Hard cases make bad law

Dale Rye reflects on the recent ruling by Judge Randy Bellows that the Commonwealth of Virginia’s statute commonly called 57-9 applies in the dispute between the Anglican District of Virginia and the Episcopal Diocese of Virginia. He says it is a perfect example of why “hard cases make bad law” and that, if the ruling stands, it would be a disaster for every church and religious society in the state and maybe beyond.

These findings illustrate why this opinion portends a disaster for all religious groups in America. The congregations (as collective bodies, as distinct from their individual members) can only invoke 57-9(A) to leave TEC and join ADV with their property if a division has already occurred. Yet the court finds that their departure can itself constitute the division that makes departure possible.

The statute has no application outside Virginia, yet the court regarded it as proven that dozens of congregations had left TEC in those states as well. In other words, the court necessarily found that Episcopal parishes as collective entities, quite apart from 57-9(A), have the right to change their church affiliation (at least from one “branch” to another) by majority congregational vote and that a number of Virginia and non-Virginia parishes have done just that.

The court expressly concludes that 57-9(A) “appears to reflect a determination by the Virginia legislature to protect the voting rights of any local congregation which is subject to a hierarchical church’s constitution or canons.” In so many words, the power of a congregation to determine its fate by majority vote is a right that the government will defend against any contrary rule adopted by a higher judicatory such as a diocese, presbytery, annual conference, or denomination. Indeed, it will protect the rights of all members over 18 to vote; the church cannot limit the franchise to confirmed communicants in good standing, for example. Any parish has the right to secede any time a majority votes to do so. The mere fact that there are enough dissatisfied members to form their own organization constitutes a division that triggers voting rights under 57-9(A).

What authority does a secular legislature or judge have to adopt that rule? This “right” is recognized by only a tiny minority of Christians worldwide; it has been rejected by, among others, the Roman Catholics, Eastern Orthodox, Oriental Orthodox, Lutherans, Anglicans, Reformed/Presbyterians, and Wesleyan/Methodists. Their theological convictions about the priority of the universal church required that rejection. Only the churches derived from the German Anabaptist or English Separatist traditions provide for congregational independence… because their theological convictions about the priority of the local church require it. Again, what is the authority of the state to recognize that minority theology as normative and the majority theology as a violation of inalienable rights?

Episcopalians in Virginia and elsewhere have operated since at least 1790 (and arguably since the first century AD) under a significantly different rule, namely that parishes are not independent entities. They are, rather, the dependent parts of a larger entity subject to oversight by a bishop and synodical government, just as dioceses are not independent entities but part of a larger unity. The very name of The Episcopal Church attests to a dramatically different structure than the congregationalist pattern the judge sees as a right, as do the names of the Presbyterian and Roman Catholic Churches and the former Methodist Connection.

To reiterate, those various patterns of governance were not adopted arbitrarily or for purely practical reasons, but because the churches involved had a particular theology of the church (based on their reading of the Word and Command of God) that was felt to require that particular structure rather than another. Anglicans, for example, rank the Historic Episcopate right up with the Bible, creeds, and major sacraments as mandatory features of any church they recognize as fully reflecting the One Holy Catholic and Apostolic Church.


For the judge to impose a radically different authority structure ultimately derived from a Congregationalist and Baptist reading of the Bible is (1) to establish a specific religious practice as state-sanctioned in preference to the one chosen by the believers themselves, and (2) to restrict those who conscientiously oppose the state-sanctioned practice from freely exercising their religious convictions. Members of the congregational minorities (who belong to the national or diocesan majority) are subject to being ejected from their parishes due to the substitution of a government rule (enforced by a judge) for the theological rule adopted by their church.

Does that not sound like precisely what the First Amendment religion clauses were designed to prevent? If a judge can impose a particular ecclesiology, what is to keep him from imposing other theological standards? For example, what is to keep a judge or legislature concerned with alcohol abuse from ordering Roman Catholics to either start using grape juice or stop celebrating the Mass? It’s good enough for the Baptists, and the Mormons use water, so why not everyone? Sacramental theology is no more central to Christian belief than ecclesiology. If the state can impose one-person-one-vote democracy on churches that believe the Bible imposes a different leadership structure, what is to stop it from imposing Equal Employment Opportunity standards on churches that believe the Bible imposes an all-male (or all-heterosexual) priesthood? The theology of ministry is no more central to Christian belief than the theology of the church. Can the government constitutionally do any of these things?

Rye concludes:

Given the general climate in society, I think the answer is going to be “Yes, the Commonwealth of Virginia and the other states have the power to determine that congregational self-determination is a good thing as a matter of religiously-neutral public policy (who thinks democracy is a bad thing?), and the states are therefore free to require all church organizations to comply with that principle.” That will open up the churches to still more state interference in pursuit of other public policy positions that the churches oppose out of religious conviction.

The obvious overreaching by TEC in scuttling the Diocese of Virginia’s efforts at settling the dispute without litigation (and their denial that any division is in progress) has created a “hard case” likely to inspire “bad law.” The arguments of ADV that any serious dispute can trigger a binding congregational vote are likely to create precedents making the operation of a hierarchical church almost impossible. We (and our children) may be dealing with the consequences of this for the rest of our lives. Stay tuned for the next chapter in late May.

See Covenant Communion: The Hard Case Making Bad Law

See previous Cafe coverage here. The second phase of the trial is set for October 6-30, 2008

Hat tip to Thinking Anglicans.

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