DECISION OF THE SUPREME COURT OF THE UNITED STATES OF AMERICA

(November 24, 1952)

Mr. Justice Reed delivered the opinion of the Court

The right to the use and occupancy of a church in the city of New York is in dispute.
The right to such use is claimed by appellee, a corporation created in 1925 by an act of the Legislature of New York , Laws of New York 1925, c.463, for the purpose of acquiring a cathedral for the Russian Orthodox church in North America as a central place of worship and residence of the ruling archbishop “in accordance with the doctrine, discipline and worship of the Holy Apostolic Catholic Church of Eastern Confession as taught by the holy scriptures, holy tradition, seven ecumenical councils and holy fathers of that church.”


The corporate right is sought to be enforced so that the head of the American churches, religiously affiliated with the Russian Orthodox Church, may occupy the Cathedral. At the present time that head is the Metropolitan of All America and Canada, the archbishop of New York, Leonty, who like his predecessors was elected to his ecclesiastical office by sobor of the American churches.¹
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A sobor is convention of bishops, clergymen and laymen with superior powers, with the assistance of which the church officials rule their dioceses or districts.
There is no problem of title. It is in appellee corporation. The issue is the right of use St. Nicholas Cathedral v Kedroff, 302 N. Y. 1, 20.
The deed to the Cathedral Corporation required the grantee to hold the property in accordance with the terms of the Act of 1925, set out at the opening of this opinion. As said by the Court of Appeals, 302 N.Y. at p.20:
“Plaintiff does not dispute this trust theory, but on the contrary relies upon it. Plaintiff has endeavored to prove that the beneficial use of the property today rightfully belongs to the Russian church in America (Religious Corporations Law, §105) which was forced to declare its administrative autonomy at the Detroit sobor of 1924 in order to preserve and adhere to those principles and practices fundamental to the Russian Orthodox faith, free from the influence of an atheistic and antireligious foreign civil government.”
See also Religious Corporations Law, §5


That claimed right of the corporation to use and occupancy for archbishop chosen by the American churches is opposed by appellants who are in possession. Benjamin Fedehenkoff bases his right on an appointment in 1934 by the Supreme Church Authority of the Russian Orthodox Church, to wit, the Patriarch locum tenens of Moscow and all Russia and its Holy Synod, as Archbishop of the Archdiocese of North America and the Aleutian Islands. The other defendant-appellant is a priest of the Russian Orthodox Church, also acknowledging the spiritual and administrative control of the Moscow hierarchy.


Determination of the right to use and occupy Saint Nicholas depends upon whether the appointment of Benjamin by the Patriarch or the election of the Archbishop for North America by the convention of the American churches validly selects the ruling hierarch for the American churches. The Court of Appeals of New York, reversing the lower court, determined that the prelate appointed by the Moscow ecclesiastical authorities was not entitled to the Cathedral and directed the entry of a judgment that appellee corporation be reinvested with the possession and administration of the temporalities of St. Nicholas Cathedral. St.Nicholas Cathedral v Kedroff, 302 N.Y. 1, 33, 96, N. E. 2d 56. This determination was made on the authority of Article 5-C of the Religious Corporations Law of New York, 302 N.Y. at p.24 et seq. against appellants’ contention that this New York statue, as construed, violated the Fourteenth Amendment to the Constitution of the United States.


Because of the constitutional questions thus generally involved, we noted probable jurisdiction, and, after argument and submission of the case last term, ordered reargument and requested counsel to include a discussion of whether the judgment might be sustained on state grounds. 343 U.S. 972. Both parties concluded that it could not, and the unequivocal remittitur of the New York

Court of Appeals, 302 N.Y. 689, specifically stating the constitutionality of the statue as the necessary ground for decision, compels this view and precludes any doubt as to the propriety of our determination of the constitutional issue on the merits. Gayson v Harris, 267 U.S. 352; Indiana ex rel Anderson v Brand, 303 U.S. 95. The case now has been reargue and submitted.
Article 5-C was added to the Religious Corporations Law of New York in 1945 and provided both for the incorporation and administration of Russian Orthodox churches. Clarifying amendments were added in 1948. The purpose of the article was to bring all New York churches, formerly subject to the administrative jurisdiction of the Most Sacred Governing Synod in Moscow of the Patriarch of Moscow, into an administratively autonomous metropolitan district. That district was North American in area, created pursuant to resolutions adopted at a sobor held at Detroit in 1924. (2) This declared autonomy was made effective by a further legislative requirement that all the churches formerly administratively subject to the Moscow synod and patriarchate
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2 50 McKinney’s N.Y. Laws § 105:

