Wednesday, October 14, 2009

Virginia Supreme Court agrees to hear The Episcopal Church appeals on Virginia law 57-9

Counsel for the Virginia churches that voted to separate from the Episcopal Diocese of Virginia as well as counsel for The Episcopal Church (TEC) have received calls indicating that TEC's appeals have been granted as expected by the Supreme Court of the Commonwealth of Virginia. Originally the Diocese and The Episcopal Church were granted a hearing (called a "writ panel argument") prior to being granted their appeals, but that now the appeals have been granted without the hearing. These appeals are for the rulings handed down by Judge Randy Bellows in Fairfax Circuit Court last year. Stay tuned for updates.
"The fact that the Virginia Supreme Court is going to hear an appeal of this case was expected," said Jim Oakes, Vice-Chairman of the Anglican District of Virginia, of which the nine churches are members. "We continue to be confident in our legal position and in the rulings of the Fairfax County Circuit Court. These rulings, among other things, found the Virginia Division Statute constitutional."

"While we are and have been prepared to continue to defend ourselves, we are ready to put this litigation behind us so we can focus our time, money and effort on the work of the Gospel," Jim Oakes also said.

"We are pleased that the Court has agreed to hear this important case regarding the ability of the Episcopal Church and other hierarchical churches to organize themselves according to their beliefs without unwarranted governmental interference," Henry Burt, a litigator who is Secretary of the Diocese of Virginia. "We welcome this next step to bringing exiled Episcopalians closer to returning to their church homes."
Note that Henry Burt uses the exact same phrase "unwarranted governmental interference" that Bishop Johnston was supposed to have written himself in his letter to the Diocese last week.

UPDATE: From The Washington Post:
A years-long, multi-million-dollar land battle between the Episcopal Church in Virginia and conservatives who broke away from the denomination is headed back to court.

The Virginia Supreme Court said today that it would hear an appeal by the Episcopal Diocese of Virginia (which includes primarily northern and eastern Virginia) and the national church, which got clobbered in Fairfax District Court last year.

The district court judge sided with nine conservative Virginia congregations whose members were fed up with the church's position on biblical literalism, gay clergy and gay marriage. Those conservative congregations voted in late 2006, early 2007 to leave the Episcopal Church, take the millions in real estate and join another, more like-minded branch of the Anglican Communion.

Other religious denominations, from Presbyterians to Conservative Judaism, are having similar disputes over human sexuality, and some have wound up in court battles over property rights. The legal issues are not exactly the same as in the Virginia case, but a few rulings this summer have mostly gone in favor of the denomination. One that didn't was last month in South Carolina, where a court ruled that a 1745 deed gave property control to the congregation (or, in this case, a majority of the congregation that wished to bolt).

The Virginia case also refers to a centuries-old code - a state statute called 57.9 that governs how church land is divided when there is a split in the congregation. It essentially says a majority vote of members is decisive.

The Episcopal Church argued that the congregations never legally "divided," but rather a conservative faction (albeit the majority of members of those congregations) chose to leave, joining Anglican branches in Africa. But the judge sided with the breakaway members and ruled there was a division, thus making 57.9 applicable - and the majority votes.

But the Episcopal denomination's argument is that it is NOT a democracy (like congregational groups, such as Baptists) and is instead hierarchical, which means church officials -- not individual congregations -- hold the land in trust. It says the state statute 57.9 is unconstitutional because it tells religious organizations how to govern their affairs, illegally mixing church and state.

The court today didn't immediately say when the appeal will be heard, but this means a reopening of a case that has been going on for nearly three years, when the Virginia congregations first voted to break away.

It's one of the most watched disputes of its kind in the country, primarily because so much money and land is at stake.
Read it all here.


Anonymous said...

It was only to be expected that such an important case with ramifications for many other congregations (of different denominations) in Virginia would be heard.

The law does not discriminate against hierarchical churches because within VA law there are multiple ways to hold property, if the object is to claim a denominational interest. If however trustees are used then they hold it for the local congregation. Could it be simpler?

Perpetua said...

Will the validity of the Dennis Canon be considered? Anglican Curmudgeon has me convinced that it does not establish a valid trust.

Annie said...

No writ panel on the 21st????

Steven in Falls Church said...

