SCOTUS Denies Review in Two Church Property Cases
The list of orders from their June 14 conference is now online, and it shows that less than four of the Supreme Court’s Justices were interested in reviewing the two petitions from parishes who lost their properties in the courts below. It takes a vote of at least four Justices to grant review, and the two cases (the Timberridge case from Georgia, No. 11-1101, and the Bishop Seabury case from Connecticut, No. 11-1139) are shown as having review denied. (The latter case appears on p. 6 of the orders list, because it also required a ruling on a pending motion to allow the amicus brief by St. James Newport Beach, et al., to be filed.)
The Court granted review in only one case today, a result which surprised the professional observers at SCOTUSblog, who pointed out that the Court has granted review in only 19 cases thus far—not enough to fill its argument slots in October to December of this year. (The case in which review was granted was one of the thousands of in forma pauperis petitions which the Court receives every year.) The Court also issued a number of opinions in pending cases today, which showed that (as to these cases toward the end of the current term) it is very divided, although not always on ideological lines. (In one case, Justice Scalia joined the “liberal” justices Kagan, Ginsburg and Sotomayor in dissent.)
The result today for church property law is regrettable, because it means that the morass of State court decisions interpreting Jones v. Wolf, 443 U.S. 595 (1979) will remain unresolved, with some States allowing certain churches to bypass their legal requirements for the creation of a trust, and with other States requiring that all churches comply with their local trust laws. Thus the outcome of any church-parish dispute over property will continue to turn upon the State in which it arises: if the parish is in California, Connecticut, Georgia, Massachusetts, New Jersey, New York or Ohio, it will most likely lose its property; but if it is in Alaska, Arkansas, Louisiana, Missouri, New Hampshire or South Carolina, it will most likely keep its property. And if it is in Kentucky or Pennsylvania or Virginia, then the courts could hold that any national trust canon is ineffective to create a trust, but still find that a trust existed anyway.
Fortunately, the denial of review will have little or no bearing on the three pending property lawsuits involving entire dioceses which left the Church (Quincy, Fort Worth and San Joaquin). That is because the Church’s Dennis Canon has no application to real or personal property owned by dioceses. Furthermore, the fact that the Supreme Court declines to review a lower court’s decision is not a judgment on the merits—it does not mean that the Court views that case as having been correctly decided. Its net effect, therefore, will be to leave the various States’ results exactly as they are.
The interesting fact is that we have never before had a Supreme Court on which there were no members of Protestant denominations. The current Court is made up of six Roman Catholics (Chief Justice Roberts and Justices Kennedy, Scalia, Thomas, Alito and Sotomayor) and three Jews (Ginsburg, Breyer and Kagan). Whether that is what determined that there were not enough justices interested in the property disputes of Protestant churches is something we shall probably never know. Also, none of the justices who served on the Court in 1979, when they issued the Jones decision, is still on the bench today, so any institutional history that attended that case has been lost.
The interpretation of Jones in the courts will remain unsettled, alas, at least until we have a different Court (and even then, there are no guarantees). Writing before the results of last Thursday’s conference were announced, this blogging law professor, I think, got the question just about right:
... The problem arises from the Court’s muddled resolution of the role civil courts may play in determining disputes concerning ownership of church property. In Watson v. Jones, 80 US (13 Wall.) 679 (1871), the Court ruled that civil courts must first determine the type of church involved—basically congregational (under control of the immediate congregation) or hierarchical (individual churches controlled by an umbrella church). With respect to the latter type, civil courts were to defer to the internal rules of the umbrella church. A bit over a century later, the Court, in Jones v. Wolf, 443 US 595 (1979), ruled that civil courts must eschew any inquiry into “ecclesiastical polity or doctrine,” but must be “completely secular” and rely “exclusively on objective, well-established concepts of trust and property law.” But Jones did not overrule Watson, and the result is that five state supreme courts and one federal circuit hold that internal church rules are irrelevant if they conflict with secular trust and property law, but four state supreme courts hold that internal church rules govern even if they do not comport with secular trust or property law.
