Posts tagged Benjamin Fedchenkov
Lately, I’ve been analyzing the Kedroff v. St. Nicholas Cathedral, a landmark 1952 Supreme Court case. For all the articles I’ve written on the case, click here. In this article, I am focusing on Justice Jackson’s dissenting opinion. (A brief note: in the past articles, I erroneously referred to Justice Jackson as Justice Black. I have no idea why I confused the two men. Justice Black actually agreed with the majority. Sorry for the mistake.)
Justice Jackson lets us know how he feels from the very beginning of his opinion: “New York courts have decided an ordinary ejectment action involving possession of New York real estate in favor of the plaintiff, a corporation organized under the Religious Corporations Law of New York under the name ‘Saint Nicholas Cathedral of the Russian Orthodox Church in North America.’ Admittedly, it holds, and since 1925 has held, legal title to the Cathedral property. The New York Court of Appeals decided that it also has the legal right to its possession and control.”
This is something we haven’t heard before — that the Metropolia party (i.e., “Saint Nicholas Cathedral”) actually held legal title to the property. All the New York courts tried to do, in Justice Jackson’s view, is uphold that legal title. Justice Jackson continues:
The appellant [Archbishop] Benjamin’s defense against this owner’s demand for possession and the basis of his claimed right to enjoy possession of property he admittedly does not own is set forth in his answer to the ejectment suit in these words: ‘Said premises pursuant to the above rules of the Russian Orthodox Church are held in trust for the benefit of the accredited Archbishop of said Archdiocese, to be possessed, occupied and used by said Archbishop as his residence, as a place for holding religious services, and other purposes related to his office and as the seat and headquarters for the administration, by him, of the affairs of the Archdiocese both temporal and spiritual.’ And, says the appellant Benjamin, he is that Archbishop.
Again, this is information that wasn’t clear from the majority and concurring opinions we’ve already seen. On the one hand, the Metropolia group has legal title to the property. On the other hand, the Moscow group points to a claim that, by way of Russian Church rules, the property is held in trust for the Archbishop.
Justice Jackson goes on to offer his own perspective on the history leading up to the case:
I greatly oversimplify the history of this controversy to indicate its nature rather than to prove its merits. This Cathedral was incorporated and built in the era of the Czar, under the regime of a state-ridden church in a church-ridden state. The Bolshevik Revolution may have freed the state from the grip of the church, but it did not free the church from the grip of the state. It only brought to the top a new master for a captive and submissive ecclesiastical establishment. By 1945, the Moscow patriarchy had been reformed and manned under the Soviet regime and it sought to re-establish in other countries its prerevolutionary control of church property and its sway over the minds of the religious. As the Court’s opinion points out, it demanded of the Russian Church in America, among other things, that it abstain “from political activities against the U.S.S.R.” The American Cathedral group, along with others, refused submission to the representative of the Moscow Patriarch, whom it regarded as an arm of the Soviet Government. Thus, we have an ostensible religious schism with decided political overtones.
Justice Jackson argues that this case concerns “the ownership and possession of real estate” in New York, and “the vexing technical questions pertaining to the creation, interpretation, termination, and enforcement of uses and trusts.” These are matters for the states, not the United States Supreme Court. Justice Jackson writes, “This controversy, I believe, is [...] not within the proper province of this Court.”
Justice Jackson continues, “As I read the prevailing opinions, the Court assumes that some transfer of control has been accomplished by legislation which results in a denial of due process. This, of course, would raise a question of deprivation of property, not of liberty, while only the latter issue is raised by the parties.” In other words, everyone here is talking about freedom of religion and the First Amendment, but really, this is about property, plain and simple. The fact that the parties involved are religious groups is not really relevant.
In point of fact, says Justice Jackson, no religious freedom has been violated.
It is important to observe what New York has not done in this case. It has not held that Benjamin may not act as Archbishop or be revered as such by all who will follow him. It has not held that he may not have a Cathedral. Indeed, I think New York would agree that no one is more in need of spiritual guidance than the Soviet faction. It has only held that this cleric may not have a particular Cathedral which, under New York law, belongs to others. It has not interfered with his or anyone’s exercise of his religion. New York has not outlawed the Soviet-controlled sect nor forbidden it to exercise its authority or teach its dogma in any place whatsoever except on this piece of property owend and rightfully possessed by the Cathedral Corporation.
