Tuesday, November 10, 2009

Virginia Supreme Court sets dates for appeal by the Diocese of Virginia and The Episcopal Church

We've learned that the Supreme Court of the Commonwealth of Virginia has issued two Certificates of Appeal - one for the Diocese of Virginia and one for The Episcopal Church. This sets in motion a timeline for the appeals process. The Appellants' (Diocese of Virginia/Episcopal Church) briefs are due by December 21, 2009. They could file earlier though. That will be interesting to watch. The rest of the dates flow from there. Stay tuned - and please keep watch and pray.

13 comments:

Jeff H said...

Here are links to the actual "appeals granted" entries on the Supreme Court of Virginia website:

TEC v. Truro Church, et al.

The Protestant Episcopal Church in the Diocese of Virginia v. Truro Church, et al.

Allen said...

After this round can an appeal then be made to SCOTUS? Or is the Virginia Supreme Court the end of it?

Anonymous said...

There are many possible outcomes to the VA Supremes appeal, but the VA Division Statute (57-9) is the first stop on what could be a longer struggle. There is considerable doubt that SCOTUS would find a reason to hear the appeal given there is no interstate or critical issue of widespread impact.

RalphM

57-9 was decided first, because if the VA churches prevail on it, it is game over. If TEC/DioVA prevail, then it is on to the merits.

Given that Virginia does not recognize implied trusts, the Dennis Canon may hold no weight. The VA courts could look at who paid for and maintained the property and who holds the deed.

Jeff H said...

RalphM,

Part of TEC/DioVA's argument is that what the VA courts could look at if 57-9 is deemed either inapplicable or unconstitutional includes the governing documents of the church, including the Dennis Canon.

I think they'd argue that the general rule of no implied trusts has an exception for religious bodies that's required by the First Amendment.

But that's all speculative, and assumes reversal.

I would expect that if the Supreme Court of Virginia affirms, TEC/DioVA will attempt an appeal to the U.S. Supreme Court, and I think RalphM is right that such an appeal has a reduced chance of being granted because it involves a unique state statute. The only argument TEC/DioVA would have in such circumstances is that Virginia's interpretation of its own law violates the federal constitution.

Andy said...

As far as appeals run, I wouldn't be surprised if TEC appealed this all the way to the Hague...

Anonymous said...

The Hague... why bother, we're already going Dutch on the legal fees.

RalphM

ettu said...

Just an opinion but it seems to me the US Supreme Court would have a very valid interest in this case since there is a reasonable possibility the VA constitution interferes with the separation of religious institutions and the state enshrined in the US constitution........

BabyBlue said...

What makes it even more interesting, from a historical perspective in Virginia, is that the Diocese of Virginia was once the Established Church of Virginia. When it was disestablished it lost its hierarchical structure that it had when it was the Established Church of Virginia. For the Virginia Supreme Court - and the Supreme Court for that matter - to now turn around and say, "oops, we were only kidding, no, the People do not have the right to vote and hold church property in trust," as it was set up to do in the disestablishment to me would be a fascinating turn of events.

The Diocese of Virginia's history as the Established Church of Virginia is perhaps unique in the Episcopal Church (and again, an indication that it was the dioceses that created The Episcopal Church, not the other way around!). In Virginia, the Established Church was associated with the monarchical structures of England that Virginia fought to break from. When the Disestablished Church was reformed as the Diocese of Virginia, those early lay leaders took pains to make changes in the form of the church to mark it different than what Virginia had known under an Established Church. Many Established Church properties were in the hands of laity that wanted nothing to do with "My Lord Bishop" and so those churches, in places like Fairfax Court House or my own family's homestead of Buckingham Court House, became Baptist - following Morning Prayer style worship, but with no visitation from a bishop.

As we know, no bishop made an visitation to the Church of Virginia for 200 years. This also left an indelible mark on the Church of Virginia, as well as it's early Democratic Principles that empowered the laity for leadership, including the control of the purse and the holding of property in trust for the parish.

bb

Anonymous said...

BB - I've seen you try to draw this line out before and I remain completely puzzled as to what it proves. Yes, it is indeed interesting that the Church of England was, before the Revolution, the established church in Virginia and that, after the Revolution, the legislature terminated that status. But the connection between that bit of fascinating colonial/revolutionary history and the legal issue of whether the Commonwealth of Virginia, in 1867, enacted a law that could validly assign property rights based on votes on a certain point on a certain day seems non-existent (I started to write the word "tenuous", but realized that was way too generous). I guess we can all acknowledge that the American Episcopal Church was different in its structure and polity from the Church of England after the Revolution. But I'm not sure where that gets us in the Virginia legal dispute.

