The Society for Orthodox Christian History in the Americas
Posts tagged 1987
Hierarchical, Congregational, and the problems of the “parish”
1 year ago
In 1993, the Appeals Court of Massachusetts rendered its decision in (brace yourself) Primate and Bishops’ Synod of Russian Orthodox Church Outside Russia v. Russian Orthodox Church of Holy Resurrection, Inc. We’ll just call it Primate from here on out.
This case involved a Massachusetts ROCOR parish that left ROCOR and joined HOCNA in 1987. At a parish meeting, members voted to amend their articles of organization and bylaws, removing all references to ROCOR in the bylaws. The parish then switched jurisdictions. The ROCOR Holy Synod sued, arguing that (1) the parish vote was illegal and (2) parish property is subject to the dominion and control of ROCOR (“the Church”).
At trial, the judge ruled that the parish “was hierarchical in terms of internal administration, discipline, and matters of faith,” but “congregational as far as the control and use of its property.” The appellate court agreed. Applying a neutral principles of law approach, the court identified the key question as being where “the church members, prior to the schism, have placed the ultimate authority over the use of church property.”
Churches can be hierarchical or congregational, but the two concepts aren’t mutually exclusive. The court explains that a church may be “hierarchical in some matters and congregational in others.” At first blush, this doesn’t seem to be the case with a ROCOR parish. ROCOR’s official documents recognized Synodal jurisdiction over “[m]atters concerning church property in dioceses [and] parishes.” Citing Apostolic Canon 41 (“We command that the Bishop have authority over the property of the Church”), ROCOR’s regulations emphasized that the bishop has authority over all “church property” in his diocese. The local parish bylaws presented a similar picture. When the parish was organized, it adopted the standard ROCOR parish bylaws, which called for Synod approval of major decisions regarding “church real estate.”
So this should be a win for ROCOR, right? It all seems pretty cut and dried, but that’s not how the court saw things. At trial, witness testimony revealed that the parish was always a separate legal entity, “not a subdivision of any other entity.” Parish property was paid for by parish funds, and legal title was in the name of the parish. The trial judge found that the parish property was never “diocesan, monastic or Church property.”
The court tried to educate itself on Orthodox history and ecclesiology. It noted that the apostolic canons (including the canon cited above) were adopted more than 1500 years ago, and that in the Russian Church, property ownership didn’t always follow a single pattern. “While the only person who could appoint a priest was the bishop, property and indeed churches belonged to various groups, including tradesmen, nobles, and the Tsars.” Orthodoxy, the court observed, has both hierarchical and congregational elements, and thus can’t be analogized to the modern day Roman Catholic Church. In a footnote, the court commented:
Unlike the Roman Catholic Church, there was evidence that in the Russian Orthodox Church authority was vested in the whole body of the laity as well as with the hierarchy; it was described as “an organic, as opposed to a juridical notion of authority.” There was also testimony that there were congregational aspects in the orthodox faith; in theory the bishop is elected by the people as well as the clergy, and that even in appointing the priest, the bishops would not impose someone upon the parish that the parish did not want.
Furthermore, the parish in question was just one of about twenty that left ROCOR at the same time, but ROCOR only demanded the property of two of the parishes. In the history of ROCOR, said the court, “[t]here has been much voluntary movement of parishes in and out of the Church, as well as in and out of the other orthodox umbrella organizations [jurisdictions].” In many of those cases, the moving parishes kept their property. Thus, said the appellate court, the trial judge wasn’t unreasonable in concluding that the parish in question was congregational as to its property.
This case presents two challenging themes: the idea that parish property isn’t necessarily “Church” property, and the concept of dual hierarchical and congregational forms of church governance, coexisting within Orthodoxy. Both themes emphasize the distinctiveness and separateness of the parish. It is, in this interpetation, an independent legal entity. It is affiliated with the diocese or Church to a certain degree, in doctrinal and even pastoral matters (e.g. the appointment of a priest), but it is not legally bound by the Church when it comes to property decisions.
All of this is paradoxical — a separation of the sacred from the profane which is foreign to Orthodox thought. And yet I’m not entirely certain that the court got it wrong. To be honest, I’m undecided about what courts should do, but this court’s logic has some merit, at least from a legal standpoint. How could we create a rule based on Primate, and applicable in nearly all Orthodox parish property cases? We could, I suppose, employ a rebuttable presumption that the parish is a legally independent entity with respect to property. We could then further employ a rebuttable presumption that the parish is congregational with respect to its internal governance. The diocese would retain control over doctrine, liturgy, and clergy appointments, but it would have to rebut the presumptions of independence and congregationalism to assert control over property. And any parish could, if it wished, explicity surrender its property independence and/or recognize an exclusively hierarchical form of government.
But… well, there are problems. Recognizing congregationalism within the parish means that a court would have to decide who qualifies as a “member.” This is a tricky issue. Qualifications for “membership” vary from jurisdiction to jurisdiction and parish to parish, and can include the payment of dues, reception of communion, and regular confession, among other things. I didn’t mention this above, but in Primate, one of ROCOR’s arguments was that the vote at the parish meeting was invalid because it was two members short of a two-thirds majority. The two missing “members,” the court found, hadn’t paid dues for a full year, and thus weren’t technically members at all. Thus ROCOR’s argument failed.
I’m beginning to see what the problem is in these parish property disputes. In Orthodoxy, the diocese — not the parish — is the basic ecclesiastical unit. The concept of “parish” has evolved over time, and even now it isn’t entirely clear-cut. Yet it is within parishes that most property disputes arise. Until we have a coherent understanding of what it means to be a “parish” and a “parishioner” (rather than just a diocese and an Orthodox Christian), we will continue to struggle with this problem.
The only real solution that I can think of is to break down the wall between parish and diocese. If all the Orthodox in America were united, and every major city had an Orthodox bishop, the dioceses would be rather small. All Orthodox property within the diocese — so, within the city and the outlying area — would be property of the diocese. Rather than being parishioners, the faithful would be members of the diocese — the Orthodox Church of __________ (Chicago, Seattle, Wichita, etc.). And the Orthodox Church of __________ would own all the formerly “parish” property in its territory. By abandoning our present jurisdictional structure and embracing a more ancient model of the Church, with smaller and more unified dioceses, we may be able to avoid cases like Primate, and the well-meaning but ultimately un-Orthodox logic that they express.
This article was written by Matthew Namee.
UPDATE: Originally, I said that the parish in question left ROCOR for the OCA. I have since been informed that the parish was one of a number of parishes that joined HOCNA, not the OCA. I have corrected the article above.
Neutral Principles of Law in a Bulgarian parish dispute
1 year ago
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.
[Emphasis mine.]
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.
