Opposition Brief — Pappas v. Greek Orthodox Archdiocese of North and South America (No. 06-1517)

Ll © &. FILED

No. 06-1517 : JUL 16 2097

se nes COURT US

THE

Supreme Court of the United States

NICHOLAS PAPPAS, et ai.,

Petitioners,

Vv.

GREEK ORTHODOX ARCHDIOCESE OF

NORTH AND SOUTH AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME Court oF New YORK,

APPELLATE DIVISION, FIRST JUDICIAL DEPARTMENT

BRIEF IN OPPOSITION

GLENN M. Kurtz

Counsel of Record

CHRISTOPHER J. GLANCY

White & Case Lip

1155 Avenue of the Americas

New York, New York 10036-2787

(212) 819-8252

Attorneys for Respondent

209802 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

QUESTION PRESENTED

Does the First Amendment of the United States

Constitution bar civil courts from adjudicating ecclesiastical

matters of internal church governance of a hicrarchical

church?

ti

TABLE OF CONTENTS

Page

GPR PASO ECORI O RTE? oak cack a cceenee ous i

py ' Ree Boe fk. ) fener irene ii

TABLE OF CITED AUTHORITIES ............ iv

DEALDMONE UF EME CARS 2.6. cece scence se 1

The Greek Orthodox Church ................ 2

ee ee es Pere re 3

The Revision Of The Charter ................ 4

See I as 8 ASS 6

REASONS FOR DENYING THE PETITION ..... 8

I. PETITIONERS FAIL TO PRESENT

A MERITORIOUS GROUND FOR

GRANTING CERTIORARI ............. 8

A. The Appellate Division Applied Settled

Supreme Court Precedent ........... 8

1. The Appellate Division Correctly

Ruled That The Milivojevich

Decision Bars This Action ....... 8

2. The Appellate Division Correctly

Ruled That The “Neutral Principles

of Law” Doctrine Does Not Apply

iil

Contents

Page

B. The Appellate Division’s Decision Does

Not Conflict With Decisions Of

The State Appellate Courts .......... 17

C. The State Appellate Courts Are Not

Divided On The Issue of Church

PO 6655 6-6 KKAK DHA RS OSE 20

D. The Appellate Division Did Not Intrude

Into Religious Matters .............. 23

E. The Appellate Division Correctly

Rejected Petitioners’ “Impairment of

Contract” Armument ..........0005. 24

CI Soo Skok a ehkea sc cas s0s een eS ys 26

iv

TABLE OF CITED AUTHORITIES

CASES

Arkansas Presbytery of the Cumberland Presbyterian

Church v. Hudson, 344 Ark. 332, 40 S.W.3d 301

(2001)

Avitzur v. Avitzur, 58 N.Y.2d 108 (1983)

Babcock Memorial v. Presbytery of Baltimore,

464 A.2d 1008 (Md. 1983)

Basich v. Board of Pensions, Evangelical Lutheran

Church, 540 N.W.2d 82 (Minn. Ct. App. 1995) ... 19

Benninson v. Sharp, 121 Mich. App. 705, 329 N.W.2d

466 (1983) 18-19, 22

Bishop and Diocese of Colorado v. Mote, 716 P.2d

85 (Colo. 1986)

Bjorkman v. Protestant Episcopal Church in the

United States of America, 759 $.W.2d 583

(KY 1988)

California-Nevada Annual Conference of the United

Methodist Church v. St. Luke’s United Methodist

Church, 121 Cal. App. 4th 754, 17 Cal. Rptr. 3d

°442 (2004)

Calvary Presbyterian Church v. Presbytery of Lake

Huron, 148 Mich. App. 105, 384 N.W.2d 92

(1986)

Cited Authorities

Page

Chimney Ville Missionary Baptist Church of Garland

v. Johnson, 665 So. 2d 730 (La. App. 1995) .... 20

Corporation of the Presiding Bishop of the Church

of Jesus Christ of Latter-Day Saints v. Amos,

DUP Us SET CIORED ic ccc tenes eeeeseseens 8-9

Crumbley v. Solomon, 243 Ga. 343, 254 S.E.2d 330

as alg eh ing Nik eee EAN A ES wee 18

East Lake Methodist Episcopal Church, Inc. v.

