By Alan Cooperman and Michelle Boorstein
Washington Post Staff Writers
Monday, January 29, 2007; B03

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.

The Supreme Court tackled a similar dispute over church property in 1871, in the landmark case Watson v. Jones. Much as homosexuality threatens to divide churches today, slavery was the divisive issue then.

After the national Presbyterian Church declared support for Abraham Lincoln and the Union, the Walnut Street Presbyterian Church in Louisville split into pro-slavery and anti-slavery factions, each claiming the property. The Supreme Court ruled that when a congregation belongs to a hierarchical church with its own laws and governing bodies, civil courts have no business interpreting church doctrine and must defer to the highest church tribunal.

In practice, this favored dioceses and national denominations over individual congregations. It remained the controlling precedent for nearly 100 years, until a pair of cases in the late 1960s and '70s involving Presbyterian congregations in Georgia that sought to leave the national church over such issues as the ordination of women and the Vietnam War.

In those rulings, the Supreme Court said state courts do not have to defer to hierarchical church authorities when it is possible to decide property disputes based on neutral principles of law, such as an examination of deeds and trusts. A state may adopt "any one of various approaches for settling church property disputes so long as it involves no consideration of doctrinal matters," the court held in 1979.

Since then, courts in Michigan, Florida and Texas have continued to defer to hierarchical churches, ruling that departing congregations cannot keep their property. Courts in Maryland and several other states have taken the neutral principles approach and arrived at the same result. In 1983, for example, the Maryland Court of Appeals ruled that a Baltimore congregation that severed its ties to the Presbyterian Church could not give its building to another church.

But courts in a few other states, including New York, Ohio and California, have decided in favor of departing congregations. In 2004, for example, a California appeals court allowed St. Luke's Community Church in Fresno to break away from the Methodist Church and keep its property.

Virginia's Supreme Court has given hope to both sides. In 1977, it accepted a lower court's ruling that an Episcopal Church in Clifton Forge had no right to its church or parish house once it left the denomination.

Twice in more recent years, according to Etherington, Virginia's highest court has said it must defer to church authorities on matters of internal governance. But in a 1974 case, Norfolk Presbytery v. Bollinger, the state Supreme Court endorsed a neutral principles approach, saying a lower court could resolve a church property dispute by considering "the statutes of Virginia, the express language in the deed and the provisions of the constitution of the general church."

Lawyers for the departing Episcopal congregations cite that precedent and emphasize two facts: The deeds to the properties are in the names of individual trustees, not the diocese, and the buildings were erected without financial help from the national church.

A linchpin in the diocese's legal case is a canon, or law, adopted nationally by the Episcopal Church in 1979 that says all parish properties are held in trust by their dioceses. But Steffen Johnson, an attorney for the departing members of The Falls Church and Truro Church, said Virginia law does not recognize such trusts.

A key to the congregations' case is a Virginia statute that says that when a denomination divides, member congregations may vote on which branch to join. But diocesan spokesman Patrick Getlein said the congregations are distorting the meaning of the statute.

That apparently now will be decided in court.

"I have a sense we're going to crank up and both sides are going to spend a lot of money on legal fees, and I wish we could spend that money on ministry and mission instead," Jim Oakes, senior warden of Truro Church, said last week. "It's just a shame."