In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

THE EPISCOPAL CHURCH, ET AL.,Petitioners,

v.

THE EPISCOPAL DIOCESE OF FORT WORTH, ET AL., Respondents.

On Petition for a Writ of Certiorari to theSupreme Court of Texas

BRIEF OF THE GREEK ORTHODOX ARCHDIOCESEOF AMERICA AS AMICUS CURIAE IN SUPPORT OF

THE EPISCOPAL CHURCH’S PETITION FOR AWRIT OF CERTIORARI

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

John Zavitsanos Counsel of RecordJamie A. AycockJane Langdell RobinsonAHMAD, ZAVITSANOS, ANAIPAKOS,ALAVI & MENSING P.C.1221 McKinney Street, Suite 3460Houston, Texas 77010Telephone: (713) 655-1101Facsimile: (713) 655-0062jzavitsanos@azalaw.comjamieaycock@azalaw.comjrobinson@azalaw.com

Counsel for Amicus Curiae

NO. 13-1520

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv

INTEREST OF THE AMICUS . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. THE SO-CALLED NEUTRAL-PRINCIPLESAPPROACH IS INCONSISTENT WITHTHE FIRST AMENDMENT, AND THECOURT SHOULD GRANT CERTIORARI TOOVERTURN THE FAILED EXPERIMENTOF JONES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

a. Any Application of the So-Called Neutral-Principles Approach Will Interfere Withthe Greek Orthodox Church’s FreeExercise Rights and Entangle the Courtsin Its Internal Affairs Because the GreekOrthodox Church Treats ChurchProperty Ownership as InherentlyEcclesiastical. . . . . . . . . . . . . . . . . . . . . . . 7

b. Jones Failed to Fulfill Its Promises andHas Resulted in the Harms theDissenting Justices Predicted. . . . . . . . . 11

c. A Deference Regime for HierarchicalChurches Is the Only Way to Protect FreeExercise and Avoid Entanglement. . . . . 13

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II. THE COURT SHOULD GRANTCERTIORARI TO CLARIFY THAT THEFREE EXERCISE CLAUSE DOES NOTTOLERATE ANY MORE THAN A MINIMALBURDEN ON A HIERARCHICAL CHURCHTO RECITE AN EXPRESS TRUST INFAVOR OF ITS HIERARCHY. . . . . . . . . . . 15

a. Throughout Its History, the GreekOrthodox Church Has Been OrganizedHierarchically and All Property DisputesHave Been Resolved Internally by theChurch Hierarchy. . . . . . . . . . . . . . . . . . 16

b. The Greek Orthodox Church Has MadeClear Its Intent that Any ChurchProperty Must Remain in the Hands ofFactions the Hierarchy Determines to beLoyal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

c. The Texas Supreme Court Should Not BeAllowed to Intrude on InternalGovernance Matters in HierarchicalChurches Simply Because Property IsImplicated. . . . . . . . . . . . . . . . . . . . . . . . . 21

III. THIS COURT SHOULD GRANTCERTIORARI TO HOLD THAT NEUTRALPRINCIPLES CANNOT BE APPLIEDRETROACTIVELY WITHOUT VIOLATINGTHE FREE EXERCISE CLAUSE OF THEFIRST AMENDMENT. . . . . . . . . . . . . . . . . 23

a. The Reasoning of Jones Makes Clear ThatRetroactive Application of NeutralPrinciples Is Unconstitutional. . . . . . . . . 23

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b. The Texas Supreme Court Would RequireThat Hierarchical Churches Either RiskLosing Their Property Or Alter TheirInternal Approach to EcclesiasticalGovernance. . . . . . . . . . . . . . . . . . . . . . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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TABLE OF AUTHORITIES

CASES

All Saints Parish Waccamaw v. ProtestantEpiscopal Church in Diocese of South Carolina, 685 S.E.2d 163 (S.C. 2009) . . . . . . . . . . . . . . . . 21

Berthiaume v. McCormack,891 A.2d 539 (N.H. 2006) . . . . . . . . . . . . . . . . . 21

Brown v. Clark,116 S.W. 360 (Tex. 1909) . . . . . . . . . . . . . . . . . . 24

Green v. Westgate Apostolic Church,808 S.W.2d 547 (Tex. App.—Austin 1991) . . . . 24

Hosanna-Tabor Evangelical Lutheran Church andSchool v. Equal Employment OpportunityCommission et al.,132 U.S. 694 (2012) . . . . . . . . . . . . . . . . . . 5, 9, 22

Jones v. Wolf,443 U.S. 595 (1979) . . . . . . . . . . . . . . . . . . passim

Kedroff v. St. Nicholas Cathedral of the RussianOrthodox Church in N. America, 344 U.S. 94 (1952) . . . . . . . . . . . . . . . . 8, 9, 13, 22

Presbytery of Ohio Valley v. OPC, Inc.,973 N.E.2d 1099 (Ind. 2012), cert. denied, 133 S.Ct. 2022 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Rector, Wardens, Vestrymen of Christ Church v.Bishop of Episcopal Diocese,718 S.E.2d 237 (Ga. 2011) . . . . . . . . . . . . . . . . . 22

Watson v. Jones,80 U.S. (13 Wall.) 679 (1872) . . . . . . . . . 11, 14, 15

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CONSTITUTION

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . passim

RULE

Sup. Ct. R. 37.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OTHER AUTHORITIES

