Posts tagged Russian Metropolia
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.
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. 
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.  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.  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 , 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. 
“Behold now, what is so good or so joyous as for brethren to dwell together in unity!” (Psalm 132:1)
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.
In May 1965, the Yale Law Journal published a paper entitled, “Judicial Intervention in Church Property Disputes: Some Constitutional Considerations,” by Dennis E. Curtis. (For the lawyers reading this, the citation is 74 Yale L.J. 1113.) This paper focuses primarily on Kedroff v. St. Nicholas Cathedral, which we’ve been discussing at length here.
Curtis begins by laying out the legal history of church property disputes. The 1871 case Watson v. Jones (which I discussed in an earlier article) set forth separate rules for hierarchical and congregational churches. According to Watson, in property disputes involving hierarchical churches (such as the Orthodox Church), the civil courts are to defer to the decisions of the highest church authority. According to Curtis, “Watson v. Jones assumes that power [of the tribunal over church members] to be plenery.”
But Watson was not the last word on the subject. Other cases led to a modification of the Watson rule, best summed up by the renowned Justice Brandeis in Gonzalez v. Archbishop:
In absence of fraud, collusion or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise.
Curtis explains that, under Brandeis’ rule, courts must determine (1) the good faith of the church authorities (“absence of fraud, collusion”) and (2) whether the church tribunal has blatantly disregarded its own rules (“arbitrariness”). “Implicit in these cases was the concept that the consent of the members to be governed by the church authorities did not envision fraudulent, arbitrary, or collusive action by those authorities.”
The key question in hierarchical church property disputes, writes Curtis, is not who owns the property, but who has “the right to prescribe beneficial use.” In other words, what body gets to decide who can use the property? Who has the authority to make that decision? In a church like the Orthodox, the decision typically belongs to the highest church authorities — whatever that means.
Curtis points out, “The Supreme Court assumed that the right to prescribe the use of the New York churches lay with the Russian Church [i.e. Moscow]. This assumption allowed the court to categorize the New York Legislature’s action [of vesting control of Russian Orthodox properties in the Metropolia] as a displacement of one church administration with another.” Curtis admits that the legislature’s intent was indeed to vest control in the Metropolia, but “[w]hether Article 5-C did in fact transfer control of the church property, however, depends upon who had the right to prescribe use of the property, before the legislative action.” Was Moscow really the “highest church authority” with the right to prescribe use, or did that designation actually belong to the Metropolia?
The Supreme Court just took it for granted that Moscow had the right to prescribe use of St. Nicholas Cathedral. Justice Reed, in his majority opinion, says,
The record before us shows no schism over faith or doctrine between the Russian Church in America and the Russian Orthodox Church. It shows administrative control of the North American Diocese by the Supreme Church Authority of the Russian Orthodox Church, including the appointment of the ruling hierarchy in North America from the foundation of the diocese until the Russian Revolution. We find nothing that indicates a relinquishment of this power by the Russian Orthodox Church.
“This finding,” writes Curtis, “is the cornerstone of the opinion.” But the Court in Kedroff doesn’t seem to have really taken a hard look at the issue — it “simply assumed that the Russian Church [Moscow] had the right to control use of the property.” It is this assumption that led the Court to interpret the New York legislature’s actions “as an unconstitutional transfer of control of property.” Once you get past the issue of who can prescribe use, the rest of the case is pretty clear-cut. I mean, if Moscow has the right to prescribe use, then the Metropolia doesn’t, and the New York legislature illegally took Moscow’s property and gave it to the Metropolia. But if the Metropolia actually did have the right to prescribe use, then the New York legislature’s actions didn’t transfer ownership at all — they simply reinforced existing ownership rights. Curtis argues that, really, “The crucial constitutional clause should not have been the free exercise [of religion] clause but the due process clause.”