The other theme that I've seen before and that reappears here is the idea that a democratic vote is a good thing and shouldn't be tampered with. Yeah, sure, but is that really what were talking about here? The idea of voting to decide things is a very political notion and is central to the republican form of government we have, but is it really the way one wants to determine legal title to real and personal property? I suppose I could get a majority to vote that I should own your house. But would that really be a good way to decide that question. It gets even dodgier (is there such a word?) when the government starts telling Christians that they have to transfer property to "majorities" within the parish or congregation, regardless of the internal polity of the church. I think Christians (probably a lot of other religions also) would find that notion fairly discomfiting. You then get into a lot of issues about how the Government, having decided that property transfers with a majority vote on any issue, ensures that the process is fair. Does the Board of Elections (or Jimmy Carter) come in and supervise the vote? How do we know who should be on the rolls? How old do they have to be? Etc. Etc.

So I love to talk history, especially Virginia history, but I fear this has virtually nothing to do with what is being reviewed in the court.

Scout

BabyBlue said...

Okay, the vote was taken according to the Bishop of Virginia's Special Committee Protocol and following the canons of the Diocese of Virginia and following the laws of the Commonwealth of Virginia. It appears that the Episcopal Church freaked out when it became clear (following the visitation of the President of the Standing Committee and another member of the Standing Committee who came to give the case of the Diocese to our entire parish during the 40 Days of Discernment) and realized that yes, we were really were going to vote and yes, it looked liked it was possible we could vote to separate.

In a hierarchical church Bishop Lee would not have had a protocol written so the parish could separate peacefully.

The history lesson is to make the point that the protocol was written with the polity of the Diocese of Virginia and the Commonwealth of Virginia in mind. I don't think Bishop Lee really considered that it was possible that thousands would vote to separate. In some ways, I don't blame him - it must have been a shock.

All this stuff about hierarchical churches - it doesn't apply in Virginia. We are not a hierarchical church, the bishop's name is not our deeds, we are not compelled to give one penny to the diocesan budget - not one! There are no assessments in Virginia. The bishop is limited by the power of the laity in Virginia, as set down when the Church of Virginia was disestablished.

A truly hierarchical church does not enjoy such freedoms.

bb

Anonymous said...

At my church, BB, they followed a procedure that was cooked up, largely behind the scenes, by folks (including all or most of the clergy and most of the vestry) who had decided long in advance of the vote that they were going to try to lead the parish out of TEC AND take all the property with them. In fact, retention of the property was used as an argument for a vote to depart. If your point is that Bishop Lee was naively charitable and gracious to a fault to those who were agitating for fractiousness within the church, I tend to agree with you.

If the diocese is the key unit of polity within the Church, the Diocese of Virginia has not left TEC. This distinguishes this situation from Texas, California, and Pittsburgh. I'm still thinking through the implications of a few hundred persons purporting to take a diocese out of the church and the legal implications of such a move as it affects property rights. It is clear, however, that we don't have that situation in Virginia.

Scout

BabyBlue said...

Scout, did your parish follow the Protocol for Departing Congregations?

We had small groups based on the 40 Days of Purpose Model, so we tried to get the majority of the parish into small groups where they could do a Bible Study and ask the hard questions. We had a Vestry Table set up on Sunday so that parishioners could come talk to the Vestry and bring concerns and questions. We had parish meetings where the congregation was encouraged to speak up and speak out. And we had the President of the Standing Committee and another member of the SC come and speak directly to the parish and take questions, as well as meet with the Vestry. We tried very hard to make sure that every voice was heard - and our prayer was that no matter how the vote turned out, that we would stay together as a parish, for those who voted to separate and those who voted to remain in the Diocese of Virginia.

We did have people vote not to separate, but the majority of them have remained in the parish and are in leadership roles. I think to a certain extent it revealed that the "church" was the "church family" and for many it was more important to stay together as a family, no matter whether we stayed in the Diocese or separated.

I do pray, even now, that we could find a way to return to the Protocol and discuss a peaceful settlement. There were so many creative ideas being bounced around that may have kept us in "as close a communion as possible" before 815 intervened.

bb

ettu said...

"In a hierarchical church Bishop Lee would not have had a protocol written so the parish could separate peacefully." BB
That comment does not make sense to me - if anything, the fact that the Bishop had the accepted authority to design such a plan cements his authority. You can take him to task for having designed it poorly if you so wish - or you can implicitly acknowledge the hierarchical structure by saying he was overruled by the Presiding Bishop but I do not see how you can cite the promulgation of that protocol as proof TEC is not hierarchical. Just because the ruling authority decided on a gracious course of action and then rescinded it does not make ipso facto TEC congregational in structure - it may make it indecisive or guilty of poor judgement or Machiavellian but it does nothing to diminish it's hierarchical quality.