# In re Multi-Circuit Episcopal Church Property Litigation

> Fairfax County Circuit Court · April 3, 2008 · 76 Va. Cir. 1

URL: https://www.frixlaw.com/law-library/cases/8669084

## Case

- **Full name:** In re Multi-Circuit Episcopal Church Property Litigation
- **Court:** Fairfax County Circuit Court
- **Decided:** April 3, 2008
- **Citations:** 76 Va. Cir. 1
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Bellows
- **Judges:** Bellows
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

By Judge Randy I. Bellows
Of the several issues now before the Court, the sole issue that is ripe for decision, and the one that therefore shall be decided today, is whether the powers and the authorities of Va. Code § 57-9(A) (hereinafter “§ 57-9(A)”) may be invoked in the instant litigation.
That matter requires the resolution of four questions:
First, what are the definitions of “church” and “religious society,” as those terms are used in § 57-9(A), and do either of these terms apply to the Protestant Episcopal Church in the Diocese of Virginia (hereinafter “Diocese”), the Protestant Episcopal Church in the United States of America (hereinafter “ECUSA”), or to the Anglican Communion?
Second, what is the definition of “attached,” as that term is used in § 57-9(A), and does the term apply to the congregations that are the plaintiffs in this litigation (hereinafter “CANA Congregations”), in that they are “attached” to the Diocese, the ECUS A, or the Anglican Communion?
*787 Third, what is the definition of “branch,” as that term is used in § 57-9(A), and are any of the following entities, the Convocation of Anglicans in North America (hereinafter “CANA”), the American Arm of the Church of Uganda, the Church of Nigeria, or the Anglican District of Virginia (hereinafter “ADV”), “branches” of the Diocese, the ECUSA, or the Anglican Communion?
Fourth, and perhaps most importantly, what is the definition of “division,” as that term is used in § 57-9(A), and has such a “division” occurred in a “church or religious society” to which the CANA Congregations were attached?
For the reasons stated in this opinion, the Court finds in the affirmative as to each of these questions. In other words, the Court finds adequate support in the record to conclude that § 57-9(A) has been properly invoked. The Court notes that it does not decide today any issue related to the constitutionality of § 57-9(A), except in one discrete respect. That one discrete respect relates to the ECUSA/Diocese’s assertion that constitutional jurisprudence requires the Court to interpret a statute, if possible, in a way that preserves its constitutionality. See, e.g., Opp’n Br. for the Episcopal Church and the Diocese 9 (stating that “the principle of constitutional avoidance dictates that statutes be interpreted to avoid potential constitutional issues whenever possible”). While there is nothing remarkable or controversial in this approach to statutory interpretation, the Court finds it unavailing in this case, for the reasons stated in this opinion.
The Court will hear oral argument on the constitutional issues in accordance with the Order issued today. The obvious advantage to the Court and the parties in bifurcating the issue of statutory interpretation and applicability, on the one hand, and constitutionality, on the other, is that the parties at oral argument on the constitutional issues will not have to engage in speculation regarding the Court’s interpretation of the statute but, rather, will know the precise contours of the Court’s reasoning.
Second, the Court does not address or decide in this opinion the validity of the various votes taken by the CANA Congregations to disaffiliate from the ECUSA and the Diocese. The Court will reach that decision, as necessary, at a later point in time.
Finally, this opinion does not address the merits of the ECUSA’s and the Diocese’s declaratory judgment actions, which have been set for trial in October 2008.
*788
Summary
The only way in which this Court could find a “division” not to exist among the pertinent entities in this case is to define the term so narrowly and restrictively as to effectively define the term out of existence. The ECUSA and the Diocese urge upon this Court just such a definition and further assert that any definition other than the one for which they argue would render the statute unconstitutional. See Opp’n Br. for the Episcopal Church and the Diocese 9 (stating that “ [constitutional avoidance compels the [ECUSA]’s and the Diocese’s interpretation of § 57-9”). The Court rejects this invitation. Whether or not it is true that only the ECUSA’s and the Diocese’s proposed definition can save § 57-9(A) from constitutional infirmity, there is no constitutional principle of which this Court is aware that would permit, let alone require, the Court to adopt a definition for a statutory term that is plainly unwarranted. Rather, the definition of “division” adopted by this Court is a definition which the Court finds to be consistent with the language of the statute, its purpose and history, and the very limited case law that exists. Given this definition, the Court finds that the evidence of a “division” within the Diocese, the ECUSA, and the Anglican Communion is not only compelling, but overwhelming. As to the other issues in principal controversy, the Court finds the Anglican Communion to be a “church or religious society.” The Court finds each of the CANA Congregations to have been attached to the Anglican Communion. Finally, the Court finds that the term “branch” must be defined far more broadly than the interpretation placed upon that term by ECUSA and the Diocese and that, as properly defined, CANA, ADV, the American Arm of the Church of Uganda, the Church of Nigeria, the ECUSA, and the Diocese, are all branches of the Anglican Communion and, further, CANA and ADV are branches of ECUSA and the Diocese.
I. Background
This litigation arises out of profound discord within the Diocese, the ECUSA, and the Anglican Communion itself. By all accounts, this internal conflict has been brewing for many years. See, e.g., Defs.’ Ex. 68 at 29, “Deposition of Bishop-Elect David Anderson,” in which Bishop Anderson, the President and Chief Executive Officer of the American Anglican Council, and a Bishop-Elect of CANA, states that:
*789 [T]he division, starting small, as like a hairline crack on your windshield, has just - as things have gone on and more things have happened, the crack, the division, has simply gotten more pronounced.
Q: So this is not a new thing, the division of the church?
A: It is a growing, ongoing one that became more clearly observable in the, probably, late ‘90s.
Q: Is it possible to pinpoint when the division in the church occurred or began?
A: It would be difficult to pick a moment. I would use a comparison about when a marriage fails and it is hard to say this is the moment that the marriage - where it started, but usually the significant, observable phenomena are preceded by smaller things leading up to that.
However, the evidence produced at trial indicates that the ultimate catalyst of the conflict, triggering a series of events culminating in the present litigation, was the ECUSA 2003 General Convention.
This letter opinion sets forth, in chronological order, an account of key events that have occurred within all levels of the Anglican Communion, the ECUSA, and the Diocese. This letter opinion also includes excerpts from letters and correspondence between clergy and other leaders within the Anglican Communion, ECUSA, and the Diocese, which have become part of the record in this litigation. This factual background serves as the foundation for the Court’s legal analysis and conclusions. First, however, this opinion describes the structural nature of ECUSA, the Diocese, and the Anglican Communion.
A. Structural Context
1. ECUSA
The Protestant Episcopal Church in the United States of America (“ECUSA”) is “a constituent member of the Anglican Communion. ...” (Defs.’ Ex. 2, “Constitution and Canons of the Episcopal Church in effect since January 1,2007,” at 1.) It considers itself to be “a Fellowship within the One, Holy, Catholic, and Apostolic Church, of those duly constituted Dioceses, Provinces, and regional Churches in communion with the See of Canterbury, upholding and propagating the historic Faith and Order as set forth in the Book of Common Prayer.” (Defs.’ Ex. 2 at 1.) ECUSA’s *790 governing body is the General Convention, which consists of the House of Bishops and the House of Deputies. (Defs.’ Ex. 2 at 1.) Essentially, the General Convention is a bicameral legislature, in that “[e]ither House may originate and propose legislation, and all acts of the Convention shall be adopted and be authenticated by both Houses.” (Defs.’ Ex. 2 at 1.) Each ECUSA bishop has a “seat and a vote in the House of Bishops,” (Defs.’ Ex. 2 at 1) while the House of Deputies is composed of amix of “ordained persons,” presbyters, deacons, and laypeople. 1 The House of Bishops elects ECUSA’s Presiding Bishop, which is ECUSA’s “Chief Pastor and Primate” (Defs.’ Ex. 2 at 28) by majority vote (Defs.’ Ex. 2 at 1).
ECUSA is further subdivided into either Dioceses or Missions. 2 (See Defs.’ Ex. 2 at 5-6.) Each Diocese chooses its Bishop or Bishop Coadjutor according to “rules prescribed by the Convention of that Diocese,” while Bishops of Missionary Dioceses are “chosen in accordance with the Canons of the General Convention.” (Defs.’ Ex. 2 at 3.) Dioceses are grouped into geographical Provinces (Defs.’ Ex. 2 at 42-43), except that, pursuant to ECUSA’s Constitution, “no Diocese shall be included in aProvince without its own consent.” (Defs.’ Ex. 2 at 7.) Each Province has a Synod, which has its own House of Bishops and House of Deputies. (Defs.’ Ex. 2 at 43.) Also of note is that, by the terms of its Constitution, ECUSA requires that the Book of Common Prayer be used in all its Dioceses. (Defs.’ Ex. 2 at 8.)
2. Diocese of Virginia (“Diocese”)
The Diocese’s Constitution states that “[t]he order, government, and discipline of the Protestant Episcopal Church in the Diocese of Virginia shall be vested in the Bishop, and in the Council of the Diocese....” (Defs.’ Ex. 3, “Constitution and Canons of the Diocese in effect until the adjournment of the *791 Annual Council on January 27,2007 (including throughout December 2006),” at 6.) The Council is comprised of the “Clerical order” and the “Lay order.” The Clerical order is composed of “the Bishop or Bishops and all other ministers canonically resident in the Diocese of Virginia,” while the “Lay order consists] of both the “Lay Delegates,” and the “Lay members ex officio.” The Lay Delegates consist of delegates from each church, as chosen by its Vestry. (Defs. ’ Ex. 3 at 6.) The Lay members ex officio include “the Lay members of the Standing Committee, the Lay members of the Executive Board, the Chancellor, the Presidents of the Regions, the President of the Episcopal Church Women of the Diocese, and five lay persons, not over 21 years of age at the time of election, to be elected on or before May 1 as Youth Delegates by five of the Regional Councils designated on an annual rotating basis by the Standing Committee.” (Defs.’ Ex. 3 at 6-7.) The Council conducts annual meetings. (Defs.’ Ex. 3 at 6.)
In addition to the Bishop, officers of the Diocese include a Secretary, Treasurer, Chancellor, and a Registrar. The Diocese’s Constitution also mandates that a Standing Committee and an Executive Board “conduct... the affairs of the Diocese.” (Defs.’ Ex. 3 at 7.) The Standing Committee “consist[s] of twelve members, six of the Clerical order, and six of the Lay order,” (Defs.’ Ex. 3 at 10) while the Executive Board consists of “[o]ne member elected by each Regional Council,” 3 and “[t]he Bishop, the Bishop Coadjutor if there be one, and the Suffragan Bishops if there be such.” (Defs. ’ Ex. 3 at 15-16.)
At the local level, each Church 4 within the Diocese has a Vestry, which consists of three to twelve members who are elected by the Church’s adult communicants. (Defs.’ Ex. 3 at 21.) The Church’s head pastor, known as the *792 Rector, presides at Vestry meetings, and is in fact elected by the Church’s Vestry, with “the advice of the Bishop and in compliance with General Convention Canon III. 17.” (Defs.’ Ex. 3 at 22, 24.)
3. The Anglican Communion
The Anglican Communion is described as a “family of churches . . . sharing] a kind of historical relationship, one with another. .. understanding and seeing [their] common ancestry in the Church of England through the See of Canterbury.” 5 (Trial Tr. 862:10-15, Nov. 13th-20th, 2007.) It is “a family of ...38... regional and national churches that share a common history of their understanding of the Church catholic through the See of Canterbury,” (Trial Tr. 846:4-8) and “a way by which ... Anglicans say [they] are related to, [they] have a historic relationship with the Archbishop of Canterbury.” (Trial Tr. 848:21-849:2.) The Anglican Communion has also been described as “a widely diverse international society of churches.” (Trial Tr. 928:20-21.) In the Lambeth Commission on Communion’s 2004 Windsor Report, it formally referred to itself as:
that part of the Body of Christ which shares an inheritance through the Anglican tradition, that is, from the Church of England, whose history encompasses the ancient Celtic and Saxon churches of the British Isles, and which was given fresh theological expression during the period of the Reformation in *793 the sixteenth and seventeenth centuries.... The very fact that the family of churches which traces its roots back to the ancient churches of the British Isles should call itself an Anglican Communion is itself indicative of the twin fundamental concepts on which the community is built: our shared inheritance (“Anglican”) and our worldwide fellowship as God’s children (“communion”).
(Pis.’ Ex. 61, “The Lambeth Commission on Communion’s 2004 Windsor Report,” at 25.)
Further, the Anglican Communion states that it believes:
Communion clearly makes demands on all within it. It involves obligations, and corresponding rights, which flow from the theological truths on which the life of the Christian community rests.... The commitments of communion provide objective criteria by which to understand the rights and responsibilities that go with the relationship and which promote and protect the common good of the worldwide community of churches. Many obligations are implicit in the foundation, purposes, forms, subjects, and substance of communion, and thus relate to matters of critical common concern to the global Anglican fellowship. For instance, the divine foundation of communion should oblige each church to avoid unilateral action on contentious issues which may result in broken communion. It is an ancient canonical principle that what touches all should be decided by all.... Communion obliges each church ... to act interdependently, not independently.
