Thinking Anglicans

Virginia court ruling issued

Updated again Friday night and republished

The long-awaited Virginia court ruling has arrived. It is favourable to the breakaway congregations.

The PDF file containing the full text of it is here (4.5MB).

Episcopal Café has this summary of the situation, Judge rules: Advantage CANA.

Julia Duin has Breakaway Episcopal parishes awarded property, assets in the Washington Times.

No doubt other reports will follow. The full report is 88 pages. To give the flavour, two excerpts are reproduced below the fold.

Lunchtime additions

Diocese of Virginia press release

Anglican District of Virginia press release and CANA press release.

Evening additions

Associated Press Matthew Barakat Fairfax judge rules in favor of breakaway congregations

Reuters Michael Conlon US judge rules for Episcopal Church secessionists

Washington Post Michelle Boorstein Judge’s Initial Decision Favors Breakaway Churches

Ruth Gledhill has this blog article, Judge rules for Virginia ‘orthodox’.

Friday night additions

Episcopal News Service Office of the Presiding Bishop, Diocese of Virginia respond to preliminary court ruling
and also Mary Frances Schjonberg Virginia judge issues preliminary ruling on application of state statute

Fairfax Times Gregg MacDonald Fairfax judge rules against Episcopal Church

Letter from the Bishop of Virginia

Letter from the Reverend John Yates

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. 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 caselaw 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.

——-

VI.) Conclusion:

ECUSA/Diocese argue that the historical evidence demonstrates that it is only the “major” or “great” divisions within 19th-century churches that prompted the passage of 57-9, such as those within the Presbyterian and Methodist Churches. ECUSA/Diocese argue that the current “dispute” before this Court is not such a “great” division, and, therefore, this is yet another reason why 57-9(A) should not apply. The Court agrees that it was major divisions such as those within the Methodist and Presbyterian churches that prompted the passage of 57-9. However, it blinks at reality to characterize the ongoing division within the Diocese, ECUSA, and the Anglican Communion as anything but a division of the first magnitude, especially given the involvement of numerous churches in states across the country, the participation of hundreds of church leaders, both lay and pastoral, who have found themselves “taking sides” against their brethren, the determination by thousands of church members in Virginia and elsewhere to “walk apart” in the language of the Church, the creation of new and substantial religious entities, such as CANA, with their own structures and disciplines, the rapidity with which the ECUSA’s problems became that of the Anglican Communion, and the consequent impact-in some cases the extraordinary impact-on its provinces around the world, and, perhaps most importantly, the creation of a level of distress among many church members so profound and wrenching as to lead them to cast votes in an attempt to disaffiliate from a church which has been their home and heritage throughout their lives, and often back for generations. Whatever may be the precise threshold for a dispute to constitute a division under 57-9(A), what occurred here qualifies.

For the foregoing reasons, this Court finds that the CANA Congregations have properly invoked 57-9(A). Further proceedings will take place in accordance with the Order issued today.

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Pat O'Neill
Pat O'Neill
12 years ago

The judge has fallen for the CANA canard of the Anglican Communion as a worldwide church…a description that flies in the face of the very reasons for there being a Church of England and Anglicanism at all.

I also cannot see how, in a nation with separation of church and state so firmly established in constitutional law, a court can rule that a state statute trumps the internal canons of a church.

Paul Davison
Paul Davison
12 years ago

Before people run off in all directions, a word of caution. First the Washington Times headline is wrong; the court awarded nothing. All the court said was that the situation fell within the definition of the Virginia statute. The court will next hear arguments on whether application of the statute violates the U.S. Constitution. The basic applicability of the statute was addressed first, because if the court had found the statute did not apply, there would have been no need to look at its constitutionality. This is a fairly basic principle of U.S. law. (By the way, although I am… Read more »

Weiwen
12 years ago

It’s important to note that:

the particular law that underpinned the verdict is only active in Virginia. I don’t believe Texas, Pennsylvania, or California have similar laws, meaning that breakaway churches there will have no similar grounds. American laws can vary substantially state by state.

this is going to get appealed. the ruling doesn’t give the property to CANA yet. it rules that a division has occurred in the Anglican Communion. the court, or an appeals court, could still find that the particular statute is unconstitutional, based on the broad latitude given to religious groups.

