Thursday, April 15, 2010

Notes from Oral Arguments in the Virginia Cases

Exclusive to the Curmudgeon -- Commenter JeffH was at the oral arguments in the Virginia Supreme Court last Tuesday, and took substantive (though not word-for-word) notes, which he has graciously sent to this blog for publication:

Supreme Court of Virginia – Oral Argument – April 13, 2010

NOTE: The following is not a word-for-word transcript. The Supreme Court of Virginia does not allow attendees at oral argument to bring electronic devices into the courtroom, so I am working from handwritten notes. The Court also does not publish transcripts of oral argument or make audio recordings of oral argument publicly available. I have aimed to capture the “gist” of what each speaker was saying. However, others present may have interpreted statements differently.


Chief Justice Leroy Rountree Hassell, Sr.

Justice Lawrence L. Koontz, Jr.

Justice Cynthia D. Kinser

Justice LeRoy F. Millette, Jr.

Senior Justice Elizabeth B. Lacy

Diocese of Virginia v. Truro Church, et al. (30 mins, divided)

George Sommerville, for the Diocese

George Sommerville: Three Issues:

1. Adjudication of church property disputes in Virginia must begin with a “neutral principles of law” analysis that includes examining the general church’s contractual rights in the property, as outlined in the Norfolk Presbytery and Green cases.

2. Virginia Code Section 57-7.1 validates denominational trusts such as that asserted by the Diocese and TEC here.

3. 57-9(a), as applied by the trial court, violates both the federal and Virginia Constitutions.

Justice Kinser: So you contend that 57-9 doesn’t apply at all if the general church has an interest in the property?

George Sommerville: Yes.

George Sommerville: First, 57-9 as applied is unconstitutional because it treats churches with different governance schemes differently.

Senior Justice Lacy: Are you confusing the way churches hold property with the way they are governed?

George Sommerville: No—the way churches hold property is merely one manifestation of the way they are governed, and the statute makes an unconstitutional distinction on the latter issue.

George Sommerville: The “neutral principles of law” approach is a clearly constitutional option, and the Supreme Court of Virginia has adopted it. The principle of neutrality toward religions, in contrast, is a constitutional mandate—not an option.

George Sommerville: Second, 57-9 as applied is unconstitutional because it prohibits the proper application of the “neutral principles” approach, confining that analysis to cases that fall under Section 57-15. It singles out churches and applies to them rules that don’t apply to secular organizations.

Justice Kinser: Didn’t Jones v. Wolf approve of church-specific statutes, and even statutes that allowed for church governance by majority rule?

George Sommerville: There were two questions at issue in Jones. The first was “whose property is this?” and the second was “who is the church?” The U.S. Supreme Court did approve of a majority-rule statute, but only with regard to the second question. Jones also provided an “escape hatch” for churches, by allowing them to modify their constitution and canons to make clear that a contrary rule would apply.

Justice Koontz: You argue that you don’t get to these issues if there wasn’t a “division” within the meaning of the statute, correct? Was there a division? The parishes say you conceded that a division occurred.

George Sommerville: The statute only applies to a “division” declared by the general church, which in this case would require action by TEC’s General Convention.

George Sommerville: Third, 57-9 as applied is unconstitutional because it embodies a state-imposed preference for congregational governance that purports to override the church’s own internal rules.

Senior Justice Lacy: Are you attacking the statute as interpreted because it favors a form of governance that other churches use? Are you critiquing it as expressing a preference for other religious groups?

George Sommerville: No, we critique it because it unfairly harms the church at issue here by interfering in its internal rulemaking.

Senior Justice Lacy: If you win, can the state do anything with regard to ownership of property by religious groups? In other words, must the state always defer to whatever the internal rules of a religious group happen to be, simply because it’s a religious group?

George Sommerville: Generally, the state must defer. There might be some instances in which the state has a sufficient interest to override a church’s own rules, but in general it cannot.

Senior Justice Lacy: But the “neutral principles” approach involves rules that apply to everyone, religious or secular. Aren’t you saying that if a law is neutral and generally applicable but happens to interfere with the internal rules of a religious organization, it’s unconstitutional?

