- The Washington Times - Saturday, January 12, 2008

Virginia’s attorney general is defending the right of 11 conservative Anglican parishes to use the state’s Civil War-era “division statute” to leave the Episcopal Church while retaining millions of dollars in assets and property.

Attorney General Bob McDonnell’s motion to intervene is a significant setback to the Episcopal Church and the Diocese of Virginia, which have said secular courts have no place in resolving the property dispute — the largest in the church’s history.

Mr. McDonnell, a Roman Catholic who is planning a run for governor in 2009, said state law is on the side of the 11 churches, now with the Convocation of Anglicans in North America (CANA).

CANA’s case relies heavily on the state’s division statute, known as “57-9” because of the section of the state code in which it falls. The statute says that if the majority of a congregation’s members decide to leave the parent denomination, that congregation can retain the church’s property. In December 2006 and January 2007, the majority of members in all 11 congregations scattered across several counties voted to leave.

“CANA’s interpretation of 57-9 is constitutionally sound,” Mr. McDonnell wrote in his statement, dated Thursday. “As a matter of federal constitutional law, the Episcopal Church is simply wrong. The [state] constitution does not require that local church property disputes be resolved by deferring to national and regional church leaders.”

Although the First Amendment drastically limits a court’s role in settling intrachurch disputes, the state can intervene as long as the case does not involve doctrine, ritual, liturgy or tenets of the faith, he wrote.

Mr. McDonnell’s 26-page motion cited Virginia Supreme Court and U.S. Supreme Court rulings.

Lawyers for the diocese and the Episcopal Church said during a four-day hearing in November before Circuit Judge Randy I. Bellows that the division statute does not apply in this case and that the church, not the state, gets to decide who keeps the property.

Saying that members of CANA are occupying Episcopal property, they have sued to repossess the churches. Judge Bellows is expected to rule on the closely watched case in the coming weeks.

Episcopal and diocesan lawyers also hinted that, should they lose the first case, they will challenge the constitutionality of the division statute.

The attorney general’s motion was meant to prevent that sort of court challenge, said Carl Tobias, a constitutional law professor at the University of Richmond. He called Mr. McDonnell’s intervention “significant.”

“The attorney general has weighed in with his arguments defending the constitutionality of 57-9,” he said. “He explicitly supports CANA’s case. The chief legal officer of the state subscribes to their argument.”

Diocesan spokesman Patrick Getlein said Episcopal officials were still reviewing the motion and would have a response within a week.

Steffen Johnson, one of CANA’s attorneys, said his clients were “delighted” with the motion.

“It’s a lovely development,” he said. “It validates what we’ve been saying all along; that our interpretation of the division statute is correct and it doesn’t raise constitutional issues.”

Both sides have indicated they will appeal whatever ruling comes from Judge Bellows, so all the legal opinions and briefs now being submitted are expected to be ruled on again by the Virginia Supreme Court.

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