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Category : Supreme Court
Historic Diocese of South Carolina Case before the US Supreme Court is featured on the Prestigious Scotus Blog
A S Haley: Supreme Court Orders new Episcopal Church Diocese in South Carolina and TEC to respond to Historic Diocese of South Carolina’s Petition for Writ of Certiorari
As is well known, the historic diocese of South Carolina filed an appeal to the US Supreme Court known as a Petition for Writ of Certiorari dated February 9. 2018 (if needed, further links can be found here and there). As is part of this process the respondent may file a response within the normally allotted time of 30 days ‘but is not mandatory except in a capital case.’ Sometimes, however, the US Supreme Court may order the respondents to do so.
A S Haley explains that exactly this order has come from the US Supreme Court:
The Supreme Court has ordered the respondents — ECUSA and ECSC — to file a brief in response to the petition by March 29. This means that the Court did not want to act on the petition before hearing from both sides. (Ordinarily, a respondent in the Supreme Court has the option of waiving the filing of a response to a petition for certiorari [review]. But not this time.)
With respondents’ brief due on March 29, any reply brief from the petitioners will be filed by April 9, and the Justices could consider the petition at one of their Friday conferences on April 20 or 27. If the respondents ask for an extension of time, this sequence will stretch out by thirty days or more.]
You can find the page concerning these matters on the US Supreme Court website there.
(Readers interested in all the rules involved in a Petition for Writ of Certiorari may go to Part III here and examine rules 10-16).
A S Haley: Supreme Court Orders new Episcopal Church Diocese in South Carolina and TEC to respond to Historic Diocese of #SouthCarolina’s Petition for Writ of Certiorari https://t.co/7609K0wXes #law #religion #episcopalchurch #usa #religiousfreedom #history pic.twitter.com/yv8ClW9uc7
— Kendall Harmon (@KendallHarmon6) February 28, 2018
Bishop Mark Lawrence and his Episcopal Diocese of South Carolina, along with a number of member parishes, having lost a confusing, non-definitive and divided decision in that State’s Supreme Court, have filed a petition for writ of certiorari (review) in the United States Supreme Court. The petition (fifty pages, downloadable from this link) asks the Court to bring harmony to the multiple lower court decisions that diverge over the meaning of “neutral principles of law” as used by the Court in its seminal case of Jones v. Wolf, 445 U.S. 595 (1979).
As the petition lays out with masterful clarity, both state and federal courts apply differing standards of “neutral principles” in approaching the resolution of disputes over the ownership of church property:
Nearly 40 years after this Court last addressed the neutral-principles approach in Jones, the courts are deeply divided about what “neutral” means. For many courts, “neutral” means just that—“neutral”: the high courts of seven States, plus the Eighth Circuit and three intermediate state courts, follow Jones’ clear guidance and resolve property disputes between religious organizations by applying well-established state trust and property law. These jurisdictions hold that a disassociating local church’s property is held in trust for the national church only if the alleged trust satisfies ordinary state law requirements for the creation of trusts. Courts and commentators call this the “strict approach” to Jones, because it blinds judges to the religious nature of the parties to the dispute, requiring them to apply the same ordinary state law that would apply to property disputes between any other parties….
The petition then addresses the Court directly, and explains why it should grant review:
Petitioners are here for one simple reason: they are churches. If this dispute arose between two secular organizations, or between a religious and a secular organization, the party standing in Petitioners’ shoes would have prevailed. Thus, far from yielding to the First Amendment, the decision below actually violates it. The Religion Clauses command a “principle of neutrality” whereby “the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the Free Exercise Clause.” McCreary Cty. v. American Civil Liberties Union of Ky., 545 U.S. 844, 875-76 (2005). The hybrid approach disregards this vital bulwark, favoring one religious organization over another by allowing a national church to disregard the requirements of state trust law at the expense of a disassociated congregation’s claim to property. As two leading commentators recently emphasized, the strict approach to Jones is “the only approach consistent with the free exercise and nonentanglement principles of the Religion Clauses.” Michael W. McConnell & Luke W. Goodrich, On Resolving Church Property Disputes, 58 ARIZ. L. REV. 307, 311 (2016).
