When a congregation breaks away from a denomination, who keeps the real estate?

That’s become a contentious issue within the Episcopal Church ”“ the US branch of Anglicanism ”“ as almost 100 parishes have voted to leave the church in the wake of its 2003 consecration of a gay bishop. Most aim to stay in their houses of worship while realigning themselves with conservative Anglican bishops in other countries.

On Wednesday, Anglican bishops from around the world gather in Britain to discuss their differences over scriptural interpretation and homosexuality at the once-a-decade Lambeth Conference. But in America, those differences are already ending up in court.

The stakes are high. Not only are some of the properties valuable, the legal battle over them is wrenching apart close-knit religious communities. Presbyterians and other denominations are keeping a close eye on the wrangling because they also have conservative congregations that are trying to pull out in response to actions of their denominations.

So far, the courts have not clarified the issue. Some congregations have had to forfeit their houses of worship. But on June 27, a Virginia county court upheld the constitutionality of a Civil War-era state law that would allow 11 congregations to leave the Episcopal Church and take their property with them. The law, called the “Division Statute,” provides that when evidence exists that a church is in a state of “division,” the local congregation can decide who controls the property.

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A Civil War-era law that lets Virginia churches keep their property when leaving a denomination where a “division” has occurred is constitutional, a county judge ruled Friday, June 27, siding with 11 former Episcopal parishes.

Fairfax County Judge Randy I. Bellows’ ruling on the 1867 law stops short of awarding the property to the parishes, but it hands them a major legal win.

“It’s a resounding victory and very broad,” said Steffen Johnson, lead counsel for several of the congregations. “There are just a few loose ends to tie up.”

The ruling could encourage the dozens of Episcopal parishes in similar court battles across the U.S., and shake the confidence of mainline Protestant denominations that fear losing churches and people to breakaway groups.

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A Virginia circuit judge has handed a crucial victory to a group of 11 former Episcopal churches that left the Diocese of Virginia 18 months ago over issues of theology and the 2003 consecration of the denomination’s first openly gay bishop.

In a 49-page ruling issued Friday morning, Judge Randy I. Bellows said a Civil War-era statute allowing the churches to split and keep their property is constitutional.

“Simply put, [the division statute] was constitutional in 1867 when it became the law of the Commonwealth of Virginia and it remains constitutional in 2008,” the judge wrote.

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Lawyers for the Episcopal Church were in court last week challenging the constitutionality of a Civil War era Virginia law that permits congregations to secede from their parent churches with their parish properties in the event of a denomination wide schism.

At a hearing on May 28, lawyers for the national church sought to overturn the 141 year old law, Virginia Statute 59-7, arguing was an intrusion by the state into the internal life of a religious group, and also discriminated against “hierarchical” churches.

In April, Fairfax County Circuit Court Judge Randy Bellows ruled that a schism had occurred within the Episcopal Church under the terms of the Virginia law. However, he granted the Episcopal Church leave to appeal the legality of the law before the full case went to trial.

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Lawyers for The Episcopal Church and the Diocese of Virginia challenged the constitutionality of a 141-year-old Virginia statute that grants congregations control over local church property in the event of a denominational split in Fairfax County Circuit Court on May 28. They also claimed the law discriminates against hierarchical denominations in favor of congregational ones.

The statute was in turn defended by a representative of the Virginia Attorney General’s Office and lawyers representing 11 departed congregations, who pointed out that the issue could have been avoided if the diocese had broken with its custom of placing title to parish property with the elected leadership of the local congregation.

Last month, Judge Randy Bellows ruled that a division within The Episcopal Church had occurred and that the statute was applicable in the case of the 11 congregations which have subsequently affiliated with the Anglican Church of Nigeria as the Convocation of Anglicans in North America (CANA). The hearing was to determine whether Virginia Statute 59-7 was a constitutionally prohibited government intrusion into the internal working of a religious denomination.

At one point Judge Bellows noted that the diocese already has specific title to 29 plots of land and questioned the lead lawyer for the Diocese of Virginia why it had not required title of all church property to be held directly in the name of the diocese.

