THE EPISCOPAL CHURCH RESPONSE TO THE DIOCESE OF SOUTH CAROLINA IN THE U.S. SUPREME COURT

Today, Monday, May 7, lawyers for the Episcopal Church and the Episcopal Church in South Carolina filed a response brief in the U.S. Supreme Court:  "Brief for Respondents in Opposition." Find the link to it here . This was in reply to the Diocese of South Carolina's Feb.9, 2018, petition to the court for a writ of certiorari, or application for the court to review the South Carolina Supreme Court decision of August 2, 2017. That ruling recognized TEC and TECSC's trust control over 29 of the 36 parishes in question plus Camp St. Christopher.

Here is my understanding of today's brief:

The basic argument the church lawyers made is the same one I had held from the start. The matter at hand between the two sides in South Carolina was a matter of state law decided under state law. There is no ground for appeal of state law to the U.S. Supreme Court. SCOTUS is concerned with federal constitutional issues of urgent national importance. It does not concern itself with state law except as it may interfere with federal. This case does not.

In both the circuit court trial in July of 2014 and the state supreme court hearing on September 23, 2015, the diocesan lawyers had argued their cause entirely on state laws covering property and trust. They had not argued any aspect of the federal constitution. This was the general argument the Church lawyers made today in their brief. They said the case was one of state law and decided on neutral principles.

In its appeal of Feb.9, DSC had argued that the SC supreme court erred by wrongly applying a "hybrid" of neutral law and deference, allowing a church to get around state law. DSC asked SCOTUS to take the case in order to clarify "strict" neutral rights that would simply follow state law regardless of other factors.

STATE LAW

On the issue of state law today's brief said:

"the judgment entered against petitioners [DSC] by the state supreme court rested on state law alone." (p. 1).

"Thus, taken together, the decisions of these three justices [Pleicones, Hearn, Beatty] produced the result that, under South Carolina law, the parishes that did accede to the Dennis Canon are subject to trusts." (p. 14).

"Petitioners thus are flat wrong when they contend (at 18) that the court below did not find that 'a trust...had been created under South Carolina trust law.'" (p. 16).

"There accordingly is a fully adequate state-law basis for the judgment of the Supreme Court of South Carolina against petitioners." (p. 17).

NEUTRAL PRINCIPLES

On the issue of neutral principles, today's brief argued that SCSC did indeed follow strict adherence to neutral principles and there was no "hybrid" approach:

"Under the view of that majority [Kittredge, Toal, Beatty], South Carolina law must be applied to resolve church property disputes without regard to the nature of the relationships between the religious parties and entities involved in such disputes. That is precisely the 'strict' version of 'neutral principles' petitioners argue is constitutionally required." (p. 9).

"Critically, Chief Justice Beatty 'look[ed] no further than [South Carolina]'s property and trust laws to determine whether the purported trust created by the Dennis Canon comports with the requirements of either an express or constructive trust.'" (p. 10).

"A different majority---Chief Justice Beatty, with Justice Pleicones and Justice Hearn---concluded that parishes that did accede to the Dennis Canon hold their property in trust for the Church and the Episcopal Diocese." (p. 11).

"a majority of the state supreme court in this case applied the 'strict' approach, by relying on wholly neutral principles of state law to find trusts imposed on nthe parishes that acceded to the Dennis Canon." (p. 21).

NO FEDERAL QUESTION

The lawyers argued that since the case was considered under state laws and the courts strictly followed neutral principles, there was no question appropriate for the U.S. Supreme Court:

"But that disagreement is not reviewable by this Court because it presents no federal question." (p. 17).

"they failed to raise any such federal argument in the state courts. That failure precludes review in this Court." (p. 19).

"But that division does not matter at all in a case like this one, where the national church prevails under state law without the need to draw on the First Amendment to give effect to a provision of the national church's governing documents. Petitioners thus fail to establish a reason for review in this case." (p. 23).

HIERARCHY

The lawyers in today's brief also incidentally argued that the Episcopal Church is an hierarchical institution. As I saw it, this was really a side issue that was not integral to the three main arguments above (state law, neutral principles, no federal jurisdiction). Nevertheless, the lawyers pointed out that if SCOTUS decided to review the case, it would have to defer to the Episcopal Church because of its hierarchical nature. (p. 2, 3, 29). They also reminded the court that the majority of the SCSC had agreed that TEC was hierarchical.

Thus, it seemed to me that Church lawyers emphasized that the case had been adjudicated and settled under state law, that the courts had strictly followed neutral principles, and SCOTUS had no interest in the case. I found this to be a strong response to DSC's petition of Feb. 9.

What now?

The justices of SCOTUS will discuss the matter and vote on whether to grant DSC's request for review. This will probably occur before the end of June. Four of the nine justices must agree to grant the DSC's petition. If they grant, SCOTUS will have a hearing and issue a judgment probably during its next regular session (Oct 2018-June 2019). If they deny, that is the end of the matter and the SCSC decision of Aug. 2, 2017 stands as the final law. The 29 parishes and Camp St. Christopher will finally return to control of TECSC.

What are the chances SCOTUS will accept DSC's petition? It is most likely SCOTUS will deny. I think today's response strengthens that outcome.

For TECSC's statement on today's brief, click here .