Wednesday, October 23, 2013

ECUSA Parties Move for Rehearing in Texas Supreme Court

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.]


  1. It sounds like a shot in the dark. Does the court have to write a long opinion if they reject this motion or can it just say, "I meant what I said and I said what I meant."

  2. No, UP -- the Court can simply say: "Motion denied."

  3. This appears to be something akin to grasping a wet straws during a thunderstorm at night.

  4. It seems to be an attempt by the TEC to ensure that the Court accepts that they determine who is or isn't a loyal member of their church (kind of hard to claim to be a loyal Episcopalian when you sneer at their worship of God, don't you think?) and that the TEC determines leadership positions in their church. I believe the Court has accepted those as ecclesiastical matters in their decision but did not continue that reasoning by accepting that the loyal Diocese is the true Diocese as determined by the trial court and not the schismatics. Determining which group is The Episcopal Diocese of Fort Worth is a necessary prerequisite before addressing the neutral principles issue at the trial court. And since it was already determined that such things are ecclesiastical matters, and the Court agreed, it appears to me that the TEC wants it solidified before going to trial.

    1. In my post I did not "sneer at their worship of God," Mike Alsobrook. I questioned their attachment to money they did not collect and buildings they did not pay for. We all know that the real reason for all the Episcopal lawsuits is to intimidate any more parishes and dioceses from leaving the Church -- it has precious little to do with securing places in which revisionist Episcopalians may worship. If this were not the case, then why is it that over 95% of the lawsuits have been started by ECUSA? (And the other 5% were started by the withdrawing parties when ECUSA managed to get the banks to freeze their operating funds.)

    2. This comment has been removed by a blog administrator.

  5. It is a huge shot in the dark and grasping at very wet straws indeed. Our attorney's gave some interesting statistics on rehearings in Texas. In the pat 10 years, the SCTX, more than 1,100 opinions were issued. On rehearing, they changed less than 50. Out of that 50, only 4 opinions were changed against the prevailing party in the original judgement. The chance that TEC is successful in having the judgement reversed by the same court which issued it is about 1 in 300.

  6. Mike Alsobrook, you (like ECUSA's attorneys) are confusing the ecclesiastical with the civil. ECUSA is certainly entitled to make the ecclesiastical determination as to which group is to constitute its diocese in the area of Fort Worth, and no court could countermand that determination.

    But speaking of the civil law, ECUSA likewise has no power or ability to rewrite it, or to evade its requirements. Bishop Iker's Diocese is a Texas corporation, subject to Texas civil law in the matter of its name, how it amends its governing documents, and how it elects its directors. ECUSA has no trademark registered in the name of the "Episcopal Diocese of Fort Worth" -- that name is registered by the corporation which Bishop Iker and his trustees control. ECUSA places no limitation of any kind on the ability of one of its member dioceses to amend their governing documents. And ECUSA has no power to remove or replace directors of the diocesan corporation under Texas law.

    Yet ECUSA asks the Texas courts to give it the registered name, and to recognize its chosen trustees as the directors of Bishop Iker's corporation. This the courts have no power to do. What ECUSA should do (but will not until it has lost its case) is to form its own Texas corporation, elect the directors of it, and give it an appropriately different but distinct name, such as "the Episcopal Diocese of North Central Texas" or the "Episcopal Diocese of Tarrant County", or whatever.

  7. Sorry, Reformed Reinhardt -- I cannot publish your response to Mr. Alsobrook verbatim, because it includes ad hominem remarks which are not allowed here. Here is an edited version of what you wrote:

    "Oh, wow.

    "We've been called 'schismatics' and people who 'sneer at...worship of God' by a Tec apologist who consistently defends the scorched earthers at 815 2nd Avenue. In 1943 this Alsobrook (which must be a pen name for someone on the Executive Council) would have called the fighters in the Warsaw Ghetto 'intemperate' and 'obstinate' because they were unable to 'compromise' ...

    "Alsobrook et al. -- You are defending bullies, villains, idolaters, and blasphemers. Repent, or be accountable."

    1. I understand, ASH, and I apologize. For a few minutes I was feeling a little bit like John Wayne's character in The Shootist when he throws the newspaper reporter out of the house. I try to wait until I feel more coldly to post things. Cheers.

  8. Reformed Reinhardt ~ I am at ground zero in this whole thing. It is not an intellectual exercise for me, my family, or my friends. TEC 815 is far from here but my church is two blocks away. What will happen is of great concern at a fundamental level and isn't just a matter of tribal team dynamics and petty disagreements over dogma with regards to whether a priest can commit the unpardonable sin of being born without a penis.

    As far as the rest of your rant, well, all I can say is that your anger will eat you up inside. You should let it go.

    And if I ever have a pen name, it will be Billy Jingo.

    1. Mike Alsobrook:

      Nice try. 815 supports your Potemkin village down there in Texas (or which ever one of these "ground zero" dioceses where you imply you reside), so you cannot sit back and pretend you are disinterested in its goals. If you are representing one of these shadow groups, then you chose to pawn yourself to 815's team and there is no saving your 'integrity of independence' now.

      I'm not sure why you find it difficult to live in peace and not entangle yourself with a bunch of vainglorious embezzlers and posturing apparatchiks. But I find your comments hard to pardon or excuse since I have many lifelong friends in the Diocese of Fort Worth who have been affected by this further prolonged and unnecessary legal warfare.

      If you live within the Diocese of Fort Worth and attend one of the few 815 loyalist congregations, why don't you go your way and let Iker's Anglican group (that is aligned with the beliefs of Anglicans worldwide) go theirs?

      Why does your group seem to envy (call it as I see it) so much the realigning diocese? Don't give me all that 815 tripe about "General Convention says this..." Also, you bringing up that comment about a priest's parts shows me how incredibly held in arrested stasis your group's discussions have remained for these past 5 years.

      Pathetic. Truly pathetic.

  9. Reformed R., what Alsobrook's post tells me, is that SHE doesn't have the necessary parts to be a priest.