Judge rules for Virginia 'orthodox'

The Rev Martyn Minns is seen here at the press conference after his church, Truro in Fairfax, voted to affiliate with Nigeria in 2006. I never believed the subsequent statements from both sides that all attempts would be made to avoid legal action. The first important ruling about this and ten other parish secessions has been made, and seems to be on the side of the conservatives. However, before they claim a victory, they should be aware that there are several more legal hurdles to leap over and it seems unlikely in the end that the US courts will intervene in TEC affairs in this way. Also, the relevant statute in Virginia does not exist in other states where similar divisions have happened. So its long-term significance is unclear.

The statute in question, numbers 57-9, states that if there is a division in a church, the church members can decide which branch of their religious society they wish to belong to. It also says that a majority in the congregation 'may decide the right, title and control of all property held in trust for such congregation.'

It is worth looking in a little more detail at what the judge said. There are some useful links on Thinking Anglicans along with a report in the Washington Times, which has a headline that might be a little optimistic for the conservatives at present.

The court decided that a particular statute in Virginia law may be invoked because TEC is a church, because the congregations concerned are 'attached' to the diocese, TEC and the Anglican Communion and because there had been a 'division' in the church to which the CANA congregations were attached. The court found the Anglican Communion to be a 'church' and that the CANA congregations were attached to it. (I'll cite this judgement next time a reader complains when I refer to the Anglican Communion as the Anglican Church!) TEC and the diocese had tried to argue that the Communion was not a church but 'a family of churches' and that the CANA parishes were not attached to it.

It seems bizarre that TEC tried to argue there had been no division, apparently using the term 'division' so narrowly as 'to effectively define the term out of existence,' according to the judgement.

But still, it will not be until a later date that the court decides on the 'validity' of the disaffiliation votes by the CANA congregations. Also, the validity of the arious actions taken by TEC and the diocese in response to the secessions will not be decided until a trial in October this year.

How much is all this costing? How many bishops would this finance to go to Gafcon or Lambeth? Goodness knows. But one aspect of this judgement makes it extremely useful indeed. For anyone seeking to understand the structure of TEC, the Anglican Communion and the chronology of events that have led to the present sorry mess, they need go no further. It also has a long section on the history of ecclesiological fracture in the US with the CANA expert witness Dr Charles Irons himself a PhD who did his dissertation on the conflict over slavery within Virginia's churches.

All this and more spelled out in the judgement, with footnotes, by the excellent Judge Randy Bellows of Fairfax County Circuit Court. Thank you Judge Bellows, pictured here at the sentencing in an earlier case, for providing a sorely needed moment of clarity and for giving us all such a useful contemporary and historical analysis. It may pertain to Virginia, but its relevance is international. However, I wonder if the canon lawyers at St Andrew's House have read this yet. Because if the CANA congregations are still 'attached' to the Anglican Communion as this judge has ruled, shouldn't the Archbishop of Canterbury therefore invite Bishop Martyn Minns to Lambeth? I await their legal opinion with interest.

Comments

[robroy]

The Episcopal church's main argument in this mess was that there was no division despite Katherine Jefferts Schori using this very term a year ago in a public speech. (Now they are very careful not to use the "d" word.) The judge in this case summarily dismissed this head in the sand argument, saying it could not be called "anything but a division of first magnitude." The diocese of Virginia has sold off millions of dollars of property to fund this lawsuit whose main argument has been reduced to rubbish. What a waste.

[Stephen Marsden]

What a waste, to be sure, and all the fault of Mrs Schori. Had she not interfered, Bishop Lee and the parishes would probably have reached an accommodation. 'Shalom' indeed.

PS. Ruth, are you still feeling that 'shiver of excitement' you wrote about on 18 June 2006, when she was elected?

[Rick Beekman]

A Long Long Time ago on American TV;

There was a show called "Life of Riley"

Chester A Riley would probably say the following regarding this topic;

"What a Revoltin' Development this is"!!!

[Rick Arllen]

Very sad TEC has forced the Diocese of Virginia to take actions that have lead to the legally driven conclusion of this first part of a potentially very long and expensive legal adventure. Hopefully, this victory for the orthodox will cause the Diocese of Virginia to return to negotiations and remove this whole thing from the pit of litigation.

