After existing for nearly three hundred years as an Episcopal Church in the Diocese of Virginia, in 2007 the increasingly conservative Falls Church CANA congregation broke ties with The Episcopal Church over its decision recognize the ordination of women and gays. Falls Church CANA has since aligned itself with the orthodox Church of Nigeria, which does not accept women or gays as full participating members, and has retained possession of the historic church property. The Falls Church CANA congregation is closely associated with several controversial conservative political action groups, Bush administration officials, the recruitment of Sarah Palin and the mysterious Family organization which advocates a policy of elite political-religious fundamentalism similar to the policies McDonnell espoused in his thesis.
Blueweeds has followed the property dispute for several years. Readers will note the author is a member of the continuing congregation of the The Falls Church - Episcopal.
In 2008 the church property dispute was being litigated in a trial court in Fairfax County. Leaders at Falls Church CANA lobbied Attorney General McDonnell to use the force of his office to assist the conservative congregation in retaining ownership of the property.
Attorney General McDonnell obliged by filing an extraordinary Motion to Intervene the Commonwealth of Virginia on behalf of the Falls Church CANA congregation. One of the issues disputed in the trial was the constitutionality of the so-called Virginia Division Statute (Virginia Code section 57-9). The statute is a Reconstruction Era law passed after the Civil War which was designed to prevent Northern interests from taking Virginia church property as war reparations. Virginia Attorney Generals routinely file amicus, or friend of the court, briefs in lawsuits where the constitutionality of a state law is at issue. A Motion to Intervene, however, expresses a specific interest in the outcome of the disputed property and seeks to make the intervening interest a party to the underlying disputed property.
Trial watchers were astounded by Attorney General McDonnell's willingness to take sides with a particular party in a private civil matter. The unusually brutal language McDonnell used in the Commonwealth's brief went far beyond a neutral explanation of the history of a state law. McDonnell went out of his way to ridicule the position of The Episcopal Church and bluntly opined in favor of the policies and positions of the conservative breakaway congregation.
In the response to McDonnell's motion, the lawyers for the Episcopal interests pointed out no Attorney General in the history of Virginia had ever attempted to intervene on behalf of a party in a private civil matter. They underscored the impropriety of Attorney General McDonnell intervening on behalf of the conservation congregation rather than representing the interests of the Commonwealth of Virginia. The lawyers also made the point that McDonnell seeking to intervene in the dispute, rather than filing an amicus brief, was highly improper because the state lacked any right to or interest in the disputed church property.
"... [the Commonwealth of Virginia] lacks any interest in the outcome of the litigation because government should never assert an interest in which party prevails in church property litigation ..." p. 3. [Emphasis in original].
Further, the lawyers noted McDonnell had already taken the extraordinary step of siding the Commonwealth with the legal interests of the Falls Church CANA (see p. 3 fn. 1).
As expected, the Fairfax trail court upheld the constitutionality of the Virginia Division Statute (trial courts almost never rule state laws unconstitutional). The issue is currently on appeal to the Virginia Supreme Court and may reach the US Supreme Court. The trial court did not, however, allow McDonnell to intervene the Commonwealth on behalf of the conservative congregation. The court admonished McDonnell for his attempt to take sides with the conservative church congregation and issued an Order denying the defering McDonnell's Motion to Intervene. (Note: McDonnell later revised and renewed his request, and, after the trial, the Court granted leave to intervene on the narrower grounds and declined to rule on the "broader grounds" on which McDonnell had sought to align the Commonwealth and the CANA congregation. See comments below). The Falls Church CANA congregation, in contrast, lauded McDonnell with prayer services, public statements from leadership, and expressions of appreciation for his willingness to intervene on their behalf.
McDonnell's actions in the Falls Church property dispute are consistent with the policies he articulated his controversial political thesis. McDonnell's willingness, even eagerness, to use the powers of public office to advance the interests of a conservative church in a private property dispute, and to intervene in a religious matter which has divided a close knit Falls Church community, should be disquieting to all people of faith irrespective of political views.
