tag:blogger.com,1999:blog-759178030677978044.post7727310258728263708..comments2024-02-19T07:24:42.397-08:00Comments on Anglican Curmudgeon: U.S. Supreme Court Could Be Asked to Overturn California DecisionA. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.comBlogger11125tag:blogger.com,1999:blog-759178030677978044.post-16636403741555396132009-03-31T16:59:00.000-07:002009-03-31T16:59:00.000-07:00Mr. Haley, thank you for your responses. Some qui...Mr. Haley, thank you for your responses. Some quick reply thoughts/opinions.<BR/><BR/>Accommodations of free exercise involve excusing compliance with laws where the intersection of the law and religious exercise has the potential to create constitutional dilemmas. Church property cases, which often involve constitutional questions, are such an intersection.<BR/><BR/>The Congregations in Virginia argued that the canons had only "moral" force. It was never an issue for the court to decide since Judge Bellows decided that 57-9 overrode everything since 1867 and that, prior to 1867, denominations weren't allowed any kind of property interest at all.<BR/><BR/>I don't disagree with your identification of the holding of <I>Jones v. Wolf</I>. But as you know, the world of written opinions isn't divided neatly into the holding and extraneous / completely peripheral statements. The rationale(s) for the holding matters, and there is at least a strong argument that all of the statements Blackmun made referring to churches' constitutions or charters (it was several, not just one) provided the rationale that allowed the conclusion that neutral principles survives constitutional scrutiny.<BR/><BR/>In your second response, you try to carve a constitutional difference between the "deference" approach and a version of "neutral principles" that you prefer. (As you know, there are differences in the "neutral principles" approaches applied by different states.) But given that deference was always only something that applies to hierarchical churches, how is it any different to give effect to provisions like the Dennis Canon? And if a civil court can defer to a church court, why can't it defer to a church legislature?<BR/><BR/>Church property law is a uniquely tangled area. There are some analogies (secular societies like lodges or fraternities), but they're necessarily imperfect because there are no limits to the inquiry that courts can mount into a secular association, and secular associations have only the rights and privileges that the law allows. Churches are different, for better or for worse, and courts struggle to deal with that. I think the California decision was a perfectly reasonable interpretation of the statute and <I>Jones v. Wolf</I>.DavidHhttps://www.blogger.com/profile/03254619654216747524noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-4217660210528385292009-03-30T23:09:00.000-07:002009-03-30T23:09:00.000-07:00DavidH, I forgot to mention in my earlier response...DavidH, I forgot to mention in my earlier response to your comment one additional point. You state:<BR/><BR/>"If deference is constitutional, and it clearly is (at least under existing precedent), then giving effect to the Dennis Canon is certainly constitutional."<BR/><BR/>Deference to a hierarchical church's highest judicatory is constitutional <I>if</I> a court is following the "Church polity" approach of <I>Watson v. Jones</I>. However, if a State's highest court adopts the neutral principles approach of <I>Jones v. Wolf</I>, as the California Supreme Court did in its opinion, then there is no hierarchical deference. The Court instead examines property deeds, parish articles, and diocesan and national constitutions and canons <I>on a neutral basis</I>, without deferring to the national church's canons as paramount over all the other title documents and provisions just because they have been enacted by the national church.<BR/><BR/>What is ultimately objectionable about Justice Blackmun's <I>dictum</I> is that because of its circular nature ("a court will be bound to give effect [to the canonically created trust], provided it is in legally cognizable form"), it allows the nationally enacted canon to trump local deeds when a court simply concludes, based on the <I>dictum</I>, that a canon is automatically a "legally cognizable form" in which to express a trust---despite the fact that the body enacting the canon is <I>not</I> the settlor of the trust.<BR/><BR/>Mixing Justice Blackmun's <I>dictum</I>, which is addressed only to <I>hierarchical</I> churches---and hence is applicable to the <I>Watson</I>-type analysis rather than to that approved in <I>Jones</I>---into the "neutral principles" framework has been the source of all the confusion on this subject. "Neutral principles" means <B>neutral</B> principles, not deferential ones.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-18433203731571110672009-03-30T19:43:00.000-07:002009-03-30T19:43:00.000-07:00DavidH, thank you for speaking up---your comments ...DavidH, thank you for speaking up---your comments will always be welcome here.