The Opening Statement for the Virginia Churches Trial on the Division Statute

THE COURT: All right. I'll hear opening statement.
MR. COFFEE: Your Honor, Mr. Johnson is
going to make the opening statement.
THE COURT: Okay.
MR. JOHNSON: Thank you, Your Honor, and may
it please the Court.

From the days of Thomas Jefferson, James
Madison, George Mason, and the Virginia Statute on
Religious Freedom, the Commonwealth of Virginia has
had a long history of deferring to local control of
congregational property, and in 1867 the Virginia
General Assembly adopted a statute providing that the
principle of majority rule should govern the ownership
of such property when a religious denomination or
society experiences a division or a split.
The statute remains on the books today after
several recodifications with only minor changes, and
the question before the court is whether the CANA
Congregations have satisfied the statute's
requirements, whether The Episcopal Church, the
Diocese of Virginia or the Anglican Communion have
experienced a division and whether the CANA
Congregations have joined a branch of one of those
bodies in the wake of that division.

Now, to understand the answer to that
question it's useful to put the statute in historical
context, and that's what we intend to do.
Mark Valeri and Charles Irons,
two leading historians of American religious history
will testify that the 19th century was a time of
numerous fractures or divisions in American religious denominations.
Just as earlier centuries witnessed the
splits that created the three main branches of
Christianity, the Roman Catholic, orthodox, and
protestant traditions, the 19th century saw many
further divisions into somewhat smaller branches,
particularly among the nation's protestant denominations.
Some of these divisions were over the issue
of slavery, of course, but others were over issues
like how the church should approach evangelism or how
the church should be organized over its polity. But
the important point for our purposes and what the
evidence will show is that the phenomenon of church
divisions was well known to 19th century Americans,
particularly in Virginia.

For example, Professor Valeri will testify
that the Presbyterians split up more than ten times in
the 19th century. To name just a few of the more
significant ones, there was the Cumberland branch of
Presbyterians, the New School branch, the Old School
branch.

There was the separation of the United
Senate from the New School Presbyterians which took
place right in Richmond in the late 1850s, less than a
decade before the statute was adopted.

There was the 1860s split of the Old School
branch into northern and southern churches and there
was the split of the New School branch into northern
and southern churches during roughly the same time
period.

We'll also hear from Professor Irons, a
leading expert on the 19th century American church,
and he will testify that the Methodists experienced
several splits in that era as well.

There was the group that split off from the
Methodist Episcopal Church to form the Reformed
Episcopal Church in 1813. There were the six churches
that formed the AME Zion Church in the early 1820s due
to restrictions on blacks' participation in worship.
There was the Methodist Protestant Church
formed around 1830 and there were the groups that
withdrew to form the Wesleyan Methodist Church in the
1840s over slavery and women's rights, the
Congregationalists Methodists in the 1850s over issues
of polity, the Free Methodists in 1860s who also split
over issues of polity and evangelism, bodies that
incidentally still exist today. And there was the
split that broke the Methodist Episcopal Church, then
the nation's largest religious denomination, into the
Methodist Episcopal Church and the Methodist Episcopal
Church South in the 1840s and following decades.
Professor Irons will explain that the
Methodist division was particularly well-known to
Virginians because much of Virginia was located in
what was known as the Baltimore Conference, a region
of the church that also included much of Maryland and
a region that took what was then a middle ground
position on slavery.

But in 1860 when the northern church changed
its position on slavery, many of the Virginia
congregations in the Baltimore Conference felt
betrayed and wanted out, so they left in defiance of
church authorities in what was effectively a second
major division in the Methodist Episcopal Church in a
roughly 20-year time period.

So how did people in the 19th century talk
about these splits? How would an ordinary American
citizen, in particular one who lived in Virginia, have
understood the terms "division" and "branch" in the
context of religious denominations?

Professors Valeri and Irons have studied
this extensively by reviewing primary sources from
that era. They've looked carefully at secular
periodicals ranging from The New York Times to local
Virginia papers like the Staunton Spectator.
They've looked at religious periodicals such
as The Presbyterian or other denominational
newspapers. They've looked at minutes of
denominational meetings, sermons, pamphlets as well as
many standard reference works concerning the era, and
as they will explain, a division was most commonly
understood to have occurred when a group of church
members and clergy broke away from a denomination,
typically without the denomination's approval, in
sufficient numbers to set up a new organization, a new
polity.

