Neutral Principles of Law and the Problems of Deference

So far, we’ve been discussing the role of civil courts in church property disputes in the context of the “deference” approach: that is, the courts will defer to the decisions of the highest church authorities. This was the position taken by the Supreme Court in both of its major Orthodox cases, Kedroff v. St. Nicholas Cathedral and Serbian Diocese v. Milivojevich. Not long after Milivojevich, however, the Court opened the door to an alternative approach.

In the 1979 case Jones v. Wolf, the Supreme Court endorsed the “neutral principles of law” approach to handling church disputes. Under this method, secular courts are to use neutral, secular principles — which means that they can’t use religious or ecclesiastical principles. Courts applying neutral principles focus on official documents — property deeds, local parish charters, national and Mother Church constitutions, and state statutes — and try to interpret them in a non-religious manner. As Kent Greenawalt puts it in “Hands Off! Civil Court Involvement in Conflicts Over Religious Property” (Columbia Law Review, Dec. 1998), “the Court indicated that civil courts need not defer to higher church authorities if they instead rely on authoritative documents that can be interpreted without invoking religious understandings.” But this approach presupposes that you can accurately interpret authoritative religious documents while intentionally ignoring their religious context.

After all, we’re talking about church governance here. And no church body better illustrates the inherently religious nature of church governance than the Orthodox. In Orthodoxy, almost any dispute can be interpreted as theological. We regard the Church as the Body of Christ. Matters of church governance are rooted in canons promulgated by the same Ecumenical Councils that expounded matters of faith. In church governance disputes, there is always the danger of a break in communion — which is a sacramental (and thus profoundly religious) matter. You simply cannot wall off our ecclesiology from our sacraments and theology. It cannot be done, any more than can you draw a hard-and-fast line between “Tradition” and “traditions.” Orthodoxy does not tolerate such strict dichotomies.

In his majority opinion in Milivojevich, Justice Brennan seemed to recognize this, but his answer was just as dangerous. He wrote, “[I]t is the essence of religious faith that ecclesiastical decisions… are to be accepted as matters of faith whether or not rational.” On the one hand, this is absolutely right: when the Church, led by the Holy Spirit, makes a decision, it is to be accepted as a matter of faith. When the Church said that Jesus Christ is fully God and fully human; when it professed three divine persons but only one God, acknowleding the Trinity while affirming monotheism; when it recognized the unknowability of God’s essence but asserted that created humans can participate in his uncreated energies — in all these cases and more, Orthodox Christians must accept these radical, challenging assertions as matters of faith. But when men clothed in hierarchical vestments and claiming to be the Church declared it heresy to depict the enfleshed Word of God; when they condemned St. Photius and endorsed the Filioque; when they proclaimed from Florence a union with a heretical Roman Catholic Church — in all these cases and more, Orthodox Christians are obliged to reject these decisions. When, in the 16th century, the Orthodox bishops of the Polish-Lithuanian Commonwealth subordinated themselves to Rome at the Union of Brest, the local Orthodox laity rightly rejected their apostasy and went for many years without any hierarchs, depending on long-distance communication with the Orthodox patriarchates.

My point is that you simply cannot say, as Justice Brennan did, that ecclesiastical decisions are to be accepted as matters of faith. They are, only if they are in accordance with the Holy Spirit — but who decides that? Certainly not a secular American judge. At the same time, you cannot simply say, as neutral principles advocates might, that church documents can be interpreted, and church disputes resolved, without reference to doctrine. I would contend that even when both sides of a dispute agree that it is not about doctrine, a doctrinal element is still inevitably present. Because any time you’ve got a dispute about the role of the hierarchy, or the prerogatives of a Holy Synod, or the power of a church board, you are dealing with an ecclesiological question. And in Orthodoxy, it is impossible to separate ecclesiology from theology and the sacraments. The whole life of the Church is sacrament, and theology.

I like the concept of neutral principles — I like the idea of an unbiased court reviewing all the evidence in a sincere, respectful manner and trying to come up with a just solution. But the notion that this could be done in a way that doesn’t touch on matters of faith is just untenable.

In the article I quoted earlier, Kent Greenawalt argues, “Rigid deference is constitutionally acceptable only if a denomination is organized so that the highest church authorities are legally unconstrained; it is not acceptable for denominations that have a balance of local and general authority, or that provide significant restrictions on the decisions of higher authorities.” As much as some bishops might like to think so, Orthodoxy is not a church in which the highest church authorities are legally unconstrained. Thus, rigid deference, applied to Orthodoxy, is probably unconstitutional.

Greenawalt recommends a modified version of the neutral principles approach, “one that allows courts to consider a broad range of documents and also settled principles and practices of church authority that bear clearly on matters of governance and control of property.” Civil courts should defer to church authorities, says Greenawalt, when those authorities act legitimately and according to their own rules.

Personally, I still don’t know what I think courts should do. What I’m certain of is this: neither strict deference nor secular neutral principles are a great fit for Orthodoxy. In the coming weeks, as we continue to examine court cases involving the Orthodox Church, we’ll try to figure out what approach (or approaches) might work better.

This article was written by Matthew Namee. To contact Matthew, email him at mfnamee [at] gmail [dot] com.

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