[Fr Craig]

The CANA folks should not open the champagne yet. In the American system, this is simply an opening volley, and even this judge noted that there are constitutional challenges that can be made. Very important to note that the vast majority of states will support the TEC.

[Bob Ayers]

Dear Ruth:

As a Virginian and a less than happy priest of the TEC, I am delighted at this ruling, which, if I understand its origin, is based on a law that was designed to protect the proliferations of our Southern Baptist brethren.

Years ago I was driving down a major Virginia highway, following a large tractor trailer with a stack of plastic baptismal fonts in front and a similar stack of pointy steeples [Christopher Wren Model No. 2?], said products ready to endow any small brick building with the required accoutrements of evangelical faith, when I realized that the driver was in pursuit of Baptist Bifurcation.

Thank you Jesus, for hard-assed independence.

Bob Ayers

[Stephen Clark]

The main problem with the understanding that individual congregations may determine to whom they belong is that is not a catholic view of the church. It is congregational.
This may reflect the predominantly Protestant polities of Virginia, but it does not stand up when you are looking at an episcopal church.
As for whether Minns should be invited to Lambeth, I know this is tongue in cheek, but if he is not severed from the Communion then neither is Gene Robinson!

[Paul Davison]

The question of "division" was a technical one and I think it was the weakest part of the TEC's case. US legal practice when the constitutionality of a statute is challengned is to first determine if the statute would even apply, thus avoiding deciding the constitutionality of inapplicable statutes. The judge has simply ruled that, on its terms, that statute would apply. He clearly didn't address whether the statute violates a series of Supreme Court rulings that courts leave these decisions to the church heirarchies.
That comes next and a TEC win there would wipe the effect of this decision out.

[Robert Ian Williams]

The idea that the Anglican Communion is a church is completely wrong. There are 38 independent churches. Many of whom have different understandings of the ordained ministry and Gospel.

Its as false as saying that all nations that have Queen Elizabeth as Head of State are British.

[John]

"A catholic view of the church"?!

There's nothing remotely catholic about either TEC or Schori!

[pendennis88]

"I never believed the subsequent statements from both sides that all attempts would be made to avoid legal action."

I don't think that is entirely justified, and here is why. Under the prior presiding bishop, Griswold, the announced policy was that diocese could determine to make reasonable settlements to settle with departing parishes. At least three large evangelical episcopal churches had been allowed to depart, paying amounts in settlement to their diocese - in Plano, Texas, Overland Park, Kansas, and, lastly, All Saints, a large church in Dale City Virginia, under Bishop Lee. In fact, Lee had agreed in a written protocol that there would be settlement negotiations with departing churches wishing to retain their property. The price was not specified, but these are not poor parishes. Certainly there was no guarantee, but after the sale by Lee and the diocese of church property to All Saints, there was some cause for optimism.

As the depositions in this case subsequently showed, when Jefforts-Schori became presiding bishop, she rescinded that policy. We can speculate on why, but Griswold was more the sort with parish and diocesan leadership experience to view his legal counsel as a servant and advisor, but not a decision-maker, while Schori just does what her lawyer says. And her lawyer, who sees the evangelicals as troublemakers who are competing with the clubby little church he prefers, now finds his position elevated.

Also, it is certainly true that this case is not over. But I'm not sure that the US legal system and constitutional issues translate well to the British way of thinking about law. The US has no established church, and while the constitution protects the free exercise of religition, it also prohibits the establishment of a church. So while TEC argues that its internal rules should be deferred to, the counterweight to that is that too much deference leads to treating them like an established church whose rule is law.

Virginia is one state that has a long history of repudiation of an established church. There are no clear prior decisions in Virginia on these issues. And there is this unhelpful (to TEC) statute. So I have always wondered why TEC decided on this particular battleground. I suppose it is because the CANA churches are the epicenter of the movement to create an alternative American Anglican church.

I have always said that in Virginia, this case could go either way, 50/50. With this decision, it could still go either way, but leans towards CANA. And, yes, I do still think CANA would settle. Though I think the price would be less after last Friday.

