Saturday, February 10, 2018

Diocese of South Carolina Asks US Supreme Court for Review [UPDATED]

Bishop Mark Lawrence and his Diocese of South Carolina, along with a number of member parishes, having lost a confusing, non-definitive and divided decision in that State's Supreme Court, have filed a petition for writ of certiorari (review) in the United States Supreme Court. The petition (fifty pages, downloadable from this link) asks the Court to bring harmony to the multiple lower court decisions that diverge over the meaning of "neutral principles of law" as used by the Court in its seminal case of Jones v. Wolf, 445 U.S. 595 (1979).

As the petition lays out with masterful clarity, both state and federal courts apply differing standards of "neutral principles" in approaching the resolution of disputes over the ownership of church property:
Nearly 40 years after this Court last addressed the neutral-principles approach in Jones, the courts are deeply divided about what “neutral” means. For many courts, “neutral” means just that—“neutral”: the high courts of seven States, plus the Eighth Circuit and three intermediate state courts, follow Jones’ clear guidance and resolve property disputes between religious organizations by applying well-established state trust and property law. These jurisdictions hold that a disassociating local church’s property is held in trust for the national church only if the alleged trust satisfies ordinary state law requirements for the creation of trusts. Courts and commentators call this the “strict approach” to Jones, because it blinds judges to the religious nature of the parties to the dispute, requiring them to apply the same ordinary state law that would apply to property disputes between any other parties.
In stark contrast to these decisions are the cases where the lower courts found that Jones mandated that they defer to whatever kind of "trust" was expressed in a national church's governing documents, regardless of whether that church had complied with state-law requirements applicable to the formation of trusts in real property:
For other courts, however, the neutral-principles approach “is not really ‘neutral’ after all.” App.61a (Kittredge, J., concurring in part and dissenting in part). The high courts of eight States, including the Supreme Court of South Carolina here, believe Jones requires courts to recognize a trust in favor of a national church even if the national church has not complied with “the specific legal requirements in each jurisdiction where the church property is located.” App.28a n.11 (lead opinion of Pleicones, A.J.). These courts believe that requiring a national church to comply with ordinary state law “would impose a constitutionally impermissible burden on the National Church and violate the First Amendment.” App.42a (Hearn, J., concurring). Liberating national churches from the constraints of state law, these courts place a dispositive thumb on the scale in favor of national church denominations. This is called the “hybrid approach” to Jones, because it eschews application of ordinary state law in favor of deference to the national church’s unilateral rules and canons.
In church property cases involving parishes and dioceses within the Episcopal Church of the United States (ECUSA). this discord is due to the differing receptions given to that body's so-called "Dennis Canon":
The Supreme Court of South Carolina’s highly fractured decision below typifies the courts’ yawning division over the neutral-principles approach. Petitioners have disassociated from the national Episcopal Church. The parish properties at issue here are titled in the names of Petitioners, not the national church. Under ordinary principles of South Carolina trust law, in the strong words of Justice Kittredge below, “the suggestion that any of the thirty-six local churches created a trust in favor of the national church would be laughable.” App.61a. Nevertheless, the court below, in a 3-2 decision, held that a trust could exist in favor of Respondents because the national church has promulgated the “Dennis Canon,” a unilateral ecclesiastical declaration that all parishes affiliated with the Episcopal Church hold their property in trust for the national church. Although neither the Dennis Canon nor any parish’s alleged accession to that Canon created a legally cognizable trust under South Carolina law, the court below thought Jones and the First Amendment required it to recognize a trust in favor of the national church.
Jones is clear: Because the neutral-principles approach demands application of ordinary state law, courts may give effect to property deeds or to trusts recited in the constitution of a general church only if the parties’ intent “is embodied in some legally cognizable form.” 443 U.S. at 606. Courts adopting the hybrid approach ignore Jones’ unambiguous guidance because they believe that requiring national churches to comply with ordinary state trust law would violate the Free Exercise Clause. E.g., App.42a (Hearn, J.). But Jones squarely rejected that argument, holding that “[t]he neutral-principles approach cannot be said to ‘inhibit’ the free exercise of religion, any more than do other neutral provisions of state law governing the manner in which churches own property, hire employees, or purchase goods.” 443 U.S. at 606.
The petition then addresses the Court directly, and explains why it should grant review:
Petitioners are here for one simple reason: they are churches. If this dispute arose between two secular organizations, or between a religious and a secular organization, the party standing in Petitioners’ shoes would have prevailed. Thus, far from yielding to the First Amendment, the decision below actually violates it. The Religion Clauses command a “principle of neutrality” whereby “the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the Free Exercise Clause.” McCreary Cty. v. American Civil Liberties Union of Ky., 545 U.S. 844, 875-76 (2005). The hybrid approach disregards this vital bulwark, favoring one religious organization over another by allowing a national church to disregard the requirements of state trust law at the expense of a disassociated congregation’s claim to property. As two leading commentators recently emphasized, the strict approach to Jones is “the only approach consistent with the free exercise and nonentanglement principles of the Religion Clauses.” Michael W. McConnell & Luke W. Goodrich, On Resolving Church Property Disputes, 58 ARIZ. L. REV. 307, 311 (2016). 
