Both of those churches have a provision in their governing documents which purports to declare and impose a trust in their favor on the individual properties of each of thousands of their member parishes. Innocently continuing to maintain and contribute to the improvement of their church buildings, the congregations in those churches never realize that they do not really own their own property -- at least, not until they start to disagree with the drift of their denominations. Then, if they seek legal advice, they all too often find out that their national church has a chokehold on their properties: if they vote to leave, they cannot remain in their buildings, or keep any donated communion vessels, altar cloths or vestments.
In his majority opinion, after holding that Georgia courts constitutionally did not have to defer to church authorities regarding the ownership of parish property, Justice Blackmun invited churches with a national superstructure to modify their governing documents. He wrote: "Alternatively, 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." (443 U.S. at 606.)
To many State courts, this was taken as a pronouncement from on high that henceforth, national churches could bypass with a single stroke, and for all the parish properties in their jurisdiction, the various requirements that a legally recognizable trust could be established only in a written instrument, signed by the property owners themselves, i.e., the several parishes. Overlooked was Justice Blackmun's additional observation (emphasis added):
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.Do you see the language I have bolded? In a legal sense, when a national church, through its legislative body, simply promulgates a rule or canon imposing a nationwide trust which the parishes are not told about, it is hard to understand how such a "result" may be said to embody the intent of both parties to the transaction -- namely, the church and each individual parish, acting as a settlor (creator) of the trust in favor of the national church. And yet State court after State court has held that it could imply the requisite consent to the imposition of such a trust, merely from the fact of the parish's membership in the larger organization as a whole, in which it "recognized" or "acceded to" the authority of the greater entity.
But no other body or organization -- religious or otherwise -- has been granted the privilege of creating enforceable trusts in such a unilateral fashion. This is the crux of the three petitions for review: how could a simple obiter dictum (a remark made as an aside, in the course of a decision) suddenly become the law of the land, sufficient to override all state and local laws to the contrary? That is not how the law is supposed to work, and if he were still alive, one would hope that Justice Blackmun would disavow any such intent behind his gratuitous statements.
For in practical effect, that result amounts to granting special State privileges to just one type of church. And that "establishment" of one type of church over all other types, and over all other kinds of property owners as well, quite plainly is contrary to the Establishment Clause of the First Amendment, as applied to the several States through the Fourteenth Amendment of the United States Constitution.
The Supreme Court created the current mess of First Amendment law which has burgeoned in consequence of Justice Blackmun's dictum, and it will take the Supreme Court to clean it up. Later, as I have the chance, I will upload the petitions to a site where you may read them, and I will comment further on their arguments.
[UPDATE 03/24/2012: The Petition filed by Christ Church may be downloaded from this link, and the Bishop Seabury Petition from this link. A full copy of the earlier Petition filed by Timberridge is here.]
For now, we may take heart that the United States Supreme Court has three petitions in front of it, each of which raises the identical question for it to resolve.