The Watcher Cat

The Watcher Cat

Sunday, April 6, 2008

A Question of Interpretation: The Virginia Decision

On Friday, April 4, as most are already aware, Judge Randy Bellows issued an 88 page ruling in which the judge found that Section 57-9 of the Virginia Code, entitled "How Property Rights Determined on Division of Church or Society applied to the dispute between the Episcopal parishes that have purportedly seceded to the Church of Nigeria by joining CANA. Judge Bellows did not determine whether the statute, on its face or as applied to this dispute, is consistent with the First Amendment to the U.S. Constitution; nor did he determine who properly has title to the various church buildings and associated property.

The Anglican blogosphere is of course rife with comment on this decision; I'll try to confine my review of it to legal analysis, as my personal views on the CANA secession have already been set out in prior posts.

1. Read the Statute

Felix Frankfurter, prior to his appointment to the Supreme Court, used to tell his students at Harvard that there were three steps in statutory interpretation: read the statute. Read the Statute. READ THE STATUTE. This is an oversimplification, of course. When a statute is not clear, resort may be had to legislative history--documents or transcripts of debates on the part of the body enacting the statute that can clear up what the legislators believed they were passing, or prior judicial interpretations. (At the risk of shamelessly promoting my own work, I provide a fuller analysis of these principles in the introduction to my 2004 book on the First Amendment).

So let's begin with the statutory text, with thanks to KLady for the link:
A. If a division has heretofore occurred or shall hereafter occur in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority of the whole number, determine to which branch of the church or society such congregation shall thereafter belong. Such determination shall be reported to the circuit court of the county or city, wherein the property held in trust for such congregation or the greater part thereof is; and if the determination be approved by the court, it shall be so entered in the court's civil order book, and shall be conclusive as to the title to and control of any property held in trust for such congregation, and be respected and enforced accordingly in all of the courts of the Commonwealth.

B. If a division has heretofore occurred or shall hereafter occur in a congregation whose property is held by trustees which, in its organization and government, is a church or society entirely independent of any other church or general society, a majority of the members of such congregation, entitled to vote by its constitution as existing at the time of the division, or where it has no written constitution, entitled to vote by its ordinary practice or custom, may decide the right, title, and control of all property held in trust for such congregation. Their decision shall be reported to such court, and if approved by it, shall be so entered as aforesaid, and shall be final as to such right of property so held.
As Judge Bellows explained, however, Virginia follows what is known as the "plain meaning rule," which employs the ordinary use of terms employed in a statute as of the date of enactment, and does not presume technical usage particular to any one context. (Opinion 47-49).

2. Battle of the Experts

The statute was enacted, according to the court, in substantially its present form in 1867. (Opinion at 49, n. 37). According to the court's summary of CANA's expert witness testimony, the occasion for its enactment was a series of schisms within the Presbyterian and Methodist Churches,which led to claims and counterclaims over property possession. (Opinion at 49-53 (Valeri); 54-57 (Irons)). The Methodist Church's struggles, in particular, led to the passage of the statute. Id. Although Judge Bellows noted the existence of "much testimony" concerning the separation between the TEC parishes in the Confederacy and those in the Union during the Civil War, he found no particular guidance from such testimony, as the existence of any division other than a geographical decision was unclear. (Opinion at 53, n. 44). From Judge Bellow's summary, TEC's expert witnesses did not address the circumstances of the enactment of the statute, but testified that, in Episcopal Church governance, a "division" is only one that is recognized as legitimate by the church authorities, and that they provided testimony as to the nature of relations between TEC and the remainder of the Anglican Communion. (Opinion at 63, 57-63).

