Posts tagged civil authorities
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.
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 email@example.com.
- 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 firstname.lastname@example.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.”
- 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
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.
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:
- Who has the right to control the parish property – Moscow or the Metropolia?
- 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:
- 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.”)
- But in 1925, the parish submitted to the autonomous Metropolia, and Moscow did nothing (with regard to Lorain specifically).
- 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.
- “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.
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.