This problem arises in the case of hierarchical churches, such as the Episcopal Church and the Presbyterian Church. The problem doesn’t arise in the case of the Roman Catholic Church because deeds to parish property are almost universally in the name of the relevant Catholic Bishop. That’s not so with Episcopalians and Presbyterians, where deeds to local church property are often in the name of the local church. Enter the so-called “Dennis Canon,” in the case of the Episcopal Church. The umbrella Episcopal Church amended its constitution (the Canons) to provide that all local church property is held in trust for the national church. Of course, it is an axiomatic principle of trust law that an express trust can be created only by the settlor, not by unilateral action of the beneficiary. Yet, the Dennis Canon purports to create a trust by the action of the beneficiary alone. This gambit has been approved by those state courts that read Jones to mean that civil courts may defer to internal church rules, even when they are at odds with secular principles of trust law. On the other side are those courts that hold that secular principles of trust law control when internal church rules violate those principles.
Given the turmoil in the Episcopal Church there is certain to be even more of these disputes. Guidance is needed. I’m not agnostic on this issue—I think that secular principles of trust and property law ought to control, regardless of what the internal church rules may be. There are at least two reasons for this: 1) Civil courts are obliged to apply secular law to resolve ecclesiastical property disputes; they can’t do this if they look to church rules that the church itself proclaims; 2) Permitting churches to declare themselves to be the beneficiaries, in trust, of property owned by others, allows churches to exercise power that no secular entity could ever exercise. In short, by a modest extension of the rationale of Larkin v. Grendel’s Den, 459 US 116 (1982), governmental blessing of this extraordinary power amounts to a forbidden establishment of religion.
The conclusion he reaches is undoubtedly correct, but the Supreme Court apparently is not yet ready to go there. Churches and their parishes will continue to suffer from the inability of the courts to deal with religious entities—but isn’t that just what St. Paul warned us about, so long ago?
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17 comments
This is inexplicable. This is a very real problem created specifically by ambiguities in a prior SCOTUS ruling, one that has had very real and devastating impacts on tens if not hundreds of thousands of people. For SCOTUS to refuse to clarify the law in these cases strikes me as the height of irresponsibility.
[1] Posted by David Fischler on 6-18-2012 at 10:24 AM · [top]
Agreed, David. The Court appears to be more divided than ever as it approaches the end of the current term, and doubtless the Obamacare cases are adding significantly to the tensions, as they get ready to announce their decisions in the final two weeks.
There is a third church property petition that was filed just a few weeks ago, from the decision of the Court of Appeal in Louisiana. Because it was filed so late, it will not be acted upon until the first Monday in October. Perhaps with Obamacare behind them, and the long summer stretching out before them, the justices will have more leisure to reflect upon their solemn responsibilities. One can at least pray, at any rate.
[2] Posted by A. S. Haley on 6-18-2012 at 10:41 AM · [top]
See—but I’m not sure that SCOTUS sees us as all that large a population! I mean—basically it’s the Episcopalians who are the ones that are being affected, since the PCUSA has decided to be gracious and sensible.
And let’s face it—Episcopalians make up some .5% of the population . . . we’re a real tiny minority.
If one compares that segment of the population to that affected by, say . . . Obamacare . . . the priorities become pretty plain.
[3] Posted by Sarah on 6-18-2012 at 10:41 AM · [top]
It is more unfortunate that those lower courts could not figure that out.
[4] Posted by Undergroundpewster on 6-18-2012 at 11:05 AM · [top]
The rule of law has perished from our land.
[5] Posted by BrianInDioSpfd on 6-18-2012 at 03:20 PM · [top]
Fair comment by Sarah. A highest court has only so much hearing time and therefore tends to only pick cases that it views as being of wide public impact.
We face a similar issue getting access to our highest court here. Its called special leave rather than certiorari, and the applications are dealt with by 3 of the 7 judges in a very short hearing instead of all 9 in chambers, but the essential issue is the same: convincing enough judges (two specific judges in Australia or any four judges in USA) that this case deserves to go before them more than the hundreds of other deserving cases. Whatever the precise criteria might be, if the case is likely to have wide impact then the judges will think of reasons for hearing the appeal. And if it isn’t very important, it won’t matter how well it fits the criteria.