The persistent confusion over the meaning of Jones and the neutral-principles approach has resulted in polar-opposite outcomes in materially indistinguishable cases, creating enormous -- and enormously expensive -- uncertainty for this country’s religious institutions. Case outcomes turn on courts’ differing interpretations of Jones and the First Amendment, not on how the parties have arranged their affairs under state law. This case could have been easily resolved under ordinary state trust and property law. Instead, the parties and the property have been mired in litigation since 2013. Several years and millions of dollars later, Petitioners seek this Court’s review.
The introduction to the Petition, from which I have been quoting, thus gives a good overview of the problems of interpretation that have brought Bishop Lawrence and his parishes to the doorstep of our country's highest court.  In the section entitled "Statement of the Case" (beginning at page 17 of the .pdf file), the petitioners lay out the historical and legal background that underlies their particular situation, e.g., as in these paragraphs:
Petitioners are 29 parishes, the Protestant Episcopal Church in the Diocese of South Carolina (“the Diocese”), and the Trustees of the Protestant Episcopal Church in South Carolina (“the Trustees Corporation”). This case involves a dispute over property where Petitioners have long worshiped. Some of the parishes involved in this case are among the oldest in the nation and predate both the American Revolution and the formation, in 1789, of the Protestant Episcopal Church in the United States of America (“the national Episcopal Church”). App.151a-52a. For example, the Parish of Saint Philip dates to 1680, while the parishes of Christ Church and St. Helena date respectively to 1706 and 1712. App.151a. The parishes’ graveyards provide the resting place for signers of the Declaration of Independence and the United States Constitution, Justices of the Supreme Court of the United States, a Vice President of the United States, and heroes of the Revolutionary War. 
Everyone agrees that the parish property is “titled and held in [the] names” of Petitioners, and that “there is nothing in the deeds of their real property referencing any trust in favor of [the national Episcopal Church].” App.171a; see also App.75a-76a, 80a. Moreover, “[t]he undisputed evidence is that all the real and personal property at issue was purchased, constructed, maintained and possessed exclusively by the Plaintiffs.” App.175a. See also App.105a, 154a. The national Episcopal Church nevertheless claims Petitioners’ property and argues that Petitioners hold the parish property in trust for the national church. This claim relies primarily on the fact that in 1979, the national church pronounced the “Dennis Canon” . . .  
The national Episcopal Church “chose not to place its Dennis Canon in its Constitution,” perhaps because “[t]o do so would require that the proposed amendment be sent to all the Dioceses first to get their conventions to vote on the proposed amendment.” App.173a. “Rather, [the national Episcopal Church] chose to pass it as a canon, which required a single vote at one Convention [of the national Episcopal Church].” Id. “To make matters more confusing, the denomination’s official commentary on the Dennis Canon suggested that it might have no legal force.” McConnell, 58 ARIZ. L. REV. at 320.
The Statement of the Case concludes with a section that summarizes the five fractured opinions of the individual justices below, as discussed in this earlier post. Then comes the main body of the Petition, called "Reasons for Granting the Petition," which argues that the divisions among the South Carolina justices are but a reflection of the divisions among the various state and federal courts that have addressed church property disputes in the forty years since Jones:
Once a local congregation legally disassociates from the national church over a doctrinal matter, it by definition no longer adheres completely to the national church’s fundamental tenets. The law cannot then place a thumb on the scale in favor of a national church in its property dispute with a disassociating congregation any more than it can enact a presumption that the national Episcopal Church shall prevail in litigation against the Roman Catholic Church or Ford Motor Company. 
The division over the meaning of Jones is deep and intractable. Even the cavernous divide among states understates the extent of disagreement over Jones, for many of the state court decisions feature impassioned dissents contending that the majority has misapplied Jones. This massive inconsistency in the results of materially indistinguishable cases has visited enormous and expensive uncertainty upon this country’s religious institutions. Worse still, by unmooring courts from the predictability of established state law, the hybrid approach “gives judges tremendous flexibility to reach almost any result—making the outcome unpredictable and largely dependent upon the predilections of the judges.” McConnell, 58 ARIZ. L. REV. at 339 (quotation marks and brackets omitted). The need for clarity is more pressing now than ever, for this “time of intense theological ferment and division” has led to some of “the most widespread schisms in our nation’s history.” Id. at 321. 
Four decades after Jones, the Nation’s lower courts and religious institutions are in urgent need of this Court’s guidance.
In the more detailed sections that follow, the Petition demonstrates how the South Carolina majority's reading of Jones (a) misreads that decision; (b) conflicts with the Supreme Court's other decisions under the Establishment and Free Exercise clauses of the First Amendment; and (c) undermines the stability of real property markets, as well as "the rule of law." Be sure to read the whole thing -- you will gain an understanding of the confused state of the law in this area, and of the crying need for the Supreme Court to make clear, once and for all, what it meant by the phrase it so stressed in Jones, namely, "neutral principles of law."

