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.

Editor’s note: The following article was written by Christopher Orr.

Update (6/18/11): What follows is an updated version of the original article.

On May 24, 2011 – the feast of the holy Equals-of-the-Apostles, Sts. Cyril and Methodius, Enlighteners of the Slavs and the name day of Patriarch Kirill of Moscow and All-Russia – Metropolitan Jonah (Primate of the Orthodox Church in America) and Metropolitan Hilarion (First Hierarch of the Russian Orthodox Church Outside of Russia) concelebrated the Divine Liturgy at St. Nicholas Russian Orthodox Cathedral (Moscow Patriarchate) in New York City.

This is the first concelebration between the first hierarchs of the Orthodox Church in America (OCA) and the Russian Orthodox Church Outside of Russia (ROCOR) in decades. [1]

Also concelebrating was Archbishop Justinian of Naro-Fominsk (Administrator of communities in the USA directly under the Moscow Patriarchate), Bishop Tikhon of Philadelphia and Eastern Pennsylvania (OCA) and Bishop Jerome of Manhattan (ROCOR), Igumen (Abbot) Sergius of St. Tikhon’s Monsatery in South Canaan, PA and the former Abbot of the St. Herman of Alaska Monastery in Platina, CA, Archimandrite Gerasim, as well as clergy of the Patriarchal Parishes in the United States, the OCA and ROCOR.

By way of background, the OCA and ROCOR have had a stormy relationship since the latter’s formation in 1921.

The OCA – known previously as the Russian Orthodox Greek Catholic Church in America, or informally as the “Metropolia” – was the Russian Orthodox diocese for North America established well before the Bolshevik Revolution (1917). ROCOR – informally known as “the Synod”, the Russian Orthodox Church Abroad (ROCA), or the “Church Abroad” – saw itself as the duly constituted, representative body of all Russian Orthodox bishops, clergy and laity outside of Soviet Russia based on Patriarch Tikhon of Moscow’s Ukaze (Decree) 362. [2] The ROCOR hierarchy was primarily comprised of refugee bishops, their clergy and faithful fleeing Russia with the “Whites” who had lost the 1917-21 Civil War in Russia to the Bolshevik “Reds”. However, Metropolitan Platon (Rozhdestvensky) of the Metropolia and Metropolitan Evlogy (Georgievsky) of the Russian Orthodox diocese of Western Europe saw themselves as more ‘canonically established’ than the refugee bishops who had (uncanonically, but understandably) their dioceses in Russia and were without dioceses abroad. That is, Mets. Evlogy and Platon were bishops resident in their own dioceses whereas the ROCOR hierarchs were bishops of dioceses in Russia, which they were unable to occupy. [3] The Metropolia cooperated with the ROCOR bishops at first but severed relations with them in 1926 citing the Synod’s increasing claims of authority over the more ‘canonically regular’ American diocese. The Synod, for its part, suspended Metropolitan Platon of New York and his clergy for disobedience. However, in 1935, an agreement was signed that normalized relations between the Metropolia and ROCOR, and the Metropolia’s 6th All-American Sobor (1937) affirmed that the Metropolia remained autonomous while reporting to ROCOR in matters of faith.

Towards the end of World War II, ROCOR, which had been cooperative with the anti-Soviet forces of Nazi Germany, was forced to move its base of operations from Yugoslavia (the jurisdiction of the Orthodox Church of Serbia) to New York City (the jurisdiction of the Metropolia).

In November 1946, soon after the close of WWII (in which America was allied with the USSR against Nazi Germany), the 7th All-American Sobor of the Metropolia (comprised of laity, lower clergy and bishops) met in Cleveland and severed ties with ROCOR so as to attempt a reconciliation with the USSR-based Patriarchate of Moscow whose relations with Stalin’s government were greatly improved (comparatively) during and immediately after WWII. Reconciliation between the Metropolia and Moscow was proposed with the stipulation that the Metropolia be allowed to retain its complete autonomy from the Soviet-dominated Church of Russia. When this condition was not met, the Metropolia continued as a self-governing Church in communion with neither Moscow nor ROCOR.