No surprise there. Onward to the arguments. Validity of the Dennis Canon will not be considered; this is entirely the 57-9 ("division statute") arguments.

BabyBlue said...

I don't think the writ panel is now necessary since the court decided to take the case without giving TEC the chance to speak to them directly (without response) to it. Interesting.


Václav Patrik Šulik said...

Thanks Mary - and Steven in Falls Church.

Jeff H said...

It's a pre-grant. Oral argument deemend unnecessary.

Anonymous said...

An Anxious Anglican said...

Perpetua: The Dennis Canon was actually a non-issue in these cases because Virginia does not recognize implied trusts such as that created by the canon. The issue on appeal will likely focus on the constitutionality of the Virginia statute relied upon by the departing parishes to retain their property.

Perpetua said...

Hi Anxious Anglican,

Why would there be any issue of the Dennis Canon is not considered valid in Virginia? Without resort to the Dennis Canon, how does the Episcopal Church make a claim to the property?

Anonymous said...

Vote your conscience, but don't pretend that makes stealing the property ok.

And you're surprised that the Secretary (who serves at the pleasure of the Bishop) used the Bishop's phraseology?

Steven in Falls Church said...

The Dennis Canon has not been ruled invalid in Virginia, and has not been litigated in the CANA church dispute. It was to be considered as part of the next prong of the trial, had the CANA congregations not prevailed on the application and constitutionality of Section 57-9, the so-called Division Statute. I agree that the Dennis Canon would be invalid in Virginia, as it was ruled recently invalid in South Carolina (at least it would be invalid with respect to historic church properties predating TEC and possibly also those properties predating adoption of the Canon), but it has not been the subject of litigation yet. In the event TEC prevails before the Virginia Supreme Court, the matter will return to Judge Bellows' chambers in Fairfax for further proceedings on the garden-variety property and trust issues, including the Dennis Canon.

Anonymous said...

What is the meaning of the phrase describing Henry Burt as a "litigator who is Secretary to the Diocese." What defines a person as a "litigator." My guess is that if the man is Secretary of the Diocese, he is not a litigator.


BabyBlue said...

He was hired as secretary for the diocese because he is litigator. The diocese was very clear in communicating that they hired him for his litigation experience.


DavidH said...

1st "Anonymous" (Robin Adams+), you continue to be a beacon for anyone looking for CANA spin. Congrats.

Anxious Anglican, although constitutionality is one issue, it is certainly not the only one. Virginia law regarding trusts for religious groups is another key issue. Anyone interested in what the issues are need only look at the two petitions for appeal -- the "Assignments of Error" define the case on appeal.

Steven, that's not right. The Virginia case centers on 57-9, of course, but the Dennis Canon is very much at issue.

BB, were you on the Diocesan hiring committee? Are you aware of Henry Burt's record of involvement in the Diocese, or his father's? Start with the actual news release about his hiring. No doubt your tinfoil just crackles at the mention of law and litigation in that press release. But tell me, how exactly would you talk about the work experience of a lawyer other than that?

Anonymous said...

A correct description of Mr. Burt's prior profession is that he was a "lawyer" before he became secretary of the Diocese. I'm sure that legal training would be a plus for anyone who has the duties of secretary of a large diocese anywhere, but it hardly is a relevant descriptor in the context of this story unless this lawyer is the one who is arguing the cause of the
Diocese to the Supreme Court. Moreover, "litigator", at least where I come from, has a specialized meaning. Unless Mr. Burt spends a lot of time in court pleading (and he does not) he's not a litigator.


Able said...

If the Episcopal Church is taking exception to the fact that state ruling in this case is "unconstitutional" why has it pursued legal challenges through the STATE system with other parishes? Surely it is not holding a position that it is acceptable to court state involvement provided that the state rules in its favour, and unacceptable if the state rules against it?

Phil said...

DavidH, in what way are the comments of the first Anonymous "CANA spin?" And, is there, in your mind, "Diocese of Virginia spin?" If so, what is it? If not, why not?

What I read in those brief comments is a straightforward opinion as to how property law works with respect to religious denominations in the state of Virginia, a view that's reflected in its law and a very recent ruling by a state judge. "Spin" is usually understood to mean taking a set of facts and representing it, even twisting it a bit, in a way favorable to public perception of one's position. Taking into account that almost every time we render an opinion on an occurrence in the outside world, someone might call it "spin," in the common usage of the word, I don't see that Anonymous' remarks deserve that tag. Labeling everything you don't agree with as "spin," ironically, is a better fit for the term.