If TEC manages to clean up the last of this litigation (which is still not certain, for a number of reasons) then it will be interesting to see if they now try to pick a fight with their own orthodox bishops, like +South Carolina. I doubt it - TEC seems to be having real budgetary problems.
[6] Posted by MichaelA on 6-18-2012 at 08:03 PM · [top]
Two observations:
1) For orthodox parishes, consider the last verse from Ein Feste Burg:
That word above all earthly powers, no thanks to them, abideth;
The Spirit and the gifts are ours through Him Who with us sideth:
Let goods and kindred go, this mortal life also;
The body they may kill: God’s truth abideth still,
His kingdom is forever.
2) For those “liberal/progressive” churches that would mix God’s Word with the serpent’s venom, the pure Word gives a warning in Isaiah 13:19-22. The Church is the people washed clean in the blood of Jesus, filled with God’s Spirit, and speaking His Word (and performing His miracles). When the Lord arrives in a temple, he cleanses it (which is what’s needed more than embellishment).
The SCOTUS is not the final word on property matters - for the earth is the Lord’s and the fullness thereof. The buildings will fall down or be torn down when there’s no life in them. Be thankful that you’re free of the burden. I’m sure the early Church felt bummed when the Romans razed the Temple and Jerusalem and dispersed the Jews (including those who were followers of Jesus). The following years were tough - and no one would choose that if they had a choice. Sometimes the Lord breaks up the nest so we are forced to go out and find the place in which we are to mature and grow. We don’t have to like it, but we do have to trust He knows what He is doing.
[7] Posted by Doug Stein on 6-18-2012 at 08:48 PM · [top]
For some reason, the link to Isaiah 13:19-22 broke and ended up pointing to the beginning of the book. The verses are here:
[8] Posted by Doug Stein on 6-18-2012 at 08:52 PM · [top]
So state church property law will now be decided by states (interpreting it through their highest courts) as it should be. States will decide according to their rules of trust, property, voluntary associations, and whatever things the Virginia court decided on, which seemed to be a mishmash of everything. SCOTUS will will not intervene on flimsy constitutional grounds, not concerned with state law unless it infringes the Constitution.
All to the good.
In other situations, if courts ignored internal church laws and insisted secular regulations prevail, folks here would be screaming about discrimination. Unfortunately, orthodox thinking on law relating to the church in fora such as this has become 100% result-oriented, with total disregard for the rule of law. Orthodox people reduced to the role of greedy grasping children claiming things they do not own. Losing 95% of their cases for perfectly obvious reasons.
And, worst of all, encouraged in this by counsellors who should know better.
[9] Posted by Real Toral on 6-18-2012 at 10:20 PM · [top]
“All to the good.”
Yes, we get it Real Toral: you hoped that TEC’s bid to seize properties from their rightful owners would be insignificant enough that SCOTUS couldn’t be bothered dealing with it. After all, TEC is a tiny church in national terms. Well, you have got your wish… :o)
“Unfortunately, orthodox thinking on law relating to the church in fora such as this has become 100% result-oriented, with total disregard for the rule of law.”
No, it is the other way around - the liberals in TEC have been totally result-oriented. They have used massive amounts of money to achieve what they foolishly perceive as legal victories. As a result their church is declining at a great rate.
“Orthodox people reduced to the role of greedy grasping children claiming things they do not own.”
Not at all. TEC and its supporters are the “greedy grasping children” who have destroyed their own church in the course of suing faithful congregations in an attempt to seize the property which rightfully belonged to the congregations.
“Losing 95% of their cases for perfectly obvious reasons.”
Hmmm, TEC won *some* cases - nothing like 95%. The reasons for that are “perfectly obvious” only to those with blinkered vision and a lack of understanding of both law and principle. In most cases, TEC either used its legal muscle to force congregations into some sort of compromise, or was eager to settle itself as it ran out of money.
“And, worst of all, encouraged in this by counsellors who should know better.”
Indeed, they were encouraged and they still are. They are also warmly praised for their courage in taking on the corporate money and attitude of TEC. The brave actions of these faithful congregations have soaked up TEC’s resources - who knows what other aggressive and vicious actions 815 would have taken if not preoccupied with this.
