Virginia court tells breakaway congregations to return property

By Mary Frances Schjonberg
Posted Jan 11, 2012

Editor’s note: Updated Jan. 12, 2012 at 5:00 p.m. EST with additional reaction and to remove reference to old press release.

[Episcopal News Service] A Fairfax County, Virginia, court has told seven breakaway congregations that they must return control of church property to the Diocese of Virginia and the Episcopal Church.

The majority of members and clergy of those parishes left to form congregations of the Convocation of Anglicans in North America (CANA), which the Anglican Province of Nigeria began in 2005. The departing members of those congregations then filed claims to parish property under Virginia law.

Judge Randy I. Bellows said in a letter opinion issued late on Jan. 10 that the diocese and the Episcopal Church “have a contractual and proprietary interest in the property of these Episcopal churches” and added that while congregations “had an absolute right to depart from [the Episcopal Church] and the diocese, they had no right to take these seven Episcopal churches with them.”

Bellows’ decision stemmed from a June 2010 decision of the Virginia Supreme Court that said he erred in an earlier ruling when he said that the breakaway congregations involved in the cases were entitled to retain all the parishes’ real and personal property when they left the Episcopal Church and joined another denomination.

In coming to his opinion, Bellows reviewed Virginia statutes governing church property, the deeds to the real property of the churches, the governing rules of the diocese and the Episcopal Church, and the historic relationship between the parishes and the larger church.

He concluded state statutes support a finding that a local congregation is obligated to comply with the “laws, rules and ecclesiastical polity” of the denomination with regard to property and that the constitution and canons of both the diocese and the Episcopal Church “demonstrate pervasive dominion, management, and control over local church property, in a manner normally associated with ownership, title, and possession.” Bellows said the deeds in question make clear that the property “cannot be removed from the denomination without the larger church’s consent.”

And, Bellows listed 20 ways in which each of the parishes throughout their history, until the time many of their congregants broke away, acknowledged the authority of the diocese and the larger church. He also cited numerous ways specific to each of the parishes in which their so-called “course of dealings” showed them to be subordinate parts of the Episcopal Church.

Bellows said that all personal property acquired by the congregations before Jan. 31, 2007, or Feb. 1, 2007, (depending on the congregation) must be returned and all liquid personal property (e.g., contributions and donations of money) acquired after those dates will remain with the breakaway congregations. Any tangible personal property the congregations acquired after those dates must be given to the diocese and the Episcopal Church unless the congregations can prove that they were donated to them after those dates or purchased solely with money received after those dates.

The text of the 113-page ruling is here.

“Our goal throughout this litigation has been to return faithful Episcopalians to their church homes and Episcopal properties to the mission of the church,” Virginia Bishop Shannon S. Johnston said in a statement after the ruling. “While we are grateful for the decision in our favor, we remain mindful of the toll this litigation has taken on all parties involved, and we continue to pray for all affected by the litigation.”

Henry D.W. Burt, secretary of the diocese and chief of staff, said in the same statement that “we hope that this ruling will lead to our congregations returning to worship in their church homes in the near future, while finding a way to support the CANA congregations as they plan their transition.”

The Rev. Canon Charles Robertson, canon to the presiding bishop and primate, said Jan. 11 that “I give thanks with the people of the Diocese of Virginia for the recent court decision, and even more for their passionate commitment to the mission of the church. And I join Bishop Johnston in calling us to pray for all those who have experienced the struggles of this litigation.”

Meanwhile, Jim Oakes, chairman of the Anglican District of Virginia, which is the umbrella organization for the Anglican congregations, said in a Jan. 10 press release issued by the breakaway Falls Church that “we are profoundly disappointed by today’s decision.”

He offered “our gratitude to Judge Bellows for his review of this case. As we prayerfully consider our legal options, we above all remain steadfast in our effort to defend the historic Christian faith. Regardless of today’s ruling, we are confident that God is in control, and that He will continue to guide our path.”

