You are on page 1of 18

No.

11-0265 In the Supreme Court of Texas


The Episcopal Diocese of Fort Worth, et al., Appellants v. The Episcopal Church, et al., Appellees On appeal from the 141st District Court of Tarrant County, Texas Cause No. 141-252083-11 Amicus Curiae Brief of Liberty Institute

FILED IN THE SUPREME COURT OF TEXAS 12 August 29 A10:41 BLAKE. A. HAWTHORNE CLERK

Kelly J. Shackelford Texas Bar No. 18070950 Jeffrey C. Mateer Texas Bar No. 13185320 Hiram S. Sasser, III Texas Bar No. 24039157 Justin E. Butterfield Texas Bar No. 24062642 LIBERTY INSTITUTE 2001 W. Plano Parkway, Suite 1600 Plano, Texas 75075 Ph. (972) 9414444 Fax. (972) 9414457 kshackelford@libertyinstitute.org Counsel for Amicus Curiae

Table of Contents Table of Authorities ............................................................................................................. ii Interest of the Amicus Curiae .............................................................................................. 1 Summary of the Argument .................................................................................................. 1 Argument ............................................................................................................................. 2 A. B. In religious disputes involving property, courts should defer to the highest unambiguous ecclesiastical authority. .............................................. 3 When the highest ecclesiastical authority is ambiguous, the suit should be dismissed for lack of jurisdiction. ................................................. 8

Conclusion ......................................................................................................................... 14 Certificate of Service ......................................................................................................... 15

Table of Authorities CASES Baker v. Carr, 369 U.S. 186 (1962) ..................................................................................... 8 C.L. Westbrook, Jr. v. Penley, 231 S.W.3d 389 (Tex. 2007) ............................ 2, 5, 9, 10, 11 Carriere v. Shuffield, 949 S.W.2d 862 (Tex.App.Beaumont 1997, orig. proceeding) ............................................................................................................. 12 Greanias v. Isaiah, No. 01-04-00786-CV, 2006 WL 1550009 (Tex. App.Houston [1st Dist.] June 8, 2006, no pet.) .............................................................................. 6 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012) ........................................................................................................... 2, 5, 8, 9 Jones v. Wolf, 443 U.S. 595 (1979) ............................................................................. 3, 6, 8 Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94 (1952) .......................................................................................................... 5, 7, 9 Knollhoff v. Norris, 256 S.W.2d 79 (Tex. 1953)................................................................ 12 Nixon v. United States, 506 U.S. 224 (1993) ....................................................................... 8 Presbyterian Church v. Hull Church, 393 U.S. 440 (1969) ................................................ 4 Schismatic & Purported Casa Linda Presbyterian Church in Am. v. Grace Union Presbytery, Inc., 710 S.W.2d 700 (Tex. App.Dallas 1986, writ refd n.r.e.) ........ 5 Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich, 426 U.S. 696 (1976) ................................................................................................ 2, 3, 4, 6, 8 Watson v. Jones, 80 U.S. 679 (1872) ......................................................................... 6, 8, 11 OTHER AUTHORITIES Eric G. Andersen, Protecting Religious Liberty Through the Establishment Clause: The Case of the United Effort Plan Trust Litigation, 2008 Utah L. Rev. 739, 785 (2008) ................................................................................................................ 7 Jared A. Goldstein, Is There A Religious Question Doctrine? Judicial Authority to Examine Religious Practices and Beliefs, 54 Cath. U. L. Rev. 497, 498 (2005) ............................................................................................................... 10, 11
ii

