Some thoughts from reading the BB excerpts (they’re working on getting a PDF copy):
A) The heading for the excerpt reads: “The CANA Congregations Have Independently Satisfied the Requirements of Virginia Code § 57-9 By Establishing The Existence Of A Division In The Worldwide Anglican Communion And The Existence Of Branches Resulting From That Division.” (Emphasis added.)
The secessionists seem to be staking their case on a division within the Anglican Communion. I wonder what their fallback position would be if the court were eventually to find that the relevant ecclesial unit is TEC, not the AC. I doubt a court would hold that dissent about the actions of General Convention amounts to a “division” of the church entitling the dissenters to walk away with parish property. (The Virginia court evidently directed the parties to address whether there had been a division within the AC, which gives a clue about the judge’s thinking, but there’s no indication whether the judge also wanted to know whether there was a division in TEC.)
B. The CANA brief implicitly argues that the Church of Nigeria can, ipse dixit, create a division in the AC, entitling Nigeria’s U.S. allies to bolt to that church with parish property in hand. Somehow I doubt that argument will sit well with a U.S. court.
C. In arguing that the AC is a “church” within the meaning of the Virginia statute, the CANA brief cites various religious matters as evidence. Their citations, however, appear to require precisely the kind of doctrinal inquiry that the Supreme Court has held is forbidden to U.S. courts by the First Amendment.
I’ll be interested to read the full brief, and the response. Gotta hop; company coming for Christmas Eve dinner.
The two general issues for the brief are (1) does the statute apply, and (2) if so, would it be constitutional to apply it?
For the statute to apply, there has to be a division, in a church or religious society to which the congregations were attached, and the congregations have to have joined a branch of that entity.
DC, when you read the whole brief, you’ll see that the congregations argue that they have satisfied the statute as to each of the following: TEC, the Diocese of Virginia, and the Anglican Communion.
And, just a reminder on the scheduling, this is not a 1 side briefs then the other side responds kinda thing. It’s 3 sets of briefs from each side, so on Friday, there were opening briefs from the congregations and also from TEC / the Diocese.
By the way, the better link is [url=http://babybluecafe.blogspot.com/2007/12/more-on-filing-of-virginia-post-trial.html]here[/url]. There you get a press release and links to the entire briefs (which are on the ADV website, but somewhat hard to find there), not just the section BB posted before.
Well, D. C. does an entire diocese leaving TEC constitute enough of a division for you? Oh, I know TEC claims that dioceses and churches can’t leave. But there were no dioceses and no Christian church buildings when Jesus said “Upon this rock I will build My church, and the gates of hell will not prevail aginst it.” Do you think just maybe He meant that the people who believed were the church and not the institutional structure or the buildings?
Some thoughts about the briefs before the family gets up this Christmas morning:
(Let me note at the outset that it’s easy for me to second-guess the real lawyers in the case: I get to be a Tuesday-morning quarterback who has no responsibility for actually achieving results, and who has had the benefit of hindsight after having read all the arguments so far.)
1. The CANA brief is the more persuasive on whether a “division,” within the meaning of the Virginia statute, has occurred.
The TEC brief tries to argue that such a division occurs only when the denomination’s governing authority approves it. I fully understand the TEC brief’s strategy: it was trying to give the judge a way to avoid having to declare the statute unconstitutional (see p. 14), which judges are loathe to do.
But TEC’s construction of the term “division” doesn’t seem particularly persuasive. The CANA brief claims, without contradiction by TEC, that according to their expert witness, the Virginia statute was invoked by congregations at least 29 times without getting denomination approval. If this is true, it puts a serious dent in TEC’s statutory-construction argument.
2. The CANA brief’s biggest weakness, on the other hand, is that it doesn’t even mention, let alone satisfactorily address, the constitutional problems with the Virginia statute. And it’s on this point that the TEC brief does an excellent job.
The CANA brief argues, in effect, that the Virginia statute permits even a small group of people or parishes to create, ipse dixit, a division in a church. And whenever they do so (the CANA brief argues), each congregation in the church gets to decide, by majority vote, which side of the division to join.