The Russian Church in America, as that term is used anywhere in this article, refers to that group of churches, cathedrals, chapels, congregations, societies, parishes, committees and other religious organizations of the Eastern Confession (Eastern Orthodox or Greek Catholic Church) which were known as (a) Russian American Mission of the Russian Orthodox Church from in or about seventeen hundred ninety-three to in or about eighteen hundred seventy ; (b) Diocese of Alaska and the Aleutian Islands of the Russian Orthodox Church from in or about eighteen hundred seventy to in or about nineteen hundred four; (c) Diocese of North America and the Aleutian Islands or Alaska of the Russian Orthodox Church from in or about nineteen hundred four to in or about nineteen hundred twenty four; (d) Russian Orthodox Greek Catholic Church of North America since in or about nineteen hundred twenty four; and were subject to the administrative jurisdiction of the Most Sacred Governing Synod in Moscow until in or about nineteen hundred seventeen, later the Patriarchate of Moscow, but now constitute an administratively autonomous metropolitan district created pursuant to resolutions adopted at the general convention (sobor) of said district held at Detroit, Michigan, on or about or between April second to fourth, nineteen hundred twenty four.


A Russian Orthodox church, as that term is used anywhere in this article, is a church, cathedral, chap[t]el, congregation, society, parish, committee and other religious organization founded and established for the purpose and with the intent of adhering to, and being subject to the administrative jurisdiction of said mission, diocese or autonomous metropolitan district hereinabove defined as the Russian Church in America should for the future be governed by the ecclesiastical body and hierarchy of American metropolitan district. (3) The foregoing analysis follows the interpretation of this article by the Court of Appeals of New York, an interpretation binding upon us. (4)
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3 Id. § 107:

1. Every Russian Orthodox church in this states, whether incorporated before or after the creation of said autonomous metropolitan district, and whether incorporated or reincorporated pursuant to this article or any other article of the religious corporation law, or any general or private law, shall recognize and be and remain subject to the jurisdiction and authority of the general convention (sobor), metropolitan archbishop or other primate or hierarch, the council of bishops, the metropolitan council and other governing bodies and authorities of the Russian Church in America, pursuant to the statues for the government thereof adopted at a general convention (sobor) held in the city of New York on or about or between October fifth to eight, nineteen hundred thirty-seven, and any amendments thereof and any other statues or rules heretofore or hereafter adopted by a general convention (sobor) of the Russian Church in America and shall in all other respects conform to maintain and follow the faith, doctrine, ritual, communion, discipline, canon law, traditions and usages of the Eastern Confession (Eastern Orthodox or Greek Catholic Church).
. . . . . . .
3. The trustees of every Russian Orthodox church shall have the custody and control of all temporalities and property, real and personal, belonging to such church and of the revenues therefrom and shall administer the same in accordance with the by-laws of such church, the normal statutes for parishes of the Russian Church in America approved at a general convention (sobor) held at Cleveland, Ohio, on or about or between November twentieth or twenty-third, nineteen hundred thirty-four, and any amendments thereto and all other rules, statutes, regulations and usages of the Russian Church in America.


4 Herbert v Louisiana, 272 U. S. 312, 317; Guaranty Trust Co v York, 326 U. S. 99, 112
The court expressed its conclusion in reversing the judgment of the Appellate Division of the Supreme Court, St. Nicholas Cathedral v Kedroff. 2276 App. Div 309, which had affirmed the Trial Term 192 Misc 327 The Court of Appeals held:
The only construction which gives meaning to all the language in sections 105 and 107 is that the statute was intended to apply to those Russian Orthodox churches founded and established before 1924 for the purpose of adhering subject to the North American Mission of North American Diocese, and to those Russian Orthodox churches founded and established after 1924 for the purpose of adhering subject to the autonomous metropolitan district. The majority in the Appellate Division further intimated that to read the statute literally would result in an interference in ecclesiastical concerns not within the competency of the Legislature.