Should this impact the Archbishop's thinking? Well, I certainly doubt the Virginia judge thinks his decision should have any impact on what the ABC's canon lawyers think. But in the US there is also a general perception that the Archbishop has privately winked at TEC's litigation strategy even as he occasionally, in publicly at least, complains about it. So I don't expect it to make much difference.

[Malcolm+]

I understand that the CANA argument proposed, in part, that there was a split in the "Anglican Church" worldwide between those who looked to Canterbury and those who looked to Abuja.

First off, if there were actually a world wide institution called "the Anglican Church," and if that institution were actually split between those aligned with Canterbury and those aligned with Abuja, then I suppose that this legislation would apply.

If it is constitutional.

One of the issues regarding it's constitutionality is the fact that it was passed in a secessionist assembly.

But the best part of it is that a statute designed to protect the tender consciences of those who owned Africans as slaves should now be used by pseudo-Africans to protect tender consciences which treat another group as less than human.

[John]

There is a USA wide institution whose names appear to be legion, but it currently describes itself as TEC.

The legislation undoubtedly applies, as the court has concurred, since "TEC" is certainly split between its remaining faithful Anglicans, and those who wish to superimpose sexual liberation in place of Christian sexual ethics.

[Malcolm+]

I noticed one bit of "conservative" revisionism in the comments that deserves to be addressed.

Pendennis suggests that it was the present Presiding Bishop who determined that this matter must go to court.

That is 100% false, Pendennis. Since you're across the pond, I'll choose to believe that you have simply been misled about the facts. Besides, it would be uncharitable to call you liar when you may just be talking without a clue.

FACT: It was the decamping congregations that initiated legal action.

FACT: Even if the Presinding Bishop had wanted to force the hand of the Bishop of Virginia, SHE DOES NOT HAVE THAE AUTHORITY TO DO SO.

Sorry to shout, but I find that "conservatives" have trouble absorbing facts otherwise.

[pendennis88]

Actually, the statute was passed in 1867. The Civil War ended in 1865. There were no Confederates in the reconstruction legislature by 1867. Virginia was rather firmly under Union control.

The record recited in the decision, if one reads it, is that some of the splits before that time involved slavery, some didn't. The legislature apparently wanted to clarify what happened in the event of a split. The statute has been recodified several times subsequently.

[John]

What a remarkable man Malcolm is! From his vantage point in the Church of Canada, he is a full and final authority on every matter, liturgical and legal, in TEC, the Church of England and everywhere else. And if you disagree (even knowing the facts at first hand) he will SHOUT AT YOU until all resistance ceases.

It's the liberal way.

[William Sulik]

There's an old maxim that says (briefly) if the facts are on your side, that's what you argue; when the law is on you side; that's what you argue; when you have neither, just argue. I guess that's why Fr. Malcolm is shouting.

In truth, both the facts and law are on the side of the orthodox congregations. Moreover, despite all the shouting by Fr. Mal, it was *not* "...the decamping congregations that initiated legal action." This is easily disproved by opening the opinion of Judge Bellows you referenced above. Plaintiff means the same in both England and America -- a party initiating a legal action. That party is the Diocese of Virginia and the Protestant Episcopal Church USA. The defendants are those who wish to remain faithful to the faith once delivered.

grace and peace,

wm.

[pendennis88]

I think someone has trouble absorbing facts, but it is not I. Nor should anyone take my word for it. Read the Virginia judge's decision (linked to by rg above, under "has been made"). I'm afraid I can't take the time to quote it all (it is pdf, so I can't cut and paste), but look at page 34, finding that Bishop Lee said in a meeting in December, 2006, after his Special Committee had entered into the Protocol for Departing Congregations in September, 2006 (p. 31 of the Judge's decision, which included a provision calling for a negotiated settlement of property):

"since the work of the Special Committee had been completed that a new Presiding Bishop of the Episcopla Church had been installed....The former Presiding Bishop had said in matters of division of Churches leaving diocese [sic], that was going to be left up to the Bishop, but now it was going to be - it was going to become a matter of concern for the national church. The Bishop said there was a new sheriff in town, it was going to be different."

