Court Rules for Diocese of Virginia Vs. Breakaway Group on Church Properties

By Nicholas F. Benton
Tuesday, January 10 2012

Tuesday night, the Fairfax Circuit Court issued its ruling in favor of the Diocese of Virginia and the Episcopal Church in litigation seeking to recover Episcopal church property, according to a report from the Diocese of Virginia. "Our goal throughout this litigation has been to return faithful Episcopalians to their church homes and Episcopal properties to the mission of the Church," said the Rt. Rev. Shannon S. Johnston, bishop of Virginia.

The court ruled that the Episcopal Church and the Diocese of Virginia have "a contractual and proprietary interest" in each of the properties subject to the litigation. The court ordered that all property subject to its ruling be turned over to the Diocese. the rest

Ruling-pdf

A.S. Haley: Fairfax Circuit Court Awards Parish Properties to Episcopal Diocese
...The opinion is remarkable for its exhaustive consideration of every possible Virginia statute and previous case (including an unreported one) that could bear on the issues at stake. Along the way, it notably holds that the Dennis Canon (and its local diocesan equivalent) were ineffective per se to create a trust interest in favor of the diocese or national Church. But the bulk of the opinion appears (on a very quick first read) to be devoted to arriving at the same result (i.e., as if the Dennis Canon and its local equivalent had established a trust) by other means. It reaches its conclusion in favor of ECUSA and its diocese by drawing upon a minutely detailed analysis of the course of conduct between the parishes in question and the former entities over more than a hundred years (and in the case of Falls Church and a few others, for many more years than that -- but in the case of the Church of the Epiphany, on a course of conduct extending for just the first twenty of the last twenty-four years).

In doing so, however, the court ends up equating what it terms a "proprietary and contractual interest" of the diocese in individual parish property to the functional legal equivalent of an express or implied trust in favor of the diocese (and the national Church). And since it recognizes that Virginia law does not allow express or implied trusts in favor of denominations, the marvel is that Judge Bellows can still conclude, by drawing heavily upon his interpretation of a Virginia statute (§ 57-16.1), that the parishes effectively controlled their own properties only for so long as they remained constituent member of the Episcopal Church (USA) -- which is exactly what the Dennis Canon states, in haec verba.

The result is a carefully-crafted holding that appears (at first blush, at any rate) to be insulated against any federal constitutional grounds for overturning it -- unless it can be argued that the "proprietary and contractual interest" which the court found to be decisive is simply the inherent byproduct of being affiliated with what the Virginia Supreme Court already deemed (without any distinctions) to be a "hierarchical church." If that is the net effect of this decision, one has to wonder whether or not Judge Bellows has given the Episcopal Church (USA) an unassailable preference by the back door, and so thereby "established" it as a specially preferred type of church for purposes of resolving property disputes, in violation of the First Amendment.

It will take some time to analyze the opinion more carefully, because Judge Bellows is nothing if not painstaking and thorough. I also have to prepare for a court proceeding of my own tomorrow, and so it may be a day or two before I can publish a full assessment and analysis. Baby Blue has more background and first-person reportage at this post.

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Added:
 Washington Post: Va. judge rules against conservative churches in property case
A Virginia judge has ruled against seven conservative congregations that broke away from the Episcopal Church in 2006. The decision rejected the congregations’ arguments that tens of millions of dollars of historic real estate should be theirs because their members stayed true to the Bible...