John Quincy Adams, 1818

On January 20, 1811, an Orthodox baptismal service took place at the home of the future President of the United States John Quincy Adams and his wife Louisa. At that time they were living in St. Petersburg, Russia. Louisa Adams took an active part as one of the Godparents of the little girl being baptized, along with her fellow sponsors Martha Godfrey (the Adams American chambermaid) and Mr. Francis Gray, one of the secretaries to the American legation in Russia.

John Quincy Adams later became the sixth President of the United States, serving his one term of office between 1825 and 1829. He was the eldest son of the second U.S. President, John Adams. From a young age John Quincy lived in Europe with his father, as the latter served as American representative in France and the Netherlands. At the relatively tender age of 14, in 1781, John Quincy travelled for the first time to Russia as secretary to Francis Dana whose mission was to obtain recognition by Russia of the nascent American republic. This initial visit was to last almost 3 years.

John Quincy returned there for a further 5 years in 1809 when President James Madison appointed him as the first fully credentialed US ambassador to Russia. In this role his wife, Louisa Catherine Johnson Adams, who holds the distinction of being the only foreign born First Lady of the United States, ably supported him. (She was born in London to an English mother and American father.)

So how did Louisa Adams and the other Americans become co sponsors of an Orthodox baptism? As John Quincy recounts, on Russian New Year’s Day, 1811, his footman Paul, a Finnish man of Lutheran faith and his wife, “a Russian of the Greek church,” had a baby daughter. Because of the mother’s faith it was agreed that the child “was to be christened according to the fashion of the Greek Church.” At the request of the Lutheran footman Paul, Mrs Adams and Martha were asked to stand as Godmother and Mr. Gray as Godfather. The baptism took place at 8 o’clock in the evening in the parlor of the Adams home. The service was conducted by a priest “and an inferior attendant not in clerical habits, who chanted the Slavonian service, the priest from a mass book.”

Given the unusual time and location of the baptism and the use of non-Orthodox sponsors, (assuming none of the Americans had converted), one has to wonder if the child’s life was in danger and hence the unusual circumstances. Because at that time the calendar difference was 12 days, the evening of January 20, would have been the eve of the child’s eighth day, the traditional time for its naming. But whether this was deliberate or co-incidental cannot be said. It may also be that John Quincy Adams, as the head of the extended household, influenced the timing. In September of the same year the resident English chaplain of the Russia Company also baptized in his home, but according to the rite of the Church of England, his daughter Louisa Catherine. In connection with this baptism John Quincy wrote: “ (T)he rite itself, the solemn dedication of the child to God, I prize so highly, that I think it ought never to be deferred beyond a time of urgent necessity.”

In any event, John Quincy describes the service in meticulous detail. He writes:

A plated vessel of the size of a small bathing tub contained the water, which the priest consecrated at the commencement of the ceremony. Three tapers were at first fixed at the end most distant from the priest and at the two sides of the baptismal vase. The child was brought in and held by the nurse, until the priest took it naked and plunged it three times into the water. With a pencil-brush before and after plunging, he marked a cross on its forehead and breast, and finally on its forehead, shoulders and feet – repeating the same thing afterwards with a wet sponge. A shirt and cap, provided by the godmother, were then put upon the child, and a gold baptismal cross, furnished by the godfather. Tapers lighted were put into their hands, two of them from the sides of the vase, round which they marched three times, preceded by the priest. He then with a pair of scissors cut off three locks of the child’s hair, which, with wax, he rolled up into a little ball, and threw into the water in which the child was baptized; and finally, after a little more chanting from the book, the ceremony was concluded. During the first part of the ceremony the priest turned his back to the vessel of water, and the sponsors, with the nurse and child, to the priest. Another singularity was that at one part of the ceremony they were all required to spit on the floor.

John Quincy’s diaries report numerous other experiences of Orthodox worship during this second period in Russia, including attending the Paschal night service and a liturgy followed by veneration of the relics of St. Alexander Nevsky that took place at the monastery in St. Petersburg which bears the name of the saint. From a brief review of his diaries covering his five years in Russia as Ambassador it seems that Adams attended at least 50 Orthodox services, most commonly Te Deums, the short Orthodox service of thanksgiving and intercession. His writings also evince an interest in questions such as the dating of Easter and the moment of the descent of the Holy Spirit in the eucharistic liturgy.

His experience of Orthodox services was far from being uniformly positive: In describing a baptism at St. Isaac’s Cathedral he recalls that, “The choir of singers at the left hand of the chancel was small, the singing, as usual, excellent.” But he moves on to say

The mothers appeared delighted to have obtained the blessings. The multitude of self crossings, the profound and constantly repeated bows, the prostrations upon the earth and kissing of the floor, witnessed the depth of superstition in which this people is plunged perhaps more forcibly then I had seen before.

Perhaps surprisingly his attitude to the Orthodox practice of fasting and abstinence was more positive. He recounts a conversation with his Russian landlord during the second week of Lent that is worth quoting in full:

He spoke of their Lent, of which this is the second week. They keep their first and last week with great rigor, and in them they are not allowed to eat fish, no animal food of any kind – scarcely anything but bread, oil and mushrooms. The common people he says, consider a violation of the Lent as the most heinous of crimes. Murder, they suppose, may be pardoned, but to break the fast is a sin utterly irremissible. He himself kept the fast last week, not from a religious scruple, but because he thought it a salubrious practice, and a useful one to form a habits of self-denial. I am of that opinion myself, and I have often wished that the reformers who settled New England had not abolished the practice of fasting in Lent. I am convinced that occasional fasting, and particularly abstinence from animal food several weeks at a time, and every year, is wholesome, both to body and mind. It is true that fasting is not expressly enjoined in the Scriptures, and therefore cannot be required as a religious observance; but, unless prescribed by a principle of religion, there is no motive sufficiently powerful to control the appetites of men.

John Quincy Adams’ engagement with Orthodoxy in the context of his ambassadorial duties was clearly substantial. In recent years it has become popular to refer to Orthodoxy as “the best kept secret in America.” The more I read from early sources the more it seems that Orthodoxy was in fact much better known two hundred years ago then now, at least amongst the educated and ruling classes of the nascent Republic. This is a theme to which I shall perhaps return in subsequent articles.

Nicholas Chapman, Herkimer, New York, January 20, 2012

An Orthodox Baptism in the home of John Quincy Adams – and much more besides is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

If you’ve read the last two issues of our SOCHA newsletter, you know that Holy Protection OCA Cathedral in New York City is in the middle of a fight with the city’s Landmarks Preservation Commission (LPC). Here’s how I described the situation in the most recent newsletter:

In last month’s newsletter, I mentioned the plight of Holy Protection OCA Cathedral in New York City. The cathedral community is in a fight with the city’s Landmarks Preservation Commission, which is trying to have the cathedral declared a historic landmark against the wishes of the cathedral itself and its diocesan bishop. If the Commission is successful, the cathedral will be forced to get government approval for any changes to the church exterior. They may also be forced to make “improvements” deemed appropriate by the city. This is an unacceptable infringement on the religious freedom of the cathedral community in the name of “historic preservation.” As I said last month, I’m (obviously) a huge supporter of preserving history, but we don’t need the government telling us how to do it. Here is an update from Fr. Christopher Calin, dean of the cathedral: “The Community Board #3 voted 32 to 9 to endorse the Landmark District which would include our Cathedral and other houses of worship in the EV [East Village]. We are currently working with a Local Faith Communities group to find alternatives to the forced landmarking of our buildings and have a meeting scheduled for 9/12 with the Commissioner of the Landmarks Preservation Commission (LPC) Tierney. There is support to NOT designate religious institutions as individual landmarks, but the well-funded and staffed preservationists are lobbying the LPC and city council members very hard.” We at SOCHA strongly and officially support the cathedral in its efforts to resist the coerced landmarking. In a future article, we’ll let you know how you can help.

As I indicated, Bishop Michael Dahulich has already voiced his disapproval of the forced designation of his own cathedral. In a letter to the chairman of Community Board 3, Bishop Michael wrote,

We are not against preservation or even an historic district designation for the East Village, but the forced individual landmark status of our cathedral and other houses of worship and will place time-consuming and costly demands on parishes to make application and receive permission from the Landmarks Preservation Commission every time the parishioners need to change a window, put in an air conditioner, paint a gate, install a new sign, or replace doors, roofs or steps.

