Federal District Judge Terry Means in Fort Worth today entered orders in two pending cases brought against the Rt. Rev. Jack W. Iker for "trademark infringement" and "unfair competition." The orders, following the Texas Supreme Court's remand to the trial court of the lawsuits by ECUSA, its ersatz diocese and member parishes against Bishop Iker and his co-trustees of the diocesan corporation, serve to close the cases administratively on the federal court's calendar, while leaving them theoretically open for reinstatement should subsequent developments warrant their reactivation.
The first federal lawsuit, filed in September 2010, charged Bishop Iker personally with infringing the trademarks traditionally used by his diocese, following its vote in 2008 to sever its ties with ECUSA. The theory was that the ersatz diocese, erected in 2009 by the Presiding Bishop and her collaborators without following ECUSA's Constitution or Canons, was the only legal entity entitled to their use -- despite the fact that the actual Diocese of Fort Worth remained a fully active entity under Texas law, and under the control of Bishop Iker and his trustees.
The second lawsuit was brought in October 2010 against Bishop Iker by a minority contingent of All Saints Episcopal Church in Fort Worth, whose majority had remained with Bishop Iker's diocese. Rather ridiculously, it alleged that Bishop Iker had "allowed" the majority members to continue as a parish "in unfair competition" with the plaintiff congregation, which retained possession of its building.
The federal court had placed both suits on hold pending the outcome of the proceedings in the principal case in Judge John Chupp's 141st district court in Fort Worth. ECUSA, its ersatz diocese and parishes had convinced Judge Chupp to enter summary judgment in their favor, based on their argument that the court had to "defer" to ECUSA's determination of who was the "ecclesiastical successor" to Bishop Iker's diocese, after it voted to withdraw from ECUSA. But the Texas Supreme Court, on a direct appeal, ruled 5-4 that Judge Chupp should have applied "neutral principles" to the dispute, rather than defer to ECUSA's post-withdrawal maneuvers and unilateral claims per se.
Thus the principal case will now go to trial to examine -- as in Quincy, San Joaquin and South Carolina -- whether ECUSA has any rule or bylaw that would prohibit a diocese from withdrawing without the consent of General Convention. The trial court in Quincy recently found, after closely examining all of the evidence that ECUSA proffered, that there was no such rule or bylaw, and that dioceses of ECUSA were free to leave on their own.
The two federal cases closed in Texas are thus likely to be revived only in the rather remote event that Judge Chupp, making the same inquiry as did the court in Quincy, should arrive at a different conclusion.
What your Curmudgeon finds remarkable in these recent developments in the litigation over withdrawing dioceses is that there are still some Episcopalians who believe that, just because they think there ought to be an implied rule against unilateral withdrawal, the courts must enforce it anyway, just on ECUSA's say-so. Those days are over. ECUSA has shown, when push comes to shove on its claims, that it has zero evidence of any such rule ever having been enforced in its 225-year history.
And even if it could now make up such a rule, and get it passed by General Convention, the courts would be prevented from enforcing it by the developments in First Amendment jurisprudence that have occurred in the last seventy-five years. A diocese, incorporated or not, has the same rights under the First Amendment as any single individual does. And those rights include the ability to associate with whomever the person chooses to associate, regardless of what some group may claim to the contrary.
Making up "rules" after the fact has been a specialty of the current regime at 815. ("Oh, we've always done it that way." "Well, we don't need to follow the Canons in this particular instance, because we like the result we can get by not following them.") That may be the way for Calvin and Hobbes to run their exclusive club, but it is not the way to run a church governed by a Constitution and Canons. ECUSA is finding that its leaders' lawlessness will carry it only so far. And it is about time.