<BR/><BR/>As I'm sure you appreciate, I did not delve into the niceties of when a ruling by a State court involving the constitutionality of a State statute is considered "final" for purposes of review by the Supreme Court. The Court by and large makes up its own rules in this area, but one exception which comes to mind that it might apply here is the second one enumerated in the <I>Cox Broadcasting</I> case: where "the federal issue, finally decided by the highest Court in the State, will survive and require decision regardless of the outcome of future state court proceedings." <BR/><BR/>The California Supreme Court has, for all intents and purposes, effectively interpreted California Corporations Code section 9142 as enabling the creation of a trust on church property by the enactment of a single national canon, without any attempt at compliance with the California Statute of Frauds---it essentially defined the national church as the "trustor" for the purposes of the Statute, whereas no congregational national body can so qualify as a trustor under the language of section 9142. There is no rational reason that I can see, for purposes of the Statute of Frauds, why it is an "accommodation" to allow one type of church to bypass the SoF, but not the other. <BR/><BR/>There is also the problem that there has been no definitive ruling as to the applicability of the Dennis Canon by the Church's "highest judicatory" to which deference is mandated. Even the Church's own experts testified in Colorado (and Virginia, too? you would know better than I) that the Dennis Canon had only "moral", and not "legal", force. General Convention has no authority or mechanism by which to issue a definitive interpretation of a canon; all it can do is adopt a new canon. <BR/><BR/>The holding in <I>Jones v. Wolf</I> is clearly stated by the Court a page or two earlier than the infamous Blackmun <I>dictum</I> when the Court said: ". . . We hold that a State is constitutionally entitled to adopt neutral principles of law as a means of adjudicating a church property dispute."<BR/><BR/>That is all that <I>Jones v. Wolf</I> can be properly said to have decided. The bit about how a national church can amend its constitution or canons had nothing to do with the actual holding as just quoted, and was completely peripheral to the issues involved in the case (where no such national canon or constitution was in issue). Statements made in answer to arguments not essential to the resolution of the case are of the essence of <I>dicta</I>.<BR/><BR/>That being said, there is no question but that certain State courts (including California, now) have adopted the <I>Jones v. Wolf dictum</I> as a substantive holding of their own in subsequent cases. Since it stems from the Supreme Court, it will be up to the Supreme Court to correct it, if it is to be done.<BR/><BR/>Like you, I would consider that a very long shot---but the argument nonetheless has to be made, otherwise it will never get fixed. And if the Court does not consider the <I>Episcopal Church Cases</I> as the proper vehicle by which to do it, then we shall just have to wait for another case, and another opportunity.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-36902122490229996462009-03-30T17:51:00.000-07:002009-03-30T17:51:00.000-07:00Mr. Haley,[Aside: What's the blog equivalent of "l...Mr. Haley,<BR/><BR/>[Aside: What's the blog equivalent of "long time listener, first time caller"?]<BR/><BR/>I enjoy but sometimes disagree with your legal commentary. (I think we see more eye to eye on your social and ecclesiastical commentary.)<BR/><BR/>In my opinion, it is unlikely that there will be a petition for cert filed and a virtual impossibility that one will be granted for a simple (albeit somewhat arcane) reason: jurisdiction. The U.S. Supreme Court's jurisdiction over state courts extends only to final judgments or decrees, and as you have led the charge in proclaiming, the decision by the California Supreme Court is merely interlocutory.<BR/><BR/>Your Establishment Clause summary leaves out important considerations. To name several, there is a tension between unconstitutional establishment and permissible accommodation, and this could easily be construed as the latter. There are also constitutional limits as to how far a court can probe in a church property dispute, unlike in the case of secular associations. If deference is constitutional, and it clearly is (at least under existing precedent), then giving effect to the Dennis Canon is certainly constitutional. And it is not at all clear that Blackmun's statements (and there are several of them in <I>Jones v. Wolf</I> that point in the same direction, as you undoubtedly know) were dicta.