George Sommerville: When a statute imposes a form of governance on a religious body, the state has expressed a denominational preference, and it cannot do that.

George Sommerville: Fourth, 57-9 as applied is unconstitutional under the U.S. Supreme Court’s test established in Lemon v. Kurtzman. The Circuit Court said the purpose of 57-9 was to protect the voting rights of the congregation. That’s an Establishment Clause violation. 57-9(a) imposes congregational governance on hierarchical churches. This is unconstitutional under this Court’s holdings in Norfolk Presbytery and Green.

George Sommerville: We contend that 57-9 is unconstitutional, but we also contend that it does not apply to these facts.

Senior Justice Lacy: Why should the “neutral principles” analysis precede the application of 57-9? The statute refers to property held “by trustees” of a local church. Why doesn’t the inquiry start and end there?

George Sommerville: That’s the inquiry raised by the “neutral principles” approach. The point is that the statute fails to take into account any beneficial, contractual, proprietary interest in the property that may exist in someone other than the trustees who hold legal title.

Senior Justice Lacy: But the statute doesn’t mention other possible interest-holders.

George Sommerville: That’s why we believe the statute is invalid.

Steffen Johnson, for the Parishes

Steffen Johnson: The U.S. Supreme Court has approved of neutral default rules for church property disputes. Georgia, whose laws were at issue in Jones v. Wolf, left the older deference approach of Watson v. Jones behind. Under the approved approach, competing claims to church property may be resolved by majority vote, or in other ways. Denominations can opt out of the default rules by changing title to the property. Other religious groups in Virginia, and even the Diocese itself, hold title to property. The diocese says the Virginia General Assembly repealed the Free Exercise Clause and that TEC can opt out of the default rules by making unilateral changes to their internal rules. But under this Court’s ruling in Reid v. Gholson and under Jones v. Wolf, that is not enough.

Justice Kinser: But in Jones, the U.S. Supreme Court only approved of majority rule in addressing the question of who constituted the church, correct?

Steffen Johnson: The two issues in Jones were not separate issues. Under Georgia law, they were treated the same. The Presbyterian Church’s proposed basis for both determinations was denominational rules, and the question was whether Georgia could adopt a neutral principles approach instead. Property issues are actually better suited for applying majority rule, because who constitutes the church is more of a doctrinal issue than how the church holds property.

Steffen Johnson: The Diocese says that “neutral principles” is a rule of formal neutrality. Actually, the U.S. Supreme Court and this Court both define “neutral principles” in terms of statutes governing church property disputes. That’s constitutionally acceptable, as this Court recognized in Reid, in which it applied 57-9(b) without a word in its constitutionality. The Diocese’s position would invalidate all of Chapter 57, including Section 57-15 and other parts that the Diocese wants to apply.

Justice Kinser: What about the “preference for one form of governance” argument?

Steffen Johnson: Both 57-9(a) and 57-9(b) provide a default rule. The only difference is who’s entitled to vote, and that only changes based on how a church is set up. This isn’t imposing congregational governance on the church, because the church can opt out of the statute by changing title to the property. The Diocese claims the Circuit Court’s approval of the parish votes represent a confiscation, but the Circuit Court’s order lists ownership of the property as shown on the deeds, and title is in the trustees of the individual congregations.

Senior Justice Lacy: Why can’t others with alleged interests in the property come in and contest the trustees’ assertion of legal title?

Steffen Johnson: Under Virginia law, religious trusts are set up for the benefit of congregations. Others can claim an interest in ownership—that’s what the votes are for.

Senior Justice Lacy: The Circuit Court looked at the deed. If a deed shows that church property is held by trustees for a local congregation, does that end the inquiry, to the exclusion of other alleged interest-holders?

Steffen Johnson: The Diocese and TEC conceded title. The issue was the whether alleged denominational trusts trumped the statute, but the statute provides for a constitutionally approved method of resolving disputed claims: have a vote.

Justice Koontz: You said that once it’s determined that the property is held in trust by the congregation’s trustees, then all that happens is a majority vote by the congregation, correct? From that point, any alleged interest of the general church is ignored?