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A Civil War-era law being used to allow a group of conservative Episcopalians to desert the Episcopal Diocese of Virginia with millions of dollars worth of property is on trial today at the Fairfax County courthouse.

Attorneys for the diocese and the national Episcopal Church, along with representatives of other mainline denominations, will argue that Virginia’s 1867 “division statute” is unconstitutional.

The statute was enacted to allow congregations that dissented with their denominations over slavery and secession to leave with their property. It is being contested by the diocese and the national Episcopal Church. Protestant denominations such as Methodist, Lutheran, African Methodist Episcopal, Worldwide Church of God, Presbyterian and Church of the Brethren have filed friend-of-the-court briefs.

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WHEN A CHURCH congregation breaks with its denomination, the two sides rarely part with a mutual “Go with God’s grace.”

The acrimony is particularly acute in a church divorce now playing out in Fairfax County. The Episcopal bishop of Virginia has declared 11 churches to be abandoned properties. Some congregants threatened to charge diocesan officials with trespassing if they entered the sanctuaries.

The dispute is partly about money. The land and buildings are worth tens of millions of dollars. But it is also about doctrine. Members are angry their leaders ordained an openly gay bishop in New Hampshire.

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Boiled down to their essence, the Episcopal Church arguments against this are twofold — and nonsense twice over. First, the Episcopal Church will raise a federal First Amendment (free exercise of religion) issue, saying in effect that the state has no say over the internal laws of an organized Church. Because the organized Church (in other words, the institutional structure, the bureaucracy of the Diocese of Virginia and the U.S. Episcopal Church) has bylaws that claim corporate ownership of all individual churches’ parish property, the state supposedly must uphold those bylaws despite any claims, evidence, or history to the contrary. Second, they will argue that “hierarchical” churches (e.g., Episcopal, Catholic), unlike “congregational” churches (e.g. United Church of Christ), are indivisible without the assent of the whole body (in this case, the diocese) — much the same way that Lincoln argued that the Union was indivisible.

Of course, their arguments fail the smell test, because a civic polity and a religious one are two entirely different things. At issue in the lawsuit are civic property rights, which are always governed by the state, not the spiritual matters that are exclusively (and rightly) the province of churches alone.

Throughout this whole fight, the CANA churches have offered to negotiate a financial settlement, and they have kept their rhetoric low-key and respectful. After last Friday’s ruling, Jim Oakes, vice-chairman of the new Anglican District of Virginia (the group of breakaway churches), struck just the right tone in his statement. “Let us choose healing over litigation,” he said, “and peaceful co-existence over lawsuits, and let us devote all our resources to serving Christ and helping others around the world.”

If only the Episcopal Diocese of Virginia would be so reasonable. The congregations of the CANA parishes built, care for, and worship in their churches. The Episcopal Diocese ought to adhere to the scriptural admonition against coveting those properties the diocese had no part in creating or maintaining. To do otherwise — to continue attempts to confiscate those properties — is to accomplish the exact opposite of social justice.

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“We are pleased with this initial victory today,” said Jim Oakes, vice chairman of the Anglican District of Virginia, which includes the 11 congregations. “We have maintained all along that the Episcopal Church and Diocese of Virginia had no legal right to our property because the Virginia Division Statute says that the majority of the church is entitled to its property when there is a division within the denomination.”

The law, passed in the mid-1800s, stemmed from doctrinal disputes in the Methodist and Presbyterian Churches, Judge Bellows wrote.

The law has been little used since then, because the courts are reluctant to wade into religious disputes, said Carl W. Tobias, a professor at the University of Richmond School of Law.

But this case and one before the California Supreme Court regarding the property of three former Episcopal parishes there indicate a new willingness of some courts to review these matters, Mr. Tobias said.

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Note the language that the Post used to describe the actual cause of all of this conflict. For the Post, this is all a matter of opinion on the Anglican right, which means that there is a national ”” note, not global ”” movement of churches upset about what “it believes to be an un-biblical liberal slant in the national church.” This is merely a matter of opinion on the right, you see.

Over at the Times, the emphasis is different. The Anglican wars are rooted in a “long-running dispute over biblical authority and sexuality.” In other words, this is not a problem being caused by an opinion, a mere matter of interpretation, on one side. There are facts here ”” a doctrinal dispute that exists. There are facts that can be quoted, there is non-judgmental language that can be used.

