Virginia lawyer likes diocese’s chances

A tip of the hat to John B. Chilton, keeper of the New Virginia Church Man blog for pointing out an exchange in the Richmond Times-Dispatch on the upcoming legal battle for control of the secessionist churches in the Diocese of Virginia.

In the lead-off piece, Jim Oakes, senior warden of Truro makes no real attempt to justify the parishes’ claims that they have a right to leave and take their properties, preferring instead to recount Truro’s understanding of the Episcopal Church’s sins.

The second piece is different. William Etherington, a Virginia lawyer with actual knowledge about the sort of litigation that may soon commence writes:

“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, which provides, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . . .” The second of these clauses, the Free Exercise Clause, effectively prohibits the government and its agencies – i.e., its courts – from interfering with the internal operations and decisions of a hierarchical church. It also calls into question the constitutionality of the trustee ownership scheme of Title 57 of the Virginia Code.

The fountainhead of the Doctrine of Church Autonomy is Watson v. Jones, decided by the U.S. Supreme Court in 1871. Watson established that property disputes within hierarchical churches should be decided not by testing which faction departed from traditional doctrine but by a rule of deference: Whenever questions of discipline, or faith, or ecclesiastical rule, custom, or law have been decided by the highest of these churches’ judicatories to which the matter has been carried, the civil courts must accept such decisions as final and binding on them. More important, Watson recognized that the dispute there 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. Watson reasoned that because civil courts are “incompetent judges of matters of faith, discipline, and doctrine,” they ought to decline jurisdiction over such cases.

This is akin to the situation faced by the secessionist parishes. They seek to leave the Episcopal Church and its Diocese of Virginia to realign themselves with a diocese or archdiocese of another member of the greater Anglican Communion. This is a dispute that goes beyond property; it is one involving fundamental governance and matters of faith and doctrine. If civil courts decline to assume jurisdiction over this dispute (whether characterized as a property dispute or otherwise), the decision will then be left to the judicatories of the Episcopal Church, and the dispute will be resolved in favor of the diocese, which decision could then be enforced by the civil courts.

However, should the courts take jurisdiction, applying a neutral principles analysis, the result likely will be the same, since the secessionist parishes had, until December, accepted the canons and rules of the diocese and the Episcopal Church that are clear: Property is held for the benefit of the diocese and church, from which secessionist parishes cannot now unilaterally opt out. Their rejection of the canons of the diocese and church can be but prospective, not retroactive.”

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