The Rev. John Yates, rector of the breakaway Falls Church, said in the same press release that “the core issue for us is not physical property, but theological and moral truth and the intellectual integrity of faith in the modern world.”

“Wherever we worship, we remain Anglicans because we cannot compromise our historic faith. Like our spiritual forebears in the Reformation, ‘Here we stand. So help us God. We can do no other.'”

CANA Missionary Bishop Martyn Minns called the ruling “a great disappointment to me.”

“We all know that Christ’s church is built in the hearts of men, women, and children – not in stones, bricks and mortar no matter how historical, beautiful, or valuable,” he said Jan. 11. “But there are so many personal connections to the buildings that will likely be disrupted by the potential loss of these properties: baptisms performed, marriages celebrated, and funerals remembered.”

In June 2010, the Supreme Court held that although disagreements had caused “a division” within the Episcopal Church and the Diocese of Virginia, the breakaway congregations had affiliated with a church that was not a branch of either the Episcopal Church or the diocese. Such an affiliation is required, the court said, for Virginia’s one-of-a-kind “Division Statute” (Section 57-9(A)) to apply, as the breakaway congregations claimed.

The Supreme Court returned the cases to the lower court for further proceedings to resolve the property claims of the Episcopal Church and the diocese “under principles of real property and contract law.” Bellows held a trial that lasted 22 days stretched over April, May and June 2011, and included testimony by 60 witnesses. He wrote that he also reviewed thousands of pages of post-trial briefs.

In the Jan. 10 ruling, Bellows gave the diocese and the Episcopal Church 45 days to submit a proposed order to enforce his ruling on returning the property. The CANA congregations are to be given “a reasonable opportunity to note their exceptions,” he said, and he gave all the parties 30 days from Jan. 10 to request a hearing on the terms of the proposed order.

More information about the cases, including all court filings, is available here.

– The Rev. Mary Frances Schjonberg is an editor/reporter for the Episcopal News Service.


Comments (25)

  1. Christopher James says:

    I am in alignment with the “break aways” in that they are truly the ones who have stayed true to Christian doctrine. However, I have never supported the leadership of CANA fighting for these properties. While the shepherds fought for the lands, the sheep scattered and suffered and were attacked.

    I am a man who has suffered through divorce. I know that sometimes “the other” chooses to not follow the vows of the union. Such is the case with TEC. As in Amos 3:3, “Can two walk together unless they have agreed?” No. Yet, when faced with one who has chosen to walk a wayward path, what is one to do? Having seen the judgmental nature of many in “the church” towards those who are divorced I wondered if the great minds and learned spirits of CANA leadership would behave as Christ or as men. My observation is that they fell far short of the glory of God and acted mostly as men, relying on the law which never sets man free.

    When divorce happens and people focus on the “things”, the children suffer. When this schism happened and CANA focused on the “things”, the people suffered. When CANA quite appropriately and righteously stood up and said that the doctrine being followed by TEC was no longer Christian, they indeed should have walked out and took the congregations with them. Had they done that the new congregations (and the new buildings) would be flourishing and the ones left holding the buildings of the past, would have collapsed as predicted now under the weight of the costs of maintenance. Yet, like Lot’s wife, the TEC leaders looked back, longed for the buildings, longed for the past, longed for the slavery, just as the people of Israel did when they were in the desert. They became blind guides focused on the properties rather than the real church, which is the people. They have failed many. I pray they can now focus on what is of interest to God, people’s lives, their salvation, and their sanctification.

    The God we serve not only owns the cattle on a thousand hills, but the hills themselves. May the shepherds repent and get back to tending to their flocks.

    Christopher James

  2. Rev. Andrew Gerales Gentry says:

    I am not an Episcopalian but as a fellow Christian I would strongly advise the Diocese and the Episcopal Church to consider the long term impact of this very sad legal struggle. I am told by my Presbyterian friends that they have found it to be a benefit ultimately for all parties to simply allow departing congregations, if there is a two thirds majority of parishioners who so request retention of the physical property , to retain that property. Otherwise I am told the deep seated hurt and anger felt by the local congregation just festers and grows not to mention that it gives the appearance that the monetary value of the property is more important than the reasons for the separation! Let’s face it the Christian “Church” already has a reputation of placing money over person!

