Monday, November 23, 2020




EPISCOPAL CHURCH ASKS U.S. SUPREME COURT TO TAKE CASE FROM FORT WORTH



The Episcopal Church and its diocese of Fort Worth have asked the United States Supreme Court to accept their appeal of the decision of the Texas Supreme Court on the Ft. Worth case. On October 19, 2020, TEC filed "Petition for a Writ of Certiorari" with SCOTUS for the Texas Supreme Court decision of May 22, 2020. That decision found all in favor of the breakaway faction that goes under the name of the Episcopal Diocese of Fort Worth.

The breakaway side has until December 23, 2020 to present a reply brief to SCOTUS. One amicus curiae brief has already been filed in support of TEC, from the Greek Orthodox Archdiocese of America, on Nov. 18, 2020. Other amici briefs are likely to be filed.


BACKGROUND:

---The Diocese of Fort Worth was created in 1983, explicitly acceding to the Constitution and Canons of the Episcopal Church. The Dennis Canon had been adopted by TEC in 1979.

---In 2008, a majority of the clergy and laity left the Episcopal Church retaining the name "The Episcopal Diocese of Ft. Worth." The Episcopal Church reorganized the Episcopal (loyalist) diocese. Both groups used the same name.

---In 2011, the 141st District Court (state) ruled all in favor of the TEC diocese declaring "The Episcopal Church...is a hierarchical church as a matter of law." The breakaways appealed to the Texas Supreme Court.

---In 2013, the TSC, in a 5-4 decision, reversed the District Court decision. It declared Texas law overruled the Dennis Canon because the canon did not contain a provision that it could not be revoked. TSC remanded to the District Court with instructions to favor the breakaway side.

---In 2014, TEC and its diocese of Ft. Worth asked the U.S. Supreme Court to accept an appeal of the TSC decision. SCOTUS denied cert.

---In 2015, the District Court implemented the remand from TSC favoring the breakaways. The TEC side appealed to the Texas Second District Court of Appeals.

---On April 5, 2018, the Court of Appeals issued a 178-page judgment finding TEC to be an hierarchical religious institution to which the civic court must defer even under neutral principles. The court found: the breakaways' actions of disaffiliation in 2008 were invalid; the TEC diocese controlled the appointments to the board of the corporation; titles to the properties were held by the TEC diocese; and the Dennis Canon did not impose a trust; however, this was a moot point because under hierarchy, TEC and its diocese maintained control of the property. The breakaway side appealed this to the TSC.

---On May 22, 2020, the Texas Supreme Court issued a decision reversing the Appeals Court decision. TSC declared that even though TEC is an hierarchical church, neutral principles required very strict construction of state laws. TSC found that the breakaways had followed state laws, had separated legally from TEC, and had retained all rights of the old diocese. In this view, state law trumped hierarchy. This is the decision that TEC is now asking SCOTUS to review.


TEC'S PETITION FOR CERT:    

TEC's October 19 petition to SCOTUS for cert is really a 37-page argument against the 1979 Jones v. Wolf decision. It calls on the Court to reconsider the entire decision which has led to a great deal of confusion and disagreement about how civil courts can address issues from churches.

Find the October 19 petition here .

The basic issue at hand is the First Amendment of the United States Constitution that established the principle of the separation of church and state. The Jones decision, however, allowed courts to rule on church issues of property as long as they followed "neutral principles," that is, only property laws neutrally. The basic problem with this has always been that there was no established boundary between the First Amendment and courts' rights to intervene in church business. And so, since 1979, court decisions have been all over the place, in other words, Jones has produced only chaos across the country. For instance, among the five cases where dioceses voted to leave the Episcopal Church, the Church has won in three instances while the secessionists have won in two although every one claimed to act under "neutral principles." How can the same guiding principle result in diametrically opposed outcomes? There is an inherent contradiction in the Jones decision that the civil court can respect a church's rights while ruling on a church's rights. Either the church and state are separate, or they are not. Jones was trying to have it both ways, an impossibility. This is the issue TEC is asking SCOTUS to take up anew.

The TEC lawyer advanced three primary reasons for SCOTUS to accept this case. 

1-To resolve the issue of the effectiveness of trust provisions for churches. 

As the lawyers pointed out in detail, courts all around the U.S. have varied greatly in how to interpret church-related trusts, roughly dividing on loose construction and strict construction. Loose leans to the church's rights to set up a trust itself. Strict leans to state law regardless of the church's trust. Texas held to a very strict construction holding that the Dennis Canon could be revoked because it did not have a provision preventing it from being revoked. Thus, it had virtually no standing under state law.