Steffen Johnson: Well, it can be represented by part of the congregation in the vote—in these votes, it turned out to be a minority of the congregations at issue.

Justice Koontz: Do the canons of the general church have any impact in this analysis?

Steffen Johnson: No, the statute rather than the canons is dispositive.

Chief Justice Hassell: You’re saying that the canons have no role whatsoever, because of the statute?

Steffen Johnson: That’s correct.

Steffen Johnson: When it enacted 57-9, the General Assembly recognized that the old “departure from doctrine” rule was incorrect, and the state can’t look at which faction is holding more closely to the religious beliefs of the church, or any similar inquiry.

Chief Justice Hassell: Justice Koontz is asking whether there’s a difference between 57-9(a) and (b).

Steffen Johnson: The difference is one of scope. The two subsections apply the same default majority rule to two different kinds of churches, but the rule must be applied slightly differently just because the churches are set up differently.

Solicitor General Duncan Getchell, for the Commonwealth on behalf of the Parishes

Duncan Getchell: 57-9 as applied is constitutional. Under Jones v. Wolf, states may choose either a rule of deference or a rule of neutral principles. The latter involves no deference whatsoever to the internal rules of religious bodies. The church’s canons here do not provide the rule of decision. The rule of decision is provided by the statute, and that rule is one of majority vote. Jones establishes that if you have nondeferential default rules, the church must be able to get out of them, and they can, by retitling the property. This is permitted in Virginia. On the difference between (a) and (b), it’s important to note that the statute as originally adopted wasn’t divided into (a) and (b)—it’s simply one rule with several different applications. The rule applies when there’s a “division” into “branches.” States and state courts understand real property very well. Under Jones, the U.S. Constitution permits states to exercise this expertise without deference, as long as they do so in a way that is religiously neutral. In Jones, Georgia had a broad approach based on neutral principles. This was approved by the U.S. Supreme Court. If a state takes this approach, the church can’t change or override its sovereign laws.

Justice Koontz: Is CANA a “branch” resulting from a “division” within the meaning of the statute?

Duncan Getchell: My role is to defend the constitutionality of the statute.

Justice Koontz: But if there’s no “branch,” then the statute doesn’t apply, correct?

Duncan Getchell: That is correct, but these terms must be given their plain meaning, and there’s no question that the circumstances here fit within that.

Justice Koontz: But if the branches separate, are they really branches any longer?

Rebuttal by George Sommerville

George Sommerville: First, majority rule is not a neutral principle of property ownership—it’s a neutral principle of governance, and imposing it on a hierarchical church is unconstitutional.

Senior Justice Lacy: Doesn’t 57-9 make majority rule a neutral principle of ownership? It applies equally to all kinds of churches.

George Sommerville: No, it wouldn’t be applied in any other dispute, for instance, to a dispute in a secular organization.

George Sommerville: Second, neutral principles has a constitutional basis, and as such overrules contrary state laws. Virginia recognizes contractual, beneficial interests in general churches, notwithstanding the statute.

Third, our position would not overrule all of Chapter 57, but only those parts of it that, as applied, burden churches’ free exercise of religion.

The Episcopal Church v. Truro Church, et al. (30 mins, divided)

Heather Anderson, for TEC

Heather Anderson: I will first address constitutional issues of free exercise, and then turn to the inapplicability of 57-9.

As to constitutionality, what’s at issue here is the use and control of property acquired and maintained by generations of Episcopalians. As such, it’s Episcopal property and can’t be diverted to other uses. TEC’s canons state that parishes may not vote to depart or to take Episcopal property.

Justice Koontz: Didn’t you have the opportunity to retitle the assets in the name of the Diocese or TEC?

Heather Anderson: Jones didn’t require that, and to say that it did is a gross misreading of the case. Jones gave churches the right to set their own rules, which can then be applied by civil courts.

Senior Justice Lacy: Jones includes language that says “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.” That means the neutral principles approach gives general churches the option to resolve the dispute before it happens, right?