Relatedly, a branch was most commonly
understood to be that new organization, a group of
churches with its own newly-established polity but
with a historical connection to the prior
denomination, and typically containing a similar
organizational structure. A branch was either an
offshoot of the predecessor church or the body left
behind. And so, for example, people would refer to
the New School branch of the Presbyterian Church or
the southern branch of the Methodist Church or the
northern branch of the Old School Presbyterians or
even the southern branch of The Episcopal Church. The
evidence will show that during the Civil War The
Episcopal Church in the Confederate States set up a
new organization, a new constitution, a new Bishop,
and a new General Convention called the General
Council.

Now, in the case of Episcopalians, the
church reunited in 1866, a year before the division
statute was adopted. But as Professor Irons will
explain, leading Bishops in the southern branch and
indeed in Virginia referred to themselves as a branch
of The Episcopal Church despite the fact that the
Northern Episcopal Church never acknowledged them to
have left, and despite the fact that the consecration
of a southern Episcopal Bishop was a violation of a
polity of the northern branch.
It was against this backdrop of church
splits, not only in the Methodist and Presbyterian and
Episcopal streams of the church, but in many other
denominations as well that the division statute was
adopted, and the evidence will show that at least 30
congregations successfully invoked it during the first
year or two after its adoption, including
congregations that voted to join various branches of
the churches at issue.

This was especially so in Augusta County,
Virginia, the home of Colonel John Baldwin, who is
perhaps best known for his opposition to suspending
the writ of habeas corpus, but also was the lead
sponsor of the division statute.
Now, The Episcopal Church and the Diocese of
Virginia would have this court believe that these
denominational splits were consensual, agreed-to
separations approved by the authority of the churches
involved. According to them, a division exists only
where the highest adjudicatories of a church formally
approve of it. Other sorts of splits are simply
people withdrawing from the church or separating from
it, and if their depositions are any indication, we
expect you'll hear their witnesses sound that refrain
time and again.

But as Professors Valeri and Irons will
explain, that was not the case historically. Most, if
not all, of the denominational splits in the 19th
century were in direct defiance of the governing
authorities, and this is even true for the Methodists
who perhaps came the closest to a formally approved
separation. Professor Irons will explain that the
Methodists' so-called plan of separation called for
ratification by three-fourths of the Methodist
conferences of the church -- a conference was
basically the Methodist equivalent of the Diocese --
but that this never happened because the southern
congregations simply left and set up their own annual
conference the following year. Indeed, the founder of
the new branch was a minister whom the northern church
had formally suspended from ministry.

Moreover, Professor Irons will explain that
the plan did not anticipate, let alone address, the
problems that would arise two decades later in the
1860s, when the Methodist Church in the north changed
its position on slavery. Now, when the denominations
split apart in the 1840s, the Baltimore Conference had
voted to stay in the northern branch of the church,
but when the northern branch of the church changed
course, many of the congregations in Virginia wanted
to disaffiliate.

The problem was the so-called Methodist plan
of separation, which in any event had never been
ratified, did not give them any escape hatch. So they
had to leave in defiance of the denominational
authorities. Enter the division statute.
Now, this of course is only the Methodist
situation. But as Professors Valeri and Irons will
explain there were lots of other divisions and most,
if not all, of the new branches divided from their
denomination without approval.

The term "division" was understood to apply
to all of these situations, even where a group broke
away without denominational approval, and, in fact,
The Episcopal Church's own historical expert, if he
testifies consistently with his deposition, will agree
with much of what Professors Valeri and Irons will
have to say about the Methodist and Presbyterian
divisions, including the fact that the Methodist plan
of separation was never ratified and the southern
branch of the Presbyterians disaffiliated without the
northern branch's permission.

So bearing in mind this historical backdrop,
I'd now like to fast-forward 140 years and discuss how
the CANA Congregations will prove a division in the
meaning of Section 57-9, the current codification of
the statute adopted in 1867.

