Present: Hassell, C.J., Koontz, Kinser, and Millette, JJ.,
and Lacy, S.J.
THE PROTESTANT EPISCOPAL CHURCH
IN THE DIOCESE OF VIRGINIA
v. Record No. 090682
TRURO CHURCH, ET AL. OPINION BY
JUSTICE LAWRENCE L. KOONTZ, JR.
THE EPISCOPAL CHURCH June 10, 2010
v. Record No. 090683
TRURO CHURCH, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Randy I. Bellows, Judge
These appeals arise from a dispute concerning church
property between a hierarchical church and one of its dioceses
in Virginia and a number of the diocese’s constituent
congregations. The principal issue we must decide is whether
under the specific facts of these cases Code § 57-9(A)
authorized the congregations to file petitions in the
appropriate circuit courts for entry of orders permitting them
to continue to occupy and control real property held in trust
for the congregations after voting to disaffiliate from the
church and affiliate with another polity. 1
1
When used in reference to religious entities, the term
“polity” refers to the internal structural governance of the
denomination. See, e.g., Note, Judicial Intervention in
BACKGROUND
While the consolidated record in these cases is
voluminous, we need recite only those facts necessary to our
resolution of the dispositive issue of whether the circuit
court correctly ruled that Code § 57-9(A) is applicable to the
specific facts in these cases. 2 See, e.g., Asplundh Tree
Expert Co. v. Pacific Employers Ins. Co., 269 Va. 399, 402,
611 S.E.2d 531, 532 (2005). Because the resolution of these
appeals requires us to construe the language of Code § 57-
9(A), we will set out that language here so that the
relationship of the recited facts to the issues to be resolved
will be clear: 3
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
Disputes Over the Use of Church Property, 75 Harv.L.Rev. 1142,
1143-44 (1962).
2
An extended period of discovery, a six-day ore tenus
hearing with witnesses, and many subsidiary hearings before
the circuit court generated a manuscript record of over 8000
pages, many thousands of transcript pages of testimony and
argument, and copious exhibits.
3
The original statute addressing how property rights are
to be determined upon a division within a church or religious
society was adopted by the General Assembly in 1867. 1866-67
Acts ch. 210. Although the statute has been reenacted and
amended several times during the past 150 years, the most
significant change being to create separate subsections for
its application to hierarchical and congregational churches,
2005 Acts ch. 772, the operative language of the statute
construed by the circuit court, and which is the focus of our
discussion in these appeals, has remained unchanged.
2
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.
The Ecclesiastical Relationships Among the Parties
We have previously held that Code § 57-9(A) applies to
congregations of “hierarchical churches,” that is “churches,
such as Episcopal and Presbyterian churches, that are subject
to control by super-congregational bodies.” 4 Baber v.
Caldwell, 207 Va. 694, 698, 152 S.E.2d 23, 26 (1967). The
dispute that resulted in the litigation from which these
appeals arise involves a complex interplay between various
entities within a faith community that has local, national,
and international ties. It is not disputed that the entities
involved in this litigation are part of a hierarchical church,
although the parties differ on which entities compose that
4
Code § 57-9(B) authorizes a circuit court to approve a
vote concerning the use and control of property held in trust
for the benefit of an autonomous congregation not affiliated
with a hierarchical church. The parties stipulated in the
circuit court that the petitioning congregations were “not, in
their organizations and governments, entirely independent of
3
church. In order to better understand the context in which
the dispute arose, we will first identify the entities
involved and their relationship to one another.
The Anglican Communion is an international body that
consists of 38 “provinces,” which are “regional and national
churches that share a common history of their understanding of
the Church catholic through the See of Canterbury” in England.
The Archbishop of Canterbury is the head of the Church of
England, one of the national churches within the Anglican
Communion, and is considered the “chief pastor,” “first among
equals in the wider Anglican Communion,” and the “focus of the
unity” within the leadership in the Anglican Communion.
The Anglican Communion functions through three
“instruments of unity”: the decennial Lambeth Conference; the
Anglican Consultative Council, which meets every two or three
years; and the biennial Primates’ Meeting. The Lambeth
Conference is the oldest of these institutions, dating from
1867. Participation in the Lambeth Conference is by
“invitation only” from the Archbishop of Canterbury, with
invitations being directed to individual church bishops and
other leaders among the clergy, not to regional or national
churches as a unit. Although the Lambeth Conference issues
any other church or general society” and, thus, Code § 57-9(B)
4
resolutions and reports, these are not binding on the regional
and national churches. Rather, the function of the Lambeth
Conference and the other international activities of the
Anglican Communion are “primarily consultative.” Thus, any
action within the Anglican Communion has efficacy within a
regional or national church only if the church adopts the
resolution or report through its own polity structure for the
governance of that church.
