We’ve introduced the first major Supreme Court case dealing with Orthodoxy, Kedroff v. St. Nicholas Cathedral (1952). Today, we’ll begin an analysis of the other landmark case, Serbian Eastern Orthodox Diocese v. Milivojevich (1976). Justice Brennan’s majority opinion includes a lengthy historical background on the case, and I won’t go into all the details here; interested readers can review the full opinion for themselves. (Click here to read the opinion, and click here to listen to the oral arguments.) What follows are the basics.
Prior to 1921, the Serbian Orthodox in America were affiliated, to varying degrees, with the Russian Orthodox Church. By the 1910s, the affiliation was pretty weak, and in 1921 a separate Serbian diocese was founded for America, under the jurisdiction of the Serbian Church. In 1927, a national diocesan assembly adopted a constitution, which was modified and then approved by the Serbian Church.
The diocesan constitution makes it clear that the diocese is “ecclesiastically-judicially” an “organic part of the Serbian Patriarchate,” and subject to all the rules and regulations of the Serbian Church. Because of its “geographical location,” the diocese “enjoys full administrative freedom.” The word “autonomous” isn’t used, but the diocese was clearly given a lot of independence. It was the only diocese in the Serbian Church to have its own constitution.
In 1939, the Holy Assembly of the Serbian Church (composed of all the diocesan bishops of the Church) elected Bishop Dionisije to be the new head of the American-Canadian Diocese. Eventually, the diocese grew to the point that it requested elevation to the status of Metropolia, with three auxiliary bishops appointed to operate under Bishop Dionisije. Diocesan representatives made a formal request before the Serbian Holy Synod in 1962, and the Synod responded by appointing a delegation to visit America and study the proposals. The delegation was also tasked with confronting Bishop Dionisije about numerous complaints it had received about him over the years.
After this visit, the Holy Assembly (all the bishops) recommended that the Holy Synod (the executive committee, essentially) institute disciplinary proceedings against Bishop Dionisije. The Holy Synod immediately suspended Dionisije pending the investigation, and appointed Archimandrite (future Bishop) Firmilian as temporary administrator of the diocese.
After this, the Holy Assembly responded to the diocesan request for elevation to Metropolia status with auxiliary bishops. But rather than grant the request, the Holy Assembly instead divided the American-Canadian Diocese into three separate dioceses. Dionisije — who was suspended at the time — was appointed Bishop of the Middle Western Diocese.
Dionisije rejected the Holy Assembly’s reorganization of the diocese, claiming that it violated the diocese’s autonomy guaranteed by its constitution. The bishop also refused to accept his suspension, arguing that it didn’t comply with the constitution and laws of the Serbian Church. Dionisije told the temporary administrator, Fr. Firmilian, that he no longer recognized the decisions of the Holy Assembly and Holy Synod, declaring both bodies to be “communistic.”
Things get kind of complicated from this point. The Holy Synod appointed a commission of bishops to meet with Dionisije, who continued to reject the Holy Assembly’s decisions and demanded that he be given all accusations against him in writing. The commission declined, pointing out that Dionisije’s defiance of the Holy Assembly was wrongful conduct in and of itself. On June 27, 1963, the Holy Assembly voted to remove Dionisije as bishop, based solely on his acts of defiance following his suspension and on his violation of the oath he took upon becoming a bishop. In February 1964, the Synod referred the case to the Holy Assembly, which tried Dionisije and unanimously found him “guilty of all charges and divested him of his episcopal and monastic ranks.”
Even before this defrocking, though, Dionisije had taken his case to the US courts. In July 1963, he sued to prevent the temporary administrators from interfering with diocesan assets. The trial court ruled in favor of Dionisije, but the appellate court reversed the decision and ordered a new trial. After the new trial, the trial court made the following decisions:
- The defrocking of Bishop Dionisije was legitimate.
- The diocesan property was held in trust for all members of the diocese.
- The division of the American-Canadian Diocese into three dioceses was “improper and beyond the power of the Mother Church.”
- Archimandrite Firmilian was the valid administrator of the whole diocese.
Next, the case went to the Supreme Court of Illinois, which affirmed most of the appellate court’s decisions, but reversed the trial court’s conclusion that Dionisije’s defrocking was legitimate. According to the Illinois Supreme Court, the Serbian Church had not followed its own constitution and penal code when it defrocked Dionisije. One key argument: Dionisije had been properly suspended, but he hadn’t been validly tried within one year of his indictment — a violation of church rules. As Justice Brennan puts it, “Thus, the court purported in effect to reinstate Dionisije as Diocesan Bishop.”
According to Justice Brennan and the majority, this is totally unacceptable — the Illinois Supreme Court can’t substitute its own interpretation of church rules for the judgment of the Holy Assembly. “For where resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity,” writes Brennan, the civil courts are obliged to accept the decisions of church authorities “as binding on them.”
Basically, the idea is that it is just way too dangerous for civil courts to get in the middle of a religious dispute. They must always defer to the highest ecclesiastical authorities — period. “If the civil courts are to inquire into all these matters, the whole subject of the doctrinal theology, the usages and customs, the written laws, and fundamental organization of every religious denomination may, and must, be examined into with minuteness and care, for they would become, in almost every case, the criteria by which the validity of the ecclesiastical decree would be determined in the civil court.” This logic is particularly convincing in the case of Orthodoxy: rather than a single legal code or constitution, we have diverse canons, local traditions, internal church documents, Patristic counsels, Scriptural interpretations, and any number of other factors to consider — and that’s even before you get to the tricky concept of oikonomia.
In a footnote, Brennan quotes from Watson v. Jones: “It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men in each are in reference to their own.” This is a compelling argument, even apart from any religious freedom concerns. Who better can deterimine the right outcome in a religious dispute — a secular court unfamiliar with church rules and traditions, or the church authorities who are well-versed in such matters?
Part of the problem in this case is that the Illinois courts abused the authority they (arguably) may have had. They basically decided the whole case of Dionisije’s defrocking on a technical point — the expiration of a one-year deadline for a church trial. The Illinois courts did this, says Justice Brennan, “under the guise of ‘minimal’ review under the umbrella of ‘arbitrariness'”. Brennan seems to recognize that, just because the absolute letter of church law wasn’t followed, secular courts can’t, on that basis, overturn church decisions. We must allow church authorities more flexibility than we would, say, the federal government.
The majority’s holding is that the US Constitution permits hierarchical churches to establish their own governing rules and to adjudicate their own disputes. When churches do this, their decisions are binding on civil courts.
Justice White concurred in the judgment, pointing out that secular courts can decide (1) whether the Serbian Church is hierarchical, and (2) whether the diocese is part of the Serbian Church. The mere fact that “church authorities may render their opinion” on those questions “does not foreclose the courts from coming to their independent judgment. But once both questions are answered in the affirmative — as they were in this case — Justice White agrees that church decisions are binding on civil courts.
Next, we’ll discuss the dissenting opinion of Justice Rehnquist (future Chief Justice of the Supreme Court).
Oh, one other thing — right this moment, I’m listening to the oral arguments (which you can hear via the link at the top of this article). The attorney arguing against judicial intervention in church decisions said that when the church authority’s act is one of fraud or collusion — if they “don’t actually exercise their judicial function” under church rules — then civil courts can review the church decision. The attorney doesn’t actually think that there is a practical case in which the fraud/collusion exception would apply (frankly, he thinks it’s totally improbable), but… well, he must not be familiar with church history, because I can think of plenty of instances in which church bodies engaged in fraud or collusion. Anyway, more to come…
This article was written by Matthew Namee.