Anglican Communion Institute—Friend of Court Brief Filed in Fort Worth Lawsuit

Posted by Kendall Harmon

In their brief, the bishops and ACI argue that the summary judgment ruling by the trial court in the Fort Worth litigation violated the First Amendment to the United States Constitution because it immersed the court in an impermissible “searching” and “extensive inquiry into religious polity.” Under the Supreme Court’s First Amendment jurisprudence, courts may constitutionally defer to a church authority rather than apply neutral principles of law only if they can identify the appropriate ecclesiastical authority without conducting such an extensive inquiry into church governance. In the case of The Episcopal Church, its governing constitution specifies that the diocesan bishop is “the Ecclesiastical Authority” in the diocese. Acceptance of TEC’s claim that there are other bodies or offices with hierarchical supremacy over the diocesan bishop would require the Court to become embroiled in a searching historical analysis of difficult questions of church polity without any explicit language in the church’s governing instrument on which to base its conclusion. The First Amendment does not permit such a result.

First, look at the summary introduction and then take the time to read the whole argument (36 page pdf).

Filed under: * Anglican - EpiscopalEpiscopal Church (TEC)TEC BishopsTEC ConflictsTEC Conflicts: Fort WorthTEC Polity & Canons* Christian Life / Church LifeChurch History* Culture-WatchLaw & Legal IssuesReligion & Culture

8 Comments
Posted April 24, 2012 at 5:32 am [Printer Friendly] [Print w/ comments]



1. Brian from T19 wrote:

There is no real First Amendment issue here.  The court must decide the case on the facts.  Those facts require the court to understand the polity of the Church.  Both sides already presented their views and the court was required to choose.  The suggestion that this is reaching or required too much investigation is posturing.  What this brief and the attorneys for +Iker are arguing is that the trial court simply chose wrong.  There is no First Amendment error.  The brief could have been much shorter if it simply said “We think you backed the wrong team.”  I can all but guarantee that this argument is dead in the water, especially in Texas.

April 24, 7:59 pm | [comment link]
2. John Boyland wrote:

Good to see that bishops and clergy in TEC are supporting +Iker even as they explicitly indicate that they disagree with the decision to disaffiliate.

April 24, 8:00 pm | [comment link]
3. Brian from T19 wrote:

#2 - that is an excellent point

April 24, 8:03 pm | [comment link]
4. c.r.seitz wrote:

#1 Good luck.

April 24, 8:18 pm | [comment link]
5. MichaelA wrote:

#1, if USSC thinks this is important, they will hear it. We will know soon enough so lets not waste our time with attempts to argue that there is no constitutional point.  There are only nine opinions that matter (actually, only four that matter) and there is no appeal from their opinion on that point.

On another note, our praise and thanks goes to the very courageous bishops of TEC who have joined in this brief, together with the members of ACI.  They will pay a heavy price in vilification and abuse from the liberal supporters but have taken a stand anyway.  Pray for them.

April 24, 9:18 pm | [comment link]
6. Paul Powers wrote:

I agree that this is really more of a property issue than a First Amendment issue. However, TEC invoked the First Amendment in its briefs, so it’s not unreasonable for the Diocese (or the amici) to counter TEC’s arguments in their briefs.
As for arguing that “the trial court simply chose wrong,” that’s exactly what appeals are for: to show the appellate court how the trial court erred in its decision.

April 24, 10:16 pm | [comment link]
7. Brian from T19 wrote:

#4 Thanks.

#5 This is a Supreme Court of Texas case, not the USSC.

They will pay a heavy price in vilification and abuse from the liberal supporters but have taken a stand anyway. 

Not really.  Look at the list.  No one there has that much to be concerned about.  They are all on the far edge of TEC and/or retired.

#6 As for arguing that “the trial court simply chose wrong,” that’s exactly what appeals are for: to show the appellate court how the trial court erred in its decision.

No.  Appeals are for incorrect interpretation of law.  +Iker is arguing that the trial court did not have the right to make the decision it made, which is of course wrong as a matter of law.  The rationale behind why he chose this weak argument is because he didn’t like the initial decision.  That is not a First Amendment issue.  They are free to argue whatever they like, but First Amendment?, come on.

April 24, 11:13 pm | [comment link]
8. MichaelA wrote:

That’s good Brian. You have convinced yourself very well!

April 25, 2:07 am | [comment link]
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