The Supreme Court of Texas today handed down its decisions in two cases relating to the property of The Episcopal Church. In both cases the ruling was against a diocese of The Episcopal Church.
The actual texts of the decisions are here:
Statements were issued by the two Fort Worth diocesan organisations:
Pastoral Letter from Bishop High
Pastoral Letter from Bishop Iker
A S Haley writes:
Today the Texas Supreme Court handed down decisions in the two ECUSA cases pending before it: No. 11-0265, Episcopal Diocese of Fort Worth, et al. v. The Episcopal Church, et al.; and No. 11-0332, Masterson v. Diocese of Northwest Texas. In the first case, the Court sided with Bishop Iker’s Diocese by a closely split vote of 5-4, reversed the summary judgment of Circuit Judge John Chupp which had awarded all of the property and assets of Bishop Iker’s Diocese to the Episcopal Church and its rump diocese, and sent the case back to the trial court. The majority held that the trial court had improperly failed to apply a “neutral principles of law” analysis to the issues. The four dissenters did not disagree with that result, but instead believed that the Court lacked jurisdiction to hear a direct appeal from the trial court’s judgment in the case.
In the second case, the Court by a vote of 7-2 reversed the Court of Appeals’ decision requiring the Church of the Good Shepherd in San Angelo to turn over its building and all other assets to the Diocese of Northwest Texas. The Court definitively ruled that all Texas courts must follow “neutral principles of law” (rather than deferring to an ecclesiastical hierarchy), and that based on such an analysis, the Dennis Canon was not effective under Texas law (or that if it were effective to create a trust, the trust was not expressly irrevocable, and so could be revoked by the parish in question)…
It just sets it up to go to the US Supreme Court, the very court that advised hierarchical churches to add devices such as the Dennis Canon.
Mr A.S. Haley, a lawyer associated with those in the U.S. who are actively opposed to the polity of TEC, is a noted advocate of ACNA and, as such, can be expected to rejoice at the action of the Texas Supreme Court in refuting TEC’s dependence on the ‘Dennis Canon’, which gives special precedence to The Episcopal Church in matters of govvernance and property ownership. Mr. Haley well knows the financial benefits accruing to the legal fraternity in the United States in their involvement with Church affairs, and may indeed be glad that his ACNA associates have, at last, had… Read more »
“…based on such an analysis, the Dennis Canon was not effective under Texas law (or that if it were effective to create a trust, the trust was not expressly irrevocable, and so could be revoked by the parish in question)…”
Nonsense. This part of the ruling is clearly unconstitutional; the government and its courts have no business telling any religious organization how it should arrange its polity or its property holdings.
This is the state, where the gay population had to appeal to the US Supreme Court to get homosexuality legalised.
No doubt the Episcopal church will have to go to the Supreme Court to get justice. I have also little confidence in South Carolina justice either.
Furthermore whilst I abhor polygamy… how the Texas legal system treated a polygamous Mormon community was appalling.
Texas, America’s most illiterate and retrograde state. The state that produced George Bush junior. Says it all, really.
From the SCOT order:
See TEX. PROP. CODE § 112.051 (“A settlor may revoke the trust unless it is irrevocable by the
express terms of the instrument creating it or of an instrument modifying it.”).
TEC will likely need to modify its constitution and canons if it wants to own local property. I suspect big liberal dioceses (PA) would oppose that.
