Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich

Mr. Justice Rehnquist,

with whom Mr. Justice Stevens joins, dissenting.

The Court’s opinion, while long on the ecclesiastical history of the Serbian Orthodox Church, is somewhat short on the procedural history of this case. A casual reader of some of the passages in the Court’s opinion could easily gain the impression that the State of Illinois had commenced a proceeding designed to brand Bishop Dionisije as a heretic, with appropriate pains and penalties. But the state trial judge in the Circuit Court of Lake County was not the Bishop of Beauvais, trying Joan of Arc for heresy; the jurisdiction of his court was invoked by petitioners themselves, who sought an injunction establishing their control over property of the American-Canadian Diocese of the church located in Lake County.

The jurisdiction of that court having been invoked *726for such a purpose by both petitioners and respondents, contesting claimants to Diocesan authority, it was entitled to ask if the real Bishop of the American-Canadian Diocese would please stand up. The protracted proceedings in the Illinois courts were devoted to the ascertainment of who that individual was, a question which the Illinois courts sought to answer by application of the canon law of the church, just as they would have attempted to decide a similar dispute among the members of any other voluntary association. The Illinois courts did not in the remotest sense inject their doctrinal preference into the dispute. They were forced to decide between two competing sets of claimants to church office in order that they might resolve a dispute over real property located within the State. Each of the claimants had requested them to decide the issue. Unless the First Amendment requires control of disputed church property to be awarded solely on the basis of ecclesiastical paper title, I can find no constitutional infirmity in the judgment of the Supreme Court of Illinois.

Unless civil courts are to be wholly divested of authority to resolve conflicting claims to real property owned by a hierarchical church, and such claims are to be resolved by brute force, civil courts must of necessity make some factual inquiry even under the rules the Court purports to apply in this case. We are told that “a civil court must accept the ecclesiastical decisions of church tribunals as it finds them,” ante, at 713. But even this rule requires that proof be made as to what these decisions are, and if proofs on that issue conflict the civil court will inevitably have to choose one over the other. In so choosing, if the choice is to be a rational one, reasons must be adduced as to why one proffered decision is to prevail over another. Such reasons will *727obviously be based on the canon law by which the disputants have agreed to bind themselves, but they must also represent a preference for one view of that law over another.

If civil courts, consistently with the First Amendment, may do that much, the question arises why they may not do what the Illinois courts did here regarding the defrockment of Bishop Dionisije, and conclude, on the basis of testimony from experts on the canon law at issue, that the decision of the religious tribunal involved was rendered in violation of its own stated rules of procedure. Suppose the Holy Assembly in this case had a membership of 100; its rules provided that a bishop could be defrocked by a majority vote of any session at which a quorum was present, and also provided that a quorum was not to be less than 40. Would a decision of the Holy Assembly attended by 30 members, 16 of whom voted to defrock Bishop Dionisije, be binding on civil courts in a dispute such as this? The hypothetical example is a clearer case than the one involved here, but the principle is the same. 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.

The cases upon which the Court relies are not a uniform line of authorities leading inexorably to reversal of the Illinois judgment. On the contrary, they embody two distinct doctrines which have quite separate origins. The first is a common-law doctrine regarding the appropriate roles for civil courts called upon to adjudicate church property disputes — a doctrine which found general application in federal courts prior to Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), but which has never had any application to our review of a state-court *728decision. The other is derived from the First Amendment to the Federal Constitution, and is of course applicable to this case; it, however, lends no more support to the Court's decision than does the common-law doctrine.

The first decision of this Court regarding the role of civil courts in adjudicating church property disputes was Watson v. Jones, 13 Wall. 679 (1872). There the Court canvassed the American authorities and concluded that where people had chosen to organize themselves into voluntary religious associations, and had agreed to be bound by the decisions of the hierarchy created to govern such associations, the civil courts could not be availed of to hear appeals from otherwise final decisions of such hierarchical authorities. The bases from which this principle was derived clearly had no constitutional dimension; there was not the slightest suggestion that the First Amendment or any other provision of the Constitution was relevant to the decision in that case. Instead the Court was merely recognizing and applying general rules as to the limited role which civil courts must have in settling private intraorganizational disputes. While those rules, and the reasons behind them, may seem especially relevant to intrachurch disputes, adherence or nonadherence to such principles was certainly not thought to present any First Amendment issues. For as the Court in Watson observed:

“Religious organizations come before us in the same attitude as other voluntary associations for benevolent or charitable purposes, and their rights of property, or of contract, are equally under the protection of the law, and the actions of their members subject to its restraints.” Id., at 714.

The Court's equation of religious bodies with other private voluntary associations makes it clear that the prin*729ciples discussed in that case were not dependent upon those embodied in the First Amendment.

