Orthodoxy & the US Courts

St. Raphael Hawaweeny

Prior to Bishop Raphael Hawaweeny’s death in 1915, pretty much all the Syrian (Antiochian) Orthodox in America recognized his authority. This included St. George Syrian Orthodox Church of Grand Rapids, Michigan, which was incorporated in 1910. The parish was under St. Raphael, and all seemed to be well. But in February 1915, St. Raphael died, and his flock split: some recognized the authority of the Patriarch of Antioch, and others the authority of the Russian Holy Synod and its North American Archbishop. This marks the beginning of the “Russy-Antacky” schism, which divided Antiochian Americans for many years.

This split not only divided St. Raphael’s diocese, but individual parishes as well. At St. George in Grand Rapids, the priest came back from St. Raphael’s funeral and told his congregation to sign a declaration of loyalty to the Russian archbishop. Not everyone complied, and pro-Antioch parishioners insisted that their priest commemorate the Patriarch of Antioch in the Divine Liturgy. Meanwhile, the pro-Russian group tried to amend the parish articles of association to place church property under the control of the Russian Holy Synod. The factions went to court, culminating in Hanna v. Malick, a 1923 Michigan Supreme Court case.

The key question in the case is which faction — Russy or Antacky — should have control of the church property. To figure this out, the court had to determine which hierarchy — Russian or Antiochian — was recognized by the parish when it formed in 1910. The Antacky members “claim that they organized under and are subject to the supreme jurisdiction” of Antioch, “whose representative in America was Bishop Raphael of Brooklyn.” The Russy members “claim that this local church was organized under and has always been subject to the supreme jurisdiction” of the Russian Church.

The original parish documents are somewhat ambiguous. Article 2 of the original articles of association describes the purpose of incorporation as follows: “To teach and promulgate the Christian religion in accordance with the tenets and doctrines and creed of the Syrian Greek Orthodox Church of Antioch, Syria, and the Syrian Greek Orthodox Church of America, as expounded by the bishop thereof resident at Brooklyn, New York, U.S.A.”

According to the trial court judge, the articles were prepared by a local Grand Rapids attorney “after he had asked these men under what jurisdiction this contemplated church was claimed by them to be.” Similar language appears in the parish bylaws:

All persons believing in the divinity of Christ, in God the Father and the Holy Ghost, the sacrament of baptism and marriage in accordance with the articles of faith established by the Orthodox Greek Church of Damascus, Syria, shall be entitled to membership. Members are admitted by baptism and by confession of faith under the rules and tenets of the Orthodox Greek Church of Damascus, Syria. They may be suspended or expelled for violation of the teaching and precept of the church as laid down and expounded by the bishop of the Syrian Greek Orthodox Church of America, resident at Brooklyn, New York.

Now, to a casual reader, these documents seem to recognize Antioch. There’s not a word to be found about the Russian Church. But there are references to the Bishop of Brooklyn, and the Russy party used this fact to argue for Russian jurisdiction. According to the Russy group, all the Orthodox in America were under the Russian hierarchy. In fact, they expounded what is, as best I can tell, the earliest coherent example of the “flag-planting theory” for Russian jurisdiction. Here’s how the trial court explained it: “By virtue of having established in the Western Hemisphere a Russian church, and the territory wherein the church was established having been purchased by the United States, the Russian Church now claims the right to rule over and assumes jurisdiction over all Greek Orthodox churches within the United States, regardless of the nationality of the congregation or the membership of the local church.”

But the court wasn’t interested in the jurisdictional claims themselves. It’s not a dispute between Russia and Antioch, but between members of the local parish, for control over a piece of real estate. Because of this, the paramount question is the intention of the original incorporators. “If this were a lawsuit between the Patriarch of Antioch, on the one hand, and the Holy Russian Synod, on the other hand [...] it is possible that a different question might be raised.”

The case, then, boils down to St. Raphael himself. If he was under Antioch, as the Antacky claimed, then their side would win. If he was under Russia, the case for the Russy would be greatly strengthened. So the court looked at St. Raphael’s own writings: what did the man himself say about his jurisdictional position? The following quotations are from St. Raphael’s periodical Al Kalimat, and were translated for the court (brackets in original):

