Today, The Diocese of Virginia and The Episcopal Church filed their opposition to the motion by Virginia Attorney General Robert McDonnell to intervene in the consolidated church property cases currently being heard in Fairfax Circuit Court by the Hon. Randy I. Bellows.

In stating their opposition, the Diocese and the Church noted that the Commonwealth had failed to meet the requirements that govern intervention in such a dispute and that the state “lacks any right or interest in the subject matter,” namely the property unlawfully occupied by individuals in the CANA breakaway congregations. The Diocese and the Church raised no objections, however, to the Attorney General filing an amicus curiae or friend of the court brief on the matter of the constitutionality of section 57-9 of the Code of Virginia which is at issue at this stage in the case.

The Diocese and The Episcopal Church have argued that it would be unconstitutional for the court to apply section 57-9 in such a way to rule that a division had occurred within the Diocese or the denomination at large.  Such a ruling would be an unconstitutional intrusion by the state into the affairs, doctrine and polity of a hierarchical church.  

A trial was held in November on the interpretation and application of that section of the Code of Virginia. The judge has not yet issued a ruling. The third and final post-trial brief ordered by the judge also was filed today.

In further support of their opposition to the Attorney General’s motion, the Diocese and the Church cited a 2005 letter from the office of then Attorney General Judith Williams Jagdmann to then Sen. Bill Mims stating that “Constitutional principles dictate the least possible involvement of the state in church matters.” Mr. Mims is now Deputy Attorney General, but in 2005, as a senator, Mr. Mims introduced a bill that would have changed section 57-9 and “explicitly allowed congregants leaving national denominations to keep church properties,” according to the Diocese’s filing.

“As presently in effect [code section] 57-9 has potential constitutional problems,” wrote Thomas Moncure Jr., senior counsel to the Attorney General in 2005. “Additionally [code section] 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. While adjudicating the property interests of any unincorporated association – including a church – involves an examination of its internal workings, a court decision over what is or is not a branch of an original denomination necessarily entangles government and religion. Constitutional principles dictate the least possible involvement of the state in church matters.”

At the time the legislation was under consideration by the General Assembly, Mr. Mims was a member and senior warden of Church of the Holy Spirit, Ashburn, one of the Virginia missions that since has quit The Episcopal Church. The bill was pulled by Mr. Mims in the face of intense opposition from Senate colleagues, editorial writers and at least a dozen faith communities, including the United Methodists, the Evangelical Lutheran Church in American, the Presbyterian Church USA, the Jewish community and The Episcopal Church, who saw it as a dangerous incursion by the state into religious matters.

“In 2005 the Attorney General’s office seemed to support the view of the constitutional problems associated with 57-9,” says Patrick Getlein, Secretary of the Diocese. “The prior Attorney General was pretty clear – the government should avoid getting entangled in religious disputes and church matters.  In sharp contrast, the current Attorney General has voluntarily jumped into a religious dispute with both feet. It’s hard to know what has changed so radically in the last two years especially since the law remains today exactly as it was in 2005, despite Mims’ attempt to rewrite it.”

Many of the same denominations that opposed the bill are also concerned with the action taken by the Attorney General. While there is no bill pending in the General Assembly this time, the Rev. Doug Smith, Executive Director of the Virginia Interfaith Center for Public Policy, a coalition of 21 faith groups which also opposed the 2005 bill, is again hearing concern from across the faith community.

“This year marks the 222nd anniversary of the Virginia Statute for Religious Freedom,” said Mr. Smith. “This seems a particularly ironic time for the state to interfere in a religious dispute, regardless of the whims of splinter groups.”

“We’re very concerned about this,” said Bishop Charlene Kammerer, Bishop of the Virginia Conference of the United Methodist Church. “Our polity, our constitution and our book of church law (The Discipline) make it very clear that all properties are held in trust for the denomination or annual conference. The Attorney General’s view strikes at the very heart of our constitution and our historic trust clause.”

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