Congregants in Legal Limbo Over Who Gets the House

By Alan Cooperman and Michelle Boorstein
Washington Post Staff Writers
Monday, January 29, 2007

As 15 Virginia congregations voted to leave the Episcopal Church in recent months, both their leaders and the Episcopal bishop of Virginia, Peter Lee, said they hoped to avoid costly, bitter lawsuits over control of their property.

That hope is disappearing fast.

In recent days, Lee prohibited the departing congregations' priests from officiating at worship services, declared their churches abandoned property and filed legal motions opposing the congregations' claims to the land and buildings, collectively worth tens of millions of dollars.

Two of the departing congregations, in turn, threatened in a Jan. 16 letter to charge diocesan officials with trespassing if they "set foot on either congregation's property without express permission from that congregation's vestry." The churches have filed formal reports on their votes in court, a step toward seeking clear title to the properties. And they have refused to allow the losing side in the votes -- the congregants who want to stay in the Episcopal Church -- to hold services in their sanctuaries.

In a letter to the diocese, Lee said he was "told that the parents of confirmands would not want me to lay hands on their children at confirmation and I have received other personal attacks including death wishes."

Each side has accused the other of rushing to court. But independent legal experts say part of the problem is that the law in this area has become increasingly unsettled as courts in various states have taken differing approaches and arrived at differing conclusions about who gets the assets in a church divorce.

Martin Nussbaum, a Colorado lawyer who has represented the Roman Catholic Church and evangelical Protestant congregations but is not involved in the Episcopal Church dispute, said he believes the diocese holds the stronger legal position.

"The majority of rulings suggest that in the Episcopal Church, the secessionist congregations cannot take their stuff with them," he said.

Still, he added, there are enough inconsistencies in the way courts have handled such cases that congregational leaders are encouraged to roll the legal dice.

"Whatever happens with the Northern Virginia congregations, it's going to be a very important case historically and constitutionally," said William F. Etherington, a Richmond lawyer who specializes in church-state law. "A lot of people are going to be paying very close attention to it, and not just in the Episcopal Church."

The theological disputes go back more than 30 years to controversies over the ordination of women and changes in the Book of Common Prayer. Conservatives say the consecration of New Hampshire Bishop V. Gene Robinson, who is gay, was the latest move by the Episcopal Church away from Christian orthodoxy.

The legal issues are not new, either.

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