For its part, ROCOR viewed the Moscow Patriarchate as a puppet church controlled by the anti-religious, militantly atheistic Soviet state. ROCOR saw itself as the only free, legitimate part of the Russian Orthodox Church. Some within ROCOR even argued that the Moscow Patriarchate was “without grace”, i.e., no longer Church. ROCOR was constitutionally and culturally opposed to any reconciliation with the Soviet-controlled Moscow Patriarchate.

In 1968, the Metropolia and the Moscow Patriarchate again began informal negotiations meant to resolve their long-standing differences. Representatives from the Metropolia sought the right of sacramental independence and episcopal self-governance (autocephaly), as well as the removal of Russian jurisdiction from all matters concerning the American Church. Official negotiations on the matter began in 1969. On April 10, 1970, Patriarch Alexius I of Moscow and fourteen bishops of Moscow’s Holy Synod signed the official Tomos of Autocephaly, which reestablished communion between the two churches and granted the Metropolia complete autocephaly as the newly renamed Orthodox Church in America (OCA), the fifteenth autocephalous Orthodox Church according to Moscow’s reckoning. ROCOR was decidedly against what it viewed to be the OCA’s compromise with a Patriarchate they saw as being either created or controlled by the anti-religious USSR.

However, after the fall of the Soviet Union in 1991 and the resurgence of free church life in the Russian Church, the canonization of the New Martyrs who suffered under Communism (including Tsar St. Nicholas and his family), repentance over the murder of the royal family, and a general thaw in relations in the first decade of the 21st century, the Russian Orthodox Church – Moscow Patriarchate and the the Russian Orthodox Church Outside of Russia were reconciled in 2007. ROCOR became an autonomous part of the Russian Church.

While intercommunion of OCA and ROCOR laity and clergy has occurred following the 2007 reconciliation [3], full intercommunion between ROCOR and the Metropolia/OCA in the persons of the presidents of their respective Synods had not taken taken place prior to this historic, 2011 Divine Liturgy. [4]

“Behold now, what is so good or so joyous as for brethren to dwell together in unity!” (Psalm 132:1)

Adapted from materials found on oca.org, russianchurchusa.org, synod.com, Wikipedia and others, as well as the unpublished dissertation noted below.

Endnotes

1. No one seems clear on when ROCOR and OCA/Metropolia bishops last officially (or unofficially) served together in the altar prior to the 2007 reconciliation between Moscow and ROCOR.

2. See the unpublished M.Th. dissertation by Nikolaj L. Kostur, “The Relationship Between the Russian Orthodox Church in North America and the Russian Orthodox Church Abroad from 1920-1950″ (St. Vladimir’s Orthodox Theological Seminary, May 2009), pp. 16-18.

3. As noted in a comment by Fr. Andrew Damick, Met. Platon was also a refugee who had abandoned his Russian diocese (Kherson and Odessa) and found refuge in America where he had previously been diocesan hierarch from 1907 to 1914. After his return to America as a refugee and the departure of Abp. Alexander (Nemolovsky) to Europe, Met. Platon was elected and confirmed as head of the Metropolia by Patriarch St. Tikhon. This appointment was rescinded by later decree of Patriarch St. Tikhon that many took to be written under Soviet duress to Soviet political ends. It became increasingly difficult for Russian hierarchs abroad to communicate with the Patriarchate – and to be sure the communications they received were authentic and freely given. This uncertainty and confusion fomented factionalism and chaos within the Church and emigre community abroad – which was the likely the intent of Soviet ‘meddling’. Met. Evlogy was thus the only hierarch resident in his diocese about which there was absolutely no question regarding his canonical standing, though Met. Platon and the other Russian bishops abroad would dissent the point on various, sometimes conflicting grounds.

The Russian bishops abroad found themselves in a bit of a canonical ‘no man’s land’ since they viewed themselves as refugees who would return home to Russia rather than as permanent residents abroad (or as missionaries). In some ways, with ROCOR being based in Karlovtsy, Serbia, the Russian bishops were hierarchs of the Serbian Church without traditional, geographically-defined dioceses – that is, except for the bishops of the previously established Russian Orthodox dioceses of Western Europe and North America.