Curtis suggests that the Court may have been saying that the legislature “had no power to deterimine the ownership of religious property because the first amendment bars the state from taking any part in religious disputes.” After all, any state action along these lines involve the “establishment of the religion of the winner and an interference with the free exercise of the loser.” Curtis continues:
If followed to its logical conclusion, however, this argument would bar any court, including the Supreme Court, from deciding the case. The finding of Russian administrative authority may have been the Court’s way of restoring the status quo before New York’s action, but in restoring the status quo, the Supreme Court necessarily made a finding that the Russian Church was entitled to use of the Cathedral. Applying the same logic used to bar New York court action, the Supreme Court must have violated the freedom of exercise of the American Church [Metropolia] and established the Russian Church [Moscow].
To say that courts cannot decide religious disputes creates an impossible catch-22, in which any court action for either side is “establishment.”
One problem with the Kedroff decision is that the Supreme Court didn’t set forth clear criteria for how to determine who has the right to prescribe use. According to Curtis, “the Supreme Court’s assumption of control by the Russian Church obscured the actual first amendment issues in the case. The first amendment is relevant in the beginning — in determining the right to prescribe use of church property — not after that determination has been made or assumed.” In Kedroff, the Court side-stepped this problem by just assuming that Moscow had the requisite rights.
Curtis writes that state can take two general approaches to this problem: it can set up its own arbitrary rules, or it can defer to the property rules of the particular church in the case. Curtis then offers several options and evaluates the pros and cons.
Formal Title Doctrine. It would be incredibly simple for courts to just say that whoever holds formal title to the disputed property has the right to prescribe use. On the other hand, this approach is “an invitation to anarchy within the church government,” since the formal title-holders would have virtually unlimited power over church property. Rather than viewed as trustees holding the property for the benefit of the community, the title-holders would be treated as owners.
In practice, this is sort of the way that many early American Orthodox parishes actually behaved — the parish board of trustees exercised near-absolute authority over church property (and even, in many instances, hired and fired clergy). This made the election of trustees a major — and often contentious – event in parish life. I’ve found old newspaper articles that talk about violence at parish board elections. I think most Orthodox would agree that we don’t want to turn back the clock to those days.
Proportional Division Theory. The idea here is that each church member is a sort of part-owner of church property throughout the world. Disgruntled members could essentially be bought off by the majority. But proportional division theory, says Curtis, “would be almost impossible to implement.” To apply it, the court would have to (1) figure out whether the disgruntled party was actually a member, and (2) determine the dollar amount of the member’s share of the property. Another downside is that this approach would probably result in many, many more property disputes in the courts.
From an Orthodox perspective, this approach is totally unacceptable. The true “owner” of all Church property, according to our theology, is the Lord Jesus Christ. Orthodox Christians are members of his body, yes, but that doesn’t entitle us to temporal ownership of church buildings, land, and money. Such a view is completely foreign to the mind of the Church.
State-Imposed Congregationalism. A state could, theoretically, declare that all religious groups in its borders must follow a congregational model when it comes to church property. You’d have the simplicity of a majority-rules approach, but courts would have to decide who is actually a church member. Do we want courts coming up with their own criteria for church membership? That sounds pretty awful. They could look to each church’s rules for membership, but in hierarchical churches, that usually involves the hierarchy, and you’re right back to an argument about which hierarchy has the authority. And of course, as I’ve heard from more than one church leader, the Orthodox Church is not a democracy. The flip side is that we also aren’t an oligarchy, either, but it’s clear to me that state-mandated congregationalism would not work.
In any event, writes Curtis, state-imposed rules are simply unconstitutional. Rules like these would basically constitute the establishment of religion, since states would be making rules for religious government. In addition, if the state’s rules differ from the rules of the church, the state is in violation of church members’ free exercise rights. The bottom line is that states just can’t impose property rules on churches. Which leads to:
Looking to the Church’s Own Rules. This method is pretty easy to understand, and Curtis doesn’t actually spend a lot of time talking about it. But it’s not without its issues. Particularly in Orthodoxy, our “rules” aren’t always entirely clear. Sometimes, they’re contradictory. And sometimes, the hierarchy, applying the principle of oikonomia, will intentionally not abide by the letter of the law, for the good of the Church. Do we really want secular judges telling us what our rules are, and then trying to apply them? It would be preferable to avoid that sort of thing.