You'll hear testimony about the division of
The Episcopal Church and the Anglican Communion, about
the recent departure of members, congregations and
clergy from The Episcopal Church, particularly as a
result of certain new policies adopted at the church's
2003 General Convention, about the related division in
the Diocese of Virginia, as evidenced by the
disaffiliation of 15 congregations from the Diocese
since late 2005, all of whom are now members of the
Anglican District of Virginia, an offshoot or branch
of the Diocese.

And you'll hear about the formation of new
branches of the church such as CANA, made up of former
Episcopalians who are now affiliated with other
provinces in The Anglican Church worldwide, provinces
that have broken communion with or disaffiliated from
The Episcopal Church in the U.S.A.

You will also hear specific testimony about
the establishment of CANA as an offshoot of The
Episcopal Church as a new branch where Episcopalians
could reaffiliate in the wake of the 2003 General
Convention of The Episcopal Church.

For example, one of the Congregations'
witness's will explain CANA's relationship to The
Anglican Church of Nigeria, and in particular how CANA
was initially envisioned as a place where
congregations in The Episcopal Church with Nigerian
expatriates as members could reaffiliate. But as the
evidence will show, it soon became clear in light of
the number of congregations disaffiliating from The
Episcopal Church and their need for oversight in the
wake of 2003 General Convention, that the mandate of
CANA needed to be broadened.

And so in response to the growing division
in The Episcopal Church, CANA amended its charter in
2006 to rename CANA from the Convocation for Anglican
Nigerians in American to the Convocation of Anglicans
in North America.

In other words, you will hear testimony that
while CANA is affiliated with the Church of Nigeria so
as to maintain Anglican ties and oversight, it is
composed primarily of former Episcopal congregations
who turned to CANA as an Anglican alternative in the
wake of the General Convention in 2003.
And you will hear about how in the short
time since CANA's missionary Bishop Martyn Minns was
consecrated in August 2006, CANA has grown to a
national organization of some 60 congregations from 18
states and eight Episcopal Dioceses. Moreover, you
will hear that more than 10,000 of its members have
come from The Episcopal Church.

Next, you will hear from a series of
witnesses who will testify about how the division in
The Episcopal Church is played out in the Diocese of
Virginia. For example, you will hear testimony from a
member of the Diocese's Reconciliation Commission, an
ideologically diverse group of people appointed by
Diocesan Bishop Peter Lee in hopes of preventing the
sorts of disaffiliations that were taking place in
other parts of The Episcopal Church, and in hopes that
the Virginia tradition of civility on these issues
might lead to some sort of compromise that would
enable congregations who disagreed with the actions of
the church to remain in some level of relationship of
the Diocese.

You will hear testimony that although the
group's members disagreed on a whole host of issues,
they all agreed that there was a division in the
Diocese and that there would likely need to be
provision for some sort of amicable divorce unless
things changed at the 2006 General Convention.
The Commission's unanimous report, which you
can still find on the Diocese's web site, repeatedly
referred to the division describing the situation as a
level 5 conflict, which the report described as the
most serious level of organizational conflict. And in
the wake of the report the Diocese in 2005 adopted a
resolution at its Annual Council acknowledging the
division in the Diocese.

You'll also hear from members of a special
committee appointed by Bishop Lee after the
Reconciliation Commission issued its report, a
committee charged with "helping congregations
continuing in conflict over the decisions of the 2003
General Convention get on with their mission in as
close a union as possible with the Diocese."
These witnesses will explain that the
committee was chaired by Russ Palmore, an officer of
the Diocese and, chief lawyer, and a member of The
Episcopal Church's Executive Council. As they will
testify, the committee explored numerous ways of
resolving the conflict in the Diocese short of
separation, but that ultimately these proposals were
found unworkable by both sides.

In the end, the Special Committee produced a
unanimous final report acknowledging the division
expressly and by then congregations had already begun
disaffiliating from the Diocese. The report also
outlined a protocol for departing congregations to
follow in order to disaffiliate from the Diocese. The
protocol in turn included guidelines that, among other
things, called for vestry and congregational votes on
disaffiliation and amicable negotiation of the
parties' differences over property. Bishop Lee
thanked the committee, received their report, and
called it the right way forward.