As the TEC brief points out:
A. This statutory scheme effectively obliterates any notion of a hierarchical church. Under the scheme, congregations can trump the hierarchy virtually whenever they want to. In effect, the statute forcibly imposes a congregational polity on every church in Virginia, in violation of the Free-Exercise and Establishment Clauses of the First Amendment.
B. As a practical matter, the ambiguity of the term “division” requires Virginia courts to enter the “religious thicket” of doctrine, discipline, and worship, to determine whether in fact a “division” has occurred. But the U.S. Supreme Court, in Jones v. Wolf, pretty much forbade secular courts from doing so, on First-Amendment grounds.
The TEC brief explains all this rather well; the CANA brief doesn’t even mention it.
I’ll be interested to read the responsive briefs when they’re filed in January.
[blockquote] The CANA brief argues, in effect, that the Virginia statute permits even a small group of people or parishes to create, ipse dixit, a division in a church. And whenever they do so (the CANA brief argues), each congregation in the church gets to decide, by majority vote, which side of the division to join.
As the TEC brief points out:
B. As a practical matter, the ambiguity of the term “division†requires Virginia courts to enter the “religious thicket†of doctrine, discipline, and worship, to determine whether in fact a “division†has occurred. But the U.S. Supreme Court, in Jones v. Wolf, pretty much forbade secular courts from doing so, on First-Amendment grounds.
[/blockquote]
I honestly read this the other way–Wouldn’t entering the “religious thicket” constitute the courts siding with the institution (or imposing an institutional solution) over local congregants?
Nate [#6], the courts don’t automatically side with the institution, nor do they automatically “impos[e] an institutional solution.” What they do is to act as neutral referees who enforce the rules that church members voluntarily agreed to when they joined. At page 11, footnote 4, the TEC brief quotes a Virginia Supreme Court decision to that effect (from another context): ”The constitution and by·laws adopted by a voluntary association constitute a contract between the members, which, if not immoral or contrary to public policy, or the law, will be enforced by the courts[.]” (The brief also notes cases where courts ruled for a congregation, again as neutral referees.)
Some thoughts from reading the BB excerpts (they’re working on getting a PDF copy):
A) The heading for the excerpt reads: “The CANA Congregations Have Independently Satisfied the Requirements of Virginia Code § 57-9 By Establishing The Existence Of A Division In The Worldwide Anglican Communion And The Existence Of Branches Resulting From That Division.” (Emphasis added.)
The secessionists seem to be staking their case on a division within the Anglican Communion. I wonder what their fallback position would be if the court were eventually to find that the relevant ecclesial unit is TEC, not the AC. I doubt a court would hold that dissent about the actions of General Convention amounts to a “division” of the church entitling the dissenters to walk away with parish property. (The Virginia court evidently directed the parties to address whether there had been a division within the AC, which gives a clue about the judge’s thinking, but there’s no indication whether the judge also wanted to know whether there was a division in TEC.)
B. The CANA brief implicitly argues that the Church of Nigeria can, ipse dixit, create a division in the AC, entitling Nigeria’s U.S. allies to bolt to that church with parish property in hand. Somehow I doubt that argument will sit well with a U.S. court.
C. In arguing that the AC is a “church” within the meaning of the Virginia statute, the CANA brief cites various religious matters as evidence. Their citations, however, appear to require precisely the kind of doctrinal inquiry that the Supreme Court has held is forbidden to U.S. courts by the First Amendment.
I’ll be interested to read the full brief, and the response. Gotta hop; company coming for Christmas Eve dinner.
The two general issues for the brief are (1) does the statute apply, and (2) if so, would it be constitutional to apply it?
For the statute to apply, there has to be a division, in a church or religious society to which the congregations were attached, and the congregations have to have joined a branch of that entity.
DC, when you read the whole brief, you’ll see that the congregations argue that they have satisfied the statute as to each of the following: TEC, the Diocese of Virginia, and the Anglican Communion.
And, just a reminder on the scheduling, this is not a 1 side briefs then the other side responds kinda thing. It’s 3 sets of briefs from each side, so on Friday, there were opening briefs from the congregations and also from TEC / the Diocese.
