As noted earlier this year, the Diocese of South Carolina asked the United States Supreme Court to review the enforceability of trust clauses. The Supreme Court ordered the Episcopal Church to file a response, which, occurred on May 8, 2018.
In addition to the response filed by the Church, a group of eighteen leading and diverse First Amendment Scholars and Professors joined and filed an amicus brief in support of the application for granting leave to appeal. The amicus brief by the normally divergent scholars all requesting leave to appeal adds a new and interesting dimension to the pending application. The question presented to the Supreme Court is 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. The scholars noted that under the current state of the law,
The decision below [The South Carolina Supreme Court] awards half a billion dollars of property to respondents by applying internal canons that were never embodied in any ordinary contract or recorded in any deed, and that was instead unilaterally adopted centuries after local congregants founded their local churches and purchased their properties. Effectively, the court below granted respondents all of the benefits of local church property ownership and none of the burdens—like having to pay insurance costs or the mortgage or facing liability for conduct or injuries occurring on the property. No other private entity, secular or religious, enjoys that right.
The scholars urged the Court to review the decision of the South Carolina Supreme Court as state courts are divided over whether Jones’s “neutral principles” analysis requires courts to enforce so-called “trusts” in internal church documents that do not satisfy state law. They concluded:
And as the Court explained nearly 150 years ago in Watson v. Jones, 80 U.S. 679, 722-723 (1872), denominational rules cannot trump grantor intent: “regardless of the form of church government, it would be the ‘obvious duty of a civil tribunal to enforce the ‘express terms’ of a deed.” Jones, 443 U.S. at 603 n.3 (quoting Watson). Yet rampant confusion persists over this Court’s neutral principles approach, and the Court, after having dealt with the issue in several cases over the course of a decade, has not considered the issue in nearly 40 years. Given the resulting chaos for religious bodies nationwide and judicial intrusion into religious affairs, certiorari should be granted.
This development is unique as the leading law professors who typically find themselves on opposite sides of First Amendment jurisprudence are united on the notion that the current state of the law is not working as it relates to the enforcement of denominational trust clauses. The Court will surely take notice of this argument.
The next step is for the Court to evaluate this petition at one of its conferences and either grant or deny leave to appeal. The decision will likely come in the fall of 2018 as the Supreme Court’s term ends relatively soon.
If you are interested in learning more about the enforceability of a denominational trust clause, or if your local Church is interested in filing an amicus (“Friend of the Court”) brief in favor of granting leave to appeal in support of a local Church opposing the denominational trust clause, please contact Daniel Dalton at Dalton & Tomich, PLC.