Interest of the Amicus Curiae Liberty Institute is a non-profit, public interest law firm dedicated to the preservation of Americas religious liberty. Liberty Institute provides pro bono legal advice and representation to churches and ministries that desire to operate autonomously, without governmental intrusion into their religious practices or organization. This case will have an important precedential effect on the extent to which the churches and ministries that Liberty Institute advises may operate without fear of governmental control and oversight. Liberty Institute (the Amicus) paid all fees and expenses associated with the preparation and filing of this Brief. Summary of the Argument When a schism occurs within an ecclesiastical body leading to a property dispute, civil courts should defer to the highest unambiguous ecclesiastical authority because the dispute would otherwise require a civil court to resolve a religious controversy in violation of the First Amendment. If the highest ecclesiastical authority is ambiguous, however, a civil court would have to first determine which religious faction is authorized within the ecclesiastical hierarchical framework to direct church propertyan impermissible inquiry into church polity, practice, administration, and doctrine. In this situation, the court should apply a religious question doctrine and dismiss the case for lack of jurisdiction. This framework prevents civil courts from infringing upon the free exercise of churches to determine their own governance and allocation of power.

Argument Property disputes arising out of church schisms within ambiguously-hierarchical churches present religious questions that must be dismissed for lack of jurisdiction. In religious disputes involving property, courts should defer to the highest unambiguous ecclesiastical authority. However, to protect church autonomy and avoid violating the Establishment Clause and the Free Exercise Clause, civil courts must apply a religious question doctrine and dismiss intra-church property disputes when the hierarchical nature of the church is unclear on its face. The Establishment Clause and the Free Exercise Clause erect broad constitutional protections for churches to control their internal proceedings. C.L. Westbrook, Jr. v. Penley, 231 S.W.3d 389, 397 (Tex. 2007) (It is a core tenet of First Amendment jurisprudence that, in resolving civil claims, courts must be careful not to intrude upon internal matters of church governance . . . .); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 705 (2012) ([T]he First Amendment permits hierarchical religious organizations to establish their own rules and regulations for internal discipline and government . . . .) (quoting Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 U.S. 696, 724 (1976)). Accordingly, the state cannot interfere with a churchs fundamental right to determine its own ecclesiastical government. Westbrook, 231 S.W.3d at 397. As this Court noted, it is a core tenet of First Amendment jurisprudence that, in resolving civil claims, courts must be careful not to intrude upon internal matters of church governance. Id.

Consequently, this constitutional mandate severely limits the ability of civil courts to resolve intra-church property disputes. Jones v. Wolf, 443 U.S. 595, 602 (1979). If the resolution of the property dispute require[s] the civil court to resolve a religious controversy, then the court must defer to the resolution of the doctrinal issue by the authoritative ecclesiastical body. Id. at 604. However, In some cases . . . the [ecclesiastical] locus of control would be ambiguous . . . . In such cases, the suggested rule would appear to require a searching and therefore impermissible inquiry into church polity. Id. at 605 (quoting Milivojevich, 426 U.S. at 723). Therefore, whenever a property dispute depends on the resolution of a religious question, but the hierarchical structure of the ecclesiastical body is unclear, the court should dismiss the case for lack standing to avoid violating the First Amendment to the United States Constitution. A. In religious disputes involving property, courts should defer to the highest unambiguous ecclesiastical authority. Resolving church property disputes depends on ecclesiastical determinations concerning church polity, administration, practice, and doctrine; thus, despite incidentally affecting property rights, such disputes should be deferred to the highest ecclesiastical authority so long as that authority is the unambiguous authority. For example, in Milivojevich, concerning a schism between a diocesan bishop and the mother church resulting in disputes over who controlled the diocese and its assets, the U.S. Supreme Court held: Resolution of the religious disputes at issue here affects the control of church property in addition to the structure and administration of the American-Canadian Diocese. This is because the Diocesan Bishop controls
3