But  it’s actually even worse than that. The cathedral was originally a Protestant church. Fr. Christopher Calin told me that back when the then-Russian Metropolia acquired the building in the 1940s, it drew up plans for a complete redesign of the exterior. The plan called for a much more traditional Orthodox appearance, with cupolas and so forth. The plans have never been enacted, in part because of funding issues, but there’s still hope that the community will eventually raise the money for it. If the landmark designation is imposed, though, the cathedral would have to get government approval of the design before they could move forward. As I understand the process, that would involve a public hearing at which any citizen could come in and argue against the cathedral’s plans. So you could have the City of New York blocking the addition of Orthodox architectural elements (such as domes and icons) because they would alter the historic (Protestant) exterior of the building. In that case, “preserving history” would amount to preserving Protestant architecture and suppressing the Orthodox owners’ right to freely exercise their religion via Orthodox architectural expression.

In Orthodoxy, and indeed in nearly all religions, religious architecture is a religious matter. Domes, icons, crosses, the shape of the building; it’s impossible to separate these elements from our Orthodox faith itself. When I attended St. George Cathedral in Wichita, they added gorgeous mosaics to the exterior of the building. Had the cathedral been a historic landmark, the church would have needed government approval for those icons — and if the government thought that the icons unacceptably changed the original look of the church, then the church would have been prohibited from adding them. This is a blatant violation of religious freedom.

But it goes beyond the simple fact that church architecture is intrinsically religious. Take, for instance, the addition of an air conditioner. Should the church be prevented from adding the air conditioner of its choice, simply because it happens to be in an old building? Should it be forced to make a case to the government, and undergo a public hearing, simply to replace a broken window? This is what Historic Preservation does: it puts decision-making power over churches into the hands of government bureaucrats.

To those who say that one’s choice of air conditioning unit is not really an ecclesiastical matter, I ask this: who gets to decide whether an issue is ecclesiastical or not? Who is qualified to make that decision? As I’ve argued in the past, the question of whether something is ecclesiastical is, itself, ecclesiastical. And we absolutely, constitutionally, cannot have the civil government making those decisions.

Forced preservation has another problem: it violates the authority of the bishop. Ultimately, the proper authority over Holy Protection Cathedral is the OCA Bishop of New York, Michael Dahulich. Above him is the Holy Synod of the OCA. As long as the church architecture doesn’t present a safety problem, how on earth can the civil government justify usurping the bishop’s authority and dictating to a church what design elements are acceptable and what are not?

We’re not talking about the type of government justifications that most people accept — things like fire code, building code, etc. The government’s interest isn’t safety — it’s the nebulous concept of “history.” Why, exactly, is the City of New York the proper judge of what constitutes proper preservation of Orthodox Church history? As an Orthodox Christian historian, I would argue that the work of church history, including its preservation, is an inherently religious exercise. To compartmentalize it, and to divorce it from the life of the church, is contrary to Orthodoxy. But that is what the historic preservationists of New York are attempting to do: they’re attempting to place the final decision over church architectural design into the hands of the civil government. That, my friends, is both unconstitutional and just plain wrong.

And if you think this is just a minor issue for one community, think again. How old is your church? If it’s more than, say, 50 or 70 years old, it’s at risk of the same problem. We all have an interest in preserving history, but we have a greater interest in preserving religious freedom. We have an interest in preserving our freedom to preserve our religious history as we, as Orthodox, see fit. We do not need the government to tell us how to preserve our history, against our will. That does violence to the First Amendment and, indeed, to the actual preservation of history itself.

This article was written by Matthew Namee.

New York OCA Cathedral’s fight for religious freedom is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

This is the second issue of our SOCHA newsletter, first introduced last month. If you know of anything we should include in the next issue, or to offer any other feedback about the newsletter, please email me at mfnamee [at] gmail [dot] com.

WHAT’S NEW AT SOCHA?

• Today, August 15, is the last day to get the early-bird discount on your registration fee for the upcoming SOCHA symposium at Princeton. The symposium takes place on August 30 and September 1. For more information, see the symposium’s web page or send an email to florov@princeton.edu.
• The first issue of the Journal of American Orthodox Church History (JAOCH) will be launched THIS WEEK. The cost is $10. We’ll have lots more information in the coming days, so stay tuned.
• Things have been rather slow lately here at OrthodoxHistory.org, and for that, I apologize. A brief update on my personal research: As many of you know, my recent studies have been focused on Orthodoxy and the US civil courts. I’ve completed an initial paper on the subject. First, I review the history and existing rules used by courts. I then dissect those rules and (attempt to) demostrate why they don’t work, either constitutionally or in practical application to Orthodox cases. Finally, I propose an alternative approach which (so I argue) avoids the constitutional problems and also works better for the Orthodox Church. I’ll be presenting a short version of my paper at the upcoming SOCHA symposium, although (1) I may focus on the history and current rules rather than my proposed alternative, and (2) I won’t actually be presenting the paper in person. Unfortunately, circumstances prevent me from attending the symposium, so I’ll have a friend present the paper on my behalf. In addition to that short paper, I plan to submit my longer paper to a scholarly legal journal. So, yeah — that’s what I’ve been up to in terms of historical research.

IN THE NEWS:

• In last month’s newsletter, I mentioned the plight of Holy Protection OCA Cathedral in New York City. The cathedral community is in a fight with the city’s Landmarks Preservation Commission, which is trying to have the cathedral declared a historic landmark against the wishes of the cathedral itself and its diocesan bishop. If the Commission is successful, the cathedral will be forced to get government approval for any changes to the church exterior (anything from replacing a broken window to adding an onion dome). They may also be forced to make “improvements” deemed appropriate by the city. This is an unacceptable infringement on the religious freedom of the cathedral community in the name of “historic preservation.” As I said last month, I’m (obviously) a huge supporter of preserving history, and so are the folks at the cathedral, but we don’t need the government telling us how to do it. Here is an update from Fr. Christopher Calin, dean of the cathedral: “The Community Board #3 voted 32 to 9 to endorse the Landmark District which would include our Cathedral and other houses of worship in the EV [East Village]. We are currently working with a Local Faith Communities group to find alternatives to the forced landmarking of our buildings and have a meeting scheduled for 9/12 with the Commissioner of the Landmarks Preservation Commission (LPC) Tierney. There is support to NOT designate religious institutions as individual landmarks, but the well-funded and staffed preservationists are lobbying the LPC and city council members very hard.” We at SOCHA strongly and officially support the cathedral in its efforts to resist the coerced landmarking. In a future article, we’ll let you know how you can help.
• On August 31, 1963, a major gathering of thousands of Orthodox young people took place in Pittsburgh. It’s an event that we should eventually discuss here at OrthodoxHistory.org. The Orthodox Christian Laity organization (OCL) is looking for video of that event. Here’s a statement from OCL’s executive director, George Matsoukas: “Since December 2010, we have conducted a search that includes contacting most Archdioceses and various dioceses of all Orthodox Jurisdictions, individual hierarchs, clergy, laity and various archives, as well as CBS, looking for the 1963 ‘Lamp Unto My Feet’ Documentary of the CEOYLA Pittsburgh Festival. If you know anyone who has it, please contact me via ocladmin@ocl.org. We want to keep the memory alive of this great event. It is a shame that somehow the video tapes have disappeared. Thank you for your consideration.”
• A Russian expedition to Alaska began on July 16 and continues through the end of this month. From the article: ”During the expedition its participants will be collecting ethnographic material, writing an academic diary, questioning local people and describing the land.” The plan is to make a film and a school manual about Alaska for Russian students.
• Speaking of Alaska, on July 15 in Moscow, an event was held to mark the 270th anniversary of discovery of “Russian America.”
• On September 9-10, St. Theodosius OCA Cathedral in Cleveland will celebrate the 100th anniversary of its construction. The cathedral was founded in 1896, making it one of the oldest Orthodox parishes in the United States, and the current temple was built in 1911.
• Another centennial was celebrated in South Bend, Indiana, where Ss. Peter and Paul Serbian Orthodox Church was founded in 1911.
• The Secretariat of our Assembly of Bishops has begun a series of interviews with the hierarchs of the Assembly. The first five interviews, conducted by Fr. Josiah Trenham, are available on the Assembly website. Eventually, there will be interviews with every active Orthodox bishop in America. Over at the respected Orthodox blog Byzantine, Texas, the author had this reaction to the interviews: “Having listened to some of these talks, let me say they are not fluff. Fr. Josiah Trenham asks direct, probing questions and the bishops answer with great candor.”