Nathan Clay Belzer, Deference in the JudicialResolution of Intrachurch Disputes: The Lesser ofTwo Constitutional Evils, 11 St. Thomas L. Rev.109 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Charter of the Greek Orthodox Archdiocese ofAmerica (2003) . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Aristeides Papadakis, Ph.D., History of theOrthodox Church, The Greek OrthodoxArchdiocese of America, http://www.goarch.org/ourfaith/ourfaith7053 . . . . . . . . . . . . . . . . . 16, 17

Regulations of the Greek Orthodox Archdiocese ofAmerica (2007) . . . . . . . . . . . . . . . . . . . . . . passim

Rev. Thomas Fitzgerald, House of God, The GreekArchdiocese of America, http://www.goarch.org/ourfaith/ourfaith7100 . . . . . . . . . . . . . . . . . . . . 10

Brian Schmalzbach, Note, Confusion and Coercionin Church Property Litigation, 96 Va. L. Rev.443 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

The Greek Orthodox Archdiocese of America, AboutThe Archdiocese, http://www.goarch.org/archdiocese/about . . . . . . . . . . . . . . . . . . . . . . . . 17

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The Greek Orthodox Archdiocese of America,Service of the Consecration of a Church,http://www.goarch.org/chapel/liturgical_texts/consecrate_church. . . . . . . . . . . . . . . . . . . . . . . . 10

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INTEREST OF THE AMICUS 1

The Greek Orthodox Archdiocese of America (the“Greek Orthodox Church”) files this amicus curiae briefin support of The Episcopal Church’s Petition for aWrit of Certiorari at the United States Supreme Court. This Court should grant a writ of certiorari in this caseto underscore that the Free Exercise Clause protectsthe ability of hierarchical churches to resolve their owninternal property disputes without fear that courts willsecond guess their ecclesiastical determinations.

The Greek Orthodox Church joins the EpiscopalChurch as an amicus because the outcome of this caseaffects the Greek Orthodox Church’s freedom promisedby the First Amendment to arrange its internal affairsas it wishes without court interference. While theGreek Orthodox Church and the Episcopal Churchdiffer in significant and well-known ways, including intheir structure and doctrine, they share a commonconcern: by interpreting this Court’s so-called neutral-principles approach to presuppose congregationalautonomy, well-meaning courts are interfering withhierarchical churches’ ability to arrange their owninternal affairs.

Since its beginnings, the Greek Orthodox Churchhas been a hierarchical church. Accordingly, it holds

1 The Greek Orthodox Church provided timely notice of intent tofile this amicus brief to the parties in accordance with Rule 37.2(a).The parties’ letters of consent to the filing of this amicus brief areattached. No counsel for a party in this case authored this brief inwhole or in part, and no person or entity, other than the Amicusand its counsel, has made a monetary contribution intended tofund the preparation or submission of this brief.

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all church property in a manner that reflects thislongstanding hierarchy. All church property –regardless of which church entity it is held by – is heldexpressly for carrying out the faith and purpose of theGreek Orthodox Church. See Regulations of the GreekOrthodox Archdiocese of America (“Regulations”), Art.16 § 1 (2007). Only the church hierarchy is vested withthe authority to determine if a parish is carrying outthe faith and purpose of the Greek Orthodox Church,so any property dispute is inherently entwined withecclesiastical matters.

Here, the Texas Supreme Court’s decision threatensthe Greek Orthodox Church’s free exercise rights intwo ways. First, the rule fashioned by the TexasSupreme Court directly intrudes on churches’ right tostructure themselves as they desire because itpresupposes that churches are organizedcongregationally, even for hierarchical churches whoseecclesiology simply requires deference to churchleadership. Second, the Texas Supreme Court’s rulerequires that courts divine the “secular intent” ofecclesiastical documents and appropriate the role of thechurch hierarchy in adjudicating matters that areinterwoven with ecclesiastical determinations solelybecause a dispute affects property.

This Court should grant certiorari to provide clearguidance about what the First Amendment requires. Moreover, after thirty years of courts’ failed attemptsto apply the so-called neutral-principles approach, it istime that the Court reconsider whether the FirstAmendment can tolerate an approach that sowsconfusion and repeatedly draws courts intoecclesiastical matters. For these reasons, the Greek

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Orthodox Church urges the Supreme Court to grant thewrit of certiorari in this case and overturn the decisionbelow.

SUMMARY OF THE ARGUMENT

In this case, the Texas Supreme Court handed over$100 million worth of Episcopal Church property to abreakaway faction in contravention of a century of itsown jurisprudence deferring to hierarchical churchauthorities’ decisions regarding church propertyownership. Left unchecked, this decision could leavethe property of hierarchical churches across thecountry unprotected by giving other states the greenlight to apply new rules to church propertyarrangements made years ago under a longstandingdeference regime.

The Texas Supreme Court—like other state courtsacross the country—thus arrogated to the judiciary anunwarranted role in disputes that parties agreed wouldbe decided by religious authorities, simply becausethose disputes affect property. The Texas SupremeCourt’s newly adopted approach requires that courtsplace themselves squarely in the midst of intra-churchdisputes to surmise the supposed secular purposes ofinherently ecclesiastical documents created for churchself-government. This rule also threatens the freeexercise rights of hierarchical churches because itpresumes that church authority is vested at the level ofthe local congregation even when a church hasorganized itself in a way that defers to a religiousauthority. Such judicial commandeering of religiousbodies was never this Court’s intent in Jones v. Wolf. 443 U.S. 595 (1979).

