Avoiding a Question of Interpretation: The Dog that Did Not Bark--Yet.

The January 10, 2012 decision of the Circuit Court, Fairfax County found in favor of the Episcopal Church's and the Episcopal Diocese of Virginia's claim to the long-held, historically significant churches which purported to align with the Church of Nigeria between December 2006 and November 2007. The decision is quite long, and detailed, and I don't intend to summarize it at length here. Rather, I'm writing to address the unresolved constitutional question lurking beneath Judge Bellows' carefully crafted ruling.

The judge in the Virginia case, Randy I. Bellows, had previously ruled in favor of the ACNA Diocese, on the basis of a pre-Civil War statute which effectively allowed for the congregation and not the denomination to retain the property in the event of a "division." As I wrote at the time, the presumption of congregational polity which Judge Bellows' opinion seemed to me to engraft into the law seems inconsistent with constitutional precedent set by the U.S. Supreme Court. (My earlier analysis of that decision is here). However, the Supreme Court of Virginia reversed the opinion, on the ground that the "division statute" did not apply:

The Circuit Court erred as a matter of law by holding that the requirements of Va. Code § 57-9(A) were satisfied in these cases. That holding was error because the court adopted erroneous and entangling definitions of the statutory terms "division," "branch," and "attached," leading the court to err by holding that a "division" has occurred in the Anglican Communion, the Episcopal Church (the "Church" or "TEC"), and the Diocese of Virginia (the "Diocese"); that all relevant entities were "branches" of and "attached" to the Anglican Communion; and that the Convocation of Anglicans in North American [sic] ("CANA") and Anglican District of Virginia ("ADV") are "branches" of the Church and the Diocese.

Protestant Episcopal Church in the Diocese of Virginia v. Truro Church, 280 Va. 6, at 18 (2010).

Neither Judge Bellows nor the Supreme Court opined as to s signal constitutional question raised by TEC--that, having complied with the steps specified by the Supreme Court of the United States in Jones v. Wolf as sufficing to create a denominational trust, did not the application of pre-Civil War statutes which do not recognize the interest created thereby violate the "neutral principles" approach to secular courts deciding property disputes arising from ecclesial breakups, and thus violate the First Amendment. (Still with me? Excellent. Onwards!)
Subsequent to the remand, Judge Bellows took extensive testimony and briefing, after which the Court made "three princip[al] rulings":

1. TEC and the Diocese have a contractual and proprietary interest in each of the seven Episcopal churches that are the subjects of this litigation. Specifically, the Court finds for TEC and the Diocese in their Declaratory Judgment actions and, among other relief, orders that all real property conveyed by the 41 deeds, as well as all personal property acquired by the churches up to the filing date of the Declaratory Judgment actions (on or about January 31, 2007 or February 1, 2007) are to be promptly conveyed to the Diocese. (Additional instructions are provided at the conclusion of this Letter Opinion.)
2. The CANA Congregations' Amended Counterclaims are denied in their entirety. Specifically, the Court finds that the CANA Congregations, in that they are not Episcopal Congregations, do not possess either contractual or proprietary interests in the property of the seven Episcopal Churches at issue. They are, therefore, enjoined from further use or control of these properties and must promptly relinquish them to the Diocese. Moreover, the Court finds no merit in the CANA Congregations' claims for unjust enrichment, quantum meruit, and constructive trust and grants TEC's and the Diocese's motions to strike these claims.
3. The vestry empowered to elect directors to the Falls Church Endowment Fund is the vestry recognized by the Diocese as the Episcopal vestry of The Falls Church, that is to say, the Continuing Congregation.

(January 10, 2012 Opinion at 13-14).

In Jones, the Court held that "[t]hrough 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." 443 U.S. at 602-603. The Court further emphasized that "neutral principles would not be onerous for religious bodies to comply with:

Under the neutral principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.

443 U.S. at 606. Except, for now, in Virginia.

As Judge Bellows writes, "[a]fter the Supreme Court issued Jones, TEC decided to avail itself of the Supreme Court's suggestion that a denomination might amend its governing documents to recite an express trust in favor of the denomination. The General Convention adopted a canon (now Canon I.7(4)), called either the 'Dennis Canon' or the '1979 Trust Canon.'” (January 10, 2012 Opinion at 29). Judge Bellows, however, found that the Dennis Canon did not comport with another section of Virginia statues governing church trusts, and therefore found that "neither the Dennis Canon nor Diocesan Canon 15.1 had their intended effect in the Commonwealth, given the fact that the Commonwealth did not validate denominational trusts." (Id. at n. 14).In view of his finding that under Virginia precedents, the Diocese and TEC had a legal claim to the property based on the course of dealings between the parishes and the Diocese and the denomination, Judge Bellows did not address the constitutional question, which seems to me quite significant: If the First Amendment. But it seems to me that Virginia's statute is here of extremely dubious constitutionality--it does not allow the national church to take the simple steps suggested in Jones to effectuate its polity, because the trust created thereby is not recognized by state law.