THE DIOCESE OF SOUTH CAROLINA'S
AMICI CURIAE
AMICI CURIAE
On March 29, 2018, two briefs were presented to the U.S. Supreme Court in support of the Diocese of South Carolina's Feb. 9, 2018, petition to the court for a writ of certiorari. DSC asked SCOTUS take take an appeal of the August 2, 2017 decision of the South Carolina Supreme Court. The two briefs of Amici Curiae (Friends of the Court) were meant to bolster DSC's petition to SCOTUS.
When DSC filed its petition on Feb. 9, the Episcopal Church side decided to waive temporarily its right to a response, apparently on the belief that the court would handily deny DSC's petition. However, SCOTUS asked the Church lawyers for a response and gave the deadline of March 29.
Amicus Curiae (plural, Amici Curiae) briefs are common in the Supreme Court and can increase a petitioner's chances of gaining cert considerably. About 90% of the appeals that are accepted are supported by Amici Curiae briefs. There are reports of as many as 100 Amici Curiae briefs for one case. Two groups decided to file Amici briefs in support of DSC and informed the Church lawyers of their intent to file. (For rules on Amicus Curiae procedures see this link .) Rules say the Amicus must inform their opponents of intent to file ten days before the deadline. That would have been March 19. Cleverly, a few days after having been informed, on March 23 the Church lawyers asked the Supreme Court for a thirty day extension for filing their response brief. The court granted this. Under the rules, the Amici had to file by the original deadline of March 29 and could not get an extension. Thus, the two Amici briefs were submitted on March 29. That gave the Church lawyers another month (to Apr. 30) to prepare their response to DSC's petition and the two Amici briefs. This was a clever ploy on the TEC lawyers' part.
All of the litigation between the breakaway groups and the Episcopal Church essentially revolves around one Supreme Court ruling, the Jones v. Wolf decision of 1979. Therefore, it is fitting to revisit the salient part of this landmark opinion as it applies to the working of the neutral principles guideline in the Episcopal Church cases. The Jones decision reads in part:
the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.
Thus, Jones allows courts to resolve religious property disputes between parties neutrally, that is, by the local property laws. Yet, the clause above allows the court to recognize a trust made by a general church. The catch is the last phrase, "provided it is embodied in some legally cognizable form." Exactly what "legally cognizable" means is the heart of the dispute between the two sides. There is the battle line.
In the South Carolina Supreme Court decision of Aug. 2, four (Pleicones, Hearn, Beatty, Kittredge) of the five justices regarded the Dennis Canon, and the 29 parishes' accession of it, as legally cognizable. However, the four split into three different interpretations of what legally cognizable meant. Pleicones and Hearn said the Dennis Canon was effective in an of itself. Beatty and Kittredge said the Canon was not effective automatically, but became effective only after the 29 parishes in question acceded to it. Both agreed that the 29 had in reality acceded to the Dennis Canon and therefore made TEC and TECSC the beneficiaries of the trust. Then, these two justices split. On one hand, Beatty held that the parishes could not legally revoke their accession (as one side cannot unilaterally revoke a contract). Thus he joined Pleicones and Hearn in upholding the power of the trust for TEC and TECSC. On the other hand, Kittredge held that the 29 parishes that did accede had the right to revoke their accession, and did so. Thus, he joined former Chief Justice Toal in dissenting from the majority opinion on the effectiveness of a trust for TEC and TECSC over the 29 parishes. Toal and Kittredge held that the 29 parishes were not bound by a trust for TEC and TECSC.
DSC argued in its Feb. 9, 2018, petition to SCOTUS that the SCSC did not strictly adhere to "neutral principles." They called the SCSC decision a "hybrid" approach, using some of neutral and some of hierarchy. The DSC appeal asked the high court to clarify exactly what neutral principles should mean. What DSC wants is a strict and narrow interpretation that would apparently exclude everything but the local property laws. Find DSC's petition to SCOTUS here . DSC's position is fairly clear and simple. They want SCOTUS to make the Jones decision rest entirely on local property laws. This would mean that "legally cognizable" would be strictly limited to explicit adherence to local laws, primarily on property. For instance, in SC the court could recognize only a trust made explicitly and officially by the deed holder for the beneficiary. Under this narrow definition, none of the 29 parishes would be under a trust.
The looming cloud over the idea of neutral rights is the first clause of the First Amendment to the U.S. Constitution. It forbids the civic state from interfering in a religious institution:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...
The big problem, then, is how to define the intersection between the rights of a religious institution to govern itself and neutral rights, that is, the local property laws. The DSC position is that the solution rests entirely on local laws. The TEC position is that it rests entirely on the right of an hierarchical religious institution to govern itself. It is that simple.
