The Virginia Supreme Court today heard 90 minutes of oral arguments in the property dispute between the Diocese of Virginia and CANA.
I -- and about 200 or so others -- were present to hear the arguments held before a panel of five justices. The newest justice on the Virginia court, William Mims, recused himself. He had been a member of one of the breakaway churches, and later was in the Attorney General's office which joined CANA's side as a friend of the court. Two other justices recused themselves.
It takes a majority to determine a statute unconstitutional -- whether that is a majority out of all justices or out of the five I do not know. The diocese argues that 57-9 is unconstitutional, but such a ruling is not critical to its case.
Queuing for entry to the hearing began on the sidewalk as early as 7:30 this morning for the court's slate of hearings that began just after 9:00. Bishop Shannon Johnston joined the line around 8:00 AM. Shortly thereafter Bishop Martin Minns arrived and the two bishops shook hands. (Minns then went to a place saved for him in line.) If there was enmity it was well hidden. The same is true of the interactions between all with Episcopalians and members of CANA, some of whom were former Episcopalians -- sitting cheek by jowl in the courtroom, queuing for the toilet, and passing the time catching up with former associates.
The packed courtroom was exposed to lessons in the law throughout the morning. Perhaps the most interesting case surrounded 4 cans of paint that were taken in a shopping cart from the paint aisle of Home Depot to the refunds desk. All parties agreed that there was fraud involved in the attempt to claim a refund on the paint that had never been purchased. The point of contention was whether larceny was also involved. Since the paint had never left the store was there ever a point where Home Depot lost "permanent possession" of the paint? To say yes apparently would stretch years of carefully established precedence that the judges were reluctant to change.
The last case of the morning was the Episcopal case. But first an intermission. Upon returning to their seats several found their seats had been taken even though they had attempted to claim ownership by leaving behind a possession. You move you lose was the rule de facto, and all quietly accepted the result.
Although the attorneys were given time for oral arguments, as Nina Totenberg has taught us, justices will launch right in and pepper you with questions about what they are interested in. And this court was not interested in an answer that began "the lower court said" -- it wanted to know what the attorneys thought.
The case revolved around the meaning and constitutionality of 57-9 of the Virginia code. Can the state require a congregational form of governance for deciding property disputes within a church? What does it mean for there to be a "division" in the church? What is a "branch" of a church? Assuming the law is constitutional what role would the Anglican Communion have? The US Supreme Court has said states can adopt neutral principles in adjudicating church cases. Does that mean states cannot write any law limiting the way churches structure themselves? The state doesn't impose majority rule on secular associations; why should it be reasonable to do so in the case of churches?
Some interesting questions from the justices:
[Reacting to an answer that the ABC has no power to discipline, determine division, or settle disputes.] "Is that why the Archbishop frowns?"
"How can a branch of one tree of which it is a part claim to be a branch of another tree?"
The Virginia Attorney General was given time by CANA. When time came for the AG to make his rebuttal the justices took all his time, instead getting him to explain the historical context of the law -- whereas the AG wanted to argue the constitutionality of 57-9. He explained the law was prompted by the speaker of the house in 1867 who wanted a way for Methodist congregations to settle internal disputes about whether to join competing denominations, the Baltimore based organization and the Methodist Episcopal Church South. The AG said the context was not important. But isn't it? The circumstances were unique. The MECS was created during the Civil War. In contrast, the Episcopal Church never recognized its Civil War counterpart, and that counterpart merged back into the Episcopal Church shortly after the war.
As Nina Totenberg says, it's never safe to guess which way a justice is leaning based on her line of questioning. And as everyone who's not a lawyer ought to say, "I'm not a lawyer." So I won't attempt to forecast the outcome.
The court's ruling is expected to be issued in June.