In an order published earlier today, the Supreme Court of Texas has, following its announcements of decisions in a number of pending cases, granted Bishop Iker's request for expedited oral argument and set the case for hearing on the same day as the San Angelo case (the appeal by Church of the Good Shepherd from the decision in favor of the Diocese of Northwest Texas) -- October 16, 2012, at 9 a.m.
Each side will have twenty minutes for oral argument.
In another recent development in the case, the Liberty Institute, a Texas non-profit, public interest law firm "dedicated to the preservation of America's religious liberty," has submitted an amicus brief in the case which presents a unique argument. The brief (a .pdf download from this page) suggests that because the two sides do not agree on whether or not the Episcopal Church is "hierarchical" above the level of the individual dioceses, the civil courts are incapable of resolving that question without engaging in inquiry into religious polity, governance and doctrine to a degree which would infringe upon the freedom of religion under the First Amendment. It argues that the Supreme Court should order the cases dismissed, for want of a justiciable question.
Were the Supreme Court to follow this advice, of course, it would leave the parties in the status quo ante, when the rump diocese of Fort Worth and the Episcopal Church (USA) filed their lawsuits against Bishop Iker and the other Trustees of the Corporation of the Episcopal Diocese of Fort Worth. And that would mean that there would be no means, through the Texas civil courts, that the former would be able to get their hands on any of the property or other assets of the Corporation.
So from the point of view of Bishop Iker's diocese, that would not be a bad result. However, in making their argument to dismiss, I believe the Liberty Institute has mistaken the nature of the issue that is really at stake in the case.
For the dispute is not about whether the Episcopal Church (USA) is truly hierarchical with respect to its member dioceses. That is indeed what it claims in all of its papers in all of the dozens and dozens of lawsuits it has filed across the country, but it is doing so only as a legal strategy. It has adopted that line of argument in order to avoid the application of "neutral principles of law", as endorsed by the United States Supreme Court in Jones v. Wolf, to its allegation that all parish and diocesan property throughout the whole Church is held in a legally enforceable trust for the denomination.
That the Episcopal Church (USA) can make such an outlandish claim sound plausible is one more tragedy resulting from the disastrous term of Justice Harry Blackmun on the Supreme Court bench. Not content to have been the author of the wholly fictitious legal reasoning behind Roe v. Wade (1973), Justice Blackmun stepped out of his judicial robes again to suggest, in his majority opinion in Jones v. Wolf, that national churches could impose trusts on all of their members' property by simply adopting a provision to that effect in their constitution.
A Justice of the Supreme Court is not supposed to render legal advice to parties as to how they might order their affairs in light of the Court's decision in a given case. But Justice Blackmun all too frequently saw himself as the litigants' friendly Uncle Harry, who while handing down a ruling against one and in favor of another, could still seem avuncular and helpful, by suggesting (in Jones) "It's not all that bad -- see here how we can deal with this", or by waxing on and on at length (in Flood v. Kuhn) about the glories of America's baseball history. One wishes a judge just to be a judge when he is speaking officially, and Justice Blackmun routinely ignored that rule -- to the lasting detriment of individual churches and vestries throughout America.
The Episcopal Church's Walter Dennis immediately pounced upon Justice Blackmun's suggestion, and had the Church amend not its Constitution -- for that would have taken four years, with uncertain prospects for success -- but its Canons, which could be done at the last minute, unnoticed and probably without following the rules of General Convention, without anyone paying any attention. And starting twenty years later, we have been litigating the effects of his proposal, the infamous Dennis Canon, ever since.
Flushed with some initial court decisions upholding its Dennis Canon (based on Justice Blackmun's unsolicited advice), ECUSA expanded its trust claims to the property of entire dioceses shortly after Bishop Schofield's Diocese of San Joaquin decided it could no longer remain part of the Episcopal Church (USA) in 2007. It did so, not by claiming that the Canon applied to the assets of its member dioceses (written by a bishop, it clearly did not), but by asserting a long-standing, unwritten policy or implicit agreement among its members that they would not withdraw once they had joined, or that if they did, they would leave all their accumulated property and assets behind for any minority that decided to stay.
Such a claim, however, is founded only upon the supposedly "hierarchical" character of the Church at all levels. And it needs to be asserted only because the national Church never wanted to bother with the manifold complex details of complying with the statutory trust requirements of each and every State. The "easy out" which Justice Blackmun offered it came like manna from heaven, and the Church's leadership has never looked back, despite the disastrous consequences for is character, finances, and reputation.
Following "neutral principles of law" in church property disputes simply means treating church litigants no differently from any other civil litigants. It means requiring churches, regardless of their extent or polity, to comply with the civil laws of the State in which they are headquartered, or located, to the same degree as any other person in that State. If they want to place parish property into a trust for their benefit, then have the parish vestry approve and sign a declaration of trust, just like everyone else, and like every other legally enforceable trust that was created in that State.
But don't come into court with all kinds of mumbo-jumbo about "religious polity", unwritten agreements, and the like. Look simply at how the title is held in the various deeds, and what the parish and diocesan governing documents say. And whenever such principles are correctly applied, ECUSA loses, as it should, because it never took the trouble to comply with the requirements to establish a formal trust in someone else's property.
So the argument made by the Liberty Institute is flawed, because it takes ECUSA's claim of "hierarchy" at face value, and ultimately confuses the nature of such an entity with its ability to comply with secular, civil law. Even though ECUSA would lose by application of the Institute's principles in this case, those principles would leave many individual parishes, for instance, without any means of establishing title to their assets if they were claimed by someone else to be "in trust". All civil courts would have to decline to hear any such lawsuits whatsoever.
Courts can apply neutral principles of law to church property cases without entangling themselves in religious doctrines or polity. It is only when this notion of "a hierarchical church" is allowed to get a foot in the door that the application of neutral principles becomes skewed, and the analysis becomes confused. It is far better for the civil courts simply to stick with what they know, and do every day of the year -- and to leave the metaphysical contentions and religious consequences to the clerics and theologians.