By the way, the better link is [url=http://babybluecafe.blogspot.com/2007/12/more-on-filing-of-virginia-post-trial.html]here[/url]. There you get a press release and links to the entire briefs (which are on the ADV website, but somewhat hard to find there), not just the section BB posted before.
Well, D. C. does an entire diocese leaving TEC constitute enough of a division for you? Oh, I know TEC claims that dioceses and churches can’t leave. But there were no dioceses and no Christian church buildings when Jesus said “Upon this rock I will build My church, and the gates of hell will not prevail aginst it.” Do you think just maybe He meant that the people who believed were the church and not the institutional structure or the buildings?
Some thoughts about the briefs before the family gets up this Christmas morning:
(Let me note at the outset that it’s easy for me to second-guess the real lawyers in the case: I get to be a Tuesday-morning quarterback who has no responsibility for actually achieving results, and who has had the benefit of hindsight after having read all the arguments so far.)
1. The CANA brief is the more persuasive on whether a “division,” within the meaning of the Virginia statute, has occurred.
The TEC brief tries to argue that such a division occurs only when the denomination’s governing authority approves it. I fully understand the TEC brief’s strategy: it was trying to give the judge a way to avoid having to declare the statute unconstitutional (see p. 14), which judges are loathe to do.
But TEC’s construction of the term “division” doesn’t seem particularly persuasive. The CANA brief claims, without contradiction by TEC, that according to their expert witness, the Virginia statute was invoked by congregations at least 29 times without getting denomination approval. If this is true, it puts a serious dent in TEC’s statutory-construction argument.
2. The CANA brief’s biggest weakness, on the other hand, is that it doesn’t even mention, let alone satisfactorily address, the constitutional problems with the Virginia statute. And it’s on this point that the TEC brief does an excellent job.
The CANA brief argues, in effect, that the Virginia statute permits even a small group of people or parishes to create, ipse dixit, a division in a church. And whenever they do so (the CANA brief argues), each congregation in the church gets to decide, by majority vote, which side of the division to join.
As the TEC brief points out:
A. This statutory scheme effectively obliterates any notion of a hierarchical church. Under the scheme, congregations can trump the hierarchy virtually whenever they want to. In effect, the statute forcibly imposes a congregational polity on every church in Virginia, in violation of the Free-Exercise and Establishment Clauses of the First Amendment.
B. As a practical matter, the ambiguity of the term “division” requires Virginia courts to enter the “religious thicket” of doctrine, discipline, and worship, to determine whether in fact a “division” has occurred. But the U.S. Supreme Court, in Jones v. Wolf, pretty much forbade secular courts from doing so, on First-Amendment grounds.
The TEC brief explains all this rather well; the CANA brief doesn’t even mention it.
I’ll be interested to read the responsive briefs when they’re filed in January.
[blockquote] The CANA brief argues, in effect, that the Virginia statute permits even a small group of people or parishes to create, ipse dixit, a division in a church. And whenever they do so (the CANA brief argues), each congregation in the church gets to decide, by majority vote, which side of the division to join.
As the TEC brief points out:
B. As a practical matter, the ambiguity of the term “division†requires Virginia courts to enter the “religious thicket†of doctrine, discipline, and worship, to determine whether in fact a “division†has occurred. But the U.S. Supreme Court, in Jones v. Wolf, pretty much forbade secular courts from doing so, on First-Amendment grounds.
[/blockquote]
I honestly read this the other way–Wouldn’t entering the “religious thicket” constitute the courts siding with the institution (or imposing an institutional solution) over local congregants?
Nate [#6], the courts don’t automatically side with the institution, nor do they automatically “impos[e] an institutional solution.” What they do is to act as neutral referees who enforce the rules that church members voluntarily agreed to when they joined. At page 11, footnote 4, the TEC brief quotes a Virginia Supreme Court decision to that effect (from another context): ”The constitution and by·laws adopted by a voluntary association constitute a contract between the members, which, if not immoral or contrary to public policy, or the law, will be enforced by the courts[.]” (The brief also notes cases where courts ruled for a congregation, again as neutral referees.)