Posted on 04/04/2008 6:48:45 AM PDT by rabscuttle385
A judge in Fairfax County Court has ruled in favor of a group of 11 churches, all members of the Anglican District of Virginia (ADV) who want to keep their properties. Last year they broke free from The Episcopal Church and the Diocese of Virginia and came under the Convocation of Anglicans in North America (CANA), the Nigerian branch of the Anglican Communion established in the United States.
Judge Randy I. Bellows citing the Virginia Division Statute (Virginia Code § 57-9) said the churches could keep their property at least for the moment though the Episcopal Church is expected to issue a challenge to the court's decision.
"We are pleased with this initial victory today. We have maintained all along that The Episcopal Church and Diocese of Virginia had no legal right to our property because the Virginia Division Statute says that the majority of the church is entitled to its property when there is a division within the denomination. Our churches' own trustees hold title for the benefit of the congregations," said Jim Oakes, vice-chairman of ADV.
"We urge our friends in the Diocese of Virginia and The Episcopal Church to respect the court's ruling and join with us to begin a process of healing. These are also the wishes of the worldwide Anglican Communion, as prolonging this process - pitting Christian against Christian in court - does nothing to save one soul, strengthen one family, or help one person in need. Let us choose healing over litigation and peaceful co-existence over lawsuits, and let us devote all our resources to serving Christ and helping others around the world."
"We emphasize that we do not harbor any ill will towards anyone. In particular, we know there are many faithful Christians still in The Episcopal Church. We continue to pray for them and will continue to work together in as many ways as possible and cooperating in ministry projects like the Lamb Center," said Oakes.
The Rev. Jeff Cerar, Rector of St. Stephen's in Heathsville, Va., one of the churches being sued, said, "The legal proceedings have been an unfortunate distraction to our churches, but we have not allowed this to interfere with our ministry of sharing the love of Christ and the life-transforming power of the Gospel."
The Rt. Rev. Martyn Minns CANA leader said the Court's ruling in favor of the CANA congregations was a good start. "Judge Bellows accepted our arguments that Virginia State Statute 57-9 applied in our situation, in particular that there has been a division and that we have the right to join a different branch of the Anglican Communion."
"There will be another hearing on the constitutional issues that have been raised and I am sure that there will be a variety of appeals but we are confident of the rightness of the path that we have chosen and grateful to God for his favor," he said.
The Episcopal Church and the Diocese abruptly broke off settlement negotiations in January 2007 and filed lawsuits against the Virginia churches, their ministers and their vestries. The decision of The Episcopal Church and the Diocese to redefine and reinterpret Scripture caused the 11 Anglican churches to sever their ties.
A canon lawyer and church attorney said, on reading the ruling that from a "legal" point of view the Episcopal Church's hold on properties is now tenuous at best.
He said that while the impact is limited to Virginia because the decision is based on a unique Virginia statute, from a public relations view, it is very substantial and holds out hope for other parishes in similar situations. The Episcopal Church repeatedly says that this is a tiny minority and that all is well. Cleary this is not the case and would indicate that TEC is falling apart. The ruling claims there was no division.
The Anglican District of Virginia (www.anglicandistrictofvirginia.org) is an association of 21 Anglican congregations in Virginia. Its members are in full communion with constituent members of the Anglican Communion through its affiliation with the Convocation of Anglicans in North America (CANA), a missionary branch of the Church of Nigeria and other Anglican Archbishops.
Episcopal parishes awarded property, assets [The Washington Times, Apr. 4, 2008]
Anglican ping!
Glad the Episcopals in VA aren’t putting up with the liberal takeover. Here in Michigan, no one seems to make much noise about it. Our family had to leave the Episcopal church after it became rock ‘n’ roll. I went to a Catholic mass with my daughter last month, and it brought back so many good memories of the Episcopal church of my childhood. I had forgotten what a real worship service was like.