NOTABLE LINKS:

• A video in memory of Fr. John Meyendorff was recently produced and is available on YouTube. Meyendorff, a longtime professor and former dean of St. Vladimir’s Seminary, died in 1992. He was one of the most influential theological writers in American Orthodoxy. To learn more, see this article from the St. Vladimir’s website.

 Matthew Namee, Editor

SOCHA Newsletter, Issue #2 (August 15, 2011) is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

Right now, I’m fully immersed in work on my big paper on Orthodoxy and the civil courts. I just thought I’d offer some notes on a case I just read, Kidist Mariam Ethiopian Orthodox Tawahedo Church, Inc. v. Kidist Mariam Ethiopian Orthodox Tawahedo Church, Inc., a 1995 Georgia Court of Appeals case involving the split of an Ethiopian Orthodox parish. (And yes, the case is Kidist Mariam Church versus Kidist Mariam Church — both factions claimed to be the “true” church.)

The basic facts are as follows: In 1993, the Kidist Mariam board of directors, “after a vote by the congregation,” fired the parish priest. The priest told the archbishop, who responded by disbanding the board of directors. This led to a split in the parish — the “Atlanta Group” sided with the archbishop, while the “Decatur Group” was led by the old board of directors. Both groups elected new boards of trustees and claimed the right to control the parish funds. Hence this court case.

Rather than defer to the bishop’s definition of which group constituted the “true” parish, the court applied the neutral principles of law approach. The parish articles of incorporation stipulated that the parish was autonomous with respect to the ”internal affairs of the corporation.” The parish bylaws indicated acceptance of the archbishop’s authority only over religious, spiritual, and liturgical matters. Based on these facts, the court concluded that Kidist Mariam was a “hybrid” congregational/hierarchical church.

The court ruled that, “even assuming Archbishop Matthias was authorized in declaring the removal of the corporation’s Board of Directors because of their decision to remove Rev. Haregewoyn as priest of the Kidist Mariam Church, neither the Archbishop nor the Atlanta Group had authority to appoint the corporation’s Board of Directors.” So the Atlanta Group (i.e. the pro-archbishop group)’s new board elections didn’t conform to the parish articles of incorporation and bylaws; meanwhile, the Decatur Group’s board elections were consistent with those official documents. The result? A victory for the Decatur Group, and a loss for the archbishop’s faction.

I find the court’s reasoning curious — and not in a good way. The court has confused the legitimacy of the archbishop’s decision to disband the original board of directors with the legitimacy of the Atlanta Group’s new board. It is entirely possible (probable, even) that no board is legitimate — that the archbishop’s board failed to conform to the parish governing documents, but the Decatur Group’s board failed to qualify even as church members in the first place.

Membership status in a parish is an ecclesiastical (religious, spiritual, liturgical) matter. The archbishop had the authority to determine who was and wasn’t a parish member — and that means he had the authority to disband the board (because you can’t serve on the board if you’re not a parish member). If the archbishop declared the entire Decatur Group not to be parish members on the grounds that they rebelled against his ecclesiastical authority and purported to fire the priest… well, the archbishop had the right to do that, and it seems like he had a pretty good reason. I mean, you can’t have parish boards firing priests — not in the Orthodox Church, and while I know the Ethiopian Church isn’t in communion with the Eastern Orthodox Churches, I don’t think their ecclesiology on that point differs from ours.

The court’s reasoning demonstrates — as do so many other cases — that the neutral principles approach to Orthodox parish disputes is fatally flawed. It assumes that a real distinction exists between ecclesiastical and non-ecclesiastical issues, when in fact Orthodoxy permits no such dichotomy. Here, the issue of which was the “real” board hinged, in large part, on the issue of who were “real” parish members. That’s an ecclesiastical question, and the court overstepped its bounds when it ignored this fact.

This article was written by Matthew Namee.

Notes on an Ethiopian Orthodox court case is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

In the Supreme Court cases Kedroff v. St. Nicholas Cathedral and its successor Kreshik v. St. Nicholas Cathedral, the highest court in the country ruled against the Metropolia and in favor of the Moscow Patriarchate in a dispute over church property. But Moscow didn’t win all the time. The 1962 Ohio Court of Appeals case St. Peter and St. Paul’s Church of Lorain, Ohio v. Burdikoff had the opposite outcome, which is set forth in a fascinating judicial opinion.

At the outset, the court offers this introduction to the Orthodox Church as a whole:

The temptation is very great to detail the history of the Orthodox Greek Catholic Churches of the Eastern Confession. The historical development of Christianity in the eastern churches is a subject that is not stressed in our schools, yet out of the Greek Catholic Churches much of the early foundation of the Christian Church was formed. The lives of its saints, and writings of its scholars, are worthy of emulation and study.

Not exactly what you’d expect to read in a secular judge’s opinion, huh? Anyway, onto the case.

Ss. Peter and Paul Church in Lorain, OH was founded in 1912 under the Russian Archdiocese of North America, which in turn was under the Russian Orthodox Church. At the 1924 All-American Sobor, the Archdiocese declared itself to be autonomous of Moscow, transforming itself into the “Russian Metropolia.” The Lorain parish formally submitted to the Metropolia by 1925. In February of that year, the parish filed an action in court to transfer the title of its property from Archbishop Alexander Nemolovsky (who had been the Russian primate in America) to the parish corporation itself. The court agreed, and title was successfully transferred.

From 1925 until 1960, the Lorain parish was served by clergy under the Metropolia. The parish participated in the Metropolia’s sobors, sent contributions to the Metropolia, and otherwise behaved as a parish of the Metropolia. No one questioned or challenged this fact. The parish didn’t split into pro-Moscow and pro-Metropolia factions, and Moscow itself never tried to take control of the parish.

In 1957, Fr. George Burdikoff became rector of Ss. Peter and Paul. Burdikoff had previously been a priest of ROCOR, but he later joined the Metropolia. Upon arrival in Lorain, he apparently received a 10-year contract to serve as the parish priest. (Incidentally, was this a common thing? It seems really strange to give a priest an employment contract, but the court treats it as an established fact.)

At first, Burdikoff continued to serve under the Metropolia, but in 1960, he secretly switched his allegience to Moscow, whose archbishop then appointed Burdikoff as rector of the Lorain parish. In other words, with Burdikoff’s secret transfer, Moscow now began to claim authority over Ss. Peter and Paul Church.

The court was faced with two questions:

1. Who has the right to control the parish property – Moscow or the Metropolia?
2. Is the Lorain parish still bound to fulfill Burdikoff’s 10-year contract?

The biggest question is the first, and the court spends a lot of time addressing it. To begin with, the court reasoned as follows:

1. The Lorain parish was clearly founded under Moscow. (And I should note here that when the parish began in 1912, the Church of Russia was governed by a Holy Synod, rather than a Patriarch. I’ll refer to “Moscow,” but you should take that to mean “Church of Russia.”)
2. But in 1925, the parish submitted to the autonomous Metropolia, and Moscow did nothing (with regard to Lorain specifically).
3. In an interesting (and, to me, deeply flawed) argument, the court pointed out that Moscow and the Metropolia are both members of the World Council of Churches. The WCC only accepts autonomous churches as members; it follows, then (says the court) that by being a WCC member, Moscow must accept that the Metropolia is in fact autonomous.
4. “Thus for 35 years one autonomous church body has occupied the church building, received dues and other monies, supported its superiors, and the superior church body, the Metropolia. In all this time the church which formerly claimed spiritual and temporal jurisdiction [Moscow] has done nothing to oust the group which it calls schismatic from occupation and control of the Lorain Church. It now seeks to do so by the subterfuge of a priest who has switched allegience when it best served his personal interest.”

As a general rule, when a member parish withdraws from a hierarchical church, they can’t take church property with them. Moscow argued that this rule, combined with the Supreme Court’s opinions in Kedroff and Kreshik, means that they should win. The court disagrees. Kedroff and Kreshik don’t apply here, the court says, because in those cases the New York government (first the legislature and then the judiciary) tried to transfer church property from Moscow to the Metropolia. Here, that’s not happening — in fact, Moscow is trying to get the Ohio courts to support a transfer in the other direction, from the Metropolia to Moscow.