English Trust Theory. Curtis presents “trust theory” as a middle ground between state-imposed rules and an attempt to apply church rules. Underlying this theory is the idea that “the church property is impressed with a trust for the use and benefit of the church members.” Trust theory has been used in English courts (although I’m not sure if it’s still applied). In those cases, the English judges would look at both sides of a dispute and try “to determine which represents the faith of the founders.”
According to Curtis, one problem with trust theory is that it “stifles the natural development of church doctrine.” In Orthodoxy, this is less of a problem, since we don’t actually have a development of doctrine. But we do have a development of doctrinal language, which is apparent to anyone familiar with the Ecumenical Councils. Ultimately, though, I see trust theory as just being unworkable in most church property disputes. If a parish divides over, say, which calendar to use (Old or New), do we want a court trying to figure out which one is “right”? When even the Orthodox Churches themselves don’t have a uniform practice? But at least the calendar is vaguely “doctrinal” (and it’s not like we’ve got churches splitting over Trinitarian theology or something). What about a more typical case, where a parish decides it doesn’t like its bishop and wants to join a different jurisdiction? How does the whole “faith of the founders” standard apply there, when there isn’t even a dispute over the faith itself?
Modified Trust Theory. One solution to the problems posed by the English trust theory is to modify the approach. Here, “the courts would assume that actions of the church authorities were valid unless plainly ultra vires.” Ultra vires is a legal term of art which literally means “beyond the powers.” In this context, an act by church authorities is ultra vires if church rules, canons, etc. did not give them the power to take such an act. I would guess that most actions within a hierarch’s or synod’s jurisdiction would be allowed under modified trust theory. The problem would arise if a bishop tried to impose himself beyond his own diocese, or a synod beyond its own jurisdiction. But as Curtis explains, both English and modified trust theories are unconstitutional, since they establish religion. Which brings us to:
Doctrine of Review. This theory assumes that church members have consented to be governed by church rules, “as interpreted by the church authorities.” But we can’t assume that the consent is absolute. “It is unreasonable,” writes Curtis, “to assume that a member consented to have church rules interpreted unfairly or arbitrarily by the church authorities.” The role of secular courts would be to determine whether an action by church authorities was “patently unfair” or violated church laws “on its face.”
This approach might work where both sides of a dispute recognize a single church authority, but what about a case like Kedroff, where the rival groups each claim authority over the property? There, the court would have to “go back and find a time when the control of the property was undisputed.” Was there a point after that when that undisputed control was surrendered or lost? The answer to that question would determine which authority was recognized — but that’s just a first step, because the court would move on to ask whether the chosen authority’s actions were patently unfair or arbitrary.
Curtis brings up Russian Orthodox Greek Catholic St. Peter and St. Paul’s Church v. Burdikoff, another church property dispute in Lorain, Ohio. According to the facts presented by Curtis, the Lorain parish had been under the Church of Russia until 1925, when it joined the Metropolia. Decades later, in 1957, Fr. George Burdikoff became pastor of the church. Soon afterwards, Burdikoff switched to Moscow’s jurisdiction, and tried to take the parish property with him. The Ohio Court of Appeals ruled against Burdikoff and Moscow, finding that for 32 years, the parish was a part of the Metropolia and Moscow asserted no right of control over it. Moscow couldn’t come along, all those years later, and try to claim jurisdiction.
Curtis admits that, even if a court defers to church decisions, there still might be constitutional issues, because the mere fact of a court enforcing a church decision could be seen as establishment. But Curtis rejects this logic, instead suggesting that the state should take a neutral position on religions, neither helping nor hindering any. He reasons that “the power of the churches to govern is derived from the consent of the members,” and by deferring to church authorities who follow church rules, the courts are “merely enforcing the original consent of the member.” Curtis then makes an important constitutional point:
If the church as a whole can claim a constitutional right to freedom of exercise, it must be derived from the members through the aggregate of their consent. Therefore the church can only claim the protection of the freedom of exercise clause so long as its decisions are made within the framework of its own rules.
