Now, to understand the answer to that question it's useful to put the statute in historical context, and that's what we intend to do. Mark Valeri and Charles Irons, two leading historians of American religious history will testify that the 19th century was a time of numerous fractures or divisions in American religious denominations. Just as earlier centuries witnessed the splits that created the three main branches of Christianity, the Roman Catholic, orthodox, and protestant traditions, the 19th century saw many further divisions into somewhat smaller branches, particularly among the nation's protestant denominations. Some of these divisions were over the issue of slavery, of course, but others were over issues like how the church should approach evangelism or how the church should be organized over its polity. But the important point for our purposes and what the evidence will show is that the phenomenon of church divisions was well known to 19th century Americans, particularly in Virginia.

For example, Professor Valeri will testify that the Presbyterians split up more than ten times in the 19th century. To name just a few of the more significant ones, there was the Cumberland branch of Presbyterians, the New School branch, the Old School branch.

There was the separation of the United Senate from the New School Presbyterians which took place right in Richmond in the late 1850s, less than a decade before the statute was adopted.

There was the 1860s split of the Old School branch into northern and southern churches and there was the split of the New School branch into northern and southern churches during roughly the same time period.

We'll also hear from Professor Irons, a leading expert on the 19th century American church, and he will testify that the Methodists experienced several splits in that era as well.

There was the group that split off from the Methodist Episcopal Church to form the Reformed Episcopal Church in 1813. There were the six churches that formed the AME Zion Church in the early 1820s due to restrictions on blacks' participation in worship. There was the Methodist Protestant Church formed around 1830 and there were the groups that withdrew to form the Wesleyan Methodist Church in the 1840s over slavery and women's rights, the Congregationalists Methodists in the 1850s over issues of polity, the Free Methodists in 1860s who also split over issues of polity and evangelism, bodies that incidentally still exist today. And there was the split that broke the Methodist Episcopal Church, then the nation's largest religious denomination, into the Methodist Episcopal Church and the Methodist Episcopal Church South in the 1840s and following decades. Professor Irons will explain that the Methodist division was particularly well-known to Virginians because much of Virginia was located in what was known as the Baltimore Conference, a region of the church that also included much of Maryland and a region that took what was then a middle ground position on slavery.

But in 1860 when the northern church changed its position on slavery, many of the Virginia congregations in the Baltimore Conference felt betrayed and wanted out, so they left in defiance of church authorities in what was effectively a second major division in the Methodist Episcopal Church in a roughly 20-year time period.

So how did people in the 19th century talk about these splits? How would an ordinary American citizen, in particular one who lived in Virginia, have understood the terms "division" and "branch" in the context of religious denominations?

Professors Valeri and Irons have studied this extensively by reviewing primary sources from that era. They've looked carefully at secular periodicals ranging from The New York Times to local Virginia papers like the Staunton Spectator. They've looked at religious periodicals such as The Presbyterian or other denominational newspapers. They've looked at minutes of denominational meetings, sermons, pamphlets as well as many standard reference works concerning the era, and as they will explain, a division was most commonly understood to have occurred when a group of church members and clergy broke away from a denomination, typically without the denomination's approval, in sufficient numbers to set up a new organization, a new polity.

Relatedly, a branch was most commonly understood to be that new organization, a group of churches with its own newly-established polity but with a historical connection to the prior denomination, and typically containing a similar organizational structure. A branch was either an offshoot of the predecessor church or the body left behind. And so, for example, people would refer to the New School branch of the Presbyterian Church or the southern branch of the Methodist Church or the northern branch of the Old School Presbyterians or even the southern branch of The Episcopal Church. The evidence will show that during the Civil War The Episcopal Church in the Confederate States set up a new organization, a new constitution, a new Bishop, and a new General Convention called the General Council.

Now, in the case of Episcopalians, the church reunited in 1866, a year before the division statute was adopted. But as Professor Irons will explain, leading Bishops in the southern branch and indeed in Virginia referred to themselves as a branch of The Episcopal Church despite the fact that the Northern Episcopal Church never acknowledged them to have left, and despite the fact that the consecration of a southern Episcopal Bishop was a violation of a polity of the northern branch. It was against this backdrop of church splits, not only in the Methodist and Presbyterian and Episcopal streams of the church, but in many other denominations as well that the division statute was adopted, and the evidence will show that at least 30 congregations successfully invoked it during the first year or two after its adoption, including congregations that voted to join various branches of the churches at issue.

