Orthodoxy & the US Courts
So far, we’ve been discussing the role of civil courts in church property disputes in the context of the “deference” approach: that is, the courts will defer to the decisions of the highest church authorities. This was the position taken by the Supreme Court in both of its major Orthodox cases, Kedroff v. St. Nicholas Cathedral and Serbian Diocese v. Milivojevich. Not long after Milivojevich, however, the Court opened the door to an alternative approach.
In the 1979 case Jones v. Wolf, the Supreme Court endorsed the “neutral principles of law” approach to handling church disputes. Under this method, secular courts are to use neutral, secular principles — which means that they can’t use religious or ecclesiastical principles. Courts applying neutral principles focus on official documents — property deeds, local parish charters, national and Mother Church constitutions, and state statutes — and try to interpret them in a non-religious manner. As Kent Greenawalt puts it in ”Hands Off! Civil Court Involvement in Conflicts Over Religious Property” (Columbia Law Review, Dec. 1998), “the Court indicated that civil courts need not defer to higher church authorities if they instead rely on authoritative documents that can be interpreted without invoking religious understandings.” But this approach presupposes that you can accurately interpret authoritative religious documents while intentionally ignoring their religious context.
After all, we’re talking about church governance here. And no church body better illustrates the inherently religious nature of church governance than the Orthodox. In Orthodoxy, almost any dispute can be interpreted as theological. We regard the Church as the Body of Christ. Matters of church governance are rooted in canons promulgated by the same Ecumenical Councils that expounded matters of faith. In church governance disputes, there is always the danger of a break in communion — which is a sacramental (and thus profoundly religious) matter. You simply cannot wall off our ecclesiology from our sacraments and theology. It cannot be done, any more than can you draw a hard-and-fast line between “Tradition” and “traditions.” Orthodoxy does not tolerate such strict dichotomies.
In his majority opinion in Milivojevich, Justice Brennan seemed to recognize this, but his answer was just as dangerous. He wrote, “[I]t is the essence of religious faith that ecclesiastical decisions… are to be accepted as matters of faith whether or not rational.” On the one hand, this is absolutely right: when the Church, led by the Holy Spirit, makes a decision, it is to be accepted as a matter of faith. When the Church said that Jesus Christ is fully God and fully human; when it professed three divine persons but only one God, acknowleding the Trinity while affirming monotheism; when it recognized the unknowability of God’s essence but asserted that created humans can participate in his uncreated energies — in all these cases and more, Orthodox Christians must accept these radical, challenging assertions as matters of faith. But when men clothed in hierarchical vestments and claiming to be the Church declared it heresy to depict the enfleshed Word of God; when they condemned St. Photius and endorsed the Filioque; when they proclaimed from Florence a union with a heretical Roman Catholic Church — in all these cases and more, Orthodox Christians are obliged to reject these decisions. When, in the 16th century, the Orthodox bishops of the Polish-Lithuanian Commonwealth subordinated themselves to Rome at the Union of Brest, the local Orthodox laity rightly rejected their apostasy and went for many years without any hierarchs, depending on long-distance communication with the Orthodox patriarchates.
My point is that you simply cannot say, as Justice Brennan did, that ecclesiastical decisions are to be accepted as matters of faith. They are, only if they are in accordance with the Holy Spirit — but who decides that? Certainly not a secular American judge. At the same time, you cannot simply say, as neutral principles advocates might, that church documents can be interpreted, and church disputes resolved, without reference to doctrine. I would contend that even when both sides of a dispute agree that it is not about doctrine, a doctrinal element is still inevitably present. Because any time you’ve got a dispute about the role of the hierarchy, or the prerogatives of a Holy Synod, or the power of a church board, you are dealing with an ecclesiological question. And in Orthodoxy, it is impossible to separate ecclesiology from theology and the sacraments. The whole life of the Church is sacrament, and theology.
I like the concept of neutral principles — I like the idea of an unbiased court reviewing all the evidence in a sincere, respectful manner and trying to come up with a just solution. But the notion that this could be done in a way that doesn’t touch on matters of faith is just untenable.
In the article I quoted earlier, Kent Greenawalt argues, “Rigid deference is constitutionally acceptable only if a denomination is organized so that the highest church authorities are legally unconstrained; it is not acceptable for denominations that have a balance of local and general authority, or that provide significant restrictions on the decisions of higher authorities.” As much as some bishops might like to think so, Orthodoxy is not a church in which the highest church authorities are legally unconstrained. Thus, rigid deference, applied to Orthodoxy, is probably unconstitutional.
Greenawalt recommends a modified version of the neutral principles approach, “one that allows courts to consider a broad range of documents and also settled principles and practices of church authority that bear clearly on matters of governance and control of property.” Civil courts should defer to church authorities, says Greenawalt, when those authorities act legitimately and according to their own rules.
