Saturday, October 25, 2014

FORT WORTH AND THE U.S. SUPREME COURT, 7th edition (October 25)

By Ronald J. Caldwell, PhD, Professor of History, Emeritus

The United States Supreme Court website ( reveals that the Court has issued to the separatist diocese of Ft. Worth a request for a response to TEC's June 19 writ of certiorari petition to the Court. The request from the Court happened on July 28, 2014. The separatist diocese has 30 days (until August 27) in which to make a formal response in the U.S. Supreme Court.

This development is significant for two reasons, 1-the Supreme Court has responded positively to the Episcopal Church's appeal, although only in a preliminary way, and 2-the separatist diocese of Ft. Worth's strategy of ignoring TEC's appeal to the Supreme Court backfired.

On June 20, 2014, the separatist diocese (that goes by the contradictory name "Episcopal Diocese of Fort Worth" even though long ago they very publicly proclaimed their complete separation from the Episcopal Church) had announced "Diocese will waive response to TEC's U.S. Supreme Court  appeal," ( In the news release, the diocesan leaders proclaimed "Our attorneys believe there is little chance the Court will review our case...To speed up this process, the Diocese plans to waive a response to TEC's petition...That way the petition goes to the justices' chambers for a potential denial in the near future." They did indeed make a formal waiver of response to the Court on June 23. However, they were wrong in their over-confidence. Their gamble failed. In fact, the appeal from TEC was backed-up by several major groups that filed amici curiae ("friends of the court") briefs with the Supreme Court on July 21: the Episcopal Church in South Carolina, United Methodist Church, the Presbyterian Church (USA) and the Greek Orthodox Church. As of now, the separatist diocese has no choice but to file an official response to TEC's petition of appeal to the Supreme Court.

This case is in the preliminary stage called "Cert Pool." When a petition is first presented to the Court (as this one was on June 19), it goes to a pool of the law clerks of the justices (each of the nine justices has four clerks, or lawyers, who work as assistants; one justice refuses to participate in the Cert Pool, thus 36 clerks in all serve in the Pool). Each clerk is assigned petitions at random. The clerks have a winnowing out process in which they sort through the mountain of petitions and choose which ones they think need more information and merit review by the justices. The clerk writes a "Memo" that is sent to all nine justices summarizing the case and its merits. The decision to take the case is entirely up to the justices. What is happening now shows that the clerk who received the TEC petition decided it had merit and needed more information. In a sense it cleared the first hurdle (Cert Pool) of the Supreme Court. That is itself is an accomplishment. The case is now on the official list to be considered in the next Conference of the justices of the Court, scheduled for September 29 (see ). At the Conference, it will be one of the "cases active." The justices will then consider and decide whether to take the case. This means, at the very least, the justices of the Supreme Court will mull over the merits of taking TEC's appeal. In the past few years they have accepted about one per-cent of all petitions sent to the Supreme Court (about 100 out of 10,000; most were discarded in the Cert Pool and did not make it to the Conference stage). The justices choose cases they think relate to important constitutional questions. Sometimes they hear cases that have had conflicting judgments in state courts, as long as they involve national constitutional issues. TEC is arguing its side as a constitutional issue, in fact, the First Amendment. If the justices agree to take the case, it would mean they see it as a federal, or national issue. TEC sees the issue as a national one; the separatists see it as a local one of property rights.

Coming on the heels of the disastrous courtroom brawl in St. George, this is good news indeed for the partisans of the Episcopal Church. It means the Supreme Court is one step closer to accepting the appeal of the Episcopal Church. A favorable ruling from the Supreme Court would, of course, change everything.

Now, we will await the Ft. Worth secessionists' response in the Supreme Court, due by August 27, and TEC's after-response, due in September. Then, we will see if the justices decide to take on TEC's petition for a final ruling by the majority of the nine justices of the U.S. Supreme Court. Take heart, good Episcopalians. I sense the dawn is breaking in the darkness of the eastern sky.

Read Steve Skardon's informative and thoughtful review at

UPDATE --- (August 21):     On August 19, the U.S. Supreme Court issued an order extending time for the secessionist diocese to file a response from August 27 to September 26, 2014. See the official web site of the Supreme Court given in the first sentence above. Apparently, the extension means that the case will not go to conference as previously scheduled on September 29. Supreme Court rules hold that "cases are not placed on a Conference list sooner than 14 days after a brief in opposition is filed, unless the petitioner expressly waives the 14-day waiting period."

UPDATE --- (August 28):     On August 27 another party entered an amicus curiae (friend of the court) brief in support of the Episcopal Church side of the Fort Worth appeal to the Supreme Court. This adds to the earlier briefs from the Episcopal Church in South Carolina, the United Methodist Church and the Greek Orthodox Archdiocese. The new amicus brief was filed by The Rutherford Institute. This non-profit corporation based in Charlottesville, Virginia, is famous for defending civil rights in legal matters, particularly religious freedom. Amici briefs are usually filed after the Court has decided to take a case. It is uncommon to have briefs filed at the Cert Pool stage and even more rare to have a host of them. This is bound to influence the justices to give the most serious attention to the Episcopal Church case. More about this later.

UPDATE --- (September 4):     On August 27 yet another party entered an amicus curiae brief in support of the Episcopal Church side of the Fort Worth appeal to the Supreme Court. This one is from the African Methodist Episcopal Church. This brings to five the number of amici briefs before the justices: The Episcopal Church in South Carolina, the United Methodist Church, the Greek Orthodox Archdiocese, the Rutherford Institute, and the African Methodist Episcopal Church. All of these briefs are available on the Episcopal Church in South Carolina's website ( ).

UPDATE --- (September 29):     On Friday, September 26, the separatist diocese of Ft. Worth filed a response brief with the Supreme Court. The case has been removed from the list to be considered in the Sept. 29 Conference of justices. It will be mid-October before the Court will announce the date of the Conference when the justices will decide whether to take the case.

UPDATE --- (October 25):     On October 14 the Episcopal Church parties filed a reply to the Sept. 26 response of the separatist diocese. On October 15 the case was distributed for the justices' Conference of October 31 ( ). Therefore, on Friday, October 31, the justices of the U.S. Supreme Court will decide whether to accept the Episcopal Church's petition. The news of the decision will probably be released the following Monday, November 3. At long last we will all know whether or not the U.S. Supreme Court will consider the Episcopal Church's appeal of the Texas ruling.