The above paragraph stands in direct opposition to Justice Frankfurter’s opinion (discussed in my previous article), which equated possession of the Cathedral with spiritual authority itself. In Justice Frankfurter’s view, the State of New York all but deposed Benjamin as Archbishop of North America when it awarded St. Nicholas Cathedral to the Metropolia. In Justice Jackson’s view, all New York did was uphold the Metropolia’s legal ownership of the Cathedral, while doing nothing to interfere with Benjamin’s position as Archbishop.
According to Justice Jackson, just because property is “dedicated to a religious use” does not make the property dispute into a deprivation of religious liberty. “I assume no one would pretend that the State cannot decide a claim of trespass, larceny, conversion, bailment or contract, where the property involved is that of a religious corporation or is put to religious use, without invading the principle of religious liberty.”
And furthermore, aren’t both sides in this controversy religious groups? “But if both claimants are religious corporations or personalities, can not the State decide the issues that arise over ownership and possession without invading the religious freedom of one or the other of the parties?”
Referring to Archbishop Benjamin as “the Soviet Ecclesiast,” Justice Jackson writes that the Archbishop’s claim, “denial of which is said to be constitutional error,” is that the Cathedral property is “impressed with a trust by virtue of the rules of the Russian Orthodox Church” — not by virtue of New York law. “To me, whatever the canon law is found to be and whoever is the rightful head of the Moscow patriarchate, I do not think New York law must yield to the authority of a foreign and unfriendly state masquerading as a spiritual institution.”
This, then, is the dichotomy: New York property law and a New York title, versus Russian Church law and a purported trust under that law. And in Justice Jackson’s mind, when New York property law conflicts with Russian Church property law, New York law wins.
I will offer my own intitial, tentative impressions in the next article.
This article was written by Matthew Namee.
It’s been forever since I wrote an article here at OH.org. I’ve been incredibly busy, with my family, my local parish, and law school classes taking up all of my time. I’m in summer classes, as well, so there won’t be much reprieve over the next couple of months. Fortunately, I’ve found a way to mix law school and American Orthodox history. This summer, I am writing, for credit, a paper on Orthodoxy in the American courts. As best I can tell, there has been very little published on the subject, although awhile back one reader (a recent law school graduate) sent me a paper he had written on the very subject. I hope to publish my own paper at some point.
Right now, I’m up to my neck in case law, reading judges’ opinions from throughout the 20th century. There are two major US Supreme Court cases dealing with Orthodoxy — Kedroff v. St. Nicholas Cathedral (1952) and Serbian Eastern Orthodox Diocese v. Milivojevich (1976). Today, I’m going to share some thoughts on Kedroff. For the full text of the Supreme Court opinions, click here.
Kedroff deals with a dispute between the Russian Metropolia (today’s OCA) on the one hand, and the Moscow Patriarchate’s North American Archdiocese on the other. At issue is which group — the Metropolia or Moscow — should have possession of St. Nicholas Cathedral in New York City.
The basic history is as follows. Until 1917, all Russian Orthodox churches in America were under the authority of the Orthodox Church of Russia, which was governed by a Holy Synod. In 1917… well, a lot happened in 1917. First there was the February Revolution, which dethroned the Tsar. An All-Russian Sobor was then held, and St. Tikhon (formerly of America) was elected Patriarch of Moscow — the first such election since Peter the Great abolished the office of Patriarch. Just as this happened, the Bolsheviks swept into power and began to persecute the Orthodox Church.
On November 20, 1920, Patriarch Tikhon issued a document granting to the North American Archdiocese what Justice Reed (writing for the majority) refers to as “a large measure of autonomy, when the Russian ruling authority was unable to function, subject to ‘confirmation later to the Central Church Authority when it is reestablished.’” In 1924, the North American Archdiocese held an All-American Sobor in Detroit. American Orthodox historians typically view the 1924 Detroit Sobor to be the moment when the North American Archdiocese was transformed into the autonomous Russian Metropolia. Justice Reed writes, “This was followed by [...] a spate of litigation concerning control of the various churches and occupancy of ecclesiastical positions [...]”
