By George Clifford

In private conversations, Episcopal Church (TEC) leaders from various dioceses, both lay and clerical, tell me that two important reasons for lawsuits to retain title to the property of parishes and dioceses that wish to disaffiliate with TEC are fairness to the remnant that remains faithful to TEC and to deter other parishes from leaving. At first blush, those rationales may appear to justify TEC filing the lawsuits. However, neither rationale withstands careful scrutiny from a Christian perspective.

Quite simply, Christianity is about grace and love. For we who seek to follow Jesus, grace should take precedence over law. TEC operates through democratic processes. When a majority of a parish (or a diocese) votes to leave TEC, those who leave should recognize that the property belongs to TEC and, if they wish to have the property, offer to purchase it at fair market value. However, if those who wish to leave insist on keeping the property, grace demands that we accept that selfish decision rather than holding to the letter of the law. Although TEC may likely prevail in the courts, it will have further alienated the disaffected, turned its focus away from the gospel imperative, and wasted precious resources on an issue that is ultimately of little importance for God's business.

This choice may seem unfair to the minority who wish to remain with TEC but is gracious towards the larger number that decided to leave as well as to those whom God's love will touch because of TEC’s focus and resources invested in mission rather than legal actions. For example, the Diocese of Virginia has probably expended more than $1 million in lawsuits to retain the property of a number of parishes that recently voted to leave. The Diocese recently obtained a $2 million line of credit to further finance those suits. Although $30 million to $40 million of property is at stake, for those $3 million, and the countless hours of time the suits will require from bishops, priests, and laity, the Diocese of Virginia could fund several new missions to meet the needs of those who wish to remain and others. Successfully retaining large buildings for small congregations by winning the suits will burden those congregations with excessive overhead and probably instill a maintenance rather than missionary orientation.

Love between consenting adults does not seek to manipulate by using incentives or disincentives. Love wants what is best for the other, a choice that only the other can make. In human relationships, the unrequited lover who genuinely loves will sadly but freely permit his/her beloved to choose another. The same standard should apply to the community of God's people known as TEC.

Individuals who vote to separate from TEC are consenting adults. By so voting, they spurn TEC’s love for them. TEC may not have always communicated its love for those who vote to separate with sufficient ardor, frequency, or effectiveness. TEC may have failed to provide those who vote to separate with a leader or leaders committed to TEC’s vision of God's inclusive love. Representatives from other Churches in the Anglican Communion may have mischaracterized recent events within TEC or the Communion, seeking to fragment TEC. These representatives may have funded or employed manipulative tactics to encourage votes for disaffiliation. None of that diminishes the demand of our Baptismal Covenant in the Book of Common Prayer to “respect the dignity of every human being.”

Individuals, parishes, and dioceses that choose to leave TEC further fracture the Church’s already badly broken unity. Departures spiritually weaken TEC, leaving us bereft of the unique gifts and contributions that those who depart bring to the Church. After all, people, not physical plants or financial funds, are the Church’s most important resource.

Nevertheless, departures are not without precedent. The most notable Anglican precedent was the excommunication of the Church of England by the Church of Rome. Although this departure was not voluntary, the English knew that failing to alter their course would most likely force the Pope to act. King Henry seized excommunication as an opportunity to expropriate church property, disestablish monasteries, etc. Reform-minded clergy similarly saw a window of opportunity to make what they perceived as badly needed changes to liturgy and canon law. Following the American Revolution, Anglicans in the United States had to choose between swearing allegiance to the British crown and becoming U.S. citizens. If some had not chosen the latter course, TEC would probably not exist. Those who chose to depart from the Church of England took title to the Church’s property in the U.S. without paying compensation to the Church of England.

Anglicans from other provinces who have crossed jurisdictional lines to organize missions, receive parishes, or ordain clergy in the United States have certainly violated existing Anglican Communion structure and protocols. As much as I find such activities reprehensible, those activities do not result in those provinces or individuals losing their identity as members of the Anglican Communion. Likewise, those who leave TEC when accepted by a non-TEC diocese or another province do not cease to be either Christian or members of the Anglican Communion.

Establishing procedures for an orderly transfer of property and funds when a TEC parish or diocese votes to affiliate with another constituent member of the Anglican Communion and refuses to honor TEC’s right to the property will represent a costly gift of love. That gracious gift, whether it costs tens of thousands of tens of millions of dollars, honors and respects the dignity of those who have chosen to depart. That gift also emulates God's great gift of love in Jesus, a gift given in the full knowledge that it would be costly.

Sometimes, an unrequited lover’s beloved will desire, in retrospect, the gift of love that he or she earlier spurned. If that should happen among those who have chosen to depart from TEC, or who may do so in the future, then TEC’s gracious love in allowing them to go may inspire hope of a warm homecoming à la the parable of the prodigal son. To let go reluctantly and unwillingly of the beloved who spurns our love unintentionally sends the opposite message. God calls us to value persons, not property. Those leaving TEC should go with God's blessing and ours, albeit a blessing given with tears of sadness. We who remain must remain faithful to our calling and understanding of God's Word, treating all persons – members of TEC and others – with the dignity and respect due a child of God.

The Rev. George Clifford, Diocese of North Carolina, served as a Navy chaplain for twenty-four years, with tours at sea, with the Marine Corps, on the staff of the Chief of Chaplains, on exchange with the Royal Navy in London, as the senior Protestant chaplain at the Naval Academy, and as the senior chaplain at the Naval Postgraduate School.

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.