December 19, 2008
By Mary Frances Schjonberg

The Episcopal Diocese of Virginia and the Episcopal Church both said December 19 that they will appeal to the Supreme Court of Virginia to reverse some of a Fairfax County Court judge's rulings in a series of church property lawsuits.

Judge Randy I. Bellows issued a letter opinion December 19 resolving the last eight issues raised in litigation involving nine Episcopal parishes of the Diocese of Virginia from which the majority of members and clergy left to form congregations of the Convocation of Anglicans in North America (CANA).

Both the diocese and the Episcopal Church had previously said that once Bellows issued his opinion on those matters they would ask the higher court to review his decisions in the entire case.

The case originally involved members of 11 congregations of the Virginia diocese who left the Episcopal Church to form CANA congregations and then filed claims to property of parishes of the Virginia diocese under the state's "Division Statute" (Section 57-9(A)), which is triggered when there is a so-called "division" of a church or religious society.

Bellows had previously ruled that the state statute applied to the case and overrode the Episcopal Church's and diocese's claims to the property. He also rejected the contention of the diocese and the Episcopal Church that his application of the law was unconstitutional.

Virginia and the Episcopal Church have opposed the congregations' claims and asked the courts to declare that the property must be held and used for the mission of the Episcopal Church and the diocese.

The diocese and the Episcopal Church in September reached a legal settlement with two of the congregations, Potomac Falls Church in Potomac Falls and Christ the Redeemer Church in Chantilly, neither of which held any real property.

According to a statement from the office of Presiding Bishop Katharine Jefferts Schori, "We are not surprised – or discouraged – by the adverse aspects of today's decision. As we have stated previously, we shall now seek review of this case by the Supreme Court of Virginia and are optimistic that that court will reverse the trial court's interpretation and application of the Virginia statute and reaffirm Virginia's historic commitment to religious freedom."

"In the meantime, the decisions in this case have no relevance for the property litigation brought by dioceses with the support of the Episcopal Church before courts in other states, which, we are pleased to say, have consistently ruled in favor of our positions."

The Diocese of Virginia said in a December 19 statement that "despite the positive aspect of this ruling, the diocese believes that serious constitutional issues remain."

Virginia Bishop Peter Lee said in the statement that the diocese "continue[s] to believe the Division Statute is a violation of the United States and Virginia constitutions because it intrudes into the freedom of the Episcopal Church and other hierarchical churches to organize and govern themselves."

"Within the Episcopal Church, we may have theological disagreements, but those disagreements are ours to resolve according to the rules of our own governance," Lee said.

Bishop Coadjutor Shannon S. Johnston, who is due to succeed Lee, said in the statement that diocese is "confident in our position that this law cannot stand constitutional scrutiny."

"Together, we will explore every option to ensure that faithful Episcopalians in Virginia are guaranteed the right to worship as they please, without interference from the state," he said.

The diocese also announced that University of Virginia School of Law Professor A.E. Dick Howard has joined the diocesan legal team to assist in the appeal. Howard is a constitutional scholar and was the executive director of Virginia's Commission on Constitutional Revision, which revised the state constitution.

Jim Oakes, the vice president of Anglican District of Virginia, to which the CANA congregations belong, said in a statement that "we hope that the Episcopal Church and the Diocese of Virginia will realize that it is time to stop this legal battle."

"In these economic times, we should be focused on helping our communities and spreading the Gospel, not spending millions of dollars on ongoing legal battles," Oakes said. "The money we have been forced to spend to keep our property from being forcibly taken away from us is money that could have been spent in more productive ways."

Bellows' December 19 opinion covered eight questions and concluded that some specific disputed property is not subject to petitions filed by the congregations in an effort to claim the property under the Division Statute while other property is subject to similar petitions. The eight questions included whether the congregations in which the departing members are located actually own the specific items of real and personal property that they are attempting to take under the statute, whether deed restrictions in some cases require the property to remain with entities affiliated with the Episcopal Church, and, in one instance, whether a last-minute transfer of property was valid.

In one of the issues that Bellows considered in his letter opinion, the judge said that the endowment fund of The Falls Church (Episcopal) was not subject to the congregational vote in which the departing members chose to leave or in the subsequent legal action taken by the CANA congregations.

"We call on the CANA congregation occupying The Falls Church property to drop their claim on the endowment fund, and thus allow The Falls Church Episcopal to use the endowment for desperately needed outreach in the Falls Church area, in line with the original purpose of the fund," Lee said.

The Fairfax County Court letter opinion is available at http://www.thediocese.net/News_services/property.shtml, by clicking the last link on the bottom of the page. This Diocese of Virginia webpage includes all of the previous filings and rulings and in the case.

Episcopal News Service
The Rev. Mary Frances Schjonberg is Episcopal Life Media correspondent for Episcopal Church governance, structure, and trends.