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...