The problem with Kedroff, says Curtis, is that the Supreme Court “failed to realize that no matter what methods are used to settle church property disputes, each one will be subject to first amendment attack.” There is an inevitable tension between free exercise on the one hand, and establishment on the other. The key, Curtis tells us, “is to treat the free exercise clause as paramount, and the establishment clause as primarily a means of safeguarding the freedom of exercise.”
This makes sense to me. Think about the Kedroff case: the Supreme Court rejected New York’s actions because they purportedly “established” the Metropolia and violated the free exercise of the Moscow group. But the Supreme Court ruling just reversed things, establishing Moscow (that is, putting the weight of the government behind Moscow) and violating the Metropolia’s free exercise rights (by taking from them property in which they had formal title and which they considered rightfully their cathedral).
In the end, there is no perfect answer, but I do think — at this point in my research — that courts should defer to church authorities, but that this deference should not be absolute or unconditional. If church authorities act in a manner that is utterly and completely at odds with church rules, courts should be able to make a determination. After all, we’re talking, not about dogma per se, but about property within the borders of the United States. We can’t completely escape state involvement when there is a dispute.
UPDATE: To read the full text of Curtis’ Yale Law Journal article, click here.
This article was written by Matthew Namee.
From the New York Times, November 25, 1952, page 31:
U.S. COURT VOIDS ACT ON RUSSIAN CHURCH
State Law to End Communist Sway in Orthodox Cathedral Here Is Upset by Ruling
RELIGIOUS FREEDOM CITED
8-to-1 Decision Holds Action Violated 14th Amendment — Jackson Lone Dissenter
BY CLAYTON KNOWLES
WASHINGTON, Nov. 24 — The Supreme Court of the United States ruled today that a New York law, seeking to eliminate Communist influence in Russian Orthodox churches chartered in the state, fell into the realm of religious control barred by the Constitution of the United States.
Under the state law, the Rev. Benjamin Fedchenkoff, Archbishop of the church in North America by appointment of the Patriarch of Moscow, was removed from his pulpit at St. Nicholas Cathedral, 15 East Ninety-seventh Street, New York.
The Court of Appeals, highest tribunal of the state, upheld the validity of the state law under which the ouster was undertaken but the Supreme Court, reversing this finding in an eight-to-one decision, held that such a law violates the Fourteenth Amendment guaranteeing freedom of religion in this country.
The majority opinion, written by Associate Justice Stanley F. Reed, said a state Legislature “cannot validate action which the Constitution prohibits.”
Argument by Jackson
Registering his lone dissent, Associate Justice Robert H. Jackson held that the argument that the state law violated the Fourteenth Amendment safeguards of religious freedom was “so insubstantial that I would dismiss the appeal.”
“To me, whatever the canon law is found to be and whoever is the rightful head of the Moscow Patriarchate,” he wrote, “I do not think that New York law must yield to the authority of a foreign and unfriendly state masquerading as a spiritual institution.”
A bitter factional fight has raged at St. Nicholas Cathedral since 1917, when the Russian revolution brought changes in the central church. A faction, headed by the late Archbishop John S. Kedrovsky, got control of the cathedral in 1926 and kept it up to 1945, when a legal battle was begun over it.
Joined with Archbishop Fedchenkoff as an appellant in the present case has been the Rev. John Kedroff, a son of the late Archbishop. The basic fight has been between those supporting the mother church at Moscow and adherents of the Russian Church in America, recognized under New York law as having the authority over Russian Orthodox churches within the state. This latter group was set up in 1924.
It was on the basis of this law that officials of the cathedral sued to remove Archbishop Fedchenkoff, whose Moscow-bestowed title was Archbishop of the Archdiocese of North America and the Aleutian Islands.
The prevailing court opinion held that the New York law undertook to transfer control of the New York church from the central governing hierarchy and thereby “violates the Fourteenth Amendment by prohibiting in this country the free exercise of religion.”
Majority Opinion Stated
The Reed opinion took cognizance of the fact that the Court of Appeals felt that, since the Russian Government exercised control over the central church authorities, the state legislature had been reasonably justified “in enacting a law to free the American group from infiltration of such atheistic or subversive influences.”