And you'll hear testimony that these
measures were unprecedented in the history of the
Dioceses, that past disagreements over issues such as
ordination of women or the revision of the Book of
Common Prayer did not compare to the current division
or generate any need for such protocols.
The evidence will further show that the CANA
Congregations in the Diocese then proceeded to follow
the protocol, including at congregational meetings
where representatives of the Diocese were permitted to
address the congregations, and that the congregations
ultimately voted to disaffiliate. The Episcopal
Church and the Diocese then abandoned the protocol and
brought suit against the CANA Congregations.

But as the evidence will show in total some
15 congregations, representing more than 10 percent of
the membership of the Diocese and nearly 20 percent of
its average Sunday attendance, disaffiliated. And the
evidence will also show that these congregations are
merely a part of a much broader exodus from the church
as a whole which began before the votes of the CANA
Congregations and continues today.

Now, you're going to hear a fair bit about
the Anglican Communion and how the actions of The
Episcopal Church have had international repercussions,
a division among the Anglican Communion's 38 provinces
themselves.

For example, you will hear testimony from
Abraham Yisa, the registrar or the most senior lawyer
in the Church of Nigeria, a voting member of the
Anglican Consultative Council and the chairman of
CANA's board of directors.

Registrar Yisa will explain that the
Anglican Communion is a church and a religious society
and that Anglican parishes are through their Dioceses
and provinces attached to the Anglican Communion. He
will also testify that the division in the communion
is evidenced by the decision of many Anglican
provinces to declare that they are in the relationship
of broken or impaired communion with The Episcopal
Church, which is an Anglican way of saying we are
cutting off our relationship with you unless and until
you change direction.

As the Global South Primates put it in April
2004, The Episcopal Church by its actions in 2003 "has
willfully torn the fabric of the communion at its
deepest level and as a consequence openly cut
themselves adrift."

Registrar Yisa will testify that the
division in the Communion is evidenced by the decision
of the Church of Nigeria to amend its constitution,
first to provide that the Church of Nigeria is in
communion with, i.e., in formal ecclesiastical
relationship with, only those provinces of the
Communion that adhere to the historic teaching of the
faith, not those who merely relate to the Archbishop
of Canterbury, and second, an amendment to authorize
the Church of Nigeria to establish a foreign
missionary district in a geographic region where
there's already some Anglican presence.
As Registrar Yisa will explain, these are
unprecedented measures in the Anglican Communion.
Anglican provinces generally respect each other's
territory, but these are not ordinary times in the
Anglican Communion. They are times in which the
Communion is not only personally, but structurally
divided.

Indeed, The Episcopal Church's Presiding
Bishop Katharine Jefferts-Schori will testify by DVD
that it is a great affront to The Episcopal Church to
have foreign provinces coming into the United States
and setting up alternative Anglican bodies, and she
and The Episcopal Church's experts will both say that
this is a violation of Anglican polity. In fact, she
testified at her deposition that she'll settle TEC's
claim to congregational property with a parish that
wants to sell it to a saloon or to reaffiliate with
the Baptists, but not with a congregation that wants
to reaffiliate with Nigerian, Ugandan, Rwandan, or
Kenyan or South American Anglicans.

This is just further evidence of the
division in the Anglican Communion, the division
between those provinces or branches that continue to
be in a formal relationship of communion with The
Episcopal Church and those that do not.
Now, you are not likely to hear a
substantial response to our historical evidence. In
fact, if the expert of The Episcopal Church testifies
to the same effect as in his deposition he will
acknowledge that a great majority of church splits in
the 19th century were nonconsensual and that people
nonetheless referred to them, at least informally, as
divisions.

Instead, it appears from the exhibits that
The Episcopal Church and the Diocese intend to attempt
to suggest that the division statute does not mean
what it says, based on the legislative history of a
proposed amendment to Section 57-9 in 2005, an
amendment that was never voted on by the full
legislature and, in fact, never made it out of
committee.