Trustees of the Peninsula-Delaware Annual

Conference of the United Methodist Church, Inc.,

FEE Pee FIO IL. TIFD) nese cevesesccces 18

First Born Church of the Living God, Inc. v. Bank

South, N.A., 221 Ga. App. 739, 472 S.E.2d 469

RS hha ho 5 6a x ooo & % Ow oman ee a4.8 18

First Presbyterian Church v. United Presbyterian

Church, 62 N.Y.2d 110, 464 N.E.2d 454,

Fe Oe, Bek RCL OOF) va oe ves ec esess 9, 14, 19, 22

Grace Evangelical Lutheran Church v. Lutheran

Church-Missouri Synod, 118 Ill. App. 3d 151, 454

US og cece oaks 6e nese aos 18

Jones v. Wolf, 241 Ga. 388, 260 S.E.2d 84 (1979) ... 18

Jones v. Wolf, 443 U.S. 595 (1979) ....... 14, 19, 22, 23

Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952)

De et lene Sy oe ial a ae hie a 8, 10, 13, 16, 23

vi

Cited Authorities

Page

Korean United Presbyterian Church of Los Angeles

v. Presbytery of the Pacific, 230 Cal. App. 3d 480,

281 Cal. Rptr. 396 (1991) ................... 17

Maryland & Virginia Eldership of the Churches of

God v. Church of God at Sharpsburg, Inc., 396 U.S.

Le. | er es re i}, #4, 22

Mount Gideon Baptist Church, Inc. v. Robinson,

$12 So. 2d 758 (La. App. 2002) .........0005. 18

Presbyterian Church in the U.S. v. Mary Elizabeth

Blue Hull Memorial Presbyterian Church, 393 U.S.

eo o_o a reer ea ree 14, 23

Presbytery of Beaver-Butler of United Presbyterian

Church v. Middlesex Presbyterian Church, 507 Pa.

Bay WEF Pc AGERE LEM) 66 a ce SE Ke RS 88 es 19, 21

Presbytery of Elijah Parish Lovejoy v. Jaefggi,

GEZ S.W.26 465 Cake. T9G4) in... ccc ccc cseess 19

Presbytery of Riverside v. Community Church of Palm

Springs, 90 Cal. App. 3d 910, 152 Cal. Rptr. 854

SMI hv) b Woe Ge Deg Fk wk wei ace as 17

Protestant Episcopal Church v. Barker, 115 Cal. App.

bo USES Be oe 6). tt 17

Protestant Episcopal Church v. Graves, 83 N.J. 572,

RET Dice CREE kk 0h oh eRe 19, 22

Rector, Wardens and Vestrymen v. Episcopal Church,

224 Conn. 797, 620 A.2d 1280 (1983) ......... 18

vil

Cited Authorities

Page

Reddick v. Jones, 251 Ga. 195, 304 S.E.2d 389

Pe ye Dig ar eh ec 8 au 51g wisi Ge a RE ee 18

Serbian Eastern Orthodox Diocese U.S.A. v.

Milivojevich, 426 U.S. 696 (1976) ........... passim

Shepherd of the Valley Lutheran Church v. Hope

Lutheran Church, 626 N.W.2d 436 (Minn. Ct. App.

ee ee en hee eee 19

Shirley v. Christian Episcopal Methodist Church,

748 So. 2d 672 (Miss. 1999) 2. ces i9

Singleton v. Christ the Servant Evangelical Lutheran

Church, 541 N.W.2d 606 (Minn. Ct. App. 1996)

FURS INCA TEL SAREE eR EREE COCKS RRC 19

Srisovana v. Cambodian Buddhist Soc. , Inc., 269 Ga.

App. 600, 604 S.E.2d 637 (Ga. App. 2004) ..... 18

Tea v. Protestant Episcopal Church, 96 Nev. 399,

op Bie TS. Ee ees ee nee 19

Trinity Presbyterian Church v. Tankersley, 374

ae a a 2 | an 17

Watson v. Jones, 80 U.S. 679 (1871) ........... passim

York v. First Presbyterian Church, 130 Ill. App. 3d

O51, O74 PLZ FIDEIIOR) oc ive ew ic nsae. 18

l

STATEMENT OF THE CASE

Petitioners seek to dictate the fashion in which the

Archdiocese is governed. Church governance is a purely

ecclesiastical matter that even Petitioners admit may not be |

reviewed by the judiciary. In an effort to avoid such bar,

Petitioners simply ignore the substance of the 2003 Charter.

Petitioners describe the dispute as concerning “contracts”

and “corporate documents,” while avoiding the fact that the

alleged “contract” deals with ecclesiastical matters, such as

providing for the elevation of bishops to the higher rank of

Metropolitan, establishing criteria for the elevation of a priest

to the position of Metropolitan or Archbishop, and setting

forth rules for the oversight of monasteries. Petitioners avoid

the very document they challenge because the matters it

covers obviously fall outside the scope of judicial review.

