In the Supreme Court cases Kedroff v. St. Nicholas Cathedral and its successor Kreshik v. St. Nicholas Cathedral, the highest court in the country ruled against the Metropolia and in favor of the Moscow Patriarchate in a dispute over church property. But Moscow didn’t win all the time. The 1962 Ohio Court of Appeals case St. Peter and St. Paul’s Church of Lorain, Ohio v. Burdikoff had the opposite outcome, which is set forth in a fascinating judicial opinion.
At the outset, the court offers this introduction to the Orthodox Church as a whole:
The temptation is very great to detail the history of the Orthodox Greek Catholic Churches of the Eastern Confession. The historical development of Christianity in the eastern churches is a subject that is not stressed in our schools, yet out of the Greek Catholic Churches much of the early foundation of the Christian Church was formed. The lives of its saints, and writings of its scholars, are worthy of emulation and study.
Not exactly what you’d expect to read in a secular judge’s opinion, huh? Anyway, onto the case.
Ss. Peter and Paul Church in Lorain, OH was founded in 1912 under the Russian Archdiocese of North America, which in turn was under the Russian Orthodox Church. At the 1924 All-American Sobor, the Archdiocese declared itself to be autonomous of Moscow, transforming itself into the “Russian Metropolia.” The Lorain parish formally submitted to the Metropolia by 1925. In February of that year, the parish filed an action in court to transfer the title of its property from Archbishop Alexander Nemolovsky (who had been the Russian primate in America) to the parish corporation itself. The court agreed, and title was successfully transferred.
From 1925 until 1960, the Lorain parish was served by clergy under the Metropolia. The parish participated in the Metropolia’s sobors, sent contributions to the Metropolia, and otherwise behaved as a parish of the Metropolia. No one questioned or challenged this fact. The parish didn’t split into pro-Moscow and pro-Metropolia factions, and Moscow itself never tried to take control of the parish.
In 1957, Fr. George Burdikoff became rector of Ss. Peter and Paul. Burdikoff had previously been a priest of ROCOR, but he later joined the Metropolia. Upon arrival in Lorain, he apparently received a 10-year contract to serve as the parish priest. (Incidentally, was this a common thing? It seems really strange to give a priest an employment contract, but the court treats it as an established fact.)
At first, Burdikoff continued to serve under the Metropolia, but in 1960, he secretly switched his allegience to Moscow, whose archbishop then appointed Burdikoff as rector of the Lorain parish. In other words, with Burdikoff’s secret transfer, Moscow now began to claim authority over Ss. Peter and Paul Church.
The court was faced with two questions:
- Who has the right to control the parish property – Moscow or the Metropolia?
- Is the Lorain parish still bound to fulfill Burdikoff’s 10-year contract?
The biggest question is the first, and the court spends a lot of time addressing it. To begin with, the court reasoned as follows:
- The Lorain parish was clearly founded under Moscow. (And I should note here that when the parish began in 1912, the Church of Russia was governed by a Holy Synod, rather than a Patriarch. I’ll refer to “Moscow,” but you should take that to mean “Church of Russia.”)
- But in 1925, the parish submitted to the autonomous Metropolia, and Moscow did nothing (with regard to Lorain specifically).
- In an interesting (and, to me, deeply flawed) argument, the court pointed out that Moscow and the Metropolia are both members of the World Council of Churches. The WCC only accepts autonomous churches as members; it follows, then (says the court) that by being a WCC member, Moscow must accept that the Metropolia is in fact autonomous.
- “Thus for 35 years one autonomous church body has occupied the church building, received dues and other monies, supported its superiors, and the superior church body, the Metropolia. In all this time the church which formerly claimed spiritual and temporal jurisdiction [Moscow] has done nothing to oust the group which it calls schismatic from occupation and control of the Lorain Church. It now seeks to do so by the subterfuge of a priest who has switched allegience when it best served his personal interest.”
As a general rule, when a member parish withdraws from a hierarchical church, they can’t take church property with them. Moscow argued that this rule, combined with the Supreme Court’s opinions in Kedroff and Kreshik, means that they should win. The court disagrees. Kedroff and Kreshik don’t apply here, the court says, because in those cases the New York government (first the legislature and then the judiciary) tried to transfer church property from Moscow to the Metropolia. Here, that’s not happening — in fact, Moscow is trying to get the Ohio courts to support a transfer in the other direction, from the Metropolia to Moscow.
The court continually reiterates that the Lorain parish was under the Metropolia for “35 years” without a complaint from Moscow. This is important because it opens the door to the application of several legal principles:
- Adverse Possession. Let’s say that I own a piece of land, but a squatter moves onto that land and starts acting like an owner. I know about the squatter, but I don’t do anything to oppose him. If he does this for long enough, according to the common law principle of adverse possession, he can become the new legal owner of the property. It’s possible to apply this concept to the Burdikoff case — the Metropolia exercised control over the Lorain parish for 35 years, presumably with Moscow’s knowledge but without its opposition. Under adverse possession, if Moscow was the rightful owner, it isn’t anymore.
- Laches. Here, the basic idea is that you can’t wait forever to assert a legal right — an “unreasonable delay” in asserting your rights can be interpreted by the courts as a forfeiture of those rights. Here, if Moscow once had the right to control the Lorain parish, they forfeited that right by failing to assert it for 35 years (which fits any definition of “unreasonable delay”).
- Estoppel. Similar logic applies here. Moscow may be estopped (forbidden, basically) from asserting its rights over the Lorain parish because it waited so long and knowingly allowed the Metropolia to control the parish for 35 years.
- Waiver. More of the same — the idea here being that Moscow essentially waived its rights over the Lorain parish by tolerating the Metropolia’s control over it for so long.
Underlying all of these theories is the principle that you can’t just wait forever to assert a legal right. Whatever rightful control Moscow may once have had over the parish, it lost it by waiting so long.
It’s easier to dismiss Burdikoff’s claim that he had a 10-year contract with the parish. The court found that Burdikoff breached the contract when he submitted to Moscow: “he cannot now be heard to complain that he is deprived of a right under a contract which he himself repudiated.”
Long story short, this is a rare victory for the Metropolia over Moscow.
This article was written by Matthew Namee.