Did the U.S. Supreme Court invite passage of the Dennis canon?

To someone who hasn’t encountered the notion, the idea of an invitation to the Episcopal Church from the U.S. Supreme Court may seem silly. Consider, however, the following language from two briefs recently filed by TEC in pending property litigation:

The “Dennis Canon” was enacted in response to an invitation extended by the U.S. Supreme Court in Jones v. Wolf . . . . (Post-trial opening brief for The Episcopal Church and the Diocese of Virginia, In re Multi-Circuit Episcopal Church Litigation (December 21, 2007), at 44.)

Finally, in 1979, in response to Jones v. Wolf [ ], which invited hierarchical churches to adopt “express trust” provisions in their governing documents to ensure that, in the even of a dispute, local church property would remain with the denomination and its members, the Church adopted Canon I.7(4) . . . .  (The Episcopal Church’s Answer Brief on the Merits before the Supreme Court of California in Episcopal Church Cases (filed January 29, 2008))

That the Supreme Court invited passage of the Dennis canon has in fact been the 815 “party line” since the time of adoption, and corresponding positions are taken by the leadership of other denominations that introduced trust clauses around the same time.  I will speak later in this post about whether the Supreme Court is in the business of issuing invitations of the sort claimed to have been received by TEC.  Let us first, however, consider whether the Dennis canon complies with what the Supreme Court was describing.  Here’s the language from the opinion in Jones v. Wolf, 443 U.S. 595 (1979):

Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.

443 U.S. at 606 [footnote omitted].

The first weakness in the TEC position is that a response that complied with what the Jones language suggests would have required action by “the parties” to a potential dispute, not unilateral action by one party only. That is, there would have to be consent to the amendment by the parish, as the other party to the dispute, not just the denominational hierarchy through General Convention.

Granted, the language to the effect that the constitution of the general church can be made to recite an express trust stands as a separate sentence and the use of the passive voice leaves the necessary actors unspecified within that sentence. But the language can be understood only if read in the context of the general concept embodied in the sentences that both precede it and follow it, which make clear that the action has to be by the parties (plural) to the dispute.

Second, to comply with what is suggested in Jones, the action taken would need to be “embodied in some legally cognizable form,” indicating that there must be not only consent by the parties that are to be bound but also compliance with other applicable legal requirements, such as the formal requirements under state law necessary for creation of a trust.

It is interesting to see how the brief filed at the end of January by the Diocese of Los Angeles in Episcopal Church Cases struggled with the problem of action by the parties versus unilateral action. The following language appears on page 47 of the brief:

Jones carefully explained that the neutral principles approach “cannot be said to ‘inhibit’ the free exercise of religion” precisely because the church can take steps, “[a]t any time before the dispute erupts,” to ensure “that the faction loyal to the hierarchical church will retain the church property.” (Jones, supra, 443 U.S.at 606).

As can be seen from comparing this with the language from Jones quoted above, the Diocese’s brief inserted between rearranged direct quotations a paraphrase that substituted "the church" for what in fairness to the text should have been rendered "the parties."

Now someone will say, and the Diocese does in a footnote on page 30 of the same brief, that St. James’ parish in Newport Beach effectively consented because they were represented at the General Convention where the Dennis canon was adopted. That argument doesn't seem to need much response.  It is sometimes argued that consent was given in advance to whatever the hierarchy might decide through the requirements for parishes to accede to the constitution and canons of the national church. That argument does not work either, for reasons I plan to cover in another post.

The third way in which the Dennis canon differs from what the Jones language suggests is in imposition of the trust rule by canon rather than a constitutional provision as specified in the Jones dictum. Of course this can be argued to be an unimportant distinction, but weighing in the other direction is the fact that constitutional amendments generally require passage on more than one reading, resulting in an opportunity for congregations dissatisfied with the change to take action in the interim.

Turn now to the question whether the Supreme Court issued an “invitation” to the Episcopal Church and other hierarchical denominations. The first point to be made is that the language cited as the "invitation" is dictum, not part of the precedential holding of the case. Remarkably, the Episcopal Church and the Diocese assert the opposite. Sometimes the dividing line between what is dictum and what is part of the holding is less than sharp. But here it is not. TEC endeavors to turn what is dictum into a qualification of the Jones holding, because otherwise its position won’t succeed.

The language from Jones that contains the supposed invitation is not part of the Court’s holding, but rather is part of the opinion’s answer to an argument made against the holding in the dissent authored by Justice Powell. The dissent maintained that a rule of compulsory deference to hierarchical church authority is necessary in order to protect free exercise rights. The opinion of the Court answers this first by saying that the neutral principles method doesn’t frustrate free-exercise rights “any more than do other neutral provisions of state law governing the manner in which churches own property, hire employees, or purchase goods.” The opinion then continues with the language quoted above in order to illustrate more specifically how the parties might ensure, before the dispute arises, that the faction loyal to the hierarchical church will retain the property. The question then becomes how to read the illustrations.