James Crocker
James Crocker
12 years ago

“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”

It seems that Griswold style Episcopal-speak doesn’t fly in a court of law.

christopher+
christopher+
12 years ago

It hardly seems likely that, in the end, US courts will seek to intervene in canon law as regards Episcopal Church property. Imagine, for example and comparison, a Virginia court ruling that a breakaway Roman Catholic parish – perhaps one not willing to be closed down or merged, were the case to arise – did not need to heed their dioceses and bishops and, in fact, were entitled to keep the parish property, no matter what the church hierarchy said!

Jim Pratt
Jim Pratt
12 years ago

Weiwen is quite right. Because it is based on a particular and unique Virginia statute, this decision will have no impact in any other state. I’m not sure that it would even give any help to a Virginia congregation which attempted to join the Southern Cone or some other jurisdiction.

robroy
robroy
12 years ago

It was a bizarre strategy for David Booth Beers to argue that there is no division. Katherine Jefferts Schori used the term, herself in a speech a year ago. (Now, of course, they are very careful not to use the “d” word.) Unlike pornography, which “I know it when I see it”, division is measurable and objective. In particular, the judge simply states, “The Court finds that, under 57-9(A}, a division has occurred within the Diocese. Over 7% of the churches in the Diocese, 11% of its baptized membership and 18% of the diocesan average Sunday attendance of 32,000 have… Read more »

John Robison
John Robison
12 years ago

As I recall, the law in question dates from a time when the State was engaged in treason, so it’s valididty under the US Constitution is questionable.
Also, the Suprem Court decisions all line up in TEC’s favor. Unless, of course, the neo-Con dominated court decides to bow to the tortured Dominionist logic and lets this travesty stand.

ruidh
ruidh
12 years ago

“I also cannot see how, in a nation with separation of church and state so firmly established in constitutional law, a court can rule that a state statute trumps the internal canons of a church.” The court hasn’t even considered the constitutional issues yet. Rather than issuing a final order, the court has ordered more briefing on the constitutional questions which are substantial. “”The Court will hear oral argument on the constitutional issues in accordance with the Order issued today. The Court will hear oral argument on the constitutional issues in accordance with the Order issued today. The obvious advantage… Read more »

Weiwen
12 years ago

As an addendum to my earlier comment, one should also keep in mind that you can never tell how a legal case will come out. where the law has gray areas, it can depend a lot on the judge’s political beliefs, and the law is rather gray I believe it is proper for TEC to demand that congregations follow canon law, unless that law conflicts with higher principles like state or federal law or constitution. but we must remember, this is just buildings. re robroy’s comment. I suspect that David argued that division is not possible in a hierarchical church.… Read more »

Cynthia Gilliatt
Cynthia Gilliatt
12 years ago

“The diocese of Virginia was in negotiations for amicable division till the vindictive “take no prisoners” interventions by Katherine Jefferts Schori (who was described by Bp Lee as a “new sheriff in town”). “ As has been pointed out many many times, this is simply not true, and saying it over and over will not make it so. It was the CANA churches that filed the lawsuits. The Virginia law was designed post-civil war to deal with disposition of property for churches like the Presbyterian and Baptist, which had in fact divided nationally. CANA may claim a large chunk of… Read more »

Caelius Spinator
Caelius Spinator
12 years ago

“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.”

Really, the man bites dog headline is in that last clause, “Court rules Episcopal breakaway group is branch of Episcopal Church.”