(Pis.’Ex. 61 at 26-27.)
The core structures of the Anglican Communion include the Archbishop of Canterbury, who is known as the Anglican Communion’s “focus of unity,” along with three “Instruments of Communion,” that are also known as “Instruments of Unity.” (Pis.’ Ex. 61 at41; Trial Tr. 849:16-850:3.) These are: (1) the Lambeth Conference (hereinafter “Lambeth”); (2) Anglican Consultative Council (hereinafter “ACC”); and (3) the Primates’ Meeting.
*794 a. The Archbishop of Canterbury
The Archbishop of Canterbury is known as the “chief pastor of the entire Communion.” (Pis. 5 Ex. 61 at 31.) To illustrate the role of the Archbishop of Canterbury, the Lambeth Commission on Communion’s 2004 Windsor Report states that “[i]t is important to note that these Bonds of Unity are different in kind from those which operate in the Roman Catholic Church, in which the Pontiff, with the support of the Curia, enjoys ‘supreme, full, immediate, and universal ordinary power,’ which he can always freely exercise. The Anglican way, theological, symbolic, and practical, is diffused among the different aspects of the life of the Communion precisely in such a way as to give supreme authority, in the sense outlined above, to scripture as the locus and means of God’s word, energizing the Church for its mission and sustaining it in its unity.” (Pis.’ Ex. 61 at 34 (footnotes omitted)).
“From the beginning, the Archbishop of Canterbury, both in his person and his office, has been the pivotal instrument and focus of unity; and relationship to him became a touchstone of what it was to be Anglican.” (Pis’. Ex. 61 at 41.) Thomas Cranmer was the first Archbishop of the Reformation period, and he wrote the first Book of Common Prayer. (Pis. ’ Ex. 61 at 41, n. 55.) Following the American Revolutionary War, American Anglicans looked to the Archbishop of Canterbury to consecrate new bishops, and “[thereafter it was successive Archbishops of Canterbury who consecrated bishops for Canada, the West Indies, India, and the developing English colonial territories, and it was to Archbishops of Canterbury that these churches tended to turn for assistance both in spiritual and political matters when problems arose.” (Pis.’ Ex. 61 at 41-42.)
b. The Lambeth Conference
The Lambeth Conference is a once every ten years conference of all of the Bishops of the Worldwide Anglican Communion. (Trial Tr. at 396:9-12.) The Lambeth Conference passes various “resolutions,” which are described as “non-binding” upon the various churches that serve as members of the Communion. (Trial Tr. at 851:21-852:15.) It was begun in 1867, but did not become the “Lambeth Conference” until 1877, when a second meeting of the conference was held. (Trial Tr. at 1035:5-11.) From its beginnings, “the Lambeth Conference has proved to be a powerful vehicle for the expression of a concept central to Anglican ecclesiology, the collegiality of the bishops.” (Pis.’Ex. 61 at 43.)
*795 c. Anglican Consultative Council (“ACC”)
The Anglican Consultative Council is described as “a consultative body made up of members, sometimes understood as representatives .. . from the 38 churches who come together every two or three... years, in various parts of the world to ... take counsel to consider the initiatives and hopes and dreams before the Anglican Communion as a family of churches, to pray together, to worship together, to study [the scriptures] together.” (Trial Tr. at 853:20-854:7.) The ACC was established in 1968. (PI. Ex. 61 at 43.) The ACC’s “powers” include the following:
a. To facilitate the co-operative work of the member churches of the Anglican Communion....
c. To advise on inter-Anglican, provincial, and diocesan relationships, including the division of provinces, the formation of new provinces and of regional councils, and the problems of extra-provincial dioceses.
d. To develop as far as possible agreed Anglican policies in the world mission of the Church and to encourage national and regional churches to engage together in developing and implementing such policies by sharing their resources of man power, money, and experience to the best advantage of all.
e. To keep before national and regional churches the importance of the fullest possible Anglican collaboration with other Christian churches.
f. To encourage and guide Anglican participation in the ecumenical movement and the ecumenical organizations, to cooperate with the World Council of Churches and the world confessional bodies on behalf of the Anglican Communion, and to make arrangements for the conduct of pan-Anglican conversations with the Roman Catholic Church, the Orthodox churches, and other churches. ...
j. To obtain, collect, receive, and hold money, funds, and property, old and new, by way of contributions, donations, subscriptions, legacies, grants, and any other lawful method, and accept and receive gifts of property of any description (whether subject to any special trust or not).
*796 (Defs.’ Ex. 42, “The Constitution and Bylaws of the Anglican Consultative Council,” at 449.)
The ACC’s membership consists of the Archbishop of Canterbury, as well as a combination of bishops, priests, and laypersons from each of the member churches. (Defs.’ Ex. 42 at 451-52.) The ACC also appoints a Standing Committee, composed of nine members, which meet annually. (Defs.’ Ex. 42 at 450.)
d. The Primates ’ Meeting
The Primates’ Meeting is composed of the head or “top” Bishops from each church or province in the Anglican Communion. Since 1979, the Primates have scheduled meetings for every other year, at which they “come together . . . to ... take counsel, to pray together, to worship together for the sake of building relationships across the Anglican Communion under the Presidency of the Archbishop of Canterbury.” (Trial Tr. at 858:9-22.)
B. Chronology of Major Events
This Court describes in considerable detail the evidentiary foundation for its finding that a “division” under § 57-9(A) has occurred. In doing so, this Court emphasizes that no statement, expression, or comment in this opinion is intended by the Court to express a view on the substance or the merits of the matters giving rise to the division. The Circuit Court is a secular institution of government, and it is not entitled or permitted to have any view or opinion on a matter of religious orthodoxy.
1. Genesis of the Conflict
At ECUSA’s 2003 General Convention, the three major points of controversy included: (1) confirmation of the election of the Rev. Gene Robinson as a Bishop within ECUSA; (2) a resolution that recognized the blessings of same-sex unions; and (3) the rejection of a resolution concerning the “historic formularies ofthe Christian faith.” See Trial Tr. at 313:9-314:20; Pis.’ Ex. 262, “Letter dated August 15, 2003, to Most Rev. and Rt. Hon. Rowan Williams from Rt. Rev. Peter James Lee,” at 1.
Subsequent to the Convention, on August 15,2003, Bishop Peter James Lee, the Bishop of the Diocese of Virginia, wrote a letter to then-Presiding Bishop of ECUSA, the Most Rev. Frank T. Griswold, and praised Presiding *797 Bishop Griswold for the “impressive ... way [Bishop Griswold] led [the House of Bishops] through the vote for consent on Canon Robinson.” (Pis.’ Ex. 160, “Letter from Rt. Rev. Peter James Lee to The Most Rev. Frank T. Griswold, 8/15/2003,” at 1.) However, Bishop Lee further informed Presiding Bishop Griswold that Bishop Lee was concerned about the reaction within his Diocese to the events of the 2003 Convention, in that Bishop Lee was “[Receiving hundreds of letters, most of which [were] negative, including some from vestries of some of [the] larger parishes, putting their pledges in escrow so neither the diocese nor the national church is supported.” (Pis.’ Ex. 160 at 1.) Further, Bishop Lee stated that he “hope[d] that David Beers, 6 under [Presiding Bishop Griswold’s] direction, [would] convene some sort of cabinet of thoughtful chancellors in the next few weeks to brainstorm what possible responses might be made should there be an attempt to create a parallel province.” (Pis.’ Ex. 160 at 1.)
That same day, Bishop Lee wrote directly to the Archbishop of Canterbury, the Most Rev. and Rt. Hon. Rowan Williams, stating that:
The worldwide publicity given to our recent General Convention is spinning the reports in ways that are not entirely accurate....
A number of the congregations of the Diocese of Virginia are unhappy with me because I consented to Canon Robinson’s consecration.... As I understand it, they are planning to draft plans for a parallel province of the Communion and hope to convince you and the other Primates when you meet in London in October to support such a plan.
I appeal to you not to support such a divisive effort. Surely we can arrange some form of flying bishops for congregations that are unhappy with their diocesans but to create a parallel province would create havoc in the American Church and raise all sorts of questions regarding property, pensions, the authority of existing canons, and the like... .
Please know that you are in my daily prayers as you wrestle with this fractious Communion.
*798 (Pis.’ Ex. 262 at 1-2.)
Similarly, on October 1,2003, Bishop Lee wrote to one of the Anglican Communion’s Primates, the Most Rev. Robin Eames of Northern Ireland, stating that Bishop Lee was “appealing] for pastoral understanding of the breadth of the Episcopal Church in the United States (ECUSA)....” (Pis.’ Ex. 164, “Letter from Rt. Rev. Peter James Lee to The Most Rev. Robin Eames, 10/1/2003” at 1.) Bishop Lee stated that he wanted “to ask that the primates take no action at [their] London meeting in October that [would] damage the unity of ECUSA or encourage intrusions of foreign bishops into [ECUSA’s] life that [would] undermine the integrity of [ECUSA’s] dioceses.” (Pis. ’ Ex. 164 at 1.) The other pertinent portion of this correspondence reads as follows:
The Diocese of Virginia is the largest diocese in ECUSA in terms of baptized members. Because I and a 6 to 2 majority of our lay and clergy deputies at the General Convention voted to confirm Gene Robinson as Bishop of New Hampshire, some of our people and congregations are upset....
I can understand if the primates need to convey some sense of disappointment over ECUSA’s confirmation of the bishop-elect of New Hampshire. I plead for your patience as we seek to work out our own differences and ask your help in preventing any single primate or group of primates from creating a dissident ecclesial body in the United States that will confuse our people and distract us from mission.
As one of the first Anglican communities outside the British Isles, the Church in Virginia cherishes our partnership with the Anglican Communion. We hope the Primates’ Meeting will continue to recognize our loyalty to the communion and honor our self-governing tradition.
(Pis.’ Ex. 164 at 1-2.)
Despite Bishop Lee’s entreaties, however, the dispute continued to broaden, spilling over into all parts of the Anglican Communion. On April 27, 2004, then-Presiding ECUSA Bishop, the Most Rev. Frank T. Griswold, wrote a letter to the Archbishop of Kenya, The Most Rev. Benjamin Nzimbi, which reads in pertinent part as follows:
*799 I am grieved that you have reached the decision that we can no longer walk this path together. You recognize the long history of our partnership in the Gospel, which has never been about anything less than the advancement of God’s kingdom, whether in Kenya or in the United States.
Nonetheless, I respect your decision and that of the church in whose name you speak. Our sharing of resources has never come with strings attached.
Our partnership has many dimensions, ranging from the sharing of financial resources, whether from the General Convention budget, Episcopal Relief and Development, or the United Thank Offering, to the sharing of people, whether through missionaries, companion dioceses, or theological students... . Financial resources shared .. . derive both from dioceses that consented to the consecration of Bishop Robinson and from dioceses that withheld consent; we do not make a distinction.
(Pis.’ Ex. 268, “Letter dated April 27, 2004, to Most Rev. Benjamin Nzimbi from Most Rev. Frank T. Griswold,” at 1.)
Back in Virginia, Bishop Lee attempted to address the concerns raised by several congregations by making arrangement for “alternate Episcopal care.” On September 7, 2004, the Diocese sent out a press release entitled, “Former Archbishop of Canterbury Accepts Bishop Lee’s Invitation to Preside at Supplemental Confirmations.” This press release reads in its entirety as follows:
The former Archbishop of Canterbury, Lord Carey of Clifton, has accepted an invitation from the Rt. Rev. Peter James Lee, Bishop of the Episcopal Diocese of Virginia, to preside at two supplemental confirmation services on Wednesday, September 15,5:30 p.m. and 8:30 p.m. at Truro Church in Fairfax, Va. The services are especially provided for those congregations that are unhappy with Bishop Lee’s consent of the consecration of the Bishop of New Hampshire and feel the need for alternate Episcopal ministry.
“Lord Carey is coming at my invitation as an expression of pastoral outreach from the office of the Bishop,” said the Rt. Rev. Peter James Lee. “My hope is that this pastoral gesture will *800 be seen as a way of accommodating people who have differing views within the Diocese of Virginia. I’m grateful to Lord Carey for his willingness to come.”
The special services are in keeping with a pledge Bishop Lee made in his pastoral address to the Annual Council of the Diocese in January, in which he stated that he would make provisions for alternate Episcopal care for any congregation that requested it.
Speaking of his upcoming visit, Lord Carey said, “I feel deeply touched by Bishop Peter Lee’s invitation to conduct two confirmation services in his diocese. The present strains on the Anglican Communion demand firm leadership, generosity, and kindness. I have accepted his invitation to be his representative out of my respect for him and for the Rev. Martyn Minns [rector of Truro Church], both of whom are good friends.”