Heather Anderson: The Jones opinion continues, right after that section, to give general churches the ability to adopt canons establishing an express trust over parish property. The U.S. Supreme Court and the Supreme Court of Virginia allow churches to set the own rules, and interference with those results in a “total subversion” of free exercise. This was recognized by the U.S. Supreme Court in a case involving a dispute over whether Russian Orthodox churches in America would be under the Soviet Russian Orthodox authorities or under American authorities.

Justice Koontz: Must a “division” be in the national church to trigger the statute here? Was it, here?

Heather Anderson: There was no division here, within the meaning of the statute. You have to have a “division” into “branches.”

Justice Koontz: And you say a “division” means what?

Heather Anderson: A structural split under the rules and procedures of the general church.

Justice Koontz: And TEC has rules that provide for such a split?

Heather Anderson: Yes. The Presiding Bishop’s chancellor testified to that at trial. General Convention has rules that provide for that eventuality.

Justice Koontz: Assume that some “division” has occurred within the meaning of the statute. What about a “branch”? What does that mean?

Heather Anderson: It means a branch of TEC.

Justice Koontz: Is CANA a “branch”?

Heather Anderson: No, it’s part of the Anglican Church of Nigeria, not TEC, so it’s not a branch.

Senior Justice Lacy: What about the Anglican Communion? There’s evidence in the record that Bishop Lee was in communication with the Archbishop of Canterbury, and that Primates of other Anglican provinces were involved. Is that a connection of which CANA is a branch?

Heather Anderson: There are historical and theological connections to be sure, but the Anglican Communion has none of the indicia of a church or religious society.

Senior Justice Lacy: So there’s no attachment within the Anglican Communion at all?

Heather Anderson: TEC is a province of the Anglican Communion, but the Communion has no legal governing body, or other elements of a church.

Senior Justice Lacy: What about the Primates’ Meeting, Lambeth Council, and other Communion-wide bodies and events? Are those just part of the historical connection?

Heather Anderson: Correct. Those are just part of a shared tradition and affinity.

Justice Millette: So there’s no hierarchy in the Anglican Communion?

Heather Anderson: None.

Justice Millette: What if the parishes had left TEC and said “We’re the real TEC?” Would that be different?

Heather Anderson: The congregations can’t impose a division on the general church.

Justice Millette: Assume it’s a division. Would the congregations be a “branch” if they claimed to be TEC?

Heather Anderson: I can’t say. I don’t have an answer.

Justice Millette: So you’re saying that because they joined the Nigerian Church, they didn’t join a “branch”?

Heather Anderson: Correct. It’s a separate church, and there can’t be overlapping of jurisdictions.

Senior Justice Lacy: What if they’d joined the Anglican Church of Canada?

Heather Anderson: One church can’t become a branch of another within the same geographic jurisdiction as the other church.

Senior Justice Lacy: But that assumes TEC’s definition of “division” is correct. What about the Anglican Communion? Are you arguing that for what happened here to be a branch, there must have been a division in the Anglican Communion?

Heather Anderson: No one’s arguing that here. What’s at issue is whether there’s been a division in TEC.

Steffen Johnson, for the Parishes

Justice Koontz: Are you only arguing there’s been a division in TEC?

Steffen Johnson: No. The statute refers to a church that’s experiencing a division. We say there’s been a division at the Anglican Communion level, the national church level, the diocesan level, and at the parish level. This dates from at least 2003, at which point there began to be large numbers of individuals and congregations separating from TEC because of theological disagreement.

Justice Koontz: Is this documented in the record?

Steffen Johnson: Yes, there are specific historical records of these divisions. CANA came out of TEC, and it’s an offshoot of TEC. TEC’s own expert admitted that a “branch” can be something that grows out of another entity, and that may not have any remaining legal connection to the parent entity.

Steffen Johnson: “Branch” used in 57-9 means different things in other circumstances, but here, it means “offshoot.” The congregations came out of TEC and the Diocese of Virginia. They voted to divide from TEC and join CANA and the ADV. These bodies were created to receive people coming out of TEC.

Justice Millette: So you’re not claiming these entities are still part of TEC?

Steffen Johnson: No.

Justice Millette: Well then how are they a branch?