Ford Elms
Ford Elms
12 years ago

Robroy, Whatever one’s position on the presenting issue, the simple fact is that Church Tradition clearly considers church buildings to be gifts given to God by the people who built them, and held in trust by the Church. Frankly, I don’t care what a secular judge says. Societal concepts of ownership of property do not apply. The Virginia schismatics might well get control over the buildings they now worship in, but the fact they are trying to do so and the way they try to justify this are yet more examples of how little they understand of the tradition they… Read more »

JCF
JCF
12 years ago

“The judge has fallen for the CANA canard of the Anglican Communion as a worldwide church”

Among several CANA canards, Pat: including the whopper that this is some huge STAMPEDE of embattled martyrs, seeking safe harbor—rather than a few squeaky wheels (w/ sticky fingers, to mix metaphors) who just want shop bishops, to protect their hivemind.

Margaret
Margaret
12 years ago

Yes Robroy — the “new sheriff” seems to have managed to turn a win/win (diocese got money/ parishes got buildings) into a lose/lose (diocese spends endless money on court cases/ parishes have no certainty of their future).

Really sad for all concerned.

Pat O'Neill
Pat O'Neill
12 years ago

“The diocese of Virginia was in negotiations for amicable division till the vindictive “take no prisoners” interventions by Katherine Jefferts Schori (who was described by Bp Lee as a “new sheriff in town”).”

Would that be like an “amicable divorce” in which one party gets all the property and the other party nothing?

Margaret
Margaret
12 years ago

I think one of the overlooked passages in the judgment is this one: This Court views each of the four experts who testified as sincere professionals, each bringing a wealth of expertise to their task, and each attempting in good faith to assist the Court in its obligation to interpret 57-9. Having said that, the Court finds the testimony of the two CANA congregation experts-Dr. Valeri and Dr. Irons-to be more persuasive and convincing. The Court found the opinions of the CANA experts to be tied directly to the particular and pertinent historical record relevant to the instant case. Some… Read more »

Jerry Hannon
Jerry Hannon
12 years ago

Given the norms of the judicial process in the United States, I never look to the ruling of a single jurist as what is likely to prevail, whether it favors what I believe or whether it is in opposition. Let’s face it, we have some individual judges — speaking generally, and not necessarily about the trial judge — who occasionally, or more frequently for a few, provide bizarre and ultimately non-sustainable judgments. After the appeals process in the Commonwealth of Virginia is completed we will have a more reliable understanding of what will prevail and, as others have already noted,… Read more »

Pat O'Neill
Pat O'Neill
12 years ago

“Yes Robroy — the “new sheriff” seems to have managed to turn a win/win (diocese got money/ parishes got buildings) into a lose/lose (diocese spends endless money on court cases/ parishes have no certainty of their future).

Really sad for all concerned.”

The only thing “sad” about this, Margaret, is that a group who call themselves “conservative” can have so little regard for canon law.

robroy
robroy
12 years ago

Margaret, agreed. The situation for the diocese of Va is “heads, you win; tails, I lose.”

If they win the lawsuits and the empty buildings and turn out tens of thousands of Christians out of the churches, the amount of ill will generated would be staggering. If they lose in court, they will have spent millions for nought (and probably would be liable for legal costs for the ADV).

People on both sides need to be saying stop the insanity.

tantallon
tantallon
12 years ago

What is quietly remarkable about this judgment, when it is set beside the popular language of our debate, is ithe overriding sense of care and patience and respectful deference to the good faith of the commitment of each party to this dispute that it conveys. As it moves to its perhaps dry or even arcane legal conclusion, not pretending to weigh matters of faith, but weighing matters of law, this judgment manages to mount an incidental discourse that capturing the deep sincerity and gravity of this debate, the commitment of its partisans and the outstanding reconciling examples of Bishop Lee… Read more »

Charlotte
Charlotte
12 years ago

I’m the outlier on this one, I’m sure, but reflecting on the article by Mark Oakley posted earlier, I have to agree with the ruling of the Virginia judge. There has been a division, not only within the Episcopal Church in America, but throughout the Anglican Communion. It is, as Mark Oakley said, a division between those who are willing to adhere to Anglican principles of moderation and comprehensiveness, and those who are led by their Calvinism to seek a pure church of the elect. Such divisions aren’t without precedent — a much earlier one gave us the Dissenters, whether… Read more »

toujoursdan
12 years ago

It’s not like PBKJS has a choice.

