DATE: Friday, November 14, 1997             TAG: 9711140607

SECTION: LOCAL                   PAGE: B6   EDITION: FINAL 

SOURCE: BY MARC DAVIS, STAFF WRITER 

DATELINE: VIRGINIA BEACH                    LENGTH:   56 lines

CHURCH IS NOT IMMUNE TO 2 LAWSUITS, JUDGE SAYS

The First Amendment does not protect Westwood Hill Baptist Church from two lawsuits over the destruction of a memorial garden, a judge ruled Thursday.

The Kempsville church faces two lawsuits from a family whose patriarch was memorialized in that garden. Each suit seeks $400,000 for vandalism motivated by religious bias and intentional infliction of emotional distress.

The garden was destroyed last year by the church's pastor and congregants who said they sensed evil spirits there. They smashed a memorial plaque in the garden, burned a rose-covered cross and ripped up cobblestones, then sprinkled holy water to reconsecrate the ground.

The pastor, Jess Jackson, later said the garden had to be destroyed because the man who was memorialized there, Arthur S. Ward, a founding church member, was a Mason and the garden contained ``occultic symbols,'' including the rose cross. Jackson said he had to ``reclaim that land for the Lord Jesus Christ.''

Last November, Ward's widow and son sued Jackson, two associate pastors and six parishioners over the garden's destruction. The garden was built in Ward's memory by his Sunday school students in 1979.

On Thursday, the church argued that the garden's destruction is protected by the First Amendment to the U.S. Constitution, which forbids government interference in the exercise of religion.

The church argued that the court should not interfere in the dispute.

``That is something that should be resolved within the congregation,'' argued the church's lead attorney, George J. Dancigers.

But the Ward family's attorney, Jack E. Ferrebee, said this was not simply a religious dispute. He said the garden's destruction violated Virginia law forbidding vandalism ``motivated by racial, religious or ethnic animosity.''

In court Thursday, Judge Frederick B. Lowe ruled that the lawsuits are not barred by the First Amendment. He said the First Amendment ``is not there as something to hide behind.''

For example, Lowe said, if he cut someone's throat in a church because he didn't like the victim's looks and his faith told him to do it, that would not be protected by the First Amendment. In this case, Lowe said, the religious acts of exorcism or sprinkling holy water could not trigger a lawsuit, but the destruction of property could.

The key question would be: Can Ward's family prove it had some ownership interest in the memorial garden that was destroyed?

The garden was in a courtyard on church property. Ward's relatives maintained the garden and replaced things in it at their own expense. ``By virtue of that, it doesn't become their property,'' Dancigers argued.

The judge let the lawsuit continue until more facts are established. He seemed skeptical that Ferrebee could prevail. ``You know you're not going to be able to prove it's his (Ward's son's) personal property,'' the judge told Ferrebee. Lowe quickly added that he did not think there was any case law to support Ferrebee's position.

Another issue will be: Can the Ward family prove that the pastor and others intentionally caused them emotional distress?

No trial date has been set. KEYWORDS: LAWSUIT VANDALISM

Send Suggestions or Comments to webmaster@scholar.lib.vt.edu