The persistent confusion over the meaning of Jones and the neutral-principles approach has resulted in polar-opposite outcomes in materially indistinguishable cases, creating enormous — and enormously expensive — uncertainty for this country’s religious institutions. Case outcomes turn on courts’ differing interpretations of Jones and the First Amendment, not on how the parties have arranged their affairs under state law. This case could have been easily resolved under ordinary state trust and property law. Instead, the parties and the property have been mired in litigation since 2013. Several years and millions of dollars later, Petitioners seek this Court’s review.
And we know that for those who love God all things work together for good, for those who are called according to his purpose. Romans 8:28
Brothers and Sisters in Christ,
On Friday, February 9 the Diocese of South Carolina and its parishes took the historic step of filing a Petition for Writ of Certiorari with the United States Supreme Court. The requested review of the adverse ruling by the South Carolina Supreme Court focuses on addressing the key constitutional questions in that case. The U.S. Supreme Court ruled in 1979 that church property disputes may be settled by applying “neutral principles of law”. The South Carolina Supreme Court has interpreted that precedent as meaning that some religious institutions (such as TEC) are subject to standards of trust and ownership that would never be recognized under state law for anyone else. As Justice Kittredge in his opinion aptly stated, under truly neutral principles of law, “the suggestion that any of the thirty-six local churches created a trust in favor of the national church would be laughable.”
Our Petition addresses as the central issue in our litigation the following question: Whether the “neutral principles of law” approach to resolving church property disputes requires courts to recognize a trust on church property even if the alleged trust does not comply with the State’s ordinary trust and property law.” (Petition, p. i)
As the Petition goes on to argue, the original intention of the neutral principles approach is to rely “exclusively on objective, well established concepts of trust and property law familiar to lawyers and judges.” and “embodied in some legally cognizable form.” Jones v. Wolf (1979). Strict application of this principle would mean that it could not be determined that parish property is held in trust for the national church unless such a trust satisfied ordinary state law requirements for the creation of trusts. The petition makes the point that the Jones majority expressly ruled out “compulsory deference” to national denominations, in its affirmation of neutral principles.
The plurality position in the South Carolina court unquestionably did not take this “neutral” approach. Those justices believed that requiring a national church to comply with ordinary State trust and property law would “impose a constitutionally impermissible burden on the national Church and violate the first amendment.” Courts and commentators call this the “hybrid approach” because it rejects application of ordinary state law in favor of deference to the national church’s unilateral rule and canons (i.e. the “Dennis Canon”). It is compulsory deference in effect if not in name.
The State Supreme Court’s earlier All Saints (2009) ruling clearly upheld the neutral principles approach and was the basis around which the Diocese and its parishes ordered their common life and governing documents. As former Chief Justice Toal noted in her dissenting opinion on the South Carolina court, its August ruling is a “distinct departure from well-established South Carolina law and legal precedents… appears to be driven by a sole purpose: reaching a desired result in this case.” All Saints, embraced in name but not result, illustrates the concern raised in our petition. “The vacillation of the Supreme Court of South Carolina from the strict approach in All Saints to the hybrid approach in this case makes clear that title to local church property is no more secure than the composition of a state’s high court.” (Petition, p. 38)
The U.S. Supreme Court is asked to take this case, because it represents “a deep, acknowledged and fully matured split both among and within the Nation’s courts over the meaning of Jones and its “neutral principles of law” approach.” (Petition, p. 18) The high courts of at least seven states, plus the Eighth Circuit have required the application of normal trust principles as Jones suggests. The high courts of at least eight other States, however, now including South Carolina, have adopted the less than neutral interpretation that “courts must recognize trusts announced in church canons, even if those alleged trusts do not satisfy the requirements of state law.” (Petition, p. 18)
It is our assertion that this approach violates both the Free Exercise and Establishment clauses of the First Amendment to the United States Constitution. The former prevents states from burdening the free exercise of religion. The “hybrid” approach clearly does this by conditioning congregations’ free exercise of differing religious beliefs on their willingness to surrender their property to TEC who has neither owned nor contributed to its purchase. Similarly, the Establishment clause forbids the government from favoring one religion over another. The “hybrid” approach irrefutably does that as well, “allowing national churches – and no one else – to skirt ordinary state trust and property law… The law cannot then place a thumb on the scale in favor of a national church in its property dispute with a disassociating congregation…” (Petition, p. 19) As observed by Justice Rehnquist in an earlier opinion, “If the civil courts are to be bound by any sheet of parchment bearing the ecclesiastical seal and purporting to be a decree of a church court, they can easily be converted into handmaidens of arbitrary lawlessness.” Serbian, (1976).