It’s a subtle thing, with the Post using language that suggests that the wars are being caused by a matter of opinion on the right. The Times, meanwhile, says that the conflict exists. Period.

Personally, I think it’s a good thing when newspapers stick to facts and, whenever possible, avoid using opinion language. I mean, who can deny that there is a conflict here over matters of doctrine linked to biblical authority and sexuality? Would anyone on the left deny that? The dispute is over who is right and who is wrong. But this split is being caused by a real conflict over doctrine. That’s a fact.

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Given that there are new articles and press releases, etc. being released frequently, and the potential significance of the story, we thought it would be helpful to provide a roundup of all the Virginia court ruling links in one place. We’ll keep updating this periodically:

Primary Source documents: Court Ruling and Press Releases or Letters

The Court Ruling: [Stand Firm has a PDF here]

The Anglican District of Virginia (ADV) Press Release:

The Diocese of Virginia Press Release:

The CANA Press Release:

The Presiding Bishop’s Statement:

A letter from the Rev. John Yates, rector of the Falls Church

A letter from Virginia Bishop Peter James Lee

Articles / Analysis / Commentary: (in the order we came across them)

The main T19 comment thread is here

Stand Firm — long comment thread is here.

Washington Times:
Va. judge sides with breakaway Episcopal parishes, By Julia Duin

Washington Post:
Judge’s Initial Decision Favors Breakaway Churches, By Michelle Boorstein
[note BabyBlue has an important bit of background on this article here (Patrick Getlein used to be the Communications Director for the Diocese of VA)]

Ruth Gledhill (The London Times)

Christianity Today:
Big Win for Va.’s Breakaway Anglican Parishes in Property Fight, by Sheryl Henderson Blunt

Episcopal News Service:
Virginia judge issues preliminary ruling on application of state statute, by Mary Frances Schjonberg

“The Lead” (one of the primary reappraising TEC blogs)

Thinking Anglicans (a reappraising blog from the UK) which provides a roundup of links and some commentary

The Living Church: Favoring Parishes, Virginia Judge Cites ”˜Division of First Magnitude’

Reuters: US judge rules for Episcopal Church secessionists, By Michael Conlon

The Institute on Religion and Democracy

Brad Drell (Louisiana attorney and Anglican Blogger at Drell’s Descants)

David Trimble (an attorney in KY, and Anglican blogger at Still on Patrol)

Hills of the North (a Georgia attorney)

Bishop David Anderson of the AAC (via Anglican Mainstream)

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Note: BabyBlue’s blog is, of course, one of the best places to keep up with the news as it happens, since BabyBlue is directly connected to the story, being a member of Truro, one of the ADV congregations.

Feel free to add other links in the comments. We’ll update this as we are able.

Read them both carefully.

Update:
There’s a second article now online at Episcopal Life, which goes into more detail about the ruling and the legal strategy that TEC intends to pursue in the second portion of the trial in May.

A Fairfax circuit judge has awarded a favorable judgment to a group of 11 Anglican churches that were taken to court last fall after breaking away from the Episcopal Diocese of Virginia in late 2006.

In an 83-page opinion released late last night, Judge Randy Bellows ruled that Virginia”s Civil War-era “division statute” granting property to departing congregations applies to the Northern Virginia congregations, which are now part of the Nigerian-administered Convocation of Anglicans in North America.

“The court finds that a division has occurred in the diocese,” the judge wrote. “Over 7 percent of the churches in the diocese, 11 percent of its baptized membership and 18 percent of the diocesan average attendance of 32,000 [per Sunday] have left in the past two years.”