Less than a year later Watson’s observations about the roles of civil courts were followed in Bouldin v. Alexander, 15 Wall. 131 (1872), where the Court held that the appointed trustees of the property of a congregational church

“cannot be removed from their trusteeship by a minority of the church society or meeting, without warning, and acting without charges, without citation or trial, and in direct contravention of the church rules.” Id., at 140.

Again, there was nothing to suggest that this was based upon anything but commonsense rules for deciding an intraorganizational dispute: in an organization which has provided for majority rule through certain procedures, a minority’s attempt to usurp that rule and those procedures need be given no effect by civil courts.

In Gonzalez v. Archbishop, 280 U. S. 1 (1929), the Court again recognized the principles underlying Watson in upholding a decision of the Supreme Court of the Philippine Islands that the petitioner was not entitled to the chaplaincy which he claimed because the decision as to whether he possessed the necessary qualifications for that post was one committed to the appropriate church authorities. In dicta which the Court today conveniently truncates, Mr. Justice Brandéis observed:

“In the 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. Under like circumstances, effect is given in the courts to the determinations of the judicatory bodies estab*730lished by clubs and civil associations.” Id., at 16-17 (emphasis supplied; footnotes omitted).

Gonzalez clearly has no more relevance to the meaning of the First Amendment than do its two predecessors.

The year 1952 was the first occasion on which this Court examined what limits the First and Fourteenth Amendments might place upon the ability of the States to entertain and resolve disputes over church property. In Kedroff v. St. Nicholas Cathedral, 344 U. S. 94 (1952), the Court reversed a decision of the New York Court of Appeals which had upheld a statute awarding control of the New York property of the Russian Orthodox Church to an American group seeking to terminate its relationships with the hierarchical Mother Church in Russia. The New York Legislature had concluded that the Communist government of Russia was actually in control of the Mother Church and that “ The Moscow Patriarchate was no longer capable of functioning as a true religious body, but had become a tool of the Soviet Government primarily designed to implement its foreign policy, ” id., at 107 n. 10, quoting from 302 N. Y. 1, 32-33, 96 N. E. 2d 56, 73-74 (1950), and the New York Court of Appeals sustained the statute against the constitutional attack. This Court, however, held the statute was a violation of the Free Exercise Clause, noting:

“By fiat it displaces one church administrator with another. It passes the control of matters strictly ecclesiastical from one church authority to another. It thus intrudes for the benefit of one segment of a church the power of the state into the forbidden area of religious freedom contrary to the principles of the First Amendment.” 344 U. S., at 119.

On remand from the decision in Kedrojf, the New York Court of Appeals again held that the American *731group was entitled to the church property at issue. This time relying upon the common law of the State, the Court of Appeals ruled that the Patriarch of Moscow was so dominated by the secular government of Russia that his appointee could not validly occupy the Church’s property. On appeal, this Court reversed summarily, Kreshik v. St. Nicholas Cathedral, 363 U. S. 190 (1960), noting in its per curiam opinion that

“the decision now under review rests on the same premises which were found to have underlain the enactment of the statute struck down in Kedroff.” Id., at 191.

Nine years later, in Presbyterian Church v. Bull Church, 393 U. S. 440 (1969), the Court held that Georgia’s common law, which implied a trust upon local church property for the benefit of the general church only on the condition that the general church adhere to its tenets of faith and practice existing at the time of affiliation by the local churches, was inconsistent with the First and Fourteenth Amendments and therefore could not be utilized to resolve church property disputes. The Georgia law was held impermissible because

“[u]nder [the Georgia] approach, property rights do not turn on a church decision as to church doctrine. The standard of departure-from-doctrine, though it calls for resolution of ecclesiastical questions, is a creation of state, not church, law.” Id., at 451.

Finally, in Md. & Va. Churches v. Sharpsburg Church, 396 U. S. 367 (1970), the Court considered an appeal from a judgment of the Court of Appeals of Maryland upholding the dismissal of two actions brought by the Eldership seeking to prevent two of its local churches from withdrawing from that general religious association. The Eldership had also claimed the rights to select the *732clergy and to control the property of the two local churches, but the Maryland courts, relying “upon provisions of state statutory law governing the holding of property by religious corporations, upon language in the deeds conveying the properties in question to the local church corporations, upon the terms of the charters of the corporations, and upon provisions in the constitution of the General Eldership pertinent to the ownership and control of church property,” ibid, (emphasis supplied; footnote omitted), concluded that the El-dership had no right to invoke the State’s authority to compel their local churches to remain within the fold or to succeed to control of their property. This Court dismissed the Eldership’s contention that this judgment violated the First Amendment for want of a substantial federal question.