The Texas decision of Apr. 5 came down on the side of TEC as a hierarchical institution. The vast majority of court decisions in the past several years have followed this line. There were two important exceptions against the power of an hierarchical institution, the Quincy case and the circuit court of South Carolina. The state courts in Illinois took a narrow, literal, and strict approach and applied only local laws. Their decisions went consistently and entirely for the breakaway diocese as a local institution. I see this as the approach DSC now wants SCOTUS to take. In SC, Judge Goodstein (Feb. 5, 2015) went farther. She agreed on local laws but also declared TEC to be a congregational, that is, non-hierarchical, institution. In general, however, the weight of all state and federal court decisions in America is on the side of TEC as an hierarchical institution. The problem then is just how far courts can go in settling property disputes within the parameters of the rights of an hierarchical church. On the whole, courts have been reluctant to infringe on the First Amendment protection.
DSC argued in its Feb. 9, 2018, petition to SCOTUS that the SCSC did not strictly adhere to "neutral principles." They called the SCSC decision a "hybrid" approach, using some of neutral and some of hierarchy. The DSC appeal asked the high court to clarify exactly what neutral principles should mean. What DSC wants is a strict and narrow interpretation that would apparently exclude everything but the local property laws. Find DSC's petition to SCOTUS here . DSC's position is fairly clear and simple. They want SCOTUS to make the Jones decision rest entirely on local property laws. This would mean that "legally cognizable" would be strictly limited to explicit adherence to local laws, primarily on property. For instance, in SC the court could recognize only a trust made explicitly and officially by the deed holder for the beneficiary. Under this narrow definition, none of the 29 parishes would be under a trust.
The looming cloud over the idea of neutral rights is the first clause of the First Amendment to the U.S. Constitution. It forbids the civic state from interfering in a religious institution:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...
The big problem, then, is how to define the intersection between the rights of a religious institution to govern itself and neutral rights, that is, the local property laws. The DSC position is that the solution rests entirely on local laws. The TEC position is that it rests entirely on the right of an hierarchical religious institution to govern itself. It is that simple.
The Texas decision of Apr. 5 came down on the side of TEC as a hierarchical institution. The vast majority of court decisions in the past several years have followed this line. There were two important exceptions against the power of an hierarchical institution, the Quincy case and the circuit court of South Carolina. The state courts in Illinois took a narrow, literal, and strict approach and applied only local laws. Their decisions went consistently and entirely for the breakaway diocese as a local institution. I see this as the approach DSC now wants SCOTUS to take. In SC, Judge Goodstein (Feb. 5, 2015) went farther. She agreed on local laws but also declared TEC to be a congregational, that is, non-hierarchical, institution. In general, however, the weight of all state and federal court decisions in America is on the side of TEC as an hierarchical institution. The problem then is just how far courts can go in settling property disputes within the parameters of the rights of an hierarchical church. On the whole, courts have been reluctant to infringe on the First Amendment protection.
THE TWO AMICI CURIAE BRIEFS
1. The 18 law professors.
One of the two briefs is entitled "Brief for Professors Randy Beck, Ashutosh, samjuel Bray, Nathan Chapman, Robert Cochran, Richard Epstein, Marci Hamilton, John Inazu, Michael McConnell, John Nagle, Michael Paulsen, Lawrence Sager, Chaim Saiman, James Stern, Anna Su, Nelson Tebbe, Eugene Volokh, and Robin Fretwell Wilson as Amici Curiae in Support of Certiorari."
I have read through the brief and it sounds to me exactly like the brief DSC submitted to SCOTUS on Feb. 9. The argument is clear and simple: the SC supreme court failed to follow "neutral principles" and erred by veering into a "hybrid" approach combining neutral principles with hierarchy. The decision then was erroneous because it did not strictly adhere to local property laws. SC law required the deed holder to explicitly establish a trust for a beneficiary. The majority of the SC court had interpreted the 29 parishes' accession to the Constitution and Canons of the Episcopal Church as tantamount to establishing a trust. This was not strictly by SC law. Thus, in this brief, the amici are, in effect, asking SCOTUS to define "legally cognizable" as explicit adherence to local property, and other relevant, laws. As I see it, this is exactly the argument DSC made in its brief of Feb. 9.
Who are these 18 professors? How did they come together to agree on this? Why are they doing this? All good questions, that, unfortunately, we can only guess about now.
It seems to me, from bits and pieces I have put together, the most important figure among the 18 is Michael McConnell. Find out more at the Stanford University website here . Apparently he has closely followed the case in SC and has aided the independent diocese. On November 10, 2017, he was the lead name on the Amici Curiae brief in support of DSC's petition to the SC supreme court for a rehearing (it was denied): "Brief for 106 Religious Leaders as Amici Curiae in Support of Respondents' Petition for Rehearing." Find it here . This was not the first time he participated in legal actions supporting secessionist parties. The website above indicates that in 2010, he wrote the brief for the Becket Fund in support of the breakaway Truro Church in its appeal to SCOTUS.