This was a confusing time with competing narratives and facts. Time will tell the tale. Thankfully, due to the 1970 reconciliation between the Metropolia and Moscow, the 2007 reconciliation between Moscow and ROCOR, and the 2011 concelebration of ROCOR and the OCA’s first hierarchs the details are now moot outside of academic and historical questions.

4. While not concelebration proper, ROCOR and OCA bishops communed together during the 2010 Episcopal Assembly in New York City. The Liturgy was served by the Dean of Holy Trinity Greek Orthodox Cathedral (GOA) alone with the attending bishops communing in the altar.

5. It has been independently confirmed that individual bishops of ROCOR and the OCA have also served together prior to the May 24, 2011 Divine Liturgy, e.g., the enthronement of the OCA’s Met. Jonah (Paffhausen). It should also be noted that simply praying together – in the altar or anywhere – was an important step for ROCOR and OCA bishops given ROCOR’s stance on prayer with heretics and schismatics. The import of these common prayers was not well noted at the time.

ROCOR/OCA Episcopal Concelebration 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.

Hierarchs of the Episcopal Assembly of North and Central America: Bp. Jerome is the fourth fully visible face from left, and Abp. Justinian is four to the right of him

Also, Bp. Mark (Antiochian) sent a letter to his clergy with some of his own reflections on the meetings.

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Abp. Kyrill Yonchev, 1964-2007

The OCA’s Bulgarian diocese, like one of its other ethnically defined dioceses (the Romanian), had its origins in a schism within the American jurisdiction of an Orthodox church based in a then-Communist nation. In both cases, there were factions dedicated to remaining within the canonical purview of the mother churches, but there were also factions who felt that such a stance represented capitulation to Communism, which had, to one extent or another, compromised the church authorities in the homeland. Communism split not only the Bulgarians and Romanians in America, but also the Russians and Serbs. (Of these, only the Serbs have subsequently reunited.)

In the case of the Bulgarian diocese, the dissent against Metr. Andrei Petkov, the bishop aligned with the homeland, was led by one of his clergy, an archimandrite named Kyrill Yonchev. During World War II, Andrei broke relations with authorities in Bulgaria, and then in the late 1950s petitioned the Russian Metropolia (itself then on bad terms with its mother church) for admission, but was rebuffed. In 1964, he regularized his relations with the homeland. This latter move stirred significant rancor in the Bulgarian-American ranks, and Kyrill broke relations with the aging Andrei and persuaded several parishes to follow him.

Kyrill was subsequently consecrated by the ROCOR, renowned for its anti-Communist feelings, to serve as the head of the Bulgarian Diocese in Exile. His career as a ROCOR bishop came to an abrupt end, however, when in 1976 he led his diocese of nine parishes into the OCA, where he served until his death in 2007, acquiring a second diocese (Western Pennsylvania) in 1978. At the time of this development, in the wake of the Metropolia’s reconciliation with Moscow and subsequent independence as the OCA, ROCOR/OCA animosity was perhaps at its apex.

In 1976, the energy from the OCA’s newly-proclaimed autocephaly was still flowing freely, and the entry of the Bulgarian Diocese in Exile into its ranks was regarded as another sign of the inevitability of the OCA as a catalyst for American Orthodox unity, particularly at the OCA’s Fifth All-American Council that year, which also elected Theodosius Lazor to be the new OCA primate.

St. George Bulgarian Orthodox Cathedral, Toledo, Ohio

Update Dec. 26, 2009: Fr. Alexander Lebedeff writes with some corrections to this post:

Archbishop Antony (Sinkevich) of the ROCOR was consecrated Bishop of Los Angeles in August 1951 and served until he was retired in 1995. He reposed July 31, 1996. He was a bishop for 45 years.

Of course, Metropolitan Vitaly (Oustinoff) of the ROCOR was made bishop in 1951 and retired in 2001 after celebrating 50 years as a bishop (he reposed in 2006). However, he did not come to North America until 1955. Still, 1955-2001 is 46 years. There are those in offshoots of the ROCOR who consider him to have continued being First Hierarch of the ROCOR up to the point of his repose. In any case he was a bishop for 55 years and a bishop in North America for 51.

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