Article 5-C is challenged as invalid under the constitutional prohibition against interference with exercise of religion. 5 The appelants’ contention, of course, is based on the theory that the principles of the First Amendment are made applicable to the states by the Fourteenth. 6 See Strokes, Church and State in the United States (1950), vol. 1, c. VIII.


The Russian Orthodox Church is an autocephalous member of the Eastern Orthodox Greek Catholic Church. It sprang from the Church of Constantinople in the Tenth Century. The schism of 1054 A.D. split the Universal Church into those of the East and the West. Gradually self-government was assumed by the Russian Church until in the Sixteenth Century its autonomy was recognized and Patriarch of Moscow appeared. Fortescue, orthodox Eastern Church, c. V. For the next one hundred years the development of the church kept pace with the grows of power of the Czars but it increasingly became a part of the civil government – a state church. Throughout that period it also remained a hierarchal church with a Patriarch at its head, governed by the conventions or sobors called by him. However, from the time of Peter the Great until 1917 no sobor was held. No patriarch ruled or was chosen. During that time the church was governed by Holy Synod, a group of ecclesiastics with a Chief Procurator representative of the government as a member.


Late in the Eighteenth Century the Russian church entered the missionary field in the Aleutian Islands and Alaska. From there churches spread slowly down Pacific Coast and later with the Slavic immigration to our eastern cities, particularly to Detroit, Cleveland, Chicago, Pittsburgh and New York. The character of the administrative unit changed with the years as is indicated by the changes in its name. See note 2. In 1904 when a diocese of North America was created its first archbishop, Tikhon, shortly thereafter established himself in his seat at Saint Nicholas Cathedral. His appointment came from the Holy Synod of Russia as did those of his successors in order Platon and Evdokim. Under those appointments the successive archbishops occupied the Cathedral And residence of Saint Nicholas under the
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The latter suggestion is the only one which requires discussion, for as already indicated, the intend of the Legislature (as distinguished from its competency) is unmistakable. 302 N.Y., at 29
5 First amendment to the Constitution:
“Congress should make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . . . “
6 Hamilton v Regents, 293 U.S. 245, 262; Cantwell v Connecticut, 310 U.S. 296, 303; Everson v Board of Education, 333 U.S. 203, 210-211; Zorach v Clausen, 343 U.S. 306,310.



administrative authority of the Holy Synod.


In 1917 Archbishop Evdokim returned to Russia permanently. Early that year an All Russian Sobor was held, the first since Peter the Great. It occurred during the interlude of political freedom following the fall of the Czar. A patriarch was elected and installed – Tikhon who had been the first American Archbishop. Uncertainties as the succession to and administration of the American archbishopric made their appearance following this sobor and were largely induced by the almost contemporaneous political disturbances which culminated swiftly in the Bolshevik Revolution of 1917. The Russian Orthodox Church was drawn into this maelstrom. After a few years the Patriarch was imprisoned. There were suggestions of his counter-revolutionary activity. Church power was transferred partly through a sobor considered by many as non-canonical to a Supreme Church Council. The declared reforms were said to have resulted in a “Living Church” or sometimes in a “Renovated Church.” Circumstances and pressures changed. Patriarch Tikhon was released from prison and died in 1925. He named three bishops as locum tenens for the patriarchal throne. It was one of these, Sergins, who in 1933 appointed the appellant Benjamin as Archbishop. The Church was registered as a religious organization under Soviet law in 1927. Thereafter the Russian Church and the Russian State approached if not a reconciliation at least an adjustment which eventuated by 1943 in the election of Sergius, on of the bishops named as locum tenens by Tikhon, to the Patriarchate. The Living or Renovated Church, whether deemed a reformed, a schismatic or a new church, apparently withered away. After Sergius’ death a new patriarch of the Russian Orthodox Church, Alexy, was chosen Patriarch in 1945 at Moscow at a sobor recognized by all parties to this litigation as a true sobor held in accordance with the church canons.7
The Russian upheaval caused repercussions in the North American Diocese. That diocese at the time of the Soviet Revolution recognized the spiritual and administrative control of Moscow. White Russians, both lay and clerical, found asylum in America from revolutionary conflicts, strengthening the feeling of abhorrence of the secular attitude of the new Russian Government. The church members already here, immigrants and native-born, while habituated to look to Moscow for religious direction, were accustomed to our theory
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7 Fortescue, supra (1916); Brian-Chaninov, The Russian Church (1931), c.VIII; Zemnov, The Russians and Their Church (1945), c. VII; Danzas, The Russian Church (1936); Anderson, People, Church and State in Modern Russia (1944), pp.121-140; Bolshakov, Foreign Mission of the Russian Orthodox Church (1943), c IV.