2-To resolve the issue of whether courts must defer to a church in determining who represents the church's subordinate bodies.

In Texas, the District Court and the Appeals Court had recognized TEC as hierarchical and therefore entitled to decide its local bodies. However, the Texas Supreme Court had declared that the breakaway side was the legal continuation of the Episcopal Diocese since, under state law, it had separated from the Episcopal Church.

In South Carolina, the state supreme court had ruled that the TEC diocese was the legal heir of the pre-schism diocese. This was reversed by the circuit court whose order is now on appeal with SCSC.

The issue of whether an hierarchical church has the right to determine its own structure goes right to the heart of the First Amendment.

3-To resolve the nature of the "neutral principles" rule established by the Jones decision.

Chaos among court decisions demands that SCOTUS define the exact boundaries between neutral principles and rights of religious institutions. The problem is that there is really no such thing as "neutral" decisions. Once a court moves into a dispute within a church it moves to one side by nature. Resolving a property dispute involves taking sides however one may want to rationalize it. Otherwise, the court would have to be Solomon splitting the baby 50/50. The First Amendment precludes the civic state from interfering in the internal affairs of a church. Yet, under Jones, neutral principles has been allowed to give the civic state a great deal of power over the internal affairs of a church. Only SCOTUS can resolve the meaning of the First Amendment. Given what has happened in the wake of Jones, this is something the nation desperately needs.


In my view, all of this goes back to the freedom of religion. The Episcopal Church must have the freedom to govern itself. This is guaranteed by the First Amendment. The Episcopal Church is an hierarchical institution. In fact, this has been established in federal law. On Sept. 19, 2019, federal judge Richard Gergel, in Charleston, ruled that the Episcopal Church was hierarchical. While his decision is on appeal, it is in effect, stays having been denied by Gergel and the federal appeals court.

It seems to me the Ft. Worth case brings to a point the disputes going on in many churches during the present culture war. The first phrase of the First Amendment is the most fundamental part of our civil liberties. It is time for the highest court in the land to tell us exactly what that Amendment means to us today. Giving cert to TEC would go a long way toward constructing a more perfect union.

Will SCOTUS grant cert? At first glance, probably not. It refused cert in 2014. Time and again it has avoided touching cases from the Episcopal Church. It does not get involved in state law, only in issues that directly affect the U.S. Constitution. On second glance, maybe they will grant cert, if they see that the most fundamental right in the Bill of Rights is in question. I say it is time for SCOTUS to tell us exactly what freedom of religion means. What constitutional issue could be more important than this?

What effect might all of this have on the litigation on SC? I doubt it will have much effect in SC. The issue before the SCSC now is whether to uphold or overturn the Dickson decision. If it upholds, the breakaways keep the 29 parishes and the Camp. If it overturns, TEC keeps the 29 and the Camp. Anyway, if SCOTUS grants cert, a decision would probably not be forthcoming until next summer. Of course, the last time SCSC had the church case, it took two years to issue a decision. So, who knows how long it may take this time?

Tired, exhausted, fatigued with all this? I expect we all are. Yet, it goes on and we must keep up with it. It will be over one day but God only knows when that will be. 

This legal war in SC has been going on for nearly nearly eight years. Think about that. What a shame. What a scandal. And all this to keep some people from enjoying the same human rights as others...  

 



NOTES,  23 NOVEMBER 2020




Welcome, blog reader, on Monday, November 23, 2020. It is time for our weekly check-in on the crises of the day.


PANDEMIC. 

There is good news and bad news. First, the good news. We are on the cusp of having vaccines to prevent the infection of the coronavirus. Four pharmaceutical companies are about to deliver vaccines to the public in the next few months. The first, Pfizer, has applied for emergency approval from the FDA and expects to deliver the first doses next month. The deliveries will be prioritized with those most in danger (health care personnel) to be first in line. Most of us will be able to get the vaccine within six months. This is cause for great rejoicing.

The bad news is the pandemic is soaring continually to new high levels. Infections are out of control in many countries, as the United States. The latest numbers are alarming and staggering. According to our usual source, Worldometers, there were 4,155,562 new cases reported in the world last week, November 16-23. This is an 8% increase, the same rate as the earlier week. There were 69,214 deaths, a rising rate of 5%, the same as the previous week. Reported total cases stand at 59,096,027 and deaths at 1,395,528.

