The Episcopal Diocese of Virginia has produced a cogent media release for reporters covering the May 28 hearing on the constitutionality of the law at issue in the case involving the diocese and breakaway parishes that have joined Archbishop Peter Akinola's Anglican Church of Nigeria.
VIRGINIA LAW THREATENS RELIGIOUS FREEDOM
May 28 Hearing to Consider First Amendment Issues
In December 2006, a group of Episcopal congregations in Virginia voted to leave the Episcopal Church. They elected to affiliate themselves with the “Convocation of Anglicans in North America,” or CANA, under the supervision of the Archbishop of the Anglican Church of Nigeria and, in doing so, to denounce the Episcopal Church in the United States. At the time, they used a little-known, Reconstruction-era statute of the Virginia Code – the §57-9 “Division Statute” – to sue for court approved-transfer of Episcopal church property in violation of the Episcopal Church’s faith-based structure or “polity” and its constitution and canons.
In the Episcopal Church, however, property, while held by local trustees, is held in trust for the benefit of the Diocese of Virginia, the Episcopal Church and Episcopalians throughout the generations. So while these congregations were free to leave the Episcopal Church, they were not free to take with them property that had been in the Episcopal Church, in some cases for centuries. In response to the CANA congregations’ filing, the Diocese of Virginia and the Episcopal Church sought court relief, declaring that the property in question does indeed belong to the Episcopal Church.
On April 3, 2008 the Circuit Court of Fairfax County ruled that it was appropriate for the CANA congregations to file their claims under the §57-9 “Division Statute,” even though Episcopal Church law says that property is held in trust for the Diocese. The statute, as applied, dictates how hierarchical churches must be governed, in violation of their faith-based governance. In issuing its ruling, the Court acknowledged the presence of profound constitutional questions and scheduled a May 28 hearing on those issues. The Diocese of Virginia will argue that the §57-9 statute, as applied, has resulted in two violations of the First Amendment of the U.S. Constitution and the parallel provisions in the Virginia constitution and, as such, is unconstitutional.
VIRGINIA STATUTE §57-9 IS UNCONSTITUTIONAL
The First Amendment to the U.S. Constitution states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …
The Establishment Clause requires the government to be neutral when it comes to matters of faith and religion; it prohibits a legal preference for or discrimination of one type of religion over another. The Free Exercise Clause protects the right of churches to organize and govern themselves as they see fit.
In other words, under the First Amendment, the government is forbidden from favoring one type of faith-based structure over another. In addition, the government must either avoid matters of religious doctrine or defer to the ecclesiastical authority in order avoid violating the First Amendment. The U.S. and Virginia Supreme Courts have consistently agreed on these points, ruling that the government cannot interfere in a church’s internal affairs. To do so would impermissibly entangle the government in a “religious thicket” from which there can be no good outcome.
But this is exactly what Virginia’s General Assembly did nearly 150 years ago when it enacted Virginia Code §57-9. By its very nature, the law requires the Court to insert itself into the faith-based governance, or “polity,” of hierarchical churches. In addition, the express intent of the General Assembly was to prefer congregational polity over hierarchical polity, in clear violation of the First Amendment.
The division statute, as applied by the Court in its April 3, 2008 ruling, has precipitated two violations of the First Amendment – 1) it has shown a preference for one type of faith-based structure (congregational) over another (hierarchical), and 2) it has interfered with the ability of hierarchical churches to organize themselves according to their faith.
If enforced as written, §57-9 only allows for one type of hierarchical polity, such as the Roman Catholics, or purely congregational churches – no other options exist. Yet other hierarchical denominations, such as the AME, AME Zion, Episcopalians, Methodists and Lutherans, based their polity on matters of doctrine and faith, and specifically chose to make their polity unique to their faith, while remaining hierarchical. As a result, other hierarchical churches face a legal limbo, forcing them to restructure themselves because of a government mandated change to their beliefs and traditions.
THE CHOICE TO BE HIERARCHICAL IS A MATTER OF FAITH
Virginia Statute §57-9 imposes a governance structure on the Episcopal Church that is against our faith, our internal laws and our historic traditions.
Our faith is reflected in our hierarchical structure. It is not by accident, but by design that we are hierarchical. It reflects a fundamental belief in the historic episcopate – the Apostolic Succession of bishops – as well a belief in how we, as Episcopalians, live and worship as a community. Our fundamental faith unit is the diocese, not the congregation. We are governed by our bishops who trace their office and, indeed, their individual ordinations as bishop back to the Apostle Peter, appointed by Jesus as the rock upon whom the church would be built.