In an August 25 letter to the editor of The Daily Telegraph (London), Lord Carey wrote, “The Diocese of Virginia is pioneering a way of responding to the deep divisions in Episcopal Church of the U.S. I salute Peter Lee’s spirit of generosity and humility as a demonstration that, in these critical days for the Anglican Communion, it is possible to avoid schism, if American bishops pay attention to the many Episcopalians who are exceedingly distressed by the consecration of Gene Robinson.”
(Pis.’ Ex. 74, “‘Former Archbishop of Canterbuiy Accepts Bishop Lee’s Invitation to Preside at Supplemental Confirmations,’ The Diocese of Virginia Press Release, 9/7/2004,” at 1.)
2. The Windsor Report
A month later, in October of 2004, the escalating conflict within the whole of the Anglican Communion was addressed in a landmark document entitled the “Windsor Report,” issued by the Lambeth Commission. Due to increasing discord relating to issues of human sexuality within the Anglican Communion, in October of 2003, the Archbishop of Canterbuiy established the “Lambeth Commission” upon the suggestion of the Anglican Primates. The described “mandate” of this Commission was to “seek a way forward which would encourage communion within the Anglican Communion.... [I]t *801 requested consideration of ways in which communion and understanding could be enhanced where serious differences threatened the life of a diverse worldwide Church.” (Pis.’ Ex. 61 at 5.)
The Foreword to the Windsor Report, authored by the Most Rev. Dr. Robin Eames, Archbishop of Armagh and Chairman of the Lambeth Commission, reads in pertinent part as follows:
Since the 1970s controversies over issues of human sexuality have become increasingly divisive and destructive throughout Christendom. Within the Anglican Communion, the intensity of debate on these issues at successive Lambeth Conferences has demonstrated the reality of these divisions.
The decision by the 74th General Convention of the Episcopal Church (USA) to give consent to the election of bishop Gene Robinson to the Diocese of New Hampshire, the authorizing by a diocese of the Anglican Church of Canada of a public Rite of Blessing for same sex unions, and the involvement in other provinces by bishops without the consent or approval of the incumbent bishop to perform Episcopal functions have uncovered major divisions throughout the Anglican Communion. There has been talk of crisis, schism, and realignment. Voices and declarations have portrayed a Communion in crisis.
Those divisions have been obvious at several levels of Anglican life: between provinces, between dioceses, and between individual Anglican clergy and laity. The popular identification of “conservatives” and “liberals,” and “the west” as opposed to “the global south,” has become an oversimplification - divisions of opinion have also become clear within provinces, dioceses, and parishes....
What could be termed “the human face” of these divisions has become clear to the Commission. Within provinces, dioceses and parishes, where individual Anglican Christians have experienced degrees of alienation and exclusion due to difference of opinion between leadership and members, there has been much pain and disillusionment. Further questions have surfaced about Episcopal oversight within a diocese where significant groups of Anglicans have become alienated from their bishop... .
*802 The depth of conviction and feeling on all sides of the current issues has on occasions introduced a degree of harshness and a lack of charity which is new to Anglicanism. A process of dissent is not new to the Communion, but it has never before been expressed with such force nor in ways which have been so accessible to international scrutiny.
The “bonds of affection” so often quoted as a precious attribute of Anglican Communion life, as well as the instrument of communion and unity, have been threatened by the current divisions. . ..
[I]f realistic and visionary ways cannot be agreed to meet the levels of disagreement at present or to reach consensus on structures for encouraging greater understanding and communion in the future, it is doubtful if the Anglican Communion can continue in its present form.
(Pis.’ Ex. 61 at 4-6.)
The Windsor Report embarked upon an extensive analysis of the current difficulties within the Communion, noting that one of the reasons for the Communion’s present problems was that “it was assumed by [ECUSA] and the Diocese of New Westminster [Canada] 7 that they were free to take decisions on matters which many in the rest of the Communion believe can and should be decided only at the Communion-wide level.” (Pis.’ Ex. 61 at 22.) The Windsor Report further commented that the actions of various bishops within ECUSA “raise[] the question of their commitment to [ECUSA]’s interdependence as a member of the Anglican Communion to which its own Constitution and Canons makes reference.” (Pis.’ Ex. 61 at 52.) In the corresponding footnote to this statement, the Windsor Report states that “[t]he Preamble to the ECUSA Constitution and Canons characterizes the church as ‘a constituent member of the Anglican Communion.’.. .’’(Pls.’Ex. 61 at 52, n. 91.)
The Windsor Report reflects upon the balance within the Anglican Communion between independence of the various provinces on the one hand, versus the interdependence mandated by the fact that the various provinces are part of a “Communion,” stating that, “Since autonomy is closely related to interdependence and freedom-in-relation, there are legitimate limits (both *803 substantive and procedural) on the exercise of this autonomy, demanded by the relationships and commitments of communion and the acknowledgement of common identity. Communion is, in fact, the fundamental limit to autonomy.” (Pis.’ Ex. 61 at 36.)
The Windsor Report made various “recommendations” to the Anglican Communion. These included that ECUSA “be invited to express its regret that the proper constraints of the bonds of affection were breached in the events surrounding the election and consecration of a bishop for the See of New Hampshire,” and that “pending such expression of regret, those who took part as consecrators of Gene Robinson should be invited to consider in all conscience whether they should withdraw themselves from representative functions in the Anglican Communion.” (Pis.’ Ex. 61 at 53-54.) The Windsor Report acknowledged that the Diocese of New Westminster and ECUSA might argue that the Windsor Report’s recommendations and advice have “only moral authority,” but nevertheless the Report still declared that:
we believe that it must be recognized that actions to move towards the authorization of such rites in the face of opposition from the wider Anglican Communion constitutes a denial of the bonds of Communion. In order for these bonds to be properly acknowledged and addressed, the churches proposing to take action must be able, as a beginning, to demonstrate to the rest of the Communion why their proposal meets the criteria of scripture, tradition, and reason.
(Pis.’Ex. 61 at 56.)
On the other hand, the Windsor Report also had criticism for those bishops from various provinces within the Anglican Communion who disagreed with the actions of ECUSA and “who believe[d] it [wa]s their conscientious duty to intervene in provinces, dioceses, and parishes other than their own.” (Pis.’ Ex. 61 at 59.) The Windsor Report called on these bishops who had seen fit to intervene to “express regret for the consequences of their actions,” and “to affirm their desire to remain in the Communion,” as well as “to effect a moratorium on any further interventions.” (Pis.’ Ex. 61 at 59.) The Windsor Report concluded with the following warning:
There remains a very real danger that we will not choose to walk together. Should the call to halt and find ways of continuing in our present communion not be heeded, then we shall have to *804 begin to learn to walk apart. We would much rather not speculate on actions that might need to be taken if, after acceptance by the primates, our recommendations are not implemented. However, we note that there are, in any human dispute, courses that may be followed: processes of mediation and arbitration; non-invitation to relevant representative bodies and meetings; invitation, but to observer status only; and, as an absolute last resort, withdrawal from membership.
(Pis.’ Ex. 61 at 60.)
The Windsor Report proved disappointing to some Primates within the Anglican Communion. For example, on October 19, 2004, the Primate of All Nigeria, the Most Rev. Peter J. Akinola, expressed his dissatisfaction as follows:
After an initial reading [of the Windsor Report] it is clear to me that the report falls far short of the prescription needed for this current crisis. It fails to confront the reality that a small economically privileged group of people has sought to subvert the Christian faith and impose their new and false doctrine on the wider community of faithful believers. We have watched in sadness as sisters and brothers who have sought to maintain their allegiance to the “faith once delivered to the saints” have been marginalized and persecuted for their faith. We have been filled with grief as we have witnessed the decline of the North American Church. . ..
Where [in the Windsor Report] are the expressions of deep concern for the men and women whose witness is jeopardized and whose lives are at risk because of the actions of ECUS A [Episcopal Church of the United States of America]? Where are the words of “deep regret” for the impact of ECUSA’s actions upon the Global South and our missionary efforts? ....
The report correctly notes that the Episcopal Church and the Diocese of New Westminster have pushed the Anglican Communion to the breaking point. It rightly states that they did not listen to the clear voices of the Communion and rejected the counsel of all four Instruments of Unity. . .. They are hell bent on destroying the fabric of our common life, and we are told to sit and wait.
*805 We have been asked to express regret for our actions and “affirm our desire to remain in the Communion.” How patronizing! We will not be intimidated. In the absence of any signs of repentance and reform from those who have torn the fabric of our Communion, and while there is continuing oppression of those who uphold the Faith, we cannot forsake our duty to provide care and protection for those who cry out for our help.
The report rightly observes that if the “call to halt” is ignored “then we shall have to begin to learn to walk apart.” The Episcopal Church and Diocese of New Westminster are already walking alone on this, and, if they do not repent and return to the fold, they will find that they are all alone. They will have broken the Anglican Communion.
(Defs.’ Ex. 63 A, “Redacted copy of portions of Christ’s Ambassadors Church webpage, http://www.uncompromisedgospel.org (as printed November 6, 2007),” at 584-85.)
Between February 20th and 25th of2005, the Anglican Primates met at the Dromantine Retreat and Conference Centre, Newry, in Northern Ireland, at the Archbishop of Canterbury’s invitation. The primary purpose for this meeting was to analyze, discuss, and consider the 2004 Windsor Report. 8 On February 24,2005, the Primates issued a communique 9 through the Anglican Communion News Service, which summarized the proceedings of their Northern Ireland meeting. The communique stated that the Primates “welcome[d] the general thrust of the Windsor Report as offering a way forward for the mutual life of [the Anglican] Communion.” (Defs.’ Ex. 19 at 1.) The most relevant provisions of this communique as they relate to the instant litigation are as follows:
*806 12. We as a body continue to address the situations which have arisen in North America with the utmost seriousness. Whilst there remains a very real question about whether the North American churches are willing to accept the same teaching on matters of sexual morality as is generally accepted elsewhere in the Communion, the underlying reality of our communion in God the Holy Trinity is obscured, and the effectiveness of our common mission severely hindered.
13. We are persuaded however that, in order for the recommendations of the Windsor Report to be properly addressed, time needs to be given to the Episcopal Church (USA) and to the Anglican Church of Canada for consideration of these recommendations according to their constitutional processes.
14. Within the ambit of the issues discussed in the Windsor Report and in order to recognize the integrity of all parties, we request that the Episcopal Church (USA) and the Anglican Church of Canada voluntarily withdraw their members from the Anglican Consultative Council for the period leading up to the next Lambeth Conference. During that same period we request that both churches respond through their relevant constitutional bodies to the questions specifically addressed to them in the Windsor Report as they consider their place within the Anglican Communion.
15. In order to protect the integrity and legitimate needs of groups in serious theological dispute with their diocesan bishop, or dioceses in dispute with their Provinces, we recommend that the Archbishop of Canterbury appoint, as a matter or urgency, a panel of reference to supervise the adequacy of pastoral provisions made by any churches for such members in line with the recommendation in the Primates’ Statement of October 2003. Equally, during this period we commit ourselves neither to encourage nor to initiate cross-boundary interventions.
16. Notwithstanding the request of paragraph 14 of this communique, we encourage the Anglican Consultative Council to organize a hearing at its meeting in Nottingham, England, in June 2005 at which representatives of the Episcopal Church (USA) and the Anglican Church of Canada, invited for that *807 specific purpose, may have an opportunity to set out the thinking behind the recent actions of their Provinces, in accordance with paragraph 141 of the Windsor Report. ...
19. These strategies are intended to restore the full trust of our bonds of affection across the Communion.
(Defs.’ Ex. 19 at 2-3 (internal citations and endnotes omitted).)
3. Discord within the Diocese
Meanwhile, events were continuing to unfold at the level of the Diocese of Virginia, which had witnessed the appointment of a “Reconciliation Commission,” whose purpose was to address the ongoing conflict within the Diocese.
