The Society for Orthodox Christian History in the Americas
Posts tagged Dionisije Milivojevich
The Dionisije Conundrum and why deference doesn’t work
1 year 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.
Ecumenical Patriarch denied appeal of Bishop Dionisije
1 year ago
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.
Serbian Diocese v. Milivojevich, Part 2: Justice Rehnquist’s Dissenting Opinion
1 year ago
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 1: Justice Brennan’s majority opinion
1 year ago
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:
- The defrocking of Bishop Dionisije was legitimate.
- The diocesan property was held in trust for all members of the diocese.
- The division of the American-Canadian Diocese into three dioceses was “improper and beyond the power of the Mother Church.”
- 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.
