text:
In a suit brought in a New York state court by a corporation, holder of the legal title, to determine which prelate was entitled to the use and occupancy of a Cathedral of the Russian Orthodox Church in New York City, the Court of Appeals of New York held for plaintiff, on the ground that Article 5-C of the Religious Corporations Law of New York had the purpose and effect of transferring the administrative control of the Russian Orthodox churches in North America from the Supreme Church Authority in Moscow to the authorities selected by a convention of the North American churches. Held: As thus construed and applied, the New York statute interferes with the free exercise of religion, contrary to the First Amendment, made applicable to the states by the Fourteenth Amendment. Pp. 95-121.
(a) Legislation which determines, in an hierarchical church, ecclesiastical administration or the appointment of the clergy, or transfers control of churches from one group to another, inter feres with the free exercise of religion contrary to the Constitution.
(b) That the purpose of such legislation is to protect American churches from infiltration of atheistic or subversive influences does not require a different result, though legislative power to punish subversive action cannot be doubted and neither his robe nor his pulpit would be a defense to a cleric attempting subversive actions. Pp. 108-110, 117-121.
(c) American Communications Association v. Douds, 339 U.S. 382 ; and Late Corporation of Latter-Day Saints v. United States, 136 U.S. 1 , distinguished. Pp. 117-121.
(e) Even in those cases when property rights follow as incidents from decisions of the church custom or law on ecclesiastical issues, the church rule controls and must be accepted by the civil courts. Watson v. Jones, 13 Wall. 679. Pp. 115-116, 120-121.
302 N. Y. 1, 33, 96 N. E. 2d 56, 74, reversed and remanded.
In an action brought in a state court by appellee, a New York corporation, to determine the right to the use and occupancy of a church in New York City, the trial court gave judgment in favor of the defendants, appellants here. 192 Misc. 327, 77 N. Y. S. 2d 333. The Appellate Division of the State Supreme Court affirmed. 276 App. Div. 309, 94 N. Y. S. 2d 453. The Court of Appeals reversed. 302 N. Y. 1, 33, 96 N. E. 2d 56, 74. On appeal to this Court, reversed and remanded, p. 121.
Philip Adler argued the cause and filed the briefs for appellants.
Ralph Montgomery Arkush argued the cause and filed the brief for appellee.
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 oecumenical councils and holy fathers of that church."
That claimed right of the corporation to use and occupancy for the archbishop chosen by the American churches is opposed by appellants who are in possession. Benjamin Fedchenkoff 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 [344 U.S. 94, 97] 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, 74. This determination was made on the authority of Article 5-C of the Religious Corporations Law of New York, 302 N. Y., at 24 et seq., 96 N. E. 2d, at 68 et seq., against appellants' contention that this New York statute, 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, 98 N. E. 2d 485, specifically stating the constitutionality of the statute 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. Grayson v. Harris, 267 U.S. 352 ; Indiana ex rel. Anderson v. Brand, 303 U.S. 95 . The case now has been reargued and submitted.
Article 5-C is challenged as invalid under the constitutional prohibition against interference with the exercise of religion. 5 The appellants' 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 Stokes, 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 a Patriarch of Moscow appeared. Fortescue, Orthodox Eastern Church, c. V. For the next one hundred [344 U.S. 94, 101] years the development of the church kept pace with the growth of power of the Czars but it increasingly became a part of the civil government - a state church. Throughout that period it also remained an hierarchical 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 a 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 the 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 administrative authority of the Holy Synod.
The Russian upheaval caused repercussions in the North American Diocese. That Diocese at the time of the Soviet Revolution recognized the spiritual and administrative [344 U.S. 94, 103] control of Moscow. White Russians, both lay and clerical, found asylum in America from the 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 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 No. 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 later to the Central Church Authority when it is re-established." 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 separatist 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 [344 U.S. 94, 104] 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.
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 dioceses to reunite with the Russian Mother Church, declare the agreement of the American Orthodox Church to abstain "from political activities against the U.S. S. R." and so direct its 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 . . . ."
"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 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, an 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 [344 U.S. 94, 106] 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 5, 23, 24, 96 N. E. 2d, at 57, 68, 69. That court did consider "whether there exists in Moscow at the present time a true central organization of the Russian Orthodox Church capable of functioning as the head of a free international religious body." It concluded that this aspect of the controversy had not been sufficiently developed to justify a judgment upon that ground. 302 N. Y., at 22-24, 96 N. E. 2d, at 67-69.
The Religious Corporations Law. - The New York Court of Appeals depended for its judgment, refusing recognition to Archbishop Benjamin, the appointee of the Moscow Hierarchy of the Russian Orthodox Church, upon Article 5-C of the Religious Corporations Law, quoted and analyzed at notes 2 and 3, supra. 10 Certainly a legislature [344 U.S. 94, 107] is free to act upon such information as it may have as to the necessity for legislation. But an enactment by a legislature cannot validate action which the Constitution prohibits, and we think that the statute here in question passes the constitutional limits. We conclude that Article 5-C undertook by its terms to transfer the control of the New York churches of the Russian Orthodox religion from the central governing hierarchy of the Russian Orthodox Church, the Patriarch of Moscow and the Holy Synod, to the governing authorities of the Russian Church in America, a church organization limited to the diocese of North America and the Aleutian Islands. This transfer takes place by virtue of the statute. Such a law violates the Fourteenth Amendment. It prohibits in this country the free exercise of religion. Legislation that regulates church administration, the operation of the churches, the appointment of clergy, by requiring conformity to church statutes "adopted at a general convention [344 U.S. 94, 108] (sobor) held in the City of New York on or about or between October fifth to eighth, nineteen hundred thirty-seven, and any amendments thereto," note 3, supra, prohibits the free exercise of religion. Although this statute requires the New York churches to "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)," their conformity is by legislative fiat and subject to legislative will. Should the state assert power to change the statute requiring conformity to ancient faith and doctrine to one establishing a different doctrine, the invalidity would be unmistakable.
