Episcopal property dispute heads to Virginia Supreme Court

Posted by Kendall Harmon

A long-awaited property- settlement decision in Fairfax Circuit Court apparently will not be the end of a two-year-long conflict between a minority group of conservative congregations in the Episcopal Church that broke away from the church to join the Anglican District of Virginia.

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Posted December 28, 2008 at 6:01 am [Printer Friendly] [Print w/ comments]



1. dwstroudmd+ wrote:

Ah, the MDGs, the true MDGs, of the ECUSA/TEC/GCC/EO-PAC!  More Dollars Gone.  Could have been feeding the hungry and all that lip-service stuff, or using the funds to lobby Congress as actually designed, but noooooooooooo!!!!!!!!!!!!!!  Mor Dollars Gone.  The “new sheriff” hath spoken though having no canonical power to so do nor constitutional basis for her actions.  Heigh-ho, Heigh-ho, it’s off to court we go; whistling whilst we pass the graveyard of mission and caring for the poor in the “new time religion”.

The Virginia Supreme Court will uphold Virginia law.

December 28, 10:18 am | [comment link]
2. Sarah1 wrote:

RE: “A long-awaited property- settlement decision in Fairfax Circuit Court apparently will not be the end of a two-year-long conflict . . . “

No kidding, Sherlock!  ; > )

Should the Virginia Supreme Court uphold its law, TEC will attempt to appeal to the Supremes.  As I’ve said for the past four years, they will never stop pursuing the historic property—it’s all they’ve got for their brand and they recognize that they are in the competitive fight of their lives.

December 28, 11:05 am | [comment link]
3. Cennydd wrote:

I’m no lawyer, of course, so I can’t offer a legal opinion.  It seems to me, however, that the U.S. Supreme Court would be extremely reluctant to agree to hear an appeal from TEC should the Virginia Court rule against them.

December 28, 11:27 am | [comment link]
4. The_Archer_of_the_Forest wrote:

I think the only way the Supreme Court would hear it is if the case was somehow joined in federal court with property cases of this sort in other states. Even then, the Supreme Court is loath to hear cases involving state property law unless it somehow involves a US Constitutional right abridgement.

However, give that the state law is being accused of abridging due process, etc., there is just enough bait on the hook to temp the Supreme Court, but given this case’s ripeness, I doubt they would get involved.

December 28, 11:38 am | [comment link]
5. Brian from T19 wrote:

It seems to me, however, that the U.S. Supreme Court would be extremely reluctant to agree to hear an appeal from TEC should the Virginia Court rule against them.

The argument would have to be made that TEC is a national church so therefore they should be treated the same in all States.  Property is traditionally left to the States to regulate, but the argument can be made.

December 28, 11:39 am | [comment link]
6. Ross wrote:

I’ve argued before that one can make a case that the VA division statute is unconstitutional because it treats religious entities differently than non-religious ones.  I don’t know if that argument is enough for SCOTUS to bite on it, but it seems to me that it’s at least plausible enough to make the attempt.

December 28, 12:25 pm | [comment link]
7. Ad Orientem wrote:

The SCOTUS has been moderately to sharply right of center for the last decade or longer.  It has shown great reluctance to interfere with the prerogatives of the states or to second guess state law.  Given the rightward tilt of the court I think TEC would be well advised to accept whatever decision comes down from the VA Supreme Court.  If the SCOTUS did accept the case they might well use it to apply a ruling that TEC would not like on a national basis.

December 28, 1:27 pm | [comment link]
8. Brian from T19 wrote:

If the SCOTUS did accept the case they might well use it to apply a ruling that TEC would not like on a national basis.

Yes.  But at least we would have resolution and could move on.

December 28, 2:25 pm | [comment link]
9. Pb wrote:

This case involves the interpretation of a state statute and it has no national application. There is no federal issue here.

December 28, 2:40 pm | [comment link]
10. robroy wrote:

Yes.  But at least we would have resolution and could move on.

We could have the same resolution tomorrow. Bp Lee could grow a spine and tell Ms Schori and her high price lawyers to butt out of diocesan business.

December 28, 2:50 pm | [comment link]
11. Brian from T19 wrote:

This case involves the interpretation of a state statute and it has no national application. There is no federal issue here.

Of course there is.  Any US Constitutional Violation.  They could even stretch the Commerce Clause and say that interstate trade is involved due to the national Church.

We could have the same resolution tomorrow. Bp Lee could grow a spine and tell Ms Schori and her high price lawyers to butt out of diocesan business.

Or +Minns could return what he stole.  Same result.

December 28, 3:46 pm | [comment link]
12. Eugene wrote:

Both sides are wrong: If a church leaves a denomination it should leave everything behind.  That said if they take the property and money the denomination should turn the other cheek and let the Lord be the judge.  All this stealing and lawsuits makes the church look like they are in it for power and money.  Very sad.

December 28, 3:49 pm | [comment link]
13. CanaAnglican wrote:

#5. Brian said:  “The argument would have to be made that TEC is a national church so therefore they should be treated the same in all States.”