The Episcopal Church (“TEC”) is a province of the
Anglican Communion and the principal national church following
the Anglican tradition within the United States. 5 TEC consists
of 111 geographical dioceses with over 7000 congregations and
over 2 million members. The highest governing body of TEC is
the triennial General Convention, which adopts TEC’s
constitution and canons to which the dioceses must give an
“unqualified accession.” Each diocese in turn is governed by
a Bishop and Annual Council that adopts the constitution and
canons for the diocese. Each congregation within a diocese in
turn is bound by the national and diocesan constitutions and
would not apply to the facts of these cases.
5
TEC is also known by the longer form “The Protestant
Episcopal Church in the United States of America,” and was
identified as such, and by the acronym “ECUSA,” in the circuit
court. We have adopted the form used in the style of the
appeal brought by TEC and by the parties in briefing both
appeals.
5
canons. The Protestant Episcopal Church in the Diocese of
Virginia (“the Diocese”) is one of the dioceses within TEC. 6
Priests of TEC are “canonically resident” within a
specific diocese and may not function as priests in any other
diocese of TEC without the permission of the local bishop.
Similarly, a priest ordained by a diocese of TEC may not
function as a priest for one of the other regional or national
churches that participate in the Anglican Communion without
permission from the local authority of that church.
At the 2003 General Convention of TEC, three major points
of controversy arose: the Convention’s confirmation of the
election of Gene Robinson, a homosexual priest, as a bishop of
one of the dioceses of TEC; the adoption of a resolution
permitting the blessing of same-sex unions; and the rejection
of a resolution concerning the “historic formularies of the
Christian faith.” Following the 2003 General Convention,
Peter James Lee, the bishop of the Diocese, who had supported
the confirmation of Robinson as a bishop, received “hundreds
of letters” opposing these actions taken by the General
Convention. Additionally, several congregations opposed to
the actions of the General Convention stopped paying pledges
6
There are three dioceses affiliated with TEC in
Virginia. The “Diocese of Virginia” consists of 38 counties
in the northern and central parts of the Commonwealth.
6
owed to the Diocese and TEC, placing the funds in escrow. As
a result, Bishop Lee became concerned that the dissident
congregations would “attempt to create a parallel province.”
In response to the discord within the Diocese, in 2004 a
“Reconciliation Commission” was formed “to find ways to bring
about some peaceful conflict resolution.” Despite this
effort, dissent concerning the actions of the 2003 General
Convention continued, and in 2005 Bishop Lee created a new
commission “to give attention to this rising threat of
division in the Diocese.” The following year, the commission
promulgated a “Protocol for Departing Congregations.” Under
this protocol, the Diocese initiated procedures for
congregations to conduct votes “regarding possible departure
from the Diocese,” and several congregations initiated
procedures under the protocol to separate from the Diocese.
However, Bishop Lee subsequently advised leaders of the
dissident congregations that due to a change in leadership in
TEC, separation of congregations had become a matter of
concern to the national church, and that a vote to separate
would not be binding on the Diocese or TEC.
Nonetheless, between December 2006 and November 2007, 15
congregations voted to separate from the Diocese. As a
result, 22 members of the clergy associated with these
congregations were deposed, or removed, from their pastoral
7
duties in the Diocese by Bishop Lee. Congregations in other
dioceses of TEC also took similar action to separate from
their dioceses over the controversies arising from the 2003
General Convention. These congregations, as well as newly
formed congregations of former members of TEC, began seeking
to affiliate with other polities within the Anglican Communion
in order “to be a part of the worldwide church.”
The Church of Nigeria is a province of the Anglican
Communion and governs the Anglican churches in the Federal
Republic of Nigeria, a former British colony. In 2005, the
Convocation of Anglican Nigerians in America was established
as a mission of the Church of Nigeria to provide oversight for
expatriate Nigerian congregations in the United States. In
2006, the Church of Nigeria changed the name of this mission
to the Convocation of Anglicans in North America (“CANA”) and
began accepting former TEC congregations. In 2006, the
Anglican District of Virginia (“ADV”) was formed as a district
of CANA. By 2007, CANA included 60 congregations in eighteen
states and 12,000 members, of which 10,000 were in
congregations previously affiliated with dioceses of TEC.
This action was viewed by the Archbishop of Canterbury and the
leadership of TEC as an improper “incursion” of one member of
the Anglican Communion on the territory of another member.
8
The leadership of TEC actively opposed the decision of
the Nigerian Primate, Archbishop Peter J. Akinola, to install
Rev. Martyn Minns, the Rector of one of the dissident
congregations in the Diocese, as the bishop of CANA. In part
because of this conflict, Archbishop Akinola made a
declaration of “broken communion” with TEC. Although
Archbishop Akinola installed Minns as the Bishop of CANA,
Minns was not placed on the “invitation list” for the Lambeth
Conference.