The Petition is also remarkable for what it does not argue. There is barely a mention, for example, of the disgraceful and disqualifying conduct of Associate Justice Kaye Hearn below, and no argument whatsoever that the South Carolina court's refusal to appoint a fifth justice in her place (resulting in the denial of Bishop Lawrence's petition for rehearing due to an evenly divided court) constituted a denial of due process. (The stark facts, however, are stated for all to read on pages 28-29 of the .pdf file [pages 17-18 of the Petition itself].) These are the kinds of decisions that litigators in the nation's highest court have to make in presenting their arguments to it. One goes with the strongest arguments first, and sometimes adding more arguments will just undermine the strength of the earlier ones.

The Episcopal Church in South Carolina, which will receive the windfall of millions of dollars' worth of historic church properties if the Court declines to review the case, now has thirty days in which to file its response to the petition. (It can also ask for a thirty-day extension.) After that, Bishop Lawrence's attorneys may file a reply brief, and then the case will be placed on the court's Friday calendar for disposition. It will require the vote of at least four of the nine Supreme Court justices to grant review.

We shall know better after all the briefs are filed, but look for an announcement some Monday morning in May, after 10:00 am EST. Please keep all the parties in South Carolina in your prayers.

[UPDATE 02/27/2018: The Supreme Court has ordered the respondents -- ECUSA and ECSC -- to file a brief in response to the petition by March 29. This means that the Court did not want to act on the petition before hearing from both sides. (Ordinarily, a respondent in the Supreme Court has the option of waiving the filing of a response to a petition for certiorari [review]. But not this time.)

With respondents' brief due on March 29, any reply brief from the petitioners will be filed by April 9, and the Justices could consider the petition at one of their Friday conferences on April 20 or 27. If the respondents ask for an extension of time, this sequence will stretch out by thirty days or more.]

Monday, February 5, 2018

Last Words

[Note: I interrupt my ongoing explorations into today's Christian origins to record my thoughts about other works encountered along the way.]