Mind you, we are supportive of the congregations whatever they do. To those who fought while they could and then walked away, they have our support so long as their integrity remains intact.
[10] Posted by MichaelA on 6-19-2012 at 12:26 AM · [top]
By the way, Real Toral, how is TEC going now after its “victories”? Got the properties back did it? Filled them up with new and old members? Turned them into viable parishes again? Got plenty of income rolling in from them to finance a healthy TEC budget?
And how are the “losing” congregations going? Vanished? Defeated? No longer in existence?
[11] Posted by MichaelA on 6-19-2012 at 12:34 AM · [top]
The “losing” congregations are fine. At least the ones that I, as a member of an ANiC congregation, know of, are. We would have been better off not having blown humongous dollars on legal fees, to satisfy carnal pride.
BTW I expect TEC/ACoC will make a net profit after they sell off the buildings. St John Shaugnessy alone will recoup any legal fees in Canada. The properties of 4 TEC dioceses will rake in money in the future.
[12] Posted by Real Toral on 6-19-2012 at 12:42 AM · [top]
“The properties of 4 TEC dioceses will rake in money in the future.”
In your wildest dreams, Real Toral, in your wildest dreams. ECUSA “prevailed” in Pittsburgh through a one-sided reading of a poorly worded stipulation—it did not win on the merits of its case. But it has failed monumentally in Quincy; it has thus far lost in San Joaquin, with nothing to show for four years and $3 million of contributed money; and it will lose in Texas, whose Supreme Court took the case out of the Court of Appeals in order to set straight the Texas law of neutral principles.
People who think as you do should stop donating money to your church if it goes to attorneys fees—you will not be as bitter about the waste, and you might even end up able to think better (especially about what neutral principles means).
[13] Posted by A. S. Haley on 6-19-2012 at 09:18 AM · [top]
On reflection, Real Toral, I should not have held you, as a Canadian, to a knowledge or understanding of American law, which on church property/trust issues is quite different from that which the courts in your country apply. If you would care to know more about the differences, you could do worse than delve into this post.
[14] Posted by A. S. Haley on 6-19-2012 at 10:07 AM · [top]
“We would have been better off not having blown humongous dollars on legal fees, to satisfy carnal pride.”
That’s a pretty serious accusation, Real Toral. I assume you have some knowledge of the leaders of each of the dissenting congregations, and therefore have a reason to think that they acted “to satisfy carnal pride”?
[15] Posted by MichaelA on 6-19-2012 at 07:02 PM · [top]
Further to A. S. Haley’s posts at #13 and #14, the dissenting congregations have also given TEC’s leadership a taste of what it will encounter if it tries to resort to law against its own orthodox clergy.
From time to time you see on liberal blogs remarks along the lines of “When are we going to depose +Lawrence?” or “When are we going to discipline +Howe” or whoever their current bete noire is. If 815 is so misguided as to attempt these things, it knows it will face a fight just as fierce as those it has already encountered against +Iker, +Ackerman, The Falls Church etc. Win or lose, it will need a lot of resources and plenty of stomach for a hard fight.
[16] Posted by MichaelA on 6-19-2012 at 09:45 PM · [top]
It is not entirely about who wins or lose in either American or Canadian secular courts, It is about who is doing God’s work faithfully. Suing other Christians for property to sell (maybe) to get money for further legal battles is not doing God’s work. Meanwhile, the congregations who have been sued are still doing God’s work.
TEC might have the money now and we all keep hearing about the millions in trust funds etc. If they keep spending money on litigation like they are now and keep losing members at this rate, eventually they may reach a point where they have no members and lots of valuable properties they can not sell except at a loss. WOW! What a goal. I think there are some among the liberals who are beginning to see what may happen, losing members + more legal battles will lead to death of TEC at some point. If that is what they want, then go ahead and pursue that goal for all it is worth.
Gee, and I thought it was all about the great commission to go and make disciples. Perhaps it really is about Real Estate commissions!
[17] Posted by SC blu cat lady on 6-20-2012 at 05:54 AM · [top]
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