    1. Michael N Isham says:

      Perhaps Rev. Gentry is overlooking the reality that, in the Episcopal tradition, the property in question is not so much the home of the current congregation, as he puts it, but the seat of a multi-generational parish. We are not congregationalist in nature! Those who have contributed toward the building and upkeep of these parish properties throughout many generations since the American Revolution, did so in the interests of the long-term integrity of the parish and the Episcopal Church. And by the way, as Episcopalians AND good Americans, I suspect that those generations of the past would have been appalled at the thought of their parish being referred to as “Anglican”, and with the prospect of official subservience to a foreign ecclesiastical authority (Nigerian, in this case). Finally, deep seated hurt and anger would seem to me to be the expected fruits for those who enter disputes supposing themselves righteously and absolutely correct and who further function without compromise. My children often expressed deep seated hurt and anger when their immediate need-of-the-moment was thwarted!

      1. Matthew Schettler says:

        This was never even an issue until TEC started to bleed congregations in the 1960s and 1970s due to the rise of liberalism and higher critical methods of interpretation ultimately culminating in the ordination of women in 1976. The “Dennis Canon,” passed in 1979, established the “inter-generational trust” that TEC holds to today. There is nothing historical about this canon; it is merely reactionary.

        You also suspect that the generations of the Saints passed would be “appalled at the thought of their parish being referred to as “Anglican”, and with the prospect of official subservience to a foreign ecclesiastical authority .” That may be so, but I’m sure that they would have been even more appalled by the teachings of TEC today. If they were exposed to TEC’s post-modern theology, they would have left the church in a heartbeat.

        1. Michael N Isham says:

          It’s very interesting that Mr. Schettler commonly uses words such as “I’m sure that” compared to my “I suspect that.” Thanks be to the Lord that he didn’t seek a position as a prosecutor: we’d all be convicted and sentenced with his omniscient certainties!

  3. Christina McCann says:

    The break away congregants have ignored the belief that God created us and loves us. There are no qualifiers in that concept. God would not create an abomination, thus homophobic people are denying God’s creation and God’s love for all creation. It is foolish to rely on a statement in the bible made by a Jewish people 3,000 years ago. I think we in the present age understand God,’s love, especially through the Christian Bible, which includes a new covenant. Jesus did change things and the strict laws of Leviticus was one of those things.

    1. Matthew Schettler says:

      You’re right, Christina. God loves all of us; all of His creation. Why else would He send His Son to bleed and die a horrific death on the cross? But by saying that it is foolish to “rely on a statement in the bible made by a Jewish people 3,000 years ago,” you are denying God’s love for us; denying the Death and Resurrection of Jesus Christ. If it is foolish to rely on the word of God spoken in the Old Testament, then why should it be any less foolish to rely on the word of God, the saving message of Jesus Christ, spoken of in the New Testament. 2 Timothy 3:16 states:

      “All Scripture is breathed out by God and profitable for teaching, for reproof, for correction, and for training in righteousness.”

      If all Scripture (both Old and New Testaments) is God-breathed (inspired), than how can any of it be false?

      In his New Testament epistles, Paul decries homosexuality in both Romans 1:26-27 and I Corinthians 6:9-11, among other places. Both forbid against homosexual activities. In his Epistle to the Corinthians, Paul writes:

      “Or do you not know that the unrighteous will not inherit the kingdom of God? Do not be deceived: neither the sexually immoral, nor idolaters, nor adulterers, nor men who practice homosexuality, nor thieves, nor the greedy, nor drunkards, nor revilers, nor swindlers will inherit the kingdom of God. And such were some of you. But you were washed, you were sanctified, you were justified in the name of the Lord Jesus Christ and by the Spirit of our God”

      That list of sins pretty much rules all of out of salvation but, as you said, God has love for all his creation. He doesn’t give us license to “sin and sin boldly” (Rom. 7:19), but he calls us to repentance, and to receive forgiveness in the administration of the Sacraments.

