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.
Looks like those who were outraged at the early mention of Mims and the AG’s intervention have a little egg on their face. When Mims and CANA need the AG to say the law has constitutional problems, the AG says so. When Mims and CANA need the AG to say that the same law is perfectly constitutional, the AG says so. Hmmm.
So now the Episcopal Church in Virginia is attempting to argue that the state courts are barred by the federal constitution from telling the truth? “O what a tangled web we weave . . . “
Note to Peter Lee and 815 Acolytes:
When you went into state court you started playing with the big kids. You can’t go into secular court and then cry that secular laws are going to decide the outcome.
Not having read any of the actual pleadings and briefs, I’d have to say that it appears the DioVa is correct: the Attorney General for the Commonwealth of Virginia should only be defending the constitutionality of section 57-9; not expressing an opinion as to its applicability.
William,
The Brief of the Attorney General specifically addresses the constitutional issues of the statute he does not argue how it is to be applied, he does state however that the reading of the statute by The Episcopal Church and the Diocese of Virginia that the division only occurs if it is approved is incorrect and they are wrong in the reading and language of the statute. He is attempting to intervene in order to defend the constitutionality of the statute.
#5, seminarian,
Thank you — you are always on top of these issues.
DavidH–There is no inconsistency between the 2005 position of the former AG’s counsel and the current AG’s position. In the 2005 letter (appended to the Diocese’s motion, found through this link), the AG’s counsel noted that 57-9 concerns only the situation where a denomination has divided into separate branches, not situations where congregations separate to form or join a separate denomination or simply to become independent. This could put a court in the position of deciding whether a “division” has resulted in a new denomination or simply branches of the same church, which would necessarily entail examination of religious doctrine. This is not the case with the CANA ADV parishes–they follow the same doctrine, the same liturgy, use the same prayer book, etc. There is no claim that CANA is a new denomination. Thus there is no impermissible entangling of the state’s analysis in religious doctrine in deciding whether the CANA parishes have divided to form a separate branch of the Diocese, TEC, or the Anglican Communion.
By the way, it is noteworthy that–and I think this is a sign of weakness of their argument concerning the AG’s 2005 letter–the Diocese’s press release has much more extensive argument of the legal impact of this letter and the underlying facts than its actual submission to the court in opposition to the AG’s motion. Most curious is the Diocese’s omission from its filing of any mention of Mims’ current position as Deputy AG or that Mims attended an Anglican congregation, facts that are blared in the press release. The implication in the press release is that Mims has a conflict of interest that influenced the AG office’s decision to attempt intervention. Why not direct this argument to the judge, as this certainly would weaken the AG’s basis for intervention. The Diocese also omits to mention that William Thro, the Commonwealth’s Solicitor General, was consulted on and concurred with the 2005 letter, and he is also one of the signators of the AG’s motion to intervene in the CANA litigation. There is no smear allegation concerning Mr. Thro, as there is with Mr. Mims; I would assume that Mr. Thro does not find his 2005 opinion on 57-9 to be inconsistent with the AG’s present attempt to intervene in the CANA litigation.
So, the Commonwealth’s Attorney should not be allowed to intervene in a case where a State statute has been called into question? In what kind of parallel legal universe do you have to live in where the State’s Attorney can not defend the State’s statutes?
Steven, you need to spend more time reading the case materials.
As the post-trial briefs will reveal even from the tables of contents alone, whether the CANA folks have joined a “branch” is a key issue. The fact that the AG has now said exactly opposite things about the branch issue with respect to the same law is important.
Your sameness comments are wrong and illogical. You can learn from reading the trial transcripts that the Church of Nigeria uses a different prayer book than TEC. And same doctrine? Please. If that were the case, the CANA folks wouldn’t have left. (And specific examples abound, starting with WO.)
Reading the Diocese’s 3rd post-trial brief will let you know that your comment about Thro is wrong — he’s mentioned specifically. And when it comes to Mims, your curiosity apparently hasn’t led you to some pretty obvious conclusions. The AG in Virginia is elected; he/she is explicitly a political figure (even before he/she starts running for governor, like Bob McDonnell). Thus, to argue that the AG is favoring one side politically or personally gets you absolutely nothing legally — in case you hadn’t noticed, favoritism is what politicians do. (Most people think they shouldn’t, which is why it was foolish for the AG to do it so publicly and transparently here and why it makes for good PR for the Diocese and TEC.) Also, does it really surprise you that a big VA law firm might hesitate before making all-out, personal attacks on prominent people in the AG’s office? Or is scorched earth your general rule?