Indeed, recognizing the fact the courts will not operate

churches, on appeal Petitioners abandoned their request for

an injunction mandating governance in accordance with the

1977 Charter. Petitioners’ remaining request to declare the

2003 Charter invalid, without actually barring the

Archdiocese from following the Charter, seeks a purely

advisory an opinion and, consequently, is not justiciable.

Petitioners’ entire Complaint is premised on the incorrect:

allegation that the Ecumenical Patriarchate did not have the

authority to grant a new Charter to the Archdiocese in 2003

without either approving certain amendments that were

requested by the Clergy-Laity Congress of the Archdiocese

or obtaining the approval of the Clergy-Laity Congress. The

Ecumenical Patriarchate has determined that it has such

authority, and nothing in the governance documents of the

Archdiocese is to the contrary. The United States Supreme

Court’s decision in Serbian Eastern Orthodox Diocese U.S.A.

v. Milivojevich, 426 U.S. 696 (1976) is directly on point and |

bars this action. Under the First Amendment, a plaintiff may

not ask a court to substitute its judgment for that of a

2

hierarchical church’s highest authority on matters of internal

church governance, as the New York State Appellate

Division, First Department, correctly held.! The law in this

area is settled. Contrary to Petitioners’ assertion, there is no

conflict among the state courts on the issue.

Petitioners also argue that that judicial deference to the

Ecumenical Patriarchate’s interpretation of the Charter

impairs the right of contract of all parishioners. Milivojevich

is On point and controlling on this point, as well. In

Milivojevich, the Court refused to interpret provisions of

church constitutions to resolve a dispute concerning

ecclesiastical matters. Moreover, as this Court acknowledged

in Watson, all parishioners in a hierarchical church consent

to be governed by the decisions of the hierarchy, and agree

to be bound by those decisions.

Regardless of the constitutional infirmity of the

Complaint, the controversy is now moot because the Clergy-

Laity Congress has operated under the new Charter for three

years. Indeed, at its biennial convention in 2004, the Clergy-

Laity Congress, comprised of over 1,000 delegates, even

promulgated new regulations in conformity therewith.

The Greek Orthodox Church

The Greek Orthodox Church is a hierarchical church in

which the ultimate control and authority for all matters within

the church rests with the Holy Apostolic and Ecumenical

Patriarchate of Constantinople (the “Ecumenical

Patriarchate”). The Greek Orthodox Church is one of several

“autocephalous,” or ecclesiastically independent, churches

of the Eastern Orthodox tradition.2? The Greek Orthodox

1. The New York State Court of Appeals declined to hear

Petitioners’ appeal.

2. The Serbian, Russian and Antiochian Orthodox Churches

are other examples of autocephalous Eastern Orthodox churches.

3

Church shares a common bond and theology with other

Orthodox churches, each of which is headed by a Patriarch

(or equivalent), but all of which look for guidance to the

Ecumenical Patriarchate as primus inter pares (first among

equals). The head of each autocephalous church administers

that church, but only the Ecumenical Patriarchate can

convene a council of the churches (comprised of all bishops)

to modify church doctrine.

The Ecumenical Patriarchate is the “Mother Church” and

is comprised of the Holy and Sacred Synod of the Ecumenical

Patriarchate (the “Holy Synod”). The Holy Synod is the

Church’s highest executive body and is comprised of twelve

Metropolitans from around the world presided over by the

Ecumenical Patriarch.

The Archdiocese

Within the United States, the Archdiocese, through its

Eparchial Synod, is the highest spiritual and governing

authority of the Greek Orthodox Church. The Archdiocese

oversees the administration of the Direct Archdiocesan

District in New York, and eight Metropolises (or dioceses),

which in turn oversee approximately 540 Greek Orthodox

parishes throughout the United States. There are

approximately one million Greek Orthodox faithful in the

United States. The Archdiocese was incorporated in 1921

pursuant to Section 15 of the Religious Corporations Law

(“RCL”) of the State of New York, although it existed as an

unincorporated association prior to that.

The principal governance documents of the Archdiocese

are the Holy Scripture, the Sacred Traditions and Holy

Canons of the Greek Orthodox Church, its Charter, and the

Special Regulations and Uniform Parish Regulations

(“Regulations”). The Holy Canons have been developed over

4

the seventeen-hundred-year history of the Church and deal

with, among other things, church organization and discipline.