This legislation, Art. 5-C, in the view of the Court of Appeals, gave the use of the churches to the Russian Church in America on the theory that this church would most faithfully carry out the purposes of the religious trust. 14 Thus dangers of political use of church pulpits would be minimized. Legislative power to punish subversive action cannot be doubted. If such action should be actually attempted by a cleric, neither his robe nor his pulpit would be a defense. But in this case no problem [344 U.S. 94, 110] of punishment for the violation of law arises. There is no charge of subversive or hostile action by any ecclesiastic. Here there is a transfer by statute of control over churches. This violates our rule of separation between church and state. That conclusion results from the purpose, meaning and effect of the New York legislation stated above, considered in the light of the history and decisions considered below.
Hierarchical churches may be defined as those organized as a body with other churches having similar faith and doctrine with a common ruling convocation or ecclesiastical head. In Watson v. Jones, 13 Wall. 679, they are spoken of in like terms. 15 That opinion has been given consideration in subsequent church litigation - state and national. 16 The opinion itself, however, did not turn on either the establishment or the prohibition of the free exercise of religion. It was a church controversy in the Third or Walnut Street Presbyterian Church of Louisville, Kentucky, arising out of the slavery conflict and was filled with the acrimony of that period. It was decided here at the 1871 Term. "The government of the [Presbyterian] church is exercised by and through an ascending series of `judicatories,' known as Church Sessions, Presbyteries, [344 U.S. 94, 111] Synods, and a General Assembly." Id., at 681. The opinion of this Court assumed without question that the Louisville church, its property and its officers were originally and up to the beginning of the disagreements subjected to the operation of the laws of the General Assembly of the Presbyterian Church. Id., at 683. The actual possession of the church property was in trustees; its operation or use controlled by the Session composed of elders. 17 Both were groups elected at intervals by the members.
In May of 1865 the General Assembly, the highest judicatory of the church, made a declaration of loyalty to the Federal Government denouncing slavery, and directed that new members with contrary views should not be received. The Louisville Presbytery, the immediate superior of the Walnut Street Church, promptly issued a Declaration and Testimony, refusing obedience and calling for resistance to the alleged usurpation of authority. The Louisville Presbytery divided as did the Walnut Street Church and the proslavery group obtained admission into the Presbyterian Church of the Confederate States. In June 1867 the Presbyterian General Assembly [344 U.S. 94, 112] 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 the church property for purposes 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.
"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.
"In this class of cases we think the rule of action which 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 a 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 of the Church had recognized the antislavery group "as the regular and lawful Walnut Street Church and officers," id., at 694, newly elected, and the trial court had found complainants members of that group, and had entered a decree adjudging that this group's duly chosen and elected pastor, ruling elders [344 U.S. 94, 114] and trustees "respectively entitled to exercise whatever authority in the said church, or over its members or property, rightfully belonged to pastor, elders, and trustees, respectively, in churches in connection with `The Presbyterian Church in the United States of America,' Old School, and according to the regulations and usages of that church," id., at 698, this Court affirmed the decree.
"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, and 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 an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular [344 U.S. 94, 115] courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for." Id., at 728-729.
This is applicable to "questions of discipline, or of faith, or ecclesiastical rule, custom, or law," id., at 727. 20 This controversy concerning the right to use St. Nicholas Cathedral is strictly a matter of ecclesiastical government, the power of the Supreme Church Authority of the Russian Orthodox Church to appoint the ruling hierarch of the archdiocese of North America. No one disputes that such power did lie in that Authority prior to the Russian Revolution.
"The Legislature realized that the North American church, in order to be free of Soviet interference in its affairs, had declared its temporary administrative autonomy in 1924, pursuant to the ukase of 1920, while retaining full spiritual communion with the patriarchate, and that there was a real danger that those properties and temporalities long enjoyed and used by the Russian Orthodox Church worshippers in this State would be taken from them by the representatives of the patriarchate." 302 N. Y., at 33, 96 N. E. 2d, at 74.
It was thought that American Communications Assn. v. Douds, 339 U.S. 382 , supported the thesis that where there is some specific evil, found as a fact, "some infringement upon traditional liberties was justifiable" to effect a cure. 302 N. Y., at 31, 96 N. E. 2d, at 73. On that reasoning it was thought permissible, in view "of the changed situation of the patriarchate in Russia," to replace it with the Russian Church in America as the ruling authority over the administration of the church. The legal basis for this legislative substitution was found in the theory that the Russian Church in America "was the trustee which `may be relied upon to carry out more [344 U.S. 94, 118] effectively and faithfully the purposes of this religious trust (Carrier v. Carrier, 226 N. Y. 114).'" 302 N. Y., at 30, 96 N. E. 2d, at 72. Mindful of the authority of the Court of Appeals in its interpretation of the powers of its own legislature and with respect for its standing and ability, we do not agree with its statement as to legislative power over religious organizations.