Bro David The hastily prepared ‘Dennis Canon’ picked up the advice of SCOTUS Justice Blackmun in 1979 Jones v Wolf that if churches wanted to own the property ‘from top down’ they had better create rules/canons (you use the language ‘device’) in their church documents that would function legally (viz., to commit trustees and beneficiaries both). The ‘Dennis Canon’ would purport to establish this trust in one direction. Even an ‘accession’ to it does not do the work Blackmun suggested. My memory is he even said as much. This is what the SCOT means when it cites its own statutes–widely… Read more »
It is certainly true that A.S.Haley is on “the other side” and is no doubt rejoicing in this ruling–which i most emphatically am not. However, he does try to keep his legal analyses grounded in the facts and law. The Texas Supreme Court decision is deplorable, but, in view of the composition of the US Supreme Court now, I wouldn’t put it past them to modify Jones v. Wolf to the benefit of the more conservative faction. Unfortunately, TEC may be paying a price here for its policy of not litigating these matter, canonically or in civil court, at the… Read more »
Actually, Dr Seitz, Jones v. Wolf expressly names as a means of securing the property for the “faction loyal to the hierarchical church” the adding of a provision in the hierarchical church’s governing documents in almost the exact words of the Dennis Canon. The opinion then states that “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” such as those previously listed by the Court. No further requirement appears in the opinion. See 443 U.S. at 606. I see nothing in the opinion to… Read more »
I believe cseitz is incorrect in thinking the SCOT decision will have application beyond Texas, as it hinges on a specific aspect of Texas law, by which the irrevocable nature of a trust must be explicit in the language of the trust. This is not the case in all state property law, or if it is, it is surprising that this is not the more common decision. I do not know how the case will now be argued in its return to the lower court, but it does seem likely that in spite of the fact that the trust relationship… Read more »
You are correct, JW. SCOT looked for the language of ‘irrevocable’ and did not find it. The key language in Jones v Wolf, frequently conveniently left out, is Blackmun’s last sentence. That is what SCOT quoted, quite rightly.
As I understand it, TX trust law at this point is not terribly different in other states, though I accept the point that for now TX is the major thorn in the side of those wanting property title to extend to ‘national church.’
For ease of reference I here cite from the dicta of Blackmun:
“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.”
SCOT did not recognize the Dennis Canon as in this form, given TX trust law.
One suspects that the effort may be made to achieve this end by other means, but we shall have to see the response of Title IV orientated officialdom…
“The Texas Supreme Court decision is deplorable, but, in view of the composition of the US Supreme Court now, I wouldn’t put it past them to modify Jones v. Wolf to the benefit of the more conservative faction.”
Considering how many Roman Catholics are on SCOTUS (inc the Chief Justice), and how many RC parishes would LOVE to break away and take the property with them, do you REALLY think SCOTUS would open this can o’ worms? I think not.
Thanks for your clarification, Dr. Seitz. I suspect that you are over-reading that last phrase, in that I don’t believe that the denomination is expected to anticipate the formalities of trust law from locality to locality; after all, the specific examples given by the preceding sentences. So, the passage in full: “They [members of the ecclesial body] can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church.… Read more »
Mr Wirenius, thank you for your response.
My personal view is that TEC will simply find other (Title IV) ways to bring about whatever outcome they wish. I am sorry to have to say that.
We are entering difficult waters.
“My personal view is that TEC will simply find other (Title IV) ways to bring about whatever outcome they wish. I am sorry to have to say that. “ Why “sorry”? Are you really of the opinion that a parish or diocese that has been part of the national church since the inception of the parish or diocese should have the right to abscond with property the founders of said parish or diocese clearly intended to be of benefit to the church as a whole? Further…any rector or vestry member is bound by the by-laws and canons of his or… Read more »
“the founders of said parish or diocese clearly intended to be of benefit to the church as a whole”
Unfounded assertion # 1.
“Whether the courts think the Dennis Canon is correct or not should not enter into it”
Extremely dangerous assertion # 2.
Actually, there are a lot of people in and out of the church who believe that a church is set up for the local people, not to be just another asset of an international corporation in New York, which is what TEC is. TEC didn’t build it, buy it, maintain it so if the locals who did pay for it think the national brand is going the wrong way, they should be able to leave. If you asked most people in the local church, what does the national church do in return for that 19% of income they want, what… Read more »
“”the founders of said parish or diocese clearly intended to be of benefit to the church as a whole” Unfounded assertion # 1.” The canons and by-laws of the parish and diocese so state. Are they wrong? “”Whether the courts think the Dennis Canon is correct or not should not enter into it” Extremely dangerous assertion # 2.” On the contrary…it is extremely dangerous for the government, through its courts, to determine what the polity and property rights of a religous institution should be. In that manner, a government can decide that THIS church gets to keep its property and… Read more »
“the locals adopted and agreed to the canons and by-laws of the parish and diocese”
Nonsense. Get a calendar out. Jones v Wolf was a *1979 case*. *1979*. The Dennis Canon is even later.