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This case highlights the myriad problems stemmingfrom this Court’s holding in Jones that it could beconstitutionally permissible for courts to resolve churchproperty disputes in hierarchical churches by applyingso-called neutral principles of law rather than deferringto religious authorities, which had previously been theonly constitutionally permissible approach. Id. Overthe last thirty years, lower courts have been strugglingto understand what Jones means and how to apply it. Brian Schmalzbach, Note, Confusion and Coercion inChurch Property Litigation, 96 Va. L. Rev. 443, 450-451(2010). Jones purported to allow courts to applyneutral principles to church property disputes becausehierarchical churches opting out of default property lawcould with “minimal burden” make clear how theirproperty should be treated if a dispute arose. 443 U.S.at 606. Whereas this approach had promised to freecourts from involvement in intra-church ecclesiasticalaffairs, in practice it has threatened deeperentanglement because church property issues are sooften intertwined with inherently ecclesiastical mattersthat are as central to the church’s mission as the hiringand firing of its clergy. In the Greek Orthodox Church,because church property is bound up with its religiouspurposes and property disputes are consideredinherently ecclesiastical matters, such disputes cannotbe resolved under so-called neutral principles withoutresulting in entanglement. Whereas the GreekOrthodox Church conceives of its sacred property inreligious terms, the neutral-principles approach wouldrequire that courts nonetheless craft a purely secularinterpretation that was never intended.

This Brief offers three compelling reasons why thisCourt should grant the writ of certiorari and use this

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case as an opportunity to take a second look at itsJones decision.

First, this Court should grant certiorari to re-evaluate the wisdom of the neutral-principlesapproach, which repeatedly has entangled civil courtsin ecclesiastical matters, requiring courts to determinewho represents the “true” church and encouragingcourts to interpret ecclesiastical documents aboutchurch self-governance through a secular lens when thechurch never intended for such a lens to be applied. Any application of the neutral-principles approach tothe Greek Orthodox Church would interfere with theChurch’s free exercise rights because the Churchunderstands all internal disputes, including thoseinvolving property, as inherently ecclesiastical. Drawing a bright line respecting churches’ internalgovernance mechanisms, as this Court did in Hosanna-Tabor Evangelical Lutheran Church and School v.Equal Employment Opportunity Commission et al., 132U.S. 694, 706 (2012), is the simplest way to avoidencroaching on hierarchical churches’ free exerciserights and to ensure consistency and clarity in theadjudication of church property disputes. This Courtcan prevent further, otherwise inevitable constitutionalharms by overturning Jones and returning to itsdeference regime.

Second, short of overruling Jones, this Court shouldoffer lower courts much-needed guidance on what the“minimal burden” described in Jones entails. ThisCourt can ensure that lower courts no longer interpretJones to require that hierarchical churches meet asubstantial burden to ensure that their propertydisputes are decided by religious authorities.

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Third, this Court should grant certiorari to holdthat courts cannot retroactively apply a newly-adoptedneutral-principles approach as did the Texas SupremeCourt. This Court largely premised theconstitutionality of the neutral-principles approach atissue in Jones on the existence of an escape hatch forhierarchical churches by which they simply couldindicate that the church hierarchy’s determinationswould control. In fact, although the parties neverraised the issue in Jones, the Court sua spontesuggested that retroactive application of neutralprinciples would violate the Free Exercise Clause. See443 U.S. at 606 n.4. This Court should take thisopportunity to expressly rule what it suggested inJones: a court cannot constitutionally apply theneutral-principles approach when it has not clearlyenunciated its intent to do so prior to a church propertydispute.

ARGUMENT

I. THE SO-CALLED NEUTRAL-PRINCIPLESAPPROACH IS INCONSISTENT WITH THEFIRST AMENDMENT, AND THE COURTSHOULD GRANT CERTIORARI TOOVERTURN THE FAILED EXPERIMENTOF JONES.

The Court should take this opportunity to addressthe viability of Jones v. Wolf, which at best has causedwidespread confusion and at worst has invited courtsto wade into inherently ecclesiastical disputes, as theTexas Supreme Court has done here. It is often notpossible to treat church property disputes as thoughthey involve secular subject matter as the majority inJones envisioned. In the Greek Orthodox Church,

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property disputes are indistinct from other internal,ecclesiastical disputes so any application of “neutralprinciples” results in entanglement. The only way toprevent the threat of courts’ continued entanglement insuch ecclesiastical matters is for this Court to return tothe deference regime that steadfastly respectedchurches’ free exercise rights for over one hundredyears.

a. Any Application of the So-CalledNeutral-Principles Approach WillInterfere With the Greek OrthodoxChurch’s Free Exercise Rights andEntangle the Courts in Its InternalAffairs Because the Greek OrthodoxChurch Treats Church PropertyOwnership as Inherently Ecclesiastical.