Personally, I still don’t know what I think courts should do. What I’m certain of is this: neither strict deference nor secular neutral principles are a great fit for Orthodoxy. In the coming weeks, as we continue to examine court cases involving the Orthodox Church, we’ll try to figure out what approach (or approaches) might work better.
This article was written by Matthew Namee. To contact Matthew, email him at mfnamee [at] gmail [dot] com.
In my last article, I wrote about Justice Brennan’s majority opinion in Serbian Diocese v. Milivojevich, the 1976 Supreme Court case that deferred to the Holy Assembly of the Serbian Church in its defrocking of former US Bishop Dionisije and its reorganization of the American-Canadian Diocese. Click here for the opinions, and here for audio of the oral arguments. Today I will discuss Justice Rehnquist’s dissenting opinion.
First of all, Justice Rehnquist points out that the jurisdiction of the Illinois courts was actually invoked by the Serbian Church representatives themselves, who sought an injunction to establish their control over church property. With its jurisdiction invoked, the Illinois court “was entitled to ask if the real Bishop of the American-Canadian Diocese would please stand up.” The inquiry that followed was, says Justice Rehnquist, no different than the inquiry a court would make to resolve a dispute in any voluntary association — religious or otherwise. The courts were faced with two parties claiming to be the rightful church authority, and both sides had actually asked the courts to decide between them.
What else, says Rehnquist, were the courts supposed to do? If they can’t pick one side over the other, the parties will have to resort to “brute force” to resolve their claims. The majority says that civil courts must accept the decisions of church tribunals — but, as Justice Rehnquist points out, even this rule requires civil courts to determine just what those decisions are. And if there’s conflicting evidence, or conflicting interpretations of church decisions and rules, then the courts are back in the position of choosing one side over the other.
Next, Justice Rehnquist presents a very good (and very realistic) hypothetical scenario. Suppose, for the sake of argument, that the Holy Assembly has 100 members, and that its rules for defrocking a bishop require a majority vote at a Holy Assembly meeting at which a quorum is present. Further, suppose that the Holy Assembly’s rules define a quorum as no fewer than 40 bishops. Now, what happens if 30 bishops of the Holy Assembly meet, and 16 of them vote to defrock a bishop? Is their decision binding on civil courts in the United States? Justice Rehnquist argues, “If the civil courts are to be bound by any sheet of parchment bearing the ecclesiastical seal and purporting to be a decree of a church court, they can easily be converted into handmaidens of arbitrary lawlessness.”
Justice Rehnquist then gets into some of the Court’s prior decisions. He points out that Watson v. Jones (which I discussed in a previous article) doesn’t have anything to do with the First Amendment and freedom of religion. In fact, the Court in that case was merely applying the same rules that would apply to “private intraorganizational disputes” (Rehnquist’s term). The Watson court explicitly equated religious bodies with other private organizations.
In Gonzalez v. Archbishop, Justice Brandeis set forth the “fraud, collusion, or arbitrariness” exception to deference to church decisions. (I discussed this in my article on the Curtis paper on Kedroff.) Here, too, a parallel is made between churches and “clubs and civil associations.” According to Rehnquist, the key factor in Gonzalez is the fact that church members (like club members) freely submitted to church judgments. Once again, the First Amendment is not really crucial — the churches are deferred to not because they are religious, but because they are private associations.
In Justice Rehnquist’s view, Kedroff was the first time the Supreme Court clearly applied the First Amendment in a church property dispute. After Kedroff, the Supreme Court revisted the issue in Presbyterian Church v. Hull Church (1969). In this case, Georgia common law predicated church property rights on an adherence to the church’s original doctrine. The Supreme Court held that the departure-from-doctrine standard was “a creation of state, not church, law” and struck it down.
The next year, in Md. & Va. Church v. Sharpsburg Church, a denomination tried to retain control of the properties of two local parishes that wanted to leave the denomination. The state courts ruled in favor of the local parshes, basing their decision in part on the denomination’s own constitution. The Supreme Court rejected the denomination’s argument that this violated the First Amendment.
From these cases, says Justice Rehnquist, we can derive the following rule: “[T]he government may not displace the free choices of its citizens by placing its weight behind a particular religious belief, tenet, or sect.” This, Rehnquist argues, is what New York tried to do in Kedroff, and it’s why (according to Rehnquist) the Supreme Court made the right decision in that case. But, in the present case, the Illinois Supreme Court never “placed its thumb on the scale” in favor of Bishop Dionisije. In reality, the Illinois court simply applied “neutral principles of law” — a concept which, in a few years, would receive Supreme Court endorsement and is now used by many courts as an alternative to the “deference” approach used by the majority in this case.