But this so-called legislative history is
not an answer to the lessons of 19th century history,
which conclusively show that the statute's terms would
have been understood to apply to any situation in
which a group of congregations broke away from a
denomination and started a new entity.
The important point is that over the years
the Virginia General Assembly has made various
amendments to the Virginia Code as it relates to
religious organizations, but it has not seen fit to
narrow or repeal the division statute. The General
Assembly continues to believe that when a group of
congregations separates from a denomination, the
neutral principle of majority rule should govern the
ownership of property.

Now, The Episcopal Church and the Diocese
like to say that while there are differences of
opinion or divisions of opinion in the denomination,
they are simply that, that there was internal strife
in the denomination, that they're having some
challenging conversations or some conflict or some
debate, but that these internally are not division
because they were not formally approved as such.
According to them it's only a division if
they say so and only if they say so via a formal vote
of their General Convention. Indeed, as Mr. Davenport
acknowledged on Friday, there would not be a division
under their theory even if 95 percent of The
Episcopal's Church's congregations voted to
disaffiliate. Moreover, they say that the Anglican
Communion is incapable of dividing because it is
simply a vision or an ethos or idea.
The CANA Congregations do not deny that
there has been division in the sense of much internal
strife but the evidence will also show that that is
not how The Episcopal Church and the Diocese talked
about division before this litigation began.

For example, Professor Valeri will testify
about the division that created the Reformed Episcopal
Church in the 1870s. That was a division that, like
other typical church splits in the 19th century,
occurred without denominational approval. The
evidence will show that the new branch was formed by
one Episcopal Bishop and seven other clergy and that
only a dozen congregations attended the new body's
first convention.

Yet in 1988 the General Convention of The
Episcopal Church adopted a resolution that declared as
follows and I quote, "Resolved, the House of Bishops
concurring, that this 69th General Convention direct a
Standing Commission on Ecumenical Relations to explore
the possibilities of dialogue with representatives of
the Reformed Episcopal Church looking toward the
healing of this particular division and direct the
standing commission on ecumenical relations to report
to the next General Convention."

In other words, outside the context of this
litigation, The Episcopal Church and indeed its own
General Convention used the term "division" exactly
the way everyone else does. Closer to home, the
evidence will show that the report of the Special
Committee chaired by Russ Palmore, Chancellor of the
Diocese, described the situation as follows: "the
division which may cause some to walk apart."

That division of course is why the protocol
provided a protocol for departing congregations which,
despite his later abandoning of it, Diocesan Bishop
Peter Lee described as a useful way forward.
And the evidence will show that just a few
days before their scheduled votes on disaffiliation
Bishop Lee himself wrote to the CANA Congregations
members and said that, "American Christianity has been
punctuated over the years by frequent divisions with
one group choosing to separate because they believed
the separated group might be more pure than their
former identity. That has not been characteristic of
the way we Anglicans have dealt with differences. I
encourage you when you vote to vote for the unity and
mission of the church. Therefore, remaining one with
your Diocese and reject the tempting calls to division."

"Frequent divisions with one group choosing
to separate."Those are Bishop Peter Lee's words, not
ours, but we would be hard pressed to come up with a
more common understanding of the term "division," and
that's exactly how people understood the term in 1867.

In sum, the General Assembly enacted the
division statute to ensure that a neutral principle,
majority rule, would govern situations when a group of
congregations divided from their former denomination
and formed a new branch of the church.
That happened in the 19th century and it
continues to happen today. What is perhaps unique
about this case is that the division has played out at
the international level of the church as well, but it
is no less a division within the meaning of the
statute. Indeed, the international element of this
dispute merely confirms the magnitude of the division,
and the evidence will demonstrate as much.

Thank you, Your Honor.

Steffen Johnson is counsel to Truro Church and The Falls Church.

NOTE: The original Fairfax Court House (in the photo above and here to the right) was the meeting place for Truro Parish in Fairfax after the American Revolution. The original Truro Parish building in Fairfax (Payne's Church) - and location - was lost to the Baptists after the Revolution (and the Baptists still inhabit that location by the way). A congregation reconvened, thanks to the visionary leadership of a lay woman from The Falls Church, and met at the Fairfax Court House for Morning Prayer.