of separation between church and state. The Russian turmoil, the restraints on religious activities and the evolution of a new ecclesiastical hierarchy in the form of the “Living Church,” deemed noncanonical or schismatic by most churchmen, made very difficult Russian administration of the American diocese. Furthermore, Patriarch Tikhon, on November 20, 1920, issued Decision №362 relating to church administration for troublesome times. This granted a large measure of autonomy, when the Russian ruling authority was unable to function, subject to “confirmation reestablished.” Naturally the growing number of American-born members of the Russian Church did not cling to a hierarchy identified with their country of remote origin with the same national feeling that moved their immigrant ancestors. These facts and forces generated in America a separatism movement.


That movement brought about the arrangements at the Detroit Sobor of 1924 for a temporary American administration of the church on account of the disturbances in Russia.8 This was followed by the declarations of autonomy of the successive sobors since that date, a spate of litigation concerning control of the various churches and occupancy of ecclesiastical positions,9 the New York Legislation (known as Article 5-C, notes 2 and 3, supra), and this controversy.


Delegates from North American Diocese intended to be represented at an admittedly canonical Sobor of the Russian Orthodox Church held in 1945 at Moscow.
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8 The attitude of the Russian Church in America will be made sufficiently plain by these extracts from their records of action taken at the Detroit Sobor, 1924:
Point 1 Temporarily, until the convocation of the All Russian Sobor further indicated in Point 5, to declare the Russian Orthodox Diocese in America a self-governed Church so that it be governed by its own elected Archbishop by means of a Sobor of Bishops, a Council composed of those elected from clergy and laity, and periodic Sobors of the entire American Church.
Point 5 To leave the final regulation of questions arising from relationship of the Russian and the American Churches to a future Sobor of Russian Orthodox Church which will be legally convoked, legally elected, will sit with the participation of representatives of the American Church under conditions of political freedom, guaranteeing the fullness and authority of its decisions for the entire Church, and will be recognized by the entire Oecumenical Orthodox Church as true Sobor of the Russian Orthodox Church.
9 Nemolovsky v Rykloff, 187 App Div 290; Kedrovsky v Archbishop and Consistory, 195 App Div 127; Kedrovsky v Rojdesvensky, 214 App Div 483; id 242 N.Y. 547; Kedrovsky v Archbishop and Consistory, 218 App Div 121; id 218 App Div 124; id 220 App Div 450; id 249 N.Y. 75; id 249 N.Y. 516; Nikulnikoff v Archbishop and Consistory, 142 Misc. 894; Waipa v Kushwara, 259 App Div 843; id 283 N.Y. 780.


They did not arrived in time on account of delays, responsibility for which has not been fixed. The following stipulation appears as to their later actions while at Moscow:
“It is stipulated that Bishop Alexi and Father Dzvonchik, representing the local group of American Churches under Bishop Theophilus, appeared before the Patriarch and the members of his Synod in Moscow, presented a written report on the condition of the American Church with a request for autonomy and a few days later received from Patriarch the Ukase . . . ”
There came to the Russian Church in America this Ukase of the Moscow Patriarchy of February 14 or 16, 1945, covering Moscow’s requirements for reunion of the American Orthodox Church with the Russian. It required for reunion that the Russian Church in America hold promptly an “all American Orthodox Church Sobor”; that it express the decision of the diocese to reunite with the Russian Mother Church, declare the agreement of American Orthodox Church to abstain “from political activities against the U.S.R.R.” and so direct parishes, and elect a Metropolitan subject to confirmation by the Moscow Patriarchy. The decree said, “In view of the distance of the American Metropolitan District from the Russian Mother Church . . . the Metropolitan-Exarch . . . may be given some extended powers by the Moscow Patriarchy . . . ”


The American congregations speaking through their Cleveland Sobor of 1946 refused the proffered arrangement and resolved in part:


“That any administrative recognition of the Synod of the Russian Orthodox Church Abroad is hereby terminated, retaining, however, our spiritual and brotherly relations with all parts of the Russian Orthodox Church abroad . . .”