      1. Michael N Isham says:

        I’m very puzzled which version of Christian scriptures Mr. Schettler used when quoting the word “homsexuality”? I have referenced five very common English language versions and seem not to have found that word! Perhaps Mr. Schettler is personally translating from his Greek language NT?

        And in response to Mr. Schettler’s concern about scriptural absolutes, in Mark 4, verse 31 our Lord is quoted as saying, “It is like the mustard which, when sown upon the ground, is the smallest of all the seeds on earth……” Having personally seen smaller seeds than the mustard seed, I could conclude that Jesus made an incorrect statement; however, regardless of the accuracy of the statement, I believe that His parable stands as one of great truth! As my mother once told me, “Come to me having perfected the first and second commandments of Christ, and then we’ll talk about the specifics of the rest!”

        1. Matthew Schettler says:

          First of all, I use the English Standard Version of the Bible. But, since you brought it up, the Greek word in question is “arsenokoitēs” which has been translated anywhere from “male prostitution” to “men who practice homosexuality.” There are exciting arguments on both sides of the translation, and I encourage you to check them out.

          As for the parable of the mustard seed, John A. Sproule of Grace Theological Seminary wrote an excellent essay entitled “The Problem of the Mustard Seed” which deals directly with that piece of text. A quick Google search will take you to the article in question. I see no reason why not to take that passage, along with the entirety of Scripture, literally.

          1. don says:

            You take the ‘entirety of Scripture literally’? Really. How about the parables? Was there an actual ‘sower who went forth to sow’, and if there wasn’t, does that mean the parable contains no truth? How about Revelation? Does Jesus have an actual sword in his mouth and snow white hair? How about the Psalms? Does God have breasts and wings?
            You believe that the Bible is free of metaphor, symbolism, poetry? You are equating ‘truth’ with ‘literal reading/interpretation.’ What an impoverished, limiting, and unsatisfactory view.

          2. Michael N Isham says:

            Again, Mr. Schettler speaks with presumed omniscience when he quotes St. Paul as decrying “homosexuality” when such a word is neither used in the ESV, nor was such a word in existence until, probably, the 19th century. While I had not been familiar with this translation of the scriptures, my recent review found it to be essentially in keeping with nearly all others. In the reading of the passages of Romans that Mr. Schelttler quotes. I am more in keeping with former President Carter’s view, who I suspect may be viewed as another heretic by Mr. Schettler, that the essential point of Paul’s words here were that the sexual interactions described were ones that were entirely of lust, with no loving regard for their sexual partners. While I will acknowledge that this predicament seems to be more common among those in the gay community, it is certainly not rare among straight people. And who among us, including Mr. Schettler AND myself, has not been guilty of this behavior, even with our committed, monogamous partners?

            Mr. Schettler responds to my question concerning his use of the Greek text with an adroitly executed game of intellectual dodge ball. His discourse on “arsenokoitēs” is factually correct, but one that appears to be excerpted from another’s writings. Forgive me should I be wrong, but it would appear that Mr. Schettler is presenting another’s conclusions as his own. Again, does he personally use the Greek text in his readings of the NT? If so, I honor his abilities in this regard.

            In spite of my disagreement with Mr. Schettler’s positions on these matters, I very much respect both him and his viewpoints. There are members of my extended family that hold similar opinions, and I love them dearly. However, I’d be more comfortable with Mr. Schettler’s views would that he make better use of words such as “I believe” vs what appears to be a heavy-handed sense of “I know.”

  4. christina mccan says:

    “But you [sinners] were washed, you were sanctified, you were justified in the name of the Lord Jesus Christ and by the Spirit of our God”

    1. Matthew Schettler says:

      You’re right, Christina. We are justified by faith, as Paul states in Romans 5:1.

      “Therefore, since we have been justified by faith, bwe1 have peace with God through our Lord Jesus Christ.”

