Orthodoxy & the US Courts
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.
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.
Today I’ll be discussing Aglikin v. Kovacheff, a 1987 Illinois appellate court case involving a dispute over control of St. Sophia Bulgarian Orthodox Church in Chicago. The key question, in this case, concerns the extent of the diocesan bishop’s authority over the local parish. The bishop had dismissed certain members of the parish board of trustees — did he have the authority to do this? The Illinois court (both the majority and the dissent) applied neutral principles analysis to the case. (To read the full opinions, click here.)
St. Sophia was a part of the Bulgarian patriarchal jurisdiction. It was incorporated in 1946, and its articles of incorporation indicate that it is “administratively and canonically” an “inseparable organic part of the Bulgarian Eparchy in America and under its jurisdiction.”
The bylaws of the Bulgarian Orthodox Church grant diocesan control over local parish boards — according to the bylaws, if parish board members fail in their duties, the diocese can dismiss the board and appoint a commission to run the church. These Bulgarian Church bylaws also stipulate that the “organization and administration” of the American diocese will be determined by a special synodical order sanctioned by the Bulgarian Ministry of Foreign Affairs — but, the court says, “[n]o such order appears in the record before us.” The lack of such an order was a major part of the dismissed trustees’ argument against the bishop’s authority.
The Bulgarian diocese in America was founded in 1969, and its bylaws provide for “absolute control” of church property by the local church, administered by the parish board. The diocesan bishop must bless the election of board members, but the bylaws are silent about any diocesan control over the board once it is in office. Unlike in the patriarchal bylaws, there’s no indication in the diocesan bylaws that the bishop can dismiss board members.
The trial court had applied strict deference in this case, and found that since the local parish is subordinate to the diocesan bishop, it is bound by his decisions. On this basis, the trial court granted summary judgment in favor of the diocesan commission. (Summary judgment means that the case didn’t go to trial — the trial judge decided that there was no “genuine issue of material fact,” and that one side was entitled to “judgment as a matter of law.”) The appellate court disagreed, holding that neutral principles, rather than strict deference, should be employed. Why? “Our preference for a neutral principles approach, rather than the strict deference approach, is based on our conclusion that court entanglement in ecclesiastical doctrine is less likely to occur in the application of neutral principles.”
Deference, said the court, presumes that a local church has totally submitted to a hierarchical authority — but it’s not always that simple. In fact, strict deference may discourage local parishes from affiliating with a diocese, since they would be subject to the whims of the diocesan authority. Citing Justice Rehnquist’s dissent in Serbian Diocese v. Milivojevich, the court observed that strict deference also runs the risk of establishing religion.
Neutral principles analysis isn’t always possible. According to the appellate court, it works in disputes over ownership or control. In this case, both sides agreed that the dispute wasn’t about doctrine or polity — it was about control of property.
Applying neutral principles, the appellate court found that there was a genuine issue of material fact in this case: namely, the extent of diocesan authority. St. Sophia’s articles of incorporation place it under the Bulgarian Church, but they don’t specify the extent of that subordination. Nothing in the articles says that the bishop controls parish property or can dismiss a parish board. Likewise, the diocesan bylaws don’t help. The Bulgarian Orthodox Church bylaws do give the bishop that kind of authority… but that brings us back to that special synod order I mentioned above. There was no such order, at least not that anyone could produce, which led the court to question whether the Bulgarian patriarchal bylaws applied to its American diocese.
This isn’t to say that the patriarchal bylaws don’t apply to America, but it’s enough for the court to find a “genuine issue of material fact” sufficient to send the case to trial. Because of this, and because the trial court erroneously (so says the appellate court) employed strict deference rather than neutral principles, the case was sent back to the lower court. The appellate court reasoned,
We note that the trial court impermissibly extended its jurisdiction by declaring that St. Sophia will be “governed by the dictates” of the bishop. While civil courts have subject-matter jurisdiction over church property disputes, they may decide only issues relating to the parties’ civil and property rights. [...] By according the bishop plenary authority over St. Sophia’s affairs, the trial court failed to restrict itself to deciding who controls St. Sophia’s property and assets. Civil courts lack the power to confer ecclesiastical authority.