This was especially so in Augusta County, Virginia, the home of Colonel John Baldwin, who is perhaps best known for his opposition to suspending the writ of habeas corpus, but also was the lead sponsor of the division statute. Now, The Episcopal Church and the Diocese of Virginia would have this court believe that these denominational splits were consensual, agreed-to separations approved by the authority of the churches involved. According to them, a division exists only where the highest adjudicatories of a church formally approve of it. Other sorts of splits are simply people withdrawing from the church or separating from it, and if their depositions are any indication, we expect you'll hear their witnesses sound that refrain time and again.

But as Professors Valeri and Irons will explain, that was not the case historically. Most, if not all, of the denominational splits in the 19th century were in direct defiance of the governing authorities, and this is even true for the Methodists who perhaps came the closest to a formally approved separation. Professor Irons will explain that the Methodists' so-called plan of separation called for ratification by three-fourths of the Methodist conferences of the church -- a conference was basically the Methodist equivalent of the Diocese -- but that this never happened because the southern congregations simply left and set up their own annual conference the following year. Indeed, the founder of the new branch was a minister whom the northern church

had formally suspended from ministry.

Moreover, Professor Irons will explain that the plan did not anticipate, let alone address, the problems that would arise two decades later in the 1860s, when the Methodist Church in the north changed its position on slavery. Now, when the denominations split apart in the 1840s, the Baltimore Conference had voted to stay in the northern branch of the church, but when the northern branch of the church changed course, many of the congregations in Virginia wanted to disaffiliate.

The problem was the so-called Methodist plan of separation, which in any event had never been ratified, did not give them any escape hatch. So they had to leave in defiance of the denominational authorities. Enter the division statute. Now, this of course is only the Methodist situation. But as Professors Valeri and Irons will explain there were lots of other divisions and most, if not all, of the new branches divided from their denomination without approval.

The term "division" was understood to apply to all of these situations, even where a group broke away without denominational approval, and, in fact, The Episcopal Church's own historical expert, if he testifies consistently with his deposition, will agree with much of what Professors Valeri and Irons will have to say about the Methodist and Presbyterian divisions, including the fact that the Methodist plan of separation was never ratified and the southern branch of the Presbyterians disaffiliated without the northern branch's permission.

So bearing in mind this historical backdrop, I'd now like to fast-forward 140 years and discuss how the CANA Congregations will prove a division in the meaning of Section 57-9, the current codification of the statute adopted in 1867.

You'll hear testimony about the division of The Episcopal Church and the Anglican Communion, about the recent departure of members, congregations and clergy from The Episcopal Church, particularly as a result of certain new policies adopted at the church's 2003 General Convention, about the related division in the Diocese of Virginia, as evidenced by the disaffiliation of 15 congregations from the Diocese since late 2005, all of whom are now members of the Anglican District of Virginia, an offshoot or branch of the Diocese.

And you'll hear about the formation of new branches of the church such as CANA, made up of former Episcopalians who are now affiliated with other provinces in The Anglican Church worldwide, provinces that have broken communion with or disaffiliated from The Episcopal Church in the U.S.A.

You will also hear specific testimony about the establishment of CANA as an offshoot of The Episcopal Church as a new branch where Episcopalians could reaffiliate in the wake of the 2003 General Convention of The Episcopal Church. For example, one of the Congregations' witness's will explain CANA's relationship to The Anglican Church of Nigeria, and in particular how CANA was initially envisioned as a place where congregations in The Episcopal Church with Nigerian expatriates as members could reaffiliate. But as the evidence will show, it soon became clear in light of the number of congregations disaffiliating from The Episcopal Church and their need for oversight in the wake of 2003 General Convention, that the mandate of CANA needed to be broadened.

And so in response to the growing division in The Episcopal Church, CANA amended its charter in 2006 to rename CANA from the Convocation for Anglican Nigerians in American to the Convocation of Anglicans in North America.

In other words, you will hear testimony that while CANA is affiliated with the Church of Nigeria so as to maintain Anglican ties and oversight, it is composed primarily of former Episcopal congregations who turned to CANA as an Anglican alternative in the wake of the General Convention in 2003. And you will hear about how in the short time since CANA's missionary Bishop Martyn Minns was consecrated in August 2006, CANA has grown to a national organization of some 60 congregations from 18 states and eight Episcopal Dioceses. Moreover, you will hear that more than 10,000 of its members have come from The Episcopal Church.

