Protestant Episcopal Church in the Diocese of Virginia v. Truro Church

• Decision Date: 10 June 2010
• Docket Number: Record No. 090683,Record No. 090682
• Court: Virginia Supreme Court
• Parties: THE PROTESTANT EPISCOPAL CHURCH IN THE DIOCESE OF VIRGINIA v. TRURO CHURCH, ET AL. THE EPISCOPAL CHURCH v. TRURO CHURCH, ET AL.

THE PROTESTANT EPISCOPAL CHURCH IN THE DIOCESE OF VIRGINIA
v.
TRURO CHURCH, ET AL.
THE EPISCOPAL CHURCH
v.
TRURO CHURCH, ET AL.

Record No. 090682
Record No. 090683

Supreme Court of Appeals of Virginia

June 10, 2010

Present: Hassell, C.J., Koontz, Kinser, and Millette, JJ., and Lacy, S.J.

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
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

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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

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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

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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

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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

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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

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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

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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...