The neutral-principles approach presumes thatcourts can resolve intra-church property disputeswithout deference to church authorities, even forhierarchical churches, because such matters can beanalyzed in “purely secular terms” without reference to“religious precepts.” Jones, 443 U.S. at 604. But forthe Greek Orthodox Church, as for other hierarchicaldenominations, no such distinction exists betweensacred and secular matters in the life of the church. Because the Greek Orthodox Church’s governingdocuments are “drawn in terms of religious precepts,”id. at 612 (Powell, J., dissenting), it is not possible todivine the Church’s secular intent with regard toproperty that is somehow apart from its religiousintent.

The Greek Orthodox Church conceives of itsCharter and Regulations as religious law, leaving no

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room for secular interpretations. In his introduction tothe Regulations, Archbishop of America and Exarch ofthe Ecumenical Patriarchate Demetrios emphasizedthat the Regulations were created to “avoid anydisorder, confusion, disorganization, and turmoil; forthe God of Christians is a God of order and peace, nota God of disorder, confusion, and turmoil.” Regulations, Prot. No. 33/05 at iv. It was “exactly forthe advancement of order, decency and peace withinthe parishes” that the Regulations were published. Id.at v. Thus, the Greek Orthodox Church understandsits Regulations to be religious doctrine that allows it topractice its faith by ensuring an orderly internalresolution of all matters that arise.

The Regulations that specifically govern churchproperty also contain explicitly religious language. Forexample, the Regulations require that all churchproperty “shall be held and used by the Parish to carryout the purposes of the Orthodox Christian Faith asdefined in Article 15.” Regulations, Art. 16 § 1. Moreover, the Church edifice and other ParishProperty “shall be used in accordance with the Charterto serve the religious, educational, cultural, andphilanthropic ministries of the Parish.” Id. Thus, theresolution of intra-church property ownership disputeswithin the Greek Orthodox Church turns on who isusing the property in accordance with the GreekOrthodox faith, an inherently religious question thatcivil courts are incompetent to answer. As this Courtrecognized in Kedroff, “[e]ven in those cases when theproperty right follows as an incident from the decisionsof the church custom or law on ecclesiastical issues, thechurch rule controls.” Kedroff v. St. Nicholas Cathedral

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of the Russian Orthodox Church in N. America, 344U.S. 94, 120-121 (1952).

The Greek Orthodox Church urges this Court toconsider the inherently religious nature of churchproperty in analyzing whether civil courts should beallowed to usurp determinations by a hierarchicalchurch’s governing authorities about church propertydisputes, especially in light of its recent unanimousdecision in Hosanna-Tabor. 132 S. Ct. 694. InHosanna-Tabor, this Court held that “the authority toselect and control who will minister the faithful—amatter ‘strictly ecclesiastical,’ . . . —is the church’salone.” Id. at 709. Moreover, this Court explained thatwhen society’s “undoubtedly important” interest in theenforcement of civil law, like employmentdiscrimination statutes, competes with religiousorganizations’ interest in exercising their right to self-governance “the First Amendment has struck thebalance for us[] . . . [t]he church must be free to choosethose who will guide its way.” Id. at 710. Thus,because the First Amendment “gives special solicitudeto the rights of religious organizations,” secular lawmust yield when it interferes with internal,ecclesiastical matters. Id. at 706-07.

Similar to its selection of clergy, the GreekOrthodox Church conceives of its ability to governchurch property as an integral part of its practice andthe expression of its faith. Yet Jones fundamentallydisregards the uniquely religious nature of churchproperty and the importance for a hierarchical churchto protect the use of these sacred places. For the GreekOrthodox Church, a church is not just a building inwhich its faithful worship. It is not just a building with

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a deed and title that can be passed from one group ofpeople to another. Instead, it is a building uniquelydesigned to facilitate worship in the Greek Orthodoxtradition and to reflect the tenets of the GreekOrthodox faith. Rev. Thomas Fitzgerald, House of God,The Greek Orthodox Archdiocese of America,http://www.goarch.org/ourfaith/ourfaith7100. Thechurch’s iconography, art, and architecture aredesigned to contribute to the total experience ofworship. Id. Additionally, the worship space itself isusually designed to be small to reflect the closecommunity of Greek Orthodox worshippers. Id. Moreover, the Greek Orthodox Church teaches thatwhen a church is consecrated, God’s grace and the HolySpirit transform an ordinary building into a “House ofGod.” The Greek Orthodox Archdiocese of America,Service of the Consecration of a Church,http://www.goarch.org/chapel/liturgical_texts/consecrate_church. As part of the Consecration, relics ofsaints are sealed inside the Holy Altar. Id. Thus, anyintra-church property dispute heard by the civil courtsregarding the Greek Orthodox Church necessarily willentangle the court in doctrinal issues that go to theheart of the Greek Orthodox faith because the brickand mortar building is inseparable from the faith itrepresents.

This Court should take this opportunity to correctthe mistaken premise of Jones that church propertydisputes can be resolved in an entirely secular manner. To pretend otherwise simply encourages courts toentangle themselves in church property disputes thatare bound up with doctrinal concerns.

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b. Jones Failed to Fulfill Its Promises andHas Resulted in the Harms theDissenting Justices Predicted.