In our view the Douds case may not be interpreted to validate New York's Article 5-C. That case involved the validity of 9 (h) of the National Labor Relations Act as amended, 61 Stat. 136, 146, 29 U.S.C. 159 (h). That section forbade the N. L. R. B. from acting at the suggestion of a labor organization unless affidavits of its officers were filed denying affiliation with subversive organizations or belief in the overthrow of this Government by force or other unconstitutional means. We upheld the enactment as a proper exercise of the power to protect commerce from the evil of disruption from strikes so politically inspired. In so doing we said, "legitimate attempts to protect the public, not from the remote possible effects of noxious ideologies, but from present excesses of direct, active conduct, are not presumptively bad because they interfere with and, in some of its manifestations, restrain the exercise of First Amendment rights." 339 U.S., at 399 . And added, "But insofar as the problem is one of drawing inferences concerning the need for regulation of particular forms of conduct from conflicting evidence, this Court is in no position to substitute its judgment as to the necessity or desirability of the statute for that of Congress." Id., at 400. It is an exaggeration to say that those sound statements point to a legislative power to take away from a church's governing body and its duly ordained representative the possession and use of a building held in trust for the purposes for which it is being employed because of an apprehension, even though reasonable, [344 U.S. 94, 119] that it may be employed for improper purposes. In Douds we saw nothing that was aimed at the free expression of views. Unions could have officers with such affiliations and political purposes as they might choose but the Government was not compelled to allow those officers an opportunity to disrupt commerce for their own political ends. We looked upon the affidavit requirement as an assurance that disruptive forces would not utilize a government agency to accomplish their purposes. Id., at 403.
In upholding the validity of Article 5-C, the New York Court of Appeals apparently assumes Article 5-C does nothing more than permit the trustees of the Cathedral to use it for services consistent with the desires of the members of the Russian Church in America. Its reach goes far beyond that point. 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. Such prohibition differs from the restriction of a right to deal with Government allowed in Douds, in that the Union in the Douds case had no such constitutionally protected right. New York's Article 5-C directly prohibits the free exercise of an ecclesiastical right, the Church's choice of its hierarchy.
We do not think that New York's legislative application of a cy-pres doctrine to this trust avoids the constitutional rule against prohibition of the free exercise of religion. Late Corporation of Latter-Day Saints v. United States, 136 U.S. 1 , relied upon by the appellee, does not support its argument. There the Church of Jesus Christ of Latter-Day Saints had been incorporated as a religious corporation by the State of Deseret, with subsequent confirmation by the Territory of Utah. Its property was held [344 U.S. 94, 120] for religious and charitable purposes. That charter was revoked by Congress and some of the property of the church was escheated to the United States for the use of the common schools of Utah. This Court upheld the revocation of the charter, relying on the reserved power of the Congress over the acts of territories, 136 U.S., at 45 -46. The seizure of the property was bottomed on the general rule that where a charitable corporation is dissolved for unlawful practices, id., at 49-50, the sovereign takes and distributes the property according to the cy-pres doctrine to objects of charity and usefulness, e. g., schools. Id., at 47, 50-51. A failure of the charitable purpose could have the same effect. Id., at 59. None of these elements exist to support the validity of the New York statute putting the Russian Orthodox churches of New York under the administration of the Russian Church in America. See notes 2 and 3, supra.
The record before us shows no schism over faith or doctrine between the Russian Church in America and the Russian Orthodox Church. It 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.
Ours is a 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 an incident from decisions of the church custom or law on ecclesiastical [344 U.S. 94, 121] issues, the church rule controls. 26 This under our 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.
[ Footnote î ] ERRATA: "1871" should be "1872".
[ Footnote 1 ] A sobor is a 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 the appellee corporation. The issue is the right of use. St. Nicholas Cathedral v. Kedroff, 302 N. Y. 1, 20, 96 N. E. 2d 56, 66-67.
"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, 50 McKinney's N. Y. Laws 5.
"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; and (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 a 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 or 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."
"1. Every Russian Orthodox church in this state, 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 corporations 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 statutes 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 eighth, nineteen hundred thirty-seven, and any amendments thereto and any other statutes 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) thereof held at Cleveland, Ohio, on or about or between November twentieth to twenty-third, nineteen hundred thirty-four, and any amendments thereto and all other rules, statutes, regulations and usages of the Russian Church in America."
[ Footnote 4 ] Hebert v. Louisiana, 272 U.S. 312, 317 ; Winters v. New York, 333 U.S. 507, 514 .
"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 and being subject to the North American Mission or North American Diocese, and to those Russian Orthodox churches founded and established after 1924 for the purpose of adhering and being 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. The latter suggestion is the only one which requires discussion, for, as already indicated, the intent of the Legislature (as distinguished from its competency) is unmistakable." 302 N. Y., at 29, 96 N. E. 2d, at 71.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . . ."
[ Footnote 6 ] Hamilton v. Regents, 293 U.S. 245, 262 ; Cantwell v. Connecticut, 310 U.S. 296, 303 ; Everson v. Board of Education, 330 U.S. 1, 14 -15; Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 210 -211; Zorach v. Clauson, 343 U.S. 306, 310 .
[ Footnote 7 ] Fortescue, supra (1916); Brian-Chaninov, The Russian Church (1931), c. VIII; Zernov, The Russians and Their Church (1945); French, The Eastern Orthodox Church (1951), c. VII; Danzas, The Russian Church (1936); Anderson, People, Church and State in Modern Russia (1944), pp. 121-140; Bolshakoff, The Foreign Missions of the Russian Orthodox Church (1943), c. IV.
"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 [344 U.S. 94, 104] composed of those elected from the clergy and laity, and periodic Sobors of the entire American Church.