She is bound to protect the assets of the TEC or could be subject to a lawsuit herself for not carrying out her fiduciary responsibility as chief officer of the TEC, a corporation according to US law.

robroy
robroy
12 years ago

To Pat O’Neill: The orthodox have little regard for just the Dennis canon. We see it as merely a way to separate us from our churches so that they can be sold and turned into restaurants or scandalous night clubs. The liberals have contempt for rest of the canons. The utter disregard for the canons in the deposition of the godly Bp Cox have disqualified them of ever citing canon law with any credibility.

counterlight
counterlight
12 years ago

I must admit that I enjoy all the macho metaphors being used by the right-wingers to describe Bishop Schori. So much for the usual mushy, squishy, wooly, soft metaphors used to describe liberals and progressives. These same folk who so value aggressive decisive action whimper when when some lefty weeny turns around and kicks their butts. She’s finally standing up to the subversives after years of her predecessors looking the other way, and saying anything to avoid conflict. I would imagine that there are other churches, Rome for example, who are watching this with great interest. There are few churches… Read more »

Margaret
Margaret
12 years ago

Pat — you commented –The only thing “sad” about this, Margaret, is that a group who call themselves “conservative” can have so little regard for canon law.

If only that were so, how much better off we would be.

No rather this whole situation is very deeply saddens the whole of Anglican church, and even further afield than that.

Göran Koch-Swahne
12 years ago

“It is favourable to the breakaway congregations.”

No it isn’t.

I dont know where you get this misapprehension from. It says that the Virginia law exists and is going to be examined (constitutionality & c. ; = ).

The end result will quite possibly be the revocation of this law due to it’s sordid background.

And don’t forget the 1st Amendment!

Göran Koch-Swahne
12 years ago

Margaret wrote: “The Court found the opinions of the CANA experts to be tied directly to the particular and pertinent historical record relevant to the instant case. Some of the significant opinions offered by ECUSA/Diocese experts did not appear to be so tethered; rather, they appeared to be expressions of opinion based on the experts’ general knowledge.” Margaret seems to be alluding to the loud propaganda claiming that the 1930ies and 1830ies congregations of Truro and Falls Church were on the ground before TEC and the American Revolution… But they were only on the ground before the American Civil War… Read more »

Göran Koch-Swahne
12 years ago

Robroy wrote: “It was a bizarre strategy for David Booth Beers to argue that there is no division.” This is dependent on the “definition of if”, as you say in America. No sane person outside of aggressively antagonistic American Politics would ever think of less than 10 % as “a division”. A split perhaps… B e i n g divisive seems the natural state where you come from, but it is not “a division”. Robroy wrote: “This truly is a tragedy. The diocese of Virginia was in negotiations for amicable division…” We have heard this line for a couple of… Read more »

Margaret
Margaret
12 years ago

Goran at 7:10 The passage you quote as being my words were actually the words of the judgment. I thought I had made this clear in the way they were set out as a separate paragraph with an intro about how they were a neglected passage. Perhaps I should have also used quotation marks. The final sentence is mine — which is why I put it separately. While I do not wish to put words into the judge’s mouth, the context would suggest that he was commenting on the issue of how the words “division” and “church” were read at… Read more »

robroy
robroy
12 years ago

When the largest churches of the diocese vote overwhelmingly to disassociate, most people would call it a division, prima facie. Judge Bellows said division, division of the first magnitude, has occurred. Mr Koch-Swahne is free to call it a split, unpleasantness, tiff, etc. Then Mr Koch-Swahne apparently disagrees with the contention the dio of Va broke off negotiations on the instigation of KJS. Hmmm, we have Bp Lee’s own words describing the “new sheriff in town.” We also have KJS’s own words in the deposition video: Q. You instructed the Episcopal Church to intervene; did you not? A. To join… Read more »