Before Jones, the only constitutional approach tochurch property disputes involving hierarchicalchurches was to grant deference to the duly constitutedchurch authorities. Watson v. Jones, 80 U.S. (13 Wall.)679 (1872). In Watson, this Court simply enforced thedetermination of the hierarchical church’s relevantgoverning body regarding whether a pro-slavery oranti-slavery faction of a parish owned the property atissue. 80 U.S. at 722-724. This Court refused tosecond guess the church authorities’ determinationregarding which faction was loyal to the church andthus entitled to the property. For over one hundredyears, courts deferred to hierarchical churches’decisions regarding property ownership.

Then, in 1979, this Court offered an alternative: rather than defer to a church’s governing body as amatter of course, states could now apply “neutral”principles of law to determine church propertyownership. Jones, 443 U.S. at 603-604. Jonespromised that the application of “neutral principles”would “free civil courts completely from entanglementin questions of religious doctrine, polity, and practice.” Id. at 604. The majority saw this as a means forensuring that civil courts would not “resolv[e] churchproperty disputes on the basis of religious doctrine orpractice” in violation of the First Amendment. Id. at602. For this reason, Jones commanded that ifresolving the property dispute would require the civilcourt to resolve a “religious controversy,” then the courtmust defer to the “authoritative ecclesiastical body.”

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Id. at 604. The majority believed, however, that thisapproach would be “completely secular in operation”and would “obviate[] entirely the need for an analysisor examination of ecclesiastical polity or doctrine insettling church property disputes.” Id. at 603, 605.

At the time, the four dissenting justices warned that“this new approach inevitably will increase theinvolvement of civil courts in church controversies,”and would “more likely . . . promote confusion thanunderstanding.” Id. at 611, 612 (Powell, J., dissenting). Furthermore, the dissenters recognized that “indirectinterference by the civil courts with the resolution ofreligious disputes within the church is no lessproscribed by the First Amendment than is the directdecision of doctrine and practice.” Id. at 613. But themajority believed that this new approach nonethelesscould be tolerated in situations in which no doctrinalcontroversy was at issue because courts would simplyanalyze the secular, legal aspects of church governmentand property documents to determine whether a parishor the hierarchical church owned parish property. Id.at 603. The majority theorized that this approachwould not frustrate the free exercise of religion orfreedom of association because a church could indicatein advance the desire that the faction loyal to thehierarchical church would retain church property. Id.at 606. As discussed below, however, in practice astandard requiring an advance expression of intent hasturned out to be completely unworkable.

The last thirty years have only borne out theconcerns expressed by the dissent, undermining themajority’s hope that the neutral-principles approachwould disentangle the courts from ecclesiastical

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matters. Not only is the “secular” premise of thisapproach questionable because it asks courts to gleansecular meaning from inherently ecclesiasticaldocuments, but the neutral-principles approach alsohas produced wildly inconsistent case law. See NathanClay Belzer, Deference in the Judicial Resolution ofIntrachurch Disputes: The Lesser of Two ConstitutionalEvils, 11 St. Thomas L. Rev. 109, 130-135 (1998)(cataloguing contradictory case law). The Jonesmajority failed to realize that disposition of churchproperty often includes an inherently ecclesiasticaldimension that cannot be surgically excised. As aresult, time and again this approach has invited courtsto interfere with hierarchical churches’ internalgovernance even though the Free Exercise Clauseguarantees “a spirit of freedom for religiousorganizations, an independence from secular control ormanipulation, in short, power to decide for themselves,free from state interference, matters of churchgovernment as well as those of faith and doctrine.” Kedroff, 344 U.S. at 154.

c. A Deference Regime for HierarchicalChurches Is the Only Way to ProtectFree Exercise and Avoid Entanglement.

In approving the neutral-principles approach, theJones majority decided for the first time to risk theconstitutional hazards of court-adjudication of churchproperty disputes. Jones’ hopeful view that the“neutral principles” approach would be “completelysecular,” and would only use “objective, well-established concepts of trust and property law familiarto lawyers and judges” has proven untenable. 443 U.S.at 603.

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Instead, application of the so-called neutral-principles approach is fraught with constitutionalinfirmity because it sanctions an ongoing invasion ofchurches’ right to govern their internal affairs. Theconstitutional harm that earlier precedent, likeWatson, recognized is tangible and harmful. 80 U.S.(13 Wall.) 679 (1872). Hierarchical churches have lostproperty that rightfully belonged to them, the ability ofchurches to organize their affairs as they wish has beencompromised, and courts have indirectly interferedwith or decided ecclesiastical disputes. Belzer, 11 St.Thomas L. Rev. at 131-35.

In contrast, Watson deference avoids all of theseproblems and ensures that courts will not intrude intoecclesiastical matters outside their competence. 80U.S. (13 Wall.) 679. The deference approach respectshierarchical churches’ determinations and allowsdisputes to be resolved within the hierarchical churchstructure that parties originally agreed would governthe dispute. Id. at 727. As Watson explained, “[a]llwho unite themselves to such a body do so with animplied consent to this government, and are bound tosubmit to it,” and the decisions of that hierarchicalchurch structure “should be binding in all cases ofecclesiastical cognizance, subject only to appeals as theorganism itself provides for.” Id. at 729. Deferenceproperly leaves internal ecclesiastical disputes toresolution within hierarchical churches’ internalstructures, where they belong.