Procedural History
These appeals arise from petitions filed between December
2006 and July 2007 pursuant to Code § 57-9(A) by nine
congregations formerly affiliated with the Diocese which now
purport to be congregations within ADV and CANA (“the CANA
Congregations”). 7 The petitions were originally filed in the
five circuit courts “wherein the property held in trust for
[each] congregation or the greater part thereof” is located.
Each congregation averred in its petition that a “division has
7
The nine congregations are The Church at the Falls – The
Falls Church, in Arlington County; Truro Church, Church of the
Apostles, and Church of the Epiphany, Herndon, in Fairfax
County; St. Margaret’s Church, Woodbridge, St. Paul’s Church,
Haymarket, and Church of the Word, Gainesville, in Prince
William County; Church of Our Saviour at Oatlands, in Loudoun
County; and St. Stephen’s Church, Heathsville, in
Northumberland County.
9
occurred at the international, national, and local levels”
that “resulted from a profound theological break by TEC and
the Diocese from the majority of the other provinces of the
Anglican Communion.” The congregations alleged that as a
result of this division, they had “determined to disaffiliate
from TEC and the Diocese and to reaffiliate with another
branch of the Anglican Communion.” Although the petitions did
not expressly identify the “branch” with which the
congregations proposed to affiliate, exhibits attached to the
petitions identify it as the ADV as a constituent part of
CANA, acknowledging that CANA is a part of the Church of
Nigeria.
The Diocese and TEC intervened in these cases to oppose
the granting of the petitions and also filed declaratory
judgment actions against the CANA Congregations, seeking a
determination of trust, proprietary, and contract rights, if
any, that the Diocese and TEC had in the properties used by
the CANA Congregations which were the subject of the Code
§ 57-9(A) petitions. 8 The CANA Congregations filed answers to
8
TEC filed a single complaint for declaratory judgment
against the CANA Congregations along with two others, Christ
the Redeemer Church and Potomac Falls Church; the Diocese
filed individual complaints for declaratory judgment against
the CANA Congregations and the two others. The congregations
of Christ the Redeemer Church and Potomac Falls Church are not
parties to these appeals.
10
the declaratory judgment actions as well as counterclaims
seeking declaratory judgment in favor of the congregations, to
which the Diocese and TEC filed answers. A three-judge panel
appointed by this Court under the Multiple Claimant Litigation
Act, Code §§ 8.01-267.1, et seq., consolidated all these cases
in the Circuit Court of Fairfax County.
Both TEC and the Diocese challenged the legitimacy of the
CANA Congregations’ petitions on multiple grounds. Their
threshold position, and the issue that is ultimately
dispositive in these appeals, was that relief under Code § 57-
9(A) is not available to the CANA Congregations because there
has been no “division” within TEC or the Diocese and that,
even if there had been, neither CANA nor the ADV is a “branch
of the church” resulting from that division to which the
congregations could, as contemplated by the statute, attach
themselves. The circuit court held a six-day evidentiary
hearing to determine the scope and application of Code § 57-
9(A) and, specifically under the facts of these cases, whether
the statute would authorize the court to grant the requested
relief to the petitioning congregations.
During this hearing, the CANA Congregations, TEC, and the
Diocese presented extensive expert testimony regarding the
enactment of Code § 57-9(A) and the history of divisions in
religious denominations in Virginia. The CANA Congregations’
11
experts testified that TEC had experienced a “division”
because various congregations had separated from TEC in order
to join a separate polity. In contrast, TEC’s and the
Diocese’s experts testified that TEC could not divide without
action by the General Convention, and therefore TEC had not
experienced a “division” as a result of the underlying
ecclesiastical differences. The experts also gave conflicting
testimony as to whether the statutory terms “branch,”
“attached,” and “church or religious society” were met by the
situation presented. We will recount more fully the arguments
of the parties and the evidence of the expert witnesses on
these points subsequently in this opinion.
In a letter opinion dated April 3, 2008, the circuit
court opined that the CANA Congregations had properly invoked
Code § 57-9(A). The circuit court found the Diocese, TEC, and
the Anglican Communion were all “church[es] or religious
societ[ies],” and that CANA, the ADV, the Church of Nigeria,
TEC, and the Diocese were all “branches” of the Anglican
Communion for purposes of applying Code § 57-9(A). Likewise,
the court reasoned that CANA and the ADV were also “branches”
of TEC and the Diocese. Accordingly, the court concluded that
the CANA Congregations were entitled to file petitions under
Code § 57-9(A) in order to have the court determine “the title
12
to and control of any property held in trust” for the benefit
of those congregations.
