Friday, March 23, 2012

Christ Church Savannah, Bishop Seabury File for Review in Supreme Court

In a well-coordinated move, Christ Church in Savannah, Georgia and Bishop Seabury Church in Groton, Connecticut have each filed a petition for review of the decisions in their respective cases by the United States Supreme Court. (More on the Christ Church filing is here.) They thus join Timberridge Presbytery of Atlanta in asking the high court to correct the wretched excesses wrought by ECUSA and PCUSA as a result of Justice Blackmun's fatuous dictum in Jones v. Wolf, 443 U.S. 595 (1979).

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.


  1. How do you rate the chances of the Supreme Court granting the petition for a writ of certiorari?

  2. Jeremy, certainly three petitions are a better way to get the Court's attention than just one. They each stress how diverse the case law is in this area as a result of the dictum in Jones v. Wolf.

    That being said, the Supreme Court has not taken a church property case for decision in the last 33 years, though a number have been offered. The odds for any one case are quite small, about 1 in 5000, so even 3/5000 is still a small number.

    What I would do is watch for the writeup of the cases to appear on the SCOTUS blog, to which I link at the right -- there should be one after all the briefs are filed, in 60-90 days or so. Those guys are all recent clerks for the Court, and have the closest track on what cases are likely to be granted cert.

    And then, of course, what I would also do is pray.

  3. While I concur with your wish that the late Justice Blackmun would disavow the use of his dictum, were he alive, I cannot help but observe that he wrote the opinion in Roe. Perhaps he meant for his dictum to cause harm; or at least we have proof that Satan was whispering in his ear twice while he was writing Supreme Court opinions, whether majority or concurring.

    But oh, how I am praying for a grant of the cert petitions!

  4. This could really blow a hole in TEC’s ship…if they lose, the stakes are huge…much bigger than for the plaintiffs that have already given up their buildings. If TEC loses, watch for the floodgates to open as many more churches leave once the Episcopal bishops have no more legal stick with which to beat them.

    I pray that more churches will join this suit, raising the number of churches involved, and I hope that the Supreme Court will look at this issue and give a just ruling. It is unfair that some organizational body can create some sort of ‘trust’ without the approval or even knowledge of the people who are at the other end of this so called ‘trust,’ and this case is perfectly relevant for many cases and disputes to come.

    That aside, if the heresies of the TEC bishops are so important that they are willing to burn in hell for them, so be it. God gave each individual that choice. But they should not be allowed to hold faithful Christians hostage like this…to hold them under duress and make them labor under a difficult choice of how to best serve Christ faithfully: should they leave their building, or stay there under Episcopal overlordship and wait for something to rescue them from their present dilemma?

    However, a SCOTUS ruling would free them from the burden of such a choice.

  5. Interestingly , the Ga. cases and the Ct. case were determined using two separate trust concepts - implied trust versus express trust further showing the confusion over the 1979 SCOTUS decision .