Covenant has published The Hard Case Making Bad Law by Dale Rye. He starts out:
I have been asked to comment on the letter opinion of April 3 in the Virginia parishes case. My initial reaction: this 88-page document is probably about as well educated a discussion as we are likely to see from any of the judges dealing with the Episcopal/Anglican meltdown. My simultaneous reaction: that means we are all—liberals and conservatives alike—in a heap of trouble. My explanation may take awhile, but be patient… I will get there.
I must preface this by warning that I am not a member of the Virginia bar, and that Judge Randy Bellows’ letter opinion is expressly and exclusively based on a Virginia statute—Va. Code Sec. 57-9(A)—that has no analogue in Texas or most other states. That is, in fact, one of the most important things to remember when reading the opinion. The court honestly believes that it has put to one side all of the issues raised by the religion clauses in the U.S. and Virginia Constitutions; those are to be decided at a subsequent hearing on May 28. Other constitutional issues (including the Contracts Clause) will not be heard until the final hearing in October. Thus, the April 3 opinion has no direct application outside Virginia. Only a lawyer from that state can estimate how likely the decision is to hold up on subsequent appeals.
What I will comment on are the ways in which this decision illustrates why secular litigation was a spectacularly bad idea for all the parties to this dispute. Under the “hard cases make bad law” principle, this case (and those like it in other states) have the potential to seriously damage the constitutional rights of Christians-and all other religious practitioners-throughout this country. The problem with inviting an outsider in to clean your house is that he may throw out your treasures while trying to dispose of the trash. Ultimately, you may find yourself in possession of a place that is no longer recognizably your home…
“this decision illustrates why secular litigation was a spectacularly bad idea for all the parties to this dispute”
IF ONLY the CANAites hadn’t initiated the litigation!
Dale Rye’s take on the goings on in Anglican Land is always noteworthy and enlightening, especially his throughtful analysis of the wider legal and constitutional implications of the VA district court’s decision.
I did take the opportunity to read the entire article at Covenant and, what confused me slightly is Rye’s assertion that the trajectory in the US if toward a “neutral principles” approach (Wolf v. Jones) rather than the “hierarchical preference” approach (Watson v. Jones) approach. My questioning is on the basis of the recent appellate decision in the St. James Newport case. Here the court (I think its 4th District) went back to Watson v. Jones vs. the St. Luke’s (3rd District) decision favoring “neutral principles” as more proper to California. I suspect that what the CA Supreme Court does… Read more »
“IF ONLY the CANAites hadn’t initiated the litigation!”
I beg you pardon !?
JCF, it actually is the exact opposite. TEC and the Diocese put a stop to brotherly negotiations with these congregations and went to the Courts.
Concerning who sued whom first, it is simply undisputed that the CANA congregations began filing their lawsuits before the diocese or the national church filed their counter-pleadings. The circuit court sets forth the procedural history of this case on page 40 of its decision as follows: *** In December of 2006 through January of 2007, eight of the CANA Congregations filed a “Petition for Approval of Report of Congregational Determination Pursuant to Va. Code section 57-9” with various circuit courts in Virginia. These were Truro Church, Church of the Apostles, and Church of the Epiphany, which filed their petitions in… Read more »
I will be very surprised if the Judge rules the law constitutional. It appears to me, in fact, that the first decision is a setup to show exactly why the law is unconstitutional: it forces a secular court to make decisions on the internal governance of a church — in this case, whether it has “divided” or not. The state cannot tell the church how to run its business, and if TEC says it has not divided, it is not up to the state to say that it has. Thank you, Dr. Primrose, for the truth in the face of… Read more »
Informing the court of the results of the vote to separate from the diocese of Virginia as outlined in the state statute 57-9 is NOT a lawsuit. You sacrifice credibility by repeating this nonsense.