An attack on our hierarchical structure, rooted in the Apostolic Succession – the authority of our bishops – is an attack on our faith and beliefs. There is no secular justification for allowing the government to dictate our structure, in violation of our faith and the First Amendment.
THE GOVERNMENT HAS CREATED AN EPISCOPAL ANOMALY IN VIRGINIA
The application of the Virginia statue requires the creation of an Episcopal anomaly in Virginia. No other Episcopal Diocese in the country – or the world – operates under congregational rules. The Virginia statute ignores the authority and nature of the Diocese, which is rooted in faith, instead preferring to impose a congregational polity on the Episcopal Church. As a result, the Government has determined that congregational votes of disaffected Episcopalians count for more than the Constitutions and Canons of the Episcopal Church, which have governed us for more than 200 years.
This is not just about the Episcopal Church. The Constitutional issues in this case will impact and may undermine all hierarchical churches in Virginia and their right to structure and govern themselves according to their faith.
THE EPISCOPAL CHURCH IS NOT ALONE –
A DIVERSE GROUP AGREES VIRGINIA LAW HAS CONSTITUTIONAL PROBLEMS
In 2005, then Attorney General Judith Williams Jagdmann recognized the “potential constitutional problems” contained in §57-9. In response to proposed legislation (S.B. 1305) that would have amended the statute, the office of the Virginia Attorney General argued that §57-9, “as currently written, may force the courts to determine if the denomination a congregation seeks to join is actually a branch of the original denomination or a new denomination.” The process required to make such a decision “necessarily entangles government and religion. Constitutional principles dictate the least possible involvement of the state in church matters.”
The Senate bill did not pass, despite the efforts of its sponsor, then Senator Bill Mims, a member of an Episcopal mission which has since left the Episcopal Church. At the time of the legislative debate, Senator Mims called the existing law “confusing and convoluted” and warned that “without the clarifications included in S.B. 1305, there is a risk that our current statutes will be declared unconstitutional by a state or federal court…” Mims left the Senate in late 2005 to serve as Deputy Attorney General under Attorney General Bob McDonnell. In January, 2008, Attorney General McDonnell petitioned the Court to intervene in the litigation on behalf of the CANA congregations. McDonnell has taken the opposite position of the previous Attorney General, arguing that the Virginia division statute, which is unchanged from 2005, is both constitutional and applicable in this case. In fact, Virginia’s Solicitor General, who authored the opinion letter in 2005 recognizing constitutional problems with the division statute, will be arguing in favor of its constitutionality now.
Recognizing that the government of Virginia – its legislature and Attorney General – has taken the state deep into the “religious thicket” and, in doing so, created an environment that is hostile to hierarchical churches, a large number of denominations have signed on in support of our legal efforts to have this law ruled unconstitutional.
The following denominations which filed an Amici Curiae brief on April 24, 2008:
- The United Methodist Church
- The African Methodist Episcopal Church
- The African Methodist Episcopal Zion Church
- The Worldwide Church of God
- The Rt. Rev. Charlene Kammerer, Bishop of the Virginia Council of the United Methodist Church
- W. Clark Williams, Chancellor of the Virginia Annual Conference of the United Methodist Church
The following denominations joined the Amici brief on May 12 and 15, 2008:
- The Presbyterian Church (U.S.A.), by Clifton Kirkpatrick, Stated Clerk of the General Assembly of the Presbyterian Church
- The General Conference of the Seventh-day Adventists
- The National Capital Presbytery, by The Rev. Dr. G. Wilson Gunn, Jr., General Presbyter
- The Presbytery of Eastern Virginia, by Elder Donald F. Bickhart, Stated Clerk
- The Virginia Synod of the Evangelical Lutheran Church in America
- The Metropolitan Washington DC Synod of the Evangelical Lutheran Church in America
- The Virlina District Board—Church of the Brethren, Inc.
- The Mid-Atlantic II Episcopal District of the African Methodist Episcopal Zion Church
- The Episcopal Diocese of Southern Virginia
- The Episcopal Diocese of Southwestern Virginia
As amici noted in their initial filing, if Virginia’s statute stands, “denominations facing doctrinal discord among their members – as denominations always have and always will – must calculate what steps to take with one eye directed at what is best for the church, and the other trained” on avoiding potential litigation.
WHAT IS AT ISSUE ON MAY 28
The Court will hear testimony from the Diocese of Virginia and the Episcopal Church asserting that §57-9(A) violates the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution, as well as religious freedom provisions of the Virginia Constitution. Property matters will be addressed at the trial scheduled for October, 2008.