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Separation of Church and Church

When property law and canon law collide.

2:44 PM, Dec 5, 2013 • By BAILEY PRITCHETT
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Hundreds of congregations across the country have left the Episcopal Church (TEC) over the past decade, moved to act over the church’s evolving doctrine on sexuality. The tipping point for many was after the church ordained Gene Robinson, its first openly gay bishop, in 2003. One of those congregations was the Falls Church Anglican in the Virginia suburbs of Washington, which voted to realign with the conservative Convocation of Anglicans in North America in 2007. But more than six years later, the Falls Church Anglican remains locked in a legal battle with its old church in a case that’s made its way to the Supreme Court—and may have consequences for the relationship between civil law and church law. 

Falls Church

Following the congregation’s break, TEC demanded that the Falls Church Anglican trustees transfer its property to the church’s diocesan bishop, per canon law. When the congregation refused, TEC sued the Falls Church Anglican and the 10 other congregations in Virginia that departed.

The lawsuit reached the Virginia supreme court for the first time in 2010. In a unanimous decision, the court decided in favor of TEC. When the the state supreme court reaffirmed the decision in favor of TEC three years later, the Falls Church Anglican appealed to the U.S. Supreme Court. Meanwhile, the congregation was forced to leave its building—the Falls Church’s home for more than 200 years—last January. Since then, it has held services in several facilities, most consistently in the gymnasium of Bishop O'Connell High School (a Roman Catholic school) in nearby Arlington. 

The dispute that brings both parties to the Supreme Court is over the Episcopal Church’s Dennis Canon. According to the Dennis Canon, TEC can impose an express trust on “all real and personal property held by or for the benefit of any Parish, Mission or Congregation.” The courts must determine whether TEC has the ability to impose such a trust. In Virginia, the Dennis Canon was particularly problematic under state property law that did not recognize “express and implied trusts for hierarchical churches,” until 1993—14 years after the Dennis Canon was created. So far, the courts have ruled that the canon law applies to the Falls Church Anglican even though the law was created after the congregation was established. 

Virginia supreme court justice Elizabeth McClanahan wrote in her concurring opinion this year that “under First Amendment law, the prohibition of the enforcement of an express trust… such as that created by the Dennis Canon between TEC, and the Diocese, and The Falls Church, was constitutional.” The Falls Church Anglican argues that the court “erred by retroactively applying laws and canons not in force when the Falls Church acquired its initial property or when it joined the denomination.” State supreme courts across the country are divided on whether civil law acknowledges the Dennis Canon, or more so canon law at large. 

In the meantime, the Falls Church Anglican building that once held 2,000 members every Sunday morning is now the home of the Falls Church Episcopalian, a congregation that rents out and shares the space with another congregation in order to pay the bills. The buildings of the 10 other congregations-in-exile are either boarded up or host religious groups of the highest bidder.

On appeal to the Supreme Court, the Falls Church Anglican is the only church that stands in the legal battle. The 10 other defendants have either settled or given up due to legal expenses. The congregation will know if its case will be heard by the Supreme Court by January 2014.

Bailey Pritchett is an intern at THE WEEKLY STANDARD.

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