Steffen Johnson: A branch means an offshoot. It may not have any legal connection to the original entity.

Justice Koontz: If the parishes had left and become Baptist, could that still be considered a branch?

Steffen Johnson: Yes. The theological distinctives aren’t what matters, and civil courts aren’t supposed to examine doctrinal issues anyway. What matters is where the branches came from.

Justice Millette: If the parishes have joined a branch of another tree, how can they claim a part of the original tree?

Steffen Johnson: The deeds say the parishes own the property. 57-9 settles disputes over church property among beneficial claimants. According to TEC, 57-9 must be interpreted differently according to the polity of the church at issue, which means you’d have a different statute every time.

Senior Justice Lacy: The statute talks about a “division in a church.” What’s the church here? The Anglican Communion? TEC? The Diocese?

Steffen Johnson: There has been a division into branches at all three levels. Again, a branch is an offshoot. It doesn’t require denominational approval.

Justice Koontz: Once there’s a vote to depart, how are these parishes part of a “branch” of the original church?

Steffen Johnson: Because of the history. They came out of the original church.

Justice Koontz: The congregations claim they aren’t part of TEC. For purposes of the statute, you’re saying they’re still a branch?

Steffen Johnson: Correct. I would point the Court to the testimony of Dr. Mark Valeri, who explained the meaning of “division” and “branch” as they appear in the statute. To be a branch, there is no requirement of legal connection. The branches may, by definition, not recognize the legitimacy of each other. That’s the nature of branches that result from a division.

Senior Justice Lacy: What about the requirement that the parishes vote to determine which branch “of the church” to join?

Steffen Johnson: The “division” here is not one that is approved or consensual. Therefore, it wouldn’t make sense to read “branch” as requiring a continued legal connection.

Justice Millette: But doesn’t the language make clear that you have to have two competing factions within TEC, still under TEC’s authority? They’re not still claiming to be in TEC, are they?

Steffen Johnson: That’s not what the statute means.

Justice Kinser: Why is this different from leaving to join the Baptist church, for instance?

Steffen Johnson: It’s not—as long as they qualify under the statute, then the theological distance traveled is irrelevant.

Justice Kinser: So we’re talking about them joining a branch of what?

Steffen Johnson: The key is that it’s a branch from TEC.

Senior Justice Lacy: The language says “which branch of the church.” If they form a new denomination, isn’t that by definition not a branch?

Steffen Johnson: Again, “branch” means offshoot. It’s the source that’s important, not whether there’s a continuing legal connection, or a recognition of authority.

Senior Justice Lacy: But they do have to join some kind of branch, right? Would it be different if they just stayed an independent parish?

Steffen Johnson: The parishes here joined a separate denominational structure, and that’s what the statute envisions.

Solicitor General Duncan Getchell, for the Commonwealth on behalf of the Parishes

Justice Kinser: How do you interpret “division” and “branch”?

Duncan Getchell: By their clear meaning. 57-9 was enacted in part as a response to nonconsensual divisions within the Methodist Church into not two but three separate Methodist denominational structures. They had no legal connection and didn’t recognize one another’s authority. The statute was designed to provide ground rules for resolving property issues arising from such disputes.

Justice Millette: So these Methodist groups weren’t still attached to the church they divided from?

Duncan Getchell: The connection was historical. Once there was a division, they had no continuing connection but were considered branches from the original church.

Justice Kinser: What if the parishes here directly joined the Anglican Church of Canada, or the Church of Nigeria? Would that be a branch of TEC?

Duncan Getchell: Yes, because those would be competing jurisdictions, like the Methodists had.

Justice Kinser: But those didn’t arise from TEC, right?

Duncan Getchell: No.

Justice Kinser: So they could go to an existing denomination, like the Baptists, and the statute would still apply?

Duncan Getchell: In theory, yes. The point is that they used to be in TEC, then divided from TEC.

Rebuttal by Heather Anderson

Heather Anderson: CANA was formed by the church of Nigeria. It’s not a branch of TEC.

The Supreme Court of Virginia has required that denominational trust clauses be enforced, and the Circuit Court was required to follow that rule.