respondent Monastery of St. Sava and is the principal officer of respondent property-holding corporations. Resolution of the religious dispute over [the Diocesans Bishops] defrockment therefore determines control of the property. Thus, this case essentially involves not a church property dispute, but a religious dispute the resolution of which under our cases is for ecclesiastical and not civil tribunals. Milivojevich, 426 U.S. at 709 (emphasis added). The Supreme Court noted that First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. Milivojevich, 426 U.S. at 70910 (citing Presbyterian Church v. Hull Church, 393 U.S. 440, 449 (1969)). The Court stated that [t]his principle applies with equal force to church disputes over church polity and church administration. Id. at 710. As a result, civil courts cannot resolve property disputes deriving from church schism because such disputes turn on the resolution of controversies over ecclesiastical authority to control church property, which is a matter of church polity, administration, practice, and doctrine. Just this year the United States Supreme Court reemphasized this point in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC. Discussing a prior case in which New York determined that the Russian Orthodox Church in North America controlled a cathedral instead of the Supreme Church Authority in Moscow, the Supreme Court said: [T]he controversy over the right to use the cathedral was strictly a matter of ecclesiastical government, the power of the Supreme Church Authority of the Russian Orthodox Church to appoint the ruling hierarch of the archdiocese of North America. By pass[ing] the control of matters strictly ecclesiastical from one church authority to another, the New York law intruded the power of the state into the forbidden
4

area of religious freedom contrary to the principles of the First Amendment. Accordingly, we declared the law unconstitutional because it directly prohibit[ed] the free exercise of an ecclesiastical right, the Churchs choice of its hierarchy. Hosanna-Tabor Evangelical Lutheran Church & Sch., 132 S. Ct. at 705 (quoting Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 115-119 (1952)) (emphasis added) (citations omitted). Texas courts have also deferred to the highest unambiguous church authority to decide intra-church property disputes. In Westbrook, this Court noted that the [U.S. Supreme] Court mandated judicial deference to the church if ownership determinations involve underlying questions of religious doctrine. Westbrook, 231 S.W.3d at 399. In Schismatic & Purported Casa Linda Presbyterian Church in Am. v. Grace Union Presbytery, Inc., the Presbytery of the Presbyterian Church of the United States (PCUS) refused to recognize the legitimacy of a withdrawing faction and designated the loyal faction as the true congregation entitled to the church property. The Texas Fifth Court of Appeal affirmed the trial courts deference to the PCUS church hierarchy, noting that in a hierarchical religious body . . . the civil courts are prohibited from interfering with the decisions of ecclesiastical tribunals. Schismatic & Purported Casa Linda Presbyterian Church in Am. v. Grace Union Presbytery, Inc., 710 S.W.2d 700, 703 (Tex. App.Dallas 1986, writ refd n.r.e.) In another example, concerning a dispute between a regional hierarch and a local parish council in the Greek Orthodox Church over the proper directors of the local cathedral, the Texas First Court of Appeal deferred to the hierarchy:
5

The controversy inherently and inextricably involves a presiding hierarchs power to discipline a local parish council; his power to determine whether that councils members have violated their oath to obey the churchs hierarchy, discipline, and canons; and an archdioceses right to insist on what bylaws may be adopted by its subordinate parishes. Those are ecclesiastical matters that the First Amendment forbids courts to adjudicate. These issues are inextricably intertwined with appellants request . . . that they . . . represented the Cathedral even after their removal. Greanias v. Isaiah, No. 01-04-00786-CV, 2006 WL 1550009, at *7-8 (Tex. App. Houston [1st Dist.] June 8, 2006, no pet.) (citations omitted) (emphasis added). Moreover, even if a civil court thought it could resolve the property dispute without entangling the state in religious controversies inherent to schisms, it would still be impossible to resolve it without risking the complete subversion of church autonomy. As Justice Powell stated, When civil courts step in to resolve intrachurch disputes over control of church property, they will either support or overturn the authoritative resolution of the dispute within the church itself. Wolf, 443 U.S. at 614 (Powell, J., dissent). The U.S. Supreme Court warned against this danger in Watson v. Jones: All who unite themselves to [a church] body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. Watson v. Jones, 80 U.S. 679, 729 (1872) (emphasis added). The risk of subversion is compounded by the substantial danger that civil courts will intervene on behalf of groups espousing particular doctrinal beliefs. Milivojevich, 426 U.S. at 709. For example, [r]eligious groups who operate at the margins of society
6