The Circuit Court of Fairfax County ruled last night that it was appropriate for the CANA congregations to file their claims under the 57-9 “Division Statute.” In its opinion, the Court explicitly acknowledged that constitutional issues remain and there will be a hearing on those issues on May 28, 2008. At issue is the government’s ability to intrude into the freedom of the Episcopal Church and other churches to organize and govern themselves according to their faith and doctrine. We strongly believe that, while we may have theological disagreements within the Episcopal Church, those disagreements are ours to resolve according to our faith and governance.
The implications of the Court’s ruling reach beyond the Episcopal Church and the property issues before us. The constitutional issues, on which the Court explicitly did not rule, have implications for every church in Virginia.
It is also important to note the Court has not yet ruled on the property issues in this matter. This fall the Court will consider our property claims against those who have left the Episcopal Church and yet continue to occupy Episcopal Church property while loyal Episcopalians are forced to worship elsewhere. That is simply wrong. A trial on those claims is scheduled for October.
We are asking the Court to affirm that the Diocese has sole control over all real and personal property associated with the Church. We proceed with our claims with sadness for those who have sought to leave but with confidence that we are being faithful stewards of what God has given us in these churches.
When the CANA congregations voted to leave the Episcopal Church in protest, they abandoned their Episcopal brothers and sisters of the past, the present and the future. Having denounced the Episcopal Church, the congregations set out to separate themselves from the Diocese of Virginia yet occupy and seek control of Episcopal Church property. The people in the CANA congregations were free to leave, but they cannot take Episcopal property with them.
Church denominations can pass all the internal laws they want, but, like any other organization, they are subject to the law of the land, and their internal laws can be overruled by secular courts.
This ruling is a blow too against any Muslims who seek to impose sharia law anywhere in the United States.
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Well, actually, the secular courts have been quite clear on the matter, and have consistently ruled in favor of the Episcopal Church's ownership interests over those of the local congregations.
Must've been a very good church or at least not your typical modern Mass. It astounds this lifelong Catholic that it didn't make you run screaming in the other direction! ;)
I guess the Episcopal Church of your childhood still used the 28 Prayer Book?
“and yet continue to occupy Episcopal Church property”
An interesting question comes to mind. How many, when they joined the local parish ever heard that every penny they gave as their pledge, tithe or offering, as soon as it clanked on the metal offering plate, belonged to the Diocese and TEC? That every dime of their offering used to pay off the mortgage or debts of the local parish only increased the assets of the Diocese and TEC and not the local parish. How many were told this before they joined the parish or were reminded of this periodically?
Could you refer us to a case either from the State of Virginia or one involving a congregation which existed prior to the Episcopal Church?
i know what you mean... and i've heard others, who had grown up in liturgical churches who have been in non-liturgical churches for years, say the same thing... now that i know what all the symbolism means, i find it very beautiful... and i miss it... last year i took my sons to a Good Friday service at our local Catholic church... the priest gave the best Christian message i had heard in a long time... my sons really liked it... i am considering attending a liturgical church... frankly i am becoming disenchanted with the "corporate-like" churches i've been attending for the last 25 years...
The King’s Chapel case in 1787 where an Episcopal church in Boston became Unitarian and was able to leave with its property.
There you go.
Yes it is the 28 prayer book that I remember from childhood. In terms of the Mass I went to, I suppose I am using the term "real worship service" in a relative rather than absolute sense. It was actually probably more like the typical modern Mass. It was in the chapel at the Catholic high school where my daughter will go next year. However, it incorporated many more elements of traditional worship than the feel-good church we are presently attending until we decide what to do next.
Yes, I am already disenchanted. Our church over the last couple of years has gotten down to singing only one actual hymn per service. The twenty-somethings have taken over the music complete with overhead projector, hand-waving, and inane pop lyrics. My husband put his finger on it one Sunday. The pop Christians songs are designed to make the singer and hand-waver feel good, not to actually worship God. It is more of a self-worship--look how warm and fuzzy I feel!!! My husband was baptized Catholic and it looks like we are headed back in that direction. Although from what I hear, we have to be careful what Catholic church we choose as well.
