- The Washington Times - Wednesday, April 14, 2010

RICHMOND | A group of conservative former Episcopal churches tangled with the Episcopal Church and its Diocese of Virginia before the Virginia Supreme Court on Tuesday over a unique state law that awards property to congregations that bolt their parent denomination.

The 90-minute session before a packed courtroom of 140 onlookers, plus more outside, appealed a Fairfax Circuit Court verdict that awarded about $30 million worth of historic property to the 11 churches that broke away from the diocese three years ago.

Five justices — three others had recused themselves from the case — grilled lawyers about the meaning and constitutionality of the state’s division statute. The 1867 law allowed congregations — many of which had differed with their denominations over slavery — to leave with their property.

The justices at one point reduced the lead lawyer for the denomination to a stammer and made her opponent waste valuable minutes explaining the nature of the 77-million-member Anglican Communion, the parent body of the Episcopal Church.

The first lawyer, Heather Anderson, representing the Episcopal Church, was in the midst of explaining that the division statute did not apply to the 11 churches because the denomination had not experienced a “division” over the 2003 consecration of an openly gay Episcopal bishop: V. Gene Robinson of New Hampshire. A second gay bishop, Mary Glasspool of Baltimore, will be consecrated May 15 in the Diocese of Los Angeles.

Instead, she said, the churches who left were merely a mission of the Anglican Church of Nigeria, which had set up a Convocation of Anglican Churches in North America (CANA) to shelter them.

One of the justices pointed out that the Archbishop of Canterbury Rowan Williams and former Virginia Bishop Peter Lee had discussed CANA’s existence at length, meaning that CANA had some stature in worldwide Anglicanism. Ms. Anderson dismissed this as “like-minded church leaders coming together for consultation.”

“Are they a branch then?” the justice asked.

When Ms. Anderson dodged the question, Chief Justice Leroy R. Hassell Sr. demanded she respond.

“I don’t have an answer,” she said.

“So you’re saying you don’t know,” Justice Hassell said.

“I — I don’t know,” she responded.

The diocese and the denomination have spent millions of dollars fighting CANA and working to appeal Fairfax Circuit Court Judge Randy I. Bellows’ Dec. 19, 2008, decision that the division statute applies to CANA. The huge multiproperty lawsuit, which has since been retitled the Diocese of Virginia vs Truro Church et al, is the largest in the history of the Episcopal Church.

Later in the hearing, justices turned their attention onto Steffen Johnson, the lead CANA lawyer, as to whether the Episcopal Church had experienced a “division” that would allow dissident churches to leave.

“Well, yes, at the national, diocesan and Anglican Communion level,” he responded. “CANA came out of the Episcopal Church. It’s a branch of the Episcopal Church.”

He added, “Branch means an ‘offshoot’; something that is legally separate but not connected.”

Justices then sparred with him, asking whether CANA’s status fell under the division statute even though the Episcopal Church had not approved the split.

“The statute is designed to apply when there’s not a consensual split,” he said. The Presbyterian and Methodist Episcopal churches whose splits led to the establishment of the division statute in 1867 also disagreed with their parent denominations, he added.

Justices then quizzed him at length as to whether the Anglican Communion — and its Nigerian affiliate — constituted a legitimate jurisdiction to which CANA could flee.

“That is not relevant,” Mr. Johnson said. “All we need to know is they [CANA] used to be Episcopalians.”

The diocese and the denomination both argued Tuesday that the division statute imposed on churches a congregational form of government — in which the members themselves can decide to leave by a simple majority vote — on a denomination structured as a hierarchy where only its bishops are allowed to say who stays or leaves.

Lawyers for CANA argued that not only was the division statute applicable, but that the title deeds of the departing churches were in the names of the churches’ trustees, not the name of the diocesan bishop.

Virginia Solicitor General E. Duncan Getchell, who argued for the constitutionality of the division statute, called the diocese “hyper-aggressive” in pursuing the conservatives more than 140 years after the titlings.

“The diocese had an option for a very long time to retitle this property,” he said. “If they thought the Denis Canon” — a 1979 ecclesiastical law that puts all properties under the authority of the diocesan bishop — “would work in Virginia, they thought wrong.”

The CANA churches, he added, met the state law’s definition of a “branch” of its former church that is entitled to hold onto its property.

George Somerville, a lawyer for the diocese, shot back a rebuttal. “Majority rule is not a principle of property rule,” he said. “The Virginia Assembly cannot impose local governance on a church.”

A ruling from the appellate court is expected by early June.

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