“This legislation, in view of the Court of Appeals,” wrote Justice Reed, “gave the use of the church to the Russian church in America on the theory that this carry out the purposes of the religious trust. Thus, dangers of political use of church pulpits would be minimized.
“Legislative power to punish subversive action cannot be doubted. If such action should be actually attempted by a cleric neither his robe nor his pulpit would be a defense. But in this case, no probation of law arises. There is no action by any ecclesiastic. Here there is a transfer by statute of control over churches. This violates our rule of separation between church and state.”
In a concurring opinion, Associate Justice Felix Frankfurter stated that St. Nicholas Cathedral was “not just a piece of real estate . . . no more than is St. Patrick’s Cathedral or the Cathedral of St. John the Divine.” The cathedral, he maintained, was “an archiepiscopal see of one of the great religious organizations” in stating that the essence of the controversy was “the power to exercise religious authority.”
Finding Called “Sound”
Philip Adler, attorney for St. Nicholas Cathedral [actually, the attorney for the Moscow group], said last night that the position of the Supreme Court was “sound,” regardless of one’s attitude toward Soviet Russia. He emphasized that while he was uncompromisingly opposed to communism, “the church must be preserved.”
Ralph Montgomery Arkush, the opposing counsel [for the Metropolia group], said that he preferred not to comment until he had an opportunity to study the court’s opinion. He added, however, that there “still may be a remedy at common law.”
Editor’s note: That last line by Arkush, the Metropolia’s attorney, is important: that there “still may be a remedy at common law.” The Supreme Court struck down an act of the New York legislature, but the Metropolia didn’t give up. They went back to court, this time arguing that even if the legislature couldn’t decide the property dispute in the Metropolia’s favor, the New York courts could.
New York’s highest court agreed. It found, as a factual matter, that the Patriarch of Moscow was dominated by the secular authority of the USSR, and because of this, his appointed Archbishop could not, under New York common law, take possession of the Cathedral. It was a blatantly anti-Communist rationale, and the case made it all the way back to the Supreme Court in 1960, under the title Kreshik v. Saint Nicholas Cathedral. In an opinion far shorter than the 1952 case, the Supreme Court struck down the New York ruling, reasoning that it doesn’t matter whether the state violates religious freedom through the legislature or the judiciary — either way, you’ve got the state violating religious freedom, and that’s unconstitutional. “[O]ur ruling in Kedroff is controlling here,” reads the opinion, and once again Moscow won.
St. Nicholas Cathedral remains the property of the Moscow Patriarchate to this day. Any future dispute over the ownership of the Cathedral was put to rest by Moscow’s 1970 Tomos of Autocephaly, granted to the OCA, which stipulated that the Cathedral (among other properties) is “excluded from autocephaly on the territory of North America.” Today, the Cathedral is the official representation church of the Moscow Patriarchate in America.
In my last four articles, I summarized the majority, concurring, and dissenting opinions in Kedroff v. St. Nicholas Cathedral. Here, I will offer my initial impressions of the case. Please keep in mind that these are initial — I may well change my position down the road. I’m quite open-minded about the whole thing, and I regard both sides of the case as having very legitimate arguments.
The crucial sequence of facts in this case, as I see it, is as follows:
- The Russian Orthodox Church (“Moscow,” for our purposes) had undisputed authority over the North American Archdiocese (the future Metropolia) up to at least 1917.
- In 1920, Patriarch Tikhon issued a decision which granted to the Metropolia “a large measure of autonomy, when the Russian ruling authority was unable to function, subject to ‘confirmation later to the Central Church Authority when it is reestablished.’” (Quoting from Justice Reed’s majority opinion, which in turn quoted from St. Tikhon’s decision.)
- In turn, at the 1924 Detroit Sobor, the Metropolia set itself up as a temporarily autonomous church.
- In 1945, Metropolia delagates went to Moscow for the election of Patriarch Alexy I. They were delayed and were thus unable to participate in the All-Russian Sobor as they had intended, but they later met with the Patriarch and Holy Synod and presented a request for autonomy.
- Rather than granting autonomy, the Patriarch and Holy Synod instead offered the Metropolia reunion with Moscow, subject to several stipulations (including a promise that the Metropolia abstain “from political activities against the U.S.S.R.”