The Ecumenical Patriarchate granted the first Charter

of the Archdiocese in 1922, and all subsequent Charters.

From 1977 to 2003, the Archdiocese was governed in

_ accordance with a Charter granted by the Ecumenical

Patriarchate in 1977 (the “1977 Charter”). The 1977 Charter

was superseded by the new Charter granted by the

Ecumenical Patriarchate in 2003 (the “2003 Charter”).

The Revision Of The Charter

The process to revise the 1977 Charter began in 1995

when Archbishop lakovos (now deceased) appointed a charter

revision committee and culminated eight years later with the

grant of the 2003 Charter by the Ecumenical Patriarchate.

The charter revision committee was expanded by a

unanimous vote of the Clergy-Laity Congress in 1998 to

include one clergy and one lay person from each diocese. In

1999, a charter committee consisting of three bishops, two

priests and three lay people (including a professor of canon

law) was selected by the Eparchial Synod to draft the new

charter. In May 2000, in conformity with the 1998 Clergy-

Laity Congress resolution, representatives of every diocese

within the Archdiocese met in New York to review and

comment on the draft charter. A revised draft charter was

sent to the Ecumenical Patriarchate for review in July 2000.

The Ecumenical Patriarchate then appointed its own charter

committee and the two committees met in joint session in

Constantinople on four separate occasions. After some further

revisions, the proposed charter was presented at a meeting

of the Archdiocesan Council in December, 2001 and shortly

thereafter distributed to all parishes which provided

comments on the draft.

5

In July 2002, following seven hours of detailed

discussion in plenary session, the Clergy-Laity Congress

approved a motion requesting that the Ecumenical

Patriarchate grant the new charter for the Archdiocese with

certain modifications to the charter set forth in separate

motions. The Ecumenical Patriarchate granted the proposed

charter on January 18, 2003, but did not approve several of

the requested modifications.

Under both the 1977 Charter and the 2003 Charter, the

institutions and structure of the Archdiocese are largely the

same. Under both Charters, all canonical and ecclesiastical

matters not provided for in the Charter and Regulations are

determined by the Holy Synod of the Ecumenical

Patriarchate. (1977 Charter Art. I; 2003 Charter Art. 1(b))

Also under both Charters, the Clergy-Laity Congress

concerns itself with all matters, except for dogmatic or

canonical matters, which affect the life, mission, growth and

unity of the Archdiocese of America, including the uniform

administration of the Archdiocesan District, the Metropolises

and Parishes, and the educational programs, financial

programs and philanthropic concerns of the Archdiocese.

(1977 Charter Art. XI; 2003 Charter Art. 10) All decisions

of the Clergy-Laity Congress are submitted to the Ecumenical

Patriarchate for approval and ratification. (/d.) Following

their approval, the decisions must be faithfully adhered to

by all parishes regardless of whether or not they were

represented at the Clergy-Laity Congress at which they were

adopted. (/d.)

The only material differences between the 2003 Charter

and the 1977 Charter are purely ecclesiastical. The 2003

Charter: (i) elevates the Bishops of the Archdiocese to

Metropolitans, a higher status within the Church as a whole,

although their duties and rights within the Archdiocese

remain largely unchanged (2003 Charter, Art. 7); (11) changes

6

the name of the Synod of Bishops to the Holy Eparchial

Synod (id. , Art. 5); (111) specifies additional eligibility criteria

for future candidates for the office of Archbishop (id.,

Art. 13); (iv) modifies procedures for handling a vacancy in

the office of Archbishop or Metropolitan (id., Art. 12);

(v) specifies more detailed procedures by which the Spiritual

Courts function (id., Art. 9); (vi) grants authority to the

Eparchial Synod to designate, in consultation with the

Archdiocesan Council, the number, seat and boundaries of

the Metropolises within the Archdiocese, subject to the

approval of the Ecumenical Patriarchate (id., Art. 3(a));

(vii) provides for oversight of monasteries (id., Art. 21); and

(vili) provides a more detailed process for amending the

Charter (id., Art. 25). There are no other material differences

between the two Charters.