      However, we aren’t given the license to sin. Paul also states in Romans 3:31

      “Do we then overthrow the law by this faith? By no means! On the contrary, we uphold the law.”

      We aren’t supposed to sin just because we are given grace anew each morning (Lam. 3:23). We are supposed to uphold the law, but not be burdened by it.

      1. Michael N Isham says:

        Mr. Schettler is correct that we we aren’t “supposed” to sin, but human beings both he and I know that we do anyway, even with the gifts of faith and justification. So, Ms McCan, in the words of our Lord, shall we discuss the speck in your eye, or the log in Mr. Schettler’s?

        1. Matthew Schettler says:

          In the case of Matthew 7:3 (the log and speck), the text note in The Lutheran Study Bible (LC-MS version) provides a succinct exposition of the verse.

          “Jesus used a grotesque exaggeration to illustrate how absurd it was for His disciples to pick out the sins of others when they have not repented of their own.”

          1. Michael N Isham says:

            Again, Mr. Schettler speaks with great authority and assuredness. Though he appears to be poised to judge with quickly-engineered certainty, I and many others find ourselves all too painfully knowledgeable of our own sins and shortcomings, both those of the past and, we are assured, of the future to be functioning as a judge of others. Let Mr. Schettler’s God-generated conscience be his guide; however, as for me, I will restrain from this stiff-necked and authoritarian judgementalism!

  5. Doug Desper says:

    In 2008 the denominational Faith Communities Today survey received responses from 783 Episcopal parishes. Interesting trends can be realized if our church leaders will use this information. Notice I say “If”. One glaring trend regards this discussion and will have some bearing on the next General Convention. In the survey, only 1/3 (33%) of those surveyed considered themselves as considerably or somewhat liberal. However, one can argue that most of our denominational strife centers on narrow liberalizing agendas that attempt to revise the faith and practice of the Church, whether it be the re-definining of marriage, consent to questionable bishops, communion of the unbaptized, reduction of Trinitarian language in new trial liturgies, etc. ONLY 1/3 of those surveyed would likely identify positively with these issues. Yet, our strife continues as the patience and faith of congregations continues to be tried until drastic separations happen. Now one looks with weary eyes as the General Convention will likely drive more wedges into this Church. So, if nearly 2/3 of this Church (at least 783 congregations) considers themselves more in the middle or conservative in faith and practice, why are we being led by people who are clearly pulling us apart? “Woe to the shepherds who destroy and scatter the sheep of my pasture”, says the Lord. (Jeremiah 23:1-3).

    1. Michael N Isham says:

      As a child and as a young man, I was taught that the “nigra” was an inferior being to we pasty whites, and that the attempt within the church to restore as sense of equality in the matter was the work of liberals (and probably communists) within the church leadership who were bent on destroying we conservative parishioners who knew better. Like I suspect that you have done above, Mr. Desper, they spoke from their guts with deep emotion and mistook their human cultural mores for God-inspired truth. While I report that I now find this mindset ludicrous, I’m saddened to report that, at the time, I believed them.

      As a student of church history, I have found that matters of questionable bishops, definitions of marriage, trinitarian dogma, and theological certainties have ALWAYS been with us. While I acknowledge that you believe that the ecclesiastical sky is falling in, what has changed? We have survived thus far have we not?

      Now I must ask, having once been fooled by the likes of your well-meaning invective, why should I believe you? If 99.9% of your group jump into the sea of schism, I trust you will feel yourself in good company. But why should I follow? Just as with the issues of slavery and racial equality of the past, I believe that one hundred years hence will find you and your ilk sadly wrong.

  6. Richard Angelo says:

    Break-awayers have every right to break away.. they just should not take the building and church appointments, records with them.. If they no longer wish to be Episcopalian that is fine but you cannot have it both ways..

