Commentary


Why SCOTUS Appeal was Doomed

Five reasons it was a Hail Mary pass from the get-go


Today's decision by the nation's highest court to reject Mark Lawrence's appeal of last August's ruling by the S.C. Supreme Court was not a surprise to lawyers for either the breakaways or the Episcopal Church and its continuing diocese.

After five years, millions of dollars, and significant legal miscalculations, the Lawrence legal team filed what was essentially a "Hail Mary" pass last spring in asking the United States Supreme Court to consider an appeal of the ruling.


While the justices did not share their rationale for the rejection, there is a great deal of informed speculation from among former justices, their clerks, and Constitutional lawyers as to why some cases are accepted and others rejected.

There are at least five of them that might have affected their decision to reject this appeal.

1.  No compelling Constitutional issues at stake.

With 99-to-1 odds of being even accepted by the Court, an appeal has to raise compelling Constitutional issues to warrant the time and attention of the justices. This case lacked that.

The 2013 lawsuit filed by former Bishop Mark Lawrence and his followers was a request that the Courts in South Carolina make clear the circumstances under which the state's laws could be applied to the ownership of property by denominations like the Episcopal Church.

That question grew primarily out of two United States Supreme Court decisions that the breakaway group claims are creating confusion among in state courts, like those in South Carolina.

The first case is known as
Watson vs. Jones (1871).  It established the legal concept of "hierarchical deference" for use in the resolution of legal disputes involving the ownership of congregational property in denominations with hierarchical governing structures.   In those cases, according to the Watson ruling, courts must defer to the governing structures of the Church in deciding the outcome of these cases.

The second case is
Jones vs. Wolf (1979)  in which the U.S. Supreme Court allowed state courts the option of using their state's property laws in these kinds of disputes instead of hierarchical deference.  However, this option could only be deployed in disputes in which doctrine or theology were not factors.

The term used to describe the application of this method of resolving property disputes is "neutral principles of law."  Translated, that means state and local property laws.

The breakaways' legal team filed its 2013 lawsuit against the Church in a state court, with the idea that it and later the state's Supreme Court would use the "neutral principles" approach to find in their favor.

They had good reason to believe this.  The state Supreme Court had used neutral principles in the 2009 case of
All Saints' Episcopal Church at Pawleys Island and unanimously determined that the parish had left the Episcopal Church 77 years earlier.  Even better, the author of that opinion was then-Chief Justice Jean Toal, who very likely would still be on the high court by the time the lawsuit got there.

Confident of success, the breakaways' legal team also calculated that the Episcopal Church would not appeal the ruling to the U.S. Supreme Court out of fear that it would expand the use of neutral principles in the Jones ruling in ways that would further limit the influence of the Church in resolving property disputes with schismatic groups.


None of these were unreasonable assumptions.

However, there was also another way to look at it, and that was the one the South Carolina and United States Supreme Courts chose to take.    In many ways, it was the more conventional and consistent. 


Aside from the shock of a 3-2 decision in the Church's favor, the Lawrencians were astonished that the Court's majority came to its decision using the very neutral principles approach they'd advocated.   In essence, the justices said that the arrangement by which the Episcopal Church and its parishes are bound is consistent with South Carolina laws establishing the rightful owners of parish properties.

In taking this route, the state's high court left the breakaway lawyers without clear and compelling grounds for an appeal.   According to an attorney close to the case, "The justices came to a conclusion that looked like hierarchical deference by using neutral principles."

Church attorneys then used that rationale to argue to the U.S. Supreme Court that because the state's Supreme Court had used neutral principles in a manner consistent with the Jones ruling, the Lawrencians appeal contained no broader Constitutional issues requiring its intervention. 

Obviously, they agreed.  

2.  Federal Courts are generally reluctant to mess with state Supreme Court rulings unless they are really out-of-line.

The U.S. Supreme Court considers appeals that are generated by courts in the Federal system as well as at the state level.  However, the justices are generally not keen on taking cases from states unless they contain issues presenting a clear challenge to the Federal Constitution.

Cases coming from the states bring with them a myriad of interrelated issues that would be affected by the intervention of the high court.    State laws and constitutions raise issues that always must be balanced against Federal Constitutional issues.  Making it even more complicated, while the Court might take an appeal from one state, the consequences would affect all fifty states and in ways that could upset decades of judicial precedence at the state level.

States' Rights.  Justices are also very sensitive to the perception of judicial overreach.  During much of the last half-century, the Court was pummeled with criticism that it was extending its authority over too many key issues that should be left to the states to resolve.

The 1979 Jones case, for example, was a way for the high Court to respond to that criticism by saying to the states, 'Here's an area in which you can apply your own state laws as long as there are no doctrinal issues that must be protected under the U.S. Constitution'.  