Justice Rehnquist argues that “blind deference” is neither logical nor constitutional. “To make available the coercive powers of civil courts to rubber-stamp ecclesiastical decisions” would amount to an Establishment Clause violation. While acknowledging that courts should avoid religious disputes as much as possible, “they obviously cannot avoid all such adjudications.” Courts must always “remain neutral on matters of religious doctrine,” and the Illinois Supreme Court did just that. Thus, in Rehnquist’s view, the Illinois decision was constitutional and should not have been overturned by the US Supreme Court.
Justice Rehnquist makes some compelling arguments. To his hypothetical about a pseudo-Assembly meeting, we could add many others. What if, as has happened in the past, two factions claim to be the legitimate Holy Synod? What if a Holy Synod issues contradictory decisions, or there is a dispute about whether a Holy Synod decision was, in fact, made by the Holy Synod (and not somehow falsified in its transmission)? What if the Holy Synod, writing in a foreign language, uses words which could have multiple interpretations — whose interpretation do we believe? What if the individual members of the Holy Synod themselves disagree about what the decision meant?
And what if a Church grants, not some measure of self-administration, but formal autonomy or autocephaly to its American jurisdiction? What happens if that Mother Church tries, in the future, to rescind its grant of autonomy or autocephaly and re-take control? A civil court would have to determine who the legitimate higher church authority was. Certainly, the court couldn’t just take for granted which group was the rightful authority.
In all these cases, and more, courts cannot simply “rubber-stamp” a purported ecclesiastical decision. As a practical matter, there are times when courts can’t avoid making a determination about who is legitimate and who is not, who has a rightful claim and who does not. And, Rehnquist argues, the best approach for courts in those situations is to apply “neutral principles of law.” About which, more to come…
This article was written by Matthew Namee.
We’ve introduced the first major Supreme Court case dealing with Orthodoxy, Kedroff v. St. Nicholas Cathedral (1952). Today, we’ll begin an analysis of the other landmark case, Serbian Eastern Orthodox Diocese v. Milivojevich (1976). Justice Brennan’s majority opinion includes a lengthy historical background on the case, and I won’t go into all the details here; interested readers can review the full opinion for themselves. (Click here to read the opinion, and click here to listen to the oral arguments.) What follows are the basics.
Prior to 1921, the Serbian Orthodox in America were affiliated, to varying degrees, with the Russian Orthodox Church. By the 1910s, the affiliation was pretty weak, and in 1921 a separate Serbian diocese was founded for America, under the jurisdiction of the Serbian Church. In 1927, a national diocesan assembly adopted a constitution, which was modified and then approved by the Serbian Church.
The diocesan constitution makes it clear that the diocese is “ecclesiastically-judicially” an “organic part of the Serbian Patriarchate,” and subject to all the rules and regulations of the Serbian Church. Because of its “geographical location,” the diocese “enjoys full administrative freedom.” The word “autonomous” isn’t used, but the diocese was clearly given a lot of independence. It was the only diocese in the Serbian Church to have its own constitution.
In 1939, the Holy Assembly of the Serbian Church (composed of all the diocesan bishops of the Church) elected Bishop Dionisije to be the new head of the American-Canadian Diocese. Eventually, the diocese grew to the point that it requested elevation to the status of Metropolia, with three auxiliary bishops appointed to operate under Bishop Dionisije. Diocesan representatives made a formal request before the Serbian Holy Synod in 1962, and the Synod responded by appointing a delegation to visit America and study the proposals. The delegation was also tasked with confronting Bishop Dionisije about numerous complaints it had received about him over the years.
After this visit, the Holy Assembly (all the bishops) recommended that the Holy Synod (the executive committee, essentially) institute disciplinary proceedings against Bishop Dionisije. The Holy Synod immediately suspended Dionisije pending the investigation, and appointed Archimandrite (future Bishop) Firmilian as temporary administrator of the diocese.
After this, the Holy Assembly responded to the diocesan request for elevation to Metropolia status with auxiliary bishops. But rather than grant the request, the Holy Assembly instead divided the American-Canadian Diocese into three separate dioceses. Dionisije — who was suspended at the time — was appointed Bishop of the Middle Western Diocese.
Dionisije rejected the Holy Assembly’s reorganization of the diocese, claiming that it violated the diocese’s autonomy guaranteed by its constitution. The bishop also refused to accept his suspension, arguing that it didn’t comply with the constitution and laws of the Serbian Church. Dionisije told the temporary administrator, Fr. Firmilian, that he no longer recognized the decisions of the Holy Assembly and Holy Synod, declaring both bodies to be “communistic.”
