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March 24, 2012


Three Parishes Who Lost Their Properties Request Supreme Court Review

In a well-coordinated move, Christ Church in Savannah, Georgia and Bishop Seabury Church in Groton, Connecticut have each filed a petition for review of the decisions in their respective cases by the United States Supreme Court. The Petition filed by Christ Church Savannah is here; the Petition filed by Bishop Seabury Church is here; and the earlier Petition filed by Timberridge Presbytery of Atlanta is here. (More on the Christ Church filing is here; more on the Bishop Seabury filing is here.) They thus join Timberridge Presbytery of Atlanta in asking the high court to correct the wretched excesses wrought by ECUSA and PCUSA as a result of Justice Blackmun’s fatuous dictum in Jones v. Wolf, 443 U.S. 595 (1979).

Both of those churches have a provision in their governing documents which purports to declare and impose a trust in their favor on the individual properties of each of thousands of their member parishes.  Innocently continuing to maintain and contribute to the improvement of their church buildings, the congregations in those churches never realize that they do not really own their own property—at least, not until they start to disagree with the drift of their denominations. Then, if they seek legal advice, they all too often find out that their national church has a chokehold on their properties: if they vote to leave, they cannot remain in their buildings, or keep any donated communion vessels, altar cloths or vestments.

In his majority opinion, after holding that Georgia courts constitutionally did not have to defer to church authorities regarding the ownership of parish property, Justice Blackmun invited churches with a national superstructure to modify their governing documents. He wrote: “Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal.” (443 U.S. at 606.)

To many State courts, this was taken as a pronouncement from on high that henceforth, national churches could bypass with a single stroke, and for all the parish properties in their jurisdiction, the various requirements that a legally recognizable trust could be established only in a written instrument, signed by the property owners themselves, i.e., the several parishes. Overlooked was Justice Blackmun’s additional observation (emphasis added):

And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.

Do you see the language I have bolded? In a legal sense, when a national church, through its legislative body, simply promulgates a rule or canon imposing a nationwide trust which the parishes are not told about, it is hard to understand how such a “result” may be said to embody the intent of both parties to the transaction—namely, the church and each individual parish, acting as a settlor (creator) of the trust in favor of the national church. And yet State court after State court has held that it could imply the requisite consent to the imposition of such a trust, merely from the fact of the parish’s membership in the larger organization as a whole, in which it “recognized” or “acceded to” the authority of the greater entity.

But no other body or organization—religious or otherwise—has been granted the privilege of creating enforceable trusts in such a unilateral fashion. This is the crux of the three petitions for review: how could a simple obiter dictum (a remark made as an aside, in the course of a decision) suddenly become the law of the land, sufficient to override all state and local laws to the contrary? That is not how the law is supposed to work, and if he were still alive, one would hope that Justice Blackmun would disavow any such intent behind his gratuitous statements.

For in practical effect, that result amounts to granting special State privileges to just one type of church. And that “establishment” of one type of church over all other types, and over all other kinds of property owners as well, quite plainly is contrary to the Establishment Clause of the First Amendment, as applied to the several States through the Fourteenth Amendment of the United States Constitution.

The Supreme Court created the current mess of First Amendment law which has burgeoned in consequence of Justice Blackmun’s dictum, and it will take the Supreme Court to clean it up. As the petitions note, five State courts (Alaska, Arkansas, Missouri, Louisiana and South Carolina) and one federal Circuit Court (the Eighth) have held that churches have to follow the same property laws as everyone else to create a trust, while four others (California, Connecticut, Georgia and New York) have granted ECUSA or PCUSA the special privilege to impose a trust by simply enacting a national rule to that effect. All have claimed to be following what Justice Blackmun touted as “neutral principles of law.”

In a later post, I will go through the arguments made on behalf of the parishes. For now, we may take heart that the United States Supreme Court has three petitions in front of it, each of which raises the identical question for it to resolve.


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9 comments

Shouldnt we also add Virginia to that infamous list of state courts that have supported ECUSA?

[1] Posted by StayinAnglican on 3-24-2012 at 07:14 PM · [top]

This could really blow a hole in TEC’s ship…if they lose, the stakes are huge…much bigger than for the plaintiffs that have already given up their buildings. If TEC loses, watch for the floodgates to open as many more churches leave once the Episcopal bishops have no more legal stick with which to beat them.

