By Robert L. McCan

Two trials occurred in Rooms 5-E and 5-D of the Fairfax County Circuit Court of Virginia building and ran for five days, ending on Tuesday, November 20, 2007. The court judge, Randy I. Bellows, insisted that theological issues be excluded, not wanting to enter the “thicket” of differences at that level but preferring to focus on the legal question of whether former Diocese of Virginia congregations now composing part of the Convocation of Anglicans in North America (CANA) “divided” from The Episcopal Church or was alienated and withdrew.

The stakes are high. Over $30,000,000 in property will be awarded the winning side, or divided in a manner determined by the judge. Perhaps even larger issues are being sorted out for The Episcopal Church and the Anglican Communion. Can parishes and/or dioceses break away or “separate” from The Episcopal Church and keep the keys and the chalice? By what logic can CANA, composed of former Episcopal parishes, or other similar splinter groups, legally affiliate with an Anglican Church in another part of the world? Is the principle of geographic integrity of a diocese to be upheld or are unsupervised church plantings and competitive Anglican structures to be approved by the Archbishop of Canterbury in an ecclesiastical “free market” environment?

Eleven parishes are involved in the two trials which followed each other and which are to be merged into a single verdict. In fact, the two trials are a consolidation of 22 separate court cases.

CANA brought the first trial at the urging of the breakaway Falls Church Anglican congregation. The parish faced a financing problem. They made plans to build a large complex of facilities on a strip mall they had purchased across the street from the historic building, additions and grounds. The purchase was made several years ago when they were still a functioning parish in the Episcopal Diocese of Virginia. The price tag for new facilities is $14 million. The parish is reported to have $5 million in the bank, carefully excluded from operating church funds, in case The Episcopal Church should be awarded the assets. But when the parish explored the financing of $9 million they learned that mortgage money was not available until a decision was reached on property ownership. Hence the immediate occasion for their lawsuit.

The first trial asks the judge to require The Episcopal Church to relinquish ownership of the property at each of the eleven parishes if by majority vote each decided to “separate” from its historic roots and join the Anglican Communion.

Testimony focused on an obscure law passed by the Virginia General Assembly in 1867, known as the “Virginia Religious Freedom Act.” That law stated that when there is a denominational “division” local congregations may decide by majority vote with which side to affiliate. CANA’s case hinges on whether their interpretation of that law applies to the current situation. They claim the word “division” is key and they submitted 174 documents to buttress their case.

In the second trial The Episcopal Church brought a counter suit against CANA. Its purpose is to recover the property, which it alleges, belongs to The Episcopal Church and is being unlawfully occupied by CANA congregations.

A bit of history is needed to better understand the case for CANA. The 1867 statute is known as “57-9” because the Virginia Code, Section 57-9 contains the law in question. John Baldwin of Augusta County was Speaker of the Virginia House. He was also an attorney and a Methodist. There were 18 Methodist congregations in Augusta County that wanted to “separate” from one side of a divided Methodist Church following the Civil War and join the other side. After pushing the law through the state legislature Baldwin brought the case that gave congregations the right to keep their property when a majority of members voted to “divide,” leaving one branch for the other. In the end, 29 Methodist congregations in Virginia took advantage of the law in that era.

CANA called two experts, reputable scholars, one being Professor Mark Valeri of Union Theological Seminary in Richmond, Virginia. Most of his testimony related to Methodists, Baptists and Presbyterians, the three largest Protestant denominations in the nineteenth century in the south, with emphasis on the Presbyterians, his own denomination. To the writer it appeared that he did a computer search in the church history books, in newspapers and in church periodicals, using the word “divided” to pull up references. The word was used often to describe multiple “splits” in each denomination, the most obvious being the separations caused by the Civil War.

Then came the question as to whether The Episcopal Church had endured such “divisions.” The scholar pointed to a “division” within The Episcopal Church during the Civil War. He testified that no bishops or dioceses in the south attended General Convention. Indeed, dioceses in the south formed their own constitution and canons and even consecrated a new bishop.

