The list of orders from their June 14 conference is now online, and it shows that less than four of the Supreme Court's Justices were interested in reviewing the two petitions from parishes who lost their properties in the courts below. It takes a vote of at least four Justices to grant review, and the two cases (the Timberridge case from Georgia, No. 11-1101, and the Bishop Seabury case from Connecticut, No. 11-1139) are shown as having review denied. (The latter case appears on p. 6 of the orders list, because it also required a ruling on a pending motion to allow the amicus brief by St. James Newport Beach, et al., to be filed.)
The Court granted review in only one case today, a result which surprised the professional observers at SCOTUSblog, who pointed out that the Court has granted review in only 19 cases thus far -- not enough to fill its argument slots in October to December of this year. (The case in which review was granted was one of the thousands of in forma pauperis petitions which the Court receives every year.) The Court also issued a number of opinions in pending cases today, which showed that (as to these cases toward the end of the current term) it is very divided, although not always on ideological lines. (In one case, Justice Scalia joined the "liberal" justices Kagan, Ginsburg and Sotomayor in dissent.)
The result today for church property law is regrettable, because it means that the morass of State court decisions interpreting Jones v. Wolf, 443 U.S. 595 (1979) will remain unresolved, with some States allowing certain churches to bypass their legal requirements for the creation of a trust, and with other States requiring that all churches comply with their local trust laws. Thus the outcome of any church-parish dispute over property will continue to turn upon the State in which it arises: if the parish is in California, Connecticut, Georgia, Massachusetts, New Jersey, New York or Ohio, it will most likely lose its property; but if it is in Alaska, Arkansas, Louisiana, Missouri, New Hampshire or South Carolina, it will most likely keep its property. And if it is in Kentucky or Pennsylvania or Virginia, then the courts could hold that any national trust canon is ineffective to create a trust, but still find that a trust existed anyway.
Fortunately, the denial of review will have little or no bearing on the three pending property lawsuits involving entire dioceses which left the Church (Quincy, Fort Worth and San Joaquin). That is because the Church's Dennis Canon has no application to real or personal property owned by dioceses. Furthermore, the fact that the Supreme Court declines to review a lower court's decision is not a judgment on the merits -- it does not mean that the Court views that case as having been correctly decided. Its net effect, therefore, will be to leave the various States' results exactly as they are.
The interesting fact is that we have never before had a Supreme Court on which there were no members of Protestant denominations. The current Court is made up of six Roman Catholics (Chief Justice Roberts and Justices Kennedy, Scalia, Thomas, Alito and Sotomayor) and three Jews (Ginsburg, Breyer and Kagan). Whether that is what determined that there were not enough justices interested in the property disputes of Protestant churches is something we shall probably never know. Also, none of the justices who served on the Court in 1979, when they issued the Jones decision, is still on the bench today, so any institutional history that attended that case has been lost.
The interpretation of Jones in the courts will remain unsettled, alas, at least until we have a different Court (and even then, there are no guarantees). Writing before the results of last Thursday's conference were announced, this blogging law professor, I think, got the question just about right:
... The problem arises from the Court's muddled resolution of the role civil courts may play in determining disputes concerning ownership of church property. In Watson v. Jones, 80 US (13 Wall.) 679 (1871), the Court ruled that civil courts must first determine the type of church involved -- basically congregational (under control of the immediate congregation) or hierarchical (individual churches controlled by an umbrella church). With respect to the latter type, civil courts were to defer to the internal rules of the umbrella church. A bit over a century later, the Court, in Jones v. Wolf, 443 US 595 (1979), ruled that civil courts must eschew any inquiry into "ecclesiastical polity or doctrine," but must be "completely secular" and rely "exclusively on objective, well-established concepts of trust and property law." But Jones did not overrule Watson, and the result is that five state supreme courts and one federal circuit hold that internal church rules are irrelevant if they conflict with secular trust and property law, but four state supreme courts hold that internal church rules govern even if they do not comport with secular trust or property law.
This problem arises in the case of hierarchical churches, such as the Episcopal Church and the Presbyterian Church. The problem doesn't arise in the case of the Roman Catholic Church because deeds to parish property are almost universally in the name of the relevant Catholic Bishop. That's not so with Episcopalians and Presbyterians, where deeds to local church property are often in the name of the local church. Enter the so-called "Dennis Canon," in the case of the Episcopal Church. The umbrella Episcopal Church amended its constitution (the Canons) to provide that all local church property is held in trust for the national church. Of course, it is an axiomatic principle of trust law that an express trust can be created only by the settlor, not by unilateral action of the beneficiary. Yet, the Dennis Canon purports to create a trust by the action of the beneficiary alone. This gambit has been approved by those state courts that read Jones to mean that civil courts may defer to internal church rules, even when they are at odds with secular principles of trust law. On the other side are those courts that hold that secular principles of trust law control when internal church rules violate those principles.The conclusion he reaches is undoubtedly correct, but the Supreme Court apparently is not yet ready to go there. Churches and their parishes will continue to suffer from the inability of the courts to deal with religious entities -- but isn't that just what St. Paul warned us about, so long ago?
Given the turmoil in the Episcopal Church there is certain to be even more of these disputes. Guidance is needed. I'm not agnostic on this issue -- I think that secular principles of trust and property law ought to control, regardless of what the internal church rules may be. There are at least two reasons for this: 1) Civil courts are obliged to apply secular law to resolve ecclesiastical property disputes; they can't do this if they look to church rules that the church itself proclaims; 2) Permitting churches to declare themselves to be the beneficiaries, in trust, of property owned by others, allows churches to exercise power that no secular entity could ever exercise. In short, by a modest extension of the rationale of Larkin v. Grendel's Den, 459 US 116 (1982), governmental blessing of this extraordinary power amounts to a forbidden establishment of religion.