Judge Bellows was clearly more impressed with the specificity with which CANA's experts addressed their testimony to the Virginia statute's passage and early application; TEC's more holistic approach from the perspective of Episcopal polity did not seem to him persuasive. Regrettably, I see his point. The problem here is not whether the division is one "recognized" by TEC, or acquiesced in by it--we'd hardly have a litigation if that was the case. Rather, the question is what the Virginia General Assembly meant by the terms at issue, and, under those terms whether the events at hand constitute a "division" within a "church" or "religious society" constituting "branches," one of which the dissentient parishes have moved to join. By finding the Anglican Communion constitutes a "religious society" (at least; it might also equate with a church), and that TEC's affiliation with it means that it is not "entirely independent", the court concluded that deference to TEC's "constitution, ordinary practice, or custom", which is only provided to such "entirely independent churches, was not warranted here. (Opinion at 48; 76). Put differently, because the court found that the Anglican Communion was a "religious society" of which TEC, the ADV and the Church of Nigeria were branches, the court dispensed with any deference to TEC's canons and polity, and found that the statute as interpreted mandatorily awards the property to the local congregation.

TEC appears to have focused most of its firepower on the question of "division," which, speaking as a Monday morning quarterback, seems profoundly in error. Simply put, that term, in its "plain meaning" seems to be clearly applicable, and the effort to limit the statute to amicable partings appears foredoomed.

The court is on shakier ground when it treats the AC as a "religious society" in the statutory terms; Judge Bellows undestandably relied on TEC's expert's concession that a "religious society" can denote a "much looser federation" and on the description of the Archbishop of Canterbury as "President" and "chief pastor." Despite this, I think his analysis is dangerously close to a judicial ruling structuring ecclesiastical polity. (see pt. 3, below). In view of TEC's expert's concession--a point I had not focused on in my first blush reading, after which I commented here and here, I see why Judge Bellows was led to the conclusion he reached. Still, by this broad definition, a good case could be made that the World Council of Churches would fit it--which would, I suspect, make for some interesting litigation possibilities.

More to the point, the reading of the statute to include the Anglican Communion as a religious society, and TEC and the CoN as branches thereof works a forfeiture of a church's ability to order property relations when there is any tie to other churches, a significant statutory disincentive to ecumenicism, or even ecumenical collaboration. The statute as read would polarize churches, either requiring total segregation from each other, or eliminating ecclesiastical polity in favor of legislatively mandated congregationalism. My first reading, linked above, was that the General Assembly could not have meant this result; upon a second reading of the Opinion, I'm not so sure.

3. The Statute and the First Amendment

The First Amendment's guarantees, explicitly imposed only upon Congress, have been deemed to have been incorporated (made enforceable) against the states by the Fourteenth Amendment, first noted in Gitlow v. New York, 268 U.S. 652 (1925). The incorporation doctrine was first applied to the Establishment Clause and Free Exercise Clause in Everson v. Bd. of Educ., 330 U.S. 1 (1947). For over 60 years, though questioned by some such as Justice Thomas, the Supreme Court has held in an unbroken chain of precedent that the states cannot make laws respecting an establishment or religion any more than can Congress--nor can they inhibit its free exercise.

In Jones v. Wolf, 443 U.S. 595, 602-603(1979), the Supreme Court held that:
the First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes." [Presbyt. Church v. Hull Church, 393 U.S. 440,449 1969]. Most importantly, the First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice. Serbian Orthodox Diocese v. Milivojevich, 426 U. S. 696, 710 (1976); Maryland & Va. Churches v. Sharpsburg Church, 396 U. S. 367, 368 (1970); Presbyterian Church I, 393 U.S. at 449. As a corollary to this commandment, the Amendment requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization. Serbian Orthodox Diocese, 426 U.S. at 724-725; cf. [Watson v. Jones], 80 U. S. [679],733-734 (1872).


The primary advantages of the neutral principles approach are that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity. The method relies exclusively on objective, well established concepts of trust and property law familiar to lawyers and judges. It thereby promises to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice. Furthermore, the neutral principles analysis shares the peculiar genius of private law systems in general -- flexibility in ordering private rights and obligations to reflect the intentions of the parties. Through appropriate reversionary clauses and trust provisions, religious societies can specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy.
Simply put, the Viginia statute, as applied here, eliminates the flexibility relied upon by the Supreme Court in validating neutral principles, and, what is worse, requires the trial court to parse polity carefully (and, I think in a manner that is heavily slanted in favor of legally mandated congregationalism, as described above). Another saving quality alluded to by the Supreme Court is extinguished by the court's reading of the statute--that is, the ability of a church to plan for any divisions or schisms, and in advance determine these questions. The Virginia statute takes that ability away as well, and, as construed by Judge Bellows, I believe 57-9 contravenes the scope of permissible adjudication of property disputes as set forth in Jones v. Wolf.

