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Possession is Nine Tenths of the Law: But Who Really Owns a Church's Property in the Wake of a Religious Split within a Hierarchical Church?

71 Pages Posted: 1 Jul 2008  

Meghaan McElroy

William & Mary Law School


Courts across the country face a perplexing legal issue regarding the ownership of church property. In the wake of the ordination of an openly gay bishop in 2003, local congregations have broken away from the Protestant Episcopal Church in the United States of America, leading to contentious property disputes over both the real and personal property of the churches. The problem that arises in adjudicating this legal issue is the sparse continuity in court decisions addressing property ownership in the wake of a religious "divorce." With limited guidelines articulated by the Supreme Court, the states are free to craft their own arsenal for handling church property disputes. Virginia provides a perfect starting point for crafting a bright-line rule that all states should eventually follow, considering the existence of a post- Civil War statute meant to handle such religious property disputes.

Beginning in December 2006, fifteen traditionalist Virginia Episcopal parishes voted to break away from the Episcopal Diocese of Virginia and the Episcopal Church of the United States. The decision to disaffiliate with the Diocese and Episcopal Church stemmed from a disagreement over the Episcopal Church's position on homosexuality, representing what the Diocese considered a deeper affront to the teachings of the Christian faith. The parishes voted to affiliate themselves with the Convocation of Anglicans in North America. As a result of the separation, the local parishes and the Episcopal Church, along with the Diocese, have both claimed ownership of the real and personal property presently occupied and held by the parishes' trustees.

In order to settle the present dispute among the eleven Virginia Episcopal parishes, as well as any future disputes among congregations and the hierarchical church to which they belonged, this Note proposes that courts within the Commonwealth of Virginia should adopt a bright-line rule for interpreting Virginia Code section 57-9. Specifically, "division" as used in section 57-9 should mean a factional separation within the hierarchical church between the national church and an aggregate of congregations, determined on a macro level. Such an approach will be beneficial for the judicial system because it will enable courts to resolve church property disputes expeditiously by addressing the sole question of whether a division existed within the church.

Keywords: hierarchical church, Episcopal Church, CANA, Virginia Code section 57-9, division, deference approach, neutral principles doctrine

Suggested Citation

McElroy, Meghaan, Possession is Nine Tenths of the Law: But Who Really Owns a Church's Property in the Wake of a Religious Split within a Hierarchical Church?. William & Mary Law Review, Vol. 50, 2008. Available at SSRN: or

Meghaan McElroy (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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