Next, you will hear from a series of witnesses who will testify about how the division in The Episcopal Church is played out in the Diocese of Virginia. For example, you will hear testimony from a member of the Diocese's Reconciliation Commission, an ideologically diverse group of people appointed by Diocesan Bishop Peter Lee in hopes of preventing the sorts of disaffiliations that were taking place in other parts of The Episcopal Church, and in hopes that the Virginia tradition of civility on these issues might lead to some sort of compromise that would enable congregations who disagreed with the actions of the church to remain in some level of relationship of the Diocese.

You will hear testimony that although the group's members disagreed on a whole host of issues, they all agreed that there was a division in the Diocese and that there would likely need to be provision for some sort of amicable divorce unless things changed at the 2006 General Convention. The Commission's unanimous report, which you can still find on the Diocese's web site, repeatedly referred to the division describing the situation as a level 5 conflict, which the report described as the most serious level of organizational conflict. And in the wake of the report the Diocese in 2005 adopted a resolution at its Annual Council acknowledging the division in the Diocese.

You'll also hear from members of a special committee appointed by Bishop Lee after the Reconciliation Commission issued its report, a committee charged with "helping congregations continuing in conflict over the decisions of the 2003 General Convention get on with their mission in as close a union as possible with the Diocese." These witnesses will explain that the committee was chaired by Russ Palmore, an officer of the Diocese and, chief lawyer, and a member of The Episcopal Church's Executive Council. As they will testify, the committee explored numerous ways of resolving the conflict in the Diocese short of separation, but that ultimately these proposals were found unworkable by both sides.

In the end, the Special Committee produced a unanimous final report acknowledging the division expressly and by then congregations had already begun disaffiliating from the Diocese. The report also outlined a protocol for departing congregations to follow in order to disaffiliate from the Diocese. The protocol in turn included guidelines that, among other things, called for vestry and congregational votes on disaffiliation and amicable negotiation of the parties' differences over property. Bishop Lee thanked the committee, received their report, and called it the right way forward.

And you'll hear testimony that these measures were unprecedented in the history of the Dioceses, that past disagreements over issues such as ordination of women or the revision of the Book of Common Prayer did not compare to the current division or generate any need for such protocols. The evidence will further show that the CANA Congregations in the Diocese then proceeded to follow the protocol, including at congregational meetings where representatives of the Diocese were permitted to address the congregations, and that the congregations ultimately voted to disaffiliate. The Episcopal Church and the Diocese then abandoned the protocol and brought suit against the CANA Congregations.

But as the evidence will show in total some 15 congregations, representing more than 10 percent of the membership of the Diocese and nearly 20 percent of its average Sunday attendance, disaffiliated. And the evidence will also show that these congregations are merely a part of a much broader exodus from the church as a whole which began before the votes of the CANA Congregations and continues today.

Now, you're going to hear a fair bit about the Anglican Communion and how the actions of The Episcopal Church have had international repercussions, a division among the Anglican Communion's 38 provinces themselves.

For example, you will hear testimony from Abraham Yisa, the registrar or the most senior lawyer in the Church of Nigeria, a voting member of the Anglican Consultative Council and the chairman of CANA's board of directors.

Registrar Yisa will explain that the Anglican Communion is a church and a religious society and that Anglican parishes are through their Dioceses and provinces attached to the Anglican Communion. He will also testify that the division in the communion is evidenced by the decision of many Anglican provinces to declare that they are in the relationship of broken or impaired communion with The Episcopal Church, which is an Anglican way of saying we are cutting off our relationship with you unless and until you change direction.

As the Global South Primates put it in April 2004, The Episcopal Church by its actions in 2003 "has willfully torn the fabric of the communion at its deepest level and as a consequence openly cut themselves adrift."

Registrar Yisa will testify that the division in the Communion is evidenced by the decision of the Church of Nigeria to amend its constitution, first to provide that the Church of Nigeria is in communion with, i.e., in formal ecclesiastical relationship with, only those provinces of the Communion that adhere to the historic teaching of the faith, not those who merely relate to the Archbishop of Canterbury, and second, an amendment to authorize the Church of Nigeria to establish a foreign missionary district in a geographic region where there's already some Anglican presence. As Registrar Yisa will explain, these are unprecedented measures in the Anglican Communion. Anglican provinces generally respect each other's territory, but these are not ordinary times in the Anglican Communion. They are times in which the Communion is not only personally, but structurally divided.

