EPISCOPAL APPEAL: Challenging the Law: Whose Church Is It?

Several years ago, almost a dozen congregations within the Virginia Diocese of the Episcopal Church left the Episcopal Church in the United States and affiliated instead with the Episcopal Church of Nigeria, whose position on sexuality and interpreta tion of the Bible they find more agreeable to them. Members of a particular church can decide to leave a denomination whose national decisions are at odds with their opinions -- that's what religious freedom is all about. But the question here is whether the government can facilitate the removal of property that undergirds the church's ministry by a departing group. In doing so the Commonwealth of Virginia forces all denominations to become Congregationalist in their church government.

The Fairfax Circuit Court said yes to that question two years ago. And, indeed, Virginia has a statute, 57-9, that allows a majority of any adult members of a church to choose to disaffiliate with one "branch" of a church and shift to a different "branch." The Circuit Court ruled that when they do so they can take property with them. But far from protecting the rights of believers, this statute is a serious and unconstitutional threat to religious freedom and places the Commonwealth of Virginia in the untenable position of dictating how a church discerns the voice of God and expresses its faith.

Tomorrow, the Virginia Supreme Court will hear the appeal of the Episcopal Church and the Diocese of Virginia in this matter. But they are not the only ones concerned with the outcome. More than a dozen other denominations, including mine, are joined in resisting this statute as amici curiae. The stakes are high and questions abound.

Take membership, for example. It is the sole right of any religious body to determine who is and who is not a member of that body. The challenge of determining membership is both vital and problematic for a church and each one follows the rules of its structure, where such exists. But ruling that this statute is constitutional puts the commonwealth in charge of determining who is a church member. So what does that mean for the future? It means that the commonwealth now will judge who is and who is not a member of a church. With this statute the state is the ultimate deciding body for any church experiencing a "division."

Beyond membership lies another problem of particular relevance to the amici: Statute 57-9 discriminates against the way religious bodies discern the voice of God. The polity, or structure, of a church is always based upon and reflective of its understanding of its faith. Roman Catholics have a more monarchial approach: the bishop has clear authority in property matters. Baptists, by contrast, have authority lodged solely with the congregation. They can affiliate with or disaffiliate from any group they choose. But the amici churches practice a shared authority borne out of theological beliefs.

Our congregations and denominations seek God's will as they discern the divine voice together. The bishop's or presbyter's authority is limited. The congregation's authority is limited as well. The authority is shared, often amidst tension. In this tension these churches believe something closer to the will of God is revealed. In this tension these churches restrain sin. They are mutually accountable. The Virginia statute in dispute erases this tension. It throws aside this basic belief, imposing congregational polity. Thus the commonwealth dictates against the faith practice through which these churches believe God's will is revealed.

Indeed, the statute escalates church conflict by giving advantage to any congregational majority which can move their differences with their denomination into the realm of a "division" and muster a majority of parishioners to their side. Any congregation in tension with its denomination is tacitly encouraged by this statute to escalate the conflict to the point the commonwealth will be invited to referee doctrinal disputes and recognize a "division." To suggest that the state has a role in determining the outcome of such conflicts, especially over and above the denomination's own structure and rules, is an outrage to religious liberty and the First Amendment.

What's next? Shall the commonwealth intervene in the worship wars engulfing any number of congregations? Shall the commonwealth dictate a property split between contemporary and classical worship styles? Shall the commonwealth intervene in the event a church is fighting over red or blue carpet?

Whose church is it? It's God's Church, we Christians would all agree. But then what business does the commonwealth have in discerning the proper path for a congregation looking to follow God's lead? The First Amendment says the commonwealth has none. Congregations might take their differences to their denominational leaders and structures and present their case, but the commonwealth has no business overruling the theological polity of a church. Virginia Statute 57-9 is unconstitutional. There can be no other outcome without surrendering also religious freedom.

The Rev. Dr. G. Wilson Gunn Jr. is the general presbyter of the National Capitol Presbytery of the Presbyterian Church (U.S.A.). Contact him at wgunn@thepresbytery.org.

The National Capital Presbytery is among the judicatories supportive of the Episcopal Church's and the Diocese of Virginia's efforts to have Virginia Code section 57-9 declared unconstitutional. Others who have supported the Episcopal Church and diocese through a friend of the court brief include: The General Council on Finance and Administration of The United Methodist Church; Gradye Parsons, Stated Clerk of the Presbyterian Church (U.S.A.); The Bishop and Chancellor of the Virginia Annual Conference of The United Methodist Church; The Virginia and Metro D.C. Synods of the Evangelical Lutheran Church in America; The Episcopal Diocese of Southern Virginia; The Episcopal Diocese of Southwestern Virginia; The African Methodist Episcopal Church; The African Methodist Episcopal Zion Church; Elder Donald F. Bickhart, Stated Clerk of the Presbytery of Eastern Virginia; The Virlina District of the Church of the Brethren; The General Conference of Seventh-day Adventists; and The Worldwide Church of God.