And in #11:  “Of course there is.  Any US Constitutional Violation.  They could even stretch the Commerce Clause and say that interstate trade is involved due to the national Church.”

Being “national” provides no relief from local laws.  Wal Mart is involved in interstate trade.  However, Wal Mart is constrained to obey all local real estate and business laws in every location where they do business.

The need to follow all applicable Virginia state law was explicitly stated in the deed for St. Stephen’s Church (one of the Virginia Eleven).  The deed was recorded some 20 years after the division statute.  The TEC may have a tough row to hoe to get the US Supreme Court to hear this matter of local real estate laws.

They have a really uphill battle in the VA Supreme Court.  Judge Bellows’s ruling is so thoroughly, carefully, and tightly written that it will serve as a model in future years.  It completely devistates the TEC’s position in Virginia, and the only smart course available to them is to negotiate with ADV and CANA and fight their cases in other states.  This course has been offered by ADV at every turn, to no avail.

So, yes, they can argue anything they please, but their chances for real estate success in VA are slim to none.  —Stan

December 28, 6:29 pm | [comment link]
14. NeAnglo wrote:

Doesn’t this head to US District Court before the US Supreme Court on appeal?

Is Clarence Thomas still a parishioner at Truro?  Given that he is, or was, won’t he have to recuse himself?  That might affect the conservative tilt some may be depending on.

December 28, 6:57 pm | [comment link]
15. Jon wrote:

Can someone remind me whether Judge Bellows decided so thoroughly in the favor of the reasserting parishes that TEC has been required to pay all of their legal fees?

December 28, 7:45 pm | [comment link]
16. Irenaeus wrote:

Some legal clarifications in response to earlier comments:

—- The Virginia Supreme Court has the last word on Virginia law, including the meaning and application of the division statute.

—- ECUSA has raised various federal constitutional claims: e.g., that the division statute violates First Amendment rights to free exercise of religion and free association.

—- If ECUSA loses in the Virginia Supreme Court, it can appeal to the U.S. Supreme Court based on its federal constitutional claims. (The appeal would not go to the lower federal courts.)

—- The U.S. Supreme Court would have broad discretion in deciding whether to take the case (which would require the votes of at least 4 of the 9 justices). The justices may find the legal issues intriguing. On the other hand, the case focuses on a one-of-a-kind state statute. The justices may accordingly conclude that they can better spend their time on cases with broader significance.

December 29, 1:57 am | [comment link]
17. CanaAnglican wrote:

#16.  Irenaeus,

Thanks for the excellent summation of next steps.  I suppose ECUSA will follow these steps to the bitter end.  I think it would be far less sad for them to step back now and be able to put “spin” on some negotiated settlement that the ADV has offered (repeatedly).

It is really interesting to me both that CANA can build such an excellent case on First Amendment rights to free exercise of religion and free association, and that ECUSA seems so totally blind to that fact.  Where are their eyeglasses?  I do not believe The US Supreme Court will hear the case.  That certainly would be in the best interest of both parties. —Stan

December 29, 11:18 am | [comment link]
18. Cennydd wrote:

“I suppose ECUSA will follow these steps to the bitter end.”  Yes, they will, and the “end” will be very bitter for them.  They will have reached the end of the line.

December 29, 2:45 pm | [comment link]
19. chips wrote:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” - US Constitution First Amendment
The Supreme Court Having already ruled that neutral principles can be used by the states in property disputes involving churches - I cannot see how the division statute violates the “free exercise” clause of the First Amendment. Here there are two groups that are trying to exercise a right - much better that the government apply neutral principles.  A church like a corporation could have all the deeds in its name (The Catholic Church does - I am sure Walmart does through some wholly owned subsidiary) -TEC failed to do so. TEC also did not pay for the properties or maintain them.
Brian - you are a lawyer you should know better- this civil property dispute is a fascinating and charged subject but using words like “stole” - even after a court of law has ruled against your viewpoint - is ludicrious - it cheapens the discourse - and I believe it is likely libel.  If TEC can get a single indictment anywhere in the Country then perhaps one could start alleging “theft” - until then it is a civil matter involving interesting issues of 1) real estate law; 2) corporate law; 3) constitutional law; and 4) trust law.  I have yet to see anyone pop open any state’s Penal Code.

December 29, 8:20 pm | [comment link]
20. Irenaeus wrote:

It’s hard to “steal” your own property: under most circumstances, legally impossible.

December 29, 8:53 pm | [comment link]
21. seminarian wrote:

Let’s all remember that the congregations of the ADV and CANA had negotiated a protocol with the Diocese of Virginia that Bishop Lee promptly abandoned in December 2006.  He filed suit against the congregations in January 2007.  This all could have been avoided if Bishop Lee had negotiated as the protocol called for.  Also in regards to the challenges to the First Amendment Constitutional issues, the Free Exercise Clause issues, and the Establishment clause issues raised by TEC, please look at the opinion that Judge bellows opinion on the ADV website regarding the constitutional issues.  He squarely addresses them in multiple ways in Favor of the CANA congregation and I also feel these decisions will be hard to get overturned on appeal.

December 29, 11:16 pm | [comment link]
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