U.S. property cases may go to the Supreme Court: The Church of England Newspaper, April 6, 2012 p 7.

Four of the Episcopal Church’s key property dispute cases have moved to the state and U.S. Supreme Courts for review.

Briefings have been filed in the Episcopal v. Anglican Dioceses of Fort Worth cases in the Texas Supreme Court, while the breakaway congregations in Northern Virginia have asked the Virginia Supreme Court to review the lower court’s ruling giving the diocese custody of the parish properties.

The breakaway congregations in Christ Church v. Diocese of Georgia and Bishop Seabury Church v. Diocese of Connecticut have filed writs of certiorari with the U.S. Supreme Court.  The Supreme Court has also been asked to review a third property dispute, Timberridge Presbyterian Church v. the Presbytery of Greater Atlanta, that addresses the same legal issues.

The issue before the courts, as summarized in the Bishop Seabury petition, is whether the First Amendment of the U.S. Constitution “requires state civil courts to enforce an alleged trust imposed on local church property by provisions in denominational documents, regardless of whether those provisions would be legally cognizable under generally applicable rules of state property and trust law.”

The American state courts are divided and have made contrary rulings based on their interpretation of Jones v. Wolf.  Five state supreme courts and one federal circuit court hand held that denominational property trust rules such as the Episcopal Church’s Dennis Canon should only enforced in civil court if they were in conformance to “objective, well-established concepts of trust and property law,” while four state supreme courts have enforced “denominational documents asserting a trust regardless of whether those documents are other ‘embodied in some legally cognizable form’.”

Canon lawyer Allan Haley noted the legal question being presented to the Supreme Court is the quasi-establishment of one group of churches over others that has arisen since the Jones v. Wolf decision.

In interpreting the Jones decision some state courts have permitted the canon law of the Episcopal Church, and other ‘hierarchical’ churches to take precedence over state law in property disputes.  Mr. Haley argued that “no other body or organization — religious or otherwise — has been granted the privilege of creating enforceable trusts in such a unilateral fashion.”

The state court decisions in favour of the Episcopal Church have relied upon obiter dictum (a remark made as an aside, in the course of a decision) made by Justice Blackmun in the Jones case.  This remark “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,” Mr. Haley said.

The “practical effect” has been to grant “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,” Mr. Haley argued.

However, writing in the Washington Post, the Bishop of Virginia, the Rt. Rev. Shannon Johnston argued the issues should be seen through the lens of theology. “We are called to be good stewards of property given to us by our forebears. Stewardship is a theological concept: we give thanks for the gifts God has given to us all. Stewards are bound to preserve gifts for future generations,” the bishop said

“The matter of biblical interpretation is at the heart of the issues, and there are real differences. Differences over biblical interpretation, not authority, remain unsettled. Even so, the common, ancient tradition as to authority, polity and property stands with the diocese and its bishop,” he argued in support of the diocese’s legal campaign.

The Supreme Court is not obligated to hear the petitions from the state courts as four of the justices must agree to hear a case before it is brought before the court.  The court is expected to announce whether it will review the church cases at the close of its current term in June or at the start of the next term in October.

First printed in The Church of England Newspaper.