The Layman article succinctly explains what is so significant about this particular filing:
Joining Timberidge attorney Michael Kendall in this case is Carter G. Phillips, managing partner of the Washington, D.C. office of Sidley Austin LLP. Phillips has argued 74 cases before the U.S. Supreme Court, more than any other attorney currently in private practice. Before his association with Sidley Austin, he served as a law clerk for U.S. Supreme Court Chief Justice Warren Burger and as assistant to the United States Solicitor General, arguing nine cases before the U.S. Supreme Court on behalf of the federal government.And with Mr. Phillips' expert assistance, notice how clearly the petitioners have phrased the question which they would like the Court to decide:
Whether the ‘neutral principles’ doctrine embodied in the Religion Clauses of the First Amendment permits imposition of a trust on church property when the creation of that trust violates the state’s property and trust laws.This is the same question which the Dennis Canon presented (or presents) in South Carolina, Texas, Ohio, Pennsylvania, Nebraska, North Carolina, New Jersey, Connecticut, Tennessee, and in all the other jurisdictions where it has come up in the last dozen or so years -- with the exception only of California and New York. In their collective foolishness, the legislatures of each of those two states decided to enact statutes which grant the Episcopal Church a special privilege to bypass their own Statutes of Frauds. (And for that very reason, those privilege statutes would probably themselves be open to challenge, under the Establishment Clause of the First Amendment.)
The petition makes excellent reading for those who would like the most current overview of the law in this area. It includes, of course, discussion of cases in still other jurisdictions (e.g., Louisiana, Missouri and Arkansas) which involve PCUSA, and not ECUSA -- but given the wording of the applicable provision of PCUSA's Book of Order, the issue presented is the same.
Petitioners advance two simple reasons for why the Supreme Court should accept the case for review: (1) “The judgment implicates a deep and mature conflict over whether a trust may be imposed on church property that secular law would not allow”; and (2) “Review is warranted because the decision below is wrong.” (The latter point, of course, would not be a reason on its own sufficient to take the case, because the Supreme Court does not use its jurisdiction simply to correct mistakes of law.)
Under the first ground, the petitioner's argument makes three points. First, the State courts, as noted above, are widely divided on the question of whether "neutral principles" allows certain kinds of churches to create trusts in violation of state property laws. Second, the Timberridge case itself provides an ideal vehicle for resolving the issue, since the Georgia Supreme Court ruled that for PCUSA to have to have obtained the express written consent of every presbytery to the imposition of a trust would have placed an undue "burden" on PCUSA under the Free Exercise Clause. In doing so, it read dictum in Jones v. Wolf, 443 U.S. 595 (1979) to require that any burden on churches in complying with State law should be "minimal." The brief argues:
To the contrary, when this Court allowed state courts to rely on “neutral principles,” to resolve church property disputes, it explained that churches could adopt express trust provisions that would bind civil courts “to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.” Jones, 443 U.S. at 606. The Georgia Supreme Court’s ruling disregards Timberridge’s intent and discounts the lack of a legally recognizable trust under Georgia law.The third point is that the conflict among State courts has become widespread, to the degree that the doctrine of "neutral principles" itself is threatened. Under one interpretation, certain kinds of nationally organized churches receive a deference which is not accorded to other types of churches without any national organization. And other the other interpretation, "neutral principles" are truly neutral, because the Courts apply the same real property law to churches as they do to all other litigants.
This is a concise and well-presented argument. It is backed by one of the finest Supreme Court litigators in the profession. We may take some hope that, by this June, we should know whether ECUSA should have any cause for concern about its scorched-earth campaign of intimidation and bullying, based on the Dennis Canon.
All of the Court's major pronouncements in church property cases since 1969 have been in the course of its reviewing decisions from the Supreme Court of Georgia. We are about to see whether the Timberridge case will furnish the occasion for yet another one.
[UPDATE 03/12/2012: There is word that Christ Church Savannah is preparing a similar petition for filing. Two are always better than one, and with both decisions stemming from the same Georgia Supreme Court, but involving two different national Churches and their different trust provisions, this joinder could provide just the impetus which the U. S. Supreme Court needs to get involved.]