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Appeal expected after breakaway congregations prevail

Lawyers involved in the court fight over Episcopal Church property in Virginia are girding for an appeal to the Supreme Court of Virginia now that the critical issues in the trial court have been resolved in favor of the breakaway churches.

“There are a few loose ends to tie up, but we think we are very close to the goal line,” said Steffen Johnson, one of the lawyers for the churches that have split from the main line Episcopal Church.

Fairfax Circuit Judge Randy I. Bellows last month found Virginia’s Civil-War-era “division statute” to be constitutional as applied to the Episcopal property dispute. “Simply put,” he wrote, “[the statute] was constitutional in 1867 when it became the law of the Commonwealth of Virginia, and it remains constitutional in 2008.”

Bellows asked lawyers to identify what other issues remain to be resolved. Observers suggest that there are few, if any, important issues remaining for Bellows to consider.

“I expect the CANA [breakaway] congregations will take the view that it’s over – let’s go to the Supreme Court,” said William F. Etherington, a church law expert who is not involved in the Episcopal dispute. “This will have to be sorted out at the Supreme Court of Virginia,” he said.

In 2006, in reaction to appointment of a homosexual bishop, several Episcopal congregations in the Virginia Diocese determined to break from the Anglican Church and take their property – real and personal – with them. The mainline church (ECUSA) sued to get the property. The cases were consolidated in Fairfax County.

The latest Bellows opinion rejects the Diocese’s argument that applying the division statute is unconstitutional court interference in church affairs. “Although ECUSA/Diocese assert that this Court has entered into the forbidden religious thicket—indeed, entangled and enmeshed itself in that thicket—this Court finds their arguments unpersuasive.

“The Free Exercise Clause protects the free exercise of religion; it does not protect religious organizations from all administrative inconveniences that may arise from a religious organization’s compliance with neutral laws of general applicability,” Bellows wrote.
The opinion concludes, “While it is true of course that [the division statute] requires the Court to make factual findings involving religious entities, each of those findings is secular in nature.”

Bellows’ guidepost in his analysis of the Virginia statute is the “watershed case” of Jones v. Wolf, 443 U.S. 595 (1979). The judge found that Jones “invests the States with broad discretion to resolve church property disputes. Its holding demonstrates a deference to—and respect for—an individual State’s prerogative to specify its own specific method of resolving church property disputes.”

In a footnote, Bellows sweeps aside arguments that the U.S. Episcopal Church immunized itself from the Virginia statute with a 1979 addition to its canons. The 1979 so-called “Dennis Canon” provided that all church property was held in trust for the national church and its dioceses. The judge counters that a 1980 Virginia Supreme Court opinion invalidated express and implied trusts for hierarchical churches under Virginia law.

Bellows embraced the argument of the breakaway churches that the mainline church was free to protect its right to congregational property by titling the property in the name of a central church officer. “In fact, ECUSA/Diocese could have, at any time within the past 140 years …, re-titled their properties in the name of a Bishop or other ecclesiastical officer. If they had done so, they could have permanently avoided any potential application of [the division statute],” Bellows wrote.

As with other mainstream Protestant denominations, most Episcopal Church property is held by trustees appointed by local congregations. The Virginia statute gives control of such church property to a majority of the congregation if a “division” occurs in the church. Officials at Virginia offices of the Presbyterian and United Methodist denominations said that they were unaware of any official consideration of changes in property titles for their Virginia church congregations.

The 11 breakaway congregations welcomed the latest victory. “We have maintained all along that our churches’ own trustees hold title for the benefit of these congregations,” their statement read.

The Episcopal Diocese of Virginia, which sued to keep the breakaway congregations from taking church property, issued a statement saying, “We … will explore fully every option available to restore constitutional and legal protections for all churches in Virginia.”

Having delivered what may be the dispositive ruling in the case, Bellows seemed eager to wrap up unresolved details. He gave attorneys in the case just a few days to address what issues remain, whether any discovery is needed, and what the scope of the October trial should be.

Bellows’ opinion expressly reserves a ruling on whether the Virginia statute violates the contracts clause of the U.S. Constitution.

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