The ever-cocky Episcopal Church (USA) and the Episcopal Diocese of Virginia, following its lead, declined to file responses to the petition. Four amici curiae ("friends of the court", being organizations interested in the case) filed briefs in support of The Falls Church: ACNA, the Presbyterian Lay Committee, St. James Anglican Church in Newport Beach, CA, and the Becket Fund for Religious Liberty. The case went to conference last December just on those briefs. And -- lo and behold! -- the Court ordered ECUSA and its Diocese to file a response before it ruled on the petition.
Such a request is noteworthy, because the Court's Rules explain that the Court ordinarily does not grant a pending petition without first calling for a response to it. Had the Court taken no interest in the petition, on the other hand, it could have denied the petition outright at its December 6 conference.
On December 30, Goodwin Procter for ECUSA and local Virginia counsel for the Diocese filed their joint response to the petition. And just over one week later, The Falls Church filed its reply. That same day, the Clerk distributed the briefs to the Justices for their case conference on January 24.
Monday, January 27, came and went with no word of the Supreme Court's decision. Docket watchers next noted that the briefs were distributed again for the Court's conference of February 21. This can happen if some of the Justices want more time to study the petitions, or if they are writing any opinions to be published along with the grant or denial of certiorari.
The Supreme Court came out with a long list of orders in pending cases yesterday. But Case No. 13-449 was not on it -- although it disposed of numerous cases with a later filing number. And now we find that the briefs have been carried over to a third (actually, the fourth) case conference this next Friday.
What to make of this? It would appear that there is strong interest in the case at least among one or more of the Justices. For example, last Term the Hollingsworth case (the federal injunction against California's Prop. 8) was carried over for four conferences before the Court granted review. And the Windsor case involving the Defense of Marriage Act went through three conferences before being granted, as well.
There are certainly grounds for the Supreme Court to grant review in the Virginia case. The recent reply brief sums it up well:
Respondents do not dispute that the lower courts are deeply divided over the constitutional significance of denominational “trust” rules. Nor do they deny the importance of the questions presented to millions of Americans—a point confirmed by the amicus briefs and 30 States’ use of “neutral principles” doctrine to decide church property disputes. Respondents do not even try to rebut our showing that free exercise and establishment principles preclude enforcing denominational “trusts” not embodied in ordinary instruments of ownership reflecting all parties’ intent. Accord Becket Fund Br. 7-23. And they do not contest that, if the court below applied state law retroactively, its ruling was unconstitutional.Virginia Code §57-7.1 was the statute that the Virginia Supreme Court read to allow (after 1993) the creation of trusts in favor of religious denominations in Virginia. Prior to that time -- and going all the way back to the State's founding -- its courts had refused to recognize such trusts, or to give them any legal effect. Thus the question became: if denominational trusts became legal in Virginia after 1993, how did the Dennis Canon, a "trust" enacted in 1979, come to apply to the property of The Falls Church? The reply brief concludes:
Instead, respondents say the decision below “does not implicate” the lower-court “conflict” because the decision is “factbound” and “turns entirely” on “state law.” Opp. 10. But that position is untenable. It evades not only the decision’s free exercise and establishment implications, but also (1) the court’s reliance on Jones’ “recognition” (in dictum) “that ‘the constitution of the general church can be made to recite an express trust in favor of the denomination’”; (2) its holding that it “need look no further than the Dennis Canon” (which was void [in Virginia] when enacted) to rule for the denomination; and (3) its conclusion that to “address any issues of inequity wrought [by the Dennis Canon]” would “clearly violate the First Amendment.” Pet. 15a, 18a, 21a (quoting Jones). Respondents insist that the ruling below involves no “retroactive application of a newly created rule,” and that the Dennis Canon only made “explicit” what had been “implicit” in the parties’ relationship. Opp. 10, 5. But they cannot explain how petitioner—or its grantors—could “agree” to place property in trust for respondents when “Virginia law prohibited denominational trusts.” Opp. 7.
Hoping to avoid the appearance of retroactivity, respondents say the court did not find “a trust at all,” but rather fashioned a “remedy”—forfeiture—for breach of some free-floating “fiduciary duty.” Opp. 14. But as the court explained, a “constructive trust” is “a form of implied trust.” Pet. 16a. And if respondents were correct, the court would not have needed to hold that §57-7.1 changed the law—the centerpiece of its decision. Pet. 14a.
Like the court below, respondents cite no evidence that petitioner consented to a trust after §57-7.1 was enacted. Not surprisingly, ruling for respondents required concocting a trust “‘independently of the intention of the parties’” (Pet. 16a)—a grave constitutional violation. Jones, 443 U.S. at 606 (courts must “give effect to the result indicated by the parties”).Indeed. Watch for the Court's release of its "Order List" next Monday -- and pray in the meantime that the Court be guided to grant review at its conference this Friday.
In sum, respondents do not contend that the Court should not resolve the lower-court split—just that it cannot do so here. But respondents’ state-law premise is incorrect. And even if the court below had relied solely on state law, the free exercise implications of its decision and its retroactive nature would independently enable the Court to resolve the conflict. The only conceivable basis for imposing a retroactive trust on church property over its owner’s objection is that the First Amendment requires that result regardless of state law—the precise question that splits thirteen state high courts. However that question is resolved, guidance is needed, and this case presents an excellent opportunity for the Court to answer it.