- The Washington Times - Thursday, August 21, 2008

A Fairfax County judge dealt the Episcopal Church and the Diocese of Virginia a third defeat in their efforts to retain millions of dollars of church property being held by 11 breakaway congregations.

On Tuesday, Circuit Judge Randy I. Bellows ruled on whether the U.S. Constitution’s contracts clause applies to the case and whether the breakaway churches had the right to invoke what’s been termed the “division statute,” an 1867 law that allows a majority of a breakaway church to retain the property.

The judge said the contracts clause would apply to any church property before 1867; however, historically in Virginia, denominations could not own church property at the time; only trustees of each church could.

The diocese and the Episcopal Church had asserted in an Aug. 11 hearing that even if they did not own the properties, they had vested pre-contractual rights to them.

“The court holds today that they could not,” the judge wrote in his ruling dated Aug. 19.

The Episcopal Church and the diocese also argued that by being part of the denomination, the 11 churches waived their right to invoke the division statute.

The judge wrote in a separate letter that they should have filed this claim last year before litigation started. Now, “It is too late,” he wrote.

The ruling “is a significant victory,” said Steffen Johnson, one of the lawyers for the 11 churches. “It eliminates their last constitutional argument that the statute is not valid.”

The diocese said it was disappointed.

“While we are disappointed in today’s ruling, we are committed to exploring every option available to restore constitutional and legal protections for all churches in Virginia,” the diocese said.

Adding that more issues will be taken up during a trial set for October, it said, “the diocese remains firmly committed to ensuring that loyal Episcopalians, who have been forced to worship elsewhere, will be able to return to their Episcopal homes.”

Tuesday’s ruling is the latest chapter of a multi-trial battle pitting the diocese against the 11 conservative churches who broke away from the denomination over issues of biblical authority and the 2003 election of the openly gay Rt. Rev. V. Gene Robinson as bishop of New Hampshire.

Most of Virginia’s bishops and delegates to the 2003 Episcopal General Convention in Minneapolis voted for his election.

A conservative minority of Episcopalians, centered in Northern Virginia, coalesced in opposing the election and announced in late 2006 they were leaving the diocese and taking $30 million to $40 million worth of property with them. The churches now belong to the Anglican District of Virginia.

The Episcopal Diocese sued to keep the dissenters from using the division statute to keep the property.

The lawsuit, which is the largest church property case in the history of the Episcopal Church, is being closely watched across the country.

When Judge Bellows ruled April 3 that the division statute applied, the diocese challenged the statute’s constitutionality.

During a May 28 hearing, the Episcopal Church and the Episcopal Diocese of Virginia argued the division statute 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.

In June, Judge Bellows ruled the statute was constitutional.

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