Constitution argued in Episcopal case

By Julia Duin (Contact) | Thursday, May 29, 2008

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Lawyers for the Episcopal Church and a group of dissident congregations that split off to form a new denomination tangled in court yesterday over the constitutionality of a 141-year-old Virginia law that deals with the disposal of church property.

At issue is the Civil War-era "division statute" that says if a division occurs in a denomination, a congregation or a group of congregations, by majority vote of their members, may break away while retaining church property.

The Episcopal Diocese of Virginia is suing 11 conservative congregations in Northern Virginia that left 18 months ago over issues of biblical authority and the 2003 consecration of an openly gay Episcopal bishop.

After a five-day trial in November, Fairfax County Circuit Judge Randy I. Bellows on April 3 ruled that a division had occurred among Episcopalians and that the statute applied to the breakaway churches in Virginia. The diocese is now challenging the constitutionality of the statute in Fairfax County court.

A representative of the Virginia Attorney General's Office defended the 1867 law.

"It is amazing that after 140 years, a statute that deals with conflict has never been found to be unconstitutional," said Virginia Solicitor General William E. Thro who is defending the statute before Judge Bellows. "It is the general belief among the [Virginia] bar that the statute is constitutional."

In court yesterday, William Hurd, an attorney representing the diocese, told Judge Bellows that the "division statute" put too much of a "burden" on churches and interfered with their constitutional rights to freedom of religion. Parishes are part of a whole, he said, in the same way local governments serve the state.

"Counties are not free to leave," he argued. "They are each a creation of the commonwealth. So in the same way, churches are a creation of the diocese."

Heather Anderson, an attorney representing the Episcopal Church, which has teamed with the diocese against the breakaway churches, said disposal of church property lies at the heart of how a church is run; therefore the division statute involves church doctrine.

"The issue of whether a diocese has divided is an ecclesiastical decision," she said. "It goes to the heart of how a church operates in civil society."

Courts rarely interfere in doctrinal matters, church rituals or tenets of faith.

Judge Bellows said he was not deciding "who runs the church" but merely overseeing a property dispute, albeit one with immense ramifications.

"Once a division exists, there has to be a decision on who retains the property," he said. "What I am doing is making predicate decisions for the enforcement of the statute."

His April 3 decision, which is 83 pages , said the division statute could be used to decide property rights.

One of the complications in the case is the diocese's custom of placing all property titles for each congregation into the hands of trustees elected from within each church. Some denominations, such as the Roman Catholic Church, have all property in the name of its bishop.

In this case, the breakaway churches have said the diocese had plenty of opportunity to take over properties belonging to about 190 member congregations.

"The [Episcopal] Church could have changed their method of titling property but they chose not to. Now that choice has consequences," Mr. Thro argued.

He said that for the diocese to demand that each congregation - some of which date back to before the Revolutionary War - transfer all property to the diocese "would disturb the peace and unity of the church."

Judge Bellows is expected to take at least a month before issuing a decision.

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