Respectfully, Jones has not fulfilled the majority’spromises. It has proven complicated to apply,repeatedly has embroiled the courts in ecclesiasticalcontroversies, and trampled on churches’ ability to

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arrange their own internal affairs, just as the dissentwarned. Though it may not have been apparent at thetime Jones was decided, it is now abundantly clear thatthis experiment has failed abysmally because itencourages courts to glean supposed secular meaningfrom inherently religious documents about mattersthat cannot be neatly separated from doctrine orecclesiastical governance.

II. THE COURT SHOULD GRANTCERTIORARI TO CLARIFY THAT THEFREE EXERCISE CLAUSE DOES NOTTOLERATE ANY MORE THAN A MINIMALBURDEN ON A HIERARCHICAL CHURCHTO RECITE AN EXPRESS TRUST INFAVOR OF ITS HIERARCHY.

Short of overruling Jones, this Court should at aminimum act to ensure that courts do not placesubstantial, unconstitutional burdens on hierarchicalchurches to protect their property, as the TexasSupreme Court has done here. In a well-intentionedattempt to further extricate the courts fromentanglement with religious affairs, this Court issueda sharply divided decision in Jones, which offered analternative to the Watson deference policy. This newly-permitted approach was premised on churches havingthe opportunity to arrange their affairs before a disputearose. 443 U.S. at 606. The Court made explicit thatits approval of the so-called neutral-principlesapproach would involve a “minimal burden” onchurches because all that would be required for achurch wishing to indicate that the faction “loyal to thehierarchical church [would] retain the property” wouldbe to express this in “some legally cognizable way.” Id.

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For example, the church could “modify the deeds or thecorporate charter to include a right of reversion or trustin favor of the general church” or, alternatively, “theconstitution of the general church [could] be made torecite an express trust in favor of the denominationalchurch.” Id. The majority reasoned that the FirstAmendment would not be violated because the burdenof enshrining the denomination’s intent by adding trustlanguage to its constitution would be “minimal.” Id.

Here, the Texas Supreme Court’s rule ignores thefundamental premise of Jones that the neutral-principles approach could only be applied if it allowedchurches to indicate how they wish property disputesto be decided with minimal burden, instead imposingan unconstitutional encumbrance on churches’ freeexercise rights by intruding on how they arrange theirinternal affairs. That approach, and others like itacross the country, burden the Greek Orthodox Churchand other hierarchical churches far beyond anythingthe Jones Court envisioned.

a. Throughout Its History, the GreekOrthodox Church Has Been OrganizedHierarchically and All PropertyDisputes Have Been Resolved Internallyby the Church Hierarchy.

The Greek Orthodox Church has always beenorganized hierarchically, subject to the authority of theEcumenical Patriarchate in Constantinople (modernday Istanbul). Local hierarchies, including bishops,priests, and deacons, developed to govern nascentcongregations once the founding itinerant Apostles left. Aristeides Papadakis, History of the Orthodox Church,The Greek Orthodox Archdiocese of America,

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http://www.goarch.org/ourfaith/ourfaith7053. Althoughthe hierarchical structure of the Greek OrthodoxChurch has become more complex since its origins,authority over parishes has always been vested in thechurch hierarchs.

The first Greek Orthodox faithful arrived inAmerica in 1768, establishing the colony of NewSmyrna south of St. Augustine, Florida. The GreekOrthodox Archdiocese of America, About TheArchdiocese, http://www.goarch.org/archdiocese/about. At that time, there was not yet a separate governingchurch body in America through which the EcumenicalPatriarchate in Constantinople exercised its authority.Then, in 1864, Greek merchants established the firstGreek Orthodox Church in America in New Orleans,Louisiana. Id. Under the direction and leadership ofArchbishops Athenagoras, Michael, and Lakovos, thegrowing Greek Orthodox communities in Americabecame an Archdiocese, established in 1921 as thegoverning body of the Greek Orthodox Church in Northand South America under the supreme authority of theEcumenical Patriarchate in Constantinople. Id.

Today, the Greek Orthodox Archdiocese of America,now incorporated in New York, governs 540 parishes,800 priests, and an estimated 1 million members. Id. The Archdiocese operates under a Charter from theEcumenical Patriarchate, which establishes theresponsibilities of the Archdiocese and governs itsrelationship with the Ecumenical Patriarchate. SeeCharter of the Greek Orthodox Archdiocese of America(“Charter”) (2003). In accordance with the Charter, theArchdiocese is divided into a Direct ArchdiocesanDistrict and eight Metropolises, which are each

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governed by a Metropolitan. Although separatelyincorporated, as a condition of their affiliation with theGreek Orthodox Church, the Metropolises must agreeto abide by the rules of the Archdiocese. SeeRegulations, Art. 9 § 2. The Eparchial Synod,composed of the eight Metropolitans and theArchbishop, promulgates Regulations, approved by theEcumenical Patriarchate, to govern the operation andadministration of the Archdiocese, the Metropolises,and the parishes within them. See Charter, Art. 4, 22.Parishes, like Metropolises, are separately incorporatedin the state in which they sit. See Regulations, Art. 21.“Upon the assignment of a Priest by the respectiveHierarch, the Parish accepts and agrees to comply withthe Charter and Regulations of the Archdiocese.” SeeRegulations, Art. 21 § 2.

