The Dionisije Conundrum and why deference doesn’t work

I’m assuming, in this short article, that you’ve read about Serbian Diocese v. Milivojevich. But for those who haven’t: the Serbian Holy Assembly deposed Bishop Dionisije Milivojevich, and Illinois courts basically overruled the deposition on the grounds that the Holy Assembly hadn’t followed its own rules. The US Supreme Court reversed the judgment, holding that secular courts must defer to the decisions of higher church authorities in hierarchical churches. Even if the Holy Assembly doesn’t follow its own rules, because it’s the highest authority in the Serbian Church, its decisions are binding on US courts.

In dissent, Justice Rehnquist pointed out the problems with this approach. For instance, what if a group of Holy Assembly members — but not enough to constitute a quorum for an official meeting — got together and voted to depose a bishop? Would the US courts have to defer to this decision, even though according to the Serbian Church’s own rules, the group of bishops wasn’t enough to constitute the Holy Assembly? According to Rehinquist, you can’t just toss out the church rules and “rubber-stamp” decisions simply because they’re on religious letterhead.

After analyzing that case, I learned that Bishop Dionisije had appealed to the Ecumenical Patriarch, who rejected the appeal and supported the decision of the Holy Assembly. But this raised another question — what if the Ecumenical Patriarch had done the opposite? What if he had, instead, reversed the Holy Assembly decision? And if the Holy Assembly rejected the EP’s reversal, leading to two competing groups in America: one pointing to the Holy Assembly decision, the other to the EP?

This is what I’ve taken to calling the Dionisije Conundrum. According to one interpretation, Canon 17 of Chalcedon grants to the Ecumenical Patriarch the right to hear appeals. Others claim that the EP has no such prerogative. In my hypothetical, to use the deference approach, the secular court would first have to decide what Canon 17 means. Think about what that would involve. The court would have to hear testimony from canonists and historians, weigh competing interpretations, and decide which interpretation would be enshrined as law by the court. All of that would deeply involve the court in a religious matter, but that involvement would be a necessary prerequisite for the court to use the deference approach. If you’re going to defer to the highest authority, you first have to figure out who actually is the highest authority.

There is no easy answer to the Dionisije Conundrum. The only alternative, for the court, would be to refuse to hear the case altogether — to tell the two sides that they’ll have to fight it out themselves, without involvement from the civil authorities. In other words, if the court rejects its role as arbiter, it must accept the likelihood that the parties will take matters into their own hands. It should be clear that this isn’t an acceptable approach. We can’t have rival factions of a church physically battling for control of property. That’s the whole point of having a judicial system — to decide between the parties in as unbiased a manner as possible, and for that decision to be final and enforceable.

I keep coming back to the same idea — that civil court involvement in religious matters, at least in Orthodoxy, is inevitable and unavoidable. The judgments of these courts will not always be in the best interests of Orthodoxy, and we certainly don’t want secular judges getting so involved in church affairs that they are effectively overruling legitimate church authorities. But for a secular court to determine whether a church authority acted legitimately — that is something we may need to accept. This determination will involve religious questions. It won’t fully take into account all the nuances of Orthodox ecclesiology. But at this stage, I just don’t see how it can be avoided.

This article was written by Matthew Namee.