The court continually reiterates that the Lorain parish was under the Metropolia for “35 years” without a complaint from Moscow. This is important because it opens the door to the application of several legal principles:

• Adverse Possession. Let’s say that I own a piece of land, but a squatter moves onto that land and starts acting like an owner. I know about the squatter, but I don’t do anything to oppose him. If he does this for long enough, according to the common law principle of adverse possession, he can become the new legal owner of the property. It’s possible to apply this concept to the Burdikoff case — the Metropolia exercised control over the Lorain parish for 35 years, presumably with Moscow’s knowledge but without its opposition. Under adverse possession, if Moscow was the rightful owner, it isn’t anymore.
• Laches. Here, the basic idea is that you can’t wait forever to assert a legal right — an “unreasonable delay” in asserting your rights can be interpreted by the courts as a forfeiture of those rights. Here, if Moscow once had the right to control the Lorain parish, they forfeited that right by failing to assert it for 35 years (which fits any definition of “unreasonable delay”).
• Estoppel. Similar logic applies here. Moscow may be estopped (forbidden, basically) from asserting its rights over the Lorain parish because it waited so long and knowingly allowed the Metropolia to control the parish for 35 years.
• Waiver. More of the same — the idea here being that Moscow essentially waived its rights over the Lorain parish by tolerating the Metropolia’s control over it for so long.

Underlying all of these theories is the principle that you can’t just wait forever to assert a legal right. Whatever rightful control Moscow may once have had over the parish, it lost it by waiting so long.

It’s easier to dismiss Burdikoff’s claim that he had a 10-year contract with the parish. The court found that Burdikoff breached the contract when he submitted to Moscow: “he cannot now be heard to complain that he is deprived of a right under a contract which he himself repudiated.”

Long story short, this is a rare victory for the Metropolia over Moscow.

This article was written by Matthew Namee.

Metropolia beats Moscow in court is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

Sorry for the long delay between articles… I’ve been terribly busy, I’m afraid. Here are notes on five of the many, many Orthodox court cases I’ve been researching lately. These cases fit broadly into the category of “deference,” where the courts tend to defer to the higher church authorities (bishop, diocese, mother church, etc). The other line of cases are of the “neutral principles of law” variety, and I’ll summarize more of those in the future.

• Russian Church of Our Lady of Kazan v. Dunkel, 310 N.E. 2d 307 (1974)
  • Which faction is the true parish? Parish organized under the Metropolia. In 1969, a faction tried to transfer the parish to ROCOR. The court found that the parish had been indisputably under the Metropolia from the time of its establishment in 1942 up to the schism in 1969.
  • Regarding whether the Metropolia had been a part of ROCOR, the court said, “The record supports the conclusion that the Metropolia never became merged in the Synod of Bishops and Kazan therefore owed no allegiance to the Synod.”
  • Parish property belongs to the Metropolia faction.

• Colin v. Iancu, 267 N.W. 2d 438 (1978)
  • Parish was part of the Romanian Orthodox Episcopate in America (ROEA) under Bishop Valerian Trifa. Dispute between priest and bishop; bishop removed priest, and in response, a majority of the parish voted to leave the ROEA. Bishop then defrocked priest. Trial court granted property to the ROEA faction.
  • Along the lines of Dunkel, here one faction of the parish sought to leave its original jurisdiction. In such cases, the “faithful minority” (as the court puts it) is entitled to keep the property.
• Draskovich v. Pasalich, 280 N.E. 2d 69 (1972)
  • Part of the Bishop Dionisije Milivojevich controversy – one faction of the parish favored the Mother Church, the other Bishop Dionisije. Trial court ruled in favor of the Dionisije faction, finding that the Mother Church lacked the legal authority to divide the diocese.
  • The opinion is lengthy, but the appellate court’s conclusion is rather simple: the parish “was organized as a church within the hierarchy of the Mother Church and therefore those who remain loyal to the Mother Church are entitled to control and use of the property in question.”
• Kendysh v. Holy Spirit Byelorussian Autocephalic Orthodox Church, 850 F.2d 692 (6th Cir., 1988) (unpublished opinion)
  • First of all, the jurisdiction in question (Belarusian Autocephalous Orthodox Church) is a tiny, non-canonical body currently headquartered in Brooklyn. Holy Spirit Church was organized in 1971 and was part of the BAOC prior to a 1980 schism.
  • Key issue: can the BAOC’s new constitution/statute invalidate previous bylaws of member parishes?
    • Statute is valid.
    • Parish was part of the BAOC prior to the schism.
    • Therefore, BAOC’s statute governs the parish. According to the statute, in the event of parish liquidation, parish property belongs to BAOC.
  • Court: “As the district court noted, once a local parish submits itself to the authority of a central hierarchical church, provisions in the central church’s constitution override inconsistent provisions in the local church’s articles of association.”
• All Saints Church v. Kedrovsky, 156 A. 688 (1931)
  • Hartford dispute. Both sides now actually repudiate Kedrovsky. Plaintiff recognizes Metropolitan Platon, defendant recognizes Archbishop Apollinary (ROCOR).
  • Definition of an Orthodox parish under Russian Church law (not sure what exactly): “an association of Orthodox Christians composed of the clergy and laity living in a definite locality and united around a temple, forming part of a diocese, under the canonical administration of the diocesan Bishop and under the guidance of a Rector appointed by the latter.” Stated as elements:
    • Association of Orthodox Christians (clergy and laity)
    • Living in a definite locality
    • Temple (church building)
    • Part of a diocese
    • Under a diocesan bishop
    • Under a rector appointed by the diocesan bishop
  • Court rules in favor of the ROCOR faction, reasoning that Platon’s legitimacy comes from three possible sources:
    • Appointment by Patriarch Tikhon, but the court found that a patriarch can only make a temporary appointment, not a permanent one.
    • Appointment by the ROCOR synod, but in 1927 ROCOR removed Platon from office.
    • Confirmation by the Metropolia at the 1924 All-American Sobor in Detroit. But the court saw this as a negative, but the court saw this as a negative, reasoning that the sobor was “a movement hostile to the continuance of the established organization of the church general.”
  • The court really likes ROCOR, viewing it as the best way to handle a bad situation. The court is unsympathetic to the Metropolia’s desire to be independent of ROCOR.

This article was written by Matthew Namee.

Five court cases is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

Lucy Pickens, mother of a baptized Orthodox Christian, was featured on the Confederate $100 bill.

This is about as unlikely a title for an article on American Orthodox history I ever expected to come up with! But a visit to a used bookstore in Canada a week ago has thrown up some whole new avenues for research. I found a slender volume entitled “Lincoln and the Russians.” (Woldman, Albert A., Lincoln and the Russians. New York: Collier Books, 1952. )  I haven’t finished reading the book yet but it already underscores to me how essential it is to research the history of Orthodoxy in the Americas within the wider context of the relationship between the “Great Powers” of the world stage from the fifteenth century to the present. (More on this theme at a later date, God willing.)

The story I want to recount today is not found in this book: rather a search suggested itself to me after I started reading the book. So here is the headline:

An Orthodox Christian fired the First Shot in the American Civil War!

How could this be you ask? Well, truth is, there seem to be a number of different understandings of what constitutes the first shot of the Civil War and who it was that fired it. But I want to share one of the most common ones here as it relates to a fascinating detail of Orthodox history in the USA. In 2011 we are remembering the one hundred and fiftieth outbreak of the civil war, which is generally dated to April 12, 1861. That was the day the Confederates opened fire on the Union controlled Ft. Sumter in Charleston, South Carolina. (Some people reckon the date back to January 9, 1861 when the ship “The Star of the West” was sent to re-supply the Union forces in Charleston harbor and was driven away by Confederate fire.)

According to Southern folklore, it was the young daughter of the Governor of South Carolina who was given a lighted taper to fire the first cannon, by her father the Governor. (Some versions place this in January, some in April 1861.) What is well documented is that the Governor of South Carolina was Francis W. Pickens. He became Governor only weeks before South Carolina became the first state to secede form the Union on December 20, 1860. His daughter was also given the name Francis, although she was more commonly referred to as “Douschka. “ (That’s Russian for “Little Darling.) The little girl’s Russian connection is also suggested by her full legal name: Francis Eugenia Olga Neva Pickens.