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ECUSA Diocese argue that the historical evidence demonstrates that it is only the “major” or “great” divisions within 19th-century churches that prompted the passage of 57-9, such as those within the Presbyterian andMethodist Churches. ECUSAjDiocese argue that the current “dispute” beforethis Court is not such a “great” division, and, therefore, this is yet another reason why 57-9(A) should not apply. The Court agrees that it was major divisions such as those within the Methodist and Presbyterian churches that prompted the passage of 57-9. However, it 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, especially given the involvement of numerous churches in states across the country, the participation of hundreds of church leaders, both lay and pastoral, who have found themselves “taking sides” against their brethren, the determination by thousands of church members in Virginia and elsewhere to “walk apart” in the language of the Church, the creation of new and substantial religious entities, such as CANA, with their own structures and disciplines, the rapidity with which the ECUSA’s problems became that of the Anglican Communion, and the consequent impact-in some cases the extraordinary impact-on its provinces around the world, and, perhaps most importantly, the creation of a level of distress among many church members so profound and wrenching as to lead them to cast votes in an attempt to disaffiliate from a church which has been their home and heritage throughout their lives, and often back for generations.

Whatever may be the precise threshold for a dispute to constitute a division under 57-9(A), what occurred here qualifies. For the foregoing reasons, this Court finds that the CANA Congregations have properly invoked 57-9(A). Further proceedings will take place in accordance with the Order issued today.

Read it carefully and read it all (over 80 pages).

The diocese officially does not ordain homosexual clergy, although a resolution is on the table for today’s meeting that would change that policy.

It also does not conduct “blessing” ceremonies for same-sex unions. However, a diocesan committee report, issued yesterday, said there was an “emerging consensus” among committee members to eventually allow such blessings.

“Scripture addresses lifelong committed relationships characterized by fidelity, monogamy, mutual affection and respect and the holy love” among homosexuals, the report said. A new commission will “identify practical steps” on how the diocese can minister to homosexual couples, it said.

The Episcopal Church has had multiple splits over sexual and theological issues, all of which have drained numerous dioceses of funds. The Virginia diocese’s budget is up by 4.5 percent this year, but that has come at the expense of maintaining a staff of only 24 full- and part-time workers.

It’s the smallest staff of the nation’s five largest dioceses, said Bishop Lee, adding that there will be “unwanted turnover” unless larger salary increases are forthcoming.

“That was a departure for him to be that forthright,” said Steve van Voorhees, a council teller. “He’s never put money in his pastoral address before.” Diocesan treasurer Mike Kerr said some churches have curtailed their giving out of fear that the money may go toward the lawsuit and have asked whether they can restrict where their funds go.

Calling restricted giving “a slippery slope,” Mr. Kerr said that the $70,000 needed to service the $2 million line of credit is coming out of an endowment fund, not out of the diocese’s $4.7 million 2008 budget.

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The print starts very small but you can enlarge it–please peruse it all.

Today, The Diocese of Virginia and The Episcopal Church filed their opposition to the motion by Virginia Attorney General Robert McDonnell to intervene in the consolidated church property cases currently being heard in Fairfax Circuit Court by the Hon. Randy I. Bellows.

In stating their opposition, the Diocese and the Church noted that the Commonwealth had failed to meet the requirements that govern intervention in such a dispute and that the state “lacks any right or interest in the subject matter,” namely the property unlawfully occupied by individuals in the CANA breakaway congregations. The Diocese and the Church raised no objections, however, to the Attorney General filing an amicus curiae or friend of the court brief on the matter of the constitutionality of section 57-9 of the Code of Virginia which is at issue at this stage in the case.

The Diocese and The Episcopal Church have argued that it would be unconstitutional for the court to apply section 57-9 in such a way to rule that a division had occurred within the Diocese or the denomination at large. Such a ruling would be an unconstitutional intrusion by the state into the affairs, doctrine and polity of a hierarchical church.

A trial was held in November on the interpretation and application of that section of the Code of Virginia. The judge has not yet issued a ruling. The third and final post-trial brief ordered by the judge also was filed today.

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The Diocese of Virginia has just released a statement on the state of their lawsuits against the eleven Virginia Churches that followed the Protocol for Departing Churches and voted to separate from the Episcopal Church.

In their weekly Communique under the headline “Judge Sets Date for Trial,” the diocese states that “The Hon. Randy I. Bellows has set Oct. 6-30, 2008 for the second phase of the trial over ownership of Episcopal Church property.” The Diocese then asserts that “In this second phase The Diocese of Virginia and The Episcopal Church seek declaratory judgment regarding the property, a ruling that requires the CANA congregations to vacate Episcopal property, transfer of title and a full accounting of all property. ”

This is not true.