robroy
robroy
12 years ago

It seems that the diocese of Ohio is now preparing to sue five churches despite having touted a month ago that they had worked out a way to peacefully coexist. Details at livingchurch.org but in particular, we have (The Living Church article has embedded links to actual references): “The question of pressure by The Episcopal Church to pursue litigation possesses additional credibility because during deposition testimony in November in the case involving 11 congregations which withdrew from the Diocese of Virginia, Presiding Bishop Katharine Jefferts Schori admitted under oath that she had personally intervened to prevent a protocol from being… Read more »

Jon
Jon
12 years ago

What bothers me most in the opinion is that it seems to say that the AC has already divided. While it is certainly true that variuos member churches have problems with each other and this will quite probably lead to a schism in the AC, as far as I’ve ever heard all the Primates’ are still invited to that meeting and all the provinces are still part of the ACC. Do any of the British commenters have any response to an American judge declaring the Communion to be already ripped apart? Has any one told Archbishop Williams that his efforts… Read more »

Göran Koch-Swahne
12 years ago

So you were talking of something alltogether different then, Margaret?

Well, it allowed you to change the subject…

Göran Koch-Swahne
12 years ago

Robroy,

I wasn’t addressing the apparent anger (divisiveness) among the anti Moderns, but the effects of their anger.

And no, I don’t really think that less than 10% amounts to a “division”. Show me 50% and I would be more interested. Sorry.

Pat O'Neill
Pat O'Neill
12 years ago

And exactly why should the executive officer of TEC *not* take action to prevent her diocesan bishops from setting precedents that could seriously damage the church in the future?

Jerry Hannon
Jerry Hannon
12 years ago

“No rather this whole situation is very deeply saddens the whole of Anglican church, and even further afield than that.” – posted by Margaret. Now, take a deep breath, Margaret, and repeat after me: There is NO Anglican “church.” There is only an Anglican Communion of Churches, including the Church of England, the Scottish Episcopal Church, the Church in Wales, the Church of Ireland, The Episcopal Church, the Anglican Church of Canada, and so forth. You must be confusing us with the Roman Catholic Church, as if your hopes were that we could become Roman in structure and discipline, and… Read more »

robroy
robroy
12 years ago

“And exactly why should the executive officer of TEC *not* take action to prevent HER diocesan bishops…” This shows little understanding of the Episcopal Church. The presiding bishop has basically no authority within a diocese. For example (from Jim Naughton’s site), “the Presiding Bishop does not have the authority to prohibit Bishops Diocesan from authorizing the blessing of same sex unions in their dioceses nor can she prohibit future General Conventions from authorizing such blessings.” Again, Mr Koch-Swahne may call the division what he wants. Judge Bellows seems to believe that ~20% of the membership splitting off is more than… Read more »

Paul Davison
Paul Davison
12 years ago

Any reason why this Virginia statute wouldn’t apply to a Roman Catholic parish that disagreed with the Pope?

Kennedy
Kennedy
12 years ago

“Do any of the British commenters have any response to an American judge declaring the Communion to be already ripped apart?”

According to other documentation the only body which can add or remove provinces from the AC is the Consultative Council. AFAIK, no province has requested to be removed, and the provinces have not been asked to approve the removal of a province.

The AC may be in disagreement, but no province has left the communion, so it is not divided.

Unless you know different.

Kennedy

Pat O'Neill
Pat O'Neill
12 years ago

“The presiding bishop has basically no authority within a diocese. For example (from Jim Naughton’s site), “the Presiding Bishop does not have the authority to prohibit Bishops Diocesan from authorizing the blessing of same sex unions in their dioceses nor can she prohibit future General Conventions from authorizing such blessings.”

But she does have the authority to prevent the canons of her church from being violated…one of those canons that parochial property is held in trust for the diocese and diocesan property for the national church.