So what was Francis W Pickens doing before he became the sixty-ninth Governor of South Carolina? (As an aside it is interesting to note that Philip Ludwell I is officially listed as the ninth.) Pickens was the US Ambassador to Russia. Whilst there, he and his third wife, Lucy Petway Holcombe, became intimate friends of the Russian Czar Alexander and his German born wife Marie of Hesse. Such close friends that when the Pickens’s daughter was born they agreed that she would be baptized as an Orthodox Christian and the Czar and Czarina stood as her Godparents. It was the Czarina who insisted she take the names “Olga” and “Neva.” The Czar simply took to calling her “Douschka.” The baptism took place in the Imperial palace in St. Petersburg in 1859.

I have found no evidence thus far to suggest that Governor Pickens or his wife Lucy embraced Orthodoxy. However, they are said to have studied the differences between Orthodox, Catholic and Protestant doctrine. There is also a very beautiful account of their attending the Easter Night service in St. Petersburg.

Lucy Pickens went on to be known as “The Queen of the Confederacy” and she is the only woman depicted on the currency of the Confederate States of America. The “Holcombe Legion” of the Confederate Army was named after her and she reputedly funded it by the sale of diamonds given her by the Russian Czar. Douschka likewise went on to live a colorful life and became known as “The Joan of Arc of Carolina.” This was for her leadership in the post Civil War “Red Shirt” movement which fought openly to defeat Republican political candidates and limit the civil rights of the newly freed black population. All very ironic, given that it was her Godfather, Alexander II who liberated the serfs in Russia!

To conclude, here is the Douschka Pickens Civil War story as recounted in a book from the beginning of the twentieth century:

 “It is said that General Pickens on the twelfth day of April, 1861, at Charleston, took his little daughter in his arms and placed in her tiny hand the lighted match that fired the first gun of the war on Ft. Sumter. Mrs. Pickens held all through her life the friendship of the Imperial Family of Russia, and on the marriage of their daughter, ‘Douschka,’ a silver tea service was sent to her by the Imperial Family.” (Logan, Mrs. John A, The Part Taken by Women in American History, Wilmington, Delaware: The Perry-Nalle Publishing Co., 1912.)

Copyright – Nicholas Chapman, Herkimer, New York, June 27, 2011

Orthodoxy and the First Shot of the American Civil War is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

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.

Hierarchical, Congregational, and the problems of the “parish” is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

I’m assuming, in this short article, that you’ve read about Serbian Diocese v. Milivojevich. But for those who haven’t: the Serbian Holy Assembly deposed Bishop Dionisije Milivojevich, and Illinois courts basically overruled the deposition on the grounds that the Holy Assembly hadn’t followed its own rules. The US Supreme Court reversed the judgment, holding that secular courts must defer to the decisions of higher church authorities in hierarchical churches. Even if the Holy Assembly doesn’t follow its own rules, because it’s the highest authority in the Serbian Church, its decisions are binding on US courts.

In dissent, Justice Rehnquist pointed out the problems with this approach. For instance, what if a group of Holy Assembly members — but not enough to constitute a quorum for an official meeting — got together and voted to depose a bishop? Would the US courts have to defer to this decision, even though according to the Serbian Church’s own rules, the group of bishops wasn’t enough to constitute the Holy Assembly? According to Rehinquist, you can’t just toss out the church rules and “rubber-stamp” decisions simply because they’re on religious letterhead.

After analyzing that case, I learned that Bishop Dionisije had appealed to the Ecumenical Patriarch, who rejected the appeal and supported the decision of the Holy Assembly. But this raised another question — what if the Ecumenical Patriarch had done the opposite? What if he had, instead, reversed the Holy Assembly decision? And if the Holy Assembly rejected the EP’s reversal, leading to two competing groups in America: one pointing to the Holy Assembly decision, the other to the EP?

This is what I’ve taken to calling the Dionisije Conundrum. According to one interpretation, Canon 17 of Chalcedon grants to the Ecumenical Patriarch the right to hear appeals. Others claim that the EP has no such prerogative. In my hypothetical, to use the deference approach, the secular court would first have to decide what Canon 17 means. Think about what that would involve. The court would have to hear testimony from canonists and historians, weigh competing interpretations, and decide which interpretation would be enshrined as law by the court. All of that would deeply involve the court in a religious matter, but that involvement would be a necessary prerequisite for the court to use the deference approach. If you’re going to defer to the highest authority, you first have to figure out who actually is the highest authority.

There is no easy answer to the Dionisije Conundrum. The only alternative, for the court, would be to refuse to hear the case altogether — to tell the two sides that they’ll have to fight it out themselves, without involvement from the civil authorities. In other words, if the court rejects its role as arbiter, it must accept the likelihood that the parties will take matters into their own hands. It should be clear that this isn’t an acceptable approach. We can’t have rival factions of a church physically battling for control of property. That’s the whole point of having a judicial system — to decide between the parties in as unbiased a manner as possible, and for that decision to be final and enforceable.

I keep coming back to the same idea — that civil court involvement in religious matters, at least in Orthodoxy, is inevitable and unavoidable. The judgments of these courts will not always be in the best interests of Orthodoxy, and we certainly don’t want secular judges getting so involved in church affairs that they are effectively overruling legitimate church authorities. But for a secular court to determine whether a church authority acted legitimately — that is something we may need to accept. This determination will involve religious questions. It won’t fully take into account all the nuances of Orthodox ecclesiology. But at this stage, I just don’t see how it can be avoided.

This article was written by Matthew Namee.

The Dionisije Conundrum and why deference doesn’t work is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

Until the early 1980s, some OCA parishes in the Diocese of Eastern Pennsylvania used the Old Calendar. In 1982, then-Bishop Herman Swaiko of Philadelphia ordered all of his parishes to switch to the New Calendar. Predictably, this wasn’t universally well-received. The majority of St. Basil Orthodox Church in Simpson, PA jumped to ROCOR, and this led to a dispute over the parish property. The case, Mikilak v. Orthodox Church in America went to the Commonwealth Court of Pennsylvania in 1986.

The court reviewed the history of Russian Orthodoxy generally and St. Basil’s in particular. The parish was founded in 1904 as part of the Russian Mission, and originally, both the parish congregation and the ruling Russian bishop in America had legal control (by deed) of church property. The parish was formally incorporated in 1924, and the incorporation document stated that the property was “subject to the control and disposition of the lay members” of the parish. (No reference to any hierarchy or diocesan authority.) Three years later, a court transferred the bishop’s interest in the parish property to the parish itself, giving the congregation complete legal control over the property. In 1937, the parish adopted bylaws which again asserted that the property belonged “to all members of the parish.”

All this time – all the way up to 1956 – the parish hadn’t formally recognized any hierarchical authority: not ROCOR, not the Metropolia, and apparently not the Moscow Patriarchate either. I don’t know how this worked, as a practical matter. Who assigned the parish priest? Whose signature was on the antimens? Was the parish never visited by a bishop? Anyway, this is what the court tells us, and we’re further told that in 1956, the parish voted to affiliate with the Metropolia. The Moscow Patriarchate sued (this was just after Kedroff v. St. Nicholas Cathedral, and Moscow wasn’t interested in losing control of any property), but the case settled and the parish kept its building. So from 1956 to 1982, St. Basil’s was a part of the Metropolia/OCA — but this was never put into the legal documents of the parish.

In Pennsylvania, courts use the neutral principles of law approach in church property disputes when there is “no inquiry into ecclesiastical questions.” The burden, said the court, is on the OCA to show either (1) a transfer of property from the parish to the OCA, or (2) “clear and unambiguous language” indicating that the parish created a trust in favor of the OCA. If there was a trust, the parish would remain the property owner, but it couldn’t just do what it wanted, without OCA consent.

As the court saw it, there was neither a transfer of ownership nor a trust. From 1927 (the court order noted above) onward, the parish property belonged solely to St. Basil’s congregation. The parish never created a trust in favor of the OCA. Even the OCA Statute (Article X, Section 8) supports this, said the court, since it asserts that “[t]he parish or parish corporation is the sole owner of all parish property, assets, and funds.” Yes, the Statute goes on to say that the parish officers must “act as trustees of God’s, not man’s, property” and other such ambiguous language. But there’s no creation of a trust. The only caveat is the stipulation that if the parish is abolished, the antimension, tabernacle, and sacred vessels must be surrendered to the diocesan bishop.