Jacques Monod was a brilliant microbiologist, one who was present at the very beginning of the explorations that led to the discovery of the role that genes play in the development and evolution of life. Along with his coworkers, he was awarded the Nobel Prize in 1965 for physiology / medicine on account of their elaboration of the mechanisms by which genes are either expressed or repressed in the course of an organism's development.

As detailed in this biography, he was a fierce partisan during the years of the Vichy government's betrayal of France, and played a leading role in the forces of the Resistance movement -- at considerable risk to his own life.

The same book chronicles his lifelong friendship with another Resistance supporter, the Algerian-born Albert Camus, who clandestinely inspired his countrymen through his uplifting editorials published, despite numerous Nazi attempts at suppression, in an underground journal of the French resistance during World War II, called Combat.

Camus and Monod shared in common a philosophy of resistance during a period of of unparalleled oppression. A great number of their colleagues suffered torture and death at the hands of the Nazis, who practiced extreme means of repression based largely upon arbitrary and anonymous sources of information. The Nazis would presume that anyone caught in a compromised situation was deserving of punishment -- mostly summary execution. That stance in return produced a fatalism in the forces of the Resistance that led them to take extreme risks, despite the individual costs to their lives.

Having lived through these arbitrary horrors of invasion, resistance and retaliation at first hand, Monod and Camus came to espouse a philosophy which derived from the existentialism of Jean-Paul Sartre, but which added an element of heroic resistance to the indifferent forces of evil which the latter's philosophy neither explained nor judged. Camus expressed it in this fashion in an editorial he wrote for the underground newspaper Combat on the eve of the day that the Germans surrendered Paris to the invading Allied forces:
Nothing is given to mankind, and what little men can conquer must be paid for with unjust deaths. But man's grandeur lies elsewhere, in his decision to rise above his condition. And if his condition is unjust, he has only one way to overcome it, which is to be just himself. Our truth tonight [August 24, 1944], the truth that hovers in the August sky, is in fact man's consolation. What gives our heart peace, as it gave peace to our dead comrades, is that we can say before the impending victory, without scolding and without pressing any claim of our own, 'We did what had to be done.'
Despite their agreed condemnation of the evils generated by Hitler's Nazism, neither Camus nor Monod had any recourse to Christianity in the responses they undertook. For both of them, life was the product of chance forces that happened to result in reproductive success, without any need for the intervention of a divine mover. As the random outcome of an indeterminate beginning, life had no inherent claim to happiness -- still less any immunity against the forces of evil, which were just as random. Life came by chance alone into the universe in which it found itself, and it was likewise all alone in dealing with whatever it encountered.

Monod's signature work, called (in English) Chance and Necessity, summed up his philosophy: life began on earth by random assembly, over time, of its essential components. Once those were in place, life progressed by the preordained laws of physics, i.e., by necessity. In the face of such an inhuman origin, humans themselves had no claim to any special status. The best they could do was to live out their allotted times in vigorous affirmance of the good that they could manage to discover and enjoy, and in equally determined resistance to the evil that inevitably they would encounter along the way.

Life, in short, for both Camus and Monod, was a one-shot experience, which in the end amounted to nothing other than what the individual could manage to salvage from it through heroic acts of resistance to evil, and support and affirmation of anything that was good. If the situation called for self-sacrifice, so be it, but there was no hope of any reward beyond; to believe that was to subscribe to fairy tales.

There is thus an inherent self-contradiction in the existentialist philosophy as lived by both Camus and Sartre. Noble, self-sacrificing deeds are to be praised and admired, but only by one's fellow humans, who will soon pass out of existence -- along with any human memory of those noble deeds. So why admire them, if in the end they will count for nothing? For Camus and (probably also, although not expressly) for Monod, this was the great paradox of existence: life counted for nothing, except what the individual made of it -- and even then, no matter what the individual did, it still came to nothing.

As Camus said of a character in his novel The Stranger, Meursault laid his "heart open to the benign indifference of the universe." Likewise, the eternally tormented Sisyphus (in The Myth of Sisyphus) was one to whom "this universe without a master seems . . . neither sterile nor futile."  And for Monod, despite our existence in a world enlightened by the discoveries of science, there is no outside source of meanings or values: "[man] alone creates, determines and shapes them."

