Bench Memos


Desperate Conflict Avoidance?

St. Lukes Protestant Episcopal church (Wikimedia)

Recent years have seen many legal battles between the national Episcopal Church (and its state affiliates), on the one hand, and disassociating local congregations, on the other, over the ownership of local church real property.

In a pending certioriari petition, various disassociating local congregations in South Carolina seek the Supreme Court’s review of a South Carolina supreme court ruling adverse to them. The petition identifies a sharp split in the lower courts on how to apply governing Supreme Court precedent: seven state supreme courts (plus a federal appellate court and three intermediate state courts) on one side of the split, and eight state supreme courts on the other side.

As it happens, the Episcopal Church and some of its affiliates, back in 2010, filed their own certiorari petitions (Green v. Campbell) from an earlier ruling of the South Carolina supreme court (a ruling that the more recent ruling overruled). They argued (here quoting the petition of the affiliates, which the Episcopal Church supported) that the case “presents a frequently recurring constitutional question that has divided the state courts and that directly implicates the ownership of hundreds of millions of dollars of church property across the United States.” That petition identified the same “direct and irreconcilable conflict among the state courts” (though the split then was four state supreme courts on one side and two on the other).

Interestingly, last week the Episcopal Church and another South Carolina affiliate, represented by the same counsel as in 2010, chose not to file a response to the pending certiorari petition. In the usual course, a party declines to file a response when a certiorari petition is patently meritless. That is certainly not the case here. (On the Volokh Conspiracy, Sam Bray says “this is a cert petition the Court should grant.”) Instead, it would seem that the Episcopal Church doesn’t want to file a response because it doesn’t want to concede the existence of the very conflict—even deeper now—that it identified eight years ago and thus put in jeopardy the victory it won below.

The Court should ask the Episcopal Church to file a response.

[5:30 p.m.: I have tweaked the third and fourth paragraphs to distinguish more precisely between the Episcopal Church and its affiliates.]

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