As of 2007, Jones v. Wolf remains good law. See, e.g., Matter of Congregation Yetev Lev D'Satmar, Inc. v Jacob (Ny Ct. App. 2007). Therefore, while I think that the interpretation of section 57-9 may stand up on appeal, I believe that its constitutionality is very open to question, and could only be upheld by subjecting religious bodies to significant state and federal interference in their internal polity and doctrine.


klady said...

Thank you for this. You clarified one point I was not certain about after my own reading when later I read this excerpt from the Washington Post article quoted in The Lead:

"Scott Ward, an attorney for several of the congregations, noted that the state statute calls itself "conclusive" and said that might ultimately render a fall trial unnecessary.

But Henry Burt, a spokesman for the diocese, said his side believes that ownership of church property is determined by other things, including a denomination's laws and deeds and the history of how the property has been managed and controlled over time.

The parts of the opinion you quote distinguishing parts A and B of the statute (esp. at p. 48) indicate that the judge has pretty much foreclosed Mr. Burt's view as a possible way of interpreting and applying the statute -- assuming it passes constitutional muster.

Some further thoughts of my own: First, you suggested that the TEC lawyers erred by putting so much of their "firepower" into the "division" argument. While I have no way of knowing what their litigation strategy was and is, I wonder if the result was strategically far better than if the court found there was no division, in fact, based on the argument that in a hierarchal church like TEC, there can be no division but one acknowledged and accepted at the top (which, as you point out, would not likely be the kind to create a dispute requiring use of this statute). In other words, if the trial court were to have decided that "division" meant entirely different things depending on the nature of the church or society involved (i.e. of the kind that would not fall under part B of the statute) -- do you not think that most clear-thinking appellate court judges would reject that kind of interpretation of the statute? The text does not call for determination of exceptions or categorizing churches any way other than those given for A and B. And the whole argument that "that's not how we do things/ what we believe" etc. seems to go to the heart of the constitutional argument, not that the legislature, in effect, could not possibly have intended to interfere in our churches or keep us from following our rules and customs.

Now, as a practical matter, TEC lawyers could not do anything but make the argument on "division" (it simply would not do to simply concede at the outset that the statute generally applied but nevertheless was unconstitutional) -- and it sounds to me that they made the best argument they could. But I think it actually helps them to have gotten this ruling and to have gotten it first, before the constitutional arguments were made, because it seems to me that the devil is in the details, so to speak. While it may be that appellate court judges (state or U.S.) will not be outraged at what the statute does, if they might be so persuaded, as they should, how better to incite them than with this ruling? So isn't it really, as John Chilton suggested at The Lead, advantage TEC rather than CANA at this point?

I say this fully aware of the fact that the "branch" part of the court's analysis is most disturbing and seems to be grossly inaccurate as it applies to the relationships among the Anglican Communion, TEC, Nigeria, DOV, CANA, etc. A couple further comments on that.

First, when I was reading, I was not entirely sure that the judge was necessarily agreeing with the CANA folks that they are a branch of this or that. It's not that he was rejecting their claims, either, but it seemed to me that his analysis was premised on the notion that it doesn't matter what anyone thinks of the legitimacy of the "branch" or its relations to the other parts, as long as there are the three "occurrences" listed on p. 81: (1) a "split" or "rupture" in a religious denomination, (2) the separation of a group of congregations, clergy, or members from the church, and (3) the formation of an "alternative polity that disaffecting members could join."

