Virginia judge issues preliminary ruling on application of state statute
Episcopal News Service. April 4, 2008 [040408-02]
Mary Frances Schjonberg
A judge ruled April 3 that it was appropriate for 11 Convocation of Anglicans in North America (CANA) congregations to file property claims under a portion of Virginia state law that is triggered when there is a so-called "division" of a church or religious society.
Fairfax County Judge Randy I. Bellows did not rule on the property issues themselves or whether the Virginia statute violates the Episcopal Church's or the Diocese's First Amendment rights. He said only that the CANA congregations, some of which include former members of the Episcopal Diocese of Virginia, could file their claims under Section 57-9(A) the so-called “Division Statute” of the Code of Virginia.
"We are obviously disappointed in yesterday's ruling by the trial judge against the Episcopal Church and the Diocese that involved one Virginia statutory issue in the case," the office of Presiding Bishop Katharine Jefferts Schori said in a statement. "While we believe that the Court's conclusion that Virginia's unusual 'division' statute applies to the current situation in the Diocese, the Episcopal Church and the Anglican Communion is incorrect, there will be time enough in the future to seek review of that decision if it becomes necessary."
Jefferts Schori's office noted that "this decision does not bar the contentions of the Episcopal Church and the Diocese regarding control over the property of the departing congregations that will be presented to the Court in [October]."
The Diocese of Virginia said in a statement posted on its website that "it is simply wrong" to allow those who have left the Episcopal Church "continue to occupy Episcopal Church property while loyal Episcopalians are forced to worship elsewhere."
Bellows held in his 88-page letter of opinion and order that the conflict constitutes a "division" in a "'church or religious society'" within the meaning of Section 57-9(A).
Bellows wrote that this is especially true "given the involvement of numerous churches in states across the country, the participation of hundreds of church leaders, both lay and pastoral, who have found themselves 'taking sides' against their brethren, the determination by thousands of church members in Virginia and elsewhere to 'walk apart' in the language of the Church, the creation of new and substantial religious entities, such as CANA, with their own structures and disciplines, the rapidity with which the ECUSA's problems became that of the Anglican Communion, and the consequent impact -- in some cases the extraordinary impact -- on its provinces around the world, and, perhaps most importantly, the creation of a level of distress among many church members so profound and wrenching as to lead them to cast votes in an attempt to disaffiliate from a church which has been their home and heritage throughout their lives, and often back for generations."
"Whatever may be the precise threshold for a dispute to constitute a division under 57-9(A), what occurred here qualifies."
Meanwhile, Jim Oakes, vice-chairman of the Anglican District of Virginia, the CANA subdivision to which the congregations belong, said CANA is pleased with the ruling.
"We have maintained all along that The Episcopal Church and Diocese of Virginia had no legal right to our property because the Virginia Division Statute says that the majority of the church is entitled to its property when there is a division within the denomination," Oakes said in a statement.
Bellows held a trial on the interpretation and application of Section 57-9 in November. His April 3 letter of opinion and order stem from that hearing.
The Diocese of Virginia and the Episcopal Church argued in November that it would be unconstitutional for the court to apply Section 57-9(A) in such a way as to rule that a division had occurred within the diocese or the denomination at large, because such a ruling would be an impermissible intrusion by the state into the affairs, doctrine and polity of a hierarchical church.
In his April 3 ruling, Bellows explicitly acknowledged that constitutional issues remain. He will hold a hearing on those issues on May 28 to hear argument on whether his interpretation of 57-9(A):
- violates the free exercise clause of the First Amendment to the United States Constitution;
- violates the establishment clause of the First Amendment to the United States Constitution; and
- violates the religious freedom provisions of the Virginia Constitution.
The Presiding Bishop's office said that at the May hearing, its lawyers would present "our contention that if the statute means what the Court has held, it plainly deprives the Episcopal Church and the Diocese, as well as all hierarchical churches, of their historic constitutional rights to structure their polity free from governmental interference and thus violates the First Amendment and cannot be enforced."
The Diocese of Virginia said in its statement that "at issue is the government’s ability to intrude into the freedom of the Episcopal Church and other churches to organize and govern themselves according to their faith and doctrine."
"We strongly believe that, while we may have theological disagreements within the Episcopal Church, those disagreements are ours to resolve according to our faith and governance."
The statement, which was emailed to news outlets, also said that "the constitutional issues, on which the Court explicitly did not rule, have implications for every church in Virginia."
The diocese said it will "proceed with our claims with sadness for those who have sought to leave but with confidence that we are being faithful stewards of what God has given us in these churches."
"When the CANA congregations voted to leave the Episcopal Church in protest, they abandoned their Episcopal brothers and sisters of the past, the present and the future," the Virginia statement continued. "Having denounced The Episcopal Church, the congregations set out to separate themselves from the Diocese of Virginia yet occupy and seek control of Episcopal Church property. The people in the CANA congregations were free to leave, but they cannot take Episcopal property with them."