Friday, June 27, 2008

Fairfax Circuit Court Rulings

The trial court has issued its long-awaited ruling on the constitutionality of the Virginia division statute and responded in a separate opinion to five questions as to the scope and impact of its earlier rulings. Both opinions are available from the Episcopal Diocese of Virginia here.

These rulings no doubt will be appealed. They are not much of a surprise given the tenor of the judge's prior written decisions in this case. But it is sad that the judge did not demonstrate full understanding of the issues at stake here, not just for the Episcopal Church and these parishes in Virgina but for all churches. No matter which side one is on, these rulings do not bode well for the principle of separation of church and state which, for many, is critical to First Amendment rights of free speech, association, and exercise of religion. The government simply has no business deciding how a church is to resolve disputes over property and the authority to create or dissolve parishes and dioceses. It remains to be seen whether appellate courts will step back and think seriously about these issues in a neutral fashion or will be swayed by partisan considerations and/or a desire to defer wholly in these matters to the Virginia legislature. Sure do miss the kind of Republican judges who knew how to stand above the fray and to truly think and act judiciously.


Anglocat said...

I agree--and have hope that the appellate courts will corect this erroneous, poorly-reasoned opinion.

Grandmère Mimi said...

If these cases make their way to the Supremes, I don't think they'll have much of a chance there. Five of the justices are Roman Catholic. I think that they will understand that a decision in favor of the Virginia churches against the diocese will have far-reaching effects. Of course, I'm not a lawyer, but you are, Kathy. What do you think?

Not that the justices would ever let their religion affect their decisions. Indeed not!

klady said...

Sorry I didn't see this earlier, Mimi, so I don't know if you'll read this, but I am really surprised at the number of people who suggest that the U.S. Supreme Court will be friendly towards TEC because of the prominent Roman Catholics. I honestly fear this dispute going to the court precisely because of the conservative ideologues who are RC. You know the Romans far better than I, but my view of them, at least that from EWTN, is that they have special contempt for Episcoplians precisely because may of us claim to be Catholic (as in Anglo-Catholic), refer to our Eucharist as the "mass", etc. -- our surface resemblance to their church seems to provoke hostility rather than sympathy under the theory that those Protestants who may find themselves yearning for more Catholic forms of worship and the theology that goes with them may be tempted to stop by at TEC and risk eternal damnation rather than head straight for the Tiber. At least that's my admittedly uninformed take on it. (If this is ignorant prejudice, feel free to call me on it).

So, maybe I'm wrong about that, but at least as a lawyer, I would think that the RCs would be more inclined to buy the breakaways argument that TEC and other churches cannot have it both ways -- fail to title property in the name of the bishop or the national church and yet still claim property rights or interests when it comes to sale or other alienation. The RCs make it simple -- they own just about everything outright (correct?). So my guess would be that the conservative RC justices on the court (and perhaps others) may jump in and support their notion of "democracy" within Protestant churches and either deliberately or unintentionally support those who Protest and want to break away -- especially when their cause is allegedly based on theological positions (i.e. on gays and maybe others such as abortion) advocated by the Vatican but opposed by at least some in TEC.

But maybe I'm just a pessimist. One thing law school teaches one is never count on a favorable outcome, especially from U.S. Supreme Court justices.

Grandmère Mimi said...

Klady, I see. They believe that their ruling won't apply to RC parishes who might want to leave, because they own all the property outright. Of course, you could be right. You know the law much better than I.