"Point 5. To leave the final regulation of questions arising from the relationship of the Russian and the American Churches to a future Sobor of the 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 a true Sobor of the Russian Orthodox Church."
[ Footnote 9 ] Nemolovsky v. Rykhloff, 187 App. Div. 290, 175 N. Y. S. 617 Kedrovsky v. Archbishop and Consistory, 195 App. Div. 127, 186 N. Y. S. 346; Kedrovsky v. Rojdesvensky, 214 App. Div. 483, 212 N. Y. S. 273; id., 242 N. Y. 547, 152 N. E. 421; Kedrovsky v. Archbishop and Consistory, 218 App. Div. 121, 124, 217 N. Y. S. 873, 875; id., 220 App. Div. 750, 222 N. Y. S. 831; id., 249 N. Y. 75, 516, 162 N. E. 588, 164 N. E. 566; Nikulnikoff v. Archbishop and Consistory, 142 Misc. 894, 255 N. Y. S. 653; Waipa v. Kushwara, 259 App. Div. 843, 20 N. Y. S. 2d 174; id., 283 N. Y. 780, 28 N. E. 2d 417.
"The Legislature has made a determination that the `Russian Church in America' was the one which, to use our words in 249 New York at pages 77-78, was the trustee which `may be relied upon to carry out more effectively and faithfully the purposes of this religious trust (Carrier v. Carrier, 226 N. Y. 114)' by reason of the changed situation of the patriarchate in Russia." 302 N. Y., at 30, 96 N. E. 2d, at 72.
"The courts have always recognized that it is the province of the Legislature to make the underlying findings of fact which give meaning and substance to its ultimate directives. The courts have traditionally refused to consider the wisdom or technical validity of such findings of fact, if there be some reasonable basis upon which they may rest." 302 N. Y., at 31, 96 N. E. 2d, at 72-73.
"The Legislature of the State of New York, like the Congress, must be deemed to have investigated the whole problem carefully before it acted. The Legislature knew that the central authorities of the Russian Orthodox Church in Russia had been suppressed after the 1917 revolution, and that the patriarchate was later resurrected by the Russian Government. The Legislature, like Congress, knew the character and method of operation of international communism and [344 U.S. 94, 107] the Soviet attitude toward things religious. The Legislature was aware of the contemporary views of qualified observers who have visited Russia and who have had an opportunity to observe the present status of the patriarchate in the Soviet system. The Legislature realized that the North American church, in order to be free of Soviet interference in its affairs, had declared its temporary administrative autonomy in 1924, pursuant to the ukase of 1920, while retaining full spiritual communion with the patriarchate, and that there was a real danger that those properties and temporalities long enjoyed and used by the Russian Orthodox Church worshippers in this State would be taken from them by the representatives of the patriarchate. On the basis of these facts, and the facts stated (supra) and no doubt other facts we know not of, our Legislature concluded 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. Whether we, as judges, would have reached the same conclusion is immaterial. It is sufficient that the Legislature reached it, after full consideration of all the facts." 302 N. Y., at 32-33, 96 N. E. 2d, at 73-74.
[ Footnote 11 ] "The trustees of every religious corporation shall have the custody and control of all the temporalities and property, real and personal, belonging to the corporation and of the revenues therefrom, and shall administer the same in accordance with the discipline, rules and usages of the corporation and of the ecclesiastical governing body, if any, to which the corporation is subject, . . . ."
"As a broad guide this rule undoubtedly has worked well, but it is by no means a constitutional doctrine not subject to change or modification by the same Legislature which announced it, in cases where literal enforcement would be unreasonable and opposed to the public interest. The Legislature, in the exercise of its extensive and acknowledged power to act for the common welfare, may find as a fact that a situation has arisen of such novelty and uniqueness that existing law is incapable of performing its avowed function - the preservation of religious temporalities for the use of their original and accustomed beneficiaries. If the Legislature find as a fact that, because of drastically changed circumstances, the accustomed beneficiaries of religious [344 U.S. 94, 109] properties are thus threatened with their loss, and if there be a basis for such finding, we perceive no constitutional objection to a legislative attempt to trace and identify, as of today, the authentic group entitled to the administration of such properties."
"The control of all phases of Russian life by the Government was not as apparent in 1924 as it is a quarter of a century later and on the surface, at least, the case appeared to be a proper one for the application of the rule that in an ecclesiastical dispute involving a denominational church, the decision of the highest church judicatories will be accepted as final and conclusive by the civil courts (Trustees of Presbytery of N. Y. v. Westminster Presbyt Church, 222 N. Y. 305, 315; Watson v. Jones, 13 Wall. [U.S.] 679, 724-727; Religious Corporations Law, 4, 5)."
". . . we feel we must accept the historical statements contained in the dissenting opinion of Mr. Justice VAN VOORHIS, below: `. . . In recent public pronouncements the State Department, and our representatives in the United Nations, have frequently recognized and denounced the suppression of human rights and basic liberties in religion as well as in other aspects of life, existing in Soviet Russia and in all of its satellite states. . . .'" 302 N. Y., at 23, 96 N. E. 2d, at 68.
[ Footnote 14 ] See note 10, supra.
[ Footnote 15 ] "The third is where the religious congregation or ecclesiastical body holding the property is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control more or less complete, in some supreme judicatory over the whole membership of that general organization." 13 Wall. 679, 722-723.
