There was a brief ripple on the church property legal front this past week as the U.S. Supreme Court declined to hear an appeal of the Texas Supreme Court Decision regarding the Episcopal Church cases. Personally I found this to be an expected outcome and frankly a non-event for reasons I will explain in a minute, but it occasioned a look at another Presbyterian case that has some related characteristics.
The Texas case is the one I discussed recently where the Texas Supreme Court overturned the summary judgement granted to the mainline Episcopal Church in the lower courts based on it being a hierarchical denomination. The Texas decision then sent it back down to the trial court for a full hearing on neutral principals but The Episcopal Church appealed it to the U.S. Supreme Court which this past week included it in a summary order of the cases that they declined to hear.
As I said in the lede, nothing in this struck me as unusual as the high courts prefer to weigh in after a case has run its course in the lower courts. In addition, the U.S. Supreme Court has, to my knowledge, yet to accept any of the recent church property cases for review. As a more experienced observer of the Episcopal church property cases, Allan Haley who writes at the Anglican Curmudgeon, says in his analysis of this order:
The order was expected, because neither decision by the Texas Supreme Court was final. The U. S. Supreme Court almost never agrees to review lower court decisions until they are final. In these two cases, the Fort Worth matter was sent back to Judge Chupp’s court for a trial, and the Church of the Good Shepherd case was likewise sent back to the trial court in San Angelo for further proceedings.
The action by SCOTUS now frees both of those cases to move ahead.
Reading further in his analysis I was interested to see that the parties who have left the mainline Episcopal church have filed for summary judgement and how, in his view of the cases, now it all comes down to one specific question:
In Fort Worth, Bishop Iker’s attorneys have filed a motion for summary judgment which is scheduled for a hearing in December. Given the decision by the Texas Supreme Court, the only question remaining for the trial court to decide is whether or not ECUSA managed to create a valid trust in the Diocese’s property which the Diocese did not revoke when it decided to withdraw in 2008. In Texas all trusts are deemed to be fully revocable at any time, unless the language creating the trust states otherwise.
I am not sure that is the only issue to be resolved but I don’t follow these with the focus or knowledge Mr. Haley does. It will be interesting to see where this goes.
This news has brought to the forefront another Presbyterian case that I have not previously included in these discussions, that of Windwood Presbyterian Church in Houston. As a Christian Post article details the history, they began the process of getting clear title to their property back in 2008 and departed for ECO: A Covenant Order of Evangelical Presbyterians this past May with the property issue still unresolved. As in the Episcopal cases they initially lost on summary judgement in the Texas courts because of the hierarchical church argument but the August 2013 Texas Supreme Court decision caused the Appellate Court to vacate their earlier decision and send the case back to the trial court for a full hearing.
But Mr. Haley’s comment above about whether a valid trust was created caught my eye because that will clearly play a role in this case. Windwood was a member of the PCUS at the time of the union creating the PC(USA) and the PCUS churches had the option of avoiding the trust clause. I quote from the fourth page of the Appellate decision (emphasis mine):
The Book of Order also contains a provision permitting a local church, with in eight years of the formation of the PCUSA, to opt out of the trust provision if it had not been subject to a similar provision before the formation of the PCUSA. Windwood never exercised this right.
While Windwood has multiple arguments for it’s clear ownership of the property under a neutral principles approach, it seems that their not having exercised this option is a significant hurdle they have to cross. This would appear to be an acknowledgement by the church back in 1991 (eight years after the union) that they are subject to the trust clause in a hierarchical church. I am curious to see how all this balances out as the courts see it.
As a side note, I would point out the case of Timberridge Church in Georgia where Atlanta Presbytery successfully argued that the opt-out was only one of several tests of whether the trust clause was in place and that the congregation was still subject to it in spite of exercising the option. But to my knowledge, that case is unique regarding the interpretation of the opt-out option.
So, as usual, each case carries its own nuances. And, based upon past history on these cases, whichever side prevails in the trial court appeals can be expected. We will see where all this leads.
I have some questions. First, why has an argument based on the First Amendment not been presented and prevailed? It seems to me that courts deciding property issues means that the courts have decided a theological issue of ecclesiology. By their decisions the courts have approved congregational church polities, and declared hierarchical polities invalid. Trying to distinguish between property issues and ecclesiastical issues, as the Texas Supreme Court did, is disingenuous at best. A hierarchical church cannot impose ecclesiastical discipline if a local church can ignore that authority be leaving the denomination with its property. The decisions also reject B.O. F-3.0201 about One Church. Courts should only be able to decide whether a denomination followed its own rules in making its decisions. Question 2 involves G-4.0208. Both the PCUS and the UPCUSA had trust clauses in their constitution at the time of reunion. I understand that the 8 year window allowed a congregation to be exempt from higher council review of property decisions, but not the trust clause, since it was a provision of both denominations prior to reunion. Am I right in this? Does the lack of the word “irrevocable” in the trust clause make it subject to rejection by the courts? Thank you for the article. It seems that courts are deciding the future of hierarchical churches by their decisions. This is quite troubling.
Thanks for the questions. I am not sure either one has easy answers but here is what I have observed.
#1 – Up until 1979 the Establishment Clause and the Free Exercise Clause were pretty much uniformly understood by the courts to mean that they did not intervene in the matters of a hierarchical church. That changed with Jones v. Wolf and the decision that states could decide how to handle church property cases. One article I have read says that the US Supreme Court has not accepted a church property case since that decision.
What we seem to have now is an understanding of church governance having an ecclesiastical side and a corporate/civil side. What I see in the Texas Supreme Court Decision is their attempt to discuss the fuzzy line between. The dissent seemed to hold the position, similar to what I hear you saying, that in a hierarchical denomination that line does not exist and corporate matters are stewardship matters which are ecclesiastical by their very nature. I agree with you on that.
The present reality is that Jones v. Wolf has made the interpretation a state matter and therefore it now has 50 different answers. It is always interesting to note in decisions (such as Peters Creek or Carrollton) where one state high court specifically says it does not agree with the interpretation from another state high court (both comment on Timberridge among others).
#2 – Yes, in quoting the Texas Appellate decision in the Windwood case I could have been a bit more analytical and precise about the Book of Order implications but I was focusing on the civil legal language and the quote from the court decision.
You are correct that technically the PCUS added the explicit trust clause to their Book of Church Order the year before reunion so that G-4.0208 has no bearing on the trust clause but only on presbytery review and approval of certain property decisions as outlined in G-4.0206.
The interesting thing is that the Texas decision is not the first civil court case to apply the opt-out provision more broadly to include the trust clause. This is not helped by the fact that it was only added just before reunion so when under neutral principles the court examines the documents in an historical context the explicit trust clause is not there for the vast majority of the PCUS history. It makes it very easy for a church which has opted out to argue in a civil court that they were specifically rejecting the trust clause even though that was not an option under the G-4.0208 exemption. We will have to see what the implications of not opting out will be for Windwood as the rehearing of that case goes through the trial and rounds of appeals.
And I agree with your last statement – the situation that the PC(USA) and other hierarchical churches find themselves in now is having the courts in different states define what our connectionalism means in that jurisdiction. Here in California the state supreme court has upheld our strong connectionalism and that has made a major difference in several dismissals. It has gotten even more complicated for the Episcopal Church where they have the courts define not just the church-level issues but the situation with the departures of whole dioceses. That will be interesting.