Dr. Paul Julian 10 testified that, following the 2003 Convention, the Diocese developed a “Reconciliation Commission.” This Commission “was established by a resolution of the 209th Diocesan Council in 2004, and its task was to find ways to bring about some peaceful conflict resolution in the Diocese [following] the rather controversial events of the [2003 ECUSA] Convention.” (Trial Tr. 403:18-404:1.) Resolution R-24sa set up the Reconciliation Commission, whose members were appointed by Bishop Lee. This Resolution reads in its entirety as follows:
Whereas, we in the Diocese of Virginia as members of the worldwide Anglican Communion are united in Christ and are called to live out our witness in our workplaces, churches, and communities; and
Whereas, profound differences have arisen over issues addressed at the 74th General Convention, specifically the consent to the election of the Rev. Canon V. Gene Robinson and Resolution C051 dealing with the blessing of same sex unions, and
Whereas, these differences go beyond the issue of homosexuality to the interpretation of Scripture; and
*808 Whereas, following the October 2003 meeting of the Primates, the Archbishop of Canterbury established a Commission to address the dangers to the Anglican Communion, of which we are members, raised in part by actions of the 74th General Convention, and that that Commission was directed to report back to the Primates by October 2004; and
Whereas, that Commission is chaired by the honored guest of the 209th Annual Council of the Diocese of Virginia, the Most Rev. Robin Eames, Archbishop of Armagh and Primate of All Ireland; and
Whereas, the Primates urged “a lengthy process of prayer, reflection, and substantial work in and alongside the Commission which we have recommended”; now therefore be it
Resolved, that in response to the Primates’ call for a period of prayer and reflection, this Council respectfully requests the Bishop to appoint a Reconciliation Commission to offer guidance over the next 12 months for how members of the Diocese can prayerfully reflect on our differences and discern God’s will in addressing those differences; and be it further
Resolved, that this Commission periodically over the next 12 months offer guidance through the Virginia Episcopalian, the diocesan web site, and other diocesan communications for ways that parishes and missions can offer meaningful opportunities for reflection, prayer, worship, and discussion of the aforementioned issues; and be it further
Resolved, that this Commission report to the 210th Annual Council ways that the Diocese of Virginia can increase trust and respect for conscience, thereby helping to maintain unity; and be it further
Resolved, that in making its recommendations, this Commission should draw from the work of the ongoing diocesan Sexuality Dialogue Group; and be it further
Resolved, that the Diocese of Virginia reaffirm to truly live its formal vision and mission statement - “Empowered by the Holy Spirit and under the leadership of the Bishops, our mission as the Diocese of Virginia is to provide direction and support to every member in witnessing to the world God’s love *809 in the living Christ; so that daily we are called to live out our witness in our workplaces, churches, and communities;” and be it further
Resolved, that these actions reflect the hope of this Council that the Diocese of Virginia will serve as a model for civil, candid and prayerful discussion during these challenging times in our Church and society.
(Pis.’ Ex. 147, “Journal of the 209th Annual Council,” at 210-11.)
This Commission first met on March 15th, 2004. Ten meetings were conducted between March 2004 and January of 2005. (See Trial Tr. 414:2-415:22.)
In January of 2005, the Reconciliation Commission made its report to the 210th Diocesan Council, which was distributed to each of the delegates at that Council. (Trial Tr. 420:21-421:2.)
The 210th Annual Council also witnessed the passage of Resolution R-22s, “Diocesan Response to the Windsor Report.” (Pis.’ Ex. 148, “Journal of the 210th Annual Council,” at 210-11.) This Resolution reads:
Whereas, We in the Diocese of Virginia are members of the Anglican Communion are united in Christ and are called to live out our witness in our workplaces, churches, and communities; and
Whereas, We desire to serve as a model of civility to the Anglican Communion for resolution of the present divisions by working together and honoring conscience through a process that is respectful and peaceful; and
Whereas, We respect the Windsor Report of the Lambeth Commission on Communion, which has recommended to the Episcopal Church concrete ways to strengthen the Anglican Communion; and
Whereas, The 210th Annual Council recognizes that the Windsor Report admonishes the Episcopal Church for failing, in its recent actions regarding the approval of the election of the Bishop of New Hampshire and the adoption of Resolution C051 pertaining to the blessing of same gender unions, to give adequate consideration to the impact that these decisions had on bonds of affection with other parts of the Anglican Communion; and
*810 Whereas, The 210th Annual Council recognizes that the Windsor Report admonishes those bishops throughout the Anglican Communion who have intervened in dioceses and provinces other than their own; and
Whereas, The Lambeth Conference of 1998 commends us to listen to the experience of homosexual persons and to assure them that they are loved by God and that all baptized, believing, and faithful persons, regardless of sexual orientation, are full members of the Body of Christ; and
Whereas, Bishop Lee has served as a model of civility and generosity and has called us to embrace the concept of mutual submission, which, according to the New Testament, means that we voluntarily refrain from actions that hurt our brothers and sisters or create stumbling blocks for others in the life of faith; now therefore be it
Resolved, that the 210th Annual Council of the Diocese of Virginia expresses regret that the proper constraints of the bonds of affection were breached through the actions of the 74th General Convention and for the consequences which followed; and be it further
Resolved, That the 210th Annual Council of the Diocese of Virginia formally requests that the 75th General Convention of the Episcopal Church effect a moratorium on the election of and consent to the consecration of any candidate to the episcopate who is living in same-gender union, until some new consensus in the Anglican Communion emerges; and be it further
Resolved, That all Anglicans have a moral responsibility to acknowledge and respond with compassion and understanding to the pain and suffering of those who, because of their sexual orientation, endure marginalization and rejection; and be it further
Resolved, That the 210th Annual Council calls upon the member churches of the Anglican Communion to maintain faith with the traditions and polity of the Anglican Communion and the Episcopal Church while the implications of an Anglican Covenant are being studied; and be it further
Resolved, That the congregations and regions of the Diocese of V irginia be urged to use the Report of the Diocese of Virginia’s Commission on Reconciliation as a vehicle to further theological conversation; and be it further
*811 Resolved, That this resolution represents the desire of the Diocese of Virginia to remain together and a part of the Anglican Communion.
(Pis.’Ex. 148 at 210-11).
The Reconciliation Commission declared that “[a]fter 10 meetings, the 13 members of the Reconciliation Commission have wrestled with how we might come to a civil and gracious response to the bitter divisions in parts of our diocese that have arisen in response to these decisions [of ECUSA].” Their report further declared that:
Even as we struggle with the painful reality that polarizing conflict draws energy and attention from mission and ministry, we cannot avoid the difficult question: “Can we continue to live together?”
We understand from some of those among us that the answer may ultimately be “No,” and that in this case there must be provision for an amicable divorce. We do not see it as our charter to delve into this possibility, other than to acknowledge that, at some point, our church and our diocese may need to explore this eventuality.
(Pis.’ Ex. 15, “Statement concerning the work of the Diocese of Virginia’s Commission on Reconciliation, 1/14/05,” at 1.)
Of note is the fact that the thirteen members of the Reconciliation Commission, within this statement, affirmed the fact that, despite their differences of opinion, they “profess [ed] a common commitment to the basic principles of Anglicanism, as articulated in the Book of Common Prayer... [and] a desire on the part of each person on the commission to remain in the Anglican Communion.” (Pis.’ Ex. 15 at 2.) The Commission further:
acknowledge [d] that the church is currently struggling with differences in interpretation of the Biblical narrative in regard to human sexuality. These differences today - like ones that have come before - are profoundly real and threaten to divide not only our diocese, but also the Episcopal Church and the Anglican Communion itself.
Although the election and consecration of a person in a same-sex relationship to be the Bishop of New Hampshire has become the flash point of difference, we believe that the issues of difference between us transcend conversation regarding human sexuality.
*812 There are larger issues of the interpretation of scripture, the apostolic tradition, and the relationship of the Episcopal Church with the Anglican Communion. In the context of our apostolic tradition and our relationship with the Anglican Communion, these differences have led to genuine pain, fear, confusion, and impaired communion....
We note that there has been little significant reconciliation, and many in the church are stuck in a “level 5 conflict.”
(Pis. ’ Ex. 15 at 2-3.) The report concludes by declaring that “[w]ith this report, we conclude our work as the Reconciliation Commission. But the work of the diocese is far from over. The same issues that have divided this Commission continue as points of disagreement in the larger body.” (Pis.’ Ex. 15 at 11.)
4. Formation of CANA
On August 2,2005, the Convocation of Anglican Nigerians in America was incorporated to “operate as a convocation or association of Anglican churches in North America as a part of the Church of Nigeria within the Anglican Communion----” (Pis.’ Ex. 69, “August 2, 2005, Articles of Incorporation for the Convocation of Anglican Nigerians in America (CANA),” at 3.)
As Registrar Abraham Yisa 11 testified, CANA began with a protest launched by the Church of Nigeria upon the consecration of Bishop Robinson. In Registrar Yisa’s words:
*813 Bishops, particularly our Primate, protested to the then primate of ECUSA. Our Synod wrote a peace compact. [The] General Synod, the Standing Committee protested, they [all] protested to the Archbishop of Canterbury. They protested to all instruments of unity.
Nigeria took exception to that interpretation of the Holy Scriptures which we believed was not .. . [the] historic faith delivered to the saints.
(Trial Tr. 556:13-21.)
Subsequently, the Church ofNigeria’s Standing Committee adopted a resolution authorizing the Primate of the Church of Nigeria to explore ways and means of providing oversight to Anglican Nigerian priests and laity who were living in the USA but who had grown disillusioned with the ECUSA. This “resolution called for a Primate to give Episcopal oversight to ... members of congregations in America that had broken off of ECUSA.” (Trial Tr. at 5 80:1 -3.) Upon receiving this resolution, Registrar Yisa decided “that it would require [a] [constitutional amendment to be able to give effect to [the] resolution, and [he] advised the General Synod” accordingly. (Trial Tr. 580:6-18.)
In September of2005, Registrar Yisa proposed his amendments to the General Synod of the Church of Nigeria. (Trial Tr. 581:2-9.) These amendments altered the structure of the Church of Nigeria within the Anglican Communion as follows: While the Church of Nigeria had formerly described itself as being “in full Communion with the See of Canterbury and with all Dioceses, Provinces, and Regional Churches which are in full Communion with the See of Canterbury” (Pis.’ Ex. 137, “Constitution of the Church of Nigeria, Authenticated by the Primate, Archbishop & Metropolitan 9/20/1997,” at 1), it now considered itself to be, following the passage of the constitutional amendment, only “in full communion with Anglican Dioceses and Provinces that hold and maintain the historic faith, doctrine, sacrament, and discipline of the One, Holy, Catholic, and Apostolic Church as the Lord has commanded in His holy word and as the same are received as taught in the Book of Common Prayer and the ordinal of 1662, and in the 39 Articles of Religion.” (Trial Tr. 585:1-8.) Thus, Registrar Yisa testified, “this amendment changed the legal relationship between the Church of Nigeria, and ECUSA, as well as with other provinces [within the Anglican Communion.]” (Trial Tr. at 585:15-18.)
*814 The Church of Nigeria further amended its constitution to state that “The General Synod shall have power... to create convocations, chaplaincies of like-minded faith[ful] outside Nigeria, and to appoint persons within or outside Nigeria to administer them, and the Primate shall give Episcopal oversight.” (Trial Tr. 587:2-8.) Registrar Yisa describes this amendment as necessary in order to give the Church ofNigeria the constitutional authority “to create convocations outside [the] Church ofNigeria,” since “[t]here was no provision for that in [the Church of Nigeria’s former Constitution].” (Trial Tr. at 589:15-21.)
Finally, the third amendment consisted of altering the definition of “convocation” to “mean [a] non-geographic connection 12 of churches and mission[s].” (Trial Tr. 590:2-9.) Registrar Yisa considered the Church of Nigeria and ECUSA to be in “broken communion” with each other, meaning that “a number of things like the fellowship, exchange of visits by our clergy, by the Primates, training programs, retreats, workshops, indeed financial assistance in some cases were no longer there.” (Trial Tr. 591:13-592:1.) Registrar Yisa testified that the Church of Nigeria now refuses financial contributions from ECUSA, and he stated that there is no longer any exchange of Bishops between the Church ofNigeria and ECUSA. (Trial Tr. 592:6-15.)
Registrar Yisa further testified that, following the adoption of these amendments, the Church ofNigeria established CANA (Trial Tr. 592:16-19), and he stated that “[a]s of2005, [the Church ofNigeria] had about 16 CANA churches that had registered... but that number is much, much more than that now.” (Trial Tr. 595:4-6.)
During the trial, Registrar Yisa read from a statement from the Province of the Southern Cone, 13 which declared that “ECUSA’s action has forced painful division in the Communion and is a schism of their own making.. .. As a consequence, this Province now shares only a profoundly impaired communion with the ECUSA.. ..” (Trial Tr. 600:4-601:2.) Registrar Yisa confirmed that the provinces that have declared broken communion with ECUSA include the Province of Uganda, the West Indies, Kenya, and the Church ofNigeria, as well as the entire Southern Cone. (Trial Tr. 602:7-12.)
*815 Registrar Yisa testified that he believed CANA was necessary, due to the “division” in the ECUSA:
Q: You’ve testified that it was the division in the Episcopal Church that led to the establishment of CANA.
A: Yes.
Q: What led you to conclude that there was a need for the establishment of CANA?
A: I said it before, that the Nigerian Anglicans in America who were at issue with ECUSA left. They appealed for spiritual care, and the Church of Nigeria decided to give them that spiritual care through the Primate of the Church of Nigeria, and also to provide structures for them. That is the reason.
Q: In your experience with the Church of Nigeria and the Anglican Communion, has there ever been a comparable division within the Communion?
A: Not like this....
A: They have had what are called differences in opinion which, through the instruments of... Communion we have been able to resolve. Like the issue of ordination of women. It was a difference, but we resolved it.
(Trial Tr. 613:1-614:1.)