The first possibility (call it Reading No. 1) is that the court is simply giving illustrations that show that neutral principles don’t preclude the kind of private ordering, undertaken in advance, that would be recognized under neutral principles as resulting in the faction loyal to the denominational hierarchy retaining control of the property. Reading No. 1 is consistent with the requirement that the action be taken by “the parties.”

The second possibility (Reading No. 2) is the one TEC is advocating. Under Reading No. 2, if neutral principles don’t yield the result TEC wants – that a unilaterally imposed canon is effective to create a trust – there has to be an exception that will require courts to enforce that result nonetheless. This reading would have the Court, in the process of endorsing the application of neutral principles, create an exception which is itself inconsistent with neutral principles.

Under Reading No. 1, a hierarchical denomination could enact a constitutional rule requiring property to be held in trust and request congregations to consent to it in a legally effective way. For a congregation affiliating with the denomination after passage of the rule, obtaining the consent would be relatively straightforward (but would still require that the consent be “embodied in some legally cognizable form.”)  For a congregation already affiliated, things are more complicated because the congregation can’t be compelled to consent. Still, the denomination could include in the rule a provision requiring disaffiliation if a congregation declined to consent.

TEC appears to be concerned that it is disadvantaged by the retroactive application of the holding in Jones.  The argument would be that TEC has assumed that decisions of its General Convention would be accorded deference under a hierarchical approach and to allow a court to assess its decisions under neutral principles is therefore unfair. [i] But at least three things stand in the way of a retroactivity objection.

• First, Supreme Court decisions are retroactive as a matter of course. Decisions whether to make a result prospective and in what manner are things that a legislative body may do in making law, not things a court does in saying what the law is. There was a period in the 1960s and 1970s when the Supreme Court experimented with various forms of prospectivity, but the Court has now reverted to a firm rule of retroactive application. See, e.g., Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993); Bradley Scott Shannon, The Retroactive and Prospective Application of Judicial Decisions, 26 Harv. J. L. & Pub. Policy 811 (2003). If States are constitutionally entitled to apply neutral principles of law in resolving church property disputes on the day Jones was decided, they were constitutionally entitled to do so the day before and they continue to be the day after.  Even though Jones was decided during the period when some of the Court's experimentation with prospectivity was still ongoing, there is nothing in the case that indicates that the Court even undertook the analysis that would have been required under the then-applicable precedents for a nonretroactive application (see Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07 (1971)), much less made any determination that nonretroactivity was appropriate.

• Second, Jones did not really introduce a change in anything upon which TEC had a reasonable basis for relying. Watson v. Jones, 80 U.S. 679 (1871), espousing the hierarchical deference approach, was decided not as a matter of federal constitutional law, but as a pre-Erie R. Co. v. Tompkins diversity case at a time before the First Amendment was held applicable to the States. Although subsequent cases, including among others Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710-11 (1976), said that some elements of Watson embodied First Amendment considerations, these were limited to avoidance of interfering in controversies over religious doctrine or practice or ecclesiatical polity. There is no statement that a requirement to follow a hierarchical deference approach was considered to be mandated by the U.S. Constitution in adjudicating property disputes that can be resolved without consideration of religious doctrine or practice or ecclesiastical polity.

• The equities are not in favor of TEC. When the Episcopal Church was organized in 1789, its constitution and canons contained no reference to property at all. Thereafter, some congregations did in fact leave with their property. Beginning in 1868 and from time to time thereafter the Episcopal Church enacted various canons imposing restrictions on use and alienation of property by congregations. But until passage of the Dennis canon, it never purported to acquire a trust interest in property and never sought consent from the owners to the imposition of such a trust interest. Why didn’t it? The answer seems clear. Many congregations wouldn’t have voluntarily granted such consent and if faced with the choice would have disaffiliated rather than do so. TEC’s method was to proceed incrementally and on a nonconsensual basis with canonical changes. Never having previously gotten to the point of enacting a canon that would assert the existence of a trust interest, TEC tried to turn the difficulty presented by Jones into an opportunity and enacted the Dennis canon.

I think the discussion above demonstrates why 815's usual argument doesn't rely solely on the Dennis canon being effective by its terms to create a trust. What they usually argue is that it somehow "codifies" or is "declaratory of" ECUSA canons and / or polity prior to adoption. I plan to say more about that in the next entry.

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[1]  The opinion of the intermediate California appellate court now being appealed to the California Supreme Court seems sympathetic to a retroactivity concern, saying, “The Jones majority also appears to have been aware of an obvious problem with the fact of a transition from a highest tribunal approach to neutral principles analysis: Neutral principles analysis makes a church property dispute issue turn on the quality of legal drafting done years prior to the dispute, and drafting done in a different legal environment.” Episcopal Church Cases, 61 Cal. Rptr. 3d 845, ___; 2007 Cal. App. LEXIS 1041, ___ (June 25, 2007), review granted, 67 Cal. Rptr. 3d 170, 169 P.3d 94, 2007 Cal. LEXIS 9660 (Cal. 2007).

Comments

[Mark McCall]

Mike,

Thanks for this. It is very well thought out, and I appreciate the work that went into it. I think your reactivation is a good idea and I will visit on a regular basis. I also hope you will continue to post your analyses on the other blogs (and provide links to here.