Phase 1 of Church Property Trial Ends, 1st Amendment Issues Next

Phase One of a three-phase legal process to determine ownership of the property of 11 Virginia congregations that voted to leave the Episcopal Church – including The Falls Church – ended abruptly in a Fairfax circuit courtroom Tuesday. Constitutionality arguments, pertaining to the First Amendment and the separation of church and state, are up next.

Bishop Peter James Lee of the Diocese of Virginia, who was expected to be a major witness in defense of the Episcopal Church, was on the witness stand less than five minutes, as attorneys for the diocese apparently moved to shield him from cross-examination by dismissing him from the stand before making any substantial statements.

That marked an end to five days of testimony before Judge Randy I. Bellows aimed at establishing whether or not an 1867 Virginia statute applies to the circumstances that occurred last December, when the majority of parishioners from 11 Episcopal congregations in Virginia voted to defect from the mainstream denomination.

Their claim, reiterated in a press release issued yesterday by those congregations’ new “Council of Anglicans in North America” (CANA) affiliation, was not that the defectors left the church, but that “the Episcopal Church and the diocese walked away from the worldwide Anglican Communication by choosing to reinterpret scripture.” In particular, the so-called “reinterpretation” claim is centered on the move by bishops of the Episcopal Church to elevate an openly-gay clergyman to standing as a bishop in 2003.

While Phase One of the process involves the applicability of the 1867 statute, as written, Judge Bellows will also rule on a second phase, involving arguments for or against the constitutionality of the statute, itself. The contesting sides will each submit three written briefs to Bellows to argue this question in the next few weeks.

The written constitutional arguments are expected to center on the “separation of church and state” provision in the U.S. Constitution by indicating the 1867 statute either is or is not a violation of that. The state statute sought to establish ground rules for the many splits among churches that occurred in Virginia in the wake of the Civil War, but has never been subjected to a constitutional challenge before now.

Judge Bellows said he will take both phases under advisement and indicated he would issue a ruling on January 17, 2008.

The third phase will ensue, when the claims of each of the 11 defecting congregations will be heard on a case-by-case basis. In the case of two of the churches, they had contracts on their property established prior to the 1867 law. But for the other nine, an interpretation of the Episcopal Church’s so-called Dennis canon will be decisive, especially if Judge Bellows finds in favor of the defectors’ appeal for protection under the 1867 law.

The Dennis canon adopted by the Episcopal Church in 1979 and named for its author, Bishop Walter Dennis, establishes that all property of all churches affiliated with the Episcopal Church is “held by their congregations in trust for the diocese.”

The question will become which of the 11 defecting churches agreed to the terms of the canon and whether, if they did, that would constitute a binding contractual agreement that would trump the application of the 1867 statute.

In this last week’s trial, the Diocese of Virginia and the Episcopal Church were represented by Bradfute W.Davenport Jr. of Troutman Sanders LLC in Richmond, and the CANA churches by Gordon E. Coffee, Esq., of Winston Strawn LLP of Washington, D.C.

A spokesman for the CANA churches, Jim Oakes, in a press release issued late Tuesday, said “We…remain confident in the success of our legal position. The release adds, “The decision of the Episcopal Church and the diocese to reinterpret scripture caused the 11 Anglican church to sever their ties.”

In comments in the weekly bulletin of The Falls Church this week, Rector John Yates hailed “how much has changed in this past year for our church,” noting that “we are out of a dying denomination” and saying “I can hardly contain my enormous enthusiasm.”

The Diocese of Virginia, in a statement issued last week, indicated that its case will rest on the constitutionality of the 1867 statute, not its applicability to the current litigation. “The First Amendment of the U.S. Constitution requires that a hierarchical church’s determinations and rules must be respected and that courts must abstain from seeking to resolve ‘questions of religious doctrine, polity or practice,’” it read.