June 27, 2008
By Mary Frances Schjonberg

A Fairfax, Virginia, judge ruled June 27 that his application of the state's so-called "Division Statute" (Section 57-9(A)) is constitutional.

The Episcopal Church and the Diocese of Virginia had argued during a May 28 hearing that that portion of the Code of Virginia, which the court had earlier ruled can be used to determine property rights when some church congregations choose to leave their denominations, is unconstitutional.

The case involves members of a number of congregations of the Virginia diocese who have left the Episcopal Church to form congregations of the Convocation of Anglicans in North America (CANA) and who have filed claims to property of parishes of the Virginia diocese under the law, which is triggered when there is a so-called "division" of a church or religious society.

Judge Randy I. Bellows had previously allowed the CANA congregations to file their claims to parish property under the statute. He had agreed to hear the constitutional claims at the May 28 hearing.

Although there is a further trial before Bellows set for October 2008, it has not yet been determined what issues related to property rights remain for decision that will require evidence to be presented to the court at that time.

Bellows issued two letter opinions June 27 based on the May 28 hearing and subsequent briefs filed by parties to the dispute. Copies are available here by scrolling to the end of the page of links.

The court's ruling is "regrettable and reaches beyond the Episcopal Church to all hierarchical churches in the Commonwealth," the diocese said in a statement emailed to reporters.

"We continue to believe that this Division Statute is clearly at odds with and uniquely hostile to religious freedom, the First Amendment and prior U.S. and Virginia Supreme Court rulings," the statement continued. "We are unwavering in these beliefs and will explore fully every option available to restore constitutional and legal protections for all churches in Virginia.

"The Diocese remains steadfast in its commitment to current and future generations of loyal Episcopalians and will continue to pursue every legal option available to ensure that they will be able to worship in the churches their Episcopal ancestors built."

A representative of the Presiding Bishop's Office told ENS that "the statement by the Diocese of Virginia in response to today's court decision carefully and appropriately reflects the position of the Diocese and the Episcopal Church who are partners in this judicial effort to secure and protect the interests of our parishes and those members who have remained devoted to the mission of the Episcopal Church. We shall continue our efforts to carry out our fiduciary responsibilities through all appropriate means."

In a 49-page letter opinion, Bellows concluded that Section 57-9(A) as applied does not violate:

• the free exercise or establishment clauses of the First Amendment of the U.S. Constitution ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …"),

• the equal protection clause found in section one the Fourteenth Amendment ("… nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."), or

• the takings clause of the Fifth Amendment ("…nor shall private property be taken for public use, without just compensation.").

He reserved ruling at a later date on the question of whether the law violates the Contracts Clause ("No State shall … pass … any Law impairing the Obligation of Contracts …") found in Article I, section 10, clause 1 of the U.S. Constitution.

Bellows said that the Code of Virginia allowed for "alternative forms of church property ownership" that "would place such property beyond the reach of 57-9(A)" but that the diocese "availed itself of this alternative ownership in some cases but chose not to do so in others (and not in the instant cases)." Such a decision, he said, "does not turn a constitutional statute into an unconstitutional one."

The judge also said that the law is not unconstitutional because it requires the court to make factual findings in a matter involving religious organizations. He said, "[T]here is a difference – a constitutionally significant difference – between a finding involving a religious organization and a religious finding," adding that his findings are "secular in nature."

Bellows also issued a 14-page letter opinion on five questions related to the statute on which he had asked the parties to submit briefs. The questions involved definitions of phrases in the statute and the application of a specific prior Virginia State Supreme Court decision.

Representatives of 16 other denominations and judicatories support the stance taken by the Episcopal Church and the Diocese of Virginia.

Episcopal News Service
The Rev. Mary Frances Schjonberg is Episcopal Life Media correspondent for Episcopal Church governance, structure, and trends, as well as news of the dioceses of Province II . She is based in Neptune, New Jersey, and New York City.