Registrar Yisa confirmed that, at the present time, the Church of Nigeria has no relationship with the ECUSA. (Trial Tr. 684:2-11.)
5. Formation of the “Special Committee” and its Aftermath
The Court now turns its attention back to the Diocese of Virginia and to the individual congregations involved in the instant litigation. On September 27, 2005, the Rev. Dr. John Yates, 14 wrote to Bishop Lee to express his concerns regarding the anticipated controversy, stating:
*816 Here is the pressure: If it becomes clear that ECUS A will not turn back on this issue, we are pained to say that we believe we will have to find a way to separate from ECUS A, while remaining Anglicans. We have no plan, no timetable of action.
Our great hope is that here in Virginia there may be an opportunity to forge a better way, perhaps a middle way. This has always been your hallmark. What such a plan might look like I do not care to speculate about, but we would veiy much like to pursue with you and any whom you would designate as your representatives, just how we might achieve what could be seen to be a win-win solution.
Our people are extremely upset. We have all lost key church members and more are leaving all the time. We do not know how long we can hold together.
(Defs. 5 Ex. 51 A, “Redacted version of “Notes from a meeting between Bishop Peter James Lee and clergy from 19 parishes and missions in the Diocese of Virginia, September 20, 2005,” at 1.)
The Rev. Dr. Yates testified that, in September of 2005, following the issuance of the Reconciliation Commission’s report, he chaired a group of about twenty-five clergy who met for an afternoon with Bishop Lee to express the level of discord that was occurring in their respective churches. (Trial Tr. 476:9-22.) At this meeting, The Rev. Dr. Yates “made a request of Bishop Lee asking if he would appoint a special diocesan committee to give attention to this rising threat of division in the Diocese,” since “[Yates] knew that.. . some Rectors were talking about the possibility of leaving the Episcopal Church.” (Trial Tr. at 478:6-14.) Bishop Lee agreed to do so and established this committee, known as the “Special Committee.” The committee was composed of Russell Palmore, Chancellor of the Diocese of Virginia; Carolyn Parkinson, a Rector from the Plains; Andrew Merrow, a Rector from Arlington; Hugo Blankenship, former Chancellor of the Diocese of Virginia, from Fairfax; Tom Yates, a former Vestry member of Truro Church; and The Rev. Dr. Yates. (Trial Tr. 479:11-480:6.) These six members of the Special Committee proceeded to meet every three to five weeks from December of 2005 through September of 2006. Yates described their purpose as to:
*817 seek[] to discern in what ways [they] could maintain a sense of common mission [during their] time of division, and ... also seek[] to discern if there was a way that... should a church decide that they wanted to leave the Episcopal Church ... to discern a way in which that decision could be reached and that step could be taken that would be done in a fair way that was reasonable and would be acceptable to all those involved.
(Trial Tr. 480:9-481:6.)
On September 23,2006, the Special Committee issued its Report. The Report stated that “we candidly and regretfully acknowledge that we may be entering a period in the history of the Anglican Communion when we (the Church, the Body of Christ) will be walking the way of the Cross together, but apart.” (Pis. 5 Ex. 67, “September 2006 Diocesan Special Committee Report,” at 1.) The Report confirmed the common threads holding the six committee members together, “essentials both of the Faith and of Anglicanism drawn from the Bible, the Book of Common Prayer, the Hymnal, [and] the 39 Articles.” (Pis’. Ex. 67 at 1.) The Report set forth a “Protocol for Departing Congregation^],” which included specific criteria that would govern any congregational vote to leave the Diocese. In regard to the issue of whether a departing congregation would take with it its real and personal property, the Protocol provided that “the amount of the payment to the Diocese for its claim to ... property and the terms of such payment shall be determined by agreement, after disclosure of the nature and amount of parish assets, between representatives of the departing congregation and representatives of the Diocese, appointed by the Bishop,” and that further, “[a]ny agreement will require the further consent of the Bishop, Standing Committee, and Executive Board.” (Pis.’ Ex. 67 at 2-3.)
On October 3, 2006, Bishop Lee wrote a letter to each member of the Special Committee, thanking them for their service, and for their report, and stating further that “The report reflects the gracious and respectful pattern characteristic of Virginia Episcopalians as we deal with differences. I am grateful for your leadership in bringing this report forward, and I will share it in due course with the Standing Committee and the Executive Board.” (Defs.’ Ex. 64, “Letters from Bishop Peter James Lee to members of the Special Committee, Oct. 3, 2006,” at 1-6.)
*818 On November 17,2006, the Diocese of Virginia issued a press release entitled, “Standing Committee Takes Further Review of Special Committee Report.” This press release reads as follows:
At a regularly scheduled meeting of the diocesan Standing Committee today in Fredericksburg, the Standing Committee further considered the report of the Special Committee appointed by Bishop Lee in late 2005 to help those churches continuing in conflict over the decisions of the 74th General Convention in 2003 to get on with their mission in as close a union as possible with the Diocese of Virginia.
Though the Standing Committee today did not approve or endorse the report, the Standing Committee views the report as a potentially useful way forward for those congregations in a period of deliberate discernment over their future relationship with the Episcopal Church.
“We view the report of the Special Committee as one of several possible approaches to achieve a mutually acceptable agreement,” said Col. Jean Reed, president of the Standing Committee....
At a joint meeting Nov. 9 of the Executive Board with the Standing Committee, both bodies voted to receive the report but did not endorse or approve the report.
“The Standing Committee intends to meet with those churches proposing to separate from the Episcopal Church and review their situations on a case by case basis,” said Col. Reed.
(Pis.’ Ex. 130, “ ‘Standing Committee Takes Further Review of Special Committee Report, ’ The Diocese of Virginia Press Release, 11/17/2006,” at 1.)
On December 1, 2006, Bishop Lee wrote another letter, one quite different in nature from that of October 3,2006. This December 1st letter was addressed “to the rectors, vestries, and wardens of congregations” who were choosing to take votes to determine whether to leave ECUSA and the Diocese. Stating that the letter’s purpose was “to outline ways forward and potential consequences of decisions,” Bishop Lee declared that the congregations contemplating leaving ECUSA and the Diocese “should not assume the Episcopal Church [would] endorse or approve the steps outlined in [the Special Committee’s report].” (Defs.’ Ex. 66, “Letter from Bishop Peter James Lee to rectors, vestries, and wardens of congregations, December 1,2006,” at 1.) Further, Bishop Lee warned that:
*819 absent a negotiated settlement of property, an attempt to place your congregation and its real and personal property under the authority of any ecclesial body other than the Diocese of Virginia and the bodies authorized by its canons to hold church property will have repercussions and possible civil liability for individual vestry members.
(Defs.’ Ex. 66 at 2.)
Five days later, on December 6,2006, Bishop Lee sent a letter to those congregations who were preparing to gather to take a vote as to whether or not to depart from the Diocese. That letter reads in pertinent part as follows:
Dear Friend in Christ,
In a few days, your congregation will gather to discuss its future in the Episcopal Church and in the Diocese of Virginia. I write you today with this prayerful appeal that you affirm your ministry in the Episcopal Church and in the Diocese of Virginia.
Since the Reformation, our Anglican tradition has included persons with different theological emphases in one community of faith, affirming the same creeds, participating in the same sacraments, honoring Scripture as the basis of our faith, interpreted across the centuries through Reason and Tradition.
The Diocese of Virginia, in particular, has affirmed the Windsor Report, issued in 2004 by the Lambeth Commission, as a way forward for our worldwide communion by actions of the Annual Council in 2005 (Resolution R22) and 2006 (Resolution R17).
In addition, the Diocese of Virginia, following the recommendations of the Windsor Commission, continues to refrain from public rites of blessing of same gender unions.
Since 1607, Anglicans in Virginia have been united in common worship and in common faith and I invite you to affirm that commonality when you gather in your parish meeting. Are there differences among us? Yes. And learning from one another in our differences is, instead of a threat to our mission, an opportunity to learn from each other about what mission in the 21st century requires of us.
American Christianity has been punctuated over the years by frequent divisions, with one group choosing to separate *820 because they believed the separated group might be more pure than their former identity. That has not been characteristic of the way we Anglicans have dealt with differences.
I encourage you when you vote, to vote for the unity and mission of the church, therefore remaining one with your diocese, and reject the tempting calls to division....
(Pis.’ Ex. 68, “December 6, 2006, letter from Bishop Peter J. Lee to the members of the Voting Congregations,” at 1.)
At or around December 7th, 2006, shortly after the issuance of Bishop Lee’s letter, a meeting was held between the Standing Committee of the Diocese, and the Rectors and Wardens of churches that had announced they would conduct votes regarding possible departure from the Diocese. (Trial Tr. 499:2-13.) The Rev. Dr. Yates testified that Bishop Lee explained that there had been some “changes in the environment by that time”:
[Bishop Lee] told [those in attendance at the meeting] that there were some changes in the environment by that time. He [said] that since the work of the Special Committee had been completed, that a new Presiding Bishop of the Episcopal Church had been installed, and that the new administration brought in a rather different view about division.
The former Presiding Bishop had said that in matters of division of churches leaving the Diocese, that was going to be left up to the Bishop. But now it was going to be - it was going to become a matter of concern to the national church. The Bishop said there’s a new sheriff in town, the situation is different.
(Trial Tr. 499:16-500:9.) This was described by CANA Congregation witness The Rev. Dr. Yates as a “total departure from the tenor of [the previous meetings],” that “was totally unexpected.” (Trial Tr. 501:10-12.)
By December 18,2006, twelve churches within the Diocese of Virginia voted both to separate from the Diocese and to retain their church property. These churches are All Saints’ Church, Dale City; Christ our Lord, Lake Ridge; Church of the Holy Spirit, Ashbum; South Riding Church, Fairfax; Church of the Apostles, Fairfax; Church of the Word, Gainesville; Truro, Fairfax; The Falls Church, Falls Church; St. Stephen’s, Heathsville; St. Margaret’s Church, Woodbridge; Potomac Falls Episcopal, Sterling; Christ *821 the Redeemer, Centreville. (Pis.’ Ex. 132, “ ‘News Update from the Diocese of Virginia,’ 12/18/2006” at 1.) By the time of the § 57-9 trial in November of 2007, fifteen individual congregations had voted to leave the Diocese (Pis.’ Ex. 301, “Deposition Designations of Peter James Lee,” at 15), 15 and twenty-two clergy had been removed in the Diocese. (Pis.’ Ex. 301 at 23.) Bishop Lee described this “removal” as a process by which a member of the clergy would first be “inhibited,” and then, “unless they returned to the Episcopal Church within six months, they were removed.” See Pis.’ Ex. 301 at 20-22. The process of removal is called “deposing.” (Pis.’ Ex. 301 at 22.)
6. Evolution of CANA and the Formation of the Anglican District of Virginia (“ADV”)
As the conflict within the Diocese escalated, CANA continued to evolve. In 2006, CANA’s purpose broadened to encompass all Anglicans within North America who had broken away from the Episcopal Church. Thus, CANA changed its name to “Convocation of Anglicans in North America.” (Trial Tr. 312:4-8.) At the time of trial, about 100 clergy had affiliated with CANA, 80% of whom were formerly affiliated with ECUSA. CANA allowed ECUSA bishops to transfer in, while non-ECUSA bishops were first required to be consecrated. (Trial Tr. 320:3-18.) In addition to CANA’s Bishop, Martyn Minns, who was a witness for the CANA Congregations at trial, other CANA bishops include David Bena, formerly of the ECUSA Diocese of Albany. At the time of trial, CANA had plans to consecrate four other bishops, all of whom were formerly with ECUSA. (Trial Tr. 320:19-322:4.) Sixty congregations have affiliated with CANA, resulting in a membership of 12,000, with over 10,000 of those members coming directly from ECUSA. CANA has congregations in eighteen states, and the congregations of CANA that were formerly affiliated with ECUSA come from eight different dioceses, ranging from California to Connecticut. (Trial Tr. 324:1-325:17.) At the time of the trial, the latest church to join CANA was the Bishop Seabuiy Church in Connecticut, a church formerly affiliated with ECUSA. (Trial Tr. 325:18-326:5.)
*822 The Anglican District of Virginia (“ADV”) was incorporated on December 5,2006. The ADV’s Articles of Incorporation state that the ADV:
is an association of Virginia churches, together with their clergy and laity, who join together to realign traditional Anglicans in Virginia displaced by the election of The Episcopal Church to walk apart from the Anglican Communion.... The Corporation forms a discrete ecclesiastical and legal structure and will provisionally come under the ecclesiastical jurisdiction of the Convocation of Anglicans in North America. . . . [by this] affiliation... the Corporation formally and immediately brings itself and all of its member churches, clergy, and laity into full communion with the foregoing constituent members of the Anglican Communion.
(Pis.’ Ex. 70, “December 4,2006, Articles of Incorporation for the Anglican District of Virginia, an Association of Churches,” at 1.)
