The Episcopal Church and a number of other religious denominations squared off in court yesterday against 11 breakaway congregations and the Virginia attorney general's office over the constitutionality of a Civil War-era state law governing religious property disputes.
I attended the hearing and was struck by the careful, probing questions of Judge Randy Bellows, by the quality of lawyering on both sides (although Virginia Solicitor General William E. Thro seems to form very strong opinions before mastering basic facts, such as the name of the Episcopal Church's property canon--it's Dennis, not Dean--and how authority is distributed within the church) and by the intellectual rigorousness of the hearing.
It seems that the case could turn on whether the state has made sufficient provisions in its laws for hierarchical churches to hold property in a way that honors the church's polity. In the Episcopal Church, many parishes hold their property in trust for their dioceses. The Virginia law isn't comfortable with that. It wants the diocese to hold property in the name of the bishop or another official, or else via a corporation.
It seems obvious to this Episcopalian that putting all property in the name of the diocese would tip the carefully constructed and unevenly maintained balance of power within our Church decisively toward the bishop and away from the laity and clergy, and that this constitutes an infringement of the free exercise clause of the First Amendment. But it wasn't clear to me that the Diocese of Virginia’s lawyers made that point as strongly as they could have. Assertions by the breakaway congregations and the state that the church held property as it did out of administrative convenience, and that changing the nature in which we hold property was primarily an administrative matter weren't countered as forcefully as they could have been.
Another argument, advanced most effectively by the diocese's "friends," including a number of religious denominations, holds that whether the law places too great a burden on the diocese is immaterial because in making the law the state created a special standard for adjudicating religious property disputes, while no similar standard exists for adjudicating similar disputes within secular organizations such as labor unions or fraternal organizations. As a result, this argument goes, the state deprives the religious organizations of the legal protections available to secular organizations (such as having the question of property resolved within the organization via a study of the deed to the property and reference to the organization's own bylaws) and thereby discriminates against the church.
Three things seemed certain: Judge Bellows’ ruling will be appealed; he is well aware of this; and the ruling will be so tightly tethered to Virginia law that it is unlikely to affect litigation elsewhere.
I heard speculation that the ruling would be released in late June or early July.