- At the 1946 All-American Sobor in Cleveland, the Metropolia rejected Moscow’s offer.
- Even so, in 1952, the Metropolia still recognized Patriarch Alexy I as the legitimate Patriarch of Moscow.
It is because of this sequence of events that Justice Reed could assert, “The record before us [...] shows administrative control of the North American Diocese by the Supreme Church Authority of the Russian Orthodox Church, including the appointment of the ruling hierarch in North America from the foundation of the diocese until the Russian Revolution. We find nothing that indicates a relinquishment of this power by the Russian Orthodox Church.”
Now, imagine if things had been a little different. Imagine, for instance, that the Metropolia had gone to Russia in 1945 not to participate in the All-Russian Sobor as members of the Russian Orthodox Church, but only to attend as observers. Imagine if the Metropolia had not made a formal request for autonomy from Moscow, but rather had entered into negotiations with the aim of reuniting with autonomy (basically what ROCOR did a few years ago).
The point here is that the Metropolia did not have to officially recognize Patriarch Alexy and the Russian Synod as a legitimate “Central Church Authority.” The Metropolia could have recognized the Russian Church as truly Orthodox, but at the same time refused recognition of the purported Central Church Authority based on the argument that that Authority operated under constant duress from Stalin’s Soviet government.
Let me try this another way. St. Tikhon’s grant of temporary self-administration was subject to “confirmation” by the Central Church Authority “when it is reestablished.” Had the Metropolia withheld recognition of the Moscow authorities as a true Central Church Authority, they could have argued that St. Tikhon’s stipulation was not yet operative — that a real Central Church Authority hadn’t been established. But as soon as the Metropolia recognized the Moscow Central Church Authority, they activiated the “confirmation” element of St. Tikhon’s decision.
From a legal standpoint, in my opinion, the Metropolia’s strongest argument against Moscow’s claim of authority would have been that Moscow had no legitimate Central Church Authority, and thus St. Tikhon’s grant of self-administration was still in force. This would have given the Supreme Court the necessary justification for rejecting Moscow’s argument of hierarchical superiority — the argument that ultimately won the case, since the Court defers to the judgment of the higher authorities in a hierarchical church.
But given the actual circumstances — given that the Metropolia did recognize Moscow as a legitimate Central Church Authority — the Court’s hands were tied. The Metropolia’s recognition meant that the Metropolia was subordinate to Moscow, and even New York property law cannot trump Russian Church law when both parties are part of the Russian Church.
Given the Metropolia’s recognition of Moscow as a Central Church Authority, the only plausible argument I think could have been made for the Metropolia was Justice Jackson’s argument that this isn’t really a religious dispute at all — it’s a property dispute. From my article on Jackson’s dissent:
According to Justice Jackson, just because property is “dedicated to a religious use” does not make the property dispute into a deprivation of religious liberty. “I assume no one would pretend that the State cannot decide a claim of trespass, larceny, conversion, bailment or contract, where the property involved is that of a religious corporation or is put to religious use, without invading the principle of religious liberty.”
It’s a really compelling argument. The problem is this: that while the Metropolia had legal title to the Cathedral, Moscow could point to a church law which gave possession of the Cathedral to the Moscow-appointed Archbishop. Justice Jackson says that church law doesn’t trump New York law… but is that right? If the property in question was owned by a part of the Russian Orthodox Church, why wouldn’t Russian Church law apply? We’re back to the problem of the Metropolia’s recognition of the Moscow Central Church Authority. By extending that recognition, the Metropolia made itself subject to Moscow’s whims. The Metropolia couldn’t just disagree with Moscow and take refuge in New York law, once it activated the “confirmation” element of St. Tikhon’s self-administration grant.
Ultimately, had the Metropolia followed ROCOR’s lead and totally rejected Moscow’s legitimacy as a Central Church Authority, it probably would have retained St. Nicholas Cathedral. I am personally sympathetic to the Metropolia in this case, but, at this point in my analysis, I think that the Court came to the right legal decision.
This article was written by Matthew Namee.