Sunday, January 21, 2007

It's not about the property, but about the faith

William Etherington, a Richmond "lawyer who devotes a substantial portion of his practice to advising religious institutions" writing in today's Richmond Times Dispatch:
In the Colonial era, the Church of England was the established church of the Virginia Colony. The disestablishment of the church followed the Revolution, and the new commonwealth asserted that the properties were properties of Virginia. The properties were subsequently conveyed to trustees - under the predecessor of current Virginia Code Title 57 - who held the properties for the use of the parishes and for the benefit of the newly constituted Diocese of Virginia and the Episcopal Church, which is now the rule of Canon I.7.4; the trustees are fiduciaries for the diocese and the Episcopal Church.

Recent stories have characterized the current dispute as one of property ownership. In reality, the property questions are but an adjunct to a larger question that relates to church governance. Litigation probably will result favorably for the diocese, most likely not by affirmative decision, but rather by a civil court's refusal to accept subject matter jurisdiction over the dispute. Historically, civil courts have deferred to ecclesiastical authorities when disputes arose within hierarchical churches.
. . .
The Virginia Supreme Court - in its 1985 decision in Reid v. Gholson, reaffirmed in Cha v. Korean Presbyterian Church of Washington in 2001 - acknowledged the hierarchical-congregational distinction, holding that hierarchical churches are guided by a body of internally developed canon or ecclesiastical law. The decisions of such churches under their internal laws may be promulgated as matters of faith and considered entirely independent of civil authority. Persons who become members of such churches accept their internal rules and decisions of their tribunals.

For that reason, the court held that civil courts must treat a decision of a governing body or internal tribunal of a hierarchical church as an ecclesiastical determination constitutionally immune from judicial review. This is the Doctrine of Church Autonomy, derived from the First Amendment to the U.S. Constitution. ... [The U.S. Supreme Court in 1871] recognized that the dispute ... at issue - although sounding like a property dispute - was really about which group would select pastoral leaders to inculcate the faith among parishioners. Essentially, it was a request for a civil court to side with one theological faction over another.
. . .
However, should the courts take jurisdiction, applying a neutral principles analysis, the result likely will be the same, since the secessionist parishes had, until December, accepted the canons and rules of the diocese and the Episcopal Church that are clear: Property is held for the benefit of the diocese and church, from which secessionist parishes cannot now unilaterally opt out. Their rejection of the canons of the diocese and church can be but prospective, not retroactive.

Do not rely on my edition: read the whole thing.

Aside: Mr. Etherington is rather busy these days.

UPDATE: There are many cogent comments on this article posted at titusonenine. Very much worth reading through.

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