A cursory search didn't turn up anything specific to Virginia, but I didn't try very hard; however, there is a large body of precedent from Federal and state courts that rule in favor of the church (not just Episcopal) over the local congregation.
The real issue is "existed prior to the Episcopal Church," and whether that fact has precedence over the Dennis Canon (which has been upheld by numerous decisions). They may have a chance there, but I suspect this ruling gets overturned on several criteria, including First Amendment grounds (the heirarchical Church gets to define the rules regarding the control of individual parishes), and on the fact that these parishes have acceded to the rules of the Church for 200 years.
Some of the relevant precedents, which have been key to deciding a variety of Episcopal and other property cases, are available here.
The U.S. Constitution wasn't in force then. Also, there was no formal Episcopal Church until 1789, when (according to wikipedia), "the Episcopal Church was formally separated from the Church of England in 1789 so that clergy would not be required to accept the supremacy of the British monarch."
So I don't think that's a particularly compelling counter to the existing jurisprudence over the past 150 years.
And of course, the Dennis Canon which gave the parishes to the Dioceses came into existence about 30 years ago.
When the national church got into the act I don’ know.
Did the Epsicopal Church pay for the property when it was taken from the Anglican Church? If not, hasn't it got a pretty weak claim?
Until the Dennis canons of 1979, there was no claim of an implied trust of parish properties by the diocese or denomination.
So to answer your question: NONE.
In order to avoid "excessive entanglement" in religion--barred by the U. S. Constitution, state courts have pretty consistently deferred to church denominational governance in legal disputes with congregations.
What makes this case special is Virginia passed a law in the '90s saying that in cases of a denomination-wide split (it can't just be one church or so) ownership of the property goes to who possesses it....the congregation. The judge just ruled here, that yep, it is a denomination-wide split--so the law, IF IT IS CONSTITUTIONAL, should apply.
TEC's 2nd prong is the claim that the Virginia law is unconstitutional....since it entangles the courts so much....(odd, since it is TEC who asked the courts to be entangled in the 1st place).
Did the Epsicopal Church pay for the property when it was taken from the Anglican Church? If not, hasn't it got a pretty weak claim?
Since the Episcopal Church "broke" with the official Church of England organizationally, due to the Revolutionary War, there was never any dispute with the C.of England (which amounted to the English government)over these properties. The issue at hand is that ex-Episcopaleans-now-Anglicans possess and operate the churches, The (liberal & apostate) Episcopal Church does not.
The odd thing, argument-wise is that TEC is still in communion (technically) with all the international churches which sponsor the break-away Anglican denominations. Consistently, if these priests and churches have "broken communion" with TEC, as TEC claims, than TEC must argue that they themselves are no longer in communion with the larger worldwide Anglican Communion.
“Until the Dennis canons of 1979, there was no claim of an implied trust of parish properties by the diocese or denomination.”
How about after the Dennis Canon (1979)? Has anyone ever seen a notice in the local parish that the Diocese or TEC has an interest in all of the property of the local parish?
If I remember correctly that when the UCC was formed many Parishes pulled out of the Union and fought for thirty years to retain their property. It was resolved in 1953 by the Suprimes, there may be president.
Again: the weight of precedent is strongly in favor of the Episcopal dioceses in cases like this. No Episcopal parish -- seceeding or otherwise -- has ever won a case like this. Local courts have often ruled in their favor, but have invariably been overturned by appelate courts relying on decades of precedence.
In particular, the Dennis Canon has been upheld in numerous federal and state court cases on First Amendment and other grounds.
As noted above, the novelty in this case is the "pre-existing parish" aspect. I don't know how a higher court would rule on that ... but I think the subsequent history of the parishes as part of the Episcopal Church will probably sway the court decision toward the Diocese, unless there is an iron-clad statute to the contrary.
Very good news indeed! This could help to move things closer to the tipping point nationally.
There have been many lawsuits, and the Dennis Canon has been upheld by every court in which it's been tested.
my husband and i refer to it as the, "Rah-rah, sisboomba" of worship... it's like going to a pep rally...
