5/23/2008

Next Week in Virginia

A friend of this blog sent me a note pointing me to a decision made by Circuit Judge Randy I Bellows to allow oral arguments by the "friends of the court" who have decided to stand with The Episcopal Church and the Diocese of Virginia in arguing that the Virginia statute under which the realignment congregations in Virginia are making their plea for ownership of property is unconstitutional. That decision can be read HERE.

Now there is a message from the Secretary of the Diocese of Virginia regarding the hearing. Here it is:

"Dear Friends,

Next week, on May 28, 2008, in the Circuit Court of Fairfax County, the next major event in the litigation regarding Episcopal property in the Diocese of Virginia will occur. It is regrettable that we find ourselves in court, but the Diocese of Virginia has a clear duty to defend Episcopal Church property both for generations of Episcopalians past and those to come. I write in an effort to inform you as fully as I can about the issues before the Court, and with the hope that these issues will soon be resolved so that loyal Episcopalians who have been exiled can return to the churches they call home.

As you well know, a group of Episcopal congregations in Virginia voted to leave the Episcopal Church and affiliate with the Convocation of Anglicans in North America (CANA) in December 2006. They used a little-known, Reconstruction-era statute of the Virginia Code – the §57-9 “Division Statute” – to sue for court-approved transfer of Episcopal church property in violation of the Episcopal Church’s faith-based structure, or polity, and its Constitution and Canons, which order that polity.

While these congregations were free to leave the Episcopal Church, they were not free to take with them property that had been in the Episcopal Church, in some cases for centuries. In response to the CANA congregations’ filing, the Diocese of Virginia and the Episcopal Church asked the court to affirm that the property in question does indeed belong to the Episcopal Church.

On April 3, 2008 the Circuit Court of Fairfax County ruled that it was appropriate for the CANA congregations to file their claims under the §57-9 “Division Statute.” From the beginning, the Diocese had argued that such an application of the Division Statute violated the U.S. and Virginia constitutions. The statute, as applied, dictates how hierarchical churches must be governed, in violation of their faith-based polity and it impermissibly establishes a preference of one type of polity over another. In issuing its ruling, the Court acknowledged the presence of constitutional questions and scheduled next week’s hearing on those issues. The court has recently stated that it will not issue a ruling from the bench at this hearing. We understand that the Court will issue an opinion later this summer.

The First Amendment to the U.S. Constitution states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. The Establishment Clause requires the government to be neutral when it comes to matters of faith and religion; it prohibits a legal preference for or discrimination of one type of religion over another. The Free Exercise Clause protects the right of churches to organize and govern themselves as they see fit. By interfering in religious affairs, the government would entangle itself in a “religious thicket” (as courts have often characterized it in cases on these issues) from which there can be no good outcome.

If enforced as written, the Division Statute only allows for one type of hierarchical polity, such as the Roman Catholic Church, or purely congregational churches – no other options exist. Our church’s hierarchical structure is based in the tenets of our faith, as a church both catholic and protestant. It is no mere accident or decision of convenience that we are hierarchical. It reflects a fundamental religious belief in the Apostolic Succession – the historic line of bishops – as well a belief in how we, as Episcopalians, live and worship as a community. Our fundamental faith unit is the diocese, not the congregation. We are governed by our bishops who trace their office and, indeed, their individual ordinations as bishop back to the Apostle Peter.

Six national churches and 10 local judicatories, representing nine denominations, have signed on in support of our legal efforts to have this law ruled unconstitutional. We are profoundly grateful for this extraordinary act of support and ecumenical fellowship. They recognize that the government of Virginia has taken the Commonwealth deep into the “religious thicket” and, in doing so, has put all churches at risk for unconstitutional governmental interference.

It is important that we remember that at the center of this dispute are our faithful sister and brother Episcopalians who wish simply to return to their church homes and worship there as Episcopalians. Please pray for all affected by this dispute.

Faithfully,


Henry D.W. Burt II
Secretary of the Diocese"

The Secretary says "Please pray for all affected by this dispute." Let's do so.

14 comments:

  1. If enforced as written, the Division Statute only allows for one type of hierarchical polity, such as the Roman Catholic Church, or purely congregational churches – no other options exist.

    I think that’s exactly right, as far as it goes. What Mr. Burt leaves out is that a truly hierarchical church, like the RCC, could, and, apparently, would, simply make sure all of its properties are titled in its name. ECUSA didn’t do that, because its powers-that-were knew very well they couldn’t get away with it absent a massive revolt from even their friends. In other words, ECUSA isn’t hierarchical.

