Justice Felix Frankfurter authored a concurring opinion in Kedroff v. St. Nicholas Cathedral.

In my previous two articles (available here), I discussed the majority opinion in the 1952 Supreme Court case Kedroff v. St. Nicholas Cathedral. Today, I’ll discuss the concurring opinion of Justice Frankfurter. And just to be clear — “concurring opinion” means that Justice Frankfurter agreed with the ultimate outcome of the case (a victory for the Moscow Patriarchal jurisdiction), but differed to some extent in his reasoning.

The majority opinion, authored by Justice Reed, relied on the idea that the Russian Orthodox Church had undisputed jurisdiction over its North American Archdiocese until 1917, never relinquished that jurisdiction after 1917, and therefore still had jurisdiction in 1952. Thus the whole issue was an internal church dispute, and Moscow, as the higher church authority, had priority over the Metropolia.

Justice Frankfurter, concurring, begins by simply stating the problem. “[T]his proceeding,” he writes, “rests on a claim which cannot be determined without intervention by the State in a religious conflict. […] St. Nicholas Cathedral is an archiepiscopal see of one of the great religious organizations. What is at stake here is the power to exercise religious authority. That is the essence of this controversy.” According to Justice Frankfurter, St. Nicholas Cathedral is not merely a piece of property — it is “the outward symbol of a religious faith.” Control of the Cathedral is a physical manifestation of religious authority; thus, determining who owns the Cathedral is tantamount to determining who has religious authority.

I find this logic questionable. Nobody was going to shift their loyalties from Metropolitan Leonty to Archbishop Benjamin, or vice versa, on the basis of who physically possessed the Cathedral building. I’m no theologian, but my understanding is that Justice Frankfurter’s logic has things somewhat backwards: it is the bishop who makes the cathedral, not the cathedral the bishop. After all, “cathedral” simply refers to the “cathedra” — the bishop’s throne, or seat. Metropolitan Leonty could — and did — make a different building his cathedral, and to this day, Holy Protection (not St. Nicholas) is the OCA cathedral for New York.

Citing Watson v. Jones (discussed in my previous post), Justice Frankfurter points out that, even in property disputes where secular courts must get involved, “the authority of courts is in strict subordination to the ecclesiastical law of a particular church prior to a schism.” So the courts can get involved to some limited degree, sometimes. On the other hand, “Legislatures have no such obligation to adjudicate and no power.” It would be one thing, says Justice Frankfurter, for the New York courts to deal with a dispute over ownership of St. Nicholas Cathedral. But that isn’t what happened; instead, the New York state legislature stepped in and passed a law, transferring property rights from Moscow to the Metropolia.

If this principle is allowed to stand, reasons Justice Frankfurter, it “would give each State the right to assess the circumstances, in the foreign political entanglements of its religious bodies that make for danger to the State,” and the power to “divest such bodies of spiritual authority and of the temporal property which symbolizes it.” Again, Justice Frankfurter returns to this notion that the cathedral makes the bishop — a notion which I consider theologically and ecclesiologically (not to mention legally) suspect.

However, Justice Frankfurter’s broader point is spot on. He writes, “Memory is short but it cannot be forgotten that in the State of New York there was a strong feeling against the Tsarist regime at a time when the Russian Church was governed by a Procurator of the Tsar. And when Mussolini executed the Lateran Agreement, argument was not wanting by those friendly to her claims that the Church of Rome was subjecting herself to political authority.” It is entirely possible that foreign governments could influence American citizens via religious institutions such as the Russian Orthodox Church and the Roman Catholic Church. But the state cannot be driven by these fears. Justice Frankfurter continues, “Such fear readily leads to persecution of religious beliefs deemed dangerous to ruling political authority. […] The long, unedifying history of the contest between the secular state and the church is replete with instances of attempts by civil government to exert pressure upon religious authorities.” Thus, while states have a legitimate interest in combating Soviet ideology, and while the Soviets may exert an influence over the Russian Orthodox Church, “under our Constitution it is not open to the governments of this Union to reinforce the loyalty of their citizens by deciding who is the true exponent of their religion.”

But according to the Metropolia, “the present Moscow Patriarchate is not the true superior church of the American communicants. The vicissitudes of war and revolution which have beset the Moscow Patriarchate since 1917 are said to have resulted in a discontinuity which divests the present Patriarch of his authority over the American church.” Problematically, though, the Metropolia does recognize Patriarch Alexy as the “legitimately chosen holder of his office.” So do Alexy’s “co-equals,” the other Orthodox patriarchs (and even, adds Justice Frankfurter, “the present Archbishop of York”). The New York legislature can’t just step in and declare Alexy illegitimate.

Justice Frankfurter concludes that the New York legislature, in enacting a law in favor of the Metropolia over Moscow, “enter[ed] the domain of religious control barred to the States” by the Constitution.

This concurring opinion isn’t long, but it incorporates several arguments. In summary (as best I can figure):

1. The Cathedral is the symbol of spiritual authority, so to decide its owner is essentially to decide a religious question reserved for the church.
2. The New York state legislature doesn’t have the power to adjudicate church property disputes; that is a matter for the courts, and even those courts cannot override church law.
3. It’s extremely dangerous to let governments restrict churches based on fears of foreign political influence.
4. Everybody agrees that Patriarch Alexy is the legitimate head of the Russian Church, and as such, he has authority over the Russian Church in America.

Next time, we’ll unpack Justice Jackson’s very different dissenting opinion.

This article was written by Matthew Namee.