Patriarch Tikhon died in 1925. In 1933, Metropolitan Sergius, locum tenens of the patriarchal throne, appointed Archbishop Benjamin Fedchenkov to head a new Russian Archdiocese in North America. A decade later, Sergius was elected Patriarch, but he died soon thereafter. Justice Reed: “After Sergius’ death a new patriarch of the Russian Orthodox Church, Alexi, was chosen Patriarch in 1945 at Moscow at a sobor recognized by all parties to this litigation as a true sobor held in accordance with church canons.” I hadn’t realized this — that the Metropolia recognized the election of Patriarch Alexy I as canonical.
Representatives from the American Metropolia were supposed to participate in that 1945 Sobor that elected Alexy, but they were prevented. I don’t know what the story is there (Justice Reed doesn’t know, and he’s who I’m relying on right now), but I seem to recall reading something about that in an OCA history book somewhere… I’ll have to look. Anyway, when the Metropolia reps finally made it to Moscow, they presented to the Patriarch and Holy Synod a report on the Metropolia and a request for formal autonomy. A few days later (February 14 or 16, 1945), Moscow responded with an ukase, stipulating that, for Moscow and the Metropolia to reunite, the Metropolia must:
- Promptly hold an All-American Sobor,
- Express the decision of the American dioceses to reunite with Moscow,
- Declare the agreement of the Metropolia to abstain “from political activities against the USSR,” and
- Elect a Metropolitan subject to confirmation by Moscow.
The ukase stopped short of promising autonomy, instead suggesting only that the American Metropolitan “may be given some extended powers.”
At an All-American Sobor in Cleveland in 1946, the Metropolia rejected Moscow’s offer. Thus began the events which led to this 1952 Supreme Court case. The Metropolia was headquartered in New York, and in New York state, religious corporations are incorporated by acts of the state legislature. In fact, at about this time, the other major American Orthodox jurisdictions (e.g. the Greeks and Antiochians) incorporated in New York. So too was the Metropolia incorporated by a legislative act. Justice Reed explains the act thusly:
The purpose of the article was to bring all the New York churches, formerly subject to the administrative jurisdiction of the Most Sacred Governing Synod in Moscow or the Patriarch of Moscow, into an administratively autonomous metropolitan district. That district was North American in area, created pursuant to resolutions adopted at a sobor held in Detroit in 1924. This declared autonomy was made effective by a further legislative requirement that all the churches formerly subject to the Moscow synod and patriarchate should for the future be governed by the ecclesiastical body and hierarchy of the American metropolitan district.
The majority of the Supreme Court found this act to be unconstitutional. Justice Reed: “We conclude that Article 5-C undertook by its terms to transfer the control of the New York churches of the Russian Orthodox religion from the central governing hierarchy of the Russian Orthodox Church, the Patriarch of Moscow and the Holy Synod, to the governing authorities of the Russian Church in America, a church organization limited to the diocese of North America and the Aleutian Islands. [...] Such a law violates the Fourteenth Amendment. It prohibits in this country the free exercise of religion.” In other words, the New York legislature can’t do that! They can’t modify or cut off Moscow’s jurisdiction — and, as Justice Reed explains, “Nothing indicates that [Moscow] relinquished that authority [over Russian Church in America] or recognized the autonomy of the American church.”
Furthermore, the legislative act requires the New York churches to conform to Orthodox doctrine, etc. This sounds fine and good, but, says Justice Reed, “their conformity is by legislative fiat and subject to legislative will. Should the state assert power to change the statute requiring conformity to ancient faith and doctrine to one establishing a different doctrine, the invalidity would be unmistakable.”
Of course, all this legislation was taking place at a tension-filled time in American history. This was the McCarthy Era, the Red Scare, when even a hint of Communist sympathies could ruin your life. Justice Reed agrees with the need to curtail Communist sentiments, saying, “Legislative power to punish subversive action cannot be doubted. If such action should actually be attempted by a cleric, neither his robe nor his pulpit would be a defense. But in this case no problem of punishment for violation of the law arises. There is no charge of subversive or hostile 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.”