[ Footnote 16 ] Zollmann, American Church Law (1933), c. 9. E. g., Shepard v. Barkley, 247 U.S. 1 ; Barkley v. Hayes, 208 F. 319, 326; McGinnis v. Watson, 41 Pa. 9; Missouri ex rel. Watson v. Farris, 45 Mo. 183, 197-198; First English Lutheran Church v. Evangelical Lutheran Synod, 135 F.2d 701. Cf. Gibson v. Armstrong, 7 Ben. Monroe (Ky.) 481; German Reformed Church v. Commonwealth ex rel. Seibert, 3 Pa. 282.
[ Footnote 17 ] "One or two propositions which seem to admit of no controversy are proper to be noticed in this connection. 1. Both by the act of the Kentucky legislature creating the trustees of the church a body corporate, and by the acknowledged rules of the Presbyterian Church, the trustees were the mere nominal title-holders and custodians of the church property, and other trustees were, or could be elected by the congregation, to supply their places once in every two years. 2. That in the use of the property for all religious services or ecclesiastical purposes, the trustees were under the control of the church session. 3. That by the constitution of all Presbyterian churches, the session, which is the governing body in each, is composed of the ruling elders and pastor, and in all business of the session the majority of its members govern, the number of elders for each congregation being variable." Id., at 720.
[ Footnote 18 ] Watson v. Avery, 2 Bush (Ky.) 332, 347 et seq.
"But we hold that the 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 in ordinary cases of injury resulting from the violation of a contract, or the fundamental law of a voluntary association." Id., at 349.
[ Footnote 19 ] Compare Watson v. Avery, n. 18, supra, at 349, with Watson v. Jones, supra, at 732 et seq.
[ Footnote 20 ] The decision has encountered vivid and strong criticism for the breadth of its statement that where "a subject-matter of dispute, strictly and purely ecclesiastical in its character," is decided, the civil court may not examine the conclusion to see whether the decision exceeds the powers of the judicatory. Id., at 733. See Zollmann, American Church Law (1933), c. 9, p. 291. The criticism does not go so far, however, as to condemn the nonreviewability of questions of faith, religious doctrine and ecclesiastical government, Watson v. Jones, at 729, 732, when within the "express or implied stipulations" of the agreement of membership. Zollmann, supra, 310, 311, 315, 340.
[ Footnote 21 ] Id., at 727. See pp. 113, 114-115, supra.
[ Footnote 22 ] Barkley v. Hayes, 208 F. 319, 334; Sherard v. Walton, 206 F. 562, 564; Helm v. Zarecor, 213 F. 648, 657.
"Because the appointment is a canonical act, it is the function of the church authorities to determine what the essential qualifications of a chaplain are and whether the candidate possesses them. 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 established by clubs and civil associations."
See Brundage v. Deardorf, 55 F. 839, where Taft, Circuit Judge, in overruling a demurrer, stated: "Even if the supreme judicatory has the right to construe the limitations of its own power, and the civil courts may not interfere with such a construction, and must take it as conclusive, we do not understand the supreme court, in Watson v. Jones, to hold that an open and avowed defiance of the original compact, and an express violation of it, will be taken as a decision of the supreme judicatory which is binding on the civil courts." P. 847.
Later the case was considered on appeal by the Circuit Court of Appeals; Lurton, Circuit Judge, writing, thought that the facts proven showed conclusively that Watson v. Jones did control. 92 F. 214, 230.
[ Footnote 24 ] St. Nicholas Cathedral v. Kedroff, 302 N. Y. 1, 30, 96 N. E. 2d 56, 72; note 12, supra.
[ Footnote 25 ] Ponce v. Roman Catholic Church, 210 U.S. 296, 322 .
[ Footnote 26 ] Watson v. Jones, supra; Barkley v. Hayes, 208 F. 319, 327, affirmed on appeal, Duvall v. Synod, 222 F. 669; Shepard v. Barkley, 247 U.S. 1 .
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 it or is entitled to its possession. Obviously a legislature would not have that power merely because the property belongs to a church.
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 U.S. 1, 16 -17.
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, 96 N. E. 2d 56, 68-72.
The arguments by which New York seeks to justify this inroad into the 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 a counting of heads. [344 U.S. 94, 123] 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 of 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 entanglements of its religious bodies that make for danger to the State, and the power, resting on plausible legislative findings, 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 her claims that the Church of Rome was subjecting herself to political authority. 1 The fear, perhaps not wholly groundless, that the loyalty of its citizens might be diluted by their adherence to a [344 U.S. 94, 124] 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 civil government [344 U.S. 94, 125] 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.
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.
[ Footnote 1 ] The 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.).
[ Footnote 2 ] Such 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, Studies in the Problem of Sovereignty, 27-68, 121-210. See also Buchanan, The Ten Years' Conflict (Edinburgh, 1849); Free Church of Scotland v. Overtoun, 1904. A. C. 515; The Free Church of Scotland Appeals (Orr. ed., Edinburgh, 1904).
[ Footnote 3 ] Reichs-Gesetzblatt, 1871, p. 442; Reichs-Gesetzblatt, 1872, p. 253; Reichs-Gesetzblatt, 1874, p. 43; Reichs-Gesetzblatt, 1876, p. 28; 5 Gesetz-Sammlung fur die Koniglich Preussischen Staaten 154, 221, 223, 225, 228, 337, 342; 6 id., at 30, 38, 40, 75, 170; 7 id., at 291. 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 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 Churches on Prussian soil were handed over to the old Catholics [344 U.S. 94, 125] [those refusing to adhere to the newly-promulgated dogma of papal infallibility] in such parishes as those in which the majority consisted of their sympathisers, for certain hours of the day . . . ." Laski, op. cit. supra, note 2, at 256-258. Bismarck's Kulturkampf, of which these laws were a part, is fully discussed in Goyau, Bismarck et l'Eglise. A full text of the laws may be found in the appendix to that work.
