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.