Virginia judge affirms parish property rights

Civil War-era law cited

By Julia Duin (Contact) | Saturday, June 28, 2008

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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.

There is no violation of the U.S. Constitution either, he added, including the First Amendment guarantees against the establishment of religion and against prohibiting the free exercise of religion.

The statute is key to the case being made by the churches, which have said they are entitled to keep millions of dollars in land and assets because their denomination has undergone an irreparable "division."

The Episcopal Church and the diocese have sued, saying the statute does not apply in this case and that it is unconstitutional. The lawsuit, which is the largest church property case in the history of the Episcopal Church, is being closely watched across the country.

On April 3, Judge Bellows said the statute applied to the case - a ruling considered a victory for the conservatives.

During a May 28 hearing in Fairfax Circuit Court, the Episcopal Church and the Episcopal Diocese of Virginia said the division statute is unconstitutional because it discriminates against hierarchical denominations by imposing democratic government on them - enabling a congregation to leave the church with its property upon a majority vote of that congregation.

The judge disagreed, saying the law doesn't single out the Episcopal Church or other churches with bishops such as Lutherans and Methodists.

Rather, he said, it was passed in light of splits within multiple denominations in the 19th century in the hopes of peacefully resolving property disputes. He added that it does not deal with the "thicket" of church doctrine.

"The Episcopal Church and the diocese's various arguments against the constitutionality of [the division statute] fail," Judge Bellows wrote. "Although the Episcopal Church and the diocese assert the court has entered into the forbidden religious thicket ... this court finds their arguments unpersuasive."

He also faulted the diocese for leaving itself vulnerable by having church property in the 90,000-member diocese held, not by the bishop, but by the members of the congregation as trustees. The denomination argued in court that re-titling some 195 congregations in the nation's largest Episcopal diocese constituted a "burden."

Several other hierarchical churches in Virginia keep their properties in their own name, the judge said, citing the Roman Catholic, Mormon, Greek Orthodox and Foursquare Gospel churches.

"The Episcopal Church and the diocese could have, at any time within the past 140 years since [the division statute] was originally passed, re-titled their properties in the name of a bishop or other ecclesiastical officer," he wrote. "If they had done so, they could have permanently avoided any potential application of [the division statute]."

The diocese issued a statement calling the ruling "regrettable" and potentially damaging to other hierarchical churches around the state.

"We continue to believe that this division statute is clearly at odds with and uniquely hostile to religious freedom, the First Amendment and prior U.S. and Virginia Supreme Court rulings," it said.

"The diocese remains steadfast in its commitment to current and future generations of loyal Episcopalians and will continue to pursue every legal option available to ensure that they will be able to worship in the churches their Episcopal ancestors built."

Jim Oakes, vice chairman for the Anglican District of Virginia, the corporation to which the 11 churches belong, pronounced itself "pleased" with the ruling.

"After meticulous examination, the judge ruled to uphold the constitutionality of the Virginia division statute against all of the Free Exercise, Establishment, Equal Protection, and Takings Clause challenges raised by the Episcopal Church (TEC) and Diocese of Virginia," he said.

The diocese, the Episcopal Church and the 11 churches now under the aegis of the Anglican District of Virginia, will next meet in Judge Bellows' court in October for the third phase of the lawsuit, which determines ownership of the property.

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