Despite the Court’s failure to do so,.it does not seem very difficult to derive the operative constitutional principle from this line of decisions. As should be clear from even this cursory study, Watson, Bouldin, and Gonzalez have no direct relevance* to the question before us today: *733whether the First Amendment, as made applicable to the States by the Fourteenth, prohibits Illinois from permitting its civil courts to settle religious property disputes in the manner presented to us on this record. I think it equally clear that the only cases which are relevant to that question — Kedroff, Kreshik, Hull, and Md. & Va. Churches — require that this question be answered in the negative. The rule of those cases, one which seems fairly implicit in the history of our First Amendment, is that the government may not displace the free religious choices of its citizens by placing its weight behind a particular religious belief, tenet, or sect. That is what New York attempted to do in Kedroff and Kreshik, albeit perhaps for nonreligious reasons, and the Court refused to permit it. In Hull, the State transgressed the line drawn by the First Amendment when it applied a state-created rule of law based upon “departure from doctrine” to prevent the national hierarchy of the Presbyterian Church in the United States from seeking to reclaim possession and use of two local churches. When the Georgia courts themselves required an examination into whether there had been a departure from the doctrine of the church in order to apply this state-created rule, they went beyond mere application of neutral principles of law to such a dispute.

There is nothing in this record to indicate that the Illinois courts have been instruments of any such impermissible intrusion by the State on one side or the other of a religious dispute. There is nothing in the Supreme Court of Illinois’ opinion indicating that it placed its thumb on the scale in favor of the respondents. Instead that opinion appears to be precisely what it pur*734ports to be: an application of neutral principles of law consistent with the decisions of this Court. Indeed, petitioners make absolutely no claim to the contrary. They agree that the Illinois courts should have decided the issues which they presented; but they contend that in doing so those courts should have deferred entirely to the representations of the announced representatives of the Mother Church. Such blind deference, however, is counseled neither by logic nor by the First Amendment. To make available the coercive powers of civil courts to rubber-stamp ecclesiastical decisions of hierarchical religious associations, when such deference is not accorded similar acts of secular voluntary associations, would, in avoiding the free exercise problems petitioners envision, itself create far more serious problems under the Establishment Clause.

In any event the Court’s decision in Md.dk Va. Churches demonstrates that petitioners’ position in this regard is untenable. And as I read that decision, it seems to me to compel affirmance of at least that portion of the Illinois court’s decision which denied petitioners’ request for the aid of the civil courts in enforcing its desire to divide the American-Canadian Diocese. See ante, at 720-724 (Part III). I see no distinction between the Illinois courts’ refusal to place their weight behind the representatives of the Serbian Mother Church who sought to prevent portions of their American congregation from splitting off from that body and the Maryland courts’ refusal to do the same thing for the Eldership of the Church of God. The Court today expressly eschews any explanation for its failure to follow Md. & Va. Churches, see ante, at 721, contenting itself with this conclusory statement:

“The constitutional provisions of the American-Canadian Diocese were not so express that the civil *735courts could enforce them without engaging in a searching and therefore impermissible inquiry into church polity.” Ante, at 723.

But comparison of the relevant discussions by the state tribunals regarding their consideration of church documents makes this claimed distinction seem quite specious. Compare Md. & Va. Churches v. Sharpsburg Church, 264 Md. 162, 170, 264 A. 2d 162, 168 (1969), with Serbian Orthodox Diocese v. Ocokoljich, 72 Ill. App. 2d 444, 458-462, 219 N. E. 2d 343, 350-353 (1966).

In conclusion, while there may be a number of good arguments that civil courts of a State should, as a matter of the wisest use of their authority, >avoid adjudicating religious disputes to the maximum extent possible, they obviously cannot avoid all such adjudications., And while common-law principles like those discussed in Watson, Bouldin, and Gonzalez may offer some sound principles for those occasions when such adjudications are required, they are certainly not rules to which state courts are required to adhere by virtue of the Fourteenth Amendment. The principles which that Amendment, through its incorporation of the First, does enjoin upon the state courts — that they remain neutral on matters of religious doctrine — have not been transgressed by the Supreme Court of Illinois.

1 am far from persuaded, moreover, that these decisions would require the result reached today even if we were reviewing a federal decision rather than that of a state court. As demonstrated in the text, swpra, these cases were applications of the general principle that persons who have contractually bound themselves to adhere to the decisions of the ruling hierarchy in a private association may not obtain relief from those decisions in a civil court. Here the underlying question addressed by the Illinois courts is the one assumed in Watson et al.: whether the members of the American-Canadian Diocese had bound themselves to abide by the decisions of the Mother Church in the matters at issue here. The Illinois courts concluded that in regard to some of these matters they had agreed to be bound only if certain procedures were followed and that as to others there had been no agreement to submit to the authority of the Belgrade Patriarchate at all. If these conclusions are correct, and there is little to indicate they *733are not, then the “Watson rule” which the Court brandishes so freely today properly would have no application to these facts even if this case had arisen in federal court.