Andy said...

I find it a stretch to apply the canard of "stealing" to bodies of believers that existed half a century before the birth of the orthodox forebearers of today's legal firm of TE&C.

Clearly in the Commonwealth, an implied trust is about as valid as an implied pregnancy.

DavidH said...

Phil, there is spin on both sides. Anything not entirely factual in a press release = spin. Pretty much anything that comes out of Jim Oakes' mouth = spin. Posts that make the same 1 sided, often incorrect assertions no matter what the actual news is (hi there BB & Robin Adams+) = spin.

Let's put aside the first paragraph of what the 1st Anonymous wrote. It's arguably spin but arguably factual and true as well.

The 2nd paragraph is nothing but spin. Implied trusts are OK for everyone but hierarchical churches. That's not discrimination? The state has decided that congregational majorities trump diocesan ones. That's a neutral way to decide things?

The fact is that this litigation's decisions are unprecedented and upset Virginia's church property law considerably. They and their effect is not simple by any means. And the last statement -- "If however trustees are used then they hold it for the local congregation" -- is simply dead wrong. Even if you believe every word Judge Bellows wrote is pure gold, that's not true. It's only when there's a "division" in a "church or religious society" and a congregation whose property is held by trustees votes to join a "branch" of some sort of religious group to which it was "attached" that the congregation's vote decides who has title and control of the property.

Anonymous said...

Anonymous at 6:03 PM. Should TEC/DioVA prevail, please step forward with your checkbook open to support the properties along with 20% or less of the original congregations.

Can one steal what one has paid for?

Anonymous said...

Anon 2046 - it is very hard to sort out what this person has paid for as opposed to that one in any parish. Thinking that way is not fruitful. As I have indicated here in other threads, I have left churches before for a variety of reasons - some of them because of geographic inconvenience, and some for more substantive sources of dissatisfaction - but it never occurred to me that I could remove stuff when I left because I had "paid for it." I don't think the construct changes much if I had left with several or even a large number of people for whatever reason. It just doesn't work very well to embrace that precedent.


Anonymous said...

Lakeland Two says...

Scout has made it clear over time that he thinks all the property should stay in TEC and those who established and/or maintained the church should just turn the keys over no matter what they were taught before the new TEC came in.

We look forward to seeing how the courts handle this issue. May God give the judges HIS wisdom.

Anonymous said...

L2: You misrepresent my position, no doubt intentionally, since I think I have been clear and put it in simple, direct terms. My point is that in most, if not all of these congregations, there are people who fit the description of "those who established and/or maintained the church" who wished to stay and those who wished to leave (and those who are dead). Sorting it out between them does not readily turn on "who has the keys". My point has been that the sensible, fiscally prudent, ethically correct, and "best Christian witness" position is for those who wish to leave to leave. Deciding property rights based on "what they were taught" does not strike me as a useful template.

To be sure you understand, you might wish to comment on the issue of whether you think individuals who leave a church are entitled to self-help themselves to property when they leave (something I have suggested should not happen) and whether there is a point at which, as these individuals become more numerous, they can collectively take things (including the physical plant itself). If, in your mind, such a point comes into existence, how does one define that point and how do we know when it has been reached? In that circumstance, what do we do for others who have built, contributed, maintained and participated in the Church who have no desire to leave and wish to continue to worship in the church they did not leave.


Anonymous said...

Lakeland Two says...

Scout, we've been over this ad nauseum. You have your position and refuse to understand anyone else's. What you support is what makes you comfortable. You have said so many times that anyone not agreeing with TEC's new direction is stealing if they want to liberate that which they as a group even over a lifetime - or their parents, grandparents, etc. have invested. TEC decides it's going a new way and everyone should bow down to it and fork over the keys.

If TEC truly believed in the Bible, it would believe in all of it and not cherry pick what suits it today and then discard it tomorrow. Example? Evangelism budget - hacked for litigation. If its path is so blessed and given by God and the Holy Spirit, it would stand on its own and grow. That. Is. Not. Happening.