America continues to be the epicenter of the pandemic as it has been since the spring. Last week, the U.S. reported 12,590,220 cases, up 1,223,006, or 11%. This is record spread, up from the 10% of the earlier week. Deaths in the U.S. shot up from 8,133 the week before to 10,810 last week. As anyone who pays attention to the news knows, hospitalizations are out of control in many places in America. The health care system is under tremendous strain; and this will only get worse in the next few months as winter sets in. All signs indicate we are approaching the darkest hour of the COVID-19 pandemic. God help us.

The numbers in our local states are equally grim. South Carolina reported 10,788 new cases last week, up 6%. The previous week had seen 9,819 new cases, up 5%. The state also reported 171 deaths last week, up from the 76 of the earlier week. In all, 4,283 deaths have been reported form SC. The New York Times is reporting that cases in SC escalated 41% in the last 14 days while deaths shot up 71% in this period. Clearly, the plague is out of control in SC.

Charleston County is no exception. It reported 654 new cases last week, up from the 628 of the earlier week. The county is now listing 19,235 cases. It is also listing 4 deaths last week, for a total of 292.

The figures for Alabama are equally alarming. This state reported 14,684 new cases last week, up from the 14,135 of the previous week. AL reported 209 deaths last week, up from the 164 of the earlier week. This state has a total of 3,457 deaths from the pandemic.

In sum, the tunnel of the pandemic is ever darkening but there a light at the end of the tunnel. The next few months will be terrible. There will be sickness and death all around us. This will be bearable because we know a vaccine will be on hand soon. The cavalry is on the way. We must do the best we can until it arrives.


LITIGATION.

In SC, we are awaiting the reply brief of the Anglican diocese of SC in the South Carolina Supreme Court. Once they submit their written arguments, the SCSC will decide whether to hold a hearing, or go straight to a written decision. Both of these should happen in the next couple of months.

There is major news from Texas. The Episcopal Church and its diocese of Fort Worth have applied in the United States Supreme Court for "cert," that is, for SCOTUS to take an appeal of the Texas Supreme Court ruling that went entirely in favor of the breakaway contingent of Ft. Worth. I am now studying the TEC brief and will report back here soon. 


POLITICAL.

This is one crisis that has improved dramatically. The bottom line is that the American people reaffirmed their devotion to the democratic republic. They repudiated the attempt of a president and his party to subvert the Great Democratic Revolution. In the big picture this is tremendously important. It means the democratic revolution has prevailed over the counter-revolution. 

It does not mean, however, the crushing of the anti-democratic forces. They are still strong. After all, 47% of the voters chose Trump even after 4 years of having him in power. 

In my view, the clash between the revolution and the counter-revolution in contemporary America boils down to race. Just look at the results of the election. Sixty percent of white voters chose Trump while the vast majority of non-white voters opted for Biden. America is dangerously polarized along lines of race. And, we people who live in SC and AL know this better than most Americans. This is one reason why I was encouraged to see the Episcopal diocese of SC set up the Diocesan Commission on Racial Justice and Reconciliation. The Anglican diocese of SC has also shown signs of working for racial justice, a welcomed turn.

Racism is America's original sin and until we get a grasp on this, we will remain dangerously divided as a nation-state. In my opinion, Trump's basic appeal was to the white people who felt threatened by the rise of the non-whites in society. In another generation, whites will be the minority in America. As evidenced by the Trump phenomenon, white male power structures will not give up easily. I fear we are in for much more strife as reality sets in on those who feel under siege in what used to be the white man's country. But, this is a discussion for another day.


Crises are swirling all around us. In some ways they are getting worse, in some ways better. Among it all, I see tremendously encouraging signs of relief ahead. A vaccine is at hand. America reaffirmed democracy. Good people are working to make a better world. It is happening all around us if we only look. Besides, this is a week to give thanks. We have much for which to be thankful. I will count my blessings as I hope you will too. 

My Thanksgiving Day will be quiet, just with my little family at home, but it will be no less meaningful. Life goes on. For instance, my local church serves a Thanksgiving meal to any and all. This year, parishioners are preparing 700 meals, all take-out and home-delivered. For a quarter of a century, St. Luke's has done this winning for itself the reputation of service to the community.

My best wishes to you and yours at this time of thanksgiving. Remember, we are here for the living of this hour. Peace.