Things get kind of complicated from this point. The Holy Synod appointed a commission of bishops to meet with Dionisije, who continued to reject the Holy Assembly’s decisions and demanded that he be given all accusations against him in writing. The commission declined, pointing out that Dionisije’s defiance of the Holy Assembly was wrongful conduct in and of itself. On June 27, 1963, the Holy Assembly voted to remove Dionisije as bishop, based solely on his acts of defiance following his suspension and on his violation of the oath he took upon becoming a bishop. In February 1964, the Synod referred the case to the Holy Assembly, which tried Dionisije and unanimously found him “guilty of all charges and divested him of his episcopal and monastic ranks.”
Even before this defrocking, though, Dionisije had taken his case to the US courts. In July 1963, he sued to prevent the temporary administrators from interfering with diocesan assets. The trial court ruled in favor of Dionisije, but the appellate court reversed the decision and ordered a new trial. After the new trial, the trial court made the following decisions:
- The defrocking of Bishop Dionisije was legitimate.
- The diocesan property was held in trust for all members of the diocese.
- The division of the American-Canadian Diocese into three dioceses was “improper and beyond the power of the Mother Church.”
- Archimandrite Firmilian was the valid administrator of the whole diocese.
Next, the case went to the Supreme Court of Illinois, which affirmed most of the appellate court’s decisions, but reversed the trial court’s conclusion that Dionisije’s defrocking was legitimate. According to the Illinois Supreme Court, the Serbian Church had not followed its own constitution and penal code when it defrocked Dionisije. One key argument: Dionisije had been properly suspended, but he hadn’t been validly tried within one year of his indictment — a violation of church rules. As Justice Brennan puts it, “Thus, the court purported in effect to reinstate Dionisije as Diocesan Bishop.”
According to Justice Brennan and the majority, this is totally unacceptable — the Illinois Supreme Court can’t substitute its own interpretation of church rules for the judgment of the Holy Assembly. ”For where resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity,” writes Brennan, the civil courts are obliged to accept the decisions of church authorities “as binding on them.”
Basically, the idea is that it is just way too dangerous for civil courts to get in the middle of a religious dispute. They must always defer to the highest ecclesiastical authorities — period. “If the civil courts are to inquire into all these matters, the whole subject of the doctrinal theology, the usages and customs, the written laws, and fundamental organization of every religious denomination may, and must, be examined into with minuteness and care, for they would become, in almost every case, the criteria by which the validity of the ecclesiastical decree would be determined in the civil court.” This logic is particularly convincing in the case of Orthodoxy: rather than a single legal code or constitution, we have diverse canons, local traditions, internal church documents, Patristic counsels, Scriptural interpretations, and any number of other factors to consider — and that’s even before you get to the tricky concept of oikonomia.
In a footnote, Brennan quotes from Watson v. Jones: “It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men in each are in reference to their own.” This is a compelling argument, even apart from any religious freedom concerns. Who better can deterimine the right outcome in a religious dispute — a secular court unfamiliar with church rules and traditions, or the church authorities who are well-versed in such matters?
Part of the problem in this case is that the Illinois courts abused the authority they (arguably) may have had. They basically decided the whole case of Dionisije’s defrocking on a technical point — the expiration of a one-year deadline for a church trial. The Illinois courts did this, says Justice Brennan, “under the guise of ‘minimal’ review under the umbrella of ‘arbitrariness’”. Brennan seems to recognize that, just because the absolute letter of church law wasn’t followed, secular courts can’t, on that basis, overturn church decisions. We must allow church authorities more flexibility than we would, say, the federal government.
The majority’s holding is that the US Constitution permits hierarchical churches to establish their own governing rules and to adjudicate their own disputes. When churches do this, their decisions are binding on civil courts.
Justice White concurred in the judgment, pointing out that secular courts can decide (1) whether the Serbian Church is hierarchical, and (2) whether the diocese is part of the Serbian Church. The mere fact that “church authorities may render their opinion” on those questions “does not foreclose the courts from coming to their independent judgment. But once both questions are answered in the affirmative — as they were in this case — Justice White agrees that church decisions are binding on civil courts.
Next, we’ll discuss the dissenting opinion of Justice Rehnquist (future Chief Justice of the Supreme Court).
Oh, one other thing — right this moment, I’m listening to the oral arguments (which you can hear via the link at the top of this article). The attorney arguing against judicial intervention in church decisions said that when the church authority’s act is one of fraud or collusion — if they “don’t actually exercise their judicial function” under church rules — then civil courts can review the church decision. The attorney doesn’t actually think that there is a practical case in which the fraud/collusion exception would apply (frankly, he thinks it’s totally improbable), but… well, he must not be familiar with church history, because I can think of plenty of instances in which church bodies engaged in fraud or collusion. Anyway, more to come…
This article was written by Matthew Namee.
