Chances Improving for Ex-Episcopalians in Property Fights
The Episcopal Church, however, has a history of winning property cases, and expects to build on that success. Fort Worth Episcopal Bishop Rayford B. High Jr. argues the Dennis Canon is binding since local churches agreed to abide by it.
"They were given access to church titles and church properties because they promised to abide by the Episcopal Church" and its canons, High said. "Commitments were made. You can't just decide a little later on,'I think I'll change my mind.'"
In South Carolina, the case is no slam dunk for recently departed churches, according to Martin Nussbaum, a Colorado Springs lawyer who specializes in church property cases. He notes the Episcopal Church has prevailed in most of its property cases, in part because local churches have agreed to abide by the Episcopal Church's constitution.
But, he adds, the South Carolina Supreme Court 2009 Pawley's Island decision could help today's plaintiffs win.
"It's possible that the secessionists will have some success for some time, as long as they're in the South Carolina courts," said Nussbaum, an attorney with Rothgerber Johnson & Lyons. "If it goes over to (the U.S. Supreme Court), they'll lose."
To date, the U.S. Supreme Court has shown little interest in reviewing state decisions in church property cases. Brister expects that will not change, and state decisions will stand. The high court's reticence to intervene might bode well for breakaway Anglicans in South Carolina, according to Robert Tuttle, professor of law and religion at George Washington University Law School.
"In South Carolina, where the South Carolina Supreme Court has ruled in favor of a separating congregation, (lower court justices) might be more sympathetic to the claim of the separating diocese of South Carolina" than judges in other states might be, Tuttle said.
Both the Texas and South Carolina cases are being watched closely, in part because of their size. Both involve dioceses and dozens of churches in large states, where jurisprudence can influence how judges in other states approach property cases, according to Brister.
The Texas decision "could influence other states, depending on what the circumstances of their state laws are," Brister said.