Texas Court of Appeals Makes a Mockery of "Neutral Principles"

The Texas Court of Appeals at Austin (Third District) has rendered a decision against the Church of the Good Shepherd in San Angelo, Texas, and in favor of the Diocese of Northwest Texas. The ruling affirms the trial court's decision awarding possession and use of the Church's property to the Diocese and the "Continuing Parish Leaders" installed by Bishop J. Wallace Ohl, after the parish and vestry of Good Shepherd voted to realign themselves with the Province of Uganda (The court refers to the realigning group as the "Former Parish Leaders".)

In short, this is another species of the kind of result one finds when a parish individually attempts to withdraw from an Episcopal Diocese. Generally, such decisions have gone in favor of the diocese, due largely to the courts' unhesitating acceptance of the Dennis Canon in light of Justice Blackmun's obiter dictum in Jones v. Wolf (1979) 443 U.S. 595, 606, as explained in this earlier post.

The irony in relying on Jones v. Wolf to decide Episcopal Church cases is that the Supreme Court intended to offer, via that case, an alternative to the traditional approach by which courts were required to defer to decisions by so-called "hierarchical churches". Instead of looking at the organizational character of the church, courts after Jones could follow "neutral principles of law" to decide property disputes, based entirely on the manner in which title was shown to be held. However, many post-Jones courts have treated the Dennis Canon as one more "neutral principle" to be considered, which they then hold trumps the plain, fee simple language of the parish deed, by imposing a perpetual trust on the property in favor of the national church. Since the Dennis Canon came into force without the express consent of the parish to its terms, however (most parishes still have never heard of the Dennis Canon today), that "cram-down" approach harkens back to the days of deference to the hierarchy, undercuts the rationale of Jones, and thereby makes "neutral principles" into nothing more than a cheap shibboleth, useful for demonstrating that the court in question supposedly is up on the law.

The decision by the Texas Third District Court of Appeals takes mockery of "neutral principles" to a new level. For while it contains a detailed comparison of the differences between the approach of Jones v. Wolf and the earlier hierarchical approach, it shows no comprehension whatsoever of what Jones actually held. Consider this passage from the Court's opinion (I have added the bold for emphasis):

The Texas Supreme Court has not expressly approved a particular method to adjudicate church-property disputes, although it has "long recognized a structural restraint on the constitutional power of civil courts to regulate matters of religion in general." Westbrook, 231 S.W.3d at 397-98 (citing Brown v. Clark, 116 S.W. 360, 363 (Tex. 1909)). In Brown, the only church-property dispute it has yet decided, the court was careful to sidestep any issues that fell within the exclusive jurisdiction of the ecclesiastical judicatories, including the case-determinative question of whether the local church possessed the authority to determine that it could enter into union with the denominational Presbyterian Church. . . .

As the Former Parish Leaders correctly point out, the analysis that the court conducted in Brown is consistent with the neutral-principles approach. That does not mean, however, that a Texas court is required to follow the same approach. Because the trial court was not required to adopt any particular approach in resolving the instant dispute, see Wolf, 443 U.S. at 602, we overrule the Former Parish Leaders' first issue asserting that the trial court erred by failing to apply neutral principles of law [footnote omitted].

Contrary to what the Court of Appeals here asserts, Jones v. Wolf did not decide that "trial courts" were not required to adopt any particular approach to resolve church property disputes -- it held that the States were free to adopt "neutral principles of law" as an alternative to the hierarchical deference approach. It was the job of the trial court -- and of the Court of Appeals as well -- to determine which approach the Texas Supreme Court would most likely adopt today, and then to apply that approach consistently to each of the questions presented. Courts within a given State are not free to pick and choose, using "neutral principles" in one case, and "hierarchical deference" in another.

By holding that the trial court was free to do so, and then by using that holding as a basis to overrule the Former Parish Leaders' objections that the trial court had not properly followed "neutral principles", the Court of Appeals took neutral principles to a meaningless extreme. In effect, it said that any approach chosen by the trial court would be the correct one.

Next, the Court of Appeals compounds the confusion by first deciding that "the trial court did not err in deferring to decisions of the Bishop or the Diocese in light of the hierarchical nature of the Episcopal Church" (i.e., had adopted and correctly applied the deference approach), and then immediately thereafter writing:

Although the trial court made no findings of fact or conclusions of law that conclusively establish which approach it adopted, it appears that the trial court did apply neutral principles in rendering the judgment under review.

So which is it? Did the trial court properly defer to the "hierarchical" character of the Episcopal Church, or did it follow and apply "neutral principles" instead? Reading the decision of the Court of Appeals, one simply cannot tell. In a classic ploy to have it both ways, the Court goes on to explain that the result below was consistent with both approaches:

The judgment itself indicates that the court considered and interpreted a number of the documents contained in the record, as it would have done if it were employing the neutral-principles approach. Specifically, the trial court's declaration that "all real and personal property of the Good Shepherd is held in trust for the Episcopal Church and the Diocese" is evidence that the trial court looked to the deed conveying the real property to Good Shepherd, the trust provisions contained in the various Canons of the Episcopal Church and the Diocese, and the governing documents of Good Shepherd.

