Through a Glass Darkly: Considerations behind the Christ Church Settlement

Earlier today, both the Anglican parish of Christ Church in Savannah and the Diocese of Georgia made separate (note: not joint) statements that they had reached a settlement of all their outstanding disputes. (See also the separate message from the Rev. Marc Robertson "to our allies" at this link.) This is good news for Christ Church, and for its stalwart and beleaguered rector and vestry, as I shall explain below. But it is also good news for Episcopalians everywhere, because another unseemly (and even spiteful) dispute among divided Christians has come to an end, so that each group can now pursue their separate ministries as each believes best.

Some concerns have been raised about the effect of the settlement on the other cases now pending before the U. S. Supreme Court. The settlement need not have any effect at all, and we probably won't know in any event whether the Court will accept either of the remaining two cases until next October 1. Let me explain my thinking.

The settlement between Christ Church Anglican and the Diocese of Georgia affects only one of the three petitions that are pending before the Supreme Court. The Diocese had been due to file a response to the petition by May 25; now it will not do so, and the justices will not read the briefs that have already been filed (Christ Church's brief, and two amicus briefs filed on its behalf). But there are similar briefs, and similar amicus briefs, on file and to be filed in the other two cases -- and the issues are virtually identical: can a national church bypass state-law trust requirements to impose a trust on all of its local parish properties? And if it can, is that not a violation of the First Amendment's prohibition against the "establishment" of a church (i.e., favoring it in the law)?

The parties to the Christ Church case each had strong motives to reach a settlement at this juncture, before the Supreme Court acted on the petition for review. For the Diocese of Georgia, a decision to grant review could have spelled big trouble for the Dennis Canon as an enforcement tool -- even before the Supreme Court heard arguments and published a decision, parishes might have been encouraged to try to leave while assuming that the special treatment the Canon had received in the courts would be brought to an end. Now, with the petition dismissed, if the Court disavows the Dennis Canon as a trust creation tool, it will happen in the context of another State's laws (Connecticut's). And that would leave some wiggle room to argue that Georgia law was somehow or uniquely "different" -- at least, until the Georgia Supreme Court took another Episcopal church case.

For Christ Church, its rector and vestry, the petition to the Supreme Court was a slender straw on which to lean -- most such petitions end up being denied without comment. And if the petition had been denied, then the Diocese's lawsuit against the rector and vestry personally would have proceeded in the Georgia courts. (Actually, it would have proceeded regardless of how the Court acted on the petition. It takes a vote of just four of the nine justices to accept a case for review, and the final position of the eventual majority of five or more justices would not be known for possibly a year or more, until the Court published its decision. Thus during that year, the Diocese would still have been free to try to reduce its lawsuit against the rector and vestry of Christ Church to a judgment.)

That separate lawsuit sought to establish personal liability on the part of the rector and vestry members for the $1 million-plus which the Diocese and ECUSA claimed they had spent of the Church's funds on defending the principal lawsuit. Under the Dennis Canon trust (which purports to apply to all personal, as well as to the real, property of a parish), the parish's money could be used on legal matters only as long as Christ Church Savannah remained in the Diocese of Georgia. Once it voted to leave, the claim was that it had to keep all pledge money and other donations accumulated up to that point in trust, for the Diocese, pending the outcome of the lawsuit. But since the rector and vestry had voted to use that money for legal defense, the Diocese wanted them personally to pay it all back.

So that was a huge burden lifted from their backs. And in order to induce them to settle before the Court could act on their petition, the Diocese and Bishop Benhase reduced their other demands, as well. They agreed that the parish could form a new corporation and call itself "Christ Church Anglican"; they agreed to assume a mortgage which Christ Church had placed on its property, and in exchange for surrendering the endowment funds (which could not be used for current expenses anyway), the Diocese asked only that they turn over $33,000 of the cash that was on hand when they voted to leave. (That amount is the same as the amount they would have had to use to pay off the mortgage, if the Diocese had not agreed to assume it.) Finally, the Anglican parish retained the rights to one of their major ministries -- an annual tour they organize and staff of historic homes of Savannah, which is an important source of donations.

Phil Ashey of the American Anglican Council, who knows the parish and its members well, summed up the result achieved in these words:

This was a very difficult for Christ Church Savannah. We should note that after they filed their writ with the U.S. Supreme Court, the Episcopal Diocese of Georgia significantly lowered their demands in such a way that Christ Church Savannah now pays net zero to the diocese, walks away with the name "Christ Church Anglican," the right to cliam publically their lineage to the first Anglicans in Savannah, their tour of homes ministry in Savannah, and with no further claims on the church or any individual vestry members.

I mentioned above that the Diocese of Georgia had sought and obtained an extension of time within which to file their response to Christ Church's petition. The parties to the other cases before the Supreme Court have also each sought extensions -- the response in the Timberridge case will not be filed until May 9, and the responsive brief in the Bishop Seabury case is not due until May 18. The petitioners then have the opportunity to file replies, after which all the briefs are circulated to the Justices for them to take up at one of their Thursday conferences. However, the last conference scheduled on the Court's calendar for this term is Thursday, May 31; no conferences are scheduled in June, which is the month the justices use to finish up opinions in all of the cases argued up to that point (not the least of which are the Obamacare appeals).

If past practice is any guide, neither the Timberridge briefs nor the Bishop Seabury briefs will be put out for distribution for the May 31 conference (even if the replies are on file by then), because of the backlog of earlier cases already scheduled for that conference. What will most likely happen, then, is that the briefs will be part of the justices' summer recess packages. They will then take up all the cases briefed in May through August at their first conference of the fall (not yet officially scheduled, but probably on September 27).

We will most likely not have any idea of whether or not four (or more) justices think the questions raised by the Timberridge and Bishop Seabury petitions are worthy of their attention until the first Monday in October, when the Court officially begins its 2012-2013 Term. And that is why the parties in Christ Church settled. Neither side could afford to wait that long to find out what the Court is going to do.

[UPDATE 05/04/2012: A reader writes to correct the foregoing -- it turns out that there are case conferences scheduled for June, even though they do not yet show up on the calendar at SCOTUSblog, which was my source for writing the above. The original Case Distribution Schedule fixed at the start of the term shows that cases whose briefing is completed by June 4 would expect to be considered at the Court's last conference of the term, shown as scheduled for June 21. (By Rule 15.5, the Clerk of the Court waits at least 10 days from the filing of the respondent's brief before distributing all the briefs to the justices -- thus the petitioners have ten days to get any reply brief on file, if they want the justices to see it.) With the Timberridge response due by May 9, the ten-day period will be up by May 19, and so the briefs in that case could be distributed as early as May 22 for the June 7 conference, or perhaps May 29 for the June 14 conference. The Bishop Seabury briefs could be sent out to the justices as early as May 29 as well, but perhaps might be held until June 5, for consideration at the June 21 conference.

There is no requirement that the cases be considered at the same conference, although any justice who is interested in them could request it. The Court also sometimes decides to hold over a case brought up at one conference to the next one, and it could do that in order to consider both cases at the conferences of either June 14 or June 21. The only way to know for sure will be to check the docket sheets for each case (linked above, in the discussion about brief due dates). Once the briefs have been distributed for a specific conference, that fact will be shown on the docket sheet for that case.

The results of the justices' deliberations in conference on Thursdays are typically announced by the clerk at 10:00 a.m. the following Monday. Thus we could know whether or not the Court is going to look favorably on these petitions as early as June 11, or if not, then by June 18 or 25.]