The Greek Orthodox Church has an established, all-encompassing ecclesiastical government for all internaldisputes that may arise. The Church’s mandatoryRegulations are designed to govern every conceivablesituation a parish may encounter. Thus, theRegulations govern both (a) matters that expresslyrelate to doctrine, such as the determination of aparishioner’s good standing, which is based on whetherhe or she has followed the Church’s rites and metreligious, moral, and social duties, and (b) internalaffairs that are not expressly doctrinal, such asestablishment of a board of financial auditors for eachparish. Art. 18 § 1; Art. 33. Moreover, each parishagrees to resolve conflicts according to the ArchdioceseDispute Resolution Procedures, which vest authorityfor dispute resolution in the relevant church hierarch. See Regulations, Addendum B. The Dispute ResolutionProcedures allow a hierarch in his discretion to convene

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a Spiritual Court of the First Instance to resolvedisputes, and appeals from these courts proceed to theSpiritual Court of the Second Instance. SeeRegulations, Addendum B-5; Charter, Art. 9. As theCharter and Regulations demonstrate, the GreekOrthodox Church understands all disputes that touchon its internal affairs to be ecclesiastical matters thatshould be resolved within these comprehensive churchstructures.

b. The Greek Orthodox Church Has MadeClear Its Intent that Any ChurchProperty Must Remain in the Hands ofFactions the Hierarchy Determines tobe Loyal.

In Jones, this Court identified at least two possibleoptions through which churches could ensure thatfactions loyal to the denominational church wouldretain church property under a neutral-principlesapproach: an express trust or a right of reversion. 443U.S. at 606. The Greek Orthodox Church has includedboth an express trust and a right of reversion in favorof the Archdiocese in its Regulations to comply withJones’ requirement and ensure that loyal factionsretain church property. See Regulations, Art. 16 §§ 1,6.

Specifically, the Regulations recite an express trust,which is deemed incorporated into all parishes’ by-laws, that requires that “[p]arish property shall be heldand used by the Parish to carry out the purposes of theOrthodox Christian Faith as defined in Article 15.” Regulations, Art. 16 § 1. In turn, Article 15 of theRegulations makes clear that the determination ofthese purposes is the province of the church hierarchy,

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which retains the authority to enforce itsdeterminations even by “revok[ing] the ecclesiasticalcharter of a Parish.” Id., Art. 15 § 6. Thus, while theproperty is held in the parish’s corporate name, aparish cannot buy, sell, mortgage, or develop itsproperty without the approval of the respective Bishopor Metropolitan. Id., Art. 16 § 3. These provisionsdemonstrate that church property is held in trust forthe Greek Orthodox Church.

The Regulations also recite a right of reversion infavor of the Archdiocese in the event the Archbishopdeclares a parish in canonical disorder due to heresy,schism, or defection from the Archdiocese: “In theevent that the Archbishop . . . determines that theParish cannot be restored to canonical order, the titleto properties shall vest in the Archdiocese.” Id., Art.16, § 6. The Regulations further provide that if titlecannot vest in the Archdiocese, then “title shall vest inan ecclesiastical corporation controlled by the group ofparishioners that the Archdiocese determines remainsloyal to it.” Id. Thus, any decision about ownership ofchurch property is inherently a church polity decisionabout who are the true Greek Orthodox parishioners,an issue about which the courts are incompetent. These provisions coupled with the Greek OrthodoxChurch’s long history of hierarchical governance makeexplicit that the Greek Orthodox Church wishes for itsproperty disputes to be resolved internally by itshierarchy.

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c. The Texas Supreme Court Should NotBe Allowed to Intrude on InternalGovernance Matters in HierarchicalChurches Simply Because Property IsImplicated.

The Texas Supreme Court has read Jones and itsneutral-principles approach to require that courts floutchurches’ internal governance in favor of secular lawsimply because a dispute touches property, even whenthe matter is understood to be ecclesiastical. Thus,even though the Greek Orthodox Church has madeclear in every way contemplated by Jones that churchproperty is held for the church and that propertydisputes are inherently ecclesiastical matters to beresolved by the church hierarchy, the Church’s clearintent still may not be respected. Other state supremecourts similarly have read Jones to require strictcompliance with state property law across jurisdictions,notwithstanding the burden on churches to alter theirinternal affairs and without regard to resultingentanglement with ecclesiastical matters. SeePresbytery of Ohio Valley v. OPC, Inc., 973 N.E.2d 1099(Ind. 2012), cert. denied, 133 S. Ct. 2022 (2013); AllSaints Parish Waccamaw v. Protestant EpiscopalChurch in Diocese of South Carolina, 685 S.E.2d 163,166-167 (S.C. 2009); Berthiaume v. McCormack, 891A.2d 539, 547 (N.H. 2006).

But this reading of Jones is inconsistent with theprotections of the First Amendment because it directlyand substantially interferes with churches’ right toarrange their affairs as they wish, requiring thatchurches organize themselves in accordance withsecular law rather than church teaching. The Texas

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Supreme Court’s decision ignores the fact that “theFirst Amendment . . . gives special solicitude to therights of religious organizations.” Hosanna-Tabor, 132S. Ct. at 706. The Free Exercise Clause does notpermit federal or state law to dictate how churchesarrange their internal affairs. See Hosanna-Tabor, 132S. Ct. at 704; Kedroff, 344 U.S. at 116 (understandingreligious freedom as “an independence from secularcontrol or manipulation, in short, power to decide forthemselves, free from state interference, matters ofchurch government as well as those of faith anddoctrine”).