Since 2006, twenty congregations, comprising 7,500 members, affiliated with ADV, and almost all of ADV’s members were former members of ECUSA congregations within the Diocese. All twenty of the ADV congregations are led by former ECUSA clergy. 16 (Pis.’ Opening Post-Trial Mem. Concerning Application of Va. Code § 57-9 at 44.) Of these twenty congregations, eleven are affiliated with CANA, and four are affiliated with
*823 the American Arm of the Church of Uganda. Four others are “church plants ” ”“fe^ch,urches'” (pls-’ Opening Post-Trial Mem. Concerning Application of Va. Code § 57-9 at 44, n. 25.) The twentieth church is said to have come “from another [ECUSA] diocese in Virginia.” (Pis.’ Opening Post-Trial Mem. Concerning Application of Va. Code § 57-9 at 44, n. 25.)
7. Post-Separation Events within the Anglican Communion
Turning back to the events unfolding within the Anglican Communion, on February 15th, 2007, the Primates met in Dar es Salaam, Tanzania. i ' ! Mm that Following this meeting, the Primates issued a communique, stating that “[s]ince the controversial events of 2003, [they] ha[d] faced the reality of increased tension in the life of the Anglican Communion, tension so deep that the fabric of [their] common life together ha[d] been torn.” (Pis.’ Ex. 12A, “The Communique of the Primates Meeting in Dar es Salaam, 2/19/07,” (redacted) at ¶9.) The communique expressed dissatisfaction with the “response” of ECUSA to the whole controversy and stated that ECUSA “ha[d] not persuaded this meeting that we are yet in a position to recognize that The Episcopal Church has mended its broken relationships.” (Pis.’ Ex. 12A at ¶24.) Further, the communique stated:
It is also clear that a significant number of bishops, clergy, and lay people in The Episcopal Church are committed to the proposals of the Windsor Report and the standard of teaching presupposed in it. These faithful people feel great pain at what they perceive to be the failure of The Episcopal Church to adopt the Windsor proposals in full. They desire to find a way to remain in faithful fellowship with the Anglican Communion. They believe that they should have the liberty to practice and live by that expression of Anglican faith which they believe to be true. We are deeply concerned that so great has been the estrangement between some of the faithful and The Episcopal Church that this has led to recrimination, hostility, and even to disputes in the civil courts.
(Pis.’ Ex. 12A at ¶ 25 (internal citation omitted).) The communique further concluded that it “believe [d] that the establishment of a Covenant for the Churches of the Anglican Communion in the longer term may lead to the trust required to re-establish [its] interdependent life.” (Pis.’ Ex. 12A at ¶29.) The *824 communique concluded: “We do not underestimate the difficulties and heart-searching that our proposals will cause, but we believe that commitment to the ways forward which we propose can bring healing and reconciliation across the Communion.” (Pis.’ Ex. 12A at ¶37.)
On April 30,2007, ECUSA Presiding Bishop Katherine Jefferts Schori wrote to Nigerian Primate Peter J. Akinola, requesting that Archbishop Akinola not install the Rev. Martyn Minns, former Rector of Truro, as a bishop of CANA, since this “ ‘would display to the world division and disunity.’...” (Pis.’ Ex. 3, “ ‘Presiding Bishop urges Nigerian Primate to Reconsider plans to install bishop,’ 5/1/07,” at 2.) Bishop Schori also stated in her letter that if Archbishop Akinola were to travel from Nigeria to the United States to install Rev. Minns as a bishop of CANA, this would “violate the ancient customs of the church which limits the Episcopal activity of a bishop to only the jurisdiction to which the bishop has been entrusted, unless canonical permission has been given.” (Pis.’ Ex. 3, “Presiding Bishop urges Nigerian Primate to Reconsider plans to install bishop, 5/1/07,” at 2.) Archbishop Akinola replied to Presiding Bishop Schori’s letter by stating that the reason he was preparing to install The Rev. Dr. Minns was that:
[a]t the emergency meeting of the Primates in October 2003 it was made clear that the proposed actions of the Episcopal Church would “tear the fabric of our Communion at its deepest level, and may lead to further division on this and further issues....” Sadly, this proved to be true as many provinces did proceed to declare broken or impaired communion with the Episcopal Church. Since that time, the primates have established task forces, held numerous meetings, and issued a variety of statements and communiques but the brokenness remains, our Provinces are divided, and so the usual protocol and permissions are no longer applicable.
You will also recall from our meeting in Dar es Salaam that there was specific discussion about CANA and recognition, expressed in the Communique itself, of the important role that it plays in the context of the present division within your Province. CANA was established as a Convocation of the Church of Nigeria, and therefore a constituent part of the Communion, to provide a safe place for those who wish to remain faithful Anglicans but can no longer do so within the Episcopal Church as it is currently being led.
*825 It is my heartfelt desire, and indeed the expressed hope of all the Primates of the Communion, that the Episcopal Church will reconsider its actions and make such special measures no longer necessary. This is the only way forward for full restoration into fellowship with the rest of the Communion.. ..
You mention the call to reconciliation. As you well know, this is a call that I wholeheartedly embrace and indeed was a major theme of our time in Tanzania. You will also remember that one of the key elements of our discussion and the resulting Communique was the importance of resolving our current differences without resorting to civil law suits. You agreed to this. Yet it is my understanding that you are still continuing your own punitive legal actions against a number of CANA clergy and congregations. I fail to see how this is consistent with your own claim to be working toward reconciliation.
Once again, please know that I look forward to the day when this current crisis is behind us and we can all be reunited. . . .
(Pis. Ex. 13, “Letter from the Most Rev. Peter J. Akinola to the Rt. Rev. Katharine Jefferts Schori, 5/2/07,” at 1-2.)
On May 6, 2007, Archbishop Akinola proceeded to write a letter directly to the Archbishop of Canterbury, Rowan Williams, in which Akinola declared that the Anglican Communion was “deeply divided,” with the “decisions, actions, defiance, and continuing intransigence of The Episcopal Church” being at the heart of the division. Of the formation of CANA, Archbishop Akinola stated the following to the Archbishop of Canterbury:
We are a deeply divided Communion. As leaders of the Communion we have all spent enormous amounts of time, traveled huge distances, sometimes at great risk, and expended much needed financial resources in endless meetings, communiques, and reports, Lambeth Palace 2003, Dromantine 2005, Nottingham 2006, and Dar es Salaam 2007. We have developed numerous proposals, established various task forces and yet the division has only deepened. The decisions, actions, defiance, and continuing intransigence of The Episcopal Church are at the heart of our crisis.
*826 As you well know, the Church of Nigeria established CANA as a way for Nigerian congregations and other alienated Anglicans in North America to stay in the Communion. This is not something that brings any advantage to us - neither financial nor political. We have actually found it to be a very costly initiative and yet we believe that we have no other choice if we are to remain faithful to the gospel mandate... although CANA is an initiative of the Church of Nigeria - and therefore a bona fide branch of the Communion - we have no desire to cling to it. CANA is for the Communion and we are more than happy to surrender it to the Communion once the conditions that prompted our division have been overturned.
(Pis.’ Ex. 14, “Letter from the Most Rev. Peter J. Akinola to Archbishop Rowan Williams, 5/6/07,” at 1.)
II. Procedural History of This Case
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 § 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 the Fairfax County Circuit Court; The Church at the Falls, the Falls Church, which filed its petition in the Circuit Court of Arlington County; St. Paul’s Church and St. Margaret’s Church, which filed their petitions in the Circuit Court of Prince William County; St. Stephen’s Church, which filed its petition in the Circuit Court of Northumberland County; and The Church of Our Saviour at Oatlands, which filed its petition in the Circuit Court of Loudoun County.
Beginning on January 31,2007, the Diocese filed complaints against each of the eight CANA Congregations that had filed § 57-9 petitions, as well as complaints against three other members of the CANA Congregations: Potomac Falls Church, Christ the Redeemer Church, and Church of the Word. The complaint alleged that “[t]he continued occupancy, possession, and use of the properties of [the individual CANA Congregation churches] by [their Rectors] and the Vestry defendants have resulted in a trespass, conversion, and illegal alienation of such properties in violation of the Constitution and Canons of The Episcopal Church and the Diocese, the deeds to such real property, and applicable Virginia law.” *827 Then, on February 9,2007, ECUSA filed its own separate complaint against the eleven CANA Congregations and their rectors, vestry members, and other leaders.
On April 10,2007, a three judge panel appointed by the Supreme Court of Virginia pursuant to Va. Code § 8.01-267.4 issued an order transferring to, and consolidating all of the above proceedings, in the Circuit Court of Fairfax County.
On November 13 th through November 20th, 2007, a five-day trial was held regarding the issue of the application of § 57-9(A) to the instant case. The final post-trial briefs were submitted to this Court on January 17, 2008.
III. Parties ’ Positions
A. CANA Congregations
Plaintiff CANA Congregations argue that the evidence at trial proved that the definition of “division” within § 57-9(A) is “a split, schism, or rupture in a religious denomination that involved the separation of a group of congregations, clergy, or members from the church and the formation of an alternative polity that disaffiliating members could join.” (Pis.’ Opening Post-Trial Mem. Concerning Application of Va. Code § 57-9 at 7.) Plaintiffs further argue that “divisions . . . often result from internal strife, but the divisions themselves entailQ disaffiliating congregations or clergy and the formation of a new entity.” (Pis.’ Opening Post-Trial Mem. Concerning Application of Va. Code § 57-9 at 9.) They also argue that the departure of a single congregation does not fit the definition of “division” under the statute, but that beyond this, the statute does not impose a specific size requirement. (Pis.’ Opening Post-Trial Mem. Concerning Application of Va. Code § 57-9 at 9.)
In response to ECUSA/Diocese’s argument that a “division” under § 57-9(A) must be one that is approved by the proper hierarchical authorities, Plaintiffs argue that, because the statute employs the words “occurred” and “occur” to describe the divisions, “the sense of the statute is that divisions ‘happen,’ often in unplanned ways, contrary to the TEC 17 -Diocese position that the statute is limited to divisions that result from a consensual, *828 deliberative process by denominational authorities.” (Pis.’ Opening Post-Trial Mem. Concerning Application of Va. Code § 57-9 at 14.) Plaintiffs argue that none of the adjectives that ECUSA/Diocese assert must characterize a division, e.g., that it be “authorized,” “structural,” “major, “great,” “historic,” “large,” “true,” “formal,” “recognized,” “confirmed,” “approved,” “significant,” actually appear in the text of § 57-9. (Pis.’ Post-Trial Reply Mem. 4.) Further, the CANA Congregations argue that the express text of the statute does not mandate that this Court “defer to denominational authorities in determining whether there has been a division,” since “[t]he meaning of legislative enactments does not generally vary from dispute to dispute, and private parties rarely get to decide how a statute applies to them. .. .” (Pis.’ Corrected Mem. in Opp’n to the Post-Trial Opening Br. of the Episcopal Church and the Diocese 18-19.)
Plaintiffs also argue that the record demonstrates that, between 1867 and 1869, 18 “at least twenty-five Methodist congregations and four Presbyterian congregations invoked [§ 57-9],” and that “[notwithstanding the absence of any evidence of denominational approval... the courts without exception ruled for the majority of the congregation.” (Pis.’ Opening Post-Trial Mem. Concerning Application of Va. Code § 57-9 at 26.)
The CANA Congregations further argue that ECUSA/Diocese’s definition of division, which is “a denominationally approved administrative or structural subdivision of an entity, such as a diocese, into two new entities,” is unworkable, since “if ‘division’ were limited to administrative redistricting, the statute would never apply to TEC,” in that “when TEC ‘divides’ up a diocese, it does not permit congregations to vote to determine which diocese to join and the resulting dioceses are not considered ‘branches.’ Thus, the statute would never have any application to Episcopal churches under such a definition of ‘division’.” (Pis.’ Corrected Mem. in Opp’n to the Post-Trial Opening Br. of the Episcopal Church and the Diocese 14.)
The CANA Congregations’ argument that there has been a “division” within the ECUS A and Diocese sufficient to satisfy § 57-9(A) is summarized as follows:
*829 [M]uch of the evidence is undisputed. Numerous congregations and clergy have disaffiliated from [ECUSA] and formed new branches thereof. CANA is one such branch, and since its formation in 2005 CANA has quickly grown into a religious denomination that provides ecclesiastical oversight for some 60 congregations and 12,000 members, the vast majority of whom are former members of [the ECUSA]. Since intervening in this litigation, [the ECUSA] has studiously avoided referring to any “division,” but its use of that term outside of this Court ... confirm[s] that [the ECUSA] has experienced such a division.
(Pis.’ Opening Post-Trial Mem. Concerning Application of Va. Code § 57-9 at 2-3.)