In May 1965, the Yale Law Journal published a paper entitled, “Judicial Intervention in Church Property Disputes: Some Constitutional Considerations,” by Dennis E. Curtis. (For the lawyers reading this, the citation is 74 Yale L.J. 1113.) This paper focuses primarily on Kedroff v. St. Nicholas Cathedral, which we’ve been discussing at length here.
Curtis begins by laying out the legal history of church property disputes. The 1871 case Watson v. Jones (which I discussed in an earlier article) set forth separate rules for hierarchical and congregational churches. According to Watson, in property disputes involving hierarchical churches (such as the Orthodox Church), the civil courts are to defer to the decisions of the highest church authority. According to Curtis, “Watson v. Jones assumes that power [of the tribunal over church members] to be plenery.”
But Watson was not the last word on the subject. Other cases led to a modification of the Watson rule, best summed up by the renowned Justice Brandeis in Gonzalez v. Archbishop:
In absence of fraud, collusion or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise.
Curtis explains that, under Brandeis’ rule, courts must determine (1) the good faith of the church authorities (“absence of fraud, collusion”) and (2) whether the church tribunal has blatantly disregarded its own rules (“arbitrariness”). “Implicit in these cases was the concept that the consent of the members to be governed by the church authorities did not envision fraudulent, arbitrary, or collusive action by those authorities.”
The key question in hierarchical church property disputes, writes Curtis, is not who owns the property, but who has “the right to prescribe beneficial use.” In other words, what body gets to decide who can use the property? Who has the authority to make that decision? In a church like the Orthodox, the decision typically belongs to the highest church authorities — whatever that means.
Curtis points out, “The Supreme Court assumed that the right to prescribe the use of the New York churches lay with the Russian Church [i.e. Moscow]. This assumption allowed the court to categorize the New York Legislature’s action [of vesting control of Russian Orthodox properties in the Metropolia] as a displacement of one church administration with another.” Curtis admits that the legislature’s intent was indeed to vest control in the Metropolia, but “[w]hether Article 5-C did in fact transfer control of the church property, however, depends upon who had the right to prescribe use of the property, before the legislative action.” Was Moscow really the “highest church authority” with the right to prescribe use, or did that designation actually belong to the Metropolia?
The Supreme Court just took it for granted that Moscow had the right to prescribe use of St. Nicholas Cathedral. Justice Reed, in his majority opinion, says,
The record before us shows no schism over faith or doctrine between the Russian Church in America and the Russian Orthodox Church. It shows administrative control of the North American Diocese by the Supreme Church Authority of the Russian Orthodox Church, including the appointment of the ruling hierarchy in North America from the foundation of the diocese until the Russian Revolution. We find nothing that indicates a relinquishment of this power by the Russian Orthodox Church.
“This finding,” writes Curtis, “is the cornerstone of the opinion.” But the Court in Kedroff doesn’t seem to have really taken a hard look at the issue — it “simply assumed that the Russian Church [Moscow] had the right to control use of the property.” It is this assumption that led the Court to interpret the New York legislature’s actions “as an unconstitutional transfer of control of property.” Once you get past the issue of who can prescribe use, the rest of the case is pretty clear-cut. I mean, if Moscow has the right to prescribe use, then the Metropolia doesn’t, and the New York legislature illegally took Moscow’s property and gave it to the Metropolia. But if the Metropolia actually did have the right to prescribe use, then the New York legislature’s actions didn’t transfer ownership at all — they simply reinforced existing ownership rights. Curtis argues that, really, “The crucial constitutional clause should not have been the free exercise [of religion] clause but the due process clause.”
Curtis suggests that the Court may have been saying that the legislature “had no power to deterimine the ownership of religious property because the first amendment bars the state from taking any part in religious disputes.” After all, any state action along these lines involve the “establishment of the religion of the winner and an interference with the free exercise of the loser.” Curtis continues:
If followed to its logical conclusion, however, this argument would bar any court, including the Supreme Court, from deciding the case. The finding of Russian administrative authority may have been the Court’s way of restoring the status quo before New York’s action, but in restoring the status quo, the Supreme Court necessarily made a finding that the Russian Church was entitled to use of the Cathedral. Applying the same logic used to bar New York court action, the Supreme Court must have violated the freedom of exercise of the American Church [Metropolia] and established the Russian Church [Moscow].
To say that courts cannot decide religious disputes creates an impossible catch-22, in which any court action for either side is “establishment.”
One problem with the Kedroff decision is that the Supreme Court didn’t set forth clear criteria for how to determine who has the right to prescribe use. According to Curtis, “the Supreme Court’s assumption of control by the Russian Church obscured the actual first amendment issues in the case. The first amendment is relevant in the beginning — in determining the right to prescribe use of church property — not after that determination has been made or assumed.” In Kedroff, the Court side-stepped this problem by just assuming that Moscow had the requisite rights.