[ Footnote 4 ] See Garbett, In an Age of Revolution, 207-213; Niemoller, Why I Went to Moscow, The Christian Century, March 19, 1952, p. 338.
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.
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.
If the Fourteenth Amendment is to be interpreted to leave anything to the courts of a state to decide without our interference, I should suppose it would be claims to ownership or possession of real estate within its borders and the vexing technical questions pertaining to the creation, interpretation, termination, and enforcement of uses and trusts, even though they are for religious and charitable purposes. This controversy, I believe, is a matter for settlement by state law and not within the proper province of this Court.
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, [344 U.S. 94, 128] of course, would raise a question of deprivation of property, not of liberty, while only the latter issue is raised by the parties. And it could be sustained only by a finding by us that the legislation worked a transfer rather than a confirmation of property rights. The Court of Appeals seems to have regarded the statute merely as a legislative reaffirmation of principle the Court would find to be controlling in its absence.
But this Court apparently thinks that by mere enactment of the statute the legislature invaded a field of action reserved to the judiciary. However desirable we may think a rigid separation of powers to be (and I, for one, think it is basic in the Federal Government), I do not think the Fourteenth Amendment undertakes to control distribution of powers within the states. At all events, I do not think we are warranted in holding that New York may not enact this legislation in question, which is in form and in substance an amendment of its Religious Corporations Law.
Nothing in New York law required this denomination to incorporate its Cathedral. The Religious Corporations Law of the State expressly recognizes unincorporated churches ( 2) and undertakes no regulation of them or their affairs. But this denomination wanted the advantages of a corporate charter for its Cathedral, to obtain immunity from personal liability and other benefits. This statute does not interfere with religious freedom but furthers it. If they elect to come under it, the statute makes separate provision for each of many denominations with corporate controls appropriate to its own ecclesiastical order. When it sought the privilege of incorporation under the New York law applicable to its denomination, it seems to me that this Cathedral and all connected with its temporal affairs were submitted to New York law.
As a consequence of this Court's decision in Dartmouth College v. Woodward, 4 Wheat. 518, the Constitution of [344 U.S. 94, 129] New York since 1846 has authorized the legislature to create corporations by general laws and special acts, subject, however, to a reservation that all such acts "may be altered from time to time or repealed." New York Const., Art. X, 1. That condition becomes a part of every corporate charter subsequently granted by New York. Lord v. Equitable Life Assurance Society, 194 N. Y. 212, 87 N. E. 443; People v. Gass, 190 N. Y. 323, 83 N. E. 64; Pratt Institute v. New York, 183 N. Y. 151, 75 N. E. 1119.
What has been done here, as I see it, is to exercise this reserved power which permits the State to alter corporate controls in response to the lessons of experience. Of course, the power is not unlimited and could be so exercised as to deprive one of property without due process of law. But, I do not think we can say that a legislative application of a principle so well established in our common law as the cy-pres doctrine is beyond the powers reserved by the New York Constitution.
The Court holds, however, that the State cannot exercise its reserved power to control this property without invading religious freedom, because it is a Cathedral and devoted to religious uses. I forbear discussion of the extent to which restraints imposed upon Congress by the First Amendment are transferred against the State by the Fourteenth Amendment beyond saying that I consider that the same differences which apply to freedom of speech and press (see dissenting opinion in Beauharnais v. Illinois, 343 U.S. 250, 287 ) are applicable to questions of freedom of religion and of separation of church and state.
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. [344 U.S. 94, 130] 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 owned and rightfully possessed by the Cathedral Corporation.
The fact that property is dedicated to a religious use cannot, in my opinion, justify the Court in sublimating an issue over property rights into one of deprivation of religious liberty which alone would bring in the religious guaranties of the First Amendment. 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.
Of course, possession of the property will help either side that obtains it to maintain its prestige and to continue or extend its sway over the minds and souls of the devout. So would possession of a bank account, an income-producing office building, or any other valuable property. 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?
Thus, if the American group, which owns the title to the Cathedral, had by force barred Benjamin from entering it physically, would the Court say it was an interference with religious freedom to entertain and decide his ejectment action? If state courts are to decide such controversies at all instead of leaving them to be settled by a show of force, is it constitutional to decide for only [344 U.S. 94, 131] one side of the controversy and unconstitutional to decide for the other? In either case, the religious freedom of one side or the other is impaired if the temporal goods they need are withheld or taken from them.
As I have earlier pointed out, the Soviet Ecclesiast's claim, denial of which is said to be constitutional error, is not that this New York property is impressed with a trust by virtue of New York law. The claim is that it is impressed with a trust by virtue of the rules of the Russian Orthodox Church. This Court so holds.

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text:
A decree confiscating real estate under the Confiscation Act of July 17, 1862, 12 Stat. 589, has no effect upon the interest of a mortgagee in the confiscated property.
A district court of the united states in proceedings for confiscating real estate under the Act of July 17, 1862, 12 Stat. 559, had no jurisdiction to pass upon the validity of a mortgage upon the estate proceeded against.
The well established rule in Louisiana that where a mortgage contains the pact de non alienando, the mortgagee may enforce his mortgage by proceedings against the mortgagor alone, notwithstanding the alienation of the property, applies to an alienation by condemnation in proceedings for confiscation, and as against the heirs at law of the person whose property is confiscated. Shields v. Schiff, 36 La.Ann. 645, approved.
