The long-running dispute over property owned by dueling factions of the Episcopal Church in Texas may soon reach the U.S. Supreme Court, with high-octane appellate advocates involved on all sides.
At the justices’ private conference on February 19, the cases titled Episcopal Church v. Episcopal Diocese of Fort Worth and All Saints’ Episcopal Church (Fort Worth) v. Episcopal Diocese of Fort Worth will be among dozens of pending certiorari petitions. If the justices agree to grant review, their decision will likely be announced soon and will be docketed for argument next term.
The rift between factions began in 2006 when the Episcopal Diocese of Fort Worth and most of its congregations split from the U.S.-based national Episcopal Church at a time when the national church was allowing same-sex marriages and female bishops.
But the cases going before the high court have little to do with those societal differences. Instead, they involve a church property dispute and the extent to which states must defer to religious organizations in resolving such disputes, under the First Amendment.
In May 2020, the Texas Supreme Court awarded possession of more than $100 million in church property to the breakaway Episcopal Diocese of Fort Worth, applying “neutral principles of law.” The ruling set the stage for the losing national Episcopal Church to appeal before the U.S. Supreme Court
The convoluted cases warrant a scorecard or perhaps a Venn diagram to understand who is on which side of the dispute. The parties have similar or identical names, and the dispute came to the Supreme Court with those same names in 2014. The high court denied review in 2014, but the justices may grant review this time around.
One thing is certain: all sides in both cases will be represented by veteran Supreme Court advocates as well as several Texas firms:
— Former acting U.S. solicitor general Neal Katyal, now a Hogan Lovells partner, is counsel of record for the Episcopal Church. Katyal also represented the church in 2014. Also involved in the case are Thomas Leatherbury of Vinson & Elkins and other lawyers from Goodwin Procter, Naman Howell Smith & Lee and DLA Piper.
— Kirkland & Ellis partner Paul Clement, also a former solicitor general, represents All Saints Episcopal Church, one local parish within the Fort Worth Diocese that wants to remain affiliated with the Episcopal Church. He is joined by Johnston Tobey Baruch in Dallas.
— Baker Botts partner Aaron Streett is counsel of record for the winning Episcopal Diocese of Fort Worth, also as he did in 2014. Street urges the high court not to grant review. Street is joined by Scott Brister of Hunton Andrews Kurth, and lawyers from Sharpe & Rector and Weaver Robinson Law Firm.