Day in court arrives

A long-awaited court date has arrived in Virginia. The Diocese of Virginia and the Episcopal Church go to court to prevent the eleven congregations that comprise the Anglican District of Virginia, a part of the Nigerian-based Convocation of Anglicans in North America, from retaining Episcopal Church property when members of these congregations voted to depart the Episcopal Church and come under the jurisdiction of another Anglican province namely the Church of Nigeria (Anglican).

The Philadelphia Inquirer reports

Lawyers for Virginia’s Episcopal Church and about a dozen splinter congregations will wrangle in court Tuesday over a key legal issue at the core of which side ultimately gains control of tens of millions of dollars worth of disputed property.

This week’s trial, which will weigh both sides’ interpretation of religious property rights statutes in Virginia code, represents a major step in a legal dispute that could last well into next year.

It began last December and January when 11 conservative Virginia Episcopal churches voted to split from the Diocese of Virginia. The break, which culminated decades of ideological disagreement, came after the consecration of a gay bishop in New England four years ago.

The dissident churches — which include the Truro in Fairfax and The Falls Church in Falls Church – joined an Anglican sect affiliated with a conservative African archbishop.

The diocese sought soon afterward to reclaim eight properties held by the dissident churches in Fairfax County Circuit Court.

The Washington Times reports:

The case is informally referred to as “57-9” in many documents because the coming hearing is based on Virginia Code Section 57-9. This says when a diocese or a denomination experiences a “division,” members of a congregation may determine by majority vote which side of the division to join, along with their property.

“This case is literally historic, because it’s based on a statute enacted by the Virginia legislature during the Civil War,” said Mary McReynolds, one of 24 lawyers involved on CANA’s side of the dispute. “The Virginia division statute is unusual, and my understanding is there are not many situations in the country that allow this.”

Thus, many of the documents filed by the breakaway churches talk of 1860s splits among Baptists and Presbyterians over slavery and secession, including an 1867 article in the New York Times.

The “Multi-Circuit Episcopal Church Litigation,” as the case is formally called, is a consolidation of 22 separate court cases. The trial is scheduled to last six days, and has amassed 15 feet of filings, stored in kelly-green cases in the records room two floors below the fifth floor of the courthouse, and is expected to feature a number of star witnesses.

Back in January, after the first congregations voted to secede and retain the buildings they occupied, Virginia attorney William Etherington wrote in the Richmond Times that

In the Colonial era, the Church of England was the established church of the Virginia Colony. The disestablishment of the church followed the Revolution, and the new commonwealth asserted that the properties were properties of Virginia. The properties were subsequently conveyed to trustees – under the predecessor of current Virginia Code Title 57 – who held the properties for the use of the parishes and for the benefit of the newly constituted Diocese of Virginia and the Episcopal Church, which is now the rule of Canon I.7.4; the trustees are fiduciaries for the diocese and the Episcopal Church.

Recent stories have characterized the current dispute as one of property ownership. In reality, the property questions are but an adjunct to a larger question that relates to church governance. Litigation probably will result favorably for the diocese, most likely not by affirmative decision, but rather by a civil court’s refusal to accept subject matter jurisdiction over the dispute. Historically, civil courts have deferred to ecclesiastical authorities when disputes arose within hierarchical churches.


The Virginia Supreme Court – in its 1985 decision in Reid v. Gholson, reaffirmed in Cha v. Korean Presbyterian Church of Washington in 2001 – acknowledged the hierarchical-congregational distinction, holding that hierarchical churches are guided by a body of internally developed canon or ecclesiastical law. The decisions of such churches under their internal laws may be promulgated as matters of faith and considered entirely independent of civil authority. Persons who become members of such churches accept their internal rules and decisions of their tribunals.

For that reason, the court held that civil courts must treat a decision of a governing body or internal tribunal of a hierarchical church as an ecclesiastical determination constitutionally immune from judicial review. This is the Doctrine of Church Autonomy, derived from the First Amendment to the U.S. Constitution. … [The U.S. Supreme Court in 1871] recognized that the dispute … at issue – although sounding like a property dispute – was really about which group would select pastoral leaders to inculcate the faith among parishioners. Essentially, it was a request for a civil court to side with one theological faction over another.

The Times report says that the diocese of Virginia and the Episcopal Church “have filed 67 documents undergirding their case and are calling in 19 witnesses. They include Virginia Bishop Peter J. Lee; Canon Samuel Van Culin, former secretary-general to the Anglican Consultative Council in London for 11 years, now working at the Washington Cathedral; church historian Robert Bruce Mullin; seminary professors Ian Douglas and the Rev. Katherine Grieb; and David Beers, chancellor to the Episcopal Church.”

And in response the ADV has “filed 174 documents and the names of 17 witnesses. They include Penn State professor Philip Jenkins, a scholar of Pentecostal Christianity and other emerging religious movements in what’s known as the ‘Global South,’ a term he coined.”

A complete outline of the legal dispute to date, including the initial filings by the CANA congregations that sparked the suits are found here.

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