The heirs at law of a person whose life interest in real estate was confiscated under the Act of July 17, 1862, take at his death by descent, and not from the United States, under the act.
On April 3, 1862, Bernard Avegno, being the owner of the property in dispute, executed a mortgage thereon to Israel C. Harris to secure promissory notes made by Avegno, payable to his own order and endorsed by him, amounting in the aggregate to $36,500, which he delivered to Harris. The mortgage contained the pact de non alienando, by which the mortgagor agreed not to sell, alienate, or encumber the mortgaged property to the prejudice of the mortgage. The notes and mortgage were afterwards transferred by Harris to Charles Morgan. The mortgage being still in force, on January 20, 1865, the United States filed, in the District Court for the District of Louisiana, a libel of information against the mortgaged property, of which Bernard Avegno was still the owner, to condemn it as confiscated, under the Act of July 17, 1862, 12 Stat. 589, entitled "An act to suppress insurrection, to punish treason and rebellion, and confiscate the property of rebels, and for other purposes," for the offenses of its owner, Avegno. A writ of seizure was issued to the marshal, who, in his return, dated February 14, 1865, stated that he had seized and taken into his possession the property libeled.
Morgan, the mortgage creditor, intervened in the suit for confiscation, claiming to be paid out of the proceeds of the property the amount due on his mortgage. The district court, on August 1, 1865, made a decree condemning the property in question as forfeited to the United States, and ordering it to be sold, and dismissing the intervention of Morgan, on the ground that his mortgage "could not be acknowledged." The decree of condemnation made by the district court was not followed by a sale of the forfeited premises, nor were any proceedings taken under it.
to whom, on December 26, the marshal made a deed therefor.
"that, by reason of such confiscation and forfeiture, all right, title, interest, and ownership of Bernard Avegno (deceased) was absolutely divested; that said real estate was during his lifetime forfeited to the United States; but that the naked ownership thereof was then vested in your petitioners, who were his legitimate children, living at the time of the rendition of said decree and judgment of condemnation and forfeiture; that on the 12th day of August, 1872, Bernard Avegno died, whereupon the title and interest of the United States in the said property came to an end, and said life estate was terminated, your petitioners being therefore entitled to the full ownership thereof. "
It is plain, and is not disputed by the plaintiffs, that if there had been no proceeding instituted by the United States for the condemnation of the property, and no intervention therein by Morgan, he would have acquired a good title to the premises, by his purchase thereof at the sale made under the decree of the circuit court rendered upon his bill to enforce his mortgage, and his deed therefor to the defendants would have vested in them a good and indefeasible title.
The plaintiffs contend, however, that the title so conveyed is void, for two reasons, first because the judgment of condemnation divested Avegno of all interest and estate in the forfeited premises, and the circuit court was therefore without jurisdiction to render a decree for the sale of the property in the suit brought to foreclose the mortgage to which Avegno was the only defendant, and second because the district court dismissed Morgan's intervention on the ground that his mortgage "could not be acknowledged," and because this was, in effect, the judgment of a court of competent jurisdiction in a proceeding to which Morgan was a party, declaring his mortgage to be void, and he and those claiming under him were bound by that judgment. We do not think that either of these grounds is well taken.
by the death of Avegno, it is now of no concern to anyone, so far as it respects the title to the property, whether the government was represented in the suit of Morgan of enforce his mortgage or not. Without pointing out who were the necessary and proper parties to such a suit, the plaintiffs say that Avegno was neither a necessary nor a proper party, and that as he was the sole defendant, the circuit court was without jurisdiction to make any decree in the suit brought by Morgan to enforce his mortgage.
no one else to look after the interests of the succession, the children might be properly permitted to do so.
These decisions, alone considered, apparently sustain the contention of the plaintiffs that a decree in a suit to foreclose the mortgage, to which Avegno was the sole defendant, was without the necessary parties, and was therefore void for want of jurisdiction in the court to render it.
The answer of the defendants to this contention of the plaintiffs is that, as the mortgage executed by Avegno contained the pact de non alienando, he was a proper and the only necessary party to the suit brought by Morgan to foreclose his mortgage.
"the mortgagee is not bound to pursue a third possessor, but may have the hypothecated property seized in via executina as if no change had taken place in its possessors, because any alienation or transfer made in violation of the pact de non alienando is ipso jure void, as it relates to the creditor, and that this effect of the pact is not annulled by the provisions of the Civil Code in relation to mortgages, and the rules laid down for pursuing the action of mortgage."
In Stanbrough v. McCall, 4 La.Ann. 324, the court reviewed the cases on this subject and held that where a mortgage contained the pact de non alienando, one who subsequently purchases the property from the mortgagor cannot claim to be in any better condition than his vendor, nor can he plead any exception which the latter could not, and that any alienation in violation of the pact is null as to the creditor.
that where a mortgage contains the pact de non alienando the mortgagee may enforce his mortgage by proceeding against the mortgagor alone, notwithstanding the alienation of the property, and that all those claiming under the mortgagor, whether directly or remotely, will be bound, although not made parties.
"cannot take by descent unless their father, at his death, was seized of an estate of inheritance, e.g., reversion or a remainder, it may be answered that even at common law it was not always necessary that the ancestor should be seized to enable the heir to take by descent. Shelley's Case is that where the ancestor might have taken and been seized, the heir shall inherit. Fortescue, J., in Thornby v. Fleetwood, 1 Str. 318."