Plaintiffs also argue that there is a division under § 57-9(A) within the Anglican Communion, as “evidenced by 2005 amendments to the Church of Nigeria’s constitution, which ended that church’s legal and structural relationship with TEC,” as well as “by official statements of ‘broken’ and ‘impaired’ communion promulgated by multiple Anglican Provinces; and by a number of other official pronouncements from various organs of the Anglican Communion, all recognizing the existence of this international division.” (Pis. ’ Opening Post-Trial Mem. Concerning Application of Va. Code § 57-9 at 49.)
In regard to the question as to the proper interpretation of “branch,” the CANA Congregations argue that the term “branch,” as it is used in § 57-9(A), “was most commonly understood in mid-nineteenth century America to refer to an offshoot of a denomination created as a result of a division, or to the group left behind, not to an administrative sub-unit of a denomination or to a new diocese created by consensual administrative redistricting.” (Pis.’ Opening Post-Trial Mem. Concerning Application of Va. Code § 57-9 at 30-31.) In addition, although this “new polity would vary from denomination to denomination, the ‘essential definition’ that applied ‘across the board’ was simply a new polity that had a historic affiliation with the prior denomination, a connection reflected in the fact that its members were ‘people who belonged] to the original group’.” (Pis.’ Opening Post-Trial Mem. Concerning Application of Va. Code § 57-9 at 31.) The CANA Congregations point out that the Reformed Episcopal Church, which “began with only seven ministers and 19 laypersons, and with only a few congregations [at] its first convention” was referred to as a “branch” of ECUSA by the Bishop of Minnesota during an address he made in 1874. (Pis.’ Opening Post-Trial *830 Mem. Concerning Application of Va. Code § 57-9 at 32-33.) The CANA Congregations also argue that “the undisputed testimony showed that the Cumberland branch of the Presbyterian Church started with three ministers who formed a presbytery.” (Pis.’ Opening Post-Trial Mem. Concerning Application of Va. Code § 57-9 at 33.) Thus, Plaintiffs argue that CANA and the American Arm of the Church of Uganda are “branches” of ECUSA, that ADV is a “branch” of the Diocese, and that the American Arm of the Church of Uganda, the Church of Nigeria, ADV, ECUSA, and the Diocese are all “branches” of the Anglican Communion.
In regard to the issue as to the nature of the Anglican Communion, Plaintiffs argue that the Anglican Communion is in fact a “church” or “religious society” as that term is used in § 57-9(A), and that, in addition, the CANA Congregations were formerly “attached” to the Anglican Communion, for purposes of § 57-9, through their affiliation with the ECUSA and the Diocese. In addition to these arguments, which were made by all of the CANA Congregations collectively, the Church of Our Saviour at Oatlands [hereinafter “COSO”] submitted its own supplemental brief, arguing that “section 57-9 unambiguously provides that the CANA Congregations may retain their own property upon majority vote in the event of a ‘division’.” (Individual Opp’n Br. of the Church of Our Saviour at Oatlands’ Supplementing the CANA Congregations’ Collective Opp’n Br. 2.) COSO argues that, were this Court to interpret § 57-9(A) so that “only the Diocese and TEC could determine when a ‘division’ cognizable under § 57-9 could occur,” this would violate the CANA Congregations’ own First Amendment rights, in that “[i]t is difficult to imagine a heavier burden upon the CANA Congregations than the seizure of their property and the use of that property to support religious practices with which the Congregations strongly disagree.” (Individual Opp’n Br. of the Church of Our Saviour at Oatlands’ Supplementing the CANA Congregations’ Collective Opp’n Br. 2-3.) As stated above, these and all other constitutional arguments will be addressed at a later date.
B. ECUSA/Diocese
Defendants ECUSA/Diocese, in contrast, argue that “a ‘division’ within the meaning [of § 57-9(A)] must be an institutional division in a ‘church or religious society,’ accomplished pursuant to that church or society’s rules and polity,” which results in “the creation of two or more entities which might properly be viewed as legal successors to the formerly undivided church.” (Post-Trial Opening Br. for the Episcopal Church and the Diocese (Corrected *831 Per Errata Filed 01/07/08) at 5.) They argue that, “[c]ontrary to the Congregations’ characterization of this definition, it does not require an ‘amicable’ separation; it does, however, require appropriate action of the regularly constituted body empowered to effect or recognize a structural division under the church’s polity.” (Post-Trial Opening Br. for the Episcopal Church and the Diocese (Corrected per Errata Filed 01/07/08) at 5.) Essentially, the ECUSA/Diocese argue that, unless a church’s hierarchy formally declares or admits to a division, the statute does not apply. Because the governing authorities of the ECUSA and the Diocese have not acknowledged the occurrence of a division, the ECUSA/Diocese argue that there is no division here under § 57-9(A).
Further, the ECUSA/Diocese suggest that the CANA Congregations’ definition of “division” would allow a hierarchical church to be “divest[ed] of its interest in local congregational property... by the acts of a few disgruntled individuals.” (Post-Trial Reply Br. for the Episcopal Church and the Diocese 5, n. 3.) They state that “Virginia certainly has no interest in encouraging divisions and property disputes by making the statute so easily applicable through the acts of a few individuals.” (Post-Trial Reply Br. for the Episcopal Church and the Diocese 5-6, n. 3.) Defendants argue that the “great nineteenth Century divisions” in the Methodist, Presbyterian, and Baptist denominations were the “impetus for § 57-9.” They argue that the current split which resulted in the formation of CANA and ADV is not such a great division and thus § 57-9(A) should not be applied. (Opp’n Br. for the Episcopal Church and the Diocese 15-16.)
In regard to what constitutes a “branch,” the ECUSA/Diocese argue that CANA and ADV are in no way “branches” of the ECUSA or the Diocese, because they no longer are connected in any way with ECUSA or the Diocese. Defendants set forth the following example to support their position: They argue that, in the past, “[t]he Episcopal Church in fact created a new missionaiy diocese to minister to Mexican Catholics who had become disaffected from, and were departing, the Catholic Church. Yet, not surprisingly, no one referred to or considered that Episcopal Diocese as a “branch” of the Catholic Church; it was a branch of the Episcopal Church, just as CANA is a ‘branch’ of the Church of Nigeria.” (Opp’n Br. for the Episcopal Church and the Diocese 22 (citations omitted).)
As to the nature of the Anglican Communion, the ECUSA/Diocese argue that it is not a “church or religious society” under § 57-9(A), but is only “a family of [38] churches.... regional and national churches that share a common history of their understanding of the church catholic through the See of Canterbury.” (Post-Trial Opening Br. for the Episcopal Church and the *832 Diocese (Corrected per Errata Filed 01/07/08) at 34.) For example, they cite the criteria relied upon by the IRS to determine what constitutes a church, arguing that the Anglican Communion does not satisfy most of these characteristics. (Post-Trial Opening Br. for the Episcopal Church and the Diocese (Corrected per Errata Filed 01/07/08) at 35 (citing Spiritual Outreach Soc’y v. Commissioner, 927 F.2d 335, 338 (8th Cir. 1991)). And since neither the Anglican Communion nor any other “association of independent churches like the Anglican Communion,” existed in 1867, Defendants argue that the legislature could not have had these in mind when it used the words “church” and “religious society” within § 57-9(A). (Post-Trial Opening Br. for the Episcopal Church and the Diocese (Corrected per Errata Filed 01/07/08) at 3 6.)
Finally, ECUSA/Diocese argue that the CANA Congregations were not “attached” to the Anglican Communion, because the element of “control” is missing. (Post-Trial Opening Br. for the Episcopal Church and the Diocese (Corrected per Errata Filed 01/07/08) at 37.)
The Court notes that the ECUSA/Diocese also makes a “legislative history” argument in their post-trial briefs in regard to Va. Senate Bill 1305. See, e.g., (Post-Trial Reply Br. for the Episcopal Church and the Diocese 10-11.) According to the ECUSA/Diocese, SB 1305 (2005) “would have expanded [§ 57-9(A)] to apply to congregational votes determining ‘(i) to which branch of the church or society such congregation shall thereafter belong; (ii) to belong to a different church, diocese, or society; or (Hi) to be independent of any church, diocese, or society.” (Post-Trial Opening Br. for the Episcopal Church and the Diocese (Corrected per Errata Filed 01/07/08) at 28-29.) ECUSA/Diocese’s argument appears to be that the fact that a bill was proposed to broaden § 57-9(A)’s reach suggests that § 57-9(A), in its current incarnation, is not broad enough to encompass the instant situation. While this Court recognizes the value of legislative history on issues of statutory interpretation, “[a] bill can be proposed for any number of reasons, and it can be rejected for just as many others.” Solid Waste Agency ofN. Cook County v. United States Army Corps ofEng’rs., 531 U.S. 159,170 , 121 S. Ct. 675 , 148 L. Ed. 2d 576 (2001).
IV. Discussion of Expert Testimony and Analysis
A. Applicable Law
In order to interpret § 57-9(A), this Court looks to the text of the statute itself, the historical context in which it was enacted, and applicable case law. The Court begins, as it must, with the text of the statute.
*833 1. Statute
Section 57-9, in its entirety, states:
A. If a division has heretofore occurred or shall hereafter occur in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority of the whole number, determine to which branch of the church or society such congregation shall thereafter belong. Such determination shall be reported to the circuit court of the county or city, wherein the property held in trust for such congregation or the greater part thereof is; and if the determination be approved by the court, it shall be so entered in the court’s civil order book, and shall be conclusive as to the title to and control of any property held in trust for such congregation, and be respected and enforced accordingly in all of the courts of the Commonwealth.
B. If a division has heretofore occurred or shall hereafter occur in a congregation whose property is held by trustees which, in its organization and government, is a church or society entirely independent of any other church or general society, a majority of the members of such congregation, entitled to vote by its constitution as existing at the time of the division, or where it has no written constitution, entitled to vote by its ordinary practice or custom, may decide the right, title, and control of all property held in trust for such congregation. Their decision shall be reported to such court, and if approved by it, shall be so entered as aforesaid, and shall be final as to such right of property so held.
Va. Code Ann. § 57-9 (2007).
This Court is first required to consider the “plain meaning” of the words as they are used in the statute. This is one of the most basic principles of statutory construction within our legal system. See, e.g., United States v. Gonzales, 520 U.S. 1, 5 , 117 S. Ct. 1032 , 137 L. Ed. 2d 132 (1997) (using Webster’s Third New International Dictionary to determine the “natural” meaning of a particular word as used in a statute, where “Congress did not add any language limiting the breadth of that word....”); see also Hackney v. Commonwealth, 186 Va. 888, 891-92 , 45 S.E.2d 241 (1947) (citing *834 Webster’s International Dictionary, 2d ed., and Bouvier’s Law Dictionary, to discern the definitions of words as used in the statute). As the Virginia Supreme Court states:
Under basic principles of statutory construction, we consider all relevant provisions of a statute and do not isolate particular words or phrases. When the language of a statute is plain and unambiguous, we are bound by the plain meaning of that statutoiy language. Thus, when the General Assembly has used words that have a plain meaning, courts cannot give those words a construction that amounts to holding that the General Assembly meant something other than that which it actually expressed.
Lee County v. Town of St. Charles, 264 Va. 344, 348 , 568 S.E.2d 680 (2002) (citations omitted). See also, Vaughn v. Beck, 262 Va. 673, 677 , 554 S.E.2d 88 (2001) (“Under basic rules of statutoiy construction, we examine the language of [the statute] in its entirety and determine the intent of the General Assembly from the words contained in the statute, unless a literal construction of the statute would yield an absurd result.... Thus, when the General Assembly has used words of a plain and definite import, courts cannot place on them a construction that amounts to holding that the General Assembly meant something other than that which it actually expressed.”) (citations omitted).
Further, this Court must also look to the definition of words used in a statute “[a]t the time of [its] enactment... . Courts cannot read into a statute something that is not within the manifest intention of the Legislature as gathered from the statute itself. To depart from the meaning expressed by the words is to alter the statute, to legislate and not to interpret.” Lewis v. Commonwealth, 184 Va. 69, 73 , 34 S.E.2d 389 (1945) (citations and internal quotation marks omitted).
And finally, “it is a well-established rule of statutory construction that, when the same word is used in different parts of the same statute, the presumption is that it is used in the same sense throughout the statute, unless a contrary intention clearly appears.” Bridgewater Mfg. Co. v. Funkhouser, 115 Va. 476, 480 , 79 S.E. 1074 (1913).
a. Plain Meaning of the Text
Applying the foregoing principles, this Court first looks to the plain meaning of individual words in the statute, also taking into consideration the structure of sentences used, as well as the overall grammatical context of the various sentences and phrases within the statute.
*835 The Court notes that both ‘§ 57-9(A) and (B) begin by using the same phrase “If a division has heretofore occurred or shall hereafter occur in a....” At this point, then, the two sections begin to differ, as part A continues: “church or religious society, to which any such congregation whose property is held by trustees is attached... .” while part B continues: “congregation whose property is held by trustees which, in its organization and government, is a church or society entirely independent of any other church or general society....”
Thus, the plain text of the statute makes clear that part B applies only to churches that are “entirely independent of any other church or general society.”
