The second of the three-phase trial to determine ownership of church properties now occupied by defectors from the Episcopal Church got underway in Fairfax yesterday, this phase centered on the constitutionality of an 1867 Virginia law. At issue is who will eventually own and occupy the properties such as the campus which is home to the historic Falls Church.

Judge Randy Bellows heard arguments from both sides yesterday, from attorneys representing the Episcopalian Diocese of Virginia and those that stood on behalf of the breakaway congregations, including that now occupying The Falls Church.

Judge Bellows had ruled in April that the 1867 law was appropriate to apply in this dispute. That law, written in the wake of many divided congregations split over the Civil War, says that the property goes with defecting congregations.

However, question now goes to whether or not the law is constitutional, or whether it involves an untoward intrusion by the state against exercise of the constitutional guarantee of freedom of religion.

Much of the arguments yesterday were technical, but centered around the simple choice that the property is “held in trust” either by the larger denomination, or by the local congregation.

The significance of the court ruling is not lost on many other Protestant denominations, either. Allowed by Judge Bellows to participate as “friends of the court” in alliance with the Episcopal Diocese of Virginia were representatives of the Presbyterian, Seventh Day Adventists, Evangelical Lutheran, Church of the Brethren, African Methodist Episcopal, Worldwide Church of God and United Methodist denominations.

Their concern is for what it could do to any large denomination if local breakaway congregations can walk away with the properties on which they worship. It could inflict enormous damage to the way hierarchical churches function, it was noted, if property could be transferred without being bought. For the state to intervene against the internal affairs and laws of a denomination to permit this is unconstitutional, the Episcopal Diocese and its “friends of the court” contended.

The defecting congregations, organized under the umbrella of the Council of Anglicans in North America (CANA), were buoyed in their arguments by an opinion from Virginia’s Republican Attorney General Bob McDonnell stating the 1867 Virginia law to be constitutional, which was slated to be presented in court yesterday by Virginia Solicitor General William Thro.

Attorneys representing both sides in yesterday’s pleadings told the News-Press they were optimistic, but could not predict which way the judge would rule. “Judge Bellows is an unusually hard judge to read,” one said.

The breakaway by defectors within the Episcopal Church was precipitated by their opposition to the elevation of an openly gay priest to standing as a bishop in the Episcopal Church in 2003.

Judge Bellows’ Fairfax Circuit Court room was filled to capacity for yesterday’s proceedings, including with media. The judge gave no indication when he would issue his latest ruling on the constitutionality of the Virginia statute. Whatever it is, there will be appeals to his ruling.

(Nate Taylor contributed to this report).