At its meeting in July 2004, the Clergy-Laity Congress

adopted new regulations to conform to the changes reflected

in the 2003 Charter, and those regulations have been ratified

by the Ecumenical Patriarchate. The new regulations

expressly acknowledge that the 2003 Charter was granted

by the Ecumenical Patriarchate, and repeatedly cross-

reference various articles in the 2003 Charter. The Clergy-

Laity Congress did not object to or disapprove of the 2003

Charter in any manner. Thus, the Clergy-Laity Congress has

accepted the 2003 Charter as the operative charter of the

Archdiocese. |

The Complaint

The Complaint was filed by thirty-four persons, all of

whom ciaim to be members of certain separately incorporated

Greek Orthodox parishes. In actuality, this action is being

prosecuted and financed by the Orthodox Christian Laity

(“OCL”), which has no affiliation with the Archdiocese or

any Greek parish. Four Plaintiffs demanded dismissal when

7

they realized they had been included in the case, and three

additional Plaintiffs have refused to join the appeal.’

Ignoring the fundamental notion of separation of church

and state, Petitioners ask the civil courts to direct the way in

which the Archdiocese governs itself. The Complaint alleges

that the 2003 Charter was improperly adopted, and seeks a

declaration that the 1977 Charter, and not the 2003 Charter,

is the governing Charter of the Archdiocese. In addition, the

Complaint seeks a mandatory injunction requiring the

Archdiocese and Archbishop Demetrios to govern in

accordance with the 1977 Charter, and not the 2003 Charter.

Although on appeal Petitioners purported to have

“abandoned” their claim for injunctive relief, such a tactic

renders their proposed case non-justiciable as seeking only

an advisory opinion.

The New York State Appellate Division, First

Department, properly affirmed dismissal of Petitioners’

Complaint on the ground that the First Amendment bars

adjudication of ecclesiastical matters of internal church

governance, and the New York Court of Appeals declined to

hear Petitioners’ appeal.

3. Upon information and belief, since the date of the trial court’s

order, two additional plaintiffs have died.

8

REASONS FOR DENYING THE PETITION

I. Petitioners Fail To Present A Meritorious Ground For

Granting Certiorari

A. The Appellate Division Applied Settled Supreme

Court Precedent

1. The Appellate Division Correctly Ruled That

The Milivojevich Decision Bars This Action

it is settled law that the First Amendment to the United

States Constitution precludes civil courts from intervening

in ecclesiastical matters, such as church governance, to

resolve disputes involving religious organizations. Serbian

Eastern Orthodox Diocese for the U.S.A. v. Milivojevich, 426

U.S. 696, 713 (1976); Kedroff v. St. Nicholas Cathedral, 344

U.S. 94, 120-21 (1952). Matters of internal church

government are at “the core of ecclesiastical affairs.”

Milivojevich, 426 U.S. at 721; see Kedroff, 344 U.S. at 116

(religious freedom encompasses the “power [of religious

bodies] to decide for themselves, free from state interference,

matters of church government as well as those of faith and

doctrine.”). As this Court has noted:

Religious organizations have an interest in

autonomy in ordering their internal affairs, so that

they may be free to “select their own leaders,

define their own doctrines, resolve their own

disputes, and run their own institutions. Religion

includes important communal elements for most

believers. They exercise their religion through

religious organizations, and these organizations

must be protected by the [Free Exercise][C]lause.”

Corporation of the Presiding Bishop of the Church of Jesus

Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 341-42

9

(1987) (Brennan, J., concurring) (quoting Laylock, Towards

a General Theory of the Religion Clause: The Case of Church

Labor Relations and the Right to Church Autonomy, 81

Colum. L. Rev. 1373, 1389 (1981)).

Here, there is no credible dispute that the Complaint asks

the civil court to determine matters of church governance of

a hierarchical church.* The Complaint seeks “a mandatory

injunction requiring defendants to govern the Archdiocese

in accordance with the 1977 Charter, not the [2003 Charter].”

(Complaint at 13) Petitioners assert harm if the Archdiocese

is permitted to “govern or continue to govern the Archdiocese

under the [2003 Charter,] instead of the 1977 Charter”

(id. | 74), and allege that there is a genuine controversy and

dispute “as to whether the 1977 Charter or the [2003 Charter]

is the proper governing charter and bylaws of the

Archdiocese” (id. § 67).