You misrepresent or totally miss the point of those who have built the congregation wanting to protect it as the talent given them. You see it as stealing. What was it that drew you to the church you were in in the first place? Does that exist now? Because if it was just the building - you missed the point. As I've said before, if that's all that's valuable to you - have at it. Yet that is not even enough for TEC. People have left without the property and still got kicked in the butt. What's with that? Where is the love of your brother in that. A church that's left cannot even buy the building - Schori would rather turn it into a saloon instead? Where is the Christian charity in that?

But I challenge you, Scout, to look beyond the building. What can you do that would please God in this situation? Because we can tell you, sitting in a diocese with an orthodox bishop staying in TEC isn't a comfortable place either. How long before the CP bishops and clergy are deposed for whatever infraction or imagined infraction ... or it's voted that they must comply against conscience or hand over the keys. You know, like women's ordination - it wasn't ever supposed to be compulsory and now it is.

I asked the question as to what will you do when it's too much for even you. I've only gotten one answer and "Leave" is the only answer I got. What is worth fighting for? To many, this is the fight for Christ - it isn't just the building, but the whole issue. To accuse them of just stealing is, in our opinion, a way of thowing smoke up to disguise the real issue.

Anonymous said...

What's this "even you" nonsense, L2. I know exactly what my point of departure will be. We aren't there yet and I hope it will not happen. But my contribution to the building and property of my parish is indistinguishable from and no less worthy than yours or his or hers, and you have failed to articulate a coherent ethic for the taking of property. If I get to the point where I think I must leave, I will not make the slightest effort to take things on the basis that my theological views are superior to those from whom I am tempted to take. And I will not join any group that has taken property from those who wish to stay. They have blinded themselves with self-congratulatory assumptions of spiritual superiority (read your last comment and you'll find this in large measure) as a rationalization of something far less edifying.

You have not addressed the situation I posited. Do you agree that if a sincere and generous tithing Christian of impeccable theological instincts determines, for whatever reason, that he must leave a church, he has no right to depart with items that are part of that church, even though he may be able to represent that he has contributed to them? If not, I want to watch you like a hawk every Sunday as you exit the premises. But I suspect you agree with that premise. My next question was, does that departing Christian's right to property somehow become less inchoate if he accretes others of similar views and they leave in twos, or fours, or larger numbers? If so, at what point do they get to take the whole kit and caboodle, and what happens to the interests of those who stay?

I think we agree that the buildings are not important in themselves. But strenuous actions to seize them by those who depart foul the quality of the spiritual point some departers, particularly certain ACNA and CANA elements, are seeking to make.

It would have been better fiscal stewardship and better witness simply to leave, keep the money out of the lawyers' hands, and build new churches.


Anonymous said...

As usual, DavidH is spot on the issue of whether or not Va can legislate the validity of religious trusts. Placing the question of the constitutionality of 57.9 aside for a moment and, for the sake of argument accepting that it is the questions here are 1. The meaning of 57.9.
Judge Bellow had to deal with some very specific terms "branch" "Religious society" "division" and "attached". CANA attys argued that a division had taken place in the entity known as the Anglican Communion, one branch being headed out of Africa whose leader was Bishop Akinola, a second, led out of England by the Archbishop of Canterbury. The relevant division was in the religious society of the Anglican Communion. Judge Bellows accepted the CANA attys argument that a split had taken place here. Given the statute as written and given that he believed that the CANA attorneys had successfully argued their case about the division and he accepted the notion that the religious society in question was the Anglican Communion and a definition of "attached", his ruling was not too big a surprise. I would not be too surprised if the Va Supreme Court agreed which then brings up the real issue of the constitutionality of 57.9.

What does amaze me is that there seemed to be no concern at all raised in the press or blogs from conservatives that their attorneys were in essence, arguing in a court of law, that there had been a split. There were two branches of the AC and they now belonged to the one headed by +Akinola. For the legal argument to work, the branches had to be mutually exclusive. If so, did the congregations know that their actions had severed their relationship with Canterbury? Were they told that when in the discernment process of leaving?

Anonymous said...

