On Tuesday Judge Randy Bellows of the Fairfax Circuit Court ruled against seven breakaway Anglican parishes in Virginia, finding that if their congregations wish to break away from the Episcopal Church in the USA, the mainstream branch of the Anglican communion in America, they have to return their church property to the diocese. If the churches don’t appeal, about $40 million in property will be turned over to the Diocese of Virginia and some will likely be sold off to pay down the line of credit the diocese took out to fund the litigation.

The case is especially high-profile because of the growing Anglican conservative movement, the millions of dollars in combined assets between the breakaway churches and  – in The Falls Church and Truro parish’s case – colonial roots.  Time and time again, the Episcopal Church has resorted to vindictive litigation against the property of dissenting congregations, they’ve made it clear that they aren’t going to let the breakaway Anglicans go gracefully, despite the overwhelming wishes of the congregations themselves.

The Washington Post reports:

During the 2006-07 votes, almost all the churches’ congregants sided with the conservatives [to leave the ECUSA]. Just four, much smaller groups that did not want to leave the Episcopal Church remained together. They have been worshiping in basements and other temporary spaces during the litigation.

The ruling means, for example, that more than 2,000 worshipers affiliated with the Nigerian Church would move out of The Falls Church and an Episcopal congregation of fewer than 100 would come in.

According to a news release from the Diocese of Virginia, one of the largest Episcopal dioceses in the country, Bellows ruled that the national denomination and the diocese have “a contractual and proprietary interest” in each of the properties subject to the litigation. The court ordered that all property subject to its ruling be turned over to the Diocese, the release said.

Bellows’ ruling comes after the Virginia Supreme Court kicked the case back down to him, saying Bellow’s initial assessment in favor of the breakaway Anglicans – citing an 1867 statute on schisms in the church – was improperly applied. The legal team for the breakaway churches should have looked back even further.

The Episcopal Church in Virginia has a very unique place in the history of Christianity in America, being the first church to be disestablished after the revolution. A General Assembly wary of consolidated church power repealed the church’s incorporation in 1787, finding it in conflict with the new Statute on Religious Freedom. Fueled by Baptist outrage at the Episcopalians’ perceived pride of place, in 1799 the Assembly went even further by repealing a number of religion statutes including laws that granted the church the right to own property. Over the next several years, Virginia gained the distinction of being the only state in American history to systematically confiscate land from the church, via the Glebe Act of 1802. The Glebe Act authorized officials in each county to seize and sell all church farmland purchased prior to 1777 upon the death or resignation of whatever clergyman was currently residing there.

In a legal battle that rivals today’s in convolution if not sinister undertones, the vestry of Manchester Parish challenged the state’s claim in 1802. When George Wythe, the famous lawyer, judge, Constitutional Convention delegate and mentor to Thomas Jefferson ruled against the parish, they appealed to the highest court in Virginia, a five-judge panel comprised mostly of sympathetic Episcopalians at the time.

Though one judge appropriately recused himself due to his membership in the parish in question, the panel was expected to deliver a ruling finding the Glebe Act unconstitutional in October of 1803. But the 81 year-old presiding judge Edmund Pendleton died in his hotel before delivering the 3-1 verdict in favor of the churches and the decision was rendered void. Appointed in his place was St. George Tucker, a student of Wythe who proceeded to vote for the act’s constitutionality, leading to a split decision that upheld the law.

The ruling devastated the Episcopal Church in Virginia; most of the parishes simply dried up as other denominations gained steam and they could no longer count on the glebes for income with which to pay the clergy. Parish vestries and congregants simply had no reason to invest in the upkeep of their churches with no right to the property. Many of the buildings themselves were looted, and accounts abound of churches in disrepair, organs being melted down, liturgical objects being sold off and, in Middlesex County, a large sycamore tree growing up through the floor of the nave where a congregation once worshipped.

In one of his last initiatives as bishop, in 1840 Richard Channing Moore petitioned the General Assembly for the right to incorporate, because as the law stood there was no way to ensure that money raised for the benefit of the family members of deceased clergy would ever actually make it to them. “Whilst the legislature are continually granting Charters to Companies and Associations of every kind and description” his petition read, “your Petitioners cannot believe that they will refuse one to a Society which has for its object the relief of the Widow and the Orphan!His petition was denied, but an 1842 law finally granted trustees the legal title to church property, which spurred a wave of church expansion and rebuilding.

All this is to point out that at no time in Virginia’s history were parishes seen as anything other than self-determined entities, who from the very beginning were largely responsible for their own financing. I suspect Virginia’s early legislators would have balked at the notion of the diocese owning, or even implying the ownership of the aggregate property of all the parishes in the state, as Judge Bellows contends. The irony of all of this is that Virginia’s courts are betraying its historic low-church disestablishmentarianism by preventing Anglicans from freely affiliating with more high-church strains of the Anglican Communion. The sad part is that the Virginian breakaway Anglicans probably had – or have, should they choose to appeal – a stronger case than those in other states.

Update: A commenter posted the following –

“… You seem to be assuming several things, including at least the following: that the decision released under the signature of the judge invokes everything that the attorneys considered and submitted before the judge. Just because the Glebe Act and the 1842 law you cite may not appear in the decision, that does not mean that the attorneys did not look back to those things. In fact, I have asked one of the attorneys … whether they considered the Act & 1842 and this is what he said: “Yes, we did consider both. We cited the 1842 law in more than one brief and I personally examined our historical expert witness about it at the trial in 2011.””

Thanks for the note. Apologies. I did not intend to be disparaging of the legal team, it was a poorly chosen pivot to what I was interested in getting at; the historical context and difference in legal treatment of the church between then and now, which is all the more stark given that the 1842 law was in fact brought up and the judge didn’t consider it.