An update on the Virginia property hearing

As we reported on Tuesday,

The Virginia Supreme Court today heard 90 minutes of oral arguments in the property dispute between the Diocese of Virginia and CANA.

I — and about 200 or so others — were present to hear the arguments held before a panel of five justices. The newest justice on the Virginia court, William Mims, recused himself. He had been a member of one of the breakaway churches, and later was in the Attorney General’s office which joined CANA’s side as a friend of the court. Two other justices recused themselves.

It takes a majority to determine a statute unconstitutional — whether that is a majority out of all justices or out of the five I do not know.

A further inquiry has clarified my question. Four justices are required in order to declare a statute unconstitutional. There are 7 justices. Three recused themselves. A senior justice (retired) was added to form the panel of five — Elizabeth B. Lacy. Just by the numbers, getting four out of five justices to agree a statute is unconstitutional appears a tall order.

But as I wrote on Tuesday, although the diocese argues that 57-9 is unconstitutional, but such a ruling is not critical to its case. The second prong of its case is that 57-9 does not apply to the facts of the case: Is there a division in the church? Is CANA a branch of The Episcopal Church?

Courts generally want to avoid ruling a statute unconstitutional, preferring instead to interpret statutes. This court asked both sides many questions about the meaning of division and branch, and fewer on constitutionality. Governance questions were asked as well, and while those certainly pertain to the constitutionality of the statute (it imposes a congregational polity if there is a division), it leaves unstated who determines whether to divide a church and create a branch. Can congregations initiate them? Are they initiated by the mother church?

I’m not a lawyer, but I’ve read that the court is the end of the road in terms of defining the meaning of Virginia statutes. And, as a result, if it agrees with the diocese about the meaning, CANA has no grounds for appeal. If the diocese loses, its grounds of appeal would be the constitutionality of the statute.

As noted on Tuesday, the lawyer for the Attorney General wanted to use his time to defend the constitutionality of the statute. But the court used his rebuttal time to quiz him about the history surrounding the passage of the statute to a handle on its meaning.

A letter appeared in Friday’s Richmond Times Dispatch that gave a history entirely at odds with his explanation. Here’s that letter in full:

I am an Episcopalian, and I understand that a church is more than words, wine, and water — it is also a beloved place. I also understand that letting the state into matters of church doctrine and governance is a very bad idea, and always has been.

But there is such a thing as karma — although you won’t find the term anywhere in the Book of Common Prayer — and what goes around, comes around. The 1867 Virginia law that breakaway Anglicans are now using to support their claims to Episcopal property was enacted after the Civil War to hold off the hordes of victorious Northerners who might come down and somehow force the Diocese of Virginia to admit former slaves as full church members.

The law lay unnoticed for many years, waiting in the dark thickets of history to demonstrate the power of irony. And now it has done just that.

Kenneth Bradford.


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