Moreover, as the Appellate Division correctly decided,

“if this case were to proceed further, a trial court would

_ ultimately be required to decide whether the Ecumenical

Patriarch[ate] had authority unilaterally to grant a charter to

defendant in 2003 — clearly, a religious matter.” (App. 3a)

The question of whether the Ecumenical Patriarchate has the

power to approve the 2003 Charter without approving the

separate amendments accompanying the 2003 Charter is

purely an ecclesiastical matter that the Ecumenical

Patriarchate is entitled to determine without interference from

the courts. See First. Presbyterian Church v. United

Presbyterian Church, 62 N.Y.2d 110, 117, 464 N.E.2d 454,

458, 476 N.Y.S.2d 86, 90 (1984) (affirming dismissal of

claims relating to right of local church to withdraw from the

Presbytery because “the determination required an

examination and interpretation of the authority of the

4. Plaintiffs concede, as they must, that the Greek Orthodox

Church is hierarchical. (Pet. 23)

10

Presbytery to permit or prevent withdrawal of a local church.”);

Kedroff, 344 U.S. at 115 (holding right of Archbishop to use

and occupy cathedral was “strictly a matter of ecclesiastical

government” and could not be constitutionally impaired by state

statute).

This Court’s decision in Milivojevich, which Petitioners

all but ignore, is squarely on point and dispositive, as the

Appellate Division correctly held. In Milivojevich, the Holy

Assembly of the Serbian Orthodox Church (the “Mother

Church”) — also an Eastern Orthodox church — reorganized

one Diocese (the American-Canadian Diocese) into three

Dioceses and later removed and defrocked a bishop of the church

who refused to recognize this Diocesan reorganization.

Milivojevich, 426 U.S. at 703-05. A Diocesan Council of the

American-Canadian Diocese submitted the proposed Diocesan

reorganization to the Diocesan National Assembly, which issued

a resolution repudiating the division of the Diocese into three

Dioceses. Jd. at 705. The defrocked bishop sued, seeking to

enjoin the Mother Church from interfering with the assets of

the Diocese (a religious corporation) and to have himself

declared the true Diocesan Bishop. /d. at 706-07. The Illinois

Supreme Court ruled that the bishop’s removal was “arbitrary”

because it was not done in conformity with that court’s

interpretation of the Church’s constitution and penal code, and

that the Diocesan reorganization exceeded the scope of the

Mother Church’s authority to effectuate such changes without

Diocesan approval. /d. at 708.

The United States Supreme Court overturned the decision,

ruling that no court can make such a determination once it is

conceded that the challenged action was taken by the highest

ecclesiastical tribunal of a hierarchical church. /d. at 708.

The fallacy fatal to the judgment of the Illinois

Supreme Court is that it rests upon an impermissible

1]

rejection of the decisions of the highest ecclesiastical

tribunals of this hierarchical church upon the issues

in dispute, and impermissibly substitutes its own

inquiry into church polity and resolutions based

thereon of those disputes. Consistently with the First

and Fourteenth Amendments “civil courts do not

inquire whether the relevant (hierarchical) church

governing body has power under religious law (to

decide such disputes). .. . Such a determination .. .

frequently necessitates the interpretation of

ambiguous religious law and usage. To permit civil

courts to probe deeply enough into the allocation of

power (within a hierarchical) church so as to decide

... religious law (governing church polity) . .. would

violate the First Amendment in much the same

manner as civil determination of religious doctrine.”

Id. at 708-09 (quoting Md. & Va. Churches v. Sharpsburg

Church, 396 U.S. 367, 369 (1970) (Brennan, J., concurring)).

The Supreme Court ruled that the Illinois Supreme Court

impermissibly substituted its interpretation of the Diocesan

and Mother Church constitutions for that of the church’s

highest ecclesiastical tribunals “in which church law vests

authority to make that interpretation.” Jd. at 721.

We will not delve into the various church

constitutional provisions relevant to this

conclusion for that would repeat the error of the

Illinois Supreme Court. It suffices to note that the

reorganization of the Diocese involves a matter

of internal church government, an issue at the core

of ecclesiastical affairs; Arts. 57 and 64 of the

Mother Church constitution commit such

12

questions of church polity to the final province

of the Holy Assembly.°

Id. (emphasis added). Even decisions of the highest authority

of a hierarchical church that appear arbitrary (and there is no

allegation that the Charter revisions here were arbitrary) must

be respected by the courts. Milivojevich, 426 U.S. at 713-15

(rejecting any “arbitrariness” exception to the rule that “a

civil court must accept the ecclesiastical decisions of church

tribunals as it finds them”).