and who refuse to abide by conventional social and moral norms typically generate fear and loathing within mainstream society. Eric G. Andersen, Protecting Religious Liberty Through the Establishment Clause: The Case of the United Effort Plan Trust Litigation, 2008 Utah L. Rev. 739, 785 (2008). Civil courts are not immune to biases against doctrines that are anathema to society. Thus, the only sure way to protect religious autonomy when an intra-church property dispute comes before a civil court is to defer to the highest ecclesiastical authority when that authority is unambiguous. Accordingly, Justice Frankfurter had this to say in his Kedroff concurrence: [W]hen courts are called upon to adjudicate disputes which, though generated by conflicts of faith, may fairly be isolated as controversies over property and therefore within judicial competence, the authority of courts is in strict subordination to the ecclesiastical law of a particular church prior to a schism. Kedroff, 344 U.S. at 122 (Frankfurter, J., concurring) (emphasis added). Since church schism is inherently a conflict of faith, and resolution of any subsequent dispute over church property requires determining which faction is authorized to control church propertya question of church polity, administration, practice, and doctrinecivil courts must defer such disputes to ecclesiastical tribunals. This approach radiates ... a spirit of freedom for religious organizations, an independence from secular control or manipulationin short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. Kedroff, 344 U.S. at 116. Therefore, given the above, the best way to protect church autonomy is to view such disputes as religious controversies

incidentally affecting control over church property and defer adjudication to the highest unambiguous ecclesiastical authority. B. When the highest ecclesiastical authority is ambiguous, the suit should be dismissed for lack of jurisdiction. When the factions of a church disagree about its hierarchical nature, and its structure of control is ambiguous on its face, the courts must treat the issue as a religious question1 and dismiss the action for lack of jurisdiction. This approach avoids the impermissible inquiry into church polity the United States Supreme Court warned about in Wolf and Milivojevich. Wolf, 443 U.S. at 605; Milivojevich, 426 U.S. at 723. Indeed, the U.S. Supreme Court reaffirmed this constitutional prohibition in HosannaTabor when discussing Kedroff, in which the U.S. Supreme Court overturned a New York state law for determining the allocation of authority within a hierarchical church: By pass[ing] the control of matters strictly ecclesiastical from one church authority to another, the New York law intruded the power of the state into the forbidden area of religious freedom contrary to the principles of the
A religious question has the same problems with adjudication as a political question and should be treated using an analogous doctrine. A political question exists when there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it . . . . Nixon v. United States, 506 U.S. 224, 228 (1993) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). A dispute about the authority structure of a church has both of these issues. While there is no coordinate religious department, the Constitution does commit the issue of church government and organization to the religious organizations themselves through the First Amendment. See Hosanna-Tabor, 132 S. Ct. at 706 (The Establishment Clause prohibits government involvement in ecclesiastical decisions.). Furthermore, fulfilling the second prong of the political question test, civil courts lack the expertise and standards necessary to hear an ecclesiastical case. Watson, 80 U.S. at 732 (Any other than [ecclesiastical] courts must be incompetent judges of matters of faith, discipline, and doctrine; and civil courts, if they should be so unwise as to attempt to supervise their judgments on matters which come within their jurisdiction, would only involve themselves in a sea of uncertainty and doubt which would do anything but improve either religion or good morals.) 8
1

