November 2009, Volume 95, Issue 7
The Free Exercise Rights of Religious Institutions: Church Property and the Constitutionality of Virginia Code § 57-9
by Fiona McCarthy
95 Va. L. Rev. 1841 (2009)
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This paper argues that § 57-9 of the Code of Virginia interferes with the free exercise of religion in violation of the Federal Constitution. Section 57-9 is at the forefront of a national dispute over church property resulting from the departure of conservative congregations from the Episcopal Church of the United States. The statute purports to determine property rights in the event of a church division, but in doing so challenges the constitutional boundaries of a religious institution’s free exercise rights. Although Virginia’s statute is unique, its implications with respect to the ability of the government to regulate religious polity and the role of courts in resolving church property disputes are broadly applicable and recent litigation involving the statute is being watched closely across the county.
Section 57-9 highlights historic uncertainty regarding the scope of free exercise rights for religious institutions, particularly in the context of church property. In the face of this uncertainty, three possible applications of the statute are addressed. One considers the statute most narrowly within the context of the “neutral principles of law” approach for resolving church property disputes. A second discusses § 57-9 as a neutral and generally applicable law. Finally, a third considers the statute broadly, as a special statute that regulates property holdings of religious institutions. Despite the various ways to characterize the statute, under each view § 57-9 violates the free exercise rights of the religious institutions it regulates.
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