Furthermore, this reading of Jones would requirechurches to structure their property holdingsdifferently in states with different property law. TheGreek Orthodox Church has parishes in 49 states. Greek Orthodox Archdiocese of America ParishDirectory, http://www.goarch.org/parishes/. Thus, torequire strict compliance with property law in everystate would amount to an “immense” andunconstitutional burden far beyond the “minimalburden” that this Court sanctioned in Jones. SeeRector, Wardens, Vestrymen of Christ Church v. Bishopof Episcopal Diocese, 718 S.E.2d 237, 244 (Ga. 2011).

Here, there is no question that the EpiscopalChurch met Jones’ instruction that a church could“ensure, if [it] so desire[s], that the faction loyal to thehierarchical church will retain the church property” ifthat intent was “embodied in some legally cognizableform.” 443 U.S. at 606. Nonetheless the TexasSupreme Court is imposing a substantial,unconstitutional burden by ignoring the fact that theEpiscopal Church amended its Church Constitution to

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include the Dennis Canon with the clear intent tocreate an express trust in the event a property disputearose. The Texas Supreme Court’s approach threatensnot only the Episcopal Church, but other churches,including the Greek Orthodox Church, that havearranged their affairs based on Jones’ promise thatonly a “minimal” burden could be imposed yet still facethe possibility of losing church property to breakawayfactions because some technical state law requirementwas not met.

III. THIS COURT SHOULD GRANTCERTIORARI TO HOLD THAT NEUTRALPRINCIPLES CANNOT BE APPLIEDRETROACTIVELY WITHOUT VIOLATINGTHE FREE EXERCISE CLAUSE OF THEFIRST AMENDMENT.

Unless this Court grants certiorari and holds thatretroactive application of the so-called neutral-principles approach is unconstitutional when it was notclearly enunciated in advance, churches will remain ina precarious position in which the law can be turnedupside down without notice that their property rightsare no longer secured. Jones does not support and theFree Exercise Clause cannot tolerate placing churchesin that position.

a. The Reasoning of Jones Makes ClearThat Retroactive Application of NeutralPrinciples Is Unconstitutional.

In Jones, this Court specifically noted that becausethe Georgia Supreme Court “clearly enunciated itsintent to follow the neutral-principles analysis,” it didnot have to decide the constitutionality of retroactive

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application of neutral principles. 443 U.S. at 606 n.4. But Jones premised the constitutionality of the neutral-principles approach on the fact that churches’ freeexercise rights would not be violated if only a“minimal” burden was placed on the church toeffectuate its intentions prior to a property disputearising. 443 U.S. at 606. It follows that the FreeExercise Clause cannot sanction a sudden deviationfrom a deference approach in favor of a neutral-principles approach where the parties arranged theiraffairs under a deference regime.

b. The Texas Supreme Court WouldRequire That Hierarchical ChurchesEither Risk Losing Their Property OrAlter Their Internal Approach toEcclesiastical Governance.

Here, the longstanding unbroken Texasjurisprudence over the last 100 years indicated thatTexas was a deference state. Brown v. Clark, 116 S.W.360 (Tex. 1909); Green v. Westgate Apostolic Church,808 S.W.2d 547, 551-552 (Tex. App.—Austin 1991). Even though Texas never clearly enunciated its intentto follow the neutral-principles approach until now, theEpiscopal Church risks losing $100 million worth of itsproperty because of the Texas Supreme Court’s about-face. If the retroactive application of a neutral-principles approach is permitted, hierarchicalchurches, such as the Greek Orthodox Church, will facetwo untenable options: risk losing valuable churchproperty in reliance on a state’s deferencejurisprudence or alter their internal affairs to meet thesubstantial burden of strictly complying with multiplestates’ property law in the event of a state’s unforeseen

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about-face. This Court should intervene to hold thatthe First Amendment will not tolerate retroactiveapplication of “neutral principles” because such areversal in the law disregards the clear intent of intra-church agreements made decades earlier regardingvaluable religious property.

CONCLUSION

The case before this Court demonstrates thecurrent, confusing state of affairs for hierarchicalchurches attempting to protect their property andmanage their internal affairs consistent with theirreligious precepts. This Court should grant certiorarito extract the courts from further entanglement inecclesiastical matters and to ensure the Constitution’spromise that religious organizations are allowed toarrange their affairs, practice their faith, and inhabittheir places of worship without state interference. Because the opinion below disregards important FirstAmendment rights, the Greek Orthodox Churchrespectfully requests that this Court grant certiorari toguard against encroachments on the protectionsafforded by the Free Exercise Clause.

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Respectfully submitted,

John Zavitsanos Counsel of RecordJamie A. AycockJane Langdell RobinsonAHMAD, ZAVITSANOS, ANAIPAKOS,ALAVI & MENSING P.C.1221 McKinney Street, Suite 3460Houston, Texas 77010Telephone: (713) 655-1101Facsimile: (713) 655-0062jzavitsanos@azalaw.comjamieaycock@azalaw.comjrobinson@azalaw.com

Counsel for Amicus Curiae