This ended the efforts to compose the differences between the Mother Church and its American offspring, and this litigation and the enactment of Article 5-C of the Religious Corporation Law of New York followed. We understand the above factual summary corresponds substantially with the factual basis for determination formulated by the Court of Appeals of New York. From those circumstances it seems clear that the Russian Orthodox Church was, until the Russian Revolution, a hierarchical church with unquestioned paramount jurisdiction in the governing body in Russia over the American Metropolitanate. Nothing indicates that either the Sacred Synod or the succeeding Patriarchs relinquished that authority or recognized the autonomy of the American church. The Court of Appeals decision proceeds, we understand, upon the same assumption. 302 N.Y. at pp. 5, 23, 24. That court did consider “whether there exist in Moscow  obtained admission into the Presbyterian Church of the Confederate States. In June 1867 the Presbyterian General Assembly for the United States declared the Presbytery and Synod recognized by the proslavery party were “in no sense a true and lawful Synod and Presbytery in connection with and under the care and authority of the General Assembly of the Presbyterian Church in the United States of America.” They were

“ ‘permanently excluded from connection with or representation in the Assembly.’ By the same resolution the Synod and Presbytery adhered to by those whom [the proslavery party] opposed were declared to be the true and lawful Presbytery of Louisville, and Synod of Kentucky.” Id., at 692.

Litigation started in 1866 with a suit in the state court by certain of the antislavery group to have declared their right to act as duly elected additional elders “in the management of church property for purpose of religious worship.” Id., at 685. As the Court of Appeals of Kentucky thought that certain acts of the Louisville Presbytery and the General Assembly of the United States, in pronouncing the additional elders, duly elected, were void as beyond their functions, id., at 693,18 it refused the plea of the antislavery group and left the proslavery elders and trustees in control of the Walnut Street Church.

Thereupon a new suit, Watson v Jones, was begun by alleged members of the church to secure the use of the Walnut Street Church for the antislavery group. This suit was to decide not the validity of an election of elders fought out in Watson v Avery, supra, but which one of two bodies should be recognized as entitled to the use of the Walnut Street Presbyterian church. It was determined that plaintiffs had a beneficial interest in the church property and therefore a standing to sue for its proper use, if they were members. Id., at 697,714. A schism was recognized. Id., at 717. It was held:

“The trustees obviously hold possession for the use of the persons who by the constitution, usages, and laws of the Presbyterian body, are entitled to that use.” Id, at 720.

They were required to recognize “the true uses of the trust.” Id., at 722. Then turning to the consideration of an hierarchical church, as defined

in n.15 , supra, and, as it found the Presbyterian

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18 Watson v Avery, 2 Bush (Ky) 332, 347, et seq

“But we hold that assembly, like other courts, is limited in its authority by the law under which it acts; and when rights of property, which are secured to congregations and individuals by the organic law of the church, are violated by unconstitutional acts of the higher [church] courts, the parties thus aggrieved are entitled to relief in the civil courts, as n ordinary cases of injury resulting from the violation of a contact, or the fundamental law of a voluntary association.” Id., at 349


church to be, this Court said:

“ In this class of cases we think the rule of action when should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by preponderating weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” Id., at 727.

As the General Assembly f the Church had recognized the antislavery group “as the regular and lawful Walnut Street Church and offices, ” id., at 694, newly elected, and the trial court had found complaints members of that group, and had entered a decree adjudging that this group’s duly chosen and elected pastor ruling elders and trustees “respectively entitled to exercise whatever authority in the said church, or over its members or property, rightfully belonged o pastor, elders, and trustees, respectively, in churches in connection with “The Presbyterian Church in United State of America,” Old School, and according to the regulations and usages of that church, ” id., at 698, this Court affirmed the decree.