On this record, we likewise conclude that neutral principles of law mandate that the Episcopal Church and the Diocese, not the Good Shepherd parish, have control of the property in question. Though the deed to the property is held in Good Shepherd's name, the parish agreed from its inception to be a part of the greater Episcopal Church and to be bound by its governing documents. These governing documents make clear that church property is held in trust for the Episcopal Church and may be subject to Good Shepherd's authority only so long as Good Shepherd remains a part of and subject to the Episcopal Church and its Constitution and Canons.

And there we have it: the Statute of Frauds, which since the seventeenth century has required that a declaration of trust needs to be signed by the property owner in order to be valid, does not count as a "neutral principle of law." Instead, because the Episcopal Church (USA) is "hierarchical", it is allowed unilaterally to impose a trust on all its parishes' property in its favor, simply by passing a national canon (bylaw) to that effect. Where is the neutrality in that? No church which is not considered "hierarchical" may so bypass the Statute of Frauds, and neither may you, nor I. But the Episcopal Church (USA) does -- all because of a repeated misreading of gratuitous dictum laid down by that careful scholar of the Constitution, Justice Harry Blackmun (the outcome-based author of Roe v. Wade).

Indeed, the Court of Appeals decision in effect holds that "heads Bishop Ohl wins, tails Good Shepherd loses." Did the trial court not apply neutral principles? Ah, well, it doesn't matter, because under either neutral principles or hierarchical deference, the courts must defer to the Episcopal Church, and so Good Shepherd loses whichever approach is followed. "Neutral principles" is just a fancy name for a few additional steps to be taken -- examining deeds, articles of incorporation, etc. -- before deferring to the national church in any event. There is nothing new under the sun -- nothing at all. Call it what you like, it still comes out the same:

As demonstrated by the foregoing, the trial court's judgment can be affirmed whether we decide this appeal by applying neutral principles of law or by deferring resolution of the determinative question of identity to the proper authorities within the Episcopal Church hierarchy. See Milivojevich, 426 U.S. at 709; Westbrook, 231 S.W.3d at 398. Under either methodology, giving due deference to the Diocese's resolution of the ecclesiastical questions bearing on this appeal, we conclude that when the Former Parish Leaders and the other parishioners aligned with them disaffiliated from the Episcopal Church, the church property remained under the authority and control of the Episcopal Church. Accordingly, the vote to disaffiliate was effective only as to those members who sought to withdraw from the Episcopal Church; it did not have the effect of withdrawing Good Shepherd itself from its union with the Episcopal Church, as the Former Parish Leaders presume [footnote omitted]. Further, having found that the Continuing Parish Leaders are entitled to possession and use of the property, the trial court did not err in declaring that property owned by the local Episcopal parish is held in trust for the Episcopal Church, pursuant to the Episcopal Church Constitution and Canons. We overrule the Former Parish Leaders' third, fourth, and fifth issues.

And that is unfortunately what passes for legal reasoning in most church property cases these days. Courts simply are unable to discern what "neutral principles" really are, when it comes to a non-neutral, highly litigious body like the Episcopal Church (USA). The Church comes into court with reams and reams of poorly reasoned precedent, all of which reduces in its essentials to "ECUSA is 'hierarchical', so it wins." The Church is equally at home under either approach the courts may nominally decide to take. "You want 'neutral principles' cases in which we prevail? We've got 'em. Or you want 'deference' cases? We've got oodles of those, too."

But the truth is, because the courts simply apply the Dennis Canon trust language without thinking as to how an effective trust is properly created, the cases are at bottom indistinguishable. That is why the decision by the South Carolina Supreme Court is such a notable exception -- it is one of the very few courts to date to hold that "neutral principles" really does mean neutral principles, under which the Dennis Canon is legally insufficient to create any trust interest under State law. ECUSA, of course, is counting that it will continue to be the one notable exception in its litigation track record.

Nevertheless, it bears repeating that precedent in cases involving realigning parishes does not constitute governing law for cases involving realigning dioceses. What the Third District Court of Appeals decides in the Good Shepherd case will not have any influence over the Second District when it reviews Judge Chupp's opinion in the case of Bishop Iker's Fort Worth diocese -- which notably eschewed neutral principles altogether, and went ahead solely on the Judge's belief that the Texas Supreme Court still adheres to the traditional "deference" approach. If that Court of Appeals holds first that "neutral principles" should have been followed, then Judge Chupp's approach is out from the start. And since the Dennis Canon has no application to the property of dioceses, it will not be included in the mix of elements which the Court reviews under "neutral principles." Thus there are still several good reasons to hope and expect that Judge Chupp's decision will be reversed on appeal.