McConnell served as a judge on the 10th Circuit of the U.S. Court of Appeals from 2002 to 2009. To my knowledge, he is the only one of the 18 to have held such a position. Even before that he had established a reputation as a leading legal scholar on questions of religion and the law. In fact, the Texas decision of a few days ago quoted McConnell's writings several times as authoritative.
He also has a history of supporting conservative social/cultural causes. In 1996, he backed the idea of a constitutional amendment to ban abortion. On Mar. 22, 2013, he published in The Wall Street Journal, "The Constitution and Same-Sex Marriage." He has published works on the late Justice Antonin Scalia, whom he apparently admires e.g., Scalia's Constitution: Essays on Law and Education. Scalia is generally regarded as the most conservative (strict construction) judge to sit on SCOTUS in recent years. McConnell has published a great deal on the relations of church and state, as in Religion and the Law, Christian Perspectives on Legal Thought.
McConnell obviously carries a great deal of weight in legal arguments involving religion, and the SCOTUS justices will certainly take note of his presence among the 18 "amici." They will also note that two of the other 17 were clerks under McConnell when he was Appeals judge: Samuel L. Bray (find info here ), a UCLA prof, and Chaim Saiman (find info here ), of Villanova.
All of the other 15 are also highly credentialed and respected legal scholars and university professors, and all seeming to come from a conservative social/cultural orientation. Two are at the University of Georgia: Randy Beck (find here ), who has written on law and abortion and on "Christian perspectives on legal thought and constitutional law," and Nathan S. Chapman (find here ) who also is an authority on Christianity and the law.
The others:
---Ashutosh Bhagwat, of University of California, Davis. Find his bio here . In 2010 he published a book entitled The Myth of Rights.
---Robert F. Cochran, Jr., of Pepperdine. Find here .
---Richard A. Epstein, of the Hoover Institution, NYU law school, and the University of Chicago. Find info here . His website lists many commentaries of conservative interest.
---Marci A. Hamilton, of the University of Pennsylvania ( find here ). She published God vs. the Gavel: The Perils of Extreme Religious Liberty.
---John D. Inazu, of the Washington University. Find bio here . He writes on religion and the First Amendment.
---JohnNagle, of Notre Dame. Find info here .
---Michael Stokes Paulsen, of St. Thomas U. Find bio here . The Federalist Society lists him as a "contributor." This society is a well-known conservative association supported by right-wing foundations as the Koch brothers.
---Lawrence Sager, of University of Texas. Find here .
---James Y. Stern, of William and Mary, a specialist in property law. Find info on him here .
---Anna Su, of University of Toronto, a specialist on religion and the First Amendment. Find info here .
---Nelson Tebbe, of Cornell (find here ). From his website: "He argues for a way forward that vigorously protects civil rights while safeguarding the ability of religious traditionalists to dissent from what they view as a new egalitarian orthodoxy."
---Eugene Volokh, of UCLA. Next to McConnell, perhaps the best-known of the 18, primarily from his popular blog: The Volokh Conspiracy (find it here ). He is a specialist in the First Amendment. His blog calls itself libertarian and conservative.
---Robin Fretwell Wilson, of the University of Illinois (bio here ). She heads the Fairness for All Initiative which apparently advocates both for rights for gays and for protection of religious views.
Altogether, the 18 law professors form an impressive chorus for DSC. SCOTUS is certain to pay great attention to this. The question then is whether they will be more impressed by the stature of the 18 or their arguments. As far as I can tell, the 18 present nothing new in the way of arguments. It was all presented in the DSC brief of Feb. 9.
2. Falls Church and the American Anglican Council
The second brief is "Brief of the Falls Church Anglican and the American Anglican Council as Amici Curiae in Support of Petitioners." The main thrust of this seems to be the unconvincing argument that the Episcopal Church never really arrived at a definitive stance on property. I do not understand why the breakaway Falls Church would be a part of this. Their case is closed. They went through the courts of Virginia only to lose. Their appeal to SCOTUS was turned down. On the other hand, no one should be surprised that the AAC would be a party. It was formed in 1996 by a right-wing PAC to diminish the Episcopal Church and its promotion of human rights for homosexuals. Ever since then the AAC has been busy in its mission and has met a certain amount of success, i.e. five diocesan votes to leave TEC, and the creation of the anti-homosexual-rights Anglican Church in North America, set up as the replacement of TEC in the Anglican world.
So, where does all this leave us?
The lawyers and their friends will argue the law, but this fight is really much bigger than this. The five schisms in the Episcopal Church were part of a great cultural war going on in contemporary America, even in the world. TEC evolved reforms of equality for and inclusion of social elements that had been neglected, particularly blacks, women and gays. People who disagreed with this formed a backlash, and a replacement church, ACNA. The struggle in court is really part of a larger war in society, whether to continue the course of human rights or backtrack into the past.