However, the two sections then merge once again, as each states that, in the event of a “division,” the individual congregation, by majority vote, may determine the destiny of its property. Thus, both section A and section B of § 57-9 provide that a congregational majority may determine the future of its property. There is, however, a significant distinction between § 57-9(A) and (B) regarding the procedure for a majority vote. In the case of an independent church, such as the one described in (B), those who may participate in the vote are those “entitled to vote by [the congregation’s] constitution as existing at the time of the division, or where it has no written constitution, entitled to vote by its ordinary practice or custom____” In contrast, in (A), those entitled to vote are “the members of such congregation over 18 years ofage....” Thus, in (B), the legislature defers completely to the independent church’s constitution, ordinary practice, or custom, whereas, in (A), the legislature shows no such deference. Instead, § 57-9(A) appears to mandate a neutral rule that the members of the congregation over eighteen years of age may participate in the vote. More importantly, (A) appears to reflect a determination by the Virginia legislature to protect the voting rights of any local congregation which is subject to a hierarchical church’s constitution or canons. This lends support to the notion that § 57-9(A) was not enacted in contemplation that “divisions” would always be consensual, authorized, or approved.
b. Expert Testimony
i. Dr. Mark Valeri
This Court also must consider the historical context in which the statute was codified. Although it has undergone minor non-substantive changes since its enactment in 1867, both sides concede that the statute remains *836 substantively the same today as it did in 1867. Dr. Mark Valeri, 19 an expert witness for the CANA Congregations, testified during the trial that, based upon a search of newspapers, religious journals/serials, religious pamphlets/tracts, and denominational histories that are widely available in Virginia, the most commonly understood definition of “division,” as understood in the mid-nineteenth century, both nationally and specifically in Virginia, is the “separation out of [a] group of members of a religious ... denomination in sufficient numbers to begin to form an alternative polity[,] and the renunciation of the authority of the original group in that process.” (Trial Tr. 52:18-55:20.) Dr. Valeri also stated that there was a second common definition of “division,” which “refers to internal strife or division as in our church is having a quarrel or division over a particular issue.” (Trial Tr. 54:12-14.) Further, this “internal strife” frequently leads to a separation, according to Valeri, so that the second definition of “division” often merges into the first. See Trial Tr. 54:4-18. Further, Dr. Valeri stated that, typically, when a group left the particular denomination, it was not an amicable split, nor was it “with the approval or consent of the higher ecclesiastical authorities.” (Trial Tr. 56:1-14.)
Dr. Valeri testified at length regarding the various splits among the Presbyterians throughout the nineteenth century. First, in 1837, due to a debate over “revivalism,” and “ordination procedures,” there was a split that resulted in the formation of a “new branch” of Presbyterianism, termed the “New school.” (Trial Tr. at 57:21-58:15.) This was not a geographical split, since “[e]very state . . . had a mixture [of both Old School and New School groups].” (Trial Tr. 59:2-7.) The General Assembly, which was the “highest ecclesiastical authority in the Presbyterian Church in the mid-1800s,” did not “approve” of this “division.” (Trial Tr. 60:3-11.) In Dr. Valeri’s words, “They [the Old School and New School] recognize each other exists, but they do not recognize the legitimacy of the other,” (Trial Tr. 68:1-3) which is evidenced *837 by the fact that “the old school begins deposing some of the new school ministers.” (Trial Tr. 61:11-12.) Another word for “depose” is “defrock,” which was considered a “vulgar kind of diction,” at the time of the New School-Old School split. (Trial Tr. 61:17-22.) This split between the Old School and New School was far from amicable, as evidenced by the fact that the Old School apparently charged the New School with being “corrupt in doctrine, fanatical in practice, and guilty of the sin of schism.” (Trial Tr. 65:2-10.) Dr. Valeri testified that this use of the word “schism” indicated that the religious body accused of “schism” was thought to be heretical, deviant, and “contemptuous of authorities.” (Trial Tr. 65:6-16.) Eventually, “all of the ordinations which took place under this new school were considered invalid and not acceptable by the old school.” (Trial Tr. 67:7-9.)
Following this Old School-New School split, the New School proceeded to itself divide, as, according to Dr. Valeri, “the southern synods or at least some Virginia synods split off from the general conference,” to form the “United Synod.” (Trial Tr. 73:1-21.) The United Synod then “engage[d] in activities that were condemned by the [N]ew school,” including “sen[ding] unauthorized missionaries throughout into new school territories.” (Trial Tr. 73:22-74:9.) As Dr. Valeri remarked, “when you send a [missionary] into the parish, into the parish of an existing church, it is a de facto statement of the illegitimacy of the current ministry in that location.” (Trial Tr. 74:17-20.)
After discussing the above two major splits among the Presbyterians, Dr. Valeri also described a separate and smaller “division” which occurred with the departure of only three ministers from the Presbyterian Church, who left to form their own polity. (Trial Tr. 77:10-78:11.) “Entire congregations” proceeded to join these three ministers, and thus the Cumberland church continued to grow into its own denomination, the Cumberland Presbyterian Church. See Trial Tr. 77:10-78:19.
Dr. Valeri further described “division” as a “process” which:
begins with disaffection or controversy and then a few members separate out. They are then joined by other members. They form a group and begin to actually talk of themselves as a separate group, and they are later joined by other groups over the period of weeks, months, sometimes years ... the division is a process that begins small and then grows and that line of crossing between predivision to division is not a hard and fast line.
(Trial Tr. at 78: 20-79:16.)
*838 Finally, Dr. Valeri discussed a split in the Old School itself, which resulted, according to Dr. Valeri, in the formation of the Presbyterian Church in the United States (“PCUSA,” the preexisting denomination) and the Presbyterian Church in the Confederate States of America (“PCCSA,” the new denomination). Dr. Valeri read excerpts from the Christian Observer, a newspaper founded in Louisville, Kentucky, around the year 1840, in which citizens are quoted as publicly describing this split in the Old School as a “division.” (Trial Tr. 87:2-88:3.) This Old School split was in fact described by Dr. Valeri as being particularly acrimonious, as the PCUSA “actually had statutes in its own constitution which would have made the ordination of ministers in this new PCCSA invalid.” (Trial Tr. 88:8-13.) Further, the PCCSA was “completely organized separately and independently from the Presbyterian Church,” in that the breakaway PCCSA group had a “parallel General Assembly, parallel Synods, parallel presbyteries, parallel ordination - parallel and different ordination processes, different qualifications for ordination.” (Trial Tr. 88:22-89:6.) Also according to Dr. Valeri, another act taken by the PCUSA to reflect its anger over the creation of the PCCSA included the passage of the “Gardiner Spring Resolutions,” which “demanded that any Presbyterian minister profess fealty ... to the federal union and disavow slave holding as a sin against God, and ministers who did [not do] that could not be ordained.” (Trial Tr. at 89:11-90:1.)
Thus, the condition of the Presbyterian denomination as a whole in 1867 (the year in which the statute currently codified as § 57-9 was originally passed) was that there was still an Old School/New School division, as well as a division between the northern and southern Presbyterian churches. (Trial Tr. 91:1-4.)
Further, Dr. Valeri testified that all the above splits would have been characterized as “divisions,” and that the “operating principle seems to be that groups of three feel themselves qualified to form themselves into new units.” (Trial Tr. at 82:10-15, 92:6-9.) His definition of division “carries across” all denominations. (Trial Tr. 94:8-9; 56:15-17.) In contrast, he stated that, if a group of individuals from the Lutheran Church left the Lutheran Church and became Baptists, that this would be merely a “departure or transfer,” rather than a “division.” (Trial Tr. 92:16-93:2.)
Further, Dr. Valeri defined “branch” as “the new organization or polity 20 that results from the division.” (Trial Tr. 94:17-18.) Dr. Valeri *839 testified that a “branch” “contains more than one group, and it claims some affiliation 21 with the genetic origin of the original group and consists of people who belong to the original group.” (Trial Tr. 94:19-21.) He testified that this definition of “branch” remains the same among denominations, “although the branch itself looks different[] ... from denomination to denomination,” in that “the shape, the coloration, the specifics look different ... [f]or example, Episcopalians have Dioceses and Bishops. Presbyterians have presbyteries.” (Trial Tr. 95:7-18.) It was not Dr. Valeri’s view that “the new group [must] be acknowledged by the entity from which it divided in order to be viewed in common parlance as a branch.” (Trial Tr. 95:19-21.) For example, the Cumberland Presbyterian Church, although it later reunited with the original Presbyterian entity from which it had previously divided, was on its own for ninety years, during which period of time, it was neither formally nor informally connected with the PCUSA, yet a 1904 New York Times article referred to Cumberland as a “branch” of the original Presbyterian entity from which it had divided. See Trial Tr. 96:1-98:1.
Dr. Valeri testified that the word “branch” is often used within the Christian Church to describe “the large deeply historical divisions in Christianity,” including the three main branches: Roman Catholic, Eastern Orthodox, and Protestant, but that “branch” is also used to describe more narrow, particularized branches, so that Dr. Valeri would consider the Cumberland Presbyterian Church to be a “branch” of the original Presbyterian Church, and would also consider the Presbyterian Church’s Old School and New School to be “branches” of each other. See Trial Tr. 97:21-100:7.
Dr. Valeri also testified that the three largest denominations in both the United States and Virginia in 1867 were the Methodists, the Baptists, and then the Presbyterians (in descending order of size). (Trial Tr. 103:9-104:1.) All of these denominations experienced divisions on multiple occasions, which were “a subject of frequent public commentary in the nineteenth century in Virginia,” in “newspapers, religious tracts and pamphlets, denominational stories and histories.” (Trial Tr. 104:15-105:5.)
*840 Finally, Dr. Valeri testified that the Episcopal Church itself experienced a “division” during 1873-74, 22 the cause being “[d]ebate over liturgical practices and then the suspension of a pastor around whom a group of supporters of [the] pastor gathered] and beg[an] to have meetings.” (Trial Tr. 105:19-22.) These supporters, numbering seven clergy and nineteen lay people, left the Episcopal Church to form the “Reformed Episcopal Church.” (Trial Tr. 106:11-107:20.) The Reformed Episcopal Church continued to grow, as more congregations later followed the original seven clergy and nineteen lay people. The Episcopal Church reacted by “denouncing] the movement as a schism 23 and . . . deposing] its chief leader. . . which meant all of the subsequent ordinations he conducted were invalid.” (Trial Tr. 107:10-108:1.) The Episcopal Church today still refers to this particular split as a “schism.” Pl.’s Ex. 5, “The Episcopal Dictionary definition of ‘ Schism’,” (“The earliest significant schism from the Episcopal Church was that of the Reformed Episcopal Church, which began in 1873. There were also some smaller schisms from it in the later twentieth century over Prayer Book revision and the ordination of women.”) Today the Reformed Episcopal Church has grown to almost 6,000 members. (Trial Tr. 111:7-12.)
In sum, Dr. Valeri testified that the “average, ordinary Virginian in 1867” would have understood “division” to mean “the separation out of a group in rejection of the authority,” and that “it is that act of division which creates a branch.” This understanding would “encompass situations in which the church or religious society” did not “approve” of the division,” as well as situations in which the “new entity, the new polity, was not formally affiliated with the church and religious society from which it divided.” (Trial Tr. 115:15-116:15.)
*841 ii. Dr. Charles Irons
CANA Congregations’ expert witness Dr. Charles Irons, 24 testified that, in preparation for this case, he reviewed “congregational records, denominational records, denominational newspapers, secular newspapers from the period, some private papers,” and “county court records.” (Trial Tr. 175:9-19.) Dr. Irons stated that, in his opinion, “the most common definition of division would be the fragmentation of one religious jurisdiction to create two or more jurisdictions.” (Trial Tr. 178:7-9.) “Division” could also mean, according to Dr. Irons, “internal conflict or discord within a religious body. Most often when it is used in that sense, it is the threat of division or talk of division.” (Trial Tr. 178:12-16.)
Dr. Irons further stated that the definition of “branch,” if “division” and “branch” are used in the same sentence, would mandate that “branch” is being used to describe one of the “resulting jurisdictions” of the “division.” (Trial Tr. 180:1-16.) Dr. Irons corroborated Dr. Valeri’s testimony that across all denominations, “[mjost divisions [were] simply not consensual,” and Dr. Irons stated that “Virginians would not have summarily construed [that a division was approved by the ecclesiastical authorities] at all.” (Trial Tr. 181:17-19.)
Dr. Irons testified at length regarding the various national splits that occurred in the Methodist Church during the nineteenth century, which was the largest denomination in Virginia in 1867. (Trial Tr. 183:2-9.) Virginians would have known about all of these splits, and about nine out of the almost dozen Methodist splits that occurred during the nineteenth century impacted Virginia directly. (Trial Tr. 183:10-184:12.) Dr. Irons testified about the creation of the Methodist Episcopal Church South, which was one of the major splits that would have specifically impacted Virginia. In 1844,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8669084. Public record. Not legal advice.