Friday, April 6, 2018


The Second District Court of Appeals in Texas has given us a masterpiece of jurisprudence. The Episcopal Church lawyers now preparing the Church's response to the Diocese of South Carolina's petition for cert to the U.S. Supreme Court should read, reread, use and quote from this. In my opinion, this is the best legal description of, and judgments on, the issues involved in the recent schisms of the Episcopal Church. Of all the many. many legal decisions rendered since the schisms began in 2007, this "Opinion" of April 5, 2018, is the most impressive. It took two years for Chief Justice Bonnie Sudderth and Justice Lee Gabriel to write this, but it was worth the wait.

This 178-page book is remarkable for its depth, breadth, research, organization and clarity. It even provides two flow charts summarizing all of its findings (pp. 103, 159). While so many legal documents are impenetrable to the layman, this one is not. Anyone can read and understand it. Everyone should.

Pages 1-50 give us a thorough legal history of the background, events and aftermath of the schism in Fort Worth. This should be read and studied in and of itself as an important document.

Moreover, the judges presented a long and thorough examination of the relevant court cases involving the issues of the schism. They used and quoted legal scholars from both sides. For instance, they used the work of Michael McConnell, one of the authors of the Amicus Curiae brief recently filed in favor of DSC in the SCOTUS. 

The TX 2nd court of appeals' essential finding is that the Episcopal Church is an hierarchical religious institution and the court must defer to the Church. This is true even after the court applies neutral principles:

we sustain TEC's sole stand-alone issue with regard to whether the trial court erred as a matter of law in its application of neutral principles by failing to defer to TEC's ecclesiastical determination of which entity constitutes EDFW. (p. 161)


As set out above, it is within TEC's province to identify its diocese in the geographical area identified as Fort Worth and what it takes to be a member in good standing or canonically resident therein. Accordingly, on November 15, 2008, when Appellees [breakaways] voted to disaffiliate, it was TEC's prerogative to determine whether the board members of the diocese formerly associated with TEC had become disqualified under the Corporation's bylaws.
     We conclude that the TEC-affiliated EDFW controls appointment to the Corporation's board and therefore that the TEC parties identified within the TEC-affiliated EDFW have standing for these related complaints.

The justices' conclusion was a resounding declaration for the Episcopal Church. Main judgments:

1---The breakaways' actions of disaffiliation in 2008 were invalid under Texas law.

2---The TEC-affiliated diocese controls the appointment to the board of the Corporation.

3---The Dennis Canon did not impose a trust.

4---Title to the property is held by TEC-affiliated corporation.

Why did the court declare the Dennis Canon ineffective? On p. 133, the judges explained that the Texas law on trusts, similar to that of South Carolina, requires the deed holder to set up a trust. It cannot be imposed from the outside. Thus, TEC had no right to unilaterally impose a trust to control parish property. However, the judges indicated this point was essentially irrelevant since the diocese and corporation remained under the Episcopal Church anyway.

So, what should be our take-away from all of this?

--The issues in Texas have been virtually settled. Even though this was not a final decision, it might as well be. The justices actually remanded the case to Judge Chupp for reconsideration following their very clear direction. (Of course, Chupp's decision could be appealed to the TX supreme court.) 

(Poor Judge Chupp. We have to feel for him. He has already heard this case twice. The first time he found for TEC. The breakaways appealed to the TX supreme court which directed him to rehear it in favor of the breakaways. He did and reversed himself while virtually asking TEC to appeal. They did. Now he gets it back a third time and he is supposed to go back to the decision he had made in the first place. Makes one wonder about the efficiency of our judicial system.)

--TEC still has a problem with the Dennis Canon. To my knowledge, not a single court in the U.S. has recognized the effectiveness of this Canon in and of itself. Numerous courts, as SC, have found that TEC had trust control but not because of the Canon itself. California, South Carolina, and Texas courts found essentially that the hierarchical nature of the Episcopal Church gave the church control over the property, not the Dennis Canon per se. Four of the five justices of the SC supreme court said the Dennis Canon went into effect in SC; and two of them said it did because the parishes themselves acceded to it, not because it was self effectuating.

If I were a TEC lawyer preparing for SCOTUS, I would avoid the Dennis Canon.

--The TEC lawyers writing their brief for the U.S. Supreme Court should follow the work and arguments of Justices Sudderth and Gabriel. In a sense, they have done the work for SC. They have demonstrated clearly the hierarchical nature of the Episcopal Church and why this gives the church control over the diocese and, by extension, the parishes. Anyone reading their opinion will find it compelling.

At least the TEC lawyers should append the TX decision of April 5 to their brief that is due at SCOTUS on April 29, 2018.

Read the appeals court decision here .   

In a separate "Judgment," the justices remanded the case to the lower court. What is more, they ordered the breakaways to pay all the costs of this appeal. Ouch. Find the Judgment here .

UPDATE, April 7.     One source is reporting that Bishop Iker, of the breakaway diocese, has decided to appeal the April 5 decision to the Texas state supreme court. Find the article here .