TEC in Texas: A Setback

I should note the disappointing opinion of the Texas Supreme Court reversing summary judgment in its favor against the breakaway diocese. As I have been myself under the weather, I won't do my usual exegesis, but will cannibalize, contextualize and expand my own comments from earlier today over at Thinking Anglicans, which quoted A.S. Haley, a fellow-lawyer and the "Anglican Curmudgeon" in the blogosphere. Mr. Haley concluded, not without reason, that the prospects on remand for Bishop Iker and his faction were pretty good:

Thus, Texas law will control the issue of who were the trustees of the Fort Worth diocesan corporation on the relevant dates when crucial votes were taken. And that should bode very well for Bishop Iker's chances on remand.

Likewise, the issues of title are to be resolved by examining the various deeds under Texas secular law -- and that, too, should work in Bishop Iker's favor. Title to all of the parish properties is held by the diocesan corporation. Thus if Bishop Iker's trustees are the proper trustees in office, the property will follow the corporation.

Against the temptation of assuming that Mr. Haley's commitments made him unreliable here, I noted that while 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,he does try to keep his legal analyses grounded in the facts and law. While I often disagree with Mr. Haley on the desirability of an outcome, and even on the merits, his opinions are professional, and well informed.

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, 443 U.S, 595 (1979) 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 first act to withdraw property rights from the national church. We'll see how the case comes out on the remand, but the Texas Supreme Court certainly seems to be signaling a win for the breakaway action, assuming they prove the facts they allege.

Now, pre-guessing the results of a merits trial based on a summary judgment decision is hazardous at best. I think Mr. Haley correctly identifies the factors that will militate in favor of the breakaway diocese--a result which I would deplore. However, I think that there are factors he doe snot review--or rather, that he assumes have been shunted to the side by the Texas Supreme Court decision--which should mandate the opposite outcome.

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. The full passage goes as follows:

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. The burden involved in taking such steps will be minimal. 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.

I see nothing in the opinion to suggest any higher showing beyond such a canon's existence in the terms set out in Jones. As to the Texas Supreme Court opinion, it seems to me to be going beyond what Jones allowed as the appropriate role for neutral principles, by presumptively treating the trust as freely revocable, which does violence to the Jones concept that the "burden involved in taking such steps will be minimal." Id. If the trust must comply with the many local variants of formalities required of ordinary trusts, not cloaked by First Amendment protection, then the burden is not minimal, as promised by the Court in Jones.

C.R. Seitz made an interesting argument from the last portion of the most quoted statement from the case: "provided it is embodied in some legally cognizable form." Under Texas law, Dr. Seitz suggested, the Supreme Court had strongly hinted that, under neutral principles of Texas law, the Texas Supreme Court had determined that the trust had been properly revoked, and therefore was no longer legally cognizable. (I'm expanding on his argument, but believe I am doing so faithfully.)

Now, I'd like to disavow this. The problem is that the following section of the Jones opinion creates an ambiguity as to whether state laws that do not recognize the amendment to the church's governing documents are constitutional. I believe that the specific example given in the majority opinion necessarily implies that such a device is sufficient, but I understand his contrary reading. I think, as a matter of legal interpretation, it is the less correct.

That is for two reasons. First, the justification of neutral principles boiled down to, as quoted above, the "minimal" burden it would create on religious bodies to resolve the issue would be rendered nugatory if states could introduce varied and possibly even contradictory requirements of trust law that could lead to conflicting resolutions and even legally contradictory decisions.

Second, on reflection, there seems to me to be a lurking choice of law issue. While choice of law has often been assumed to be a precursor to a "home job" (the favoring of the party who is local to the court deciding the dispute), some scholarship suggests this is overstated. It seems to me to assume that the state law for each local parish or diocese's governs in the case of a nationwide church seems to me to assume a pretty big question the answer to which is not self-evident.

So, no, I am not as sure as is Mr. Haley that the case will come out in favor of the breakaway diocese--though I must stress that his prognostication may well be correct, and is a considered professional opinion, albeit one I am far than pleased with.

Some folks think that getting the case heard by the U.S. Supreme Court might be a reasonable plan, but in view of the personnel changes since Jones, I am unable to be as sure as I would like that Jones would be upheld and properly applied by the current Court.