It is anticipated that today’s Petition will be considered by the U.S. Supreme Court in the coming months and the decision whether to grant review or not will be made before the end of the current session in June. If review is granted, a hearing would be late this year or in the Spring of 2019. In the meantime, we should remain prayerfully confident as a Diocese that God is working His purposes out in all these things and will redeem them for the greater blessing of the Church and the spread of the Kingdom. To those ends I encourage your continued prayers.
–The Rev. Jim Lewis is Canon to the Ordinary to the Bishop of South Carolina
(if necessary you may find a link for the original letter on the web there).
(NR) David French–The Dangerous Supreme Court Case, National Institute of Family and Life Advocates (NIFLA) v. Becerra, nobody Is Talking About
The NIFLA case, however, is unquestionably about compelled speech. The state of California has enacted a law, the so-called FACT Act, that requires pro-life crisis-pregnancy centers to prominently place a notice informing clients that California offers low-cost and even free abortions to women who qualify and providing them a phone number that grants quick access to abortion clinics.
In other words, California is requiring pro-life professionals — people who’ve dedicated their lives to protecting the unborn by offering pregnant mothers alternatives to abortion — to advertise state-sponsored abortions. California is making this demand even though it has ample opportunity to advertise state services without forcing pro-life citizens to do so. The state can rent billboard space on the very streets where crisis-pregnancy centers are located. It can hand out leaflets on the sidewalk. It can advertise on television and the radio. It can advertise on the Internet or social media. But rather than using its own voice, it is co-opting the voices of its pro-life citizens, forcing them to join its pro-abortion crusade.
And the Ninth Circuit Court of Appeals held that the FACT Act is constitutional. To validate California’s oppressive act, its decision carved out a dangerous First Amendment exception for what it deemed “professional speech” — “speech that occurs between professionals and their clients in the context of their professional relationship” — and ruled that the state had much greater leeway in regulating, for example, doctor/patient communication.
Historic victory over Jim Crow–Elizabeth Herbin-Triant on the Supreme Court’s 1917 decision in Buchanan v. Warley
The celebration of the legacy of Martin Luther King Jr., is a time when Americans should remember not just King’s work, but that of many other civil rights activists whose efforts King built upon. One important milestone won by civil rights activists decades before King came to the world’s attention is the Supreme Court’s decision in Buchanan v. Warley. This little-remembered decision, made 100 years ago last November, dealt a blow to Jim Crow at a time when segregation was flourishing in the South.
In 1914, Louisville, Ky. implemented an ordinance prohibiting African-Americans from occupying houses on majority-white blocks and whites from occupying houses on majority-black blocks. The ordinance was part of a regional trend. In 1910, Baltimore became the first to enact such an ordinance, followed by about a dozen other cities across the South over the next few years.
The lengthy title of Louisville’s ordinance contained its rationale: “An ordinance to prevent conflict and ill-feeling between the white and colored races in the city of Louisville, and to preserve the public peace and promote the general welfare, by making reasonable provisions requiring, as far as practicable, the use of separate blocks, for residences, places of abode, and places of assembly by white and colored people respectively.”
(WSJ) Tunku Varadarajan: India’s Imaginary ‘Love Jihad’–Judges break up the marriage of a Hindu woman who converted to Islam
This is the story of Hadiya, currently the most famous woman in India. Like any person of modest profile rocketed into national headlines, she’d rather be leading an anonymous life. But her parents—and the Supreme Court of India—will not let her.
Hadiya, a medical student, was born 25 years ago into a Hindu family in the southern state of Kerala. In 2015 she converted to Islam, and last year she married a Muslim man. In the process, she changed her Hindu given name from Akhila Ashokan to the adoptive Muslim Hadiya.
Her parents, appalled by the decision, urged the courts to annul her marriage in December 2016. They contended that she had converted to Islam under duress. Worse, they alleged that their daughter’s husband, Shafin Jahan, was involved in terrorism and intended to traffic her to Syria.
In a judgment that was startling in its paternalism and sexism, the Kerala High Court annulled Hadiya’s marriage, holding that she could not possibly have converted and married of her own free will.