Dr. Ian Douglas, a professor at the Episcopal Divinity School in Cambridge, Mass., was an expert witness for The Episcopal Church. He explained that The Episcopal Church has never had a hostile “division.” For him, there are two meanings of the word “division,” one popular and the other technical or legal. Any dispute leading to alienation and separation is often called a “division” in popular parlance. However, technically, according to the constitution and canons of the Church, a “division” can only occur when voted by General Convention, according to rules set forth in governing structures.

CANA tried to show that the Diocese of Virginia had divided into three dioceses within the state. However, Professor Douglas explained this was a proper division because the Church approved. Likewise, several countries divided from the national church. For example, Mexico divided and became a national church known as a Province. Again, this was decided in an orderly fashion with the consent of the entire Church.

Dr. Douglas responded to the claim that The Episcopal Church “divided” during the Civil War. He pointed out that it was physically impossible for church people in the south to travel north for General Convention during the war. He agreed that sentiment in the church of the south favored separation at that time. However, The Episcopal Church in the north never approved a division and the south was welcomed back to General Convention when the war ended.

Dr. Douglas sought to make the case that it is impossible for CANA churches to “divide” by separating. The moment they declare their independence, the clergy violate their ordination vows; the moment the vestries vote to leave The Episcopal Church they violate their vows as members of vestries to be faithful to The Episcopal Church. Likewise a bishop and a diocese violate their prescribed commitment to the national church the moment they attempt to revise their constitution to separate. It is not possible for them to “separate” because the law that governs vestries, clergy and bishops requires approval of the Church before a division can be legal.

Professor Douglas characterized the Anglican Communion, on the other hand, as “a family of Churches.” He contended that members of a family may be alienated for a time but they are always members of the family at the deepest level. An attorney for CANA tried to establish a link between CANA and the Anglican Communion and suggested that the “Instruments of Communion” could be used to expel the American Church from the Communion. Professor Douglas conceded that there has been an alienation that may lead to a temporary formal separation for some members of “the family.” He pointed out, however, that within The Episcopal Church there is a formal legal link of one body to another—the parish to the diocese and the diocese to The Episcopal Church at the national level. However, there is no such linkage to the Anglican Communion but only informal ties based on tradition, shared history and liturgy. CANA hinted that the Anglican Communion is a global confessional church with established “orthodox” doctrinal positions that the Instruments of Communion have a right to enforce.

CANA was asked about its place in the Anglican Communion. The Rt. Rev. Martyn Minns, formerly rector at Truro parish in Fairfax City, explained that they are now attached by his consecration and by a formal affiliation of the parishes to the Anglican Church in Nigeria. Their participation in the Anglican Communion is by way of their linkage with Nigeria. When asked by counsel for The Episcopal Church, Bishop Minns acknowledged that he has not yet been invited to The Lambeth Conference, held every ten years and scheduled for 2008.

Attorneys for The Episcopal Church contended that Judge Bellows should take into account the hierarchy of the parish, the diocese and the national church. CANA denied that this linkage is essential as ultimately binding if for sufficient reason they feel a gospel imperative to separate.

Presiding Bishop Katharine Jefferts Schori testified by way of a televised deposition that lasted some 54 minutes. She was courteous yet clear in her conviction that CANA congregations had no right to leave the Church and take the property. When pressed to offer some negotiated settlement on property she was clear that The Episcopal Church would not negotiate with a church from another country coming into a diocese and competing with that established diocese. Asked to explain, she stated this violated current and ancient practice. Polity in all parts of the Anglican world has been for a bishop in one area to get permission from the bishop in another before going there to perform any type of ministerial function. She saw the establishment of parallel parishes and their vocal criticism of The Episcopal Church as confusing to the public and harmful to the church.

Bishop Jefferts Schori was reminded that she had signed the statement of the Primates at the Dar es Salaam meeting. It required The Episcopal Church to repent and pledge to renounce the practice of consecrating homosexual bishops and blessing same-gender “unions” or marriages. She responded that she signed to indicate that the statement represented what transpired. She indicated that she had no authority to bind the bishops or The Episcopal Church to such a statement.

