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.]


  1. We are the Diocese of South Carolina, affiliated with the Anglican Church of North America. "The Episcopal Church of (or in) South Carolina" is the faux diocese that is trying to steal our property.

  2. Right you are, James -- sorry for the confusion.

  3. While the Episcopal organization keeps on claiming that they are for something they call “justice”, they won’t know what it really is until the SCOTUS sets them right (I hope).

  4. How likely is it, based on past experience, that SCOTUS will intervene in what is from most people's view point (NOT mine!) a minor and obscure issue?

  5. Well, if there was ever a case that is deserving of review, Tregonsee, this is that case. As the petition explains at length, the courts below have greatly confused Jones v. Wolf in the forty years since they handed it down. It is high time they said just what "neutral principles" are and are not.

    That said, of course, the chances just on statistics alone are very small. (What, for example, will Justice Gorsuch do? He is a church-going Episcopalian from Colorado, and he has announced that he will read every petition for certiorari himself, rather than rely on the pool of law clerks to screen them for him -- as all the other justices do. Maybe, just maybe, his own conscience will prod him to urge his colleagues to accept the case and straighten out this travesty.)


  6. Justice Gorsuch, I hope, will examine this writ for the legal issues raised and realize there is a serious question here deserving of an answer. His background does not paint the picture of a man who would rule only because of his own connections, unlike the SC judge. Let us pray.

  7. Mr. Haley, this is a very confusing issue for non-lawyers to understand or pray about in an informed manner. Is there a possibility that you could write a prayer for each of us to repeat individually, so that we can touch all the necessary bases? I know that such a prayer would be very helpful to me.

  8. Topper, I pray as follows: "Lord, thou knowest the true meaning of justice, which is the essence of thy plans for us. Please guide the hearts and minds of all those who are caught up with the legal controversy in South Carolina between the Episcopal Church, its local followers, and those who felt compelled to separate from them, so that each may come to realize, whatever secular courts may decide, that true justice resides only with thee, and is not final until thou hast made thy eternal reckoning. Help them, each and every one, to see now clearly the justice which thou will require of all of them in the end, that they may do thy will here on earth while they yet have a chance. In Jesus's name we pray, Amen."

  9. One of Gorsuch's mantras is that the legally right thing to do is not always the thing you want to do. I could see him and Kennedy supporting cert, Kennedy because he likes to have the court opine as much as possible. Clarence Thomas at one point was an Episcopalian but returned to Catholicism, probably because he wanted no part with theological liberals even in a congregation that was itself theologically conservative. How such a history makes one feel about those who cling to buildings in the face of religious chanfe is hard to say. On the other hand earlier Thomas studied to be a Catholic priest so he probably has thought more on church related issues than some of his colleges.

    I expect cert to be granted, but have seen it declined in other cases I expected to be granted.

  10. Two useful but important administrative-type reforms this country could use have occurred to this retired attorney (one reform specifically would help this federal-constitution-related case): First, the U.S. Supreme Court should administratively determine that with respect to any case under consideration by the Court in which there are clearly federal constitutional matters that involve a state or states of the United States, when the Chief Justice has, after due consideration, determined the final opinion of the court in the case would be decided by a majority of only five justices and four justices in a minority with regard to the constitutional matters under review, the Chief Justice would be required to inform the Court that the case would be dismissed from consideration by the Court for the remainder of the current term of the Court. Five-to-Four Supreme Court decisions dealing with federal constitutional law are likely in the long run to be regrettable ones from the standpoint of jurisprudence, and time would be on the side of a better result for the country. Secondly, with the clear divisions in the country apparently unlikely to diminish to any extend for the foreseeable future, the Senate needs to reduce its 60-vote majority with regard to cloture to 55 votes, in order to get some action from both major parties on necessary matters as a result of a few Senators who will cross party lines for the good of the country rather than maintain presently-existing poor outcomes for the foreseeable future.

  11. I'm not a lawyer, but it seems like a lawsuit against the State of South Carolina in federal court would have a better chance. After all, lots of people over a period of several years (generations, in fact) were operating in good faith within what they were told was the law in this state, and now the State SCOTUS is in effect telling them, "Oh, BTW, that was never the law."

  12. I wonder if this required response brief might be modestly encouraging for the historic Diocese. Many certiori filings are rejected without comment, as I understand it.

    1. Yes, Katherine -- it's a little bit as though the Court had said: "This seems incredible -- let's hear from the other side before we make any decision. There are always two sides to any story, and we might as well hear what theirs is. That way we will be fully informed, and able to determine what's appropriate in the circumstances."

  13. Mr. Haley,
    Can the SC Supreme Court decision be enforced against the Diocese of SC before the US Supreme Court takes a decision re: cert.? I read that the ECSC is taking steps to reclaim the disputed properties.

  14. When so much property is at stake, Joe Easley, most litigants would have the grace to wait to see if the U.S. Supreme Court will grant review (certiorari) before trying to enforce the judgment below. That said, there is no procedural barrier to ECUSA's trying to implement the "judgment" by the South Carolina Supreme Court before SCOTUS acts on the petition. They just have no hope of achieving any definitive transfers of property before then, because the implementing of the "judgment" will require further proceedings in the lower SC court, which will take some time. The "steps" to which you refer are motions filed by ECUSA and its ECSC rump group to amend their pleadings (and in the latter case, to intervene) in the federal court trademark lawsuit. Those maneuvers will not be ruled on by the federal court for quite some time yet -- probably not until we find out whether SCOTUS will review the SC Supreme Court's quasi-judgment. (I use quotes, and the term "quasi", to refer to the latter Court's abdication of its responsibility in this matter to deliver a properly reasoned, and factually and legally supported, final judgment in the case. This they did not do -- to their everlasting shame and disgrace.)

  15. Further thoughts: the motions filed in the federal court trademark lawsuit appear to signal that ECUSA and its ECSC have given up trying to obtain any relief from the SC state court. They are asking the federal court to take over and decide all the Dennis Canon trust issues that remain to be resolved in the state court proceedings. There is nothing that compels the federal court to do so; what is unusual is that the motions make no mention of any intention by ECUSA and ECSC to go back to state court. I shall (sigh) have to analyze their pleadings in a subsequent post, but the proof will come only after Bishop Lawrence and his attorneys have responded to the motions, and we see what the federal court does with this attempt to dump the entire mess into its lap.