What’s interesting about this case is that it deals with a church in Virginia. At the time of the split by the Episcopal Church from the Church of England, a big chunk of the US, west to the Mississippi, was in Virginia.
“There have been many lawsuits, and the Dennis Canon has been upheld by every court in which it’s been tested.”
It has been upheld based on the argument that it was just a codification of the long understood implied trust. What about all the people who have joined since the Canon was adopted at the General Convention. How do they get notice that what they are contributing to is really the Diocese and TEC and not the local parish and the property they are supporting does not belong to the local parish and at any time the bishops could turn the whole affair into a mosque against their wishes?
Right. I regret to say that the Catholic liturgical "reform" had a big impact on the Episcopal Church in creating the new prayer book...79 I guess it was? My sympathies are definitely with the 28 BCP folks!
The twenty-somethings have taken over the music complete with overhead projector, hand-waving, and inane pop lyrics.
Gosh, that is atrocious. I can see how even a regular Mass would be a step up from that. What a shame.
Although from what I hear, we have to be careful what Catholic church we choose as well.
Yes, unfortunately. We drive 45 minutes to a Latin Mass and 30 minutes to a very good Novus Ordo Mass, even though our regular parish is a block away. You may well have to shop around in terms of where you go. There actually is an option that would be perfect for you--the Anglican Use--which are Catholic parishes that have a Mass adapted from the BCP:
http://www.atonementonline.com/orderofmass/Rite1.html
But I don't think it's available in Michigan.
Fortunately, things are looking better from Rome though. I think we are definitely on the upswing in terms of liturgy.
It's not a "people who joined" issue. The property issue has to do with the role of the parish corporation with respect to its role as trustee for the diocese.
There are many rulings that say, essentially, that by joining an organization, the individual implicitly agrees to all of the rules and regulations governing that organization.
“that by joining an organization, the individual implicitly agrees to all of the rules and regulations governing that organization.”
I dare say that not many local parishes or Diocese have the Dennis Canon spelled out so that when “Joe Sixpack” wants to join and see the by-laws, he sees that all the property, including his gifts, belong to the Diocese and TEC. What he will see is a byzantine-like reference to the local vestry being in control of the business and property and then the “non-conflict” clause with the Canons of TEC or Diocese.
In commercial transactions it is what is known as “bait and switch”.
There is a split among the districts of the California Court of appeals, with three of the panels having ruled that trusts, even those created by church organizations, can only be created according to the California Trust Code so that the beneficiary (in this case the diocese) could not create a trust with regard to property which it didn't previously own; that only the owner of property could impress it with a trust.
The Constitution and Canons of the church are readily available -- there's no secret there. In any case, this is a long-settled issue that applies far more broadly than just membership in religious congregations.
The King’s Chapel vs. Pelham case was decided March of 1813. In it the argument was the property was left to minister and vestry of King’s Chapel, an Episcopal church at the time of the bequest. At the time the property was to be turned over the church was Unitarian.
Unless these parishes were left in a will, I doubt that the case applies. Were it otherwise, I'd have to think that it would be much more prominent in the current cases.
From most of the cases I’ve studied, the extent of the hierarchical nature of the Episcopal Church and the nature of the trust have not been strongly attacked. Both sides seem to concede the polity and trust and rely on the statutory title problems.
In our cases we are attacking everything including financial reporting.
“Well, actually, the secular courts have been quite clear on the matter, and have consistently ruled in favor of the Episcopal Church’s ownership interests over those of the local congregations.”
For the vast majority of parishes, the diocese is the legal owner of the property, not the congregation. That is why so few parishes have been successful in “keeping” their properties. In the rare instance that a parish corporation actually has legal title, the courts have consistently ruled in favor of the hierarchy on the grounds that the parish corporation, by being a subsidiary of the larger organization, working with the larger organization, and subjecting itself to the policies and procedures of the larger organization, must adhere to the larger organization’s rules regarding the disposition of property.