All his professional life, Jacques Monod worked at the Pasteur Institute in Paris, and his great achievements reflected back on that noble institution, founded by the great Louis Pasteur himself. Toward the end of his life, he assumed its directorship, and strove to advance the goals he believed that Pasteur embodied, as he laid them out in a speech celebrating Pasteur's 150th birthday in 1973:
Where does genius come from? Often we are contented with attributing it to a unique, exceptional, and mysterious resource of mind. On the contrary, in the case of Pasteur, we see clearly that the power of his genius comes from multiple sources . . . . He was ambitious and dominating and would be satisfied only with real and complete victories.  He was rigorous and demanding toward himself. At the same time he would spare no efforts to be severe and disciplined.
Monod could have applied these same words to some of his colleagues in the French Resistance. They definitely defined his outlook on life, and led to his lifelong friendship with Camus.

What is missing in all this description of the lives of Monod and Camus is any element of the Catholic religion, which was omnipresent in France before the Second World War, but whose respect and prestige suffered greatly as a result of the tribulations to which the French were subjected during the Nazi occupation and collaboration, thanks to the betrayal of the country by its most respected leaders. Both Camus and Monod were staunchly agnostic, if not atheist, and their wartime experiences with Nazi brutality served only to strengthen their resistance to religion of any kind.  For Monod, the scientist who believed that all life resulted from chance, God was an entirely unnecessary hypothesis.

The result was that both Camus and Monod developed their philosophies as limited to what man could accomplish alone. God was neither a help nor a comfort in all the afflictions they went through in the 1940s. Rather, He was a useless fabrication handed down by earlier generations -- a fantasy in which no rational person of their age could put any trust. Indeed, the very brutality of the war itself was evidence against the existence of a benign Creator God, who could allow such bestiality to occur.

Albert Camus died in an unfortunate automobile accident on his way back to Paris in January 1960. No one witnessed his death, which was instantaneous. But Jacques Monod, following the death of his wife and lifelong love Odette from cancer in 1972, died himself in a hospital in Cannes in May 1976, with his brother and cardiologist in attendance. The author of Brave Genius interviewed those to whom Monod's brother related his last words, and reported:
Philo [Monod's brother] heard his brother say very faintly between breaths, "Odette . . . Pasteur . . ." Then, after a pause, Monod said "Je cherche à comprendre" ("I am trying to understand"), and never regained consciousness.
I have looked up a number of accounts of Monod's death on the Internet, of which this one is typical. Significantly, while all recount his statement "I am trying to understand", none of the online accounts mentions his addressing two of the most important individuals in his life just before he uttered those last words. Considered in context, they amount to a touching description of one who was taken by pleasant surprise to learn just what one encounters after death.

Odette and Jacques Monod married in 1938; she bore him two sons, and they were married for 34 years. She was Jewish, and he had to hide her from the Germans under a disguised identity; while away on Resistance business, he wrote to her almost every day.

Louis Pasteur, on the other hand, had died in 1895, fifteen years before Monod was born. Yet Monod's lifelong association with the Pasteur Institute, and his succession to its directorship, is a sufficient basis upon which to surmise that he closely identified with that archetypal figure of French science.

It is thus tellingly significant that as the proudly agnostic Monod drew his last breaths, he appeared to be comforted (indeed, welcomed?) by two of the figures most important to him, who had preceded him in death.

The book Brave Genius was a stimulating account of two intertwined lives that rose above the desultory circumstances into which they were born. I was thus pained to read how Monod and Camus each prided himself on his reliance on nothing more substantial than puny, solitary man, and did his level best to make do with that restricted philosophy. Notwithstanding their own imposed self-handicap, they led heroic lives, in which each was prepared to sacrifice all so that the Resistance to which they belonged could survive to fight the evil forces that occupied their country.

I am hopeful that the account of Monod's last moments evidences a greater reality than either of them ever suspected or imagined while alive, but to which instinctively they gave their unknowing best here on earth.