How much the culture war will impact on SCOTUS's decision on whether to accept the case depends on how they interpret the importance of it. The best chance DSC has is for SCOTUS to want to clarify the differences between neutral rights and hierarchical rights. They will certainly see it as interpretation of the law, but they will also know the direct cause of the schisms in the Episcopal Church, rights for homosexuals. One should recall that this Supreme Court (except Scalia who has been replaced by Gorsuch) voted 5-4 in favor of marriage for homosexuals. One should also remember that it takes only 4 justices to grant cert. It is possible the 4 who voted against marriage equality would want to take up the Church case. However, if they do grant cert, one should not jump to the conclusion the court will rule in favor of DSC. If the 5-4 vote on marriage equality should hold, it stands to reason that TEC would come out on top.
How much the culture war will impact on SCOTUS's decision on whether to accept the case depends on how they interpret the importance of it. The best chance DSC has is for SCOTUS to want to clarify the differences between neutral rights and hierarchical rights. They will certainly see it as interpretation of the law, but they will also know the direct cause of the schisms in the Episcopal Church, rights for homosexuals. One should recall that this Supreme Court (except Scalia who has been replaced by Gorsuch) voted 5-4 in favor of marriage for homosexuals. One should also remember that it takes only 4 justices to grant cert. It is possible the 4 who voted against marriage equality would want to take up the Church case. However, if they do grant cert, one should not jump to the conclusion the court will rule in favor of DSC. If the 5-4 vote on marriage equality should hold, it stands to reason that TEC would come out on top.
In the DSC, there are real signs that the leaders know the game is up. They have lost in the state supreme court and are now preparing their followers to leave the 29 parishes and form churches in exile. The most glaring example of this is the "course in basic theology" that Rev. Kendlal Harmon, Rev. Al Zadig and Bp Lawrence are pushing now in St. Michael's and St. Philip's, the two big downtown Charleston parishes that are among the 29 parishes to return to TEC. Find the "course" here .
As it turns out, this "course" is nothing more than a propaganda campaign against the Episcopal Church obviously directed at keeping as many people as possible from returning to TEC. I read the first "lesson," "Why the Battle" by Zadig. I quit at this: "remaining in the Episcopal Church is choosing a false Gospel." I could not continue. He told his listeners TEC no longer lives under the Bible. The textbook of the "course" is from a Baptist preacher and is a highly evangelical perspective far removed from classical Anglicanism. It is based on a narrow interpretation of the Bible while Anglicanism sits on a three-legged stool of scripture, reason, and tradition. A one-legged stool is about as stable as DSC.
As it turns out, this "course" is nothing more than a propaganda campaign against the Episcopal Church obviously directed at keeping as many people as possible from returning to TEC. I read the first "lesson," "Why the Battle" by Zadig. I quit at this: "remaining in the Episcopal Church is choosing a false Gospel." I could not continue. He told his listeners TEC no longer lives under the Bible. The textbook of the "course" is from a Baptist preacher and is a highly evangelical perspective far removed from classical Anglicanism. It is based on a narrow interpretation of the Bible while Anglicanism sits on a three-legged stool of scripture, reason, and tradition. A one-legged stool is about as stable as DSC.
The present DSC "course in basic theology" strikes me as rather sad, not to mention disappointing. Here, five and a half years after the schism the leaders are still at it, misleading their people by demonizing the Episcopal Church. Since they feel that have to do this, they are not giving themselves much credit and precious little to their followers. If they had done a good job all those years ago, would not they and their people be self-confident? Besides, it must be uncomfortable to carry around such a heavy burden of anger and hostility. It is not emotionally healthy. Christianity should be all about compassion, healing, selfless giving, and reconciliation. I think the ordinary people in DSC know this. I give them more credit than their own leaders do.
What now?
The next event should be TEC's response to DSC's Feb. 9 petition to SCOTUS and the two Amici briefs. This is due on April 30. After that, the supreme court justices will decide whether to accept or deny DSC's petition. This will probably happen by the end of June.
Will SCOTUS grant cert? I expect we will know in May or June. If I had to take a wild guess right now, all things considered I would take a stab at 25% chance of acceptance. That is, DSC has maybe a one in four chance of getting into the U.S. Supreme Court.
Meanwhile we are waiting on the circuit court and the federal court where not much seems to be happening these days.
Will SCOTUS grant cert? I expect we will know in May or June. If I had to take a wild guess right now, all things considered I would take a stab at 25% chance of acceptance. That is, DSC has maybe a one in four chance of getting into the U.S. Supreme Court.
Meanwhile we are waiting on the circuit court and the federal court where not much seems to be happening these days.