Following these rulings, the circuit court conducted
further proceedings addressing constitutional challenges to
Code § 57-9(A) raised by TEC and the Diocese under the
establishment and free exercise clauses of the First Amendment
of the United States Constitution and the equivalent
provisions of the Virginia Constitution, as well as arguments
concerning whether the statute violates principles of
constitutional due process and the contracts clause. During
this stage of the proceedings, the Commonwealth intervened for
the purpose of defending the constitutionality of the statute.
On June 27, 2008, the circuit court issued a further
letter opinion in which it upheld the constitutionality of the
statute. Following additional proceedings, the court
ultimately issued a final judgment on January 8, 2009 granting
the CANA Congregations’ petitions and dismissing TEC’s and the
Diocese’s declaratory judgment actions as moot. 9 By orders
9
The circuit court ruled that an endowment fund related
to one of the CANA Congregations was held in corporate form
and, thus, a determination of its ownership and control could
not be decided under Code § 57-9(A). Accordingly, it ordered
the resolution of the declaratory judgment actions with regard
to the fund to be severed from the proceedings. This ruling
has not been challenged by the effected congregation in these
appeals. As relevant to the Diocese’s appeal only, the court
also determined that it lacked jurisdiction to consider a
13
dated November 9, 2009, we awarded appeals from this judgment
to TEC and the Diocese.
DISCUSSION
Although the assignments of error in TEC’s appeal and
that of the Diocese are not entirely concordant, the two
appeals broadly address the same principal themes in
challenging the judgment of the circuit court with respect to
its finding that Code § 57-9(A) is applicable to the facts in
these cases and is not violative of the various constitutional
principles argued below. Consistent with the analytical
approach taken in the circuit court, we will first decide
whether Code § 57-9(A) is applicable in these cases, only
reaching the questions concerning the statute’s
constitutionality if necessary. Davenport v. Little-Bowser,
269 Va. 546, 557, 611 S.E.2d 366, 372 (2005).
The circuit court’s rulings with respect to the
applicability of Code § 57-9(A) are addressed in TEC’s first
three assignments of error:
1. The circuit court erred in interpreting and
applying the term “division” in Va. Code § 57-9(A)
and the statute itself to supersede the Episcopal
Church’s polity, because its interpretation ignores
and conflicts with related Virginia statutory case
law, the principle of Constitutional avoidance, and
the statute’s past application.
challenge to deeds transferring property to one of the CANA
Congregations from another congregation of the Diocese.
14
2. The circuit court erred in holding that CANA and
the ADV are “branches” of the Episcopal Church or
the Diocese of Virginia (the “Diocese”) for purposes
of § 57-9(A), because CANA and the ADV were formed
by the Church of Nigeria, and because the court’s
holding impermissibly rested on its own finding of
“communion.”
3. The circuit court erred in holding that the
Anglican Communion satisfied § 57-9(A), because the
Anglican Communion has not “divided,” even under the
court’s definition of the term, and also is not a
“church or religious society” to which the
congregations were “attached.”
The Diocese addresses the same issues within its third
assignment of error:
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.
While the issues raised by these assignments of error
deal primarily with questions of statutory construction which
are reviewed de novo, Smit v. Shippers’ Choice of Va., Inc.,
277 Va. 593, 597, 674 S.E.2d 842, 844 (2009), to the extent
that we must also review the circuit court’s application of a
statute, we accord deference to the court’s determinations of
fact. Virginia Baptist Homes, Inc. v. Botetourt County, 276
15
Va. 656, 663, 668 S.E.2d 119, 122 (2008). Accordingly, we
will first consider de novo the meaning of the relevant terms
in Code § 57-9(A), and then apply our construction of those
terms to the circuit court’s findings of fact to the extent
that they remain applicable.
The circuit court’s analysis of the applicability of Code
§ 57-9(A) focused on the meanings of the specific words
“division,” “church or religious society,” “attached,” and
“branch” within the statute. The court considered each
separately and ultimately concluded that, as they were not
otherwise defined within the statute or elsewhere in the Code,
each of these words was to be given its plain and ordinary
meaning, taking into account the historical context of the
enactment of the original predecessor statute. While the use
of “plain and ordinary meaning” is, of course, a fundamental
rule of statutory construction to be applied where a word or
phrase is not otherwise defined by the Code, the rule also
requires that the courts should be guided by “ ‘the context in
which [the word or phrase] is used.’ ” Sansom v. Board of
Supervisors, 257 Va. 589, 595, 514 S.E.2d 345, 349 (1999)
(quoting Department of Taxation v. Orange-Madison Coop. Farm
Serv., 220 Va. 655, 658, 261 S.E.2d 532, 533-34 (1980)).