First Amendment. Accordingly, we declared the law unconstitutional because it directly prohibit[ed] the free exercise of an ecclesiastical right, the Churchs choice of its hierarchy. Hosanna-Tabor, 132 S. Ct. at 705 (2012) (quoting Kedroff, 344 U.S. at 115-119 (1952)) (citations omitted). Therefore, a civil court should not attempt to determine the ultimate authority within a hierarchical church when ambiguous on its face. Rather, it should classify the suit as a religious question, analogous to the political question doctrine, and dismiss it for lack of jurisdiction. The Texas Supreme Court applied this doctrine in Westbrook to a different set of facts. Westbrook, 231 S.W.3d 389 (Tex. 2007). In Westbrook, this Court held that it violated the First Amendment for a civil court to interfere with a churchs decision to proceed with disciplinary measures, even after a parishioner resigned from the congregation. Id. at 405. As a result, it dismissed the negligence claim for want of subject matter jurisdiction. Id. This Court found its decision to be consistent with the U.S. Supreme Court rule set out in Milivojevich that the First Amendment prohibits civil courts from resolving disputes over whether a church complied with its own laws and regulations. Id. When two factions in a church are disputing what its laws and regulations say about church hierarchy and the hierarchical structure is unclear on its face, the First Amendment prohibits the court from impinging upon matters of church governance by stepping in and determining which side correctly interprets the churchs hierarchical rules and regulations. Although dismissing the case leaves the underlying dispute officially unresolved, when it comes to a churchs ability to manage its internal affairs, courts

have generally held that a spirit of freedom for religious organizations prevails, even if that freedom comes at the expense of other interests of high social importance. Westbrook, 231 S.W.3d at 403 (citations omitted). Indeed, this is the emerging consensus in religious jurisprudence. Civil courts have recognized a broad prohibition on judicial examination of religious questions, for example: Courts deem contracts unenforceable when they contain religious terms that might require judicial construction. In child custody and divorce cases, courts refuse to determine whether custodial parents abided by prenuptial or divorce agreements mandating that children be raised in a particular religion because it would require courts to examine religious questions. Courts have refused to adjudicate negligence claims against churches, religious therapists, and faith healers because of the difficulties of determining the reasonableness of a religious actors conduct without examining religious standards. Courts have held unenforceable consumer fraud statutes prohibiting the false labeling of food to be kosher under Orthodox Jewish dietary standards because, among other reasons, such statutes call on courts to examine religious doctrines and practices to determine whether the food actually complies with Jewish law. Employment discrimination claims against religious organizations are frequently dismissed because they might call upon courts to evaluate whether religious doctrines played any role in the employment decisions at issue. Jared A. Goldstein, Is There A Religious Question Doctrine? Judicial Authority to Examine Religious Practices and Beliefs, 54 Cath. U. L. Rev. 497, 498 (2005). Thus, applying a religious question doctrine whenever the constitution requires civil courts to defer to ecclesiastical authority within an ambiguously hierarchical church would simply apply a pre-existing constitutional doctrine with strong jurisprudential support.

10

Moreover, a religious question doctrine is supported by the same policy concerns supporting the political question doctrine. Like political questions, civil courts are incompetent to resolve religious questions. Id. As the U.S. Supreme Court aptly put it: It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men in each are in reference to their own. It would therefore be an appeal from the more learned tribunal in the law which should decide the case, to one which is less so. Watson, 80 U.S. at 729. It follows that when the hierarchical nature of a church is unclear, the most competent body to resolve the dispute is the ecclesiastical leadership within the church. Also, like the political question doctrine, a religious question doctrine separates powersthe former separating government branches and the latter separating church and state. Goldstein at 499. However, the constitutional and policy concerns are not implicated when the hierarchical structure of the church is obvious. In the same way civil courts do not let church leaders hide behind the First Amendment when the nature of their conduct is obvious and clearly falls outside of the beliefs and doctrine of the religion, Westbrook, 231 S.W.3d at 40304, religious factions in a property dispute cannot hide behind the First Amendment when the hierarchical nature of the church is obvious and clearly falls within the beliefs and doctrine of the religion. For example, on the one end, the Roman Catholic Church is obviously hierarchical, and on the other end, a Southern Baptist church is clearly congregational. In these clear situations, a civil court may use its common sense to defer to the Pope or the congregational majority without having to

