In May 1965, the Yale Law Journal published a paper entitled, “Judicial Intervention in Church Property Disputes: Some Constitutional Considerations,” by Dennis E. Curtis. (For the lawyers reading this, the citation is 74 Yale L.J. 1113.) This paper focuses primarily on Kedroff v. St. Nicholas Cathedral, which we’ve been discussing at length here.
Curtis begins by laying out the legal history of church property disputes. The 1871 case Watson v. Jones (which I discussed in an earlier article) set forth separate rules for hierarchical and congregational churches. According to Watson, in property disputes involving hierarchical churches (such as the Orthodox Church), the civil courts are to defer to the decisions of the highest church authority. According to Curtis, “Watson v. Jones assumes that power [of the tribunal over church members] to be plenery.”
But Watson was not the last word on the subject. Other cases led to a modification of the Watson rule, best summed up by the renowned Justice Brandeis in Gonzalez v. Archbishop:
In absence of fraud, collusion or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise.
Curtis explains that, under Brandeis’ rule, courts must determine (1) the good faith of the church authorities (“absence of fraud, collusion”) and (2) whether the church tribunal has blatantly disregarded its own rules (“arbitrariness”). “Implicit in these cases was the concept that the consent of the members to be governed by the church authorities did not envision fraudulent, arbitrary, or collusive action by those authorities.”
The key question in hierarchical church property disputes, writes Curtis, is not who owns the property, but who has “the right to prescribe beneficial use.” In other words, what body gets to decide who can use the property? Who has the authority to make that decision? In a church like the Orthodox, the decision typically belongs to the highest church authorities — whatever that means.
Curtis points out, “The Supreme Court assumed that the right to prescribe the use of the New York churches lay with the Russian Church [i.e. Moscow]. This assumption allowed the court to categorize the New York Legislature’s action [of vesting control of Russian Orthodox properties in the Metropolia] as a displacement of one church administration with another.” Curtis admits that the legislature’s intent was indeed to vest control in the Metropolia, but “[w]hether Article 5-C did in fact transfer control of the church property, however, depends upon who had the right to prescribe use of the property, before the legislative action.” Was Moscow really the “highest church authority” with the right to prescribe use, or did that designation actually belong to the Metropolia?
The Supreme Court just took it for granted that Moscow had the right to prescribe use of St. Nicholas Cathedral. Justice Reed, in his majority opinion, says,
The record before us shows no schism over faith or doctrine between the Russian Church in America and the Russian Orthodox Church. It shows administrative control of the North American Diocese by the Supreme Church Authority of the Russian Orthodox Church, including the appointment of the ruling hierarchy in North America from the foundation of the diocese until the Russian Revolution. We find nothing that indicates a relinquishment of this power by the Russian Orthodox Church.
“This finding,” writes Curtis, “is the cornerstone of the opinion.” But the Court in Kedroff doesn’t seem to have really taken a hard look at the issue — it “simply assumed that the Russian Church [Moscow] had the right to control use of the property.” It is this assumption that led the Court to interpret the New York legislature’s actions “as an unconstitutional transfer of control of property.” Once you get past the issue of who can prescribe use, the rest of the case is pretty clear-cut. I mean, if Moscow has the right to prescribe use, then the Metropolia doesn’t, and the New York legislature illegally took Moscow’s property and gave it to the Metropolia. But if the Metropolia actually did have the right to prescribe use, then the New York legislature’s actions didn’t transfer ownership at all — they simply reinforced existing ownership rights. Curtis argues that, really, “The crucial constitutional clause should not have been the free exercise [of religion] clause but the due process clause.”
Curtis suggests that the Court may have been saying that the legislature “had no power to deterimine the ownership of religious property because the first amendment bars the state from taking any part in religious disputes.” After all, any state action along these lines involve the “establishment of the religion of the winner and an interference with the free exercise of the loser.” Curtis continues:
If followed to its logical conclusion, however, this argument would bar any court, including the Supreme Court, from deciding the case. The finding of Russian administrative authority may have been the Court’s way of restoring the status quo before New York’s action, but in restoring the status quo, the Supreme Court necessarily made a finding that the Russian Church was entitled to use of the Cathedral. Applying the same logic used to bar New York court action, the Supreme Court must have violated the freedom of exercise of the American Church [Metropolia] and established the Russian Church [Moscow].
To say that courts cannot decide religious disputes creates an impossible catch-22, in which any court action for either side is “establishment.”