So I rely on Bishop Lee for the evidence that it was Schori that decided to overturn his decision to settle and instead litigate. I suspect this was made clear in other evidence before the court as well. In fact, I don't think it is terribly in dispute. There was even one meeting after the vote to depart between representatives of the diocese appointed by Lee with representatives of CANA to negotiate the sale of the property before Lee, at Schori's insistence, dropped it. The whole sad story, as told by a rector at one of Virginia's smaller churches (who I see from their website is surprisingly from Londonderry, and an Oak Hill graduate, so my friend Dwight seems likely to have at least two problems with him off the bat), is here:

http://www.pwcweb.com/ecw/tec_to_nigeria.html

Now, my friend Dwight can argue about who filed suit first. I don't think it matters much. The statute merely says "If a division has heretofore occurred ... in a congregation whose property is held by trustees ... a majority of the members of such congregation ... may decide the right, title, and control of all property held in trust for such congregation. Their decision shall be reported to such court.... "

The CANA churches reported their decision to the court in question. See page 40 of the decision. I can see the argument that this was the first filing in the litigation. But it does say "shall". They had no choice. And it was the filing of a report, which is not the same thing as filing a claim in a lawsuit. The diocese filed the first complaint. See page 40. So I could argue the reverse as well.

But I didn't argue "who decided to go to court" originally. I do argue that the decision to stop an active settlement procedure which had already lead to the transfer without litigation of one of the Virginia churches by the diocese, was stopped by Schori. I think the evidence is rather clear on that, unless one believes Bishop Lee dissembled.

Nice use of capital letters, though. Makes one's arguments so much more persuasive.

[MICHAELinVA]

Ms. Gledhill: Of course you have a very English perspective. But one must remember that this property dispute will be settled by VA law at this point - the same VA that bore George Washington, Thomas Jefferson, George Mason, and other famous revolutionaries. Virginians don't think much of hierarchy. But they do very much value and protect individuals taking actions of conscience.

MALCOLM+
Actually, you are not exactly correct. The departing VA parishes recorded their votes with the Fairfax County Circuit Court as part of the 'Protocol for Departing Churches,' which was developed by the churches and the Diocese. The real surprise came when Bishop Lee abruptly broke off property negotiations.

[Malcolm+]

Sorry to keep coming back to facts, but there is no way in which the Presiding Bishop could have forced Bishop Lee to change tactics.

She may have persuaded him to do so. That is certainly possible.

But that is not the charge made above. The claim (oft repeated amongs the "conservative" schismatics) is that the national churched forced Virginia to change tactics.

Repeat your lies all you want, gentlemen. It still won't make them true.

[pendennis88]

I actually agree with Malcolm a little bit on that. And I don't think the question has been answered as to why Schori was able to "persuade" Lee to change his mind. It is not like the canons give a direct requirement to follow the orders of the presiding bishop. Was it a threat to open up a disciplinary investigation on the grounds of his failing to follow the "discipline" of the national church to enforce the property canon the way it saw fit? Given the bases for subsequent depositions of bishops, that would be a credible threat. Or just a general threat to make his life miserable when he was on the verge of retirement? Was he just of a mind he should do whatever the presiding bishop and her chancellor told him to do? Perhaps, as Malcolm suggests, she was just a really, really good debater. There was apparently a meeting between the bishop, the presiding bishop and her chancellor, and right after that the bishop reversed course and reneged on his own prior agreements to settle. Perhaps we will never know what she did to "persuade" him, unless one of them talks. Or if it is in one of the depositions that we have not seen yet.

Personally, I think it might have been interesting, and the national church might have been proven toothless in the end, if Lee had disregarded the presiding bishop's direction not to settle. But he did not. In such circumstances, though, I don't see there is really much difference between "forcing" and "persuading". It still means that it is TEC and the diocese that do not want to settle.

And no, I haven't a clue who encased your stapler in jello.

[Paula]

Notice that the Attorney General of Virginia Bob McConnell filed a motion in January supporting the parishes in the constitutionality of the division statute, and his office will represent this stand in May.

