Our Anglican brothers and sisters in the Diocese of Fort Worth have suffered a blow. Just yesterday, the 2nd District of Texas Court of Appeals reversed a lower court decision and ruled that the property that, as we see it, rightly belongs to the Diocese of Fort Worth actually belongs to the national Episcopal Church. It appears that our friend Bishop Jack Iker and the diocese will appeal this ruling to the Supreme Court of Texas so the end to this saga has not come…yet.
Meanwhile, in South Carolina, our friend Bishop Mark Lawrence and the Diocese of South Carolina are also preparing for an appeal. However, this appeal is to the Supreme Court of the United States. In this case, the American Anglican Council is a “friend” of the Diocese in a legal sense, as well as the court, as we filed an Amicus Brief last month in support of Bishop Lawrence.
Our brief, which was a joint effort with the Falls Church Anglican, emphasized to the Supreme Court the substantial harmful impact that the South Carolina Supreme Court's erroneous decision in this case has on many, many individual congregations, dioceses, and denominations. Among other things, the brief points the Supreme Court to the important research we’ve done in cataloging the lawsuits against dioceses, congregations, clergy, and volunteer lay vestry members. (pages 6-7)
The amicus brief also makes some specific arguments about issues that arise from Anglican and Episcopal polity that we and our fellow amicus are uniquely positioned to make, and that the we have made over many years in its important work supporting faithful dioceses, congregations, and clergy.
There is substantial historical evidence and legal and scholarly analysis that supports the rights of dioceses to withdraw from The Episcopal Church. (pages 9-10) The South Carolina Supreme Court selectively relied upon a single specific internal church canon (TEC's Dennis Canon) -- yet at the same time ignored other church canons and broader ecclesiastical polity -- to create a legal trust enforceable by secular courts, all in order to reach the result of stripping the Diocese of South Carolina and a number of its congregations of property to which they clearly held legal title. Here is a portion of the actual brief:
"Having entered the religious thicket to create an enforceable legal right based upon a single canonical provision alone, the court then faces a difficult, if not insoluble, constitutional dilemma. Either the court must ignore other canons, and thereby prefer one religious position over another. Or it must venture further into the canonical thicket to assess, interpret, and apply any other relevant canonical provisions. Both approaches create grave First Amendment concerns."
"Of course, the solution to this selective judicial enforcement of church canons is simple. The secular courts should stay out of the thicket and decline to treat any church canon as creating legally enforceable trust and property rights. That is precisely what the correct interpretation of Jones’ neutral-principles approach requires. Whatever legal interest a church canon purportedly creates must be embodied in a legally cognizable form – such as a title document or a formal deed of trust that complies with the requirements of established state trust law – if it is to be enforceable by the courts. By granting the Petition, this Court can bring urgently needed clarity to this area of the law." (p. 11)
The brief also details how legal enforcement of TEC's "Dennis Canon" contradicts TEC's own admissions for more than a century in TEC's own convention journals and official commentaries (White & Dykman) on the Constitution and Canons, that such canons have only moral effect and are not legally enforceable. This contrast highlights that legal enforcement of the TEC Dennis Canon is in conflict with the "neutral principles of law" standard articulated by the U.S. Supreme Court in 1979 in Jones v. Wolf. (pages 12-20)
The Respondents -- The Episcopal Church and The Episcopal Church in South Carolina -- have until April 30 to file their briefs in response to the Petition. At their request, the Supreme Court extended their time to respond by a month to allow them to also respond to these amicus briefs.
All of the briefs (including the original petition) are available at the SCOTUS docket page for the case at the following link:
So what shall we do until then? Pray! Pray! Pray! Pray that the Supreme Court of the United States agrees to hear the Diocese of South Carolina’s case. Pray that the Supreme Court of Texas quickly agrees to hear the appeal of the Diocese of Fort Worth and that both courts rule in favor of our brothers and sisters.
Finally, if I may make a modest request. There are Christian attorneys (no, that is NOT a contradiction) all over the country who have donated their time to defend these dioceses. In the case of our amicus brief, a godly Anglican lawyer donated his time to write the actual paper, paid about $1,250 to print it (43 copies), and then filed it with the Supreme Court. Would you help us defray the costs of this amicus brief? You can donate online – please select the fund “Amicus Brief” from the drop down menu.
Thank you for staying informed about this battle going on in our churches, courts and cultures. All of this work is in support of Biblically faithful Anglicanism throughout North America and the world.
The Rev. Canon Phil Ashey is President & CEO of the American Anglican Council.