In dissent, Justice Jiganti actually agreed that neutral principles analysis was appropriate in this case, but he reached a very different conclusion. Neutral principles is the right approach, he says, but here there simply is no geninue issue of material fact. “The only issue in this case is whether St. Sophia submitted to the jurisdiction of the regional diocese and the Bulgarian Orthodox Church. Although the majority finds a question of fact with regard to this issue, I believe that it is foreclosed by the statement in St. Sophia’s Articles of Incorporation that St. Sophia was ‘administratively and canonically’ under the jurisdiction of the ‘Bulgarian Eparchy in America.’”
These articles of incorporation, says Justice Jiganti, should be analyzed just like a contract — the plain meaning of the words is paramount. And those words plainly subject the local parish to the jurisdiction of the Bulgarian Church. Yes, the parish has some level of choice in certain respects, but it’s still subordinate to the American diocese and the Church of Bulgaria. The fact that the diocesan bishop can replace the parish board doesn’t take control over church property away from the parish — it just changes the identity of the parish leaders. “St. Sophia will still operate as St. Sophia, but under a new leadership.”
Both sides in this case make some good points, but my initial reaction is that the majority’s decision hinges on a technicality. No, there wasn’t that special synod order, but how important is that? Does the absence of a special order mean that the American diocese isn’t subject to the bylaws of the Mother Church? It would be nice to get some more information about just what the special order is, but we aren’t given any details. We’re just told by the majority that there wasn’t such an order. I didn’t discuss it above, but the majority also found some significance in an affidavit by the former president of the parish board, claiming that St. Sophia retained “administrative independence” when it joined the American diocese. The dissent points out that, since we have reasonably clear official documents like the articles of incorporation, that affidavit doesn’t carry a lot of weight.
In defense of the majority, on the other hand, I would point out that they didn’t say that the former parish board wins the case — they just said that there’s enough of a factual dispute that the case should go to trial. They may be right. At the very least, I would think that a trial would reveal the content and significance of those “special orders.”
The most interesting thing about this case is the fact that justices applying neutral principles can still reach very different outcomes in the same case.
This article was written by Matthew Namee.
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.
Well, this is interesting. Lately, I’ve been looking at the Supreme Court case Serbian Diocese v. Milivojevich, which pitted the representatives of the Serbian Church against the incumbent American bishop, Dionisije, who had been defrocked by the Serbian Holy Assembly. The big question, which the Court answered in the negative, was whether civil courts in America could review the decisions of a church tribunal.
What none of the justices’ opinions mentioned is the fact that Bishop Dionisije actually did appeal the Holy Assembly decision to another judicial authority — the Patriarch of Constantinople. On June 6, 1964, the Chicago Tribune reported that Patriarch Athenagoras I responded with a letter rejecting the appeal and recognizing Dionisije’s defrocking as valid. The Ecumenical Patriarch also declared Dionisije’s consecration of Bishop Irinej Kovacevich to be “uncanonical and worthless.” (Just before this, SCOBA also rejected Dionisije, announcing that they would not recognize him or his jurisdiction.)
What exactly is the extent of the Ecumenical Patriarch’s right to hear appeals? The key texts are Canons 9 and 17 of Chalcedon. Here is the relevant portion of Canon 9: “And if a bishop or clergyman should have a difference with the metropolitan of the province, let him have recourse to the Exarch of the Diocese, or to the throne of the Imperial City of Constantinople, and there let it be tried.” Similarly, Canon 17 prescribes, “And if any one be wronged by his metropolitan, let the matter be decided by the exarch of the diocese or by the throne of Constantinople, as aforesaid.”
According to Fr. John Erickson in “Chalcedon Canon 28: Its Continuing Significance For Discussion of Primacy in the Church,” these canons provide two paths for a party seeking appeal: he may go to Constantinople, or to his own exarch. This appeal would have applied to the whole Eastern Roman Empire. Early evidence shows appeals to Constantinople from the diocese of the Orient, “whose ‘exarch’ would ultimately bear the title of patriarch of Antioch.” Erickson writes that in Constantinople, “thanks to the continual flow of visiting bishops from all parts of the empire, a convenient court of appeal, in the form of the synodos endemousa, could easily be convoked by the capital’s archbishop.”