[End of oral arguments]

* * * * * *


  1. Would someone please pass the duct tape! My head's about the explode. And to think this back and forth about who's who, branch of TEC, Anglican Communion, blah blah is going to happen over and over. I get the feeling that the Justices might rule in favor of the Parish...just by the questions they ask, but I'm not an expert either.

  2. Most informative.
    Thank you so very much for posting this.

  3. I think much of he confusion concerning "branch" results from a the difference between a static (like an org chart) and dynamic (like a river). It's clear that the division statute pertains to the latter case. Once they were one; now they are two. The attempt to talk about structural connections after the split is meaningless.

    Were they being deliberately obtuse - or is this the level of intellectual horsepower commonly found in the legal profession?

    By the way, one of the reasons i appreciate this blog is the clarity of your arguments. Please don't take the last comment personally!


  4. Doug Stein, that is a most insightful comment, and I think the distinction between an organizational chart approach to the problem and an evolutionary approach is fundamental. If, in cases where General Convention sanctioned the creation of a new diocese out of the territory of an older one, why would there ever be any occasion to invoke the Virginia statute? Both the former diocese and the new one would be "branches" of the former entity, to be sure, but there would be absolutely no reason for them ever to disagree enough to engender a dispute worthy of the Virginia courts.

    What the argument by the attorneys for the Diocese and ECUSA missed, in my opinion, is that the statute comes into play only when there is a fundamental disagreement. We have an Episcopal parish -- most of whose members vote to reaffiliate, and a minority of whose members vote to remain. The group that votes to reaffiliate becomes a "branch" of a different part of the Anglican Communion. But there is no denying that before the realignment vote, the group was a "branch" of the same Anglican Communion, only through ECUSA.

    So Steffen Johnson is right to insist that a "branch" is defined by its origins, and not by its continued connections (if any) with the "church or religious society" it decided to leave. By arguing that there can be no "divisions" except those which might be approved by General Convention, ECUSA's attack on the statute divorces itself from reality. I hope and pray that the five justices charged with the resolution of this case will grasp that insight.

  5. I think part of the confusion also stems from the language of the statute, the language that the Court is trying to interpret.

    As a reminder, here's the section at issue, from the Virginia Code:

    § 57-9. How property rights determined on division of church or society

    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.

    I think it's a fair (and the only reasonable) implication that "of the church or society" means "that was formerly a part of the same church or society." But the language isn't that explicit, and I think that's what the Court was trying to work through.

    If you read "branch" as something that still has a legal or structural connection to the original church, then you render "division" essentially meaningless, as the definition of that term urged by TEC and the Diocese make clear.

  6. An excellent summary; thanks for posting this.

    The "branch" and "division" argument was extensively reviewed at the trial court level, and indeed, TEC's argument renders 57-9 meaningless as a religious organization can simply set its own rules on which "branch" each church can join. TEC argued that "divisions" coming under the 57-9 definition occurred twice in the past, when the Diocese of Virginia spun off the Diocese of Southern Virginia, and then again when the Diocese of Southern Virginia spun off the Diocese of Southwestern Virginia. However, in each case the "branch" association for individual parishes was determined by geography, not under the 57-9 protocol.

    On a larger point, it appears from the summary that more time was spent on the constitutional issues than what was reported in the news. This is not surprising as people typically focus on the last thing they hear when sitting through 90 minutes of legal jargon.

    If I can venture a guess, the court will reject the constitutional challenge--it is always an uphill climb to get a state court to invalidate an enactment of its state's legislature--and the best the Diocese and TEC can reasonably hope for is a remand to Judge Bellows for further consideration of whether there has been a division and CANA is a branch resulting from that division. This may present an opportunity for submission of evidence post-dating the 2007 trial, such as disaffiliation of entire dioceses from TEC, formation of ACNA, installment of ++Duncan, Global South pronouncements, etc. If 57-9 does not apply to the totality of this evidence, then the statute will never apply and therefore is meaningless. I suppose the ADV parishes also have a trump card of simply re-voting and re-filing their 57-9 petitions, sweeping up all evidence through 2010 supporting their branch and division arguments that was not considered by the trial court.