The videos of the oral arguments yesterday in the two church property cases before the Texas Supreme Court are now archived. The first, The Episcopal Diocese of Fort Worth, et al. v. The Episcopal Church (No. 11-0265), may be watched here; the second, Robert Masterson, et al., v. Diocese of Northwest Texas, et al. (No. 11-0332), is at this link.
The two cases involved similar issues of property law: under the “neutral principles” approach, how do courts resolve intra-church disputes over who has control of the entity holding title to the real property? In both of the cases, the entities holding the legal title are corporations; and in both cases, the Episcopal Church (USA) — or the diocese (in the Masterson case) — claim the right to decide just who may occupy the offices in those corporations….
As a non-American, it feels like the ghost in the story, the elephant in the room, is the Civil War. Courts in the Northern part of the US appear to have been prepared to defer to TEC’s claim that if a Diocese accedes to the constitution of TEC then that is not an indefinitely extended decision to freely associate, but a permanent subordination to the denomination and prevents the Diocese from leaving and that this is the case even with the absence of any explicit indication that accession is permanent. This seems much the same as the north took when it came to secession of the confederate states in the lead up to the Civil War – no language in the constitution that a state couldn’t sovereignly disassociate, but they couldn’t do it anyway.
Now we have lawyers from the north arguing on behalf of TEC in a Texas court (and coming soon to a court near you, in a South Carolina court) that TEC’s constitution doesn’t allow a diocese to leave once it has joined, even though no such language is in the constitution, and that’s not really the normal meaning of ‘accede’.
Even apart from the issue of judicial philosophy (how judges think they should interpret or create law), where it seems like the southern courts so far are committed to basing law upon what is written and the northern courts use legal interpretive methods more compatible with theological liberalism, this feels like a repeat of the issue at stake in the Civil War. And I can’t see the Supreme Courts of Texas and South Carolina being any more keen to now to agree with that principle than those states were back then. TEC’s essentially asking the supreme court to agree that its state was in the wrong, legally, in attempting to leave the Union by asking it to accept its argument in this case.
I just can’t see TEC’s argument playing well at all.