Serbian Diocese v. Milivojevich, Part 2: Justice Rehnquist’s Dissenting Opinion

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.

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