Here, the Holy Synod of the Ecumenical Patriarchate

has determined that it has the power to grant the 2003 Charter

without approving certain requested amendments. Nothing

in the 1977 Charter or the Special Regulations prevents it

from doing so. (See 1977 Charter, Art. XXIV) Indeed, the

power to decide ecclesiastical matters that are not explicitly

stated in the Charter or regulations is expressly reserved to

the Ecumenical Patriarchate, which is the supreme governing

authority of the Greek Orthodox Church. (/d., Art. I)

Moreover, the 1977 Charter itself recites that the Ecumenical

Patriarchate modified that Charter prior to granting it, further

underscoring the Ecumenical Patriarchate’s historical power

to do so. (/d., Art. XXIII) Petitioners cannot have a civil court

impose an interpretation of the 1977 Charter directly

contradictory to the Ecumenical Patriarchate’s interpretation

(at the behest of only a handful of the million parishioners,

in a case being prosecuted for a third-party intermeddler, the

OCL). The courts simply do not have authority to determine

for churches how they organize the titles to be bestowed upon

their clerics, the ecclesiastical jurisdiction of their

archbishops, and the other matters raised in this case.

5. Like the Ecumenical Patriarchate of the Greek Orthodox

Church, the Holy Assembly is the highest authority of the Serbian

Orthodox Church. See Milivojevich, 426 U.S. at 699.

13

Petitioners do not criticize or seek to overturn

Milivojevich, nor do they assert that the lower court

misapplied Milivojevich. Moreover, Petitioners concede that

the revisions to the Charter are “of a purely ecclesiastical

character.” (Pet. 23, n.14) Petitioners’ discussion of

Milivojevich is limited to a single sentence in which they

weakly attempt to distinguish it, asserting that this case,

unlike Milivojevich, “does not require a state court to

undertake any inquiry into religious law in order to determine

the validity of a canonical decision by a church tribunal to

divest a bishop of his Episcopal and monastic rank because

of his ‘open defiance and rebellion against the church

hierarchy.’” (Pet. 8-9) Petitioners misrepresent Milivojevich.

As here, in Milivojevich, the church’s highest authority made

certain decisions concerning the internal governance of a

hierarchical church; those decisions were not solely

“canonical” and were not limited to defrocking a defiant

bishop, as Petitioners suggest. Indeed, Petitioners here

specifically challenge a provision of the 2003 Charter

addressing the determination of diocesan boundaries, the

matter squarely at issue in Milivojevich. Furthermore, in

Milivojevich, as here, the church’s decisions were challenged

on the ground that they were made in violation of the

procedural provisions of the church’s constitution, not the

church’s “religious law,” and the resolution of the controversy

would require the court to substitute its own interpretation

of that governance document for that of the church’s highest

ecclesiastical authority (here, the Ecumenical Patriarchate).

Petitioners also suggest that only matters of doctrine and

faith are ecclesiastical, (Pet. 7 (“[T]he narrow focus of this

case is not on any ecclesiastical issue of doctrine or canonical

discipline.” (emphasis in original)), ignoring numerous

Supreme Court decisions holding that matters of internal

church governance are also ecclesiastical. Milivojevich, 426

U.S. at 713; Kedroff, 344 U.S. at 116; Watson v. Jones, 80

14

U.S. 679, 732-33 (1871) (“a matter which concerns

theological controversy, church discipline, ecclesiastical

government, or the conformity of the members of the church

to the standard of morals required of them” is a matter “over

which the civil courts exercise no jurisdiction”) (emphasis

added).

2. The Appellate Division Correctly Ruled That

The “Neutral Principles Of Law” Doctrine

Does Not Apply

Contrary to Petitioners’ contention, this dispute cannot

be resolved by reference solely to “neutral principles of law.”

See Jones v. Wolf, 443 U.S. 595, 602-03 (1979); Presbyterian

Church in the U.S. v. Mary Elizabeth Blue Hull Memorial

Presbyterian Church, 393 U.S. 440, 449 (1969). Under the

neutral principles of law doctrine, a court can review such

secular documents as deeds, certificates of incorporation, by-

laws and relevant state statutes when resolving a property

dispute or purely secular matter. First Presbyterian Church,

62 N.Y.2d at 121, 464 N.E.2d at 460, 476 N.Y.S.2d at 93

(1984). If in the course of a neutral principles of law analysis,

a question of religious doctrine or canon law arises, the Court

must accept as binding the ruling of the highest ecclesiastical

body on that issue. Jones, 443 U.S. at 604.

The “neutral principles of law” doctrine does not apply

because the revision of the Charter that forms the basis of

the Complaint does not involve any church property or other

secular matter, as the Appellate Division correctly held.