    However, the stunning statement, in its reflection of how ECUSA’s principles simply change from minute to minute depending on the circumstances, is this:

    It is no mere accident or decision of convenience that we are hierarchical. It reflects a fundamental religious belief in the Apostolic Succession – the historic line of bishops – as well a belief in how we, as Episcopalians, live and worship as a community. Our fundamental faith unit is the diocese, not the congregation. We are governed by our bishops …

    This will come as a surprise to anybody who’s heard ad nauseum that ECUSA is governed by General Convention. It might also come as a surprise to the fundamental diocesan unit of San Joaquin, now in the $800-a-billable-hour gunsights of ECUSA’s legal beagles. In that case, the fundamental unit wasn’t so fundamental as the Presiding Bishop’s sovereign, ad hoc, extra-canonical authority. Perhaps there's a different hierarchy for California versus Virginia?

    “Whatever gets the job done” is the thinking, I guess; unfortunately for ECUSA, CANA’s lawyers get a say, too, and that say will probably include bringing a few of these other things to the court’s attention.

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  2. And while the TEC defends the Dennnis Cannon as sancrosanct, the Bp. of Los Angeles is now winking at the canon that says marriage is between one man and one woman.
    Are canons to be observed or not?

    jim of michigan

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  3. The diocese is the "fundamental faith unit," yes, but certainly not in isolation. In Anglican polity, dioceses exist as part of autonomous provinces, i.e., churches - the Church of England, the Anglican Church of Canada etc. - with diverse forms of local governance, one of which is the General Convention of the Episcopal Church. Dioceses do not spring up on their own, and they are not autonomous in their own right. (Consider, for example, the matter of consents for bishops-elect in the Episcopal Church.)

    It's really not that complicated, nor is it anything new. It is, however, hierarchical.

    christopher+

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  4. And none of this is a surprise for anyone who has even the slightest clue about what it means to be an Episcopalian. If it is surprising, then maybe another venue of worship and fellowship would suit you better (another venue that does not include retention of property to which you have no right.)

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  5. It cuts both ways, Marc. Somebody looking at a title with his name on it might wonder how it might be argued that he has "no right" to the associated property. To the contrary, along with the mortgage holder, the person with his name on the title has quite a bit of rights.

    None of this is a surprise for anyone who has even the slightest clue about what it means to live in America. If it is surprising, then maybe another political system would suit you better - maybe one with a state church where the full power of the government can be called down, as you seem to wish, on transgressors that don't see it your way.

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  6. Phil: What? What do secular politics have to do with this? Oh, I see. You're a Republican. Says it all.

    Thing is, no vestry, warden, or rector has their name on the deed. The deed belongs to the church - the church of which vestry, wardens, and rectors are *stewards*, not *owners*, and thus have no right of retention if they decide they can't be stewards any more. Just as the workers of the vineyard who killed the servants and even the son of the vineyard owner delusionally thinking that would give them title to the property; just as a trustee of a retirement account has no right to the funds s/he managed once s/he decides to leave, no one has right to retain property that does not belong to them - vestry, warden, or rector. That you would advocate theft in defiance of both scripture and secular law would indicate to me that maybe you would be happier in a religious and secular political system that says the one with the politcal will and heaviest armament is the one who determines right and wrong.

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  7. Friends of the Court will end up blowing it for TEC. Example: Can anyone in the Seventh Day Adventist and Presbyterian Churches really claim that they are a hierarchical Church? It's news to those in the pews. They elect their own ministers and can fire them by Wednesday night. Even the Methodist bishop (something of a regional pope) has to get consent for appointment of ministers. These "friends" won't pass muster in a secular court. This whole argument will be knocked over with ease and be seen as the distraction that it is. Then back to TEC's claims. The VA. Attorney General will have at it and it's all over. You asked for it...and you will get what you asked for. Sometime around GC '09 would be nice....just at the time that Integrity is hammering the delegates to pass an official SSB rite in the new Prayerbook. The delegates will then see the natural outcome of TEC's Ameri-centric cultural captivity.

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  8. Phil, the problem with your analysis is that you are not taking legal history into account. The so-called Division Statute was enacted before the Fourteenth Amendment's provision that the states cannot violate the Bill of Rights, including the First Amendment. The First Amendment prohibits secular courts from ruling on religious questions. Prior to the Fourteenth Amendment, the understanding was that Congress was completely disabled from ruling on religious subjects, but that the states had plenary power. See Permoli v. First Mun. 44 U.S. 589 (1845).

    When the Supreme Court in Wolf v. Jones, 443 U.S. 595 (1879), addressed this very issue of how to enforce property rights in the context of a schism, they created the neutral principles approach, and found that a denomination could preserve its right to property by a canon creating a trust in the diocese and denomination. TEC followed that advice in enacting the Dennis Canon.

    Is the Division Statute constitutional? Frankly, I doubt it. By limiting the forms of polity a church may take, it ssems to me to fall afoul of the Fourteenth Amendment's claer terms, and the jurisprudence interpreting it.