Thank God we have courts that put a stop to people’s logic like your own. I am third generation episcopal clergy. In my own lifetime, what you here assert would be regarded as eccentric and special pleading of the worst kind.
Please pick up a copy of Dawley’s The Episcopal Church and its Work. It will repay careful study.
“I don’t believe that the denomination is expected to anticipate the formalities of trust law from locality to locality[.]” Why not? Denominations have to follow state and local laws in other matters such as withholding rates for state and local income taxes, zoning, fire codes, etc. If any of these property cases is accepted by the U.S. Supreme Court (none of them has so far), the Court may have to clarify whether or not Justice Blackmun’s language about establishing a trust by amending a denomination’s constitution is dicta. If it isn’t, the Court may also have to explain where it… Read more »
Plus, didn’t Bishop Iker himself use the Dennis canon, when he prevented a departing parish taking their property with them ten years ago?
Fairly argued, I think, Pat O’Neill!
“”the locals adopted and agreed to the canons and by-laws of the parish and diocese” Nonsense. Get a calendar out. Jones v Wolf was a *1979 case*. *1979*. The Dennis Canon is even later. “ So, when I agree to follow the laws of my city, state or nation, I am not obligated to follow any NEW laws that may arise after that agreement? Thank you…I may now, with impunity, park in that “no parking” zone that was established after I moved to my current home. “Why not? Denominations have to follow state and local laws in other matters such… Read more »
> Are your children free to take possession of your house when they leave?
One might argue that the answer was yes, if they bought the house for you in the first place!
No-one comes out well from this sort of bickering. Wouldn’t it be fairer and more Christian to allow the property to go with the local majority?
I don’t think your analogy of the kids and the house applies because when the parents die the house/property goes to the children to do as they choose(i.e. the church to later parish members/vestry) not to a corporation in New York, unless the parents signed papers stating the inheritance goes elsewhere and such wills/trusts can be broken. Texas is saying part of the problem is the Canon neither has a way to break it, nor says it’s unbreakable. It’s incomplete. The parish builds the church, gives the money for use of the name, BCP, etc. and TEC gives back, what?… Read more »
@Paul Powers: because the national church can, the US Supreme Court ruled in the very opinion under discussion, effect the creation of the trust through its constitution or canons. To expect the constitution or canons of a church to address the trust formalities of 50 states’ varying laws, and to keep current with them all, does not impose a “minimal” burden but a fairly significant one. More to the point, this is a First Amendment issue, where the Free Exercise Clause is implicated. So the real question is, what state law applies–the HQ. of the national church? Some other state’s?… Read more »
Mr O’Neill
The ‘law’ in Texas does not recognize the trust being purported by TEC.
That is the law.
You spoke of founders of churches and their wishes. There was no Dennis canon purporting to do anything at that time. All property in the Diocese of Dallas belongs to the Corporation of the EDOD. That is the legal entity.
If you want a church like you are describing, you will need to join the Roman Catholic, PCA or Methodist Church.