<BR/><BR/>Thanks.DavidHhttps://www.blogger.com/profile/03254619654216747524noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-5761804761544211842009-03-30T15:14:00.000-07:002009-03-30T15:14:00.000-07:00Dear Mr. Haley,It would appear from your assessmen...Dear Mr. Haley,<BR/><BR/>It would appear from your assessment, with which I agree (based on the combination of your stated assertions and what limited knowledge I have of the law), that the California Supreme Court has, by their original <I>dicta</I> on this case validated the old saw that defines the appropriate term of address for an attorney with an IQ substantially less than 100. <BR/><BR/>You have, yet again, provided us with an even-handed and cogent argument, as we have all come to expect. You have my thanks and<BR/><BR/>my best regards,<BR/>Keith ToepferMartial Artisthttps://www.blogger.com/profile/12059467870069787735noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-42578529222716881172009-03-29T19:25:00.000-07:002009-03-29T19:25:00.000-07:00Txlawyer, thank you for that comment. The Californ...Txlawyer, thank you for that comment. The California Supreme Court's grudging performance in correcting what was an obvious error does indeed furnish, in my opinion, grounds for disqualifying those justices should they still be sitting when a new appeal comes up in about five or six years from these cases. However, based on their performance on the same-sex marriage cases, some of them might experience difficulty in being granted another term by the California voters; we shall see just how long voters' memories are in 2010 and 2012.<BR/><BR/>Father Weir, your establishment argument proves too much, I would say. If any group of people could associate together and agree that a few of them could enact measures binding on the whole group without the members knowing just what those measures said, then the Statute of Frauds and similar guarantees of integrity would be meaningless. And if the leaders of the group went to the trouble of explaining in detail just what measures they proposed to enact to lay claim to all of the other members' property, I fear they would not be very successful in recruiting members for their group.<BR/><BR/>Whether the Supreme Court will own any responsibility for the consequences of Justice Blackmun's <I>obiter dictum</I> is indeed the question. Having allowed it to be created, they ought to be conscientious enough to point out that it is not binding on anyone, least of all on the 50 State legislatures. The fact that I happen to agree with you about the chances of an appeal does not mean that I am comfortable with their abdicating the duty and respect they should owe to the law's integrity.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-25909760529264871872009-03-29T16:13:00.000-07:002009-03-29T16:13:00.000-07:00I look forward to seeing what will happen next. I ...I look forward to seeing what will happen next. I do have one thought on the establishment argument. It strikes me that the decision of a congregation to be part of ECUSA means that it accepts the reality that the Diocesan Convention or the General Convention may make decisions which will restrict rights which it would have if it were a congregational church. For the courts to uphold those restrictions would not,to my non-lawyer mind, be a violation of the anti-establishment clause. My hunch, howver, is that the Supreme Court will want to have nothing to dowith this case.Daniel Weirhttps://www.blogger.com/profile/11430381764138066595noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-766304549836877772009-03-29T15:38:00.000-07:002009-03-29T15:38:00.000-07:00I am no CA Lawyer, nor an appellate lawyer, but wo...I am no CA Lawyer, nor an appellate lawyer, but would there not also be grounds for an appeal to the USSC given that the CASC has clearly indicated that it has made up its mind in this case based on a one sided argument? Since it has made up its mind and already rendered a decision on the "merits;" giving very clear guidance to the lower court in the process; going through what amounts to a mock trial and then going back to the CASC would appear to be a futile act and a taking without due process of law.Txlawyerhttps://www.blogger.com/profile/08364822567754793808noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-42848579331326982392009-03-28T10:34:00.000-07:002009-03-28T10:34:00.000-07:00Dear A.S.,If I were St. James, I'd hire you to be ...Dear A.S.,<BR/><BR/>If I were St. James, I'd hire you to be lead counsel and issue a filing for the U.S. Supreme Court to review the California Supreme Court's "decision."<BR/><BR/>You absolutely shine in the clarity of your exposition of the relevant arguments.Truth Unites... and Divideshttps://www.blogger.com/profile/08891402278361538353noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-57890935570185700442009-03-28T08:52:00.000-07:002009-03-28T08:52:00.000-07:00Interesting ... if the US Supreme Court rules in f...Interesting ... if the US Supreme Court rules in favor of the parish, this has repercussions that can affect other denominations where churches are trying to leave the national organization for one that is a 'better fit' for its theology. IE: the Presbyterian Church (USA).Reformed Catholichttps://www.blogger.com/profile/15582319442292078422noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-74848279573141992472009-03-28T08:17:00.000-07:002009-03-28T08:17:00.000-07:00Thank you again for bringing clarity to our case. ...Thank you again for bringing clarity to our case. Give some thought to joining us at Anglican Men's Weekend in May. Info at www.anglicanmensweekend.orgKeith Bramletthttps://www.blogger.com/profile/12980722580405660470noreply@blogger.com