“Other faith groups” = same lineup of tired, shrinking, unbelieving liberal mainline churches. I’m shocked, shocked, I tell you!
David–I have read your comment a few times and you have overlooked my main point, which is that the AG’s argument supporting intervention in this case to defend the constitutional attack on 57-9 is consistent with the AG counsel’s 2005 letter to Mims.
Getting beyond that lacuna, in the spirit of reconciliation I think it would be good to observe that we are in apparent agreement on a number of issues mentioned in your posting.
For example, you state “As the post-trial briefs will reveal even from the tables of contents alone, whether the CANA folks have joined a “branch†is a key issue.” I am in complete agreement–this is a major issue as both parties’ briefs extensively indicate. This is also why any potential constitutional problems with 57-9 are avoided; deciding whether the CANA congregations have joined that “branch” does not entail an analysis of religious doctrinal issues.
You next state “You can learn from reading the trial transcripts that the Church of Nigeria uses a different prayer book than TEC. And same doctrine? Please. If that were the case, the CANA folks wouldn’t have left.” I agree that Nigeria uses a different prayer book. However, the departing parishes do not. Moreover, while there may be differences between TEC and the departing parishes that one could argue are doctrinal, they are irrelevant; the 57-9 division analysis in this case can be done without requiring the court to act in a manner impermissible under the Establishment Clause.
Next, you state “Reading the Diocese’s 3rd post-trial brief will let you know that your comment about Thro is wrong—he’s mentioned specifically.” Mr. Thro appears to be mentioned only in the AG’s 2005 letter attached to the Diocese’s brief. As I noted earlier, Thro concurred with the AG’s 2005 letter and also signed the AG’s current motion to intervene. Thro is the state Solicitor General, and I assume that he has acted properly and consistently with the duties of his office throughout all of this. This ties into my unaddressed point above, which is that the 2005 and present positions taken by the AG’s office are consistent, and that bringing Mims into this and mentioning his religious affiliation–facts omitted from the substantive filing to the court–is a PR smear. (As an aside, while I readily admit to not reading every single document generated during this dispute, it bears mentioning that reading of every single document does not necessarily impart a full understanding of them or of their impact on the legal issues.)
Regarding your observation of the partisan nature of the AG’s position, you are undoubtedly correct. It is also correct that one of the purposes of the AG’s office is to intervene in cases to defend the constitutionality of Commonwealth statutes that are being challenged, as I pointed out on another thread. But more importantly, your point about the partisan nature of the AG is irrelevant, because partisanship is not mentioned or even hinted at in the Diocese’s press release.
Finally you make this observation:
I fully agree with you that the Diocese’s press release constitutes an all-out, personal attack on Mims.
Somebody needs to talk to HoD chancellor Sally Johnson, who is on record saying:
http://www.episcopalchurch.org/79901_87489_ENG_HTM.htm
At the time, I commented that “Next time TEC argues that a court must not entangle itself in religious governance by ruling on property, you can remind the court that TEC’s own chancellor is entangling them already!
TEC/DioVA can’t go to the gov’t to settle a religious dispute, and then claim that the gov’t shouldn’t be involved in religious disputes. Well, OK, they can, but not with integrity.
12- I think you mean honorable or righteous integrity. As Screwtape discoursed, the Father Below is brutally logical and entirely as-one with his own ethics.
Steven, we’ll have to agree to disagree. I think it’s readily apparent that the AG’s 2005 opinion is not at all consistent with his and CANA’s position today.
The mention of Thro is on p.26. He is acting as a good lawyer acts — arguing whatever side he’s paid to argue. Nonetheless, taking inconsistent positions is not something that inspires respect for your current position. Just ask Mitt Romney.
“There is no claim that CANA is a new denomination.” Yes, there is. By the CANA folks, in fact. The claim that the CANA folks have joined an existing denomination is being made by the Diocese and TEC.
“Moreover, while there may be differences between TEC and the departing parishes that one could argue are doctrinal, they are irrelevant” You seem to say that a court can decide what doctrine is relevant or not relevant. It can’t.
David–maybe you’re a Packers fan, in which case we would be in agreement on something. Peace and blessings to you.