When considered in the overall context of the statute, a
proper construction of the language of Code § 57-9(A) must
16
take into account the interrelationship of the words being
considered. Thus, in order to determine whether a
congregation is entitled to petition for the relief afforded
by Code § 57-9(A), as a prerequisite the congregation must
show that there has been a “division . . . in a church or
religious society[] to which any such congregation . . . is
attached.” Likewise, the authority afforded by the statute
permitting such congregations to vote in order to determine
“to which branch of the church or society such congregation
shall thereafter belong” must be construed within the context
of the first phrase of the statute. That is, the “branch of
the church or society” to which the congregation votes to
belong must be a branch of the “church or religious society[]
to which [the petitioning congregation] is attached” prior to
the “division.” Accordingly, we will construe the language of
these two phrases together in this related context.
Initially, we note that the parties to this litigation do
not dispute that TEC and the Diocese are each a “church” as
contemplated by the phrase “church or religious society”
contained in Code § 57-9(A). The circuit court correctly
found that such was true when applying the plain meaning of
these terms. The circuit court also found that “it need not
reach the question as to whether the Anglican Communion is in
fact a ‘church’ under Code § 57-9(A), because there is
17
abundant evidence in the record . . . that the Anglican
Communion is, at the very least, a ‘religious society.’ ”
The clear purpose of Code § 57-9(A) is to provide a
method by which the disputed title to and control of any
property held in trust for a congregation may be conclusively
determined. The “church or religious society” referenced in
the statute in which a “division” has occurred contemplates
one that has an interest in the property for which the title
and control is at issue. TEC and the Diocese have asserted an
interest in the property at issue in this litigation. No such
assertion is made by the Anglican Communion. However, for
purposes of our analysis in these appeals, we need not decide
whether the Anglican Communion is a church or religious
society as contemplated by Code § 57-9(A) because the evidence
in the record does not establish that there has been a
“division” in the Anglican Communion. While undoubtedly there
was theological disagreement between TEC and the Diocese and
CANA, the ADV, the dissenting congregations and the Church of
Nigeria concerning the actions of the 2003 General Convention
of TEC, all of these entities continue to admit a strong
allegiance to the Anglican Communion. Accordingly, we
conclude that the circuit court erred in its holding that
there was a division in the Anglican Communion for purposes of
the application of Code § 57-9(A) in these cases.
18
It then follows that the focus of our analysis in these
appeals is whether the dissenting congregations have
established that there had been a “division” in TEC and the
Diocese, churches to which the congregations were “attached,”
and whether the congregations voted to belong to a “branch” of
TEC and the Diocese. We first address the issue of a division
in TEC and the Diocese.
As a prerequisite to a congregation being permitted to
petition a circuit court to confirm the result of a vote to
separate from a church to which it is attached as provided in
Code § 57-9(A), the congregation must establish that there has
been a “division” within that church. Indeed, the circuit
court expressed the view that in order to resolve the issue of
whether Code § 57-9(A) applied to the CANA Congregations’
petitions it had to “address the question at the heart of this
litigation: Has a division occurred?” Thus, much of the
expert testimony presented by the parties was directed toward
placing the concept of a “division” within a church into a
historical context in an effort to establish the intention of
the General Assembly when choosing this word in enacting the
original predecessor statute to Code § 57-9 in 1867.
Dr. Mark Valeri, an expert witness for the CANA
Congregations, testified that the most commonly understood
definition of “division,” as understood in the mid-19th
19
century, both nationally and specifically in Virginia, is the
“separation out of the group of members of a religious . . .
denomination in sufficient numbers to begin to form an
alternative polity and the renunciation of the authority of
the original group in that process.” Further, Dr. Valeri
stated that typically when a group left the particular
denomination, it was not an amicable split, nor was it “with
the approval or consent of the higher ecclesiastical
authorities.” Dr. Valeri highlighted several historical
examples of this type of “division,” agreeing that in these
instances it was not the case that “the new group be
acknowledged by the entity from which it divided in order to
be viewed in common parlance as a branch.”
The circuit court found that “[i]n sum, Dr. Valeri
testified that the ‘average, ordinary Virginian in 1867’ would
have understood ‘division’ to mean ‘the separation out of a
group in rejection of the authority [of that group],’ and that
‘it is that act of division which creates a branch.’ This
understanding would ‘encompass situations in which the church
or religious society’ did not ‘approve’ of the [‘]division,’
as well as situations in which the ‘new entity, the new
polity, was not formally affiliated with the church and
religious society from which it divided.’ ”
20
Dr. Charles Irons, another expert for the CANA
Congregations, testified that “the most common definition of
division would be the fragmentation of one religious
jurisdiction to create two or more jurisdictions.” But there
were “additional possible meanings of division” including
“internal conflict or discord within a religious body. . . .