Curtis writes that state can take two general approaches to this problem: it can set up its own arbitrary rules, or it can defer to the property rules of the particular church in the case. Curtis then offers several options and evaluates the pros and cons.
Formal Title Doctrine. It would be incredibly simple for courts to just say that whoever holds formal title to the disputed property has the right to prescribe use. On the other hand, this approach is “an invitation to anarchy within the church government,” since the formal title-holders would have virtually unlimited power over church property. Rather than viewed as trustees holding the property for the benefit of the community, the title-holders would be treated as owners.
In practice, this is sort of the way that many early American Orthodox parishes actually behaved — the parish board of trustees exercised near-absolute authority over church property (and even, in many instances, hired and fired clergy). This made the election of trustees a major — and often contentious – event in parish life. I’ve found old newspaper articles that talk about violence at parish board elections. I think most Orthodox would agree that we don’t want to turn back the clock to those days.
Proportional Division Theory. The idea here is that each church member is a sort of part-owner of church property throughout the world. Disgruntled members could essentially be bought off by the majority. But proportional division theory, says Curtis, “would be almost impossible to implement.” To apply it, the court would have to (1) figure out whether the disgruntled party was actually a member, and (2) determine the dollar amount of the member’s share of the property. Another downside is that this approach would probably result in many, many more property disputes in the courts.
From an Orthodox perspective, this approach is totally unacceptable. The true “owner” of all Church property, according to our theology, is the Lord Jesus Christ. Orthodox Christians are members of his body, yes, but that doesn’t entitle us to temporal ownership of church buildings, land, and money. Such a view is completely foreign to the mind of the Church.
State-Imposed Congregationalism. A state could, theoretically, declare that all religious groups in its borders must follow a congregational model when it comes to church property. You’d have the simplicity of a majority-rules approach, but courts would have to decide who is actually a church member. Do we want courts coming up with their own criteria for church membership? That sounds pretty awful. They could look to each church’s rules for membership, but in hierarchical churches, that usually involves the hierarchy, and you’re right back to an argument about which hierarchy has the authority. And of course, as I’ve heard from more than one church leader, the Orthodox Church is not a democracy. The flip side is that we also aren’t an oligarchy, either, but it’s clear to me that state-mandated congregationalism would not work.
In any event, writes Curtis, state-imposed rules are simply unconstitutional. Rules like these would basically constitute the establishment of religion, since states would be making rules for religious government. In addition, if the state’s rules differ from the rules of the church, the state is in violation of church members’ free exercise rights. The bottom line is that states just can’t impose property rules on churches. Which leads to:
Looking to the Church’s Own Rules. This method is pretty easy to understand, and Curtis doesn’t actually spend a lot of time talking about it. But it’s not without its issues. Particularly in Orthodoxy, our “rules” aren’t always entirely clear. Sometimes, they’re contradictory. And sometimes, the hierarchy, applying the principle of oikonomia, will intentionally not abide by the letter of the law, for the good of the Church. Do we really want secular judges telling us what our rules are, and then trying to apply them? It would be preferable to avoid that sort of thing.
English Trust Theory. Curtis presents “trust theory” as a middle ground between state-imposed rules and an attempt to apply church rules. Underlying this theory is the idea that “the church property is impressed with a trust for the use and benefit of the church members.” Trust theory has been used in English courts (although I’m not sure if it’s still applied). In those cases, the English judges would look at both sides of a dispute and try “to determine which represents the faith of the founders.”
According to Curtis, one problem with trust theory is that it “stifles the natural development of church doctrine.” In Orthodoxy, this is less of a problem, since we don’t actually have a development of doctrine. But we do have a development of doctrinal language, which is apparent to anyone familiar with the Ecumenical Councils. Ultimately, though, I see trust theory as just being unworkable in most church property disputes. If a parish divides over, say, which calendar to use (Old or New), do we want a court trying to figure out which one is “right”? When even the Orthodox Churches themselves don’t have a uniform practice? But at least the calendar is vaguely “doctrinal” (and it’s not like we’ve got churches splitting over Trinitarian theology or something). What about a more typical case, where a parish decides it doesn’t like its bishop and wants to join a different jurisdiction? How does the whole “faith of the founders” standard apply there, when there isn’t even a dispute over the faith itself?