(NR) David French–Stop Misrepresenting the Masterpiece Cakeshop Case Heading to the US Supreme Court
To the extent that Boylan engages with Phillips’s actual argument, she waves it away with a paragraph so specious that one has to read it to believe it:
Mr. Phillips certainly makes nice-looking cakes. But I’m not sure I’d call them artistic expressions, at least not in the same sense as, say, Joyce’s “Ulysses.” That argument demands that the court get into the business of defining art itself, a door the justices open at their peril. Is a well-manicured lawn a form of art by this definition? How about a lean corned beef sandwich? What would not be art if the court rules to protect icing and buttercream?
In this case, the complaining gay couple ultimately decided on a rainbow cake. Can Boylan not see that the cake clearly and unmistakably sent a specific message? There is a substantial difference between a rainbow symbol at an event celebrating a same-sex wedding and a corned-beef sandwich. Phillips isn’t comparing himself to Joyce, he’s making the painfully obvious point that there’s a viewpoint inherent in the expression his customers asked him to create — a viewpoint that a well-manicured lawn lacks.
Here’s the problem. If a writer squarely addresses the argument that Phillips actually makes, then she will soon run head-on to a sobering constitutional reality. Sexual revolutionaries are asking the Court to overturn generations of constitutional precedent to allow the state to compel American citizens to advance ideas they find reprehensible.
Boylan claims that Phillips is seeking special religious exemptions. To the contrary, sexual revolutionaries are seeking exemptions from the Constitution. They believe that same-sex marriage is so precious that even artists can be conscripted into the ceremony — despite their deeply held beliefs. They believe that the cost of entering the marketplace is not just the loss of your distinct artistic voice but the commandeering of that voice by your ideological foes to advance their ideological interests.
Read it all (his emphasis).
(Wash Post) Erik Wemple–NYT’s (former Supreme Court Reporter) Linda Greenhouse boasts of monthly Planned Parenthood donations
Linda Greenhouse has nothing to hide with respect to her charitable activities. Writing in her new book “Just a Journalist: On the Press, Life and the Spaces Between,” the former New York Times reporter notes that she wasn’t content to allow Planned Parenthood to deduct a monthly contribution from her bank account. “It was important to me to write a check every month and sign my name,” writes Greenhouse, who is now a contributing op-ed writer for the same paper. “It was the signature of a citizen. The stories that appeared under my byline, on abortion and all other subjects, were the work of a journalist. If anyone ever thought those failed to measure up to professional standards, they never told me or anyone else.”
That’s one heck of an internal firewall. Skeptics of Greenhouse’s remarkable ethical divisibility are already speaking up. “Rather than meld her identities, she dons or sheds them whenever convenient,” writes Washington Post book critic Carlos Lozada.
The New York Times itself preaches caution when making donations. “Staff members should think carefully about their own contributions to various causes, bearing in mind the need for neutrality on divisive issues,” notes a September 2004 New York Times ethics guide. “Those in doubt about contributions should consult their supervisors and the standards editor or the deputy editorial page editor.”
Trinity Lutheran argued that Missouri was violating the free exercise clause of the First Amendment (“no law … prohibiting the free exercise of religion”) by declaring the church’s preschool ineligible for a grant program—which helped cover the cost of safer playground surfaces made of recycled tires—just because the school was affiliated with the church.
On the other side, the Missouri Department of Natural Resources deployed the establishment clause of the First Amendment (“no law respecting the establishment of religion”) to defend its decision not to provide aid directly to a church, even if used for a secular purpose. This prohibition has been codified in Missouri and 30 other states under laws known as “Blaine Amendments.” Missouri’s bars state funds from going “directly or indirectly, in aid of any church, sect, or denomination of religion.”
While Roberts wrote that the consequences of Missouri’s rejection were likely “a few extra scraped knees,” he considered the discriminatory policy “odious to our Constitution all the same.” He defended the rights of religious institutions to get their fair share of public benefits.
By siding with the church, the Supreme Court sets a precedent against a strict interpretation of state-level Blaine Amendments, thereby shifting the prospects for religious institutions’ involvement in public programs.
What comes through in these opinions is a recognition that seems to have eluded Scalia in 1990: The law is meant to be a bulwark against the infringement—whether by government or other powerful entities—upon a person’s religious conscience and practices. It is not enough to allow Americans to believe as they wish; they must also be able, generally, to act in conformity with their beliefs.
Accommodations for religious observance are welcome from the legislative or executive branches, but the Framers put freedom of religion in the Bill of Rights to guarantee it. The First Amendment applies to people of all faiths, and shouldn’t depend on political power. What is required is enforcement by jurists sensitive to the needs of religious minorities.