@John Wirenius: The Supreme Court did not _rule_ that a church can create a trust through its constitution and canons. The lawsuit did not involve a trust, so that question was not before the court. I believe Justice Blackmun’s suggestion is dicta. You obviously don’t. I guess we won’t know for sure unless and until the Court agrees to hear another church property case. So far, it has declined to do so. Requiring national churches to comply with state law in establishing a trust wouldn’t necessarily be all that burdensome. To the best of my knowledge, every diocese has a… Read more »
Paul Powers, Fair point about the use of the word “rule, ” but I think that when the Supreme Court lays out what the necessary steps to effect a desired result in a constitutional case that has not been revisited in 30 years, and upon which religious bodies, state supreme courts, federal intermediate appellate courts and trial courts have relied, the “dicta/holding” distinction becomes less relevant. One could argue that Brown v. Bd. of Education didn’t rule that all governmentally mandated segregation by race is unconstitutional. Technically true, but no way to run a legal system. Your suggestion that compliance… Read more »
“Mr O’Neill The ‘law’ in Texas does not recognize the trust being purported by TEC. That is the law. You spoke of founders of churches and their wishes. There was no Dennis canon purporting to do anything at that time. All property in the Diocese of Dallas belongs to the Corporation of the EDOD. That is the legal entity.” But all the rectors, bishops and vestry members in the relevant jurisdictions took oaths to obey the canons of TEC…without any phrasing of “except those that may be adopted after we take this oath or to which we object.” Analogously, virtually… Read more »
“A national church can direct its dioceses to adopt canons providing for the transfer of parish properties into a trust for the benefit of the diocese and national church. The diocesan chancellor can advise the diocese on the steps required to make such trusts valid under state law. The diocesan convention can adopt canons following the chancellor’s advice. Problem solved!” And what does the national church do when the diocese refuses to do so (as obviously would have been the case in Dallas)? Or when the diocese chooses to repeal such a canon? If the canon is not national in… Read more »
“…effectively making the national church reliant upon the dioceses for its polity.” How have you missed this salient point so long? The ‘national church’ is an association of dioceses. That is why it is called The Episcopal Church — not the General Convention Church, or the PB Church. That is why there are diocesan C/Cs (cf CofE). Perhaps your question could be better phrased: ‘Why have efforts to create a ‘national church’ faltered, been resisted (on left and right), or been confusedly/inadequately accomplished?’ The answer is: the tension between Bishops/dioceses and the history of Anglicanism in the New World, v.… Read more »
“”…effectively making the national church reliant upon the dioceses for its polity.” How have you missed this salient point so long? The ‘national church’ is an association of dioceses. That is why it is called The Episcopal Church — not the General Convention Church, or the PB Church. That is why there are diocesan C/Cs (cf CofE). “ Says you. This is the religious version of the states’ rights argument…that the federal government is a voluntary association of sovereign states. It is nonsense in the political world and it’s nonsense in the religious one (at least as it applies to… Read more »
It’s fascinating how ‘granted status’ moves so effortlessly to ‘created.’ So the National Church came to Texas and ‘created’ a Bishop, and organized parishes, and ‘went home’ and marveled at its creation. No, a diocese sought to associate and General Convention confirmed that request. That is the role given to them (General Convention does not create dioceses). So we are watching as SC and Ft W disassociate. They are The Episcopal Diocese of SC and The Episcopal Diocese of Ft Worth. The idea that we should expect a church to track seamlessly with the national entity (with a Chief Executive)… Read more »
You also might find this transcript portion from the Quincy trial helpful for clarifying the polity of TEC. That ruling is also pending. Please note the reference is to the Diocese of Los Angeles–hardly a conservative bastion. Q. You’ve also testified that a number of dioceses—I believe 25 of them—continue as full members of ECUSA despite not having appropriate accession clauses in their constitutions. Has General Convention ever tried to do anything about that situation? A. Again, not that I’ve seen. Q. What could it do, if it wanted? A. It’s debatable what it could do under the current non-supremacist… Read more »
“It’s fascinating how ‘granted status’ moves so effortlessly to ‘created.’ So the National Church came to Texas and ‘created’ a Bishop, and organized parishes, and ‘went home’ and marveled at its creation. No, a diocese sought to associate and General Convention confirmed that request. That is the role given to them (General Convention does not create dioceses). So we are watching as SC and Ft W disassociate. They are The Episcopal Diocese of SC and The Episcopal Diocese of Ft Worth.” There was NO diocese of Dallas until GC created it. In fact, even the Missionary District of North Texas… Read more »
See the previous note, please. 1. Yes, it mirrored the states-rights model you referred to; is this in doubt? See also the transcript above where Dr Bonner says this explicitly. Your point was that it stopped being this, and there is no evidence for that. LA refers to itself as autonomous, and the court agrees. 2. The REC had a doctrinal dispute grosso modo over baptismal regeneration (and also segregation) and this dispute was not a diocesan integrity one. So this analogy is false (and explains why we have never seen it used before). 3. You are welcome to read… Read more »
Dr. Seitz: Who exactly is Dr. Bonner? And why should we find his testimony compelling? His conclusion, that the Episcopal Church is “[a]n extremely decentralized association of state churches,” seems to be merely his opinion, without foundation in any of the documents of the church itself. As for the example of whether the national church can compel a diocese to do anything, such as turn over documents, I return to my analogy of the states and the federal government. The US government cannot compel a state government in matters such as this, either, absent a federal statute that says it… Read more »
An excellent answer Mr O’Neil, but the Reformed Episcopal Church in Chicago took its TEC property with it.