In Virginia, because a division has occurred in the larger organization, the parish corporations have the perogative to decide which side to go with.
This case has national implications even though it is a state case. To date, all court cases involving property disputes have been treated by the courts as small subsidiaries trying to separate from a coherent parent organization. This case is being treated as a division of the parent organization in which the subsidiary must decide which side to follow. If successful, parishes with title can go to the courts and say “our parent organization has split and we, a subsidiary with title to the land, have to choose a side.”
Nor can they be: there is a large body of law for various denominations other than the Episcopal Church which sufficiently define the characteristics and power structure of "hierarchical churches." The Presbyterian Church, for example, is "hierarchical," even though it's arguably less hierarchical than the Episcopal Church. IIRC, the Methodists have been ruled "hierarchical" as well, and they're organized at roughly the same level as TEC.
And, I believe that the Episcopal Church itself has been ruled "hierarchical" more than once in various venues. That legal avenue doesn't look to be a very fruitful use of legal fees, in any event.
The thing is, "hierarchical" rulings have apparently always resulted in a victory for the denomination over the individual congregation; for an attempted secessionist congregation to attempt to challenge "hierarchy" for an Episcopal parish would be to court legal disaster.
Specifically, the courts have always deferred (on First Amendment grounds) to the rights of the Hierarchical church to define the manner in which they are organized. Thus, the courts must defer to Constitution and Canons of the Episcopal Church, which explicitly grant to the Bishop the right to dissolve a vestry that does something such as seceeding from the church. Only the legitimate vestry of the parish (so the argument goes) can legally alienate or encumber the property of the parish, and it has been the case for close to 150 years that such alienation and encumbrance must be approved by the Bishop and Standing committee.
By that standard, almost by definition, a secessionist vestry gives up the right to control the property once it secedes.
That's a questionable proposition, actually. The "split" is not acknowledged by both sides -- only (conveniently) by the side that wants to keep the property.
I have to think that the appeals court will rule that it's not proper for a secular court to decide on whether a "split" has actually occurred, as it would require the court to make rulings on matters of church doctrine.
There is a very long series of legal precedents saying that the secular courts must not rule on such matters, on First Amendment grounds.
Not an accurate statement of the law. Start with Jones v. Wolf, 443 U.S. 595 (1979) http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=443&invol=595. First you look to see if the state follows neutral principles of law. If the answer is yes, then you look at the paperwork.
Correct me if I'm wrong, but it's my recollection that r9etb's former congregation was involved in a dispute, and he sided with the Bishop against the local congregation. So he isn't exactly a disinterested party.
No, not "disinterested." But by the same token, I've also closely read the briefs for the case in which my parish is involved -- so perhaps "pretty well informed on the details" might be a more helpful description.
But then, perhaps you're going to paint me as a heretic next....?
I don't know enough about your personal beliefs to so classify you, but I do know that I can safely say that you are in communion with some.
As for the briefs in the Colorado case, I haven't read them and I haven't researched the law of that state. I have, however, spent a chunk of time looking at church property law in other jurisdictions. There have been some recent big wins for congregations in Louisiana and Mississippi. Probably the biggest case out there at the moment is the Tulsa one (Kirk of the Hills).
If you care to give me a link to the Colorado briefs, I may have a chance to glance at them over the weekend.
After a detailed discussion, the court held that:
"St. Mary's articles of incorporation and bylaws, along with relevant provisions in the canons of the general church, demonstrate a unity of purpose on the part of the parish and of the general church reflecting the intent that property held by the parish would be dedicated to and utilized for the advancement of the work of PECUSA. These provisions foreclose the possibility of the withdrawal of property from the parish simply because a majority of the members of the parish decide to end their association with PECUSA.
Courts in other states have found similarly.
Thanks. It appears that both sides agree that Colorado is a ‘neutral principles of law’ state (although the Episcopal church seems to ignore that admission for the bulk of their brief.) So it should just be a matter of looking at the paperwork and applying Colorado real estate and trust law. Anything else said with regard to property ownership is just trying to muddy the water.
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