On the basis of these findings, the court ruled that the congregation could keep its property when it joined ROCOR, except that it must return the holy objects I mentioned above.

The court doesn’t really get into the obvious issue of defining the parish. It treats the majority as being the parish, but from the OCA’s perspective, the parish was really the minority of members that remained in the OCA. We’re not congregational, so what gives? The answer, according to the court, is that “St. Basil’s exercises congregational control and ownership over its church property.” And the hallmark of “congregational” churches is that the majority rules. So, even though St. Basil’s was a part of the hierarchical Orthodox Church, on the level of parish property, it was treated the same as a congregational church.

I’m sympathetic to the parish majority, who didn’t want to be forced to accept the New Calendar, but the outcome of this case raises some alarm bells. The court quite casually classifies this case as one not involving “ecclesiastical questions,” and it’s this classification that allows the court to employ the neutral principles approach. But the church calendar is an ecclesiastical question. For that matter, the deeper issue of a diocesan bishop’s authority is also an ecclesiastical question. The court was, quite frankly, wrong when it claimed that there were no ecclesiastical questions at issue.

Which gets to a broader point that I keep running into — there is no such thing as an Orthodox court case that doesn’t involve ecclesiastical questions. How could there be? The power of a bishop or synod, the identification of this or that group as the “true” parish — these are profoundly ecclesiastical questions, and they are inherent in every Orthodox property dispute I’ve seen. I’m not saying neutral principles shouldn’t be applied, or even that I disagree with the court’s decision (I actually take no position on it right now). I’m saying that the court was factually incorrect, and had it accurately recognized the ecclesiastical issues in the case, it would have been legally obligated to apply deference to the higher church authorities (in this case, Bishop Herman Swaiko).

Because all Orthodox court cases necessarily involve ecclesiastical questions, we will need to develop a framework more nuanced than the binary yes/no approach currently employed by the courts. We must admit, up front, that courts will decide ecclesiastical questions, in every case, whether they like it or not. It is unavoidable, regardless of whether they use deference or neutral principles. And because it’s unavoidable, we must accept it and develop some guidelines to ensure that judges can do their jobs without involving themselves too deeply in the affairs of the Orthodox Church.

I have no answers at this point, and if anyone out there has any helpful suggestions, I’d love to hear them.

This article was written by Matthew Namee.

Orthodoxy & the Courts: ecclesiastical questions are unavoidable is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

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.

Neutral Principles of Law in a Bulgarian parish dispute is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

St. Raphael Hawaweeny

Prior to Bishop Raphael Hawaweeny’s death in 1915, pretty much all the Syrian (Antiochian) Orthodox in America recognized his authority. This included St. George Syrian Orthodox Church of Grand Rapids, Michigan, which was incorporated in 1910. The parish was under St. Raphael, and all seemed to be well. But in February 1915, St. Raphael died, and his flock split: some recognized the authority of the Patriarch of Antioch, and others the authority of the Russian Holy Synod and its North American Archbishop. This marks the beginning of the “Russy-Antacky” schism, which divided Antiochian Americans for many years.

This split not only divided St. Raphael’s diocese, but individual parishes as well. At St. George in Grand Rapids, the priest came back from St. Raphael’s funeral and told his congregation to sign a declaration of loyalty to the Russian archbishop. Not everyone complied, and pro-Antioch parishioners insisted that their priest commemorate the Patriarch of Antioch in the Divine Liturgy. Meanwhile, the pro-Russian group tried to amend the parish articles of association to place church property under the control of the Russian Holy Synod. The factions went to court, culminating in Hanna v. Malick, a 1923 Michigan Supreme Court case.

The key question in the case is which faction — Russy or Antacky — should have control of the church property. To figure this out, the court had to determine which hierarchy — Russian or Antiochian — was recognized by the parish when it formed in 1910. The Antacky members “claim that they organized under and are subject to the supreme jurisdiction” of Antioch, “whose representative in America was Bishop Raphael of Brooklyn.” The Russy members “claim that this local church was organized under and has always been subject to the supreme jurisdiction” of the Russian Church.

The original parish documents are somewhat ambiguous. Article 2 of the original articles of association describes the purpose of incorporation as follows: “To teach and promulgate the Christian religion in accordance with the tenets and doctrines and creed of the Syrian Greek Orthodox Church of Antioch, Syria, and the Syrian Greek Orthodox Church of America, as expounded by the bishop thereof resident at Brooklyn, New York, U.S.A.”

According to the trial court judge, the articles were prepared by a local Grand Rapids attorney “after he had asked these men under what jurisdiction this contemplated church was claimed by them to be.” Similar language appears in the parish bylaws:

All persons believing in the divinity of Christ, in God the Father and the Holy Ghost, the sacrament of baptism and marriage in accordance with the articles of faith established by the Orthodox Greek Church of Damascus, Syria, shall be entitled to membership. Members are admitted by baptism and by confession of faith under the rules and tenets of the Orthodox Greek Church of Damascus, Syria. They may be suspended or expelled for violation of the teaching and precept of the church as laid down and expounded by the bishop of the Syrian Greek Orthodox Church of America, resident at Brooklyn, New York.

Now, to a casual reader, these documents seem to recognize Antioch. There’s not a word to be found about the Russian Church. But there are references to the Bishop of Brooklyn, and the Russy party used this fact to argue for Russian jurisdiction. According to the Russy group, all the Orthodox in America were under the Russian hierarchy. In fact, they expounded what is, as best I can tell, the earliest coherent example of the “flag-planting theory” for Russian jurisdiction. Here’s how the trial court explained it: “By virtue of having established in the Western Hemisphere a Russian church, and the territory wherein the church was established having been purchased by the United States, the Russian Church now claims the right to rule over and assumes jurisdiction over all Greek Orthodox churches within the United States, regardless of the nationality of the congregation or the membership of the local church.”

But the court wasn’t interested in the jurisdictional claims themselves. It’s not a dispute between Russia and Antioch, but between members of the local parish, for control over a piece of real estate. Because of this, the paramount question is the intention of the original incorporators. “If this were a lawsuit between the Patriarch of Antioch, on the one hand, and the Holy Russian Synod, on the other hand [...] it is possible that a different question might be raised.”

The case, then, boils down to St. Raphael himself. If he was under Antioch, as the Antacky claimed, then their side would win. If he was under Russia, the case for the Russy would be greatly strengthened. So the court looked at St. Raphael’s own writings: what did the man himself say about his jurisdictional position? The following quotations are from St. Raphael’s periodical Al Kalimat, and were translated for the court (brackets in original):

• “That he [Raphael] was consecrated bishop by the order and permission of Melatois, the Patriarch of Antioch.” (vol. 1, page 2)
• “Those who were consecrated bishops through his [Patriarch of Antioch] consent were his grace, Basileus Dibs, the Metropolite of Akkar, Syria, one of the Antiochian dioceses, and the owner of this magazine, the Bishop of Brooklyn, New York, U.S.A.” (vol. 2, page 95)
• “Patriarch Melatois counted the new parish of Brooklyn, New York, as one of the parishes of Antioch.” (vol. 3, pages 95-96)
• “And during his [Melatois'] administration [as patriarch] many unusual things many unusual things took place, such as the demise of several lamented archbishops. For this reason a conclave was had of archbishops, his beatitude presiding, during which conclave there were clected bishops for the seats vacated by such deaths. … Those who received the benediction of ordination into the high priesthood by the sanction of his beatitude are two, to wit, his eminence, Basileus Dibs, archbishop of Akkar, and the editor of this magazine (Bishop Raphael), Bishop of Brooklyn, North America.” (vol. 3, page 95)
• “And the territorial jurisdiction of the See of Antioch became much more extensive during the time of his beatitude, for Syrians who emigrated to many other countries still retained their spiritual relations with and continued to acknowledge and yield allegiance to their mother church, the Holy Church of Antioch, and kept firm in the Orthodox faith. His beatitude manifested the most perfect evidence of his interest in and care for them to the best of his means and ability. In substantiation of this, when the Russian Holy Synod informed him that the lot of presiding in this diocese [the diocese of Brooklyn] had fallen upon our humble self [Raphael], his beatitude hastened to write to the Holy Synod, to His Eminence Tikon, then Archbishop, and to our humble self, sanctioning the choice and declaring that he [his beatitude] had instituted this new diocese as one of the dioceses pertaining to the See of Antioch and thus it is in actuality, notwithstanding its nominal allegiance to the Russian Holy Synod.” (vol. 3, page 95)
• “Whereas, we, the Syrian Orthodox residents of Greater New York and all other parts of North America constituting our new diocese (may God keep it) are considered a vigorous branch of our mother tree, the Church of Antioch; and whereas, this branch has flourished luxuriantly during the days of the administration of our father, may his name be ever blessed, the thrice illustrious Patriarch Melatios; and whereas, his beatitude was the first to sanction and bless the establishment of this new Syrian diocese in this new world.” (vol. 2, page 18)