The refreshing thing about this note from Dawley is its candor. “While there may be many good reasons for not changing the constitutional arrangements *which have resulted in this diocesan independence,* it must be recognized that at times it has seriously handicapped the effort of the Episcopal Church at the national level.” If the Episcopal Church wants now to style itself a “national church,” it must push against this principle. That is why it is resisted even in places like LA and PA. That is why there are diocesan constitution and canons. That is why giving is voluntary. That is… Read more »
“1. Yes, it mirrored the states-rights model you referred to; is this in doubt? See also the transcript above where Dr Bonner says this explicitly. Your point was that it stopped being this, and there is no evidence for that. LA refers to itself as autonomous, and the court agrees.” But the court is not the last word on the matter (nor should it be in a society where church and state are not the same thing). 2. The REC had a doctrinal dispute grosso modo over baptismal regeneration (and also segregation) and this dispute was not a diocesan integrity… Read more »
“…the Reformed Episcopal Church in Chicago took its TEC property with it.”
With or without the consent of those who remained with TEC? That is the issue…
“If the Episcopal Church wants now to style itself a “national church,” it must push against this principle. That is why it is resisted even in places like LA and PA. That is why there are diocesan constitution and canons.” No, there are diocesan constitutions and canons because the national church recognizes, in the manner of the BCP, that local norms and standards may require differing methods of doing things. Does the existence of state constitutions and laws mean that the federal government is without authority? Please note that canons of TEC state that the national canons take precedence over… Read more »
I’m no longer sure what you are actually arguing for. If TEC is a states-rights model of polity (on secular analogy) then the dioceses are autonomous agents (as in the claim of LA — no federal agent can make LA hand over documents even though requested by TEC). They cannot be constrained (see Dawley above). The Constitution of TEC cannot be infringed upon but must be altered if one wants a different model. Dennis is void in TX and SC. It is dubious in other states and 25 have no accession clauses anyway. Dr Bonner was expert testimony in the… Read more »
Well, you have at least helpfully ceased using the language of GC ‘creating’ dioceses. They confirm their status so they may ‘call themselves’ a diocese in TEC. And having done that, said Diocese may then disassociate, as we are presently observing.
1. “But the court is not the last word on the matter (nor should it be in a society where church and state are not the same thing).” I am afraid in the case of LA you are wrong. Bruno refused and that was the end of the matter. 2. I am indeed saying the issue is about diocesan integrity. Your REC example has gone into the gutter. The ruling in TX–which this thread is about–is to do with Dioceses in TX and their status vis-à-vis the ‘national church.’ A concocted Dennis Canon was shown to be against state law.… Read more »
The REC parish in Chicago seceeded and the diocese did nothing.However this was a one off, and I agree with Mr O’Neil, no diocese can leave TEC unilaterally.
They may be able to dupe the Texas judiciary, but the SCOTUS will see right through this.
Why has no one commented on the fact Iker used the Dennis canon to force a departing parish to give up its property?
“If TEC is a states-rights model of polity (on secular analogy) then the dioceses are autonomous agents (as in the claim of LA — no federal agent can make LA hand over documents even though requested by TEC).” When did I ever suggest this was my stand? I reject the states’ rights model on both the secular and religious levels (at least as far as TEC is concerned). Just like a state is a creature of the federal government, a diocese is a creature of TEC. Both exist because the larger organization created them. As for this: “They [General Convention]… Read more »
“2. I am indeed saying the issue is about diocesan integrity. Your REC example has gone into the gutter. The ruling in TX–which this thread is about–is to do with Dioceses in TX and their status vis-à-vis the ‘national church.’ A concocted Dennis Canon was shown to be against state law. This means the dioceses in TX are free to ignore it. I struggle to see how you have thought this was about something else.” Oh, come now. What is the REASON the dioceses in Texas want to leave TEC and go to ACNA? You are, quite deliberately I think,… Read more »
You certainly have an active imagination! No Dioceses in TX are headed to ACNA. What a bizarre idea.