In affirming, the Court recognized the contrariety of views between jurists as to civil jurisdiction over church adjudications having an effect upon property or its uses, when the civil courts determine the church judicatory has violated the church’s organic law.19 Its ruling is summed up in these words:

“In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with

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19Compare Watson v Avery, n.27 supra, at 349 with Watson v Jones, at 732 et seq

Ours is government which by the “law of its being” allows no statute, state or national, that prohibits the free exercise of religion. There are occasions when civil courts must draw lines between the responsibilities of church and state for the disposition or use of property.25 Even in those cases when the property right follows as incident from decisions of the church custom or law on ecclesiastical issues, the church rule controls.26 This under the Constitution necessarily follows in order that there may be free exercise of religion.

The decree of the Court of Appeals of New York must be reversed, and the case remanded to that court for such further action as it deems proper and not in contravention of this opinion.


It is so ordered.




SUPREME COURT OF THE UNITED STATE OF AMERICA

(November 24, 1952)

Mr. Justice Frankfurter, concurring.



Let me put to one side the question whether in our day a legislature could, consistently with due process, displace the judicial process and decide a particular controversy affecting property so as to decree that A not B owns or is entitled to its possession. Obviously a legislature would not have that power merely because the property belongs to a church.

In any event this proceeding rests on a claim which cannot be determined without intervention by the State in a religious conflict. St. Nicholas Cathedral is not just a piece of real estate. It is no more that than is St. Patrick’s Cathedral or the Cathedral of St. John the Devine. A cathedral is the seat and center of ecclesiastical authority. St. Nicholas Cathedral is an archiepiscopal see of one of the great religions organizations. What is at stake here is the power to exercise religious authority. That is the essence of this controversy. It is that even though authority over the Cathedral as the outward symbol of a religious faith.

The judiciary has heeded, naturally enough, the menace to a society like ours of attempting to settle such religious struggles by state action. And so, when courts are called upon to adjudicate disputes which, though generated by conflicts of faith, may fairly be isolated as controversies over property and therefore within judicial competence, the authority of courts is in strict subordination to the ecclesiastical law of a particular church prior to a schism. Watson v Jones, 13 Wall 679. This very limited right of resort to courts for determination of claims, civil in their nature, between rival parties among the communicants of a religious faith is merely one aspect of the duty of courts to enforce the rights of members in an association, temporal or religious, according to the laws of that association. See Gonzalez v Archbishop, 280 1, 16-17.

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25Ponce v Roman Catholic Church 210 U.S. 296, 322

26 Watson v Jones; Barkley v Hayes 208 F. 319, 327, affirmed on appeal, Duvall v Synod 222 F 669; Shepherd v Barkley 247 U.S. 1



Legislatures have no such obligation to adjudicate and no such power. Assuredly they have none to settle conflicts of religious authority and none to define religious obedience. These aspects of spiritual differences constitute the heart of this controversy. The New York legislature decreed that one party to the dispute and not the other should control the common center of devotion. In doing so the legislature effectively authorized one party to give religious direction not only to its adherents but also to its opponents. See St. Nicholas Cathedral v Kedroff 302 N.Y. 1, 24-29.

The arguments by which New York seeks to justify this inroad into realm of faith are echoes of past attempts at secular intervention in religious conflicts. It is said that an impressive majority both of the laity and of the priesthood of the old local church now adhere to the party whose candidate New York enthroned, as it were, as Archbishop. Be that as it may, it is not a function of civil government under our constitutional system to assure rule to any religious body by counting of heads. Our Constitution does assure that anyone is free to worship according to his conscience. A legislature is not free to vest in a schismatic head the means at acting under the authority of his old church, by affording him the religious power which the use and occupancy of St. Nicholas Cathedral make possible.

Again, it is argued that New York may protect itself from dangers attributed to submission by the mother church in Moscow to political authority. To reject this claim one does not have to indulge in the tendency of lawyers to carry arguments to the extreme of empty formal logic. Scattered throughout the country there are religious bodies with ties to various countries of a world in tension – tension due in part to shifting political affiliation and orientation. The consideration which permeates the court’s opinion below would give each State the right to assess the circumstances in the foreign political entanglement of its religious bodies that make

 

for danger to the State, and the power, resting on plausible legislative finding, to divest such bodies of spiritual authority and of the temporal property which symbolizes it.