One problem with the Kedroff decision is that the Supreme Court didn’t set forth clear criteria for how to determine who has the right to prescribe use. According to Curtis, “the Supreme Court’s assumption of control by the Russian Church obscured the actual first amendment issues in the case. The first amendment is relevant in the beginning — in determining the right to prescribe use of church property — not after that determination has been made or assumed.” In Kedroff, the Court side-stepped this problem by just assuming that Moscow had the requisite rights.
Curtis writes that state can take two general approaches to this problem: it can set up its own arbitrary rules, or it can defer to the property rules of the particular church in the case. Curtis then offers several options and evaluates the pros and cons.
Formal Title Doctrine. It would be incredibly simple for courts to just say that whoever holds formal title to the disputed property has the right to prescribe use. On the other hand, this approach is “an invitation to anarchy within the church government,” since the formal title-holders would have virtually unlimited power over church property. Rather than viewed as trustees holding the property for the benefit of the community, the title-holders would be treated as owners.
In practice, this is sort of the way that many early American Orthodox parishes actually behaved — the parish board of trustees exercised near-absolute authority over church property (and even, in many instances, hired and fired clergy). This made the election of trustees a major — and often contentious — event in parish life. I’ve found old newspaper articles that talk about violence at parish board elections. I think most Orthodox would agree that we don’t want to turn back the clock to those days.
Proportional Division Theory. The idea here is that each church member is a sort of part-owner of church property throughout the world. Disgruntled members could essentially be bought off by the majority. But proportional division theory, says Curtis, “would be almost impossible to implement.” To apply it, the court would have to (1) figure out whether the disgruntled party was actually a member, and (2) determine the dollar amount of the member’s share of the property. Another downside is that this approach would probably result in many, many more property disputes in the courts.
From an Orthodox perspective, this approach is totally unacceptable. The true “owner” of all Church property, according to our theology, is the Lord Jesus Christ. Orthodox Christians are members of his body, yes, but that doesn’t entitle us to temporal ownership of church buildings, land, and money. Such a view is completely foreign to the mind of the Church.
State-Imposed Congregationalism. A state could, theoretically, declare that all religious groups in its borders must follow a congregational model when it comes to church property. You’d have the simplicity of a majority-rules approach, but courts would have to decide who is actually a church member. Do we want courts coming up with their own criteria for church membership? That sounds pretty awful. They could look to each church’s rules for membership, but in hierarchical churches, that usually involves the hierarchy, and you’re right back to an argument about which hierarchy has the authority. And of course, as I’ve heard from more than one church leader, the Orthodox Church is not a democracy. The flip side is that we also aren’t an oligarchy, either, but it’s clear to me that state-mandated congregationalism would not work.
In any event, writes Curtis, state-imposed rules are simply unconstitutional. Rules like these would basically constitute the establishment of religion, since states would be making rules for religious government. In addition, if the state’s rules differ from the rules of the church, the state is in violation of church members’ free exercise rights. The bottom line is that states just can’t impose property rules on churches. Which leads to:
Looking to the Church’s Own Rules. This method is pretty easy to understand, and Curtis doesn’t actually spend a lot of time talking about it. But it’s not without its issues. Particularly in Orthodoxy, our “rules” aren’t always entirely clear. Sometimes, they’re contradictory. And sometimes, the hierarchy, applying the principle of oikonomia, will intentionally not abide by the letter of the law, for the good of the Church. Do we really want secular judges telling us what our rules are, and then trying to apply them? It would be preferable to avoid that sort of thing.
English Trust Theory. Curtis presents “trust theory” as a middle ground between state-imposed rules and an attempt to apply church rules. Underlying this theory is the idea that “the church property is impressed with a trust for the use and benefit of the church members.” Trust theory has been used in English courts (although I’m not sure if it’s still applied). In those cases, the English judges would look at both sides of a dispute and try “to determine which represents the faith of the founders.”
According to Curtis, one problem with trust theory is that it “stifles the natural development of church doctrine.” In Orthodoxy, this is less of a problem, since we don’t actually have a development of doctrine. But we do have a development of doctrinal language, which is apparent to anyone familiar with the Ecumenical Councils. Ultimately, though, I see trust theory as just being unworkable in most church property disputes. If a parish divides over, say, which calendar to use (Old or New), do we want a court trying to figure out which one is “right”? When even the Orthodox Churches themselves don’t have a uniform practice? But at least the calendar is vaguely “doctrinal” (and it’s not like we’ve got churches splitting over Trinitarian theology or something). What about a more typical case, where a parish decides it doesn’t like its bishop and wants to join a different jurisdiction? How does the whole “faith of the founders” standard apply there, when there isn’t even a dispute over the faith itself?
