Orthodoxy & the Courts: ecclesiastical questions are unavoidable

Until the early 1980s, some OCA parishes in the Diocese of Eastern Pennsylvania used the Old Calendar. In 1982, then-Bishop Herman Swaiko of Philadelphia ordered all of his parishes to switch to the New Calendar. Predictably, this wasn’t universally well-received. The majority of St. Basil Orthodox Church in Simpson, PA jumped to ROCOR, and this led to a dispute over the parish property. The case, Mikilak v. Orthodox Church in America went to the Commonwealth Court of Pennsylvania in 1986.

The court reviewed the history of Russian Orthodoxy generally and St. Basil’s in particular. The parish was founded in 1904 as part of the Russian Mission, and originally, both the parish congregation and the ruling Russian bishop in America had legal control (by deed) of church property. The parish was formally incorporated in 1924, and the incorporation document stated that the property was “subject to the control and disposition of the lay members” of the parish. (No reference to any hierarchy or diocesan authority.) Three years later, a court transferred the bishop’s interest in the parish property to the parish itself, giving the congregation complete legal control over the property. In 1937, the parish adopted bylaws which again asserted that the property belonged “to all members of the parish.”

All this time – all the way up to 1956 – the parish hadn’t formally recognized any hierarchical authority: not ROCOR, not the Metropolia, and apparently not the Moscow Patriarchate either. I don’t know how this worked, as a practical matter. Who assigned the parish priest? Whose signature was on the antimens? Was the parish never visited by a bishop? Anyway, this is what the court tells us, and we’re further told that in 1956, the parish voted to affiliate with the Metropolia. The Moscow Patriarchate sued (this was just after Kedroff v. St. Nicholas Cathedral, and Moscow wasn’t interested in losing control of any property), but the case settled and the parish kept its building. So from 1956 to 1982, St. Basil’s was a part of the Metropolia/OCA — but this was never put into the legal documents of the parish.

In Pennsylvania, courts use the neutral principles of law approach in church property disputes when there is “no inquiry into ecclesiastical questions.” The burden, said the court, is on the OCA to show either (1) a transfer of property from the parish to the OCA, or (2) “clear and unambiguous language” indicating that the parish created a trust in favor of the OCA. If there was a trust, the parish would remain the property owner, but it couldn’t just do what it wanted, without OCA consent.

As the court saw it, there was neither a transfer of ownership nor a trust. From 1927 (the court order noted above) onward, the parish property belonged solely to St. Basil’s congregation. The parish never created a trust in favor of the OCA. Even the OCA Statute (Article X, Section 8) supports this, said the court, since it asserts that “[t]he parish or parish corporation is the sole owner of all parish property, assets, and funds.” Yes, the Statute goes on to say that the parish officers must “act as trustees of God’s, not man’s, property” and other such ambiguous language. But there’s no creation of a trust. The only caveat is the stipulation that if the parish is abolished, the antimension, tabernacle, and sacred vessels must be surrendered to the diocesan bishop.

On the basis of these findings, the court ruled that the congregation could keep its property when it joined ROCOR, except that it must return the holy objects I mentioned above.

The court doesn’t really get into the obvious issue of defining the parish. It treats the majority as being the parish, but from the OCA’s perspective, the parish was really the minority of members that remained in the OCA. We’re not congregational, so what gives? The answer, according to the court, is that “St. Basil’s exercises congregational control and ownership over its church property.” And the hallmark of “congregational” churches is that the majority rules. So, even though St. Basil’s was a part of the hierarchical Orthodox Church, on the level of parish property, it was treated the same as a congregational church.

I’m sympathetic to the parish majority, who didn’t want to be forced to accept the New Calendar, but the outcome of this case raises some alarm bells. The court quite casually classifies this case as one not involving “ecclesiastical questions,” and it’s this classification that allows the court to employ the neutral principles approach. But the church calendar is an ecclesiastical question. For that matter, the deeper issue of a diocesan bishop’s authority is also an ecclesiastical question. The court was, quite frankly, wrong when it claimed that there were no ecclesiastical questions at issue.

Which gets to a broader point that I keep running into — there is no such thing as an Orthodox court case that doesn’t involve ecclesiastical questions. How could there be? The power of a bishop or synod, the identification of this or that group as the “true” parish — these are profoundly ecclesiastical questions, and they are inherent in every Orthodox property dispute I’ve seen. I’m not saying neutral principles shouldn’t be applied, or even that I disagree with the court’s decision (I actually take no position on it right now). I’m saying that the court was factually incorrect, and had it accurately recognized the ecclesiastical issues in the case, it would have been legally obligated to apply deference to the higher church authorities (in this case, Bishop Herman Swaiko).

Because all Orthodox court cases necessarily involve ecclesiastical questions, we will need to develop a framework more nuanced than the binary yes/no approach currently employed by the courts. We must admit, up front, that courts will decide ecclesiastical questions, in every case, whether they like it or not. It is unavoidable, regardless of whether they use deference or neutral principles. And because it’s unavoidable, we must accept it and develop some guidelines to ensure that judges can do their jobs without involving themselves too deeply in the affairs of the Orthodox Church.

I have no answers at this point, and if anyone out there has any helpful suggestions, I’d love to hear them.

This article was written by Matthew Namee.