Finally, when asked how she could support legal action against CANA churches when the Primates and the Archbishop of Canterbury had urged the church to settle disputes over church property within the church rather than through the courts, she responded, “I have a duty to protect the assets and the integrity of The Episcopal Church.”

Judge Bellows indicated on several occasions that he would go to great lengths not to give any indication as to how he would decide the case. He was determined, he said, to give latitude to each side in order for each to fully present its case. However, he was also eager, he indicated, to keep testimony relevant; he wanted to complete the case within a reasonable time period. On two occasions the lead attorney for The Episcopal Church, Bradfute W. Davenport surprised the court by his brevity. An hour was allotted before lunch on the first day for his opening statement. He took seven minutes, laid out the case in simple, direct terms and sat down. We had an early lunch the first day.

The other occasion was on the last day when Bishop Peter James Lee of the Diocese of Virginia took the stand. He had attended the prior day, waiting to testify. When he finally took the stand the excitement and tension reached a crescendo. CANA members filled the courtroom. Many of the CANA attorneys, it could be observed, had notebooks filled with questions for the cross-examination. The CANA leaders had threatened legal action against Bishop Lee if he or any officer of the diocese “set foot on or trespassed on the property occupied by CANA congregations.”

Davenport asked Bishop Lee his name, age, where he attended college, then seminary. He asked when Bishop Lee was ordained, where he served as a priest, when he was consecrated as a bishop and how many General Conventions he has attended. After a few more “housekeeping” questions including clarification of various designations for bishop and the function of each type, he suddenly declared, “No more questions.”

CANA was confused. All of their cross-examination preparation was predicated on Davenport delving into the host of issues and events that led to the separation and the declaration that the priests are no longer recognized in The Episcopal Church. There was virtually nothing to cross-examine. The CANA attorneys attempted to raise issues but they were over-ruled because they had not been raised in the initial examination.

The Episcopal Church called one more witness, David Beers, Chancellor to The Episcopal Church. His testimony largely paralleled that of other witnesses. Other witnesses that were to testify the last day were released by agreement of the two sides and the trial ended a day early.

At the conclusion of the trial Judge Bellows stated that should he decide in favor of CANA, based on the 1867 Virginia statute, he would be prepared to hold another trial to examine the constitutionality of that statute. The Episcopal Church attorneys stated they would enter challenges under three constitutional headings: the contract clause, the free exercise clause and the establishment clause. He indicated a willingness to set a new court date within the next month, if necessary, so that a final decision could be rendered by mid-January, 2008. At that time another hearing will be required to determine the precise nature and procedure for distribution of church property.

The writer represents only himself in presenting these observations and reflections. He is one of no more than two or three persons, other that official representatives, who attended the entire trial and whose bias was toward The Episcopal Church. He recently moved from Alexandria to Falls Church, and with his wife, has moved his membership from Christ Church to The Falls Church Episcopal, continuing congregation.

On the Saturday night during the trial the entire congregation of The Falls Church Anglican was called together for a prayer vigil that God’s church might prevail. A spokesman for CANA, Jim Oaks, issued a press release after the trial ended which said, “We remain confident in the success of our legal position. The decision of the Episcopal Church and the diocese to reinterpret scripture caused the 11 Anglican churches to sever their ties.” And in comments in the weekly bulletin at The Falls Church Anglican rector John Yates noted how much has changed for the better in the past year since they left The Episcopal Church. He wrote, “We are out of a dying denomination…I can hardly contain my enthusiasm.”

Robert L. McCan holds a Ph.D. from the University of Edinburgh, Scotland and an M.Div. from Yale Divinity School. His last position prior to retirement was Associate Professor of Political Ethics at Wesley Theological Seminary. He is author of "Justice For Gays and Lesbians: Crisis and Challenge in the Episcopal Church." Bob recently moved his church membership to The Falls Church Episcopal.