The trial judge observed that “at first the writings of Bishop Raphael gave to the Patriarch of Antioch jurisdiction over the Syrian branch of the Orthodox Church in the United States, and later gave expression to language indicating that all the branches, including the Syrian branch, of the Greek Orthodox Church in America, were under the jurisdiction of the Holy Synod of Russia.” Without a clear-cut answer from St. Raphael’s own writings, the judge looked at two non-Orthodox sources: Funk & Wagnalls’ Religious Encyclopedia and the Encyclopedia Britannica. The former reported that “the Patriarch of Antioch elevated Raphael to the rank of bishop” (but that Raphael was consecrated by Russian hierarchs), while the latter noted that the Russian archbishop in America “is assisted by two bishops, one for Alaska [...] and one for Orthodox Syrians, residing in Brooklyn.” The secular sources don’t seem to settle things, either.

Texts being insufficient, the judge moved on to consider actions. He observed that “the record shows but one instance where he [Raphael] was directed by any church authority.” That instance was in August 1910, when St. Raphael announced in Al Kalimat an order he had received from the Patriarch of Antioch regarding marriages of Syrian Orthodox in America. In addition, in 1901, St. Raphael wrote that he had received a telegram from the Patriarch informing him of his election as Metropolitan of Salefkias. St. Raphael declined, but the judge saw this as evidence of a relationship between Raphael and Antioch. Furthermore, according to the judge, “It is not shown in this case that during the life of Raphael the authorities of the Russian Church in any manner gave any orders to the Syrian branch of the church, or attempted in any way to direct the actions or utterances of Raphael in his relations with the Syrian Church.”

There are some flaws in this reasoning. Yes, we can establish that there was a close relationship between Raphael and Antioch, but there was also a close relationship between Raphael and the Russian hierarchy in America. It was St. Raphael who, as an archimandrite, welcomed St. Tikhon to America in 1898, and Tikhon and his auxiliary Bishop Innocent were the ones who actually consecrated Raphael in 1904. It was St. Raphael who blessed the land on which St. Tikhon’s Russian Orthodox Monastery was built, and there are countless examples of Raphael working with the Russian Archdiocese in America. The Russians themselves clearly understood Raphael to be one of theirs, and in his 1905 plan for Orthodoxy in America, St. Tikhon includes the Syrian bishop as a crucial part — while at the same time recognizing that Raphael was “almost independent in his own sphere.”

Both parties have a legitimate argument in this case, but as the judge consistently reiterated, this case is ultimately about the intent of the original incorporators of the Grand Rapids church — not about the relative claims of Russia and Antioch in America. Those claims are relevant only insofar as they help us better understand the incorporators’ intent.

In the end, the trial court sides ruled in favor of the Antacky group — that is, as best as the court could determine, the original parish incorporators intended to be under Antiochian jurisdiction. The court based its decision largely on the references to Antioch in the parish documents. Yes, those documents also refer to the bishop of Brooklyn, but the judge saw insufficient evidence to conclude that Raphael was under Russia rather than Antioch. The Michigan Supreme Court upheld the judgment (and, indeed, hardly added a word, mostly quoting directly from the district judge). The Michigan Supreme Court did note that, in light of the chaos that followed the Russian Revolution, “the precautions taken in organizing this Syrian church seem to have justified themselves.”

This is a terribly fascinating case from a historical perspective, and tells us a lot about how the early Antiochians in America thought about themselves. But what are the legal lessons we can learn? The district court judge — affirmed by the state supreme court — could not have employed “deference to higher church authorities” if he had wanted to, since the entire dispute was over which was the correct higher church authority. The judge was forced to employ something along the lines of a neutral principles analysis. Did he get the right answer? Well, it depends on the question. The judge was trying to figure out the intent of the original incorporators, and based on the language of the official documents, it does seem like they intended to be under Antioch. Were they really, in fact, under Antioch? What would the outcome be if the claim was between Antioch and Russia themselves, and actual jurisdiction had to be determined? That is a much, much more complicated question, to which there isn’t a single, clear-cut answer.

This article was written by Matthew Namee.

Hanna v. Malick: the Russy-Antacky schism in the Michigan Supreme Court is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

Well, this is interesting. Lately, I’ve been looking at the Supreme Court case Serbian Diocese v. Milivojevich, which pitted the representatives of the Serbian Church against the incumbent American bishop, Dionisije, who had been defrocked by the Serbian Holy Assembly. The big question, which the Court answered in the negative, was whether civil courts in America could review the decisions of a church tribunal.

What none of the justices’ opinions mentioned is the fact that Bishop Dionisije actually did appeal the Holy Assembly decision to another judicial authority — the Patriarch of Constantinople. On June 6, 1964, the Chicago Tribune reported that Patriarch Athenagoras I responded with a letter rejecting the appeal and recognizing Dionisije’s defrocking as valid. The Ecumenical Patriarch also declared Dionisije’s consecration of Bishop Irinej Kovacevich to be “uncanonical and worthless.” (Just before this, SCOBA also rejected Dionisije, announcing that they would not recognize him or his jurisdiction.)

What exactly is the extent of the Ecumenical Patriarch’s right to hear appeals? The key texts are Canons 9 and 17 of Chalcedon. Here is the relevant portion of Canon 9: “And if a bishop or clergyman should have a difference with the metropolitan of the province, let him have recourse to the Exarch of the Diocese, or to the throne of the Imperial City of Constantinople, and there let it be tried.” Similarly, Canon 17 prescribes, “And if any one be wronged by his metropolitan, let the matter be decided by the exarch of the diocese or by the throne of Constantinople, as aforesaid.”

According to Fr. John Erickson in “Chalcedon Canon 28: Its Continuing Significance For Discussion of Primacy in the Church,” these canons provide two paths for a party seeking appeal: he may go to Constantinople, or to his own exarch. This appeal would have applied to the whole Eastern Roman Empire. Early evidence shows appeals to Constantinople from the diocese of the Orient, “whose ‘exarch’ would ultimately bear the title of patriarch of Antioch.” Erickson writes that in Constantinople, “thanks to the continual flow of visiting bishops from all parts of the empire, a convenient court of appeal, in the form of the synodos endemousa, could easily be convoked by the capital’s archbishop.”

Erickson goes on to note that Rome, too, had been given wide-ranging rights of appeal, in its case by the Council of Sardica. He distinguishes these appellate prerogatives from ordination rights, which were much more limited.

If you go to the Orthodox Wiki article on the prerogatives of Constantinople, you’ll see a different view. The authors of that article quote St. Nikodemos of the Holy Mountain (d. 1809), who argued that Constantinople’s right to hear appeals was limited to its own jurisdiction. According to St. Nikodemos, in this regard, the Ecumenical Patriarch was no different than any other exarch. I asked Fr. John Erickson about this, and he replied, “The system of the imperial church in the fifth century was significantly different from that of more recent times – and with ‘more recent times’ I must include St Nikodemos.”

I’m not a canonist, so why am I venturing into these (at times controversial) waters? My interest, here, is in the potential legal implications of a Constantinopolitan right of appeal. It’s possible, of course, that there are no legal implications. But, at this early stage of my research, I’m not sure, and I want to at least explore the possibility.

Let’s assume, for now, that such a right of appeal exists. This means that the decisions of a given Holy Assembly, Holy Synod, or Patriarch are not necessarily final. If the Ecumenical Patriarch could have heard Dionisije’s appeal and ruled in his favor, doesn’t that mean that the Serbian Holy Assembly is not the highest judicial authority in the Serbian Church (at least, from the standpoint of the American legal system)?