11

entangle itself in a religious controversy. See, e.g., Carriere v. Shuffield, 949 S.W.2d 862, 867 (Tex.App.Beaumont 1997, orig. proceeding) (Judges may apply fact and common sense to determine when the corporate fiction may be disregarded.); Knollhoff v. Norris, 256 S.W.2d 79 (Tex. 1953) (a district judge is a man of judgment and common sense who will use it). Thus, applying the religious question doctrine to ambiguously hierarchical churches, already tested and employed by civil courts to address other religious questions, provides adequate freedom to religious organizations while preventing its abuse and retains protection for important social interests. When a schism occurs within an ecclesiastical body and a property dispute ensues, civil courts must defer to the highest ecclesiastical authority when that authority is unambiguous. When the authority is ambiguous in part, a civil court cannot determine which religious faction is authorized within the ecclesiastical hierarchical framework to direct church propertyan impermissible inquiry into church polity, practice, administration, and doctrine. Instead, the civil court should dismiss the case for lack of jurisdiction. This applies a well-developed constitutional doctrine to avoid impinging on the free exercise of churches to determine their own governance and allocation of power. Amicus is not an authority on ecclesiastical authority structures and is probably in the same position as any civil court would be in deciphering ecclesiastical governmental structures. Amicus is aware, however, that a dispute exists as to whether the Episcopal Church is hierarchical above the diocesan level. That is, while Amicus understands that it is uncontroversial that the Episcopal Church is hierarchical from the diocese down, Amicus also understands there to be a dispute as to the true structure of the Episcopal
12

Church above the diocesan level. The competing record of this dispute is set forth in the Amicus Curiae Brief of the Anglican Communion Institute, Inc. and Episcopal Bishops and Clergy at 2021. Were the dispute below the diocesan level, the Court should simply defer to the church hierarchy. That is not this case, however; and, like this Court, Amicus lacks the particularized knowledge necessary to make the determination of how the Episcopal Church is organized above the diocesan level. Because this case involves an entire diocese separating from the Episcopal Church, the determination of the churchs organization above the diocesan level is key to resolving the case. This issue cannot be resolved by a civil court. The Court should dismiss the present case because reaching the merits would require the Court to decide a non-justiciable religious question of church organization. Amicus takes no position on whether the Episcopal Church is or is not hierarchical above the diocesan level. Amicus merely notes that the parties disagree with each other regarding this issue of church governance. Civil courts are not the proper forum for that dispute.

13

Conclusion For the foregoing reasons, Amicus respectfully requests that the doctrine set forth above be considered in determining how such property disputes can be decided and that this case be dismissed for lack of jurisdiction as a non-justiciable religious controversy pursuant to the religious question doctrine.

Respectfully Submitted,

/s/Kelly J. Shackelford Kelly J. Shackelford August 29, 2012

14

Certificate of Service I hereby certify that the foregoing Amicus Curiae Brief of Liberty Institute was electronically served on August 29, 2012, upon all parties through the following counsel: Scott A. Brister Kendall M. Gray ANDREWS KURTH LLP 111 Congress Ave., Suite 1700 Austin, Texas 78701 R. David Weaver THE WEAVER LAW FIRM, P.C. 1521 N. Cooper St., Suite 710 Arlington, Texas 76011 Counsel for Appellants Sandra Cockran Liser NAMAN HOWELL SMITH & LEE, LLP 306 West 7th Street, Suite 405 Fort Worth, Texas 76102 Mary Kostel David Beers GOODWIN PROCTER LLP 901 New York Avenue, N.E. Washington, D.C. 20001 William D. Sims Jr. Thomas S. Leatherbury VINSON & ELKINS L.L.P. 2001 Ross Avenue, Suite 3700 Dallas, Texas 75201 Counsel for Appellees /s/ Kelly J. Shackelford Kelly J. Shackelford Frank Gilstrap Frank Hill HILL GILSTRAP P.C. 1400 W. Abram Street Arlington, Texas 76013 Jonathan D.F. Nelson JONATHAN D.F. NELSON, P.C. 1400 W. Abram Street Arlington, Texas 76013 Kathleen Wells 3550 Southwest Loop 820 Fort Worth, Texas 76133 J. Shelby Sharpe SHARP TILLMAN & MELTON 610 Western Place, Suite 1000 Fort Worth, Texas 76107

15