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. Canon Jim Lewis
The Diocese of South Carolina
126 Coming Street
Charleston, SC  29413
843-722-4075