Charlotte
Charlotte
12 years ago

Robroy, a frequent commenter on Stand Firm and TitusOneNine, writes that in the Episcopal Church “the presiding bishop has basically no authority within a diocese.” Yet, after her election, it was necessary for the Network dioceses immediately to demand something called “Alternative Primatial Oversight” lest they come under her non-authority. Why was this, Robroy?

In recent weeks, John-David Schofield uncanonically attempted to transfer himself with his diocese to the Province of the Southern Cone, lest he come under the Presiding Bishop’s non-authority. Why was this necessary, Robroy?

margaret
margaret
12 years ago

Goran at 4:48 I did not change the subject. I gave a fuller explanation of why I thought this passage of the judgment was significant, but that was the reason that I posted it in the first place. If you look at my 9.53 my current explanation was the topic of the sentence I put below the quote ie the same topic that I have expanded on here. I am quite happy if you (and others) do not wish to discuss this point, but I do object when you falsely accuse me of doing something that I have not done.… Read more »

Margaret
Margaret
12 years ago

Jerry — re your “there is no Anglican church”

Regrettably Standfirm has come to the same conclusion and now refers to TEC as TEO. The Episcopal Organisation.

Personally, I do not agree this, and I am sad to see such name calling happening, though I can understand why they might feel so after so many doubtful actions in recent years.

Cheryl Va.
12 years ago

Robroy commented that some have an attitude of “Take no prisoners continues” That’s what has aroused the Shekina’s attention and why she doesn’t give up and withdraw despite the rudeness and ignorance of some players. Some one had to pick up all the “no prisoners” and “forsaken” souls. Since the Christians refused to acknowledge them, the only soul left to “catch them” was the Shekina – under her covenant of peace as promised to the Daughter of Zion and the Gentiles. Such souls might not end up in “heaven” with the “good” Christians, but they are within God’s realms. For… Read more »

Göran Koch-Swahne
12 years ago

“Judge Bellows seems to believe that ~20% of the membership splitting off is more than a minor tiff.”

All this will prove very interesting, I’m sure – and the outcome will probably be full of surprises ; =

Göran Koch-Swahne
12 years ago

Margaret wrote: “I did not change the subject. I gave a fuller explanation of why I thought this passage of the judgment was significant, but that was the reason that I posted it in the first place. If you look at my 9.53 my current explanation was the topic of the sentence I put below the quote ie the same topic that I have expanded on here.” Why are you making things up, Margaret? I misunderstood; that is understood “relevant to the instant case” to refer to the wide spread Propaganda about the actual Parishes (Truro and Falls Church) at… Read more »

Göran Koch-Swahne
12 years ago

The change of subject I perceived was really the next part of your 8:45, transmogrifying the good Judges meticulous juridical method (Do read Tantallon’s 12:23 again!) into your own critique of what you p e r c e i v e as TEC’s Modern Errors and double speak. You tried to “cut Pipes in the Willows”, as the Swedish saying goes. Margaret wrote: “I am quite happy if you (and others) do not wish to discuss this point, but I do object when you falsely accuse me of doing something that I have not done. That is also why I… Read more »

DGus
DGus
12 years ago

“Any reason why this Virginia statute wouldn’t apply to a Roman Catholic parish that disagreed with the Pope?”

The Virginia “division” statute applies only where property is held for the benefit of a congregation by court-approved trustees. The RCC does not and would not use this method, because it is out of keeping with a truly hierarchical polity.

EPfizH
EPfizH
12 years ago

How does Lambeth Palace, the ACC and the Primates view this. This judge has carefully reviewed the intervention of +Akinola, (and Uganda) in the U.S and, I believe it can be substantially argued, creditec him for the “division” Without his intervention, the “division”, may not have happened. True, I believe +Cantaur’s refusal of a Lambeth invitation came after the record may have been closed, but, by then the damage was done. This decision effectively eliminates the possibility of a hierarchical church in Virginia under its 57-9 statute. The ruling was based on the judge’s interpretation of the words “branch” and… Read more »

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