Modified Trust Theory. One solution to the problems posed by the English trust theory is to modify the approach. Here, “the courts would assume that actions of the church authorities were valid unless plainly ultra vires.” Ultra vires is a legal term of art which literally means “beyond the powers.” In this context, an act by church authorities is ultra vires if church rules, canons, etc. did not give them the power to take such an act. I would guess that most actions within a hierarch’s or synod’s jurisdiction would be allowed under modified trust theory. The problem would arise if a bishop tried to impose himself beyond his own diocese, or a synod beyond its own jurisdiction. But as Curtis explains, both English and modified trust theories are unconstitutional, since they establish religion. Which brings us to:
Doctrine of Review. This theory assumes that church members have consented to be governed by church rules, “as interpreted by the church authorities.” But we can’t assume that the consent is absolute. “It is unreasonable,” writes Curtis, “to assume that a member consented to have church rules interpreted unfairly or arbitrarily by the church authorities.” The role of secular courts would be to determine whether an action by church authorities was “patently unfair” or violated church laws “on its face.”
This approach might work where both sides of a dispute recognize a single church authority, but what about a case like Kedroff, where the rival groups each claim authority over the property? There, the court would have to “go back and find a time when the control of the property was undisputed.” Was there a point after that when that undisputed control was surrendered or lost? The answer to that question would determine which authority was recognized — but that’s just a first step, because the court would move on to ask whether the chosen authority’s actions were patently unfair or arbitrary.
Curtis brings up Russian Orthodox Greek Catholic St. Peter and St. Paul’s Church v. Burdikoff, another church property dispute in Lorain, Ohio. According to the facts presented by Curtis, the Lorain parish had been under the Church of Russia until 1925, when it joined the Metropolia. Decades later, in 1957, Fr. George Burdikoff became pastor of the church. Soon afterwards, Burdikoff switched to Moscow’s jurisdiction, and tried to take the parish property with him. The Ohio Court of Appeals ruled against Burdikoff and Moscow, finding that for 32 years, the parish was a part of the Metropolia and Moscow asserted no right of control over it. Moscow couldn’t come along, all those years later, and try to claim jurisdiction.
Curtis admits that, even if a court defers to church decisions, there still might be constitutional issues, because the mere fact of a court enforcing a church decision could be seen as establishment. But Curtis rejects this logic, instead suggesting that the state should take a neutral position on religions, neither helping nor hindering any. He reasons that “the power of the churches to govern is derived from the consent of the members,” and by deferring to church authorities who follow church rules, the courts are “merely enforcing the original consent of the member.” Curtis then makes an important constitutional point:
If the church as a whole can claim a constitutional right to freedom of exercise, it must be derived from the members through the aggregate of their consent. Therefore the church can only claim the protection of the freedom of exercise clause so long as its decisions are made within the framework of its own rules.
The problem with Kedroff, says Curtis, is that the Supreme Court “failed to realize that no matter what methods are used to settle church property disputes, each one will be subject to first amendment attack.” There is an inevitable tension between free exercise on the one hand, and establishment on the other. The key, Curtis tells us, “is to treat the free exercise clause as paramount, and the establishment clause as primarily a means of safeguarding the freedom of exercise.”
This makes sense to me. Think about the Kedroff case: the Supreme Court rejected New York’s actions because they purportedly “established” the Metropolia and violated the free exercise of the Moscow group. But the Supreme Court ruling just reversed things, establishing Moscow (that is, putting the weight of the government behind Moscow) and violating the Metropolia’s free exercise rights (by taking from them property in which they had formal title and which they considered rightfully their cathedral).
In the end, there is no perfect answer, but I do think — at this point in my research — that courts should defer to church authorities, but that this deference should not be absolute or unconditional. If church authorities act in a manner that is utterly and completely at odds with church rules, courts should be able to make a determination. After all, we’re talking, not about dogma per se, but about property within the borders of the United States. We can’t completely escape state involvement when there is a dispute.
UPDATE: To read the full text of Curtis’ Yale Law Journal article, click here.
This article was written by Matthew Namee.