"If it were true that at common law the heirs could not take in any case where their ancestor was not seized at his death, the present case must be determined by the statute. Charles S. Wallach was seized of the entire fee of the land before its confiscation, and the act of Congress interposed to take from him that seizing for a limited time. That it was competent to do, attaching the limitation for the benefit of the heirs. It wrought no corruption of blood. In Lord de la Warre's Case, 11 Coke 1a, it was resolved by the justices"
felony, that is an absolute and perpetual disability, by corruption of blood, for any of his posterity to claim any inheritance in fee simple, either as heir to him or any ancestor above him, but when one is disabled by Parliament (without any attainder) to claim the dignity for his life, it is a personal disability for his life only, and his heir, after his death, may claim as heir to him or to any ancestor above him."
"There is a close analogy between that case and the present."
"Without pursuing this discussion further, we repeat, that to hold that any estate or interest remained in Charles S. Wallach after the confiscation and sale of the land in controversy, would defeat the avowed purpose of the confiscation act and the only justification for its enactment, and to hold that the joint resolution was not intended for the benefit of his heirs exclusively, to enable them to take the inheritance after his death, would give preference to the guilty over the innocent. We cannot so hold."
These extracts show that it was the opinion of the court that the children of a person whose estate was condemned under the Act of July 17, 1862, took, as his death, by descent as his heirs, the fee simple, and did not derive their title from the United States or by virtue of the confiscation act.
Avegno, the mortgagor, was therefore the only person necessary to be made a party to the suit brought by Morgan to foreclose his mortgage, and the proceedings and sale were valid and binding on the plaintiffs, and vested in Morgan a good title to the premises in dispute, which he conveyed to the defendants.
it. The second answer is that the district court was without jurisdiction to pass upon the validity of the mortgage in the suit for the condemnation of the mortgaged property. Bigelow v. Forrest, 9 Wall. 339; Day v. Micou, 18 Wall. 156; Claims of Marcuard, 20 Wall. 114. It does not clearly appear from the record that the district court intended, by its decree dismissing the intervention of Morgan, to pass upon the validity of the mortgage; but if its decree is to be interpreted as declaring the mortgage to be invalid and void, the court exceeded its jurisdiction, and the decree was without effect upon the mortgage.
In our opinion, therefore, Morgan acquired a good title to the premises in controversy by his purchase at the sale made to satisfy his mortgage lien, and his deed to the defendants having vested them with his title, the judgment of the Supreme Court of Louisiana in their favor was right.
* Donaldson v. Maurin, 1 La. 29; Moss v. Collier, 14 La. 133; Lawrence v. Burthe, 15 La. 267; Nicolet v. Moreau, 13 La. 313; Guesnard v. Soulie, 8 La.Ann. 58; Succession of Vancourt, 11 La.Ann. 383; Smith v. Nettles, 13 La.Ann. 241; Murphy v. Jandot, 2 Rob. 378; Gas-Light & Banking Co. v. Allen, 4 Rob. 389; Dodd v. Crain, 6 Rob. 58.

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Have you been charged with VTL § 1174 passing a stopped school bus in New York?
Our lawyers have a vast amount of experience defending motorist against the charge of failing to stop for a school bus in New York. Representing drivers in New York accused passing a stopped school bus, NY VTL § 1174 is no easy task, but we are up to the challenge at Attack That Ticket. Contact our failure to stop for a school bus defense lawyers for a free consultation to find out how we can help. Being found guilty of NY VTL § 1174, failing to stop for a school bus, is a 5 point violation, a large insurance increase, and a substantial fine. Our New York traffic court defense lawyers represent motorists charged with not stopping for a school bus anywhere in New York State.
The motorist is not permitted to proceed not when the flashing lights go off. Rather, the motorist must wait until the bus resumes motion or is waived on by the bus driver or a police officer NY VTL § 1102).
Upon a first time conviction a motorist is facing total maximum fines of approximately $500.00, 5 points, and a major insurance merit system violation resulting in a 3 year auto insurance increase. In addition, the court could sentence a motorist to up to 30 days in prison and a license suspension. A second conviction within 3 years increases the maximum fines to approximately $800.00, another 5 points, more insurance increases, and the potential of up to 180 days in prison as well as a license suspension. Upon a 3rdconviction in 3 years, the total maximum fine will be over $1,000, another 5 points on your license, even more insurance increases, and potentially 180 days in prison as well as a license suspension.
Being charged with passing a stopped school bus is a big problem because prosecutors and courts will not allow negotiating the charge of VTL § 1174, failing to stop for a school bus. This means that you either have to plead guilty “as charged” or take you case to trial. Inasmuch as you have nothing to lose and everything to gain my asserting your constitutional rights to a trial, it makes no sense to kowtow to the system.
What you need to understand is that by pleading guilty “as charged” you gain nothing and lose everything. Consequently, there is no downside to taking your case to trial and losing. The insurance companies and DMV don’t care how you arrived at “guilty,” be it by admission or swing of the gavel finding you guilty after trial. When a prosecutor tells you that they do not negotiate school bus tickets they are giving you 1 choice – you are going to trial.
Representing clients in a school bus trial is where we come in. We have litigated many school bus tickets. We have gotten the charge of VTL § 1174 dismissed by written motion, dismissed at trial, and in the criminal context had the predicate charge of VTL § 1174 dismissed which resulted in suppression of other evidence and dismissal of all charges.
If you have been charged with failing to stop for a school bus, call us today for a no cost, no obligation phone consultation.