The rationale of the majority is pretty straightforward: this is an internal church dispute in which the government may not interfere. In the view of the majority, Moscow never surrendered its authority in America. Of Article 5-C, Justice Reed concludes, “By fiat it displaces one church administrator with another. It passes the control of matters strictly ecclesiastical from one church authority to another. It thus intrudes for the benefit of one segment of a church the power of the state into a forbidden area of religious freedom contrary to the principles of the First Amendment. [...] Article 5-C directly prohibits the free exercise of an ecclesiastical right, the Church’s choice of its hierarchy.”
It’s remarkable, isn’t it, that in 1952, the Supreme Court of the United States decided a case against a local American church and in favor of a church widely regarded as under Soviet influence? But, in the majority’s eyes, they had no choice. Next time, we’ll look at Justice Frankfurther’s concurring opinion, which takes a somewhat different approach but reaches the same ultimate conclusion (that is, that Moscow wins and the Metropolia loses). After that, we’ll discuss Justice Jackson’s dissenting opinion.
I should say (and probably should have said at the beginning) that this analysis of mine is a work in progress. I’m definitely not an expert on this stuff, and I’m learning as I go. It’s entirely possible that I’ve butchered the analysis, and I’ll be revisiting everything many times before I complete my paper. I would appreciate any feedback my readers might have, and I’d especially love to hear what the lawyers out there think of the Kedroff case. These articles I’m writing are really just my own notes and impressions, but I thought readers might find the case interesting. I hope you’ll all forgive me for the inadequacies of my initial analysis. Consider yourself forewarned.
This article was written by Matthew Namee.
In conjunction with the recent podcast concerning the Federated Orthodox Greek Catholic Primary Jurisdictions in America, I thought I would publish a special, extra entry for Frontier Orthodoxy. I still plan on writing two additional columns this month. For this entry, however, I wish to provide a basic timeline of the Federated Orthodox Greek Catholic Primary Jurisdictions in America (FOGCPJA). This timeline may be useful when listening to the recent podcast on American Orthodox History over at Ancient Faith Radio.
I also wish to note that I failed to make an important connection within the interview itself. Near the beginning of the podcast, I mentioned the difficulties Fr. Boris Burden had with Metropolitan Platon. I meant to return to this later to note that the tense relationship between the two may have also been a factor that excluded the Metropolia from membership. It was not the only factor, as I mentioned the FOGCPJA’s requirement that each jurisdiction be under a Mother Church/Patriarch, but it may well have played a role. Metropolitan Benjamin (Moscow Patriarchate) relied quite heavily on Fr. Boris Burden.
I should further note that Phillies’s membership in the Masons may not have been as ill received since Archbishop Athenagoras and Metropolitan Antony were also Masons. Although Masonic membership would have likely concerned Fr. Boris Burden, it is possible that Metropolitan Benjamin showed some restraint in this regard.
Fall of 1942 (September or October): The Selective Service attempted to draft Fr. John Gelsinger. When that happened, Fr. John Gelsinger, and his father, Fr. Michael Gelsinger, contacted George E. Phillies, a family friend and local attorney in Buffalo, New York.
October 9, 1942: Phillies appealed to the federal authorities, via General Lewis B. Hershey, having gone before the local and state selective service boards. The response from Washington D.C. was that they needed to see proof of an organized Orthodox Church in America. In response to this, the hierarchs of the four primary jurisdictions met.
Fr. Michael Gelsinger (New York Syrian) and Fr. Boris Burden (Moscow Patriarchate) were the instrumental people behind the movement. Fr. Michael received commitments from Archbishop Antony Bashir and Archbishop Athenagoras and Fr. Boris Burden convinced Metropolitan Benjamin and the Bishop Dionisije, the Serbian bishop.
At the subsequent hearing at the Pentagon, Bishop Germanos, an auxiliary bishop of Constantinople, was the only testifying witness. U.S. Senator James Mead (NY, hometown of Buffalo) and Representative James Wadsworth (NY) also appealed on behalf of the Orthodox Church.
December 8, 1942: Major Simon P. Dunkle signed the paperwork instructing the selective service of New York to recognize Fr. John Gelsinger as a priest and providing Orthodox the Opportunity to enlist as Orthodox. Orthodox priests were granted the opportunity to serve as chaplains.