Modified Trust Theory. One solution to the problems posed by the English trust theory is to modify the approach. Here, “the courts would assume that actions of the church authorities were valid unless plainly ultra vires.” Ultra vires is a legal term of art which literally means “beyond the powers.” In this context, an act by church authorities is ultra vires if church rules, canons, etc. did not give them the power to take such an act. I would guess that most actions within a hierarch’s or synod’s jurisdiction would be allowed under modified trust theory. The problem would arise if a bishop tried to impose himself beyond his own diocese, or a synod beyond its own jurisdiction. But as Curtis explains, both English and modified trust theories are unconstitutional, since they establish religion. Which brings us to:
Doctrine of Review. This theory assumes that church members have consented to be governed by church rules, “as interpreted by the church authorities.” But we can’t assume that the consent is absolute. “It is unreasonable,” writes Curtis, “to assume that a member consented to have church rules interpreted unfairly or arbitrarily by the church authorities.” The role of secular courts would be to determine whether an action by church authorities was “patently unfair” or violated church laws “on its face.”
This approach might work where both sides of a dispute recognize a single church authority, but what about a case like Kedroff, where the rival groups each claim authority over the property? There, the court would have to “go back and find a time when the control of the property was undisputed.” Was there a point after that when that undisputed control was surrendered or lost? The answer to that question would determine which authority was recognized — but that’s just a first step, because the court would move on to ask whether the chosen authority’s actions were patently unfair or arbitrary.
Curtis brings up Russian Orthodox Greek Catholic St. Peter and St. Paul’s Church v. Burdikoff, another church property dispute in Lorain, Ohio. According to the facts presented by Curtis, the Lorain parish had been under the Church of Russia until 1925, when it joined the Metropolia. Decades later, in 1957, Fr. George Burdikoff became pastor of the church. Soon afterwards, Burdikoff switched to Moscow’s jurisdiction, and tried to take the parish property with him. The Ohio Court of Appeals ruled against Burdikoff and Moscow, finding that for 32 years, the parish was a part of the Metropolia and Moscow asserted no right of control over it. Moscow couldn’t come along, all those years later, and try to claim jurisdiction.
Curtis admits that, even if a court defers to church decisions, there still might be constitutional issues, because the mere fact of a court enforcing a church decision could be seen as establishment. But Curtis rejects this logic, instead suggesting that the state should take a neutral position on religions, neither helping nor hindering any. He reasons that “the power of the churches to govern is derived from the consent of the members,” and by deferring to church authorities who follow church rules, the courts are “merely enforcing the original consent of the member.” Curtis then makes an important constitutional point:
If the church as a whole can claim a constitutional right to freedom of exercise, it must be derived from the members through the aggregate of their consent. Therefore the church can only claim the protection of the freedom of exercise clause so long as its decisions are made within the framework of its own rules.
The problem with Kedroff, says Curtis, is that the Supreme Court “failed to realize that no matter what methods are used to settle church property disputes, each one will be subject to first amendment attack.” There is an inevitable tension between free exercise on the one hand, and establishment on the other. The key, Curtis tells us, “is to treat the free exercise clause as paramount, and the establishment clause as primarily a means of safeguarding the freedom of exercise.”
This makes sense to me. Think about the Kedroff case: the Supreme Court rejected New York’s actions because they purportedly “established” the Metropolia and violated the free exercise of the Moscow group. But the Supreme Court ruling just reversed things, establishing Moscow (that is, putting the weight of the government behind Moscow) and violating the Metropolia’s free exercise rights (by taking from them property in which they had formal title and which they considered rightfully their cathedral).
In the end, there is no perfect answer, but I do think — at this point in my research — that courts should defer to church authorities, but that this deference should not be absolute or unconditional. If church authorities act in a manner that is utterly and completely at odds with church rules, courts should be able to make a determination. After all, we’re talking, not about dogma per se, but about property within the borders of the United States. We can’t completely escape state involvement when there is a dispute.
UPDATE: To read the full text of Curtis’ Yale Law Journal article, click here.
This article was written by Matthew Namee.
From the New York Times, November 25, 1952, page 31:
U.S. COURT VOIDS ACT ON RUSSIAN CHURCH
State Law to End Communist Sway in Orthodox Cathedral Here Is Upset by Ruling
RELIGIOUS FREEDOM CITED
8-to-1 Decision Holds Action Violated 14th Amendment — Jackson Lone Dissenter
BY CLAYTON KNOWLES
WASHINGTON, Nov. 24 — The Supreme Court of the United States ruled today that a New York law, seeking to eliminate Communist influence in Russian Orthodox churches chartered in the state, fell into the realm of religious control barred by the Constitution of the United States.
Under the state law, the Rev. Benjamin Fedchenkoff, Archbishop of the church in North America by appointment of the Patriarch of Moscow, was removed from his pulpit at St. Nicholas Cathedral, 15 East Ninety-seventh Street, New York.
The Court of Appeals, highest tribunal of the state, upheld the validity of the state law under which the ouster was undertaken but the Supreme Court, reversing this finding in an eight-to-one decision, held that such a law violates the Fourteenth Amendment guaranteeing freedom of religion in this country.