The judge has reserved trial dates this fall, but the judge has not yet ruled on the subject covered by those dates and won’t make a decision until after he rules on the 57-9 filings, some time after January 19, 2008….

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Presiding Bishop Katharine Jefferts Schori testified by way of a televised deposition that lasted some 54 minutes. She was courteous yet clear in her conviction that CANA congregations had no right to leave the Church and take the property. When pressed to offer some negotiated settlement on property she was clear that The Episcopal Church would not negotiate with a church from another country coming into a diocese and competing with that established diocese. Asked to explain, she stated this violated current and ancient practice. Polity in all parts of the Anglican world has been for a bishop in one area to get permission from the bishop in another before going there to perform any type of ministerial function. She saw the establishment of parallel parishes and their vocal criticism of The Episcopal Church as confusing to the public and harmful to the church.

Presiding Bishop Katharine was reminded that she had signed the statement of the Primates at the Dar es Salaam meeting. It required The Episcopal Church to repent and pledge to renounce the practice of consecrating homosexual bishops and blessing same-gender “unions” or marriages. She responded that she signed to indicate that the statement represented what transpired. She indicated that she had no authority to bind the bishops or The Episcopal Church to such a statement.

Finally, when asked how she could support legal action against CANA churches when the Primates and the Archbishop of Canterbury had urged the church to settle disputes over church property within the church rather than through the courts, she responded, “I have a duty to protect the assets and the integrity of The Episcopal Church.”

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The case in Fairfax County Circuit Court is over whether the conservative congregations, which left the national church over disputes related to the interpretation of Scripture and the acceptance of homosexuality, can keep the land and buildings. After voting to leave in 2006 and 2007, the congregations filed court papers saying they had — under a Civil War-era Virginia law — legally “divided” from the national church and thus were keeping the property.

But the Episcopal Church and the Virginia Diocese, its local branch, argue that there has been no legal “division” — rather that a minority of dissidents opted to leave, and therefore have no rights to the land or buildings. Church lawyers also say it would be unconstitutional for the state to determine when a hierarchical church — such as the Episcopal Church — has had a fundamental division, that such a judgment is a religious matter. Meddling would be a violation of church-state separation, diocesan lawyers say.

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Virginia’s attorney general is defending the right of 11 conservative Anglican parishes to use the state’s Civil War-era “division statute” to leave the Episcopal Church while retaining millions of dollars in assets and property.

Attorney General Bob McDonnell’s motion to intervene is a significant setback to the Episcopal Church and the Diocese of Virginia, which have said secular courts have no place in resolving the property dispute ”” the largest in the church’s history.

Read the whole thing.

As stated in the Attorney General’s motion to intervene, “As a matter of federal constitutional law, the Episcopal Church is simply wrong. The Constitution does not require that local church property disputes be resolved by deferring to national and regional church leaders.”

“The Attorney General’s brief validates the position of our parishes and directly refutes arguments that were made by the Episcopal Church and the Diocese of Virginia following the November trial,” said Jim Oakes, vice chairman ADV. “Virginia has a long and rich history of deferring to congregational control of property. The Division Statute itself clearly states that majority rule should be the deciding factor in determining the ownership of church property when a group of congregations has divided from its former denomination. In his brief, the Attorney General ratified the authority of the Division Statute and noted that the interpretation of the Statute by ADV lawyers is ”˜both textually and historically accurate.’”

Read it all and follow the links.

A nasty property dispute between the Virginia Episcopal Diocese and 11 breakaway congregations is likely to stretch into 2009 as a result of a judge’s decision, and the two sides say they have spent more than $1 million apiece on legal fees and expect to spend at least that much again before the case ends.

The Virginia dispute is one part of a global Anglican battle over how to interpret Scripture and Jesus’s view of homosexuality.

It is being closely watched, because one of the main breakaway organizations– the Convocation of Anglicans in North America — is based in Fairfax City, and because it could set a precedent for conservatives across the country who want to leave the Episcopal Church and hold on to church buildings and land.

