Justice Robert Jackson wrote the dissenting opinion in Kedroff v. St. Nicholas Cathedral

Lately, I’ve been analyzing the Kedroff v. St. Nicholas Cathedral, a landmark 1952 Supreme Court case. For all the articles I’ve written on the case, click here. In this article, I am focusing on Justice Jackson’s dissenting opinion. (A brief note: in the past articles, I erroneously referred to Justice Jackson as Justice Black. I have no idea why I confused the two men. Justice Black actually agreed with the majority. Sorry for the mistake.)

Justice Jackson lets us know how he feels from the very beginning of his opinion: “New York courts have decided an ordinary ejectment action involving possession of New York real estate in favor of the plaintiff, a corporation organized under the Religious Corporations Law of New York under the name ‘Saint Nicholas Cathedral of the Russian Orthodox Church in North America.’ Admittedly, it holds, and since 1925 has held, legal title to the Cathedral property. The New York Court of Appeals decided that it also has the legal right to its possession and control.”

This is something we haven’t heard before — that the Metropolia party (i.e., “Saint Nicholas Cathedral”) actually held legal title to the property. All the New York courts tried to do, in Justice Jackson’s view, is uphold that legal title. Justice Jackson continues:

The appellant [Archbishop] Benjamin’s defense against this owner’s demand for possession and the basis of his claimed right to enjoy possession of property he admittedly does not own is set forth in his answer to the ejectment suit in these words: ‘Said premises pursuant to the above rules of the Russian Orthodox Church are held in trust for the benefit of the accredited Archbishop of said Archdiocese, to be possessed, occupied and used by said Archbishop as his residence, as a place for holding religious services, and other purposes related to his office and as the seat and headquarters for the administration, by him, of the affairs of the Archdiocese both temporal and spiritual.’ And, says the appellant Benjamin, he is that Archbishop.

Again, this is information that wasn’t clear from the majority and concurring opinions we’ve already seen. On the one hand, the Metropolia group has legal title to the property. On the other hand, the Moscow group points to a claim that, by way of Russian Church rules, the property is held in trust for the Archbishop.

Justice Jackson goes on to offer his own perspective on the history leading up to the case:

I greatly oversimplify the history of this controversy to indicate its nature rather than to prove its merits. This Cathedral was incorporated and built in the era of the Czar, under the regime of a state-ridden church in a church-ridden state. The Bolshevik Revolution may have freed the state from the grip of the church, but it did not free the church from the grip of the state. It only brought to the top a new master for a captive and submissive ecclesiastical establishment. By 1945, the Moscow patriarchy had been reformed and manned under the Soviet regime and it sought to re-establish in other countries its prerevolutionary control of church property and its sway over the minds of the religious. As the Court’s opinion points out, it demanded of the Russian Church in America, among other things, that it abstain “from political activities against the U.S.S.R.” The American Cathedral group, along with others, refused submission to the representative of the Moscow Patriarch, whom it regarded as an arm of the Soviet Government. Thus, we have an ostensible religious schism with decided political overtones.

Justice Jackson argues that this case concerns “the ownership and possession of real estate” in New York, and “the vexing technical questions pertaining to the creation, interpretation, termination, and enforcement of uses and trusts.” These are matters for the states, not the United States Supreme Court. Justice Jackson writes, “This controversy, I believe, is […] not within the proper province of this Court.”

Justice Jackson continues, “As I read the prevailing opinions, the Court assumes that some transfer of control has been accomplished by legislation which results in a denial of due process. This, of course, would raise a question of deprivation of property, not of liberty, while only the latter issue is raised by the parties.” In other words, everyone here is talking about freedom of religion and the First Amendment, but really, this is about property, plain and simple. The fact that the parties involved are religious groups is not really relevant.

In point of fact, says Justice Jackson, no religious freedom has been violated.

It is important to observe what New York has not done in this case. It has not held that Benjamin may not act as Archbishop or be revered as such by all who will follow him. It has not held that he may not have a Cathedral. Indeed, I think New York would agree that no one is more in need of spiritual guidance than the Soviet faction. It has only held that this cleric may not have a particular Cathedral which, under New York law, belongs to others. It has not interfered with his or anyone’s exercise of his religion. New York has not outlawed the Soviet-controlled sect nor forbidden it to exercise its authority or teach its dogma in any place whatsoever except on this piece of property owend and rightfully possessed by the Cathedral Corporation.

The above paragraph stands in direct opposition to Justice Frankfurter’s opinion (discussed in my previous article), which equated possession of the Cathedral with spiritual authority itself. In Justice Frankfurter’s view, the State of New York all but deposed Benjamin as Archbishop of North America when it awarded St. Nicholas Cathedral to the Metropolia. In Justice Jackson’s view, all New York did was uphold the Metropolia’s legal ownership of the Cathedral, while doing nothing to interfere with Benjamin’s position as Archbishop.

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.”

And furthermore, aren’t both sides in this controversy religious groups? “But if both claimants are religious corporations or personalities, can not the State decide the issues that arise over ownership and possession without invading the religious freedom of one or the other of the parties?”

Referring to Archbishop Benjamin as “the Soviet Ecclesiast,” Justice Jackson writes that the Archbishop’s claim, “denial of which is said to be constitutional error,” is that the Cathedral property is “impressed with a trust by virtue of the rules of the Russian Orthodox Church” — not by virtue of New York law. “To me, whatever the canon law is found to be and whoever is the rightful head of the Moscow patriarchate, I do not think New York law must yield to the authority of a foreign and unfriendly state masquerading as a spiritual institution.”

This, then, is the dichotomy: New York property law and a New York title, versus Russian Church law and a purported trust under that law. And in Justice Jackson’s mind, when New York property law conflicts with Russian Church property law, New York law wins.

I will offer my own intitial, tentative impressions in the next article.

This article was written by Matthew Namee.