See First Presbyterian Church, 62 N.Y.2d at 121, 464 N.E.2d

at 460, 476 N.Y.S.2d at 93; Milivojevich, 426 U.S. at 720

(court must accept as binding the decision of a hierarchical

church that has only an “incidental effect” on property).

Instead, the Charter revisions indisputably pertain to matters

of purely internal governance, including elevating

15

the dioceses to “Metropolises” and the bishops to

“Metropolitans,” setting the eligibility criteria for future

Archbishops, and specifying procedures for filling vacancies

in the office of Archbishop or Metropolitan.

Moreover, Petitioners cannot point to any provision of

the 1977 Charter that has been violated, and to which the

Court could apply neutral principles of law. Petitioners’ claim

that the 2003 Charter is invalid rests upon the self-serving

and utterly false allegation that the 1977 Charter prohibits

the Ecumenical Patriarchate from modifying a proposed

Charter before granting it. Article XXIV of the 1977 Charter

contains no such prohibition:

The charter herein may be revised upon the request

of the Archdiocesan Clergy-Laity Congress as the

need therefore arises. Revisions thereto shall be

submitted to the Ecumenical Patriarchate for

approval and ratification.

(App. 20a) Thus, the Ecumenical Patriarchate (who granted

the 1977 Charter) has simply granted permission to the

Clergy-Laity Congress to request changes to the charter,

which request is subject to the Ecumenical Patriarchate’s

approval. The only prohibition is that the Clergy-Laity

Congress cannot revise the Charter without the approval of

the Ecumenical Patriarchate. Contrary to Petitioners’ unstated

premise, the Ecumenical Patriarchate is not a “rubber stamp”

who must approve a requested charter, and do so in its

entirety.

Petitioners also ignore the fact that the 1977 Charter

expressly recognizes the power of the Ecumenical

Patriarchate, as the supreme authority, to modify a proposed

charter; the 1977 Charter was itself modified by the

Ecumenical Patriarchate prior to being granted: “(The 1977

16

Charter] was submitted to the Ecumenical Patriarchate which

has studied, modified it, and granted it in its present form to

the Archdiocese.” (1977 Charter, Art. XIII (emphasis added))

Petitioners further ignore that all canonical and ecclesiastical

matters not addressed by the Charter are expressly governed

by the decisions of the Ecumenical Patriarchate. (/d., Art. I)

Therefore, any determination concerning the power and

authority of the Ecumenical Patriarchate would necessarily

require this Court to consider seventeen hundred years of

church history and make factual findings concerning the

Ecumenical Patriarchate’s historical power and authority over

the institutions of the church. This is precisely what the

Constitution prohibits, as this Court has held on numerous

occasions. See Milivojevich, 426 U.S. at 713; Kedroff, 344

U.S. at 116; Watson v. Jones, 80 U.S. at 732-33.

To understand the extent to which Petitioners’ complaint

is addressed to ecclesiastical, rather than secular, matters,

one need only consider how Petitioners would enforce a

judgment against the Archdiocese. The Petitioners would

somehow have to compel the Archdiocese to remove all

signage bearing the words “metropolis” and bar priests and

others from addressing Bishops as Metropolitans. The court

would need to set aside, and then determine for itself, the

appropriate jurisdictional boundaries of a particular Diocese,

set aside the election of an Archbishop or Metropolitan, and

determine for the Archdiocese the criteria for elevating priests

and for overseeing monasteries. These are precisely the kind

of entanglements with religious affairs that the First and

Fourteenth Amendments forbid. Even more disturbing, the

Complaint asks a civil court to compel the clergy of the

Archdiocese to disobey the directives of the Ecumenical

Patriarchate on these purely ecclesiastical matters, placing

them at risk of being defrocked.

Apparently recognizing that, under the First Amendment,

Petitioners cannot ask a court to so govern a church,

17

Petitioners on appeal purported to “abandon” their claim for

injunctive relief. An appellate court is not the appropriate

venue for amending pleadings. Nonetheless, Petitioners’

abandonment leaves a claim for an impermissible advisory

opinion and, therefore, is not justiciable.

B. The Appellate Division’s Decision Does Not

Conflict With Decisions Of The State Appellate

Courts

Contrary to Petitioners’ contention, the decision below

does not conflict with the decisions of other state appellate

courts. Petitioners cite a litany of cases for the unremarkable

proposition that courts may inspect church charters or

constitutions and by-laws. (Pet. 11-12, n.4) Petitioners,

however, ignore that the vast majority of those cases involved

church property disputes in which the court properly applied

the neutral principals of law doctrine to determine