Phillies hailed this as the first time the four primary jurisdictions had provided a united front in America. He quickly built upon this momentum to pursue another venture: amending New York state law for religious corporations. He did this because his reading of the laws of New York convinced him that it was possible the Roman Catholic Church might claim sole legal right to the terms Greek, Catholic, and Orthodox. He also had found no legal incorporation of an Orthodox Church (jurisdiction) that would mitigate this. Individual parishes had incorporated, but the only large scale incorporations were Roman Catholic, such as the Greek Catholic incorporation in Pennsylvania.
February 10, 1943: George E. Phillies wrote to Gov. Dewey, recommending that the hierarchs visit and Dewey replies by stating they should do so after the signing.
February 19, 1943: Charles J. Tobin, secretary of the New York State Catholic Welfare Committee, wrote to State Senator Charles Burney, objecting to the proposed legislation, claiming that only Rome could use the terms Catholic or Greek Catholic.
February 25, 1943: Rev. Philemon Tarnavsky (chancellor of the diocese of Philadelphia) also wrote to Gov. Dewey and agreed with Tobin. He objected to the use of the word Catholic, which he said was linked to the Holy See in Rome. He even noted that the word Orthodox is also used by Greek Catholics, questioning whether Orthodox should use it as a self designation. Rev. Turnavsky was a Greek Catholic himself.
March 5, 1943: Episcopal diocese of Western New York wrote to support the bill (Rt. Rev. Bp Cameron J. Davis)
March 8, 1943: Phillies asked “Charlie” [Burney] for a moving picture crew and claimed there were five million Orthodox in America.
March 10, 1943: Tobin wrote to consul of the governor to object again. He included the assessment of Monsignor Tarnavsky.
March 15, 1943: Memorandum by Phillies stated the purpose(s), excluded the Metropolia, responded to Roman Catholic critics, and noted that the FOGCPJA was set up to parallel the federal/state division in the United States of America.
March 25, 1943: Governor Thomas Dewey signed the bill.
August 2, 1943: The Buffalo Evening News called Phillies the “lay head,” noted that he had dual membership in the GOC and the PEC, and was a Mason.
August 8, 1943: Concelebration.
August 22, 1943: Divine Liturgy in Kleinhans Hall (GOC too small). Archbishop Athenagoras presided, with Metropolitan Antony and Bishop Bogdan assisting (Ukrainian). By this time, the Ukrainians and Carpatho-Russians who were under Constantinople were participating in the FOGCPJA. A small internal disagreement ensued, because Frs. Boris Burden and Michael Gelsinger thought the service should have been in a larger non-Orthodox church building rather than one that was strictly secular.
Bishop Dionisije was bothered by the fact that the Carpatho-Russians and Ukrainians were under Constantinople and had other unnamed concerns. He soon quit participating.
October 3, 1943: At a meeting in Bayonne, NJ, the officers of the FOGCPJA passed the “Bayonne Resolution.” This resolution stated all officers of the Federation must be Orthodox, with no sacramental participation in non-Orthodox churches. Another problem that arose was that the Federal Council of Churches of Christ in America had received a letter (likely sent by Phillies) asking for membership.
October 7, 1943: Articles signed by the bishops and the Federation is legally incorporated. Archbishop Athenagoras had been chosen as the presiding hierarch. Fr. Peter Horton-Billard was chosen as secretary, replacing Fr. Boris Burden. Phillies remained the elected chancellor.
October 8, 1943: Burden called the elections “conditional.”
November 1, 1943: Russians threatened to leave over concerns with Phillies.
December 18, 1943: Marriage served jointly by Fr. E Wolkodoff, a Metropolia priest, and PE priest J. Coseby. Metropolitan Benjamin suspended the priest. At this point, the Federation was suspended.
February 2, 1944: Meeting: 1) no “lay head” 2) hierarchs are the leaders 3) Orthodox cannot be communicants elsewhere 4) “chancellor” means “legal advisor” and nothing more. Metropolitan Benjamin also said he had the support of Patriarch Sergius.
Around this same time, Patriarch Sergius wrote to Metropolitan Benjamin, offering permission to be active in the Federation, but Metropolitan Benjamin and Fr. Boris Burden were preparing to renege on the FOGCPJA.
Early October 1944: Metropolitan Benjamin said Phillies was no longer the chancellor. Phillies claimed he was.
November, 1944: Russians officially pulled out. By early 1945, the FOGCPJA was basically dead, though Metropolitan Antony Bashir kept it alive on paper.