We were surprised and deeply disappointed in the ruling released yesterday
We were surprised and deeply disappointed in the ruling released yesterday (August 2) by the South Carolina Supreme Court in the property dispute between the Diocese of South Carolina and The Episcopal Church. In a 3-to-2 split vote, the Court found in favor of TEC, with the exception of eight churches that will retain their property because they had not acceded to the Dennis Canon. This means that the Diocese and Bishop Mark Lawrence lose everything else – the diocesan offices, the Cathedral, the Bishop’s residence, their camp and conference center, all those historic colonial churches and rectories in Charleston, and so on. It is a horrendous loss, and we grieve with our brothers and sisters there in this shocking defeat. Pray for them as they consider next steps and finding a way forward in the face of this loss.
Many will wonder if this decision will have any effect on our case, now pending before the Second Court of Appeals. After consulting with our attorneys, I write to tell you, “No, it should not,” for several reasons.
1. South Carolina has different state laws than Texas for revoking property trusts. South Carolina law provides that trusts are irrevocable unless they state otherwise; Texas law says that trusts are revocable unless they state otherwise. Since the Dennis Canon does not state one way or the other, it was held to be irrevocable in South Carolina, while the Texas Supreme Court has already held it is revocable in Texas. As you know, our Diocesan Convention validly revoked it in 1989, and our founding Convention in 1982 had not acceded to it in the first place.
2. South Carolina has a law that says religious doctrine governs religious corporations if it differs from state law. But the Texas Supreme Court in our case has held that under the Neutral Principles approach state law governs how religious corporations elect officers or amend their articles and bylaws, unless the corporate charters incorporate religious concepts or provide for control by a church or denomination. The charters of the Corporation of our Diocese do not.
3. A majority of the South Carolina Court held that the observation in the United States Supreme Court decision called “Jones v. Wolf” that the burden of establishing denominational trusts should be “minimal” means the Constitution overrides state law on how trusts are created. However, the Texas Supreme Court has expressly rejected this argument.
4. The South Carolina Court held that the Dennis Canon did not create a trust because the party purporting to create the trust (TEC) did not own the property. But one of the judges in the majority agreed with the minority (thus making it a majority) that a trust was created by 28 parishes when they acceded to TEC’s Constitution and Canons (including the Dennis Canon), while no trust was created for eight parishes that never so acceded—hence they will keep their property. By contrast, as I mentioned above, our Diocese specifically did not accede to the Dennis Canon in 1982 when our first Constitution provided that church property could not be conveyed or encumbered without the written consent of both the Corporation and of the parish that occupied it. This qualified accession to TEC’s charters was allowed by TEC’s Constitution at the time, as unqualified accessions were not required until the day after our Diocese was admitted as a member diocese.
5. The appeal here in Fort Worth is governed by a remand opinion from the Texas Supreme Court, which has established what is called “the law of the case.” This “law of the case” is significantly different from opinions that have come out of the South Carolina Court. The Fort Worth Court of Appeals is obligated to follow our Supreme Court’s opinion, just as Judge Chupp did in the trial court.
These are just some of the differences between the South Carolina case and our own. For Texas courts to follow the South Carolina opinion, the Texas Supreme Court would have to take back most of what it held to be the law in Texas in both our case and the Masterson case (concerning the Church of the Good Shepherd in San Angelo). That is unlikely. But it does appear to be what happened in South Carolina. Although the 2009 opinion in that state held unanimously (5-0) in favor of a withdrawing parish, Wednesday’s opinion came out the other way, due to the addition of three different judges. This underscores the risk that who the judges are is sometimes just as important as what the law is. Let this be a reminder to all of us that we need to pray for all judges, both those who signed the 2013 opinion in our favor and those who did not, as well as the judges on the Fort Worth Court of Appeals who are currently considering TEC’s appeal of the judgment in our favor granted by Judge Chupp in July of 2015.
Let us remain hopeful and prayerful, and let us remain focused on proclaiming the Good News of Jesus Christ as we await the Court’s ruling here in Fort Worth. May the Lord in His goodness look with favor upon us.
Faithfully in Christ,
The Rt. Rev. Jack Leo Iker
Bishop of Fort Worth