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Battle is on over Episcopal Church property

A Fairfax County Circuit judge has set the stage for what promises to be a hard-fought court battle over title to property occupied by 11 breakaway Episcopal Church congregations in Virginia. In an 83-page opinion, Judge Randy Bellows determined that Virginia law provides a vehicle for determining ownership of the disputed land.

The critical question now is whether the Virginia law passes constitutional muster. It’s an issue with implications for other Virginia Protestant denominations.

Bellows’ opinion addressed whether the property dispute should be governed by a 140-year-old Virginia statute that allows a church congregation to change ownership of the congregation property by majority vote. By its terms, Virginia Code § 57-9 comes into play when there is a “division” in a church. The mainline church argued that, under the law, there was no “division” in the Episcopal Church, and therefore the statute should not be applied.

The no-division argument was soundly rejected by Bellows: “[T]he Court finds that the evidence of a ‘division’ within the Diocese, the [national church] and the Anglican Communion [worldwide] is not only compelling, but overwhelming.”

“[I]t blinks at reality to characterize the ongoing division within the Diocese, ECUSA and the Anglican Communion as anything but a division of the first magnitude….”

In recent years, the Episcopal Church has been torn over issues of Biblical interpretation, primarily involving the status of homosexuals. In 2006, several Episcopal churches in the Virginia Diocese determined to break from the Anglican Church and take their property – real and personal – with them. The mainline church sued to get the property. The cases were consolidated in Fairfax County.

The April 3 decision settles only the preliminary issue of whether the Virginia church property law applies to the Episcopal dispute. The court has scheduled oral arguments for May 28 on whether that same statute violates the Virginia and United States constitutions.

A pitched battle is expected. Dozens of lawyers are involved in the case, and the Virginia Attorney General has filed a friend of the court brief defending the church property statute.

Brad Davenport, the lead counsel for the Episcopal Diocese of Virginia, explained that Episcopal Church property normally is held by trustees appointed by the governing body of a local congregation. According to Davenport, however, the canons of the Church hold that all Church property is held in trust for the Diocese and cannot be disposed of or encumbered without the permission of the ruling bishop.

Applying the statute to overrule the church canons invades the internal governance of the Episcopal Church, he argues. “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,” proclaimed a Diocese statement.

Regardless, the breakaway Virginia congregations claimed that § 57-9 overruled the church canons and gave them the right to change title to their church land and property by majority vote. One of the lead counsel for the breakaway churches, Steffen Johnson, points out that the church chose to have the property held by local trustees. “It is undisputed that titles to the properties are in the names of the trustees of the congregations,” Johnson said.

Both sides agree that the outcome could affect how other church property disputes are resolved under Virginia law.

Subsection A of § 57-9, which provides that congregations can decide title to property based on a majority vote, is directed at churches that have central governance, but where church property is held by local trustees. Subsection A therefore affects not just Episcopal churches, but also other large protestant denominations such as Lutherans, Methodists and Presbyterians, according to Luray lawyer Mark Reed, who served on a legislative study committee on church incorporation.

Churches with independent congregations, such as most Baptist churches, are addressed by subsection B of the statute, which defers to the congregation’s own constitution or practice for resolving property issues. Additionally, hierarchical churches such as the Roman Catholic Church are unaffected by the statute, because the titles to church property are held by ecclesiastical officers, such as bishops.

Making different property rules for different types of churches violates the First Amendment, argues Davenport.

Johnson, speaking for the breakaway churches, says the Episcopal Church made its choice when it allowed local trustees to hold title to the property. “The Episcopal Church and the Diocese of Virginia could have avoided this lawsuit completely by placing the property in the name of their bishop the way the Catholic Church does.”

Lawyers watching the dispute agree that the coming fight over the constitutional issues will be critical. “The treatment of mainline protestant denominations differently from the Roman Catholic or Baptist churches could give the court justification for striking section 57-9,” said Reed.

Trial is scheduled for October on the diocese’s lawsuit asking the court to order the congregations to vacate the properties and declare title in the name of the diocese.

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