• “That he [Raphael] was consecrated bishop by the order and permission of Melatois, the Patriarch of Antioch.” (vol. 1, page 2)
• “Those who were consecrated bishops through his [Patriarch of Antioch] consent were his grace, Basileus Dibs, the Metropolite of Akkar, Syria, one of the Antiochian dioceses, and the owner of this magazine, the Bishop of Brooklyn, New York, U.S.A.” (vol. 2, page 95)
• “Patriarch Melatois counted the new parish of Brooklyn, New York, as one of the parishes of Antioch.” (vol. 3, pages 95-96)
• “And during his [Melatois'] administration [as patriarch] many unusual things many unusual things took place, such as the demise of several lamented archbishops. For this reason a conclave was had of archbishops, his beatitude presiding, during which conclave there were clected bishops for the seats vacated by such deaths. … Those who received the benediction of ordination into the high priesthood by the sanction of his beatitude are two, to wit, his eminence, Basileus Dibs, archbishop of Akkar, and the editor of this magazine (Bishop Raphael), Bishop of Brooklyn, North America.” (vol. 3, page 95)
• “And the territorial jurisdiction of the See of Antioch became much more extensive during the time of his beatitude, for Syrians who emigrated to many other countries still retained their spiritual relations with and continued to acknowledge and yield allegiance to their mother church, the Holy Church of Antioch, and kept firm in the Orthodox faith. His beatitude manifested the most perfect evidence of his interest in and care for them to the best of his means and ability. In substantiation of this, when the Russian Holy Synod informed him that the lot of presiding in this diocese [the diocese of Brooklyn] had fallen upon our humble self [Raphael], his beatitude hastened to write to the Holy Synod, to His Eminence Tikon, then Archbishop, and to our humble self, sanctioning the choice and declaring that he [his beatitude] had instituted this new diocese as one of the dioceses pertaining to the See of Antioch and thus it is in actuality, notwithstanding its nominal allegiance to the Russian Holy Synod.” (vol. 3, page 95)
• “Whereas, we, the Syrian Orthodox residents of Greater New York and all other parts of North America constituting our new diocese (may God keep it) are considered a vigorous branch of our mother tree, the Church of Antioch; and whereas, this branch has flourished luxuriantly during the days of the administration of our father, may his name be ever blessed, the thrice illustrious Patriarch Melatios; and whereas, his beatitude was the first to sanction and bless the establishment of this new Syrian diocese in this new world.” (vol. 2, page 18)

The trial judge observed that “at first the writings of Bishop Raphael gave to the Patriarch of Antioch jurisdiction over the Syrian branch of the Orthodox Church in the United States, and later gave expression to language indicating that all the branches, including the Syrian branch, of the Greek Orthodox Church in America, were under the jurisdiction of the Holy Synod of Russia.” Without a clear-cut answer from St. Raphael’s own writings, the judge looked at two non-Orthodox sources: Funk & Wagnalls’ Religious Encyclopedia and the Encyclopedia Britannica. The former reported that “the Patriarch of Antioch elevated Raphael to the rank of bishop” (but that Raphael was consecrated by Russian hierarchs), while the latter noted that the Russian archbishop in America “is assisted by two bishops, one for Alaska [...] and one for Orthodox Syrians, residing in Brooklyn.” The secular sources don’t seem to settle things, either.

Texts being insufficient, the judge moved on to consider actions. He observed that “the record shows but one instance where he [Raphael] was directed by any church authority.” That instance was in August 1910, when St. Raphael announced in Al Kalimat an order he had received from the Patriarch of Antioch regarding marriages of Syrian Orthodox in America. In addition, in 1901, St. Raphael wrote that he had received a telegram from the Patriarch informing him of his election as Metropolitan of Salefkias. St. Raphael declined, but the judge saw this as evidence of a relationship between Raphael and Antioch. Furthermore, according to the judge, “It is not shown in this case that during the life of Raphael the authorities of the Russian Church in any manner gave any orders to the Syrian branch of the church, or attempted in any way to direct the actions or utterances of Raphael in his relations with the Syrian Church.”

There are some flaws in this reasoning. Yes, we can establish that there was a close relationship between Raphael and Antioch, but there was also a close relationship between Raphael and the Russian hierarchy in America. It was St. Raphael who, as an archimandrite, welcomed St. Tikhon to America in 1898, and Tikhon and his auxiliary Bishop Innocent were the ones who actually consecrated Raphael in 1904. It was St. Raphael who blessed the land on which St. Tikhon’s Russian Orthodox Monastery was built, and there are countless examples of Raphael working with the Russian Archdiocese in America. The Russians themselves clearly understood Raphael to be one of theirs, and in his 1905 plan for Orthodoxy in America, St. Tikhon includes the Syrian bishop as a crucial part — while at the same time recognizing that Raphael was “almost independent in his own sphere.”

Both parties have a legitimate argument in this case, but as the judge consistently reiterated, this case is ultimately about the intent of the original incorporators of the Grand Rapids church — not about the relative claims of Russia and Antioch in America. Those claims are relevant only insofar as they help us better understand the incorporators’ intent.

In the end, the trial court sides ruled in favor of the Antacky group — that is, as best as the court could determine, the original parish incorporators intended to be under Antiochian jurisdiction. The court based its decision largely on the references to Antioch in the parish documents. Yes, those documents also refer to the bishop of Brooklyn, but the judge saw insufficient evidence to conclude that Raphael was under Russia rather than Antioch. The Michigan Supreme Court upheld the judgment (and, indeed, hardly added a word, mostly quoting directly from the district judge). The Michigan Supreme Court did note that, in light of the chaos that followed the Russian Revolution, “the precautions taken in organizing this Syrian church seem to have justified themselves.”

This is a terribly fascinating case from a historical perspective, and tells us a lot about how the early Antiochians in America thought about themselves. But what are the legal lessons we can learn? The district court judge — affirmed by the state supreme court — could not have employed “deference to higher church authorities” if he had wanted to, since the entire dispute was over which was the correct higher church authority. The judge was forced to employ something along the lines of a neutral principles analysis. Did he get the right answer? Well, it depends on the question. The judge was trying to figure out the intent of the original incorporators, and based on the language of the official documents, it does seem like they intended to be under Antioch. Were they really, in fact, under Antioch? What would the outcome be if the claim was between Antioch and Russia themselves, and actual jurisdiction had to be determined? That is a much, much more complicated question, to which there isn’t a single, clear-cut answer.

This article was written by Matthew Namee.