Church Autonomy and the Virginia Episcopalian Unpleasantness

          A Virginia trial judge has ruled that conservative breakaway congregations from the Episcopal Church in Virginia should keep their property.  (HT: Christianity Today)  The judge relied on and upheld the constitutionality of an 1867 Virginia statute providing that whenever church property involving a congregation is held in the name of trustees, the majority of the congregation determines who gets the property.  This, the court held, was a permissible "neutral principle of law" for resolving intra-church property disputes, of the sort approved by the Supreme Court in Jones v. Wolf, 443 U.S. 595 (1979).

          In these disputes over property arising from a schism, the issue for churches in which congregations belong to larger bodies with religious authority over them -- the Catholic Church quintessentially, but others as well -- is how to ensure that such an authority relationhip is respected by a civil court.  Jones v. Wolf had said that this was no problem because higher bodies or denominations could use general legal rules to put title in their name or create trusts in their favor.  The Episcopal Church created such an express trust for its parishes in favor of the diocese and general church.  But according to the Virginia court, trusts for religious denominations are invalid under state law.  Instead the general church should have put title in the name of the diocesan bishop, as Catholics do, or perhaps incorporate every parish.

          I'm not up on all the details of this litigation, but the decision raises several concerns.  The idea that it's no burden to be blocked from the express-trust route of maintaining control because you can put title in the bishop's name seems a dangerous restriction on churches' ability to structure themselves to reflect their religious understandings about polity.  In Virginia, the logic may force all churches to organize themselves either like Baptists (congregation wins) or like Catholics (bishop has formal title), when other churches may have religious reasons for preferring the route of local control but subject to a trust.  More generally, a restrictive rather than flexible attitude toward how religious organizations can reflect their polity in legal terms is bad for religious autonomy in general, and should be of concern to Catholics too.

          The trigger for these cases, of course, is the withdrawal of conservative congregations from the national church because of its liberal decisions, particularly but not only the ordination of an openly gay bishop.  My final worry is that theological traditionalists, cheering these property cases based on their immediate effect, will make law that is bad more generally for the autonomy of religious organizations from state restrictions.  That could well harm traditionalist Christianity more in the long run, since, as we are quite aware here on MOJ, traditionalist churches often run up against liberal- or secular-oriented regulation and look to constitutional autonomy doctrines to protect them.

          ADDENDUM:  I meant to congratulate Steffen Johnson and Gene Schaerr, my friends at Winston & Strawn, who won this case for the breakaway congregations.  They have been strong defenders of church autonomy over the years, and they made arguments that would preserve some options for higher church bodies/denominations to use legal rules to retain control over property.  But I still remain concerned about state rules that cut off certain kinds of organizational options, like trusts, for the higher body.