Virginia State Attorney General intervenes in property dispute

Updated

From the Anglican District of Virginia (CANA) comes the news that the state Attorney General has filed a motion to intervene in the Episcopal Church property litigation. From the Anglican District’s press release:

Virginia Attorney General Bob McDonnell has filed a motion to intervene and a brief in the ongoing church property litigation that is being heard by Fairfax County Circuit Court Judge Randy Bellows involving eleven congregations that separated from the Episcopal Church in 2006 and 2007 and joined the Anglican District of Virginia (ADV). In his brief, Attorney General McDonnell defended the constitutionality of the Virginia Division Statute (Virginia Code § 57-9), thereby validating the position of the ADV churches and making it clear that there is no constitutional problem with applying the Statute in exactly the way ADV attorneys have advocated.

As stated in the Attorney General’s motion to intervene, “As a matter of federal constitutional law, the Episcopal Church is simply wrong. The Constitution does not require that local church property disputes be resolved by deferring to national and regional church leaders.”

The Secretary of the Diocese of Virginia, Patrick Getlein, provided this official response: “The Judge has asked us to respond to him with our position on the motion next Thursday and we will do that.”

The attorney general’s two filings are available here and here. (The Diocese of Virginia maintains the files related to property dispute here.)

Bob McDonnell is a Republican and served in the state senate before being elected Attorney General; he plans to run for governor in the next election. Examination of the document properties of the two filings reveals they are authored by William E. Thro who is state Solicitor General and a Republican lawyer.

The second in command to McDonnell is Chief Deputy Attorney General Bill Mims a former state senator who stepped down to accept the appointment from McConnell. During his tenure as state senator Mims introduced a bill in 2005 (SB1305) to have sections of the Virginia Code (including 57-9) amended. He eventually pulled the bill in the face of intense opposition. Mims is (or was) a member of Church of the Holy Spirit, Ashburn. That’s not one of the 11 that are in court, but it was one of the early departed congregations.

In an editorial at the time the Washington Post suggests these interventions are exactly what separation of church and state is all about:

You might expect that in its short legislative session the Virginia General Assembly would have more important business than intervening in internal arguments within the Episcopal Church over gay rights. But a bill pending in the state Senate would make it far easier for Episcopal congregations upset at the church’s consecration of a gay bishop in New Hampshire to bolt from the national church yet keep their buildings and property. The bill, championed by Sen. William C. Mims (R-Loudoun), responds to a real problem: Mr. Mims argues persuasively that Virginia law on the subject is archaic. But his bill would make matters worse, not better. It should be voted down.

While some Episcopal congregations are angry about the church’s toleration of gay clergy, they have not, by and large, left the church. One reason may be that their property is, while purchased with local money, held in trust for the national church. So if they leave, they leave their church behind physically as well as spiritually. Mr. Mims’s bill would change that. It would give a congregation’s property to the local congregation when it secedes from a church unless the property is specifically deeded to the national church or — under an amendment he is proposing — unless a trust agreement explicitly designates the national church as having its use. The bill is not explicitly directed at the Episcopalians, but it seems to respond directly to their current fight. And its result would be that conservative Virginia congregations could leave the Episcopal Church without becoming homeless.

The bill was criticized not just by the Washington Post. See this roundup from Daily Episcopalian Classic, this one at Thinking Anglicans, and this one by Episcopal News Service.

Saturday morning update

Washington Post

“Certainly there is nothing improper about the attorney general weighing in, but it does strike me as a little out of the ordinary for them to get involved in a circuit-court-level case,” said N. Thomas Connally, a McLean lawyer who specializes in real estate.

McDonnell’s office has another connection to this issue — his deputy, former state senator William C. Mims (R), who has been a member of another Episcopal church that broke away from the national church over the same issues of how to understand Scripture as it pertains to homosexuality. Mims prompted controversy and much debate in 2005 when he — as a senator — proposed a bill that would have explicitly allowed congregants who leave their denominations to keep their land. The measure failed, and opponents said it was an inappropriate insertion of government into church affairs.

Mims did not return a message, and [McDonnell spokesman J. Tucker] Martin said he was unavailable for comment.

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