Before I explain why, some brief background notes. For those who have not been following this dispute, it involves the CANA parishes in Virginia that left the Episcopal Church, joined the Church of Nigeria, filed a petition in Virginia state court seeking a court order declaring themselves to be the owners of the church buildings and other property under the procedure set forth in a Virginia statute, Va. Code § 57-9. The Diocese of Virginia and the Episcopal Church have opposed the petition. A hearing was held and evidence presented concerning the conflict, the nature of the parties and institutions involved something like two months ago. Now the trial court judge has issued his ruling on the limited question of whether the statute even applies to the facts of the case. A separate hearing is scheduled for argument on whether the statute is constitutional as so applied. If it is upheld, then the trial court will proceed to decide whether in fact a proper vote was taken and who gets the property under the terms of the statute. If it is struck down (and even if it is not), these rulings will be appealed to the next highest state court (though possibly directly to the Virginia Supreme Court). From there the case might (or might not) reach the U.S. Supreme Court (depending on which way the Virgina Supreme Court rules, whether the aggrieved parties have an appeal of right to the U.S. Supreme Court or whether the Court has discretion to decline to hear the case, and if the latter, whether it decides to hear it. If the U.S. Supreme Court does not hear the case, the decision of the Virginia Supreme Court will stand as the law in the case).
Back to the April 3, 2008 ruling by Judge Bellows of Fairfax County Circuit Court. The court was asked to first decide whether the statute applies to the facts of the case. The statute reads as follows:
The part at issue in this case is paragraph A. Paragraph B, however, is important because it addresses splits within independent, congregational churches. Reading the two together, one can see that no express provisions are made for hierarchal churches.
57-9. How property rights determined on division of church or society.
A. If a division has heretofore occurred or shall hereafter occur in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority of the whole number, determine to which branch of the church or society such congregation shall thereafter belong. Such determination shall be reported to the circuit court of the county or city, wherein the property held in trust for such congregation or the greater part thereof is; and if the determination be approved by the court, it shall be so entered in the court's civil order book, and shall be conclusive as to the title to and control of any property held in trust for such congregation, and be respected and enforced accordingly in all of the courts of the Commonwealth.
B. If a division has heretofore occurred or shall hereafter occur in a congregation whose property is held by trustees which, in its organization and government, is a church or society entirely independent of any other church or general society, a majority of the members of such congregation, entitled to vote by its constitution as existing at the time of the division, or where it has no written constitution, entitled to vote by its ordinary practice or custom, may decide the right, title, and control of all property held in trust for such congregation. Their decision shall be reported to such court, and if approved by it, shall be so entered as aforesaid, and shall be final as to such right of property so held.
(Code 1919, §40; 1972, c. 825; 2005, cc. 681, 772.)
Judge Bellows essentially decided that there has been a "division" within the meaning of the statute and that CANA is some kind of "branch" to which some of the members of the parishes seek to and claim to "belong." TEC had argued against both, first claiming that the only "division" that there could be recognized under the statute would be if the church authorities at the top accepted a division (for TEC, authorized by General Convention) just as the Methodists and Presbyterians supposedly did back in the mid 19th century, when this statute was first enacted. Of course, it also argued that CANA was not a branch of DOV or TEC or the Anglican Communion.
I would not want to speculate as to where Judge Bellows' sympathies lie, whether he *gets* TEC's polity, let alone the theology behind it, or whether he believes all that CANA claimed as fact. However, none of that matters here. The key to Bellows' ruling, as I read it, is that it does not matter whether CANA is a legitimate branch of TEC or the AC. The court discussed the statute at some length, its history, what little case law there is on the original statute and tangential issues, and concluded that it made no sense to limit "branch" to top-down authorized divisions. While it could be and was argued that a different approach was necessary to interpret and apply the statute in a way that would be constitutional with respect to hierarchal churches like TEC, the judge decided -- rightly, I believe -- that to do so would be distort the plain meaning of the statute and make distinctions not called for by its terms.
In other words, the statute was intended to apply in situations where there is an acrimonious split fomented by dissenting clergy and parishioners, that, indeed, most divisions begin this way. To try to distinguish between different kinds of churches and apply the statute differently to them would be to, in effect, rewrite the statute each time a different group comes forward to try to apply it. That would be contrary to the ordinary and prudent rules for construction of statutes.
This ruling, therefore, is a perfect foundation for the real question posed by the case, which is not whether the statute applies to the facts but rather whether the statute is, itself, unconstitutional because it makes no distinction between hierarchal and congregational churchs. The court's lengthy opinion, which quotes huge sections of the Windsor report, the Primates Comminique, letters from Bishop Lee and Presiding Bishop Jefferts Schori, and all sorts of detail about the Unpleasantedness, goes into such detail about the internal affairs of the church and the dispute, is itself good evidence of why a civil court should not be asked to get involved in these kinds of cases and why the statute reaches into areas it simply should not, creating a mechanism by which schismatics can abscond with property and, by doing so, sow and support more division elsewhere.
Now it seems more likely than not that the trial court judge will go on to decide that the statute is constitutional -- not because of anything said in this first opinion but rather simply on the usual rule of thumb that state court judges naturally side in favor of upholding a statute enacted by his or her home state's legislature. But what he has done, in my opinion, is lay the foundation for the best case that can be made to the Virginia Supreme Court (and the U.S. Supreme Court if it goes there) that the statute, as interpreted and applied by Judge Bellows, violates the First Amendment rights of the Episcopal Church, the Diocese of Virginia, and its members by creating a state-sponsored mechanism for treating our churches as congregational. That does not necessarily mean that TEC/DOV is going to win in the end, but actually, had the trial court judge ruled differently, twisted and distorted the statute to lead to a different result for just Episcopalians, I think that would have guaranteed a backlash from the higher courts. Now, at least, we have a fighting chance.
I'll be curious to see what others, especially lawyers, have to say about this. Caveat to all: This is not my area of legal expertise but just some thoughts on a first reading.
[P.S. Time did not permit a more detailed analysis of the court's opinion. Let me just add, however, that some of the worst bits -- like where the court quotes the Windsor Report as speaking for the Anglican Communion -- are, I think, irrelevant to his interpretation of the statute and his ultimate ruling. Although he has found division in both the AC, as well as DOV and TEC, his decision does not depend on any particular interpretation of what and where these divisions are. In his view, even an illegitimate -- from the standpoint of church officials -- breakaway would be subject to the statute and that anything can be a "branch" as long as it offers some semblance of alternative structure. I honestly think that is a fair reading of the statute. It's the statute that stinks, not the interpretation, IMO.]