Monday, May 25, 2020


On May 22, 2020, the Supreme Court of Texas handed down a decision in the Episcopal Church case. Eight justices agreed while one did not participate. Find the decision here .

First, one should recognize the nature of the Texas Supreme Court. It is made up of nine justices. Each one is elected by popular vote in a state-wide election for a six-year term. For years now, conservative Republicans have held every seat on the court. The Court's new decision is a thin, thirty page, bundle of contradictions. It supports the breakaway side that is adamantly opposed to equal rights and inclusion of women and open homosexuals in the life of the church.

This is not the first appearance of the TSC in the church case. The original lower court ruled in favor of the Episcopal Church side. Then, the TSC intervened and ordered the lower judge to reverse his decision. He did and practically called for an appeal. The Episcopal Church side did appeal to the Second Appeals Court of Texas which, after two years of work, issued a masterpiece, a voluminous tome siding with the Church. The breakaway side immediately appealed this decision to the state supreme court. Last week's ruling overturns the appeals court's magnum opus. Find the appeals court decision of April 5, 2018 here .

The hang-up in the original intervention of the TSC, as it send the case back down to the lower court, was that the local diocese could revoke its accession to the TEC Dennis Canon since the Canon did not hold a provision that it could not be revoked, something that state law required. "trusts are revocable under Texas law unless they are expressly made irrevocable." (p. 10) It is ridiculous to argue that a law can be ignored unless the law explicitly says it cannot be ignored. Absurd. Nevertheless, this is the crux of the new decision---that the Dennis Canon could not be enforced in Texas since it did not have a provision that it had to be enforced. The effectiveness of a law is in the nature of law. The idea that a law, rule, or regulation has to spell out that it cannot be ignored is inane.

The big, glaring contradiction of the TSC decision of last week is that it accepts that the Episcopal Church is hierarchical and that the Diocese of Fort Worth entered TEC in 1982 explicitly under the terms of the TEC Constitution and Canons. The Dennis Canon was part of the C and C. "At that time, the corporate bylaws also provided that 'the affairs of this nonprofit corporation shall be conducted in conformity with the Constitution and Canons of the Episcopal Church.'" (p. 5)

 Then, the justices turned around and said the local diocese was self-governing and could amend its corporate documents at will. "In 2006, the Diocesan Corporation unanimously amended its articles and bylaws to remove all references to TEC." (p. 6) In another place, they said, "Congregants, local churches, and leaders of religious entities are free to disassociate from a hierarchical church at any time." (p. 12). In fact, individuals are free to leave any church at will but local churches and entities of hierarchical institutions are not.  

It is impossible to be under the TEC C and C and independent of them at the same time. Another absurdity.

Then, the justices tried to separate hierarchical authority and property ownership. In violation of hierarchy, the justices accepted the diocese as an independent entity free to amend its corporate charters and bylaws at will. The court then accepted the breakaway diocese as an equal entity under the concept of neutral principles and found for them on the matter of the ownership of the local properties. To do so, they had to ignore their own stated principle of hierarchy. So, the decision winds up contradicting itself---that the diocese could be under the Constitution and Canons of TEC and free to govern itself at the same time. Sovereignty cannot rest in two places at the same time---the whole church or its individual parts. The nature of a hierarchical institution is that sovereignty rests in the whole, not in the separate parts.

This decision begs to be appealed to the United States Supreme Court. In the first place, it is short, weak, and poorly substantiated by only a few cases which it repeats selectively. It will not stand up for a minute in Washington D.C., especially as it reflects so badly against the masterful appeals court decision that it purported, unsuccessfully in my view, to disprove. In the second place, the fundamental issue involved here has already been settled in federal court. Last September, U.S. District Judge Richard Gergel ruled very clearly that the Episcopal Church is hierarchical and as such is entitled to govern itself. He repudiated any notion that the breakaway group had any right to the historic diocese. He recognized the continuing diocese as the only legal and legitimate Episcopal diocese and, to boot, issued a permanent injunction forbidding the breakaway association from claiming in any way to be the historic Episcopal diocese. He backed this up with a second order. Too, there is the SCSC decision of August 2, 2017, that followed neutral principles and still found in favor of TEC on both the property and the ownership of the historic diocese. So, we have two competing state supreme court decisions, one for TEC and one for the breakaways. The two decisions are not equal, far from it. SCOTUS should say which should stand.

What the TSC has just issued not only contradicts itself, it contradicts federal court ruling. SCOTUS would no doubt throw out the TX decision in favor of Gergel's ruling. At any rate, federal law takes precedent over state law. Texas' absurd law that a trust can be revoked unless it says it cannot be revoked will be trumped by federal court adherence to hierarchy. Therefore, the Episcopal Church diocese of Ft. Worth should petition SCOTUS for cert asap.

While they are at it, the Church diocese of Ft. Worth should consider entering a suit in federal court along the same lines as the SC federal case---violation of the Lanham Act. Since the federal district court in Charleston has already ruled on this, it should be a simple matter to sue the breakaways in Ft. Worth for possession of the historic diocese.

[NOTE to readers. Sorry for the delay in making this commentary. I have been away from home and my computer for several days. I had to take a break.]