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The Diocese of Virginia, embroiled in the largest property dispute in the history of the Episcopal Church, is taking out a $2 million line of credit to finance lawsuits against 11 churches that left the denomination a year ago.

The announcement, made in the pages of this month’s Virginia Episcopalian, is the latest in a series of legal battles that is draining the Episcopal Church of millions of dollars. The denomination has filed lawsuits in at least 12 states against churches leaving over disputes on biblical authority and the 2003 election of New Hampshire Bishop V. Gene Robinson, who lives with a homosexual lover.

The diocese says it will sell off “non-strategic” diocesan properties to raise the money needed to win back $30 million to $40 million worth of real estate and assets.

The diocese has spent $1 million to date on the lawsuits, but instead of paying back the sum, is simply paying the interest ”” $80,000 ”” on the loan. The diocese borrowed from restricted endowment funds for the money, spokesman Patrick Getlein said.

“Church pledges to the diocesan budget will not be used to fund litigation,” he said in an e-mail. “There have been some churches, regions and individuals who have made unsolicited contributions to the cost of litigation, which is very much appreciated.”

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The Virginia Episcopalian, the official publication of the Diocese of Virginia, is reporting in the current edition that the Executive Board has “authorized the treasurer to open a $1 million line of credit to cover anticipated legal expenses for the near-term. That line has since been increased to $2 million and about $1 million has been accessed.”

In addition, the Executive Board of the Diocese of Virginia authorized diocesan staff to plan “the sale of non-strategic diocesan real property” to raise needed cash.

The Diocese also revealed that nine churches have not paid any of their pledges which Mike Kerr, Treasurer of the Diocese, estimated a loss to the diocese of $50,000. In addition, other churches have not paid their pledges in full causing the diocese is to run a deficit of expenses over income from those pledges.

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A court hearing between the Anglican District of Virginia and the Episcopal Diocese of Virginia for rights to 11 church properties has ended for now.

The week-long trial, presided over by Fairfax County Circuit Court Judge Randy L. Bellows, began Nov. 13 and concluded Nov. 20, with Bellows taking the case under advisement.

Last January, two of Fairfax County’s oldest Episcopal churches, the Falls Church and Truro Church, made national headlines by leading a secession of 11 parishes, including the Church of the Epiphany in Oak Hill, from the Episcopal Church.

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In testimony before a Virginia court last week, US Presiding Bishop Katharine Jefferts Schori stated she had directed the Diocese of Virginia to sue the clergy and lay leaders of 11 congregations after they had quit the Episcopal Church for the Churches of Nigerian and Uganda.

In video taped testimony presented to the Fairfax County Circuit Court, Bishop Schori said she ordered Virginia Bishop Peter Lee to break a verbal agreement allowing the 11 parishes to withdraw from the diocese so as to prevent “incursions by foreign bishops.”

Bishop Schori’s testimony during the four hour deposition, recorded on Oct 30 and presented in evidence on Nob 15, did little to engender the sympathy of the court, as observers noted she carefully parsed her words, and at one point was directed by the court to answer a question.

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The trial phase of the case involving 11 Virginia congregations where the majority voted to leave The Episcopal Church last year ended Nov. 20, a day ahead of schedule, after lawyers for both sides agreed not to call an expert witness on Wednesday.

A decision is unlikely before late January, however. Yesterday Fairfax Circuit Judge Randy I. Bellows requested submission of all closing arguments in writing no later Jan. 17. The schedule calls for lawyers for the 11 congregations to submit their closing brief by Dec. 21. The diocese and national church then have until Jan. 11 to respond, with lawyers for 11 congregations required to submit their reply no later than Jan. 17.

The dispute, which includes two Colonial Era churches and property worth tens of millions of dollars, began last year after the Diocese of Virginia contested a legal filing made by the 11 congregations with the Commonwealth of Virginia stating that a division had occurred. Under an 1867 Virginia law, the local congregation is entitled to decide “by majority vote” which side they wish to join. Majorities at the Episcopal congregations had voted to leave the diocese and affiliate with the Convocation of Anglicans in North America (CANA), a missionary branch of the Anglican Church of Nigeria.

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