Having been granted extensions of time within which to file, the Episcopal Church (USA), its Diocese of Northwest Texas and its pseudo-Diocese of Fort Worth (never having been formally admitted into union with General Convention) have now filed motions for a rehearing of their cases with the Texas Supreme Court. The motion in the Fort Worth case may be downloaded here; the motion in the Northwest Texas (Church of the Good Shepherd) case may be downloaded here.
Both motions have one ground in common: they argue that the Court's approval of the "neutral principles" approach to resolving church property disputes came as a surprise, and that applying that approach retroactively to their respective cases infringes upon the "free exercise" of their religion, in violation of the First Amendment.
In addition, the motion in the Fort Worth case asks the Court, which had reversed the entire judgment below, to reinstate that portion of it which had declared that the pseudo-diocese was entitled to the name "the Episcopal Diocese of Fort Worth." The motion in the Good Shepherd case asks the Court to withdraw the portions of the majority's opinion which provided guidelines for the trial court on remand -- including the observation that the Dennis Canon was ineffective to create an irrevocable trust under Texas law.
The main argument of the motions is problematic, to say the least. Just how does the Supreme Court's adoption of "neutral principles" infringe on the ability of the Episcopal Church (USA) to practice the Christian religion? (All right, never mind the catcalls -- we all know that what ECUSA practices these days is anything but the Christian religion -- see the remarks being made at the current GAFCON meeting in Nairobi.)
In other words, how does the Church's attempt to claim title to the property and bank accounts of departing parishes and dioceses comport with the tenets of the Christian faith? And how does the manner in which the Church claims to hold title to real and personal property amount to a form of Godly worship?
The motions do not spell out exactly how the Church's free exercise of its religion has been harmed by the Court's adoption of neutral principles, and given the difficulties just referenced, that is not a surprise. But there are other inconsistencies with the argument. For instance, the Church adopted its Dennis Canon in response to the United States Supreme Court's endorsement of neutral principles in the case of Jones v. Wolf in 1979. So how can it say with a straight face that ever since it has been relying on the older deference standard?
The failure of the briefs to specify just how the decision harms the Church's ability freely to exercise its religion is probably fatal to their chances of success. Making just the claim of "infringement" is not enough, but as usual, the Church simply wants its case to be presumed.
The subsidiary arguments are also not well taken. In the Fort Worth case, Judge Chupp applied the deference standard, not neutral principles, in ruling that the pseudo-Diocese was entitled to the name and all the assets of Bishop Iker's Diocese. Asking the Court to preserve part of that ruling, when the Court has announced that the deference standard is no longer applicable, makes no sense.
As for the Diocese of Northwest Texas, it has little to complain about in the minimal guidance offered by the Supreme Cour to the trial court following remand. The law of Texas is what it is with regard to revocable trusts, and the Court did not break any new ground in what it opined. Moreover, there were four dissenters, out of the nine total on the Court. Who can say that the same lineup will recur if and when the case ever comes back to it?
The Court will not grant the motions without first asking the prevailing parties to file a response. But it does not have to ask for any response before deciding to deny the motions outright. So stay tuned -- I will update this post as soon as the Court does anything.
[UPDATE 10/24/2013: Early this morning, the Court updated its dockets in the two cases linked above to reflect the fact that it has requested Bishop Iker and the Church of the Good Shepherd to file responses to the motions for rehearing on or before November 7, 2013. So there will be no disposition of the motions before then, but probably shortly afterward.]