[John]

Given the presiding bishop's fondness for deposing everyone in sight, one might conclude that Bishop Lee of Virginia preferred to keep his job rather than stand up to her and her legal rottweiler.

[A Renegade Priest]

Mrs Jefferts Schori should resign forthwith. By no means do I disagree with absolutely everything she says, and nor am I a fan of Akinola. However Mrs J-S is small minded, bureaucratical, and, most perinently, utterly litigious. Now what about 2 Corinthians 3 verse 6. As the black eyed peas would say, "where is the love?"

[William Sulik]

Paula,

The Attorney General of Virginia has a duty to defend the constitutionality of a state statute. While I personally believe the statute is constitutional (in fact, I think it is prescient in that it sets forth a form of the neutral principles approach the Supreme Court would later adopt in Jones v. Wolf), neither supporters nor detractors should read much into this defense of constitutionality.

Similarly, the court -Judge Bellows- begins with a presumption that the statute is constitutional and there is a huge burden on the Diocese of Virginia and ECUSA to overcome this presumption.

As an aside, there is part of me that wonders whether the reverse ruling -- allowing the DioVa to seize land which is properly titled to the local churches (and not the Bishop or Diocese) -- would, in fact, be an unconstitutional establishment of religion. It would allow the state to intervene on behalf of a hierarchical church to vitiate the normal laws for the benefit of that particular denomination.

[Stephen Clark]

I personally find the lack of charity (on both sides) in many of the remarks above to be quite unchristian.
To name call at those who disagree with us does nothing to advance a cause,
How dare you refer to a Bishop of the Church as Mrs Schori, how dare you refer to her as a rottweiler?
It says more about the writer than the victim of the vitriol.

[pendennis88]

I may agree with you in part, but I am not big on titles, and see nothing wrong with referring to Bishops by their surnames, whether "Minns" (see your original comment above), "Schori", "Williams", "Robinson", "Duncan" or "Akinola". Just as I do not like or expect anyone to use my title. It is not a matter, at least with me or many others, of respect or preference for some bishops over others.

Pendennis

[Malcolm+]

I think, Pendennis, that Stephen is referring to the use of "Mrs. Schori," which has become a shorthand device on some of the more extreme "conservative" Anglican websites to imply a rejection of the Presiding Bishops episcopal orders and canonical authority. In that context, it is usual to refer to "Bishop X," to "Bishop Y" and to "Mrs. Schori."

It isn't actually incorrect per se to refer to +KJS as "Mrs. Schori," or, of course, to refer to the Bishop of Pittsburgh as "Mr. Duncan." However the deliberate use of this literary device only in reference to this one person is manifestly not done with neutral intent.

That said, while I suspect that the earlier poster on this thread who used "Mrs. Schori" probably had that intent, there isn't enough context in the post to be certain.

[Stephen Clark]

I would have thought the Pendennis comment is some what ingenuous.
My comment is (I would have thought obviously) with regard to the Presiding Bishop being referred to as Mrs.
Apart from the fact that she has a Ph D in her own right, and an honoris causa DD, she is rightly styled "Doctor".
It seems perfectly acceptable to me to refer to people by surname alone. So I have no objection to referring to her as Schori....though isn't her surname Jefferts-Schori.
I certainly would not refer to Minns or Robinson as Mr Minns and Mr Robinson.
I notice you don't attempt to justify her being referred to as a Rottweiler!

[David Cohen]

In the UK all kinds of inaccurate terminology is used to refer to bishops and archbishops, including those who have doctorates, real or honorary. Bishops are frequently cited as "Mr" and correctly so in the case of those who have no earned doctorate.

Katherine Jefferts Schori does have a doctorate in marine biology, but no such qualification in her chosen profession. She is not recognised as a bishop by many Anglicans in her own church, and certainly not by the great majority of christendom.

In view of her determined campaign not just of discourtesy to her perceived opponents, but ethical cleansing, a certain reluctance to cooperate with her claims might be expected on their part, especially in view of the CV inflation which came to light following her election.

The "rottweiler" in question would appear to be her legal adviser.