The Society for Orthodox Christian History in the Americas
Posts tagged civil authorities
Five court cases
10 months ago
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- Kendysh v. Holy Spirit Byelorussian Autocephalic Orthodox Church, 850 F.2d 692 (6th Cir., 1988) (unpublished opinion)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.
Orthodoxy and the First Shot of the American Civil War
10 months ago
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
Hierarchical, Congregational, and the problems of the “parish”
11 months ago
In 1993, the Appeals Court of Massachusetts rendered its decision in (brace yourself) Primate and Bishops’ Synod of Russian Orthodox Church Outside Russia v. Russian Orthodox Church of Holy Resurrection, Inc. We’ll just call it Primate from here on out.
This case involved a Massachusetts ROCOR parish that left ROCOR and joined HOCNA in 1987. At a parish meeting, members voted to amend their articles of organization and bylaws, removing all references to ROCOR in the bylaws. The parish then switched jurisdictions. The ROCOR Holy Synod sued, arguing that (1) the parish vote was illegal and (2) parish property is subject to the dominion and control of ROCOR (“the Church”).
At trial, the judge ruled that the parish “was hierarchical in terms of internal administration, discipline, and matters of faith,” but “congregational as far as the control and use of its property.” The appellate court agreed. Applying a neutral principles of law approach, the court identified the key question as being where “the church members, prior to the schism, have placed the ultimate authority over the use of church property.”
Churches can be hierarchical or congregational, but the two concepts aren’t mutually exclusive. The court explains that a church may be “hierarchical in some matters and congregational in others.” At first blush, this doesn’t seem to be the case with a ROCOR parish. ROCOR’s official documents recognized Synodal jurisdiction over “[m]atters concerning church property in dioceses [and] parishes.” Citing Apostolic Canon 41 (“We command that the Bishop have authority over the property of the Church”), ROCOR’s regulations emphasized that the bishop has authority over all “church property” in his diocese. The local parish bylaws presented a similar picture. When the parish was organized, it adopted the standard ROCOR parish bylaws, which called for Synod approval of major decisions regarding “church real estate.”
So this should be a win for ROCOR, right? It all seems pretty cut and dried, but that’s not how the court saw things. At trial, witness testimony revealed that the parish was always a separate legal entity, “not a subdivision of any other entity.” Parish property was paid for by parish funds, and legal title was in the name of the parish. The trial judge found that the parish property was never “diocesan, monastic or Church property.”
The court tried to educate itself on Orthodox history and ecclesiology. It noted that the apostolic canons (including the canon cited above) were adopted more than 1500 years ago, and that in the Russian Church, property ownership didn’t always follow a single pattern. “While the only person who could appoint a priest was the bishop, property and indeed churches belonged to various groups, including tradesmen, nobles, and the Tsars.” Orthodoxy, the court observed, has both hierarchical and congregational elements, and thus can’t be analogized to the modern day Roman Catholic Church. In a footnote, the court commented:
Unlike the Roman Catholic Church, there was evidence that in the Russian Orthodox Church authority was vested in the whole body of the laity as well as with the hierarchy; it was described as “an organic, as opposed to a juridical notion of authority.” There was also testimony that there were congregational aspects in the orthodox faith; in theory the bishop is elected by the people as well as the clergy, and that even in appointing the priest, the bishops would not impose someone upon the parish that the parish did not want.
Furthermore, the parish in question was just one of about twenty that left ROCOR at the same time, but ROCOR only demanded the property of two of the parishes. In the history of ROCOR, said the court, “[t]here has been much voluntary movement of parishes in and out of the Church, as well as in and out of the other orthodox umbrella organizations [jurisdictions].” In many of those cases, the moving parishes kept their property. Thus, said the appellate court, the trial judge wasn’t unreasonable in concluding that the parish in question was congregational as to its property.
This case presents two challenging themes: the idea that parish property isn’t necessarily “Church” property, and the concept of dual hierarchical and congregational forms of church governance, coexisting within Orthodoxy. Both themes emphasize the distinctiveness and separateness of the parish. It is, in this interpetation, an independent legal entity. It is affiliated with the diocese or Church to a certain degree, in doctrinal and even pastoral matters (e.g. the appointment of a priest), but it is not legally bound by the Church when it comes to property decisions.
All of this is paradoxical — a separation of the sacred from the profane which is foreign to Orthodox thought. And yet I’m not entirely certain that the court got it wrong. To be honest, I’m undecided about what courts should do, but this court’s logic has some merit, at least from a legal standpoint. How could we create a rule based on Primate, and applicable in nearly all Orthodox parish property cases? We could, I suppose, employ a rebuttable presumption that the parish is a legally independent entity with respect to property. We could then further employ a rebuttable presumption that the parish is congregational with respect to its internal governance. The diocese would retain control over doctrine, liturgy, and clergy appointments, but it would have to rebut the presumptions of independence and congregationalism to assert control over property. And any parish could, if it wished, explicity surrender its property independence and/or recognize an exclusively hierarchical form of government.
But… well, there are problems. Recognizing congregationalism within the parish means that a court would have to decide who qualifies as a “member.” This is a tricky issue. Qualifications for “membership” vary from jurisdiction to jurisdiction and parish to parish, and can include the payment of dues, reception of communion, and regular confession, among other things. I didn’t mention this above, but in Primate, one of ROCOR’s arguments was that the vote at the parish meeting was invalid because it was two members short of a two-thirds majority. The two missing “members,” the court found, hadn’t paid dues for a full year, and thus weren’t technically members at all. Thus ROCOR’s argument failed.
I’m beginning to see what the problem is in these parish property disputes. In Orthodoxy, the diocese — not the parish — is the basic ecclesiastical unit. The concept of “parish” has evolved over time, and even now it isn’t entirely clear-cut. Yet it is within parishes that most property disputes arise. Until we have a coherent understanding of what it means to be a “parish” and a “parishioner” (rather than just a diocese and an Orthodox Christian), we will continue to struggle with this problem.
The only real solution that I can think of is to break down the wall between parish and diocese. If all the Orthodox in America were united, and every major city had an Orthodox bishop, the dioceses would be rather small. All Orthodox property within the diocese — so, within the city and the outlying area — would be property of the diocese. Rather than being parishioners, the faithful would be members of the diocese — the Orthodox Church of __________ (Chicago, Seattle, Wichita, etc.). And the Orthodox Church of __________ would own all the formerly “parish” property in its territory. By abandoning our present jurisdictional structure and embracing a more ancient model of the Church, with smaller and more unified dioceses, we may be able to avoid cases like Primate, and the well-meaning but ultimately un-Orthodox logic that they express.
This article was written by Matthew Namee.
UPDATE: Originally, I said that the parish in question left ROCOR for the OCA. I have since been informed that the parish was one of a number of parishes that joined HOCNA, not the OCA. I have corrected the article above.
The Dionisije Conundrum and why deference doesn’t work
11 months ago
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.
Orthodoxy & the Courts: ecclesiastical questions are unavoidable
11 months ago
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.