Emily H's comment is very effective in bringing out the peculiarity of the statute, particularly as it applies to the current alignments in the Anglican Communion and a county court's reaction to them. The statute was tailor-made to address some glowing ember residua of the Civil War. As best as I have been able to discern, it appears to have been written by a member of the General Assembly to address his church problem. It just doesn't work very well (and here I'm not commenting on the result in this particular dispute - just the idea of how you use the language of an 1867 dispute among Presbyterians or whatever to govern a 2007 dispute among Anglicans) in the current context. It seems very clear that the departing groups spent a great deal of time diligently shoe-horning the structures and mechanics of their departure into the structure of the statute. But the idea of the legislature being concerned with "branches" and divisions is absolutely mind-boggling. If similar legislation were introduced today (although virtually anything is possible in Virginia) I very much doubt legislators would find this a good idea for governance of the state.


BabyBlue said...

When did recognizing that when the overwhelming majority of American citizens vote according to the laws of the Commonwealth of Virginia that should not be considered "a good idea for governance of the state?"

In Virginia the former Established Church should not get preferential treatment because it was once the Established Church of Virginia, indeed it was The Church of Virginia. The people had no say.

A primary principle of our form of government is the free vote. The churches that separated voted their conscience and thousands - thousands - voted to separate, a vote that has been now recognized by the Commonwealth of Virginia. It is this vote that is being opposed by the Episcopal Church.

But they can't oppose the vote openly - it would be a PR disaster. When they took the depositions of those who were in charge of the voting procedures, it became clear that if they got anywhere near challenging the vote it would be a PR disaster. These are regular American citizens exercising their freedom to vote.

As for the property, what matters is what is on the deeds. We do not have implied trusts in Virginia - what matters is what is on the deeds.

The Diocese of Virginia does indeed own property - it does - and the Bishop's name is the deeds as it should be. Bishop Lee didn't and Bishop Johnston won't own the property himself, he holds it in trust for the Diocese. If the Diocese wanted to hold in trust the local parish properties (and in fact, the bishop's name is on some parish properties in Virginia!), then he should have done it! But as we were reminded in court, the diocese recognized that there would be a massive revolt if they even attempted it. Why? Because the parishes understood - and continue to understand - that they hold title to their own property.

That became abundantly clear when Christ Church Alexandria heard the rumor (a rumor so strong, Pohick Church heard it too) that the bishop was going to require them to transfer their deeds to him - the swiftness of calming down and reassuring the parish that this was not indeed the case was something I saw with my own eyes.

To assume that the Episcopal Church can simply reclaim hierarchical powers that it had when it was the Established Church of Virginia is ludicrous. A truly hierarchical church like the Roman Catholic Church in Virginia has correctly observed the laws of the Commonwealth of Virginia. Roman Catholic property is held in trust by the Roman Catholic Bishop. Open the books - you'll see his name.

What's at stake here is whether the people have the freedom to vote, that the vote won't be taken away from them when the outcome doesn't suit the Episcopal Church and whether we can trust what is entrusted on the deeds to actually MEAN what they say.

Maybe that's why it's called a Trust.


Anonymous said...

BB: I'll give your comment a more thorough read when I have a little more time, but my first reaction is that it doesn't make any sense at all as applied to the current situation. I don't think anyone questions the "Vote" as a reflection of the desire of a large number of parishioners to leave the Church. However, they could have left without the vote. But I have never heard anyone say that the vote is somehow a societal negative.

But you seem to be defending the right to vote in a governmental context. Again, I don't think anyone (outside of a few dictators in foreign lands) thinks that voting is a bad way to decide who runs a secular government. Is that really an issue here?

The question in this context, however, is how one determines property ownership if a bunch of people decide to leave a church. There may be certain kinds of churches or certain church circumstances where title might reasonably pass to majority voting groups. I would submit that most Christian denominations are not very well suited to that kind of politicking and that if the state government reaches in to tell them that the government says this is the way it's going to be folks, there is great cause for concern in the Christian community.

I'll try to give a more reflective response once I get a chance to puzzle out what you're saying - I may have missed something. (I really don't get the established church reference).

And, I rephrase one of my points to L2, above: does anyone think a state legislature would consider it wise to pass this kind of statute in present times? Wouldn't one expect a great deal of concern over the constitutionality of such a statute?


DavidH said...

BB has moved this conversation to another branch of the website to which it is attached. Hopefully it will continue there, rather than forcing us all to suffer the heartbreak and confusion of a division in commenting.