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.

Serbian Diocese v. Milivojevich, Part 2: Justice Rehnquist’s Dissenting Opinion is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

Justice William Brennan authored the majority opinion in Serbian Diocese v. Milivojevich

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:

1. The defrocking of Bishop Dionisije was legitimate.
2. The diocesan property was held in trust for all members of the diocese.
3. The division of the American-Canadian Diocese into three dioceses was “improper and beyond the power of the Mother Church.”
4. 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.

Serbian Diocese v. Milivojevich, Part 1: Justice Brennan’s majority opinion is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

Abp. Kyrill Yonchev, 1964-2007

The OCA’s Bulgarian diocese, like one of its other ethnically defined dioceses (the Romanian), had its origins in a schism within the American jurisdiction of an Orthodox church based in a then-Communist nation. In both cases, there were factions dedicated to remaining within the canonical purview of the mother churches, but there were also factions who felt that such a stance represented capitulation to Communism, which had, to one extent or another, compromised the church authorities in the homeland. Communism split not only the Bulgarians and Romanians in America, but also the Russians and Serbs. (Of these, only the Serbs have subsequently reunited.)

In the case of the Bulgarian diocese, the dissent against Metr. Andrei Petkov, the bishop aligned with the homeland, was led by one of his clergy, an archimandrite named Kyrill Yonchev. During World War II, Andrei broke relations with authorities in Bulgaria, and then in the late 1950s petitioned the Russian Metropolia (itself then on bad terms with its mother church) for admission, but was rebuffed. In 1964, he regularized his relations with the homeland. This latter move stirred significant rancor in the Bulgarian-American ranks, and Kyrill broke relations with the aging Andrei and persuaded several parishes to follow him.

Kyrill was subsequently consecrated by the ROCOR, renowned for its anti-Communist feelings, to serve as the head of the Bulgarian Diocese in Exile. His career as a ROCOR bishop came to an abrupt end, however, when in 1976 he led his diocese of nine parishes into the OCA, where he served until his death in 2007, acquiring a second diocese (Western Pennsylvania) in 1978. At the time of this development, in the wake of the Metropolia’s reconciliation with Moscow and subsequent independence as the OCA, ROCOR/OCA animosity was perhaps at its apex.

In 1976, the energy from the OCA’s newly-proclaimed autocephaly was still flowing freely, and the entry of the Bulgarian Diocese in Exile into its ranks was regarded as another sign of the inevitability of the OCA as a catalyst for American Orthodox unity, particularly at the OCA’s Fifth All-American Council that year, which also elected Theodosius Lazor to be the new OCA primate.

St. George Bulgarian Orthodox Cathedral, Toledo, Ohio

Update Dec. 26, 2009: Fr. Alexander Lebedeff writes with some corrections to this post:

Archbishop Antony (Sinkevich) of the ROCOR was consecrated Bishop of Los Angeles in August 1951 and served until he was retired in 1995. He reposed July 31, 1996. He was a bishop for 45 years.

Of course, Metropolitan Vitaly (Oustinoff) of the ROCOR was made bishop in 1951 and retired in 2001 after celebrating 50 years as a bishop (he reposed in 2006). However, he did not come to North America until 1955. Still, 1955-2001 is 46 years. There are those in offshoots of the ROCOR who consider him to have continued being First Hierarch of the ROCOR up to the point of his repose. In any case he was a bishop for 55 years and a bishop in North America for 51.

The Bulgarian Diocese in Exile is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.