It seemed to me that in discussing (1) and (3), the judge covered all the different ways it could be viewed in this particular case -- split within the congregation, within the diocese, within the national church, within the Anglican Communion and an alternative structure that may or may not be characterized as part of another part of the AC or as part of part that has split from the AC. The overall point of the discussion seemed to be that there was ample evidence of some kind of split or rupture, no matter where one stands, and since there appeared to be some kind of viable alternative structure or polity to which the congregations have sought to attach, it didn't matter how large the split, who recognized it as effective, whether it was legal or legitimate within the rules and customs of the mother church -- DOV, TEC or the AC. Therefore, DOV and TEC did not necessarily fail to make the judge see how *we* are constituted and operate -- from his perspective, he was not called upon to decide that but rather throw out all the different possible characterizations of what occurred, all of which could be viewed as "division" followed by detachment and reattachment to some other "branch," even if the "branch" is a new group of dissidents, aligned to a new polity created by themselves and/or attached to another kind of branch such as the Anglican Church of Nigeria.

Second, this view of "branch" strikes me as how the statute must be interpreted and applied if one is to go by its general terms and the logic of its provisions (and not read into it the original historical setting or post-legislative intent in light of the recent amendments that failed). The fact that it does such violence to TEC and any other church to whom it might apply comes from the terms of the statute itself.

What is rather shocking about it is that it says that any congregation or parish that does not fall under part B can at any time decide, by a simple majority, to abandon its "attachments" with the larger church or "society," take ALL THE PROPERTY with that group, and reattach itself to any other group with any kind of organization structure (as long as one can prove the "polity" exists -- 3 men and a website come to mind -- but presumably a "real" polity would not be hard to create, as well). The statute does not say how one determines a majority of the "whole number," how often a vote can be taken and a petition filed to detach and reattach elsewhere, let alone how one decides whether a "branch" exists (i.e. aside from the 3 "occurrences," to what extent must a branch resemble or take a name similar to the original -- though the facts of the current case do not really test the outer parameters of "branch" in that sense).

The statute itself is therefore terribly intrusive on the affairs of any church that might fall under part A -- not just strongly hierarchal ones like TEC. It doesn't just provide a legal mechanism for civil society to recognize the status quo; rather it creates one that easily can be used to cause schism and to transfer property whenever a simple majority can be assembled and maintained for the duration of the lawsuit. And once divided, wouldn't control over the property mean that the "winning" side can keep the others from continuing to attend? Or is the statute intended to have local churches look like the cottage in Disney's Sleeping Beauty -- wands firing right and left, poof it's pink, poof it's blue, American, Nigerian, Argentinian until the whole place explodes or collapses from all that expended firepower.

(Sorry - this Monday a.m. quarterback is in hurried discursive mode -- in stark contrast to your carefully outlined analysis. My apologies).

In any event, I think we agree that there are serious constitutional problems with the statute as interpreted and applied by the trial court judge. It will be interesting to see how the judges up and down the line will respond to the constitutional issues.

Anglocat said...

Many thanks for the kind words.

I like your analysis, especially your defense of counsel's fighting on "division."

The benefit you point to, I think, might equally well have been achieved by doing a two point motion--first, the statute did not mean what the CANA-ites read it to mean, and second, the statute if it did mean that, it violates the First Amendment.

SMore to your point, I think if I did want to argue the statutory point, (now I'm a Monday evening quarterback), I'd have been tempted in arguing the statute doesn't apply to focus much more on the "entire independence" and "religious society" points, using religious groups like the Quakers, and other congregational affiliations to raw a contrast with the hierarchical polity of the self-standing TEC.

But, as I acknowledged in my post, that may be somewhat academic--the statute as interpreted here does seem to force any kind of church in relationship with another into a congregationl polity--with all the disastrous effects you note. Our best hope stemming from this is that I do believe the statute does contravene Jones v. Wolf, and is, unless we get a whole new interpretation of the First Amendment in the religious context. One hopeful point: The Court is chafing at the edges of its religion clause jurisprudence--but seeking to free up churches, not, I think (pace Justice Thomas), for more state intervention.

But, of course, I could be wrong...

Again, thanks for your thought-provoking commentary.