I pray that more churches will join this suit, raising the number of churches involved, and I hope that the Supreme Court will look at this issue and give a just ruling. It is unfair that some organizational body can create some sort of ‘trust’ without the approval or even knowledge of the people who are at the other end of this so called ‘trust,’ and this case is perfectly relevant for many cases and disputes to come.

That aside, if the heresies of the TEC bishops are so important that they are willing to burn in hell for them, so be it. God gave each individual that choice. But they should not be allowed to hold faithful Christians hostage like this…to hold them under duress and make them labor under a difficult choice of how to best serve Christ faithfully: should they leave their building, or stay there under Episcopal overlordship and wait for something to rescue them from their present dilemma?

However, a SCOTUS ruling would free them from the burden of such a choice.

[2] Posted by All-Is-True on 3-24-2012 at 07:45 PM · [top]

StayinAnglican, no—Virginia does not belong on the list of ECUSA supporters, because (a) its highest court has decided only that “neutral principles” should be followed, and has not ruled on the applicability or effectiveness of the Dennis Canon specifically; and (b) the lower (Circuit) Court actually decided that the Dennis Canon could not create any trust under Virginia law. While that is not a definitive ruling, since it does not come from the Virginia Supreme Court, it is based on other Virginia Supreme Court holdings, and I do not know of any Virginia attorneys who think Judge Bellows got it wrong.

Thus, if anything, Virginia should be counted as an anti-Dennis-Canon state. However, that would be misleading as well, given that Judge Bellows reached the same result by applying Virginia’s doctrine of implied religious trusts.

[3] Posted by A. S. Haley on 3-24-2012 at 09:32 PM · [top]

I would be interested in hearing what the odds are of SCOTUS actually hearing this case.

[4] Posted by Pressing On on 3-25-2012 at 12:15 PM · [top]

Pressing On, FWIW, here is what I wrote in answer to a similar question at my Curmudgeon site:

“[C]ertainly three petitions are a better way to get the Court’s attention than just one. They each stress how diverse the case law is in this area as a result of the dictum in Jones v. Wolf.

“That being said, the Supreme Court has not taken a church property case for decision in the last 33 years, though a number have been offered. The odds for any one case are quite small, about 1 in 5000, so even 3/5000 is still a small number.

“What I would do is watch for the writeup of the cases to appear on the SCOTUS blog, to which I link at the right—there should be one after all the briefs are filed, in 60-90 days or so. Those guys are all recent clerks for the Court, and have the closest track on what cases are likely to be granted cert.

“And then, of course, what I would also do is pray.”

[5] Posted by A. S. Haley on 3-25-2012 at 12:53 PM · [top]

This does become more interesting when one considers that there are 3 filings.

But, I’m not sure that there needs to be one, uniform judicial policy on this, throughout the nation.

I wonder what a Supreme Court ruling in favor of the 3 departing congregations would do to the stability of the Diocese of SC. A court there ruled that the Dennis Canon doesn’t apply in that state, and Bp. Lawrence gave quit-claim deeds to his parishes.

I also wonder when the money is going to run out. While the fight is important, this can’t be cheap.

[6] Posted by Ralph on 3-25-2012 at 07:28 PM · [top]

It’s safe to say that SCOTUS is otherwise preoccupied at the moment so don’t know when they will actually get around to reviewing the request.

[7] Posted by flaanglican on 3-27-2012 at 10:33 AM · [top]

Right, flaanglican - ECUSA and their dioceses have thirty days in which to file a response, and then the Court Clerk distributes the briefs to the Justices for their consideration within ten days after that. They could take the three cases up in a conference in May (they have conferences every Thursday in May). But if they do not, the cases will roll over to the next term, and whether or not the Court will hear them would not be announced until the first Monday in October. It takes a vote of at least four Justices to accept a petition for review.

[8] Posted by A. S. Haley on 3-27-2012 at 08:34 PM · [top]

That and the fact the justices are preoccupied with hearings on ObamaCare.

[9] Posted by flaanglican on 3-27-2012 at 09:50 PM · [top]

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