Indeed, The Episcopal Church's Presiding Bishop Katharine Jefferts-Schori will testify by DVD that it is a great affront to The Episcopal Church to have foreign provinces coming into the United States and setting up alternative Anglican bodies, and she and The Episcopal Church's experts will both say that this is a violation of Anglican polity. In fact, she testified at her deposition that she'll settle TEC's claim to congregational property with a parish that wants to sell it to a saloon or to reaffiliate with the Baptists, but not with a congregation that wants to reaffiliate with Nigerian, Ugandan, Rwandan, or Kenyan or South American Anglicans.

This is just further evidence of the division in the Anglican Communion, the division between those provinces or branches that continue to be in a formal relationship of communion with The Episcopal Church and those that do not. Now, you are not likely to hear a substantial response to our historical evidence. In fact, if the expert of The Episcopal Church testifies to the same effect as in his deposition he will acknowledge that a great majority of church splits in the 19th century were nonconsensual and that people nonetheless referred to them, at least informally, as divisions.

Instead, it appears from the exhibits that The Episcopal Church and the Diocese intend to attempt to suggest that the division statute does not mean what it says, based on the legislative history of a proposed amendment to Section 57-9 in 2005, an amendment that was never voted on by the full

legislature and, in fact, never made it out of committee. But this so-called legislative history is not an answer to the lessons of 19th century history, which conclusively show that the statute's terms would have been understood to apply to any situation in which a group of congregations broke away from a denomination and started a new entity. The important point is that over the years the Virginia General Assembly has made various amendments to the Virginia Code as it relates to religious organizations, but it has not seen fit to narrow or repeal the division statute. The General Assembly continues to believe that when a group of congregations separates from a denomination, the neutral principle of majority rule should govern the ownership of property.

Now, The Episcopal Church and the Diocese like to say that while there are differences of opinion or divisions of opinion in the denomination, they are simply that, that there was internal strife in the denomination, that they're having some challenging conversations or some conflict or some debate, but that these internally are not division because they were not formally approved as such. According to them it's only a division if they say so and only if they say so via a formal vote of their General Convention. Indeed, as Mr. Davenport acknowledged on Friday, there would not be a division under their theory even if 95 percent of The Episcopal's Church's congregations voted to disaffiliate. Moreover, they say that the Anglican Communion is incapable of dividing because it is simply a vision or an ethos or idea. The CANA Congregations do not deny that there has been division in the sense of much internal strife but the evidence will also show that that is not how The Episcopal Church and the Diocese talked about division before this litigation began.

For example, Professor Valeri will testify about the division that created the Reformed Episcopal Church in the 1870s. That was a division that, like other typical church splits in the 19th century, occurred without denominational approval. The evidence will show that the new branch was formed by one Episcopal Bishop and seven other clergy and that only a dozen congregations attended the new body's first convention.

Yet in 1988 the General Convention of The Episcopal Church adopted a resolution that declared as follows and I quote, "Resolved, the House of Bishops concurring, that this 69th General Convention direct a Standing Commission on Ecumenical Relations to explore the possibilities of dialogue with representatives of the Reformed Episcopal Church looking toward the healing of this particular division and direct the standing commission on ecumenical relations to report to the next General Convention."

In other words, outside the context of this litigation, The Episcopal Church and indeed its own General Convention used the term "division" exactly the way everyone else does. Closer to home, the evidence will show that the report of the Special Committee chaired by Russ Palmore, Chancellor of the Diocese, described the situation as follows: "the division which may cause some to walk apart."

That division of course is why the protocol provided a protocol for departing congregations which, despite his later abandoning of it, Diocesan Bishop Peter Lee described as a useful way forward. And the evidence will show that just a few days before their scheduled votes on disaffiliation Bishop Lee himself wrote to the CANA Congregations members and said that, "American Christianity has been punctuated over the years by frequent divisions with one group choosing to separate 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."

"Frequent divisions with one group choosing to separate."Those are Bishop Peter Lee's words, not ours, but we would be hard pressed to come up with a more common understanding of the term "division," and that's exactly how people understood the term in 1867.

In sum, the General Assembly enacted the division statute to ensure that a neutral principle, majority rule, would govern situations when a group of congregations divided from their former denomination and formed a new branch of the church. That happened in the 19th century and it continues to happen today. What is perhaps unique about this case is that the division has played out at the international level of the church as well, but it is no less a division within the meaning of the statute. Indeed, the international element of this dispute merely confirms the magnitude of the division, and the evidence will demonstrate as much.

Thank you, Your Honor,

---Steffen Johnson is counsel to Truro Church and The Falls Church.