Today the Supreme Court of the United States issued its order denying (without opinion) review ("certiorari") of the decisions rendered last September by the Supreme Court of Texas in the Fort Worth and San Angelo cases.
The order was expected, because neither decision by the Texas Supreme Court was final. The U. S. Supreme Court almost never agrees to review lower court decisions until they are final. In these two cases, the Fort Worth matter was sent back to Judge Chupp's court for a trial, and the Church of the Good Shepherd case was likewise sent back to the trial court in San Angelo for further proceedings.
The action by SCOTUS now frees both of those cases to move ahead.
In Fort Worth, Bishop Iker's attorneys have filed a motion for summary judgment which is scheduled for a hearing in December. Given the decision by the Texas Supreme Court, the only question remaining for the trial court to decide is whether or not ECUSA managed to create a valid trust in the Diocese's property which the Diocese did not revoke when it decided to withdraw in 2008. In Texas all trusts are deemed to be fully revocable at any time, unless the language creating the trust states otherwise.
ECUSA earlier claimed that its Dennis Canon imposed a trust upon each parish property whose title was held by Bishop Iker's corporate Diocese of Fort Worth, as well as on the Diocese's own property. But the Texas Supreme Court ruled that any Dennis Canon trust was not expressly irrevocable, and so the withdrawal of the Diocese and its associated parishes from the Episcopal Church (USA) effectively revoked any such trust.
Given that ruling, therefore, the outcome of Bishop Iker's summary judgment motion should be a foregone conclusion: there are simply no disputed facts requiring a trial. ECUSA did not ever try to impose an irrevocable trust in so many words, and its arguments that irrevocability was implied in its Dennis Canon, or alternatively in its long-standing relationships with its dioceses, will not meet the requirements of Texas' trust statute.
Once the Texas District Court grants summary judgment, the rump Diocese and ECUSA will of course be able to appeal, and could try again to raise the same grounds they urged before SCOTUS -- only now with a final judgment behind them. But the odds of succeeding with any such appeal will be long indeed, given that the U.S. Supreme Court has now rejected petitions for review in four recent cases (Connecticut, Georgia, Virginia, and Texas).
The same result should obtain in the Good Shepherd case from San Angelo, involving the Diocese of Northwest Texas. That parish effectively revoked any trust established by ECUSA's Dennis Canon when it decided to withdraw from the Diocese, and there is no evidence of any other irrevocable trust ever imposed on its property.
In front of SCOTUS, ECUSA and the Diocese of Northwest Texas tried to argue that the Texas Supreme Court's decisions, which adopted the "neutral principles" approach endorsed in the 1979 decision of Jones v. Wolf, caught them by surprise. However, it has been 35 years since Jones v. Wolf was decided, and the overwhelming majority of State courts now follow that case in deciding religious property disputes.
ECUSA's petition also mounted a frontal attack on the (5-4) Jones decision and its endorsement of the "neutral principles" approach. The national Church contended that the sanctioning of that approach, by which the courts do not simply defer to its authority, but actually dig down and examine deeds, chains of title, and governing documents and rules, interfered with its "free exercise" of its religion under the First Amendment. (As though, one notes, the holding of property and wealth could ever be a religion -- nevertheless, if there were ever any American church to profess such a religion, it would certainly be ECUSA.)
Neither argument -- the attack on Jones, or the one from surprise -- carries much weight, and neither persuaded the justices of SCOTUS (even though ECUSA had seen fit to hire a former U.S. Solicitor General, Neal Katyal, to write its petition to the Court). Intermediate Texas courts -- if not the Texas Supreme Court itself -- had been applying "neutral principles" for quite some time. Moreover, ECUSA itself admittedly tried to implement the Jones v. Wolf scheme by hurriedly enacting its Dennis Canon within just a month or so of the decision. So its claim to have been taken by surprise rang rather hollow. And in passing its Dennis Canon, it neglected to include the language which Texas law requires about irrevocability (as well as ignoring certain other points in the Jones majority opinion -- see this post for details).
While we await the decision of the Illinois Supreme Court as to whether it will agree to review the Diocese of Quincy decision, it could happen, therefore, that Texas will become the first State after South Carolina to make the Dennis Canon absolutely a dead letter there. The trial judge in South Carolina is also due to render a decision in a few weeks -- which will not turn upon the Dennis Canon as much as it will involve issues of religious corporation law.
I will, as always, provide you with commentary and analysis as soon as any of these other proceedings are decided. On a side note: this Wednesday the Justices of SCOTUS will hear oral arguments in this unusual fish tale of a case. Stay tuned.