It did the same thing in Roe vs. Wade in 1973 in determining that a woman had a Constitutional right to terminate a pregnancy, but leaving it to the states to determine the circumstances and conditions in which that right could be exercised.

Less than twenty states - now including South Carolina -- have relied on the precedents set inJones in establishing their method of dealing with Church property issues.  However, that number is likely to grow.  Assuming they, like ours, do not raise significant Constitutional issues, the justices of the U.S. Supreme Court will continue to have no appetite for needlessly upsetting that apple cart.

3.  Justices are reluctant to mess with "settled law"
.

The Jones decision has every indication of becoming what might be considered settled law, meaning there is a growing body of cases that reflects a consensus on its usefulness and reliability in resolving Church property disputes by the states. 


Hierarchical denominations.  However, settled law has a ripple effect that even goes beyond the courts.  Governing structures of hierarchical churches must also adapt as well.  


After the Jones decision, most hierarchical denominations adopted changes to their bylaws in response to new realities effected by the Jones ruling.  In the Episcopal Church, this response has taken the form of the Dennis Canon, which was adopted by the 66th General Convention in 1979. 


The Dennis Canon codified a legal paradigm in which individual congregations own their own properties, but hold them in trust for the Episcopal Church and its local diocese.  In effect, their rectors, wardens, and vestries are "trustees" of the parish, and consequently responsible for maintaining the terms of the trust.


The Dennis Canon was enthusiastically supported by the South Carolina delegates to that Convention.

Here's what it says: "All real and personal property held by or for the benefit of any Parish, Mission, or Congregation is held in trust for this Church [i.e., the Episcopal Church] and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons."

The South Carolina breakaway group originally argued in its lawsuit that the Dennis Canon is not in effect in South Carolina because, in the All Saints' case in 2009, the state Supreme Court allowed the parish to leave the Church by applying  neutral principles (state laws) alone. 


However, the breakaway attorneys made a huge mistake in 2013 in assuming that, because of the All Saints' case, the Dennis Canon could not be applied in any future dispute over Church property in South Carolina.

The circumstances in  All Saints' were unique to that situation, and greatly influenced by the reorganization of the parish in 1902 and a quitclaim deed the Church had given the parish in 1903, threw which it relinquished any interest it might have had in its property.  
SC Episcopalians was subsequently told that after the decision was handed down by the state Supreme Court, some of its justices made it clear to lawyers for the Diocese of South Carolina they should not assume their rejection of the Dennis Canon in All Saints' constituted a reliable precedent that could be universally applied to all Church property cases in South Carolina.

4.  Unless there is a significant Constitutional issue involved, appeals that don't reflect arguments presented at trial are less likely to be granted cert

During the 2014 trial of the Lawrence lawsuit in the courtroom of Dorchester County Judge Diane Goodstein, the breakaways' legal team was relentless in arguing that the case did not raise any Federal Constitutional issues and could be resolved solely on the basis of existing state law.

They also argued successfully to Goodstein that South Carolina was a "neutral principles state" because of the All Saints' decision.

Goodstein fell for it.

When the state Supreme Court ruled last August, it followed the neutral principles approach and found the Dennis Canon valid, there by robbing the breakaway group of the core of its case for emancipation. This meant that in order to justify an appeal to the U.S. Supreme Court, the Lawrence team had to argue exactly the opposite of what it had argued before Goodstein and the state Supremes.


5.  The Supreme Court is biased toward the Church.


The Supreme Court of the United States is not the arbiter of what is fair or reasonable.   It is the arbiter of what is right ... but only what is right in the eyes of the Federal Constitution.


The Constitution requires the Court to protect the separateness of the governing structures of hierarchical religious organizations... like the Episcopal Church, the Presbyterians, the Lutherans, the Greek Orthodox, the Methodists, the AMEs, and many more.   Secular courts must yield to their authority in determining the outcomes of disputes like this one in which doctrine and theology are at the core.


This is why Constitutional experts tend to agree that the U.S . Supreme Court will only take a challenge to the Jones decision if an appeal is brought by one of these hierarchical denominations.   In such an instance, the justices would see it as the Constitutionally-protected Church coming to them with the complaint that a lower court had infringed on that  protection to which it is entitled.


In the Jones case, nearly 40 years ago, the Court went to great lengths to lay out parameters within which states could and could not apply their state's laws to Church property disputes.   Within those parameters is the idea of a trust relationship between the national Church and its congregations. 


In essence, in refusing to consider the South Carolina case brought by Lawrence, the high court was very likely affirming -- yet again -- that the Dennis Canon is a valid response to the parameters set forth in Jones.


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South Carolina Episcopalians

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