Division could also be used to describe not the act of
separation itself, but one of the resulting branches.” Dr.
Irons specifically noted that in reviewing prior cases
involving petitions under the predecessor statutes to Code
§ 57-9(A), it was never alleged that the division had been
approved by “higher ecclesiastical authorities,” or that the
filing of the petitions “had been approved by higher
ecclesiastical authorities.”
By contrast, Dr. Ian Douglas, an expert called for TEC
and the Diocese, asserted that neither TEC nor a diocese of
TEC could divide “without the action of [the] General
Convention.” Dr. Douglas further testified that “a
congregation or a people can choose to leave a parish or leave
the Episcopal Church,” but that such action would “not
fundamentally constitute a division or a departure of a parish
. . . from the wider Episcopal Church.”
Dr. Douglas opined that “there can be no division without
formal approval of the division by the highest adjudicators of
21
the religious body involved.” Dr. Douglas also testified that
the term “division” as used in Code § 57-9(A) would not be
applicable to the Anglican Communion because it was a “family
of churches” with a shared historical relationship, but it was
not an “intact whole” that would be subject to division.
Dr. Robert Bruce Mullen also testified for TEC and the
Diocese. Dr. Mullen stated that in the context of
hierarchical church structures “a division is usually
understood as a formal separation of a larger religious body
such that it looks markedly different after this has been
done. Such that we might say that one body becomes two. . . .
[I]t [is] a much more formal category than just simply an
informal separation.” According to Dr. Mullen, in the 19th
century there would have been a distinction made “between a
division [in] a denomination as a whole and a mere departure
o[r] separation from that denomination.”
After reviewing the conflicting testimony of these
experts in its April 3, 2008 letter opinion, the circuit court
stated that it found “the testimony of the two CANA
congregation experts – Dr. Valeri and Dr. Irons – to be more
persuasive and convincing.” The court reasoned that these two
experts had based their opinion on “the particular and
pertinent historical record relevant to the instant case,”
22
while the opinions of the experts for TEC and the Diocese “did
not appear to be so tethered.”
The circuit court also reviewed the prior cases from this
Court dealing with divisions within churches. The court
recognized that Baber v. Caldwell, 207 Va. 694, 152 S.E.2d 23
(1967), and Reid v. Gholson, 229 Va. 179, 327 S.E.2d 107
(1985), involved divisions within autonomous congregations,
not hierarchical churches, but nonetheless found that the
discussion of the division that occurred in each case to be
instructive. The court recognized that in Baber, “division”
was described as “intra-congregational strife” and
“dissension,” which the circuit court took as supporting Dr.
Valeri’s contention “that a division need not be consensual or
amicable.” The court noted that in Reid this Court found that
the requisite “division” had not occurred because the
petitioners in that case “expressed no desire to separate from
the body of their church, or to rend it into groups, each of
which seeks to take over all the property and characterize the
other as apostate, excommunicated, and outcast.” 229 Va. at
192, 327 S.E.2d at 115. 10
10
The circuit court also reviewed Brooke v. Shacklett, 54
Va. (13 Gratt.) 301 (1856), a case decided prior to the
enactment of the original predecessor statute to Code § 57-9,
but found that it was “not helpful precedent” because the
decision in that case was “premised on a ‘division’ whose
23
The circuit court ultimately concluded that “the
definition of ‘division’ as that term is used in [Code §] 57-
9(A) is in fact that assigned to it by the CANA Congregations,
which is ‘[a] split . . . or rupture in a religious
denomination that involve[s] the separation of a group of
congregations, clergy, or members from the church, and the
formation of an alternative polity that disaffiliating members
could join.’” The court further concluded that the more
restrictive definition proposed by TEC and the Diocese
requiring a formal approval of a division by the consent of
the hierarchical church “would make [Code §] 57-9(A) a
nullity.” While agreeing with TEC and the Diocese “that
division, under [Code §] 57-9(A), ought not be ‘easy,’” the
court opined that the definition it had adopted placed an
appropriate burden on a petitioning congregation to show
“three major and coordinated occurrences.” That is, a “split”
existence was not in serious dispute.” Similarly, the court
concluded that Hoskinson v. Pusey, 73 Va. (32 Gratt.) 428
(1879), did not establish, as the CANA Congregations
contended, that the statute did not “require that a division
be recognized or approved by a denomination,” finding that the
absence of any express discussion of that issue beyond the
fact that such was apparently the case in Hoskinson could mean
that the “Court simply did not reach the issue.” Likewise,
the court found that Finley v. Brent, 87 Va. 103, 12 S.E. 228
(1890), was decided “on other grounds” that did not require
the Court to construe the meaning of division.
