State Files to Join Episcopal Case

By Michelle Boorstein
Washington Post Staff Writer
Saturday, January 12, 2008

The attorney general of Virginia has filed a motion to intervene in the court battle between the Episcopal Church and 11 breakaway congregations, arguing that he is obliged to defend the constitutionality of a state statute at the center of the trial.

The case in Fairfax County Circuit Court is over whether the conservative congregations, which left the national church over disputes related to the interpretation of Scripture and the acceptance of homosexuality, can keep the land and buildings. After voting to leave in 2006 and 2007, the congregations filed court papers saying they had -- under a Civil War-era Virginia law -- legally "divided" from the national church and thus were keeping the property.

But the Episcopal Church and the Virginia Diocese, its local branch, argue that there has been no legal "division" -- rather that a minority of dissidents opted to leave, and therefore have no rights to the land or buildings. Church lawyers also say it would be unconstitutional for the state to determine when a hierarchical church -- such as the Episcopal Church -- has had a fundamental division, that such a judgment is a religious matter. Meddling would be a violation of church-state separation, diocesan lawyers say.

On Thursday, Attorney General Robert F. McDonnell (R) filed a motion to intervene in the case, which was heard in November. A decision is pending.

"The Constitution permits multiple methods of resolving church property disputes," McDonnell argues, and does not require the state to defer to denominational leaders.

Civil lawyers had mixed reaction to that, with some saying it was highly unusual for the state to get involved in a civil case when it was still at the circuit court level rather than waiting for a judge to rule.

McDonnell spokesman J. Tucker Martin cited several federal appeals-court-level cases -- also involving challenges to the constitutionality of Virginia statutes -- and said the attorney general was not taking sides in how the case should ultimately be decided.

"Certainly there is nothing improper about the attorney general weighing in, but it does strike me as a little out of the ordinary for them to get involved in a circuit-court-level case," said N. Thomas Connally, a McLean lawyer who specializes in real estate.

Patrick Getlein, spokesman for the Virginia Diocese, declined to comment, noting that Judge Randy Bellows asked both sides to reply next week on the state's request to become a party in the case.

Jim Oakes, a leader of the cluster of breakaway Virginia churches, said yesterday in a statement that the attorney general's brief "validates the position of our parishes and directly refutes arguments that were made by the Episcopal Church and the Diocese of Virginia."

McDonnell's office has another connection to this issue -- his deputy, former state senator William C. Mims (R), who has been a member of another Episcopal church that broke away from the national church over the same issues of how to understand Scripture as it pertains to homosexuality. Mims prompted controversy and much debate in 2005 when he -- as a senator -- proposed a bill that would have explicitly allowed congregants who leave their denominations to keep their land. The measure failed, and opponents said it was an inappropriate insertion of government into church affairs.

Mims did not return a message, and Martin said he was unavailable for comment.

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