LEGAL TRAVESTY IN TEXAS

The Texas Supreme Court has rendered a disastrous ruling for the Episcopal Church, and all on a small technicality. This is a monumental travesty of justice.

On May 22, 2020, the TSC ruled entirely in favor of the schismatic diocese of Fort Worth. Virtually the entire pre-schism diocese was handed over to the breakaway party. The U.S. Supreme Court refused to take the case. Thus, the secessionists now have the name, legal rights, and practically all the local properties (a few more to be settled). Moreover, on August 28, 2021, announcement was made that, following mediation, the Episcopal Church had paid the schismatic diocese a whopping $4.5m to cover the breakaways' legal costs. Except for a few "satellite suits" this ends the litigation surrounding the old diocese of Ft. Worth. It was a complete victory of the schismatics and withering defeat for the Episcopal Church.

The breakaway entity now has the title "The Episcopal Diocese of Fort Worth" even though it has no connection to the Episcopal Church. Many of its local churches are keeping "Episcopal" in their titles even though they have no connection to the Episcopal Church. The diocese is proclaiming itself a constituent member of the Anglican Communion even though it is not part of the Anglican Communion. It is a member of the Anglican Church in North America which is not now, never has been, and almost certainly never be part of the Anglican Communion. The travesty continues.

The continuing Episcopal Church diocese has taken the name "The Episcopal Church in North Texas." Local congregations, driven out of their churches, are scrambling to find appropriate meeting places to continue on the true Episcopal Church in the region. Many people in SC can relate to this. 

All of this is because one court ruled on one technicality. That court was the Texas Supreme Court. The local court and the appeals court in Texas had all sided with the Episcopal Church on the basis of hierarchy. The diocese was a dependent part of a national institution which had sovereignty over the local dioceses. 

The technicality the high court used was that the Dennis Canon could not be enforced in Texas because state law said a trust could be revoked unless it expressly stated that it could not be revoked. In the May 22, 2020 decision (p.10) the justices wrote:

Regarding the existence of a canonical trust, we held that "even assuming a trust was created as to parish property by the Dennis Canon," trusts are revocable under Texas law unless they are expressly made irrevocable and "the Dennis Canon 'simply does not contain language making the trust expressly irrevocable.'"

Such a law is absurd. The trust by its existence automatically holds legal power. It should not have to say it is law, as no law should have to say that. It is implicit in the existence of the trust, or the law. The Texas law means that a trust is only a suggestion unless it is registered with an explicit provision that it cannot be revoked. I wonder if any other state has such a ridiculous law on its books.

Thus, the Texas high court ruled entirely in favor of the secessionist diocese even though the court recognized the hierarchical nature of the national Episcopal Church. To them, state law trumped hierarchy even though the diocese had joined the Episcopal Church in 1982 explicitly adhering to the Constitution and Canons of the Episcopal Church (including the Dennis Canon). 

Why did the Texas Supreme Court follow this narrow path? One has to bear in mind that this court is well-known as a solidly conservative Republican bench. All justices are elected state wide. For many years, all justices have been avowedly conservative Republicans. That is saying a lot in Texas.  

The schisms of 2007-2012 in the Episcopal Church were important parts of the culture war still going on in America (and arguably stronger than ever). The Episcopal Church championed equal rights and inclusion of women, homosexuals, and transgendered persons in the life of the Church. All five breakaway entities rejected all of that and joined a new church explicitly created to keep women, gays, and the transgendered from rights and inclusion. It should be no surprise to anyone that the Texas Supreme Court would come down so strongly on the reactionary side of the schismatic movement just as they have done and are doing on many other aspects of the culture war. At least they are consistent.

What does this mean for South Carolina? Hard to tell at this point. The SC Supreme Court is also conservative and no doubt impressed by the Texas ruling. However, two of the five justices of the SCSC are new to the church case and it is impossible to tell now what their attitudes towards this case may be. In terms of law, SC does not have the same trust restriction as Texas. In fact, the SC Supreme Court ruled in 2017 that 29 of the 36 parishes in question had acceded to the Dennis Canon and this meant that, at the schism of 2012, the Episcopal Church became the owner of the local properties. The SCSC remitted this decision to the local court for enactment.

Contrary to Texas, the local court in South Carolina rejected the state supreme court decision and ruled on the contrary, entirely in favor of the breakaways. This outrageous order is on appeal at the SCSC now. If the conservative SC high court wants to take a stand in the culture war for the reactionary side, it will have to find a way to rationalize the circuit court's rejection of its own 2017 decision. Although common sense says the SCSC will uphold its own decision, one should not rule out the power of the culture war in judicial decision making. 

The Texas high court found a technicality to devastate the "liberal" Episcopal Church. I, for one, am not assuming the South Carolina high court will not find some way to do the same. If so, it would be another travesty of justice in more ways than one.

We are all anxiously awaiting word from the SC Supreme Court.