  7. Doug Desper says:

    Mr. Angelo, what happens when those in charge of the Church leave behind the established teachings and practice of the faith (especially of those who gave the property and goods) and pursue their own spiritual fantasies and promote them as doctrine and practice? Who left whom? When you have a several dozen or even a few hundred people leaving across the Church you have a movement. When you have thousands staying away and thousands breaking away you have a crisis. The argument of the “break-awayers” is that a narrow agenda is being pursued by significant leadership to the peril and expense of the entire Church. Who left? I would firmly state that the ones who left and are leaving are those who want to redefine marriage, claim that Jesus is a spiritual master among many, that Jesus is our way to salvation, but not the Way (and thus ignore His words), and whatever further spiritual fantasies they promote as the faith once delivered. When they began pursuing and promoting their private ideas, they left. Unfortunately the seat of power is with them – for a season.

    1. Michael N Isham says:

      Mr. Desper: To which “established” practices and teachings of the faith are you referring? Anglican? Romand Catholic? Orthodox? Or perhaps Baptist (oh, not them; they don’t even have bishops)? Where can I find a concise and consistent statement of these practices and teachings?

      Where there is a small gathering of human beings, there will be disagreement and dissent on every matter under the sun. The measure of their godliness is not whether they all agree, but the extent to which they obey the two great commandments in their disagreement! Honestly, I don’t get a sense of either of the two in you writings, Mr. Desper.

  8. Doug Desper says:

    Mr. Isham: Where can you find the concise teachings about who Jesus says that He is? Where can you find His definition of marriage? The Gospels. Where can you find these reiterated in a form to be taught? The Catechism. The Bible and the Prayer Book are our standards and any leader of the Episcopal Church that pursues their own spiritual journey of self-discovery in denial of the catholic faith and order delivered to this Church is a false shepherd that imperils the souls of those under their care. The Church is to transform the culture, not be the chaplains of its novelties and whims.
    Dr Geoffrey Fisher, Archbishop of Canterbury from 1945 to 1961, said that we Anglicans
    ….“… have no doctrine of our own; we possess only the doctrine of the Catholic Church.”
    A great deal of our current distress as we hemorrhage members and resources is that too many people have not been taught the faith as received by this Church, but instead have embarked on a journey to find a faith and practice agreeable to their circumstances.

  9. Charles Daily says:

    Peace and harmony prevailing is what I desire to live as a Christian living in an Episcopal Church.
    The peace of Christ and harmony in following the Holy Scriptures celebrating as we are instructed.
    We come to Eucharist in reconcilliation.

  10. Rev Joe D Herring says:

    I am glad that Judge Bellows has ruled for the Diocese of Virginia and the historic Fairfax parishes. It would appear that physical structures are of greater than passing importance to the fair adjudication of this case. Just as our bodies have a sacramental character, so too our bricks and mortar. It is a gnostic mistake to dismiss church property as an inferior, anti-missionary encumbrance. We can credit the breakaways with faithfulness of conscience, and we can pray for the healing of the Episcopal Church. JoeHerring, Diocese of Atlanta, Alpharetta, GA

  11. Doug Desper says:

    Ruling FOR the diocese now places the burden on the diocese to explain a few things:
    1). How can the diocese lose these thousands of members without attempting to retain them more effectively under the always-vaunted “TEC big tent”? Isn’t it easy to dismiss and villainze the breakaways at this point after they were bragged about for years as vital, growing Episcopal churches? How quickly they were stripped of their accolades when they questioned the course of the Church.
    2). What would possibly convince thousands of members of a diocese to leave it after having become flagship church examples? Was it the persuasive voice of a few loud priests – or could it be that the revisionist theology and practice of TEC had turned them sour? If you believe that a few loud voices soured thousands of people to TEC you effectively are saying that the laity are “sheeple”; that is, mindless and easily swayed. (That, by the way, is an insult to the abilities of these people, not to mention too easy to dismiss them with).
    3) How will less than 100 people showing up on Sunday take the place of 2,000 showing up (in just 1 church) that kept up the property?
    Congratulations to the winners. They have a lot of cleaning up to do, not the least of which is the image that will not be easily repaired for decades as the public travels by these decaying properties.

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