Erickson goes on to note that Rome, too, had been given wide-ranging rights of appeal, in its case by the Council of Sardica. He distinguishes these appellate prerogatives from ordination rights, which were much more limited.
If you go to the Orthodox Wiki article on the prerogatives of Constantinople, you’ll see a different view. The authors of that article quote St. Nikodemos of the Holy Mountain (d. 1809), who argued that Constantinople’s right to hear appeals was limited to its own jurisdiction. According to St. Nikodemos, in this regard, the Ecumenical Patriarch was no different than any other exarch. I asked Fr. John Erickson about this, and he replied, “The system of the imperial church in the fifth century was significantly different from that of more recent times – and with ‘more recent times’ I must include St Nikodemos.”
I’m not a canonist, so why am I venturing into these (at times controversial) waters? My interest, here, is in the potential legal implications of a Constantinopolitan right of appeal. It’s possible, of course, that there are no legal implications. But, at this early stage of my research, I’m not sure, and I want to at least explore the possibility.
Let’s assume, for now, that such a right of appeal exists. This means that the decisions of a given Holy Assembly, Holy Synod, or Patriarch are not necessarily final. If the Ecumenical Patriarch could have heard Dionisije’s appeal and ruled in his favor, doesn’t that mean that the Serbian Holy Assembly is not the highest judicial authority in the Serbian Church (at least, from the standpoint of the American legal system)?
This raises another interesting question: if American courts can’t overrule the decisions of the highest judicial authority in a church, can they still overrule the decisions of lower judicial authorities? For instance: Assume that an American Orthodox jurisdiction has a local or eparchial synod, and that this synod has the authority to make certain decisions. Assume further that members of this jurisdiction can appeal the local/eparchial synod’s decisions to the Holy Synod of their Church. What, then, happens if church members appeal one of these local decisions, not to the Holy Synod, but to a secular US court? I think this wouldn’t matter, because a court applying deference to church decisions would probably tell the church members that they must make use of the appellate process in their own church, rather than bypassing that process and running to a secular court. But… well, I don’t know enough to say for sure.
The more pertienent issue, I think, has to do with Justice Rehnquist’s hypothetical scenario of a pseudo-Holy Assembly purporting to defrock a bishop, but not complying with its own quorum rules (and thus, by its own rules, not constituting an actual Holy Assembly). Justice Rehnquist uses this scenario to argue that secular courts must be able to adjudicate the case, but if a right of appeal to Constantinople exists, I it’s possible that this appeal might have to be made before US courts could get involved. Again, you probably can’t just bypass the church-appointed process in favor of civil litigation.
This seems to be consistent with the spirit of Canon 9. I quoted part of Canon 9 earlier, but here is the beginning of the canon: “If any Clergyman have a matter against another clergyman, he shall not forsake his bishop and run to secular courts; but let him first lay open the matter before his own Bishop, or let the matter be submitted to any person whom each of the parties may, with the Bishop’s consent, select. And if any one shall contravene these decrees, let him be subjected to canonical penalties…”
A clergyman can’t first run to the secular courts, but he could make use of those courts if the church courts gave him an unsatisfactory judgment. As a practical matter, according to Erickson, this wouldn’t have been a commonly-used option in the Eastern Roman Empire (unless the clergyman in question was particularly well-connected). In any case, the idea seems to be that we should try to resolve matters internally, but if that fails, we could then go to a secular judge. Of course, these canons were composed in a totally different era in church history, when the Church and the Roman state were becoming increasingly intertwined, and when Constantinople was (to many) the center of the world. Does the right of appeal to the Ecumenical Patriarch really apply today, when Constantinople is no longer a cosmopolitan center for Orthodoxy and the Ecumenical Patriarchate is oppressed by the Turkish government? I don’t know.
But if the right to appeal does exist, what are its implications on American courts? I’d be very interested to hear what the lawyers reading this think.
Anyway, in the case of Bishop Dionisije, he did appeal to Constantinople, and his appeal was denied. The Ecumenical Patriarch in essence affirmed the decision of the Serbian Holy Assembly, and SCOBA followed suit. Bishop Dionisije was thus isolated from much of mainstream Orthodoxy, more than a decade before the Supreme Court heard his case.
This article was written by Matthew Namee.