{"id":68109,"date":"2018-02-10T17:40:41","date_gmt":"2018-02-10T22:40:41","guid":{"rendered":"http:\/\/kendallharmon.net\/?p=68109"},"modified":"2018-03-04T18:14:09","modified_gmt":"2018-03-04T23:14:09","slug":"historic-south-carolina-diocese-files-a-writ-of-certiori-with-the-us-supreme-court","status":"publish","type":"post","link":"https:\/\/kendallharmon.net\/?p=68109","title":{"rendered":"Historic South Carolina Diocese files a Petition for Writ of Certiorari with the US Supreme Court"},"content":{"rendered":"

And we know that for those who love God all things work together\u00a0for good,\u00a0for\u00a0those who are called according to his purpose.\u00a0<\/strong>\u00a0Romans 8:28<\/em><\/p>\n

Brothers and Sisters in Christ,<\/p>\n

On Friday, February 9 the Diocese of South Carolina and its parishes took the historic step of filing a\u00a0Petition for Writ of Certiorari<\/a>\u00a0with the United States Supreme Court.\u00a0 The requested review of the adverse ruling by the South Carolina Supreme Court focuses on addressing the key constitutional questions in that case.\u00a0 The U.S. Supreme Court ruled in 1979 that church property disputes may be settled by applying \u201cneutral principles of law\u201d.\u00a0 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, \u201cthe suggestion that any of the thirty-six local churches created a trust in favor of the national church would be laughable.\u201d<\/p>\n

Our Petition addresses as the central issue in our litigation the following question:\u00a0 Whether the \u201cneutral principles of law\u201d 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\u2019s ordinary trust and property law.\u201d (Petition,<\/em>\u00a0p. i)<\/p>\n

As the Petition goes on to argue, the original intention of the neutral principles approach is to rely \u201cexclusively on objective, well established concepts of trust and property law familiar to lawyers and judges.\u201d and \u201cembodied in some legally cognizable form.\u201d\u00a0Jones v. Wolf\u00a0<\/em>(1979).\u00a0 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.\u00a0 The petition makes the point that the\u00a0Jones<\/em>\u00a0majority expressly ruled out \u201ccompulsory deference\u201d to national denominations, in its affirmation of neutral principles.<\/p>\n

The plurality position in the South Carolina court unquestionably did not take this \u201cneutral\u201d approach.\u00a0 Those justices believed that requiring a national church to comply with ordinary State trust and property law would \u201cimpose a constitutionally impermissible burden on the national Church and violate the first amendment.\u201d\u00a0 Courts and commentators call this the \u201chybrid approach\u201d because it rejects application of ordinary state law in favor of deference to the national church\u2019s unilateral rule and canons (i.e. the \u201cDennis Canon\u201d).\u00a0 It is compulsory deference in effect if not in name.<\/p>\n

The State Supreme Court\u2019s earlier\u00a0All Saints\u00a0<\/em>(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.\u00a0 As former Chief Justice Toal noted in her dissenting opinion on the South Carolina court, its August ruling is a \u201cdistinct 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.\u201d\u00a0\u00a0All Saints<\/em>,\u00a0embraced in name but not result, illustrates the concern raised in our petition.\u00a0 \u201cThe vacillation of the Supreme Court of South Carolina from the strict approach in\u00a0All Saints<\/em>\u00a0to the hybrid approach in this case makes clear that title to local church property is no more secure than the composition of a state\u2019s high court.\u201d\u00a0 (Petition,<\/em>\u00a0p. 38)<\/p>\n

The U.S. Supreme Court is asked to take this case, because it represents \u201ca deep, acknowledged and fully matured split both among and within the Nation\u2019s courts over the meaning of\u00a0Jones<\/em>\u00a0and its \u201cneutral principles of law\u201d approach.\u201d (Petition,\u00a0<\/em>p. 18)\u00a0\u00a0 The high courts of at least seven states, plus the Eighth Circuit have required the application of normal trust principles as\u00a0Jones<\/em>\u00a0suggests.\u00a0 The high courts of at least eight other States, however, now including South Carolina, have adopted the less than neutral interpretation that \u201ccourts must recognize trusts announced in church canons, even if those alleged trusts do not satisfy the requirements of state law.\u201d (Petition,\u00a0<\/em>p. 18)<\/p>\n

It is our assertion that this approach violates both the Free Exercise and Establishment clauses of the First Amendment to the United States Constitution.\u00a0 The former prevents states from burdening the free exercise of religion.\u00a0 The \u201chybrid\u201d approach clearly does this by conditioning congregations\u2019 free exercise of differing religious beliefs on their willingness to surrender their property to TEC who has neither owned nor contributed to its purchase.\u00a0\u00a0 Similarly, the Establishment clause forbids the government from favoring one religion over another.\u00a0 The \u201chybrid\u201d approach irrefutably does that as well, \u201callowing national churches \u2013 and no one else \u2013 to skirt ordinary state trust and property law\u2026\u00a0 The law cannot then place a thumb on the scale in favor of a national church in its property dispute with a disassociating congregation…\u201d (Petition,\u00a0<\/em>p. 19)\u00a0\u00a0 As observed by Justice Rehnquist in an earlier opinion, \u201cIf 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.\u201d\u00a0Serbian,<\/em>\u00a0(1976).<\/p>\n

It is anticipated that today\u2019s 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.\u00a0\u00a0 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.\u00a0 To those ends I encourage your continued prayers.<\/p>\n

–The Rev. Jim Lewis is Canon to the Ordinary to the Bishop of South Carolina
\n(if necessary you may find a link for the original letter on the web there<\/a>).<\/p>\n","protected":false},"excerpt":{"rendered":"

And we know that for those who love God all things work together\u00a0for good,\u00a0for\u00a0those who are called according to his purpose.\u00a0\u00a0Romans 8:28 Brothers and Sisters in Christ, On Friday, February 9 the Diocese of South Carolina and its parishes took…<\/span><\/p>\n

Read more ›<\/a><\/div>\n

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