This raises another interesting question: if American courts can’t overrule the decisions of the highest judicial authority in a church, can they still overrule the decisions of lower judicial authorities? For instance: Assume that an American Orthodox jurisdiction has a local or eparchial synod, and that this synod has the authority to make certain decisions. Assume further that members of this jurisdiction can appeal the local/eparchial synod’s decisions to the Holy Synod of their Church. What, then, happens if church members appeal one of these local decisions, not to the Holy Synod, but to a secular US court? I think this wouldn’t matter, because a court applying deference to church decisions would probably tell the church members that they must make use of the appellate process in their own church, rather than bypassing that process and running to a secular court. But… well, I don’t know enough to say for sure.

The more pertienent issue, I think, has to do with Justice Rehnquist’s hypothetical scenario of a pseudo-Holy Assembly purporting to defrock a bishop, but not complying with its own quorum rules (and thus, by its own rules, not constituting an actual Holy Assembly). Justice Rehnquist uses this scenario to argue that secular courts must be able to adjudicate the case, but if a right of appeal to Constantinople exists, I it’s possible that this appeal might have to be made before US courts could get involved. Again, you probably can’t just bypass the church-appointed process in favor of civil litigation.

This seems to be consistent with the spirit of Canon 9. I quoted part of Canon 9 earlier, but here is the beginning of the canon: “If any Clergyman have a matter against another clergyman, he shall not forsake his bishop and run to secular courts; but let him first lay open the matter before his own Bishop, or let the matter be submitted to any person whom each of the parties may, with the Bishop’s consent, select. And if any one shall contravene these decrees, let him be subjected to canonical penalties…”

A clergyman can’t first run to the secular courts, but he could make use of those courts if the church courts gave him an unsatisfactory judgment. As a practical matter, according to Erickson, this wouldn’t have been a commonly-used option in the Eastern Roman Empire (unless the clergyman in question was particularly well-connected). In any case, the idea seems to be that we should try to resolve matters internally, but if that fails, we could then go to a secular judge. Of course, these canons were composed in a totally different era in church history, when the Church and the Roman state were becoming increasingly intertwined, and when Constantinople was (to many) the center of the world. Does the right of appeal to the Ecumenical Patriarch really apply today, when Constantinople is no longer a cosmopolitan center for Orthodoxy and the Ecumenical Patriarchate is oppressed by the Turkish government? I don’t know.

But if the right to appeal does exist, what are its implications on American courts? I’d be very interested to hear what the lawyers reading this think.

Anyway, in the case of Bishop Dionisije, he did appeal to Constantinople, and his appeal was denied. The Ecumenical Patriarch in essence affirmed the decision of the Serbian Holy Assembly, and SCOBA followed suit. Bishop Dionisije was thus isolated from much of mainstream Orthodoxy, more than a decade before the Supreme Court heard his case.

This article was written by Matthew Namee.

Ecumenical Patriarch denied appeal of Bishop Dionisije is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

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.

Neutral Principles of Law and the Problems of Deference is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

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.

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.

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.

1965 Yale Law Journal article on the Moscow-Metropolia Supreme Court case is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

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.

NY Times article on Moscow-Metropolia Supreme Court case is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

St. Nicholas Russian Orthodox Cathedral, New York

To read my previous articles on the 1952 Supreme Court case Kedroff v. St. Nicholas Cathedral, click here. For the full text of the Supreme Court opinions, click here.

In my last four articles, I summarized the majority, concurring, and dissenting opinions in Kedroff v. St. Nicholas Cathedral. Here, I will offer my initial impressions of the case. Please keep in mind that these are initial — I may well change my position down the road. I’m quite open-minded about the whole thing, and I regard both sides of the case as having very legitimate arguments.

The crucial sequence of facts in this case, as I see it, is as follows:

• The Russian Orthodox Church (“Moscow,” for our purposes) had undisputed authority over the North American Archdiocese (the future Metropolia) up to at least 1917.
• In 1920, Patriarch Tikhon issued a decision which granted to the Metropolia “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.’” (Quoting from Justice Reed’s majority opinion, which in turn quoted from St. Tikhon’s decision.)
• In turn, at the 1924 Detroit Sobor, the Metropolia set itself up as a temporarily autonomous church.
• In 1945, Metropolia delagates went to Moscow for the election of Patriarch Alexy I. They were delayed and were thus unable to participate in the All-Russian Sobor as they had intended, but they later met with the Patriarch and Holy Synod and presented a request for autonomy.
• Rather than granting autonomy, the Patriarch and Holy Synod instead offered the Metropolia reunion with Moscow, subject to several stipulations (including a promise that the Metropolia abstain “from political activities against the U.S.S.R.”
• At the 1946 All-American Sobor in Cleveland, the Metropolia rejected Moscow’s offer.
• Even so, in 1952, the Metropolia still recognized Patriarch Alexy I as the legitimate Patriarch of Moscow.

It is because of this sequence of events that Justice Reed could assert, “The record before us [...] shows administrative control of the North American Diocese by the Supreme Church Authority of the Russian Orthodox Church, including the appointment of the ruling hierarch 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.”

Now, imagine if things had been a little different. Imagine, for instance, that the Metropolia had gone to Russia in 1945 not to participate in the All-Russian Sobor as members of the Russian Orthodox Church, but only to attend as observers. Imagine if the Metropolia had not made a formal request for autonomy from Moscow, but rather had entered into negotiations with the aim of reuniting with autonomy (basically what ROCOR did a few years ago).

The point here is that the Metropolia did not have to officially recognize Patriarch Alexy and the Russian Synod as a legitimate “Central Church Authority.” The Metropolia could have recognized the Russian Church as truly Orthodox, but at the same time refused recognition of the purported Central Church Authority based on the argument that that Authority operated under constant duress from Stalin’s Soviet government.

Let me try this another way. St. Tikhon’s grant of temporary self-administration was subject to “confirmation” by the Central Church Authority “when it is reestablished.” Had the Metropolia withheld recognition of the Moscow authorities as a true Central Church Authority, they could have argued that St. Tikhon’s stipulation was not yet operative — that a real Central Church Authority hadn’t been established. But as soon as the Metropolia recognized the Moscow Central Church Authority, they activiated the “confirmation” element of St. Tikhon’s decision.

From a legal standpoint, in my opinion, the Metropolia’s strongest argument against Moscow’s claim of authority would have been that Moscow had no legitimate Central Church Authority, and thus St. Tikhon’s grant of self-administration was still in force. This would have given the Supreme Court the necessary justification for rejecting Moscow’s argument of hierarchical superiority — the argument that ultimately won the case, since the Court defers to the judgment of the higher authorities in a hierarchical church.

But given the actual circumstances — given that the Metropolia did recognize Moscow as a legitimate Central Church Authority — the Court’s hands were tied. The Metropolia’s recognition meant that the Metropolia was subordinate to Moscow, and even New York property law cannot trump Russian Church law when both parties are part of the Russian Church.

*****************************************

Given the Metropolia’s recognition of Moscow as a Central Church Authority, the only plausible argument I think could have been made for the Metropolia was Justice Jackson’s argument that this isn’t really a religious dispute at all — it’s a property dispute. From my article on Jackson’s dissent:

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.”

It’s a really compelling argument. The problem is this: that while the Metropolia had legal title to the Cathedral, Moscow could point to a church law which gave possession of the Cathedral to the Moscow-appointed Archbishop. Justice Jackson says that church law doesn’t trump New York law… but is that right? If the property in question was owned by a part of the Russian Orthodox Church, why wouldn’t Russian Church law apply? We’re back to the problem of the Metropolia’s recognition of the Moscow Central Church Authority. By extending that recognition, the Metropolia made itself subject to Moscow’s whims. The Metropolia couldn’t just disagree with Moscow and take refuge in New York law, once it activated the “confirmation” element of St. Tikhon’s self-administration grant.

Ultimately, had the Metropolia followed ROCOR’s lead and totally rejected Moscow’s legitimacy as a Central Church Authority, it probably would have retained St. Nicholas Cathedral. I am personally sympathetic to the Metropolia in this case, but, at this point in my analysis, I think that the Court came to the right legal decision.

This article was written by Matthew Namee.

Moscow v. the Metropolia, part 4: initial impressions is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.

Justice Robert Jackson wrote the dissenting opinion in Kedroff v. St. Nicholas Cathedral

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.

Moscow v. the Metropolia in the Supreme Court, Part 3: Justice Jackson’s dissenting opinion is a post from OrthodoxHistory.org. All rights reserved. Your use of this article is subject to our Terms of Use.