The majority opinion, written by Associate Justice Stanley F. Reed, said a state Legislature “cannot validate action which the Constitution prohibits.”
Argument by Jackson
Registering his lone dissent, Associate Justice Robert H. Jackson held that the argument that the state law violated the Fourteenth Amendment safeguards of religious freedom was “so insubstantial that I would dismiss the appeal.”
“To me, whatever the canon law is found to be and whoever is the rightful head of the Moscow Patriarchate,” he wrote, “I do not think that New York law must yield to the authority of a foreign and unfriendly state masquerading as a spiritual institution.”
A bitter factional fight has raged at St. Nicholas Cathedral since 1917, when the Russian revolution brought changes in the central church. A faction, headed by the late Archbishop John S. Kedrovsky, got control of the cathedral in 1926 and kept it up to 1945, when a legal battle was begun over it.
Joined with Archbishop Fedchenkoff as an appellant in the present case has been the Rev. John Kedroff, a son of the late Archbishop. The basic fight has been between those supporting the mother church at Moscow and adherents of the Russian Church in America, recognized under New York law as having the authority over Russian Orthodox churches within the state. This latter group was set up in 1924.
It was on the basis of this law that officials of the cathedral sued to remove Archbishop Fedchenkoff, whose Moscow-bestowed title was Archbishop of the Archdiocese of North America and the Aleutian Islands.
The prevailing court opinion held that the New York law undertook to transfer control of the New York church from the central governing hierarchy and thereby “violates the Fourteenth Amendment by prohibiting in this country the free exercise of religion.”
Majority Opinion Stated
The Reed opinion took cognizance of the fact that the Court of Appeals felt that, since the Russian Government exercised control over the central church authorities, the state legislature had been reasonably justified “in enacting a law to free the American group from infiltration of such atheistic or subversive influences.”
“This legislation, in view of the Court of Appeals,” wrote Justice Reed, “gave the use of the church to the Russian church in America on the theory that this carry out the purposes of the religious trust. Thus, dangers of political use of church pulpits would be minimized.
“Legislative power to punish subversive action cannot be doubted. If such action should be actually attempted by a cleric neither his robe nor his pulpit would be a defense. But in this case, no probation of law arises. There is no action by any ecclesiastic. Here there is a transfer by statute of control over churches. This violates our rule of separation between church and state.”
In a concurring opinion, Associate Justice Felix Frankfurter stated that St. Nicholas Cathedral was “not just a piece of real estate . . . no more than is St. Patrick’s Cathedral or the Cathedral of St. John the Divine.” The cathedral, he maintained, was “an archiepiscopal see of one of the great religious organizations” in stating that the essence of the controversy was “the power to exercise religious authority.”
Finding Called “Sound”
Philip Adler, attorney for St. Nicholas Cathedral [actually, the attorney for the Moscow group], said last night that the position of the Supreme Court was “sound,” regardless of one’s attitude toward Soviet Russia. He emphasized that while he was uncompromisingly opposed to communism, “the church must be preserved.”
Ralph Montgomery Arkush, the opposing counsel [for the Metropolia group], said that he preferred not to comment until he had an opportunity to study the court’s opinion. He added, however, that there “still may be a remedy at common law.”
Editor’s note: That last line by Arkush, the Metropolia’s attorney, is important: that there “still may be a remedy at common law.” The Supreme Court struck down an act of the New York legislature, but the Metropolia didn’t give up. They went back to court, this time arguing that even if the legislature couldn’t decide the property dispute in the Metropolia’s favor, the New York courts could.
New York’s highest court agreed. It found, as a factual matter, that the Patriarch of Moscow was dominated by the secular authority of the USSR, and because of this, his appointed Archbishop could not, under New York common law, take possession of the Cathedral. It was a blatantly anti-Communist rationale, and the case made it all the way back to the Supreme Court in 1960, under the title Kreshik v. Saint Nicholas Cathedral. In an opinion far shorter than the 1952 case, the Supreme Court struck down the New York ruling, reasoning that it doesn’t matter whether the state violates religious freedom through the legislature or the judiciary — either way, you’ve got the state violating religious freedom, and that’s unconstitutional. “[O]ur ruling in Kedroff is controlling here,” reads the opinion, and once again Moscow won.
St. Nicholas Cathedral remains the property of the Moscow Patriarchate to this day. Any future dispute over the ownership of the Cathedral was put to rest by Moscow’s 1970 Tomos of Autocephaly, granted to the OCA, which stipulated that the Cathedral (among other properties) is “excluded from autocephaly on the territory of North America.” Today, the Cathedral is the official representation church of the Moscow Patriarchate in America.