Memory is short but it cannot be forgotten that in the State of New York there was strong feeling against the Tsarist regime at a time when the Russian Church was governed by a Procurator of the Tsar. And when Mussolini exacted the Lateran Agreement, argument was not wanting by those friendly to its claims that the Church of Rome was subjecting itself to political authority.1 The fear, perhaps not wholly groundless, that the loyalty of its citizens might be diluted by their adherence to a church entangled in antagonistic political interests, reappears in history as the ground for interference by civil government with religious attachments.2 Such fear readily leads to persecution of religious beliefs deemed dangerous to ruling political authority. It was on this basis, after all, that Bismarck sought to detach German Catholics from Rome by a series of laws not too different in purport from that before us today.3 The long, unedifying history of the contest between the secular state and

the church is replete with instances of attempts by

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1The Encyclopedia Britannica recounts that under the agreement between the Papal See and Mussolini, “The supremacy of the state was recognized by compelling bishops and archbishops to swear loyalty to the government.” Encyclopedia Britannica: “Anticlericalism,” 62, 62A (1948 ed).

2Such apprehension, at least in part, seems to have underlain two important religious controversies in a nation as devoted to freedom as Great Britain and as recently as a century ago Both the dispute giving rise to the Free Church of Scotland. Appeals and the brief but vigorous anti-Catholic outburst of 1850 are not unfairly attributable to a claim by the State of comprehensive loyalty, undeflected by the competing claims of religious faith. See Laski, “The problem of Sovereignty,” 27-28, 121-210. See also Bushanan, The Ten Years conflict (Edinburgh 1849); Free Church of Scotland v Overtoun [1904] A.C. 515; Free Church of Scotland Appeals (Orr. Rd., Edinburgh, 1904).

3Reichs-Gesetzblatt, 1871, p. 442; Reichs-Gesetzblatt, 1872, p. 253; Reichs-Gesetzblatt, 1874, p. 43; Reichs-Gesetzblatt, 1876, p. 28; 5 Gesetz-Sammlung für die Königlich Preussischen Staaten 154, 221, 223, 225, 228, 337, 342; 6 id., at 30, 38, 40, 75, 170; 7 id., at291. These laws have been thus summarized: “The Falk Laws are an attempt to insist on the universal paramountcy of German influences. The expulsion of the Jesuits removed an order which he [Bismarck] believed to be concerned with the promotion of Polish interests. The refusal of bishoprics to any save a German who has followed a course of study approved by the government has a clear purport of purging the Catholic episcopate of men not likely to be in sympathy with German ideals… ” The twenty-fourth article went even further and gave the State the right of interference with ecclesiastical functions




civil government to exert pressure upon religious authority. Religious leaders have often made gestures of accommodation to such pressures. History also indicates that the vitality of great world religions survived such efforts. In any event, 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.

Finally, we are told that 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. Both parties to the present controversy agree that present Patriarch is the legitimately chosen holder of his office, and the account of the proceedings and pronouncements of the American schismatic group so indicate. Even were there doubt about this it is hard to see by what warrant the New York Legislature is free to substitute its own judgment as to the validity of Patriarch Alexy’s claim and to disregard acknowledgment of the present Patriarch by his coequals in the Eastern Confession, the Patriarchs of Constantinople, Alexandria, Antioch and Jerusalem, and by religions leaders throughout the world, including the present Archbishop of York.4

These considerations undermine the validity of the New York legislation in that it enters the domain of religious control barred to the States by the Fourteenth Amendment.

Mr. Justice Black agrees with this opinion on the basis of his view that the Fourteenth Amendment makes the First Amendment applicable to the States.

Mr. Justice Douglas, while concurring in the opinion of the Court, also joins this opinion.

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where it deemed them improperly performed The law of the twentieth of May, 1874, virtually handed over the control of vacant bishoprics to the State ... Catholic Vhurches on Prussian soil were handed over to the old Catholics [those refusing to adhere to the newly-promulgated dogma of papal infallibility] in such parishes as those in which the majority consisted of their sympathizers, for certain hours of the day … Laski, op. supra, note 2, at 256-258 Bismarck’s Culturkampf of which these laws were a part, is fully discussed in Goyau, Bismarck et 1 Eglise. A full text of the laws may be found in the appendix to that work.

4See Garbett. In an Age of Revolution, 207-213; Nicmöller, Why I Went to Moscow, The Christian Century, March 19, 1952, p. 338

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