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  9. BTW:

    No mention of conveniently omitted facts: that the "faithful Episcopalians" were at one time those now villified as dissenters and schismatics. So long as these HUNDREDS in Virginia paid the bills, bought into the compromising, and made the bottom line look good, they were acceptable. Since they got a sour taste from eating fake revisionist manna they became nothing to this Church. Just how many ARE the number of "faithful Episcopalians" wanting their buildings back? How can you serve 50 people in a building meant for 500? This is a mess served up by people claiming to be in apostolic succession, but who are really false shepherds who scattered the sheep. I say let TEC have the dead buildings and the massive debts that go with the mess of its own making.

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  10. Virginia Gal27/5/08 5:11 PM

    Based on some of the comments here, you would think that the Diocese of Virginia was located in a liberal hotbed of political and religious thought, or that most Episcopal parishes wanted to leave the diocese, or that TEC is the most liberal option for Christian worship in Fairfax County.

    I don't know of a continuously functioning CofE-to-TEC church in the diocese that voted to leave - and actually, there aren't very many of them. The Virginia General Assembly passed a number of post-Revolutionary statues that made it extremely difficult for TEC to re-group and rebuild after breaking with Canterbury and the Crown. If I am mistaken, I would be interested to know the exception(s). Therefore, I am convinced that the Diocese of Virginia represents the majority of Episcopalians (and therefore, Anglicans) in its jurisdiction, and carries on the faith of the Founding Fathers of the U.S. and the Commonwealth.

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  11. I found this statement interesting:

    It is important that we remember that at the center of this dispute are our faithful sister and brother Episcopalians who wish simply to return to their church homes and worship there as Episcopalians. Please pray for all affected by this dispute.

    When will they tell these "faithful Episcopalians" the truth: that it will not be possible to maintain their church homes with only a fragment of the congregation left, and necessary to sell them in the end? Why the pretense of saying this is about these "faithful Episcopalians"?

    Also, when exactly did the "schismatics", who, from their perspective, are also being faithful, cease to be our brothers and sisters?

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  12. If I were one of the attorneys I would be looking at the Diocese of California very closely.
    If canons are the supreme law of the church, as is being litigated in Virginia, then why can an entire diocese, Los Angeles, simply ignore the canon that says marriage is between one man and one woman.
    Bp. Bruno, who ironically is suing to retain the properties of four churches in his jurisdiction based on the supremacy of canons, is now winking at that one.
    Any lawyer should be able to drive a truck over the subjectivity of the enforcement of relevant canons.

    Jim of Michigan

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  13. Actually, yes, the PCUSA has a heirarchy and a central form of government. It is all there in the Book of Order. It may be "news in teh pews" but it's all there and has been the polity for the PCUSA for it's entire history as well as the previous Denominations. That the hierarchy is a series of "councils" or "committees" is beside the point.

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  14. Canards, canards, canards, and more canards! :-0

    * Integrity is hammering the delegates to pass an official SSB rite in the new Prayerbook.

    No. Integrity---among many other groups---will merely be passionately advocating for gender-neutral language in the one marriage rite in the BCP. I'm sure in the lurid imagination of reasserters, you could come up w/ some Roman Orgy-type "official SSB rite". That ain't our interest, however. We just want our (boring!) families protected by the state, and blessed by the (our) church: is that so much to ask?

    * When will they tell these "faithful Episcopalians" the truth: that it will not be possible to maintain their church homes with only a fragment of the congregation left, and necessary to sell them in the end?

    What makes you think that our (so-called!) "fragment of the congregation" is going to stay the same size? (Or "die out", to use the fantasy language of reasserters). We're not content to grow into these building we Episcopalians built---we're going to OUTGROW them! :-D

    * If canons are the supreme law of the church, as is being litigated in Virginia, then why can an entire diocese, Los Angeles, simply ignore the canon that says marriage is between one man and one woman.

    For the same reason, that breaking the law that said "Blacks must ride in the back of the bus", is NOT the same as declaring (w/ can{n}on fire!) "South Carolina is no longer part of the United States."

    One is about the (re-)order within the body. The other is about taking a member OUT of the body. Qualitative difference!

    * Friends of the Court will end up blowing it for TEC. Example: Can anyone in the Seventh Day Adventist and Presbyterian Churches really claim that they are a hierarchical Church?

    The "Friends of the Court" AREN'T fighting for TEC's polity. They're fighting for their own. Court-orders to turn TEC into a congregational church, could just as easily become court-orders to turn Presbyterians into an episcopacy! (etc. etc. etc.) It isn't any of the state's business, how religious groups order themselves. Only that valid title-holders ("the Diocese of Virginia, as recognized by the General Convention of TEC") don't have their property stolen!

    Enough of the canards already! >:-/

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