Whether Judge Gorsuch will be confirmed to the Supreme Court remains to be seen. But his record suggests that those who care about religious liberty may want to pray that he gets the chance to rule on it.
“He was a man. Take him for all in all. [We] shall not look upon his like again.” Those words from Hamlet seem appropriate on the death of US Supreme Court Justice Antonin Scalia. He had a powerful effect on the Court and on the law more broadly. Scalia was the most eloquent and prominent proponent of the idea that the Constitution should be interpreted according to the “original meaning” of its words: the meaning they had at the time of their adoption. He argued, in his inimitable style, for a “dead Constitution”””whose meaning is fixed until changed by formal amendment””over a “living Constitution” that a judge can manipulate into whatever shape he wishes.
Moreover, except for Ruth Ginsburg, it is hard to imagine another justice becoming so visible in the broader culture. Many who hated Scalia’s rulings could not help but be entertained by his razor-sharp writing, which he used especially in his dissenting opinions to carve up the majority’s reasoning (my favorite is Planned Parenthood v. Casey, where among other things he referred to the majority’s “Nietzschean vision of us unelected, life-tenured judges””leading a Volk who will be ”˜tested by following’” the Court’s rulings obediently). In a talk at my law school last November, he said that he wrote his dissents “mainly for you guys, for law students.” His eloquence inspired generations of lawyers and students convinced by his judicial philosophy.
Chai Feldblum isn’t a minor figure. She is the head of the on the Equal Employment Opportunity Commission, having been appointed by President Obama, and will be in that post until her term expires in 2018. Long before she was elevated to the EEOC chairmanship, Feldblum was known for her view that there are almost no situations in which disputes between religious liberty and gay rights should be resolved in favor of religious liberty.
It fell to Andrew Sullivan (whose voice I miss more and more every week) to defend freedom to the crowd. You really should read the whole Reason report to hear what he had to say. It includes a link to Andrew’s presentation, in which he says that the LGBT-industrial complex needs to keep the bogeyman of Oppression alive (“These people’s lives and careers and incomes depend on the maintenance of discrimination and oppression”), and says that religious liberty is just about the most important American freedom.
The hard truth is that Andrew Sullivan, alas for us all, is irrelevant to the debate now. When I saw him this spring in Boston, he told me that he can’t go on some campuses now because the gay left hates him for speaking out for religious liberty, and in particular for Brendan Eich. Think about that: fewer than four years ago, the president of the United States was formally committed to maintaining traditional marriage in law. Now, we have Court-mandated gay marriage from coast to coast, and Andrew Sullivan, who has done as much or more than any single person to make that happen, is now regarded by the gay rights movement as some sort of reactionary because of his liberal views.
Read it all (emphasis mine).
I will take comments on this submitted by email only to KSHarmon[at]mindspring[dot]com.
After the Obergefell decision, Time magazine writer Mark Oppenheimer was quick to declare that the state should “abolish, or greatly diminish” property tax exemptions for churches that “dissent from settled public policy on matters of race or sexuality.”
Punishing “dissent” seems a strange new role for the American government. In the mid-twentieth century, the Catholic church was a leading advocate against anti-miscegenation laws. The church was able to take a stand contrary to the state on marriage and not be penalized for it, a position now almost unquestionably supported by Americans. And despite the confidence of those like Oppenheimer, the dissenters aren’t even a minority in the more recent marriage controversy. Most Americans favor religious liberty, and a plurality oppose Obergefell.
Allowing conscientious objection is an acknowledgment that the state does not have all the answers. The state has an obligation to make laws, but the state has no obligation to be correct. The independent voices that critique the state make the state better, and should not be silenced. Lose churches, lose the independent voices that prevent the state from having an absolute say in complicated moral matters.
“Compromising the truth is a serious blunder” but we must always live out our beliefs with love and grace, Ravi Zacharias has said in a detailed blog post addressing same-sex relationships.
The author and speaker who chairs the Oxford Centre for Christian Apologetics (OCCA), says he is against gay marriage, and points to the biblical description of one man and one woman in sacred commitment. “So profound is this union that the relationship of God to the Church bears that comparison. He is the bridegroom; the Church is the bride,” Zacharias writes.
Responding to the US Supreme Court’s recent decision to legalise same-sex marriage, which Zacharias says “sent tremors around the globe,” the author warns that we are at “breaking point”.