24
or “rupture” resulting in a separation from the church and the
formation of or attachment to an alternative polity.
In addressing its first assignment of error, TEC contends
that the circuit court erred in adopting this definition of
division because it effectively would allow congregational
majorities to “strip hierarchical churches of property rights
in violation of denominational polity and rules.” TEC
contends that historically Code § 57-9(A) “was prompted by and
has been applied only to divisions accomplished in conformity
with denominational polity.” Similarly, the Diocese contends
within the argument of its third assignment of error that the
“[c]ircuit [c]ourt’s interpretation treats the separation of a
small minority that form or join an alternative polity as a
‘division,’ ignoring the Church’s hierarchical polity and
rules and vesting control solely in local majorities.” TEC
disputes that its proposed construction of the term would
render the statute a nullity because even in divisions
formally recognized by the church, the statute would still be
necessary to permit congregations to choose between the old
and the new polities created by the division. We are not
persuaded by these contentions.
Inherent in the concept that a division must be
recognized through a formal process within the church’s polity
is that the courts would ultimately be drawn into an
25
ecclesiastical dispute to determine whether a division as
contemplated by Code § 57-9(A) had occurred. Such a
circumstance would risk entangling the courts in matters of
religious governance, contrary to the well established
principle that under the First Amendment “civil courts are not
a constitutionally permissible forum for a review of
ecclesiastical disputes.” Jae-Woo Cha v. Korean Presbyterian
Church, 262 Va. 604, 610, 553 S.E.2d 511, 514 (2001); see also
Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S.
696, 710 (1976); Presbyterian Church v. Mary Elizabeth Blue
Hull Memorial Presbyterian Church, 393 U.S. 440, 449, (1969).
While what is or is not an “ecclesiastical dispute” is often
debatable, issues of religious governance are unquestionably
outside the jurisdiction of the civil courts. Reid, 229 Va.
at 187, 327 S.E. 2d at 111-12. The record of the present
cases confirms that permitting the polity of the church to
determine whether a division has occurred could potentially
involve the court in disputes involving church governance.
While it is certainly possible that a division within a
hierarchical church could occur through an orderly process
under the church’s polity, history and common sense suggest
that such is rarely the case. To the contrary, experience
shows that a division within a formerly uniform body almost
always arises from a disagreement between the leadership under
26
the polity and a dissenting group. The construction of
division adopted by the circuit court does not, as TEC and the
Diocese contend, “vest[] control solely in local majorities”
to determine whether a division has occurred. Indeed, it is
clear that a majority vote by one or more congregations to
separate from a hierarchical church under Code § 57-9(A) would
not alone be sufficient to establish the fact of a division.
To the contrary, we agree with the circuit court that the
standard it adopted places a significant burden on the
petitioning congregation to establish that the requisite
“division” has occurred and that this “division” led to the
vote to separate. Moreover, in resolving the issue of whether
a division has occurred under the standard adopted by the
circuit court, there is no requirement that the court involve
itself in questions of religious governance or doctrine.
Rather, the court simply determines from the facts presented
whether the division has occurred, without regard to the
nature of the dispute, whether over doctrine or some other
cause, which lead to the separation of the congregation and
its attachment to a different polity.
The evidence presented by the CANA Congregations clearly
establishes that a split or rupture has occurred within the
Diocese and, given the evidence of similar events in other
dioceses of TEC, the split or rupture has occurred at the
27
national level as well. Likewise, there can be no question
that as a result, members and congregations have separated
from the Diocese and TEC and have aligned with different
polities, formed in response to the dissension within the
Diocese and TEC. Accordingly, we hold that the circuit court
did not err in finding that a “division” had occurred in the
Diocese and TEC within the meaning of Code § 57-9(A).
The circuit court next found that the CANA Congregations
were “attached” to the Diocese and TEC. There was not, nor
could there be, any serious dispute that, until the discord
resulting from the 2003 General Convention, the CANA
Congregations were “attached” both to TEC and the Diocese
because they were required to conform to the constitution and
canons of TEC and the Diocese. Accordingly, we agree that for
purposes of Code § 57-9(A), the CANA Congregations established
that they were previously “attached” to TEC and the Diocese.
We turn now to consider the circuit court’s finding that
CANA and the ADV are “branches” of TEC and the Diocese for
purposes of applying Code § 57-9(A). For the reasons that
follow, we hold that the circuit court’s finding was
erroneous.
In its second assignment of error, TEC contends that the
circuit court’s definition of a “branch” as meaning “a
division of a family descending from a particular ancestor”
28
demonstrates that CANA is a branch of the Church of Nigeria,
not of TEC. Likewise the ADV, as a district of CANA, descends
from the Church of Nigeria and CANA, not the Diocese or TEC.
TEC contends that the historical connection between it and the
Church of Nigeria through the Anglican Communion is not
sufficient to establish that constituent parts of each church
are “branches” of the other. TEC further contends that the
circuit court erred in giving particular significance to the
fact that the majority of the congregations in the ADV and
CANA were formerly affiliated with TEC and its dioceses. We
agree.
When it was initially formed, CANA was a mission of the
Church of Nigeria designed to minister to expatriate members
of that church in North America. The subsequent expanding of
the mission to allow dissident congregations of TEC and the
Diocese to affiliate with CANA, and the formation of the ADV,
unquestionably occurred in response to the disputes that had
occurred within TEC. However, it is equally clear that the
revision of CANA’s mission and the formation of the ADV did
not occur as a result of the division within TEC and the
Diocese. Indeed, the dissenting congregations maintained that
they had “determined to disaffiliate from TEC and the Diocese”
in order to join CANA, a pre-existing polity within the Church
of Nigeria. Thus, while CANA is an “alternative polity” to
29
which the congregations could and did attach themselves, we
hold that, within the meaning of Code § 57-9(A), CANA is not a
“branch” of either TEC or the Diocese to which the
congregations could vote to join following the “division” in
TEC and the Diocese as contemplated by Code § 57-9(A).
In summary, we conclude that the evidence does not
establish that there was a division in the Anglican Communion
for purposes of the application of Code § 57-9(A). We further
conclude that a proper construction of Code § 57-9(A) requires
a petitioning congregation to establish both that there has
been a division within the church or religious society to
which it is attached and that subsequent to that division the
congregation seeks to affiliate with a branch derived from
that same church or religious society. While the branch
joined may operate as a separate polity from the branch to
which the congregation formerly was attached, the statute
requires that each branch proceed from the same polity, and
not merely a shared tradition of faith. The record in these
cases shows that the CANA Congregations satisfied the first of
these requirements in that there was a division within TEC and
the Diocese, but not the second, as CANA clearly is not a
branch of either TEC or the Diocese. Accordingly, we hold
that the circuit court erred in ruling that the CANA
30
Congregations’ petitions were properly before the court under
Code § 57-9(A). 11
By granting the CANA Congregations’ Code § 57-9(A)
petitions, the circuit court ruled that this “obviate[d] the
need to address the merits of the Declaratory Judgment Actions
filed by the Episcopal Church and the Diocese and thus
render[s] them legally moot.” In light of our holding that
the circuit court erred in granting the Code § 57-9(A)
petitions, the control and ownership of the property held in
trust and used by the CANA Congregations remains unresolved.
Accordingly, the declaratory judgment actions filed by TEC and
the Diocese, and the counterclaims of the CANA Congregations
in response to those suits, must be revived in order to
resolve this dispute under principles of real property and
contract law. 12 See, e.g., Code § 57-7.1; Trustees of Asbury
11
Because we have concluded that the CANA Congregations
have not satisfied the requirements for petitioning the
circuit court for relief under Code § 57-9(A), we need not
address TEC’s and the Diocese’s assignments of error
challenging the court’s finding that the statute was not
violative of the First Amendment and Due Process.
12
The Diocese has also assigned error to the circuit
courts’ determination that it lacked jurisdiction to
reconsider an order entered in a prior proceeding approving
the transfer of property from Christ Redeemer Church to Truro
Church. See note 9, supra. While we agree with the circuit
court that the Diocese was attempting to bring an improper
collateral attack on a final judgment, it is nonetheless
evident that as the property is held for the benefit of Truro
Church, the ultimate determination of ownership and control of
31
United Methodist Church v. Taylor & Parrish, Inc., 249 Va.
144, 452 S.E.2d 847 (1995); Green v. Lewis, 221 Va. 547, 272
S.E.2d 181 (1980); Norfolk Presbytery v. Bollinger, 214 Va.
500, 201 S.E.2d 752 (1974).
CONCLUSION
For these reasons, we will reverse the judgment of the
circuit court and remand with direction to dismiss the CANA
Congregations’ Code § 57-9(A) petitions. We will further
direct the circuit court to reinstate the declaratory judgment
actions filed by TEC and the Diocese and the counterclaims of
the CANA Congregations to those actions, and conduct further
proceedings thereon consistent with the views expressed in
this opinion.
Record No. 090682 – Reversed and remanded.
Record No. 090683 – Reversed and remanded.
that property will be resolved in the proceedings on the
declaratory judgment actions. Accordingly, we need not
address this issue.
32