courts defer to church authorities, under the Serbian Eastern Orthodox decision and the 1979 case Jones v. Wolf, also decided by the U.S Supreme Court.
“That the Diocese manages certain of its temporal affairs through a non-profit corporation changes nothing,” according to the response. “It was not state corporations law, but religious doctrine and polity, that made the Diocese a sub-unit of The Episcopal Church. Indeed, the Diocese’s non-profit corporation was only formed in the 1970s – almost 200 years after the Diocese first was organized as a sub-unit of the Church,” the response says.
Corporate bylaws cannot determine who is Bishop of the Diocese, “because that position is not a corporate position, but an ecclesiastical one,” the response says.
While Bishop Lawrence has argued in court filings that he as bishop is the “highest authority” within the church’s hierarchical structure, the response points out the “numerous ways in which bishops are subordinate to the national Church, including the oath Bishop Lawrence swore upon his ordination in 2008 as Bishop of the Diocese, ‘to conform to the Doctrine, Discipline and Worship of The Episcopal Church.’”
“Bishop Lawrence suggests a radical reordering of the hierarchical polity of The Episcopal Church that is contrary to judicial precedent, canon law, and rational governance,” the response says. “This Court should reject his contention and recognize, as have numerous courts, that within The Episcopal Church’s hierarchical polity, the highest ecclesiastical authority on questions of church governance is the Church’s General Convention and its Executive Council and Presiding Bishop.”
The Episcopal Church has consistently held that while individuals are free to leave the Church, diocese may not unilaterally withdraw or secede from it.
Monday’s response is the final step in the back-and-forth filings on the motion, according to Thomas S. Tisdale Jr., Chancellor of The Episcopal Church in South Carolina. No date has been set for a hearing, but the judge will likely schedule one as soon as possible, Mr. Tisdale said.
Status of legal matters
In addition to the federal case of vonRosenberg v. Lawrence, a separate related case is also before Judge Houck in U.S. District Court. That lawsuit was filed in January by the breakaway faction led by Bishop Lawrence, a group calling itself “The Protestant Episcopal Church in the Diocese of South Carolina,” along with 34 parishes allied with the breakaway group. That action seeks control of the diocesan name, seal and property, and the property of the individual parishes.
The Episcopal Church in South Carolina exercised its right to have that case removed from Circuit Court to federal court earlier this month, citing federal issues raised by the case that properly need to be decided by a federal court. Attorneys for the breakaway group have argued that the case should be remanded to Circuit Court.
In January, the breakaway faction obtained a temporary order in Circuit Court that restricts who can use the name of the diocese. To comply with the order, Bishop vonRosenberg and other officials of the diocese that is continuing as part of The Episcopal Church have been using a working name for the diocese, "The Episcopal Church in South Carolina."
In a separate case that involves similar issues, on April 18 the Supreme Court of Virginia ruled in favor of the Episcopal Diocese of Virginia and The Episcopal Church, affirming an earlier decision to return Episcopalians to their church home at The Falls Church. The court also held that the Diocese of Virginia and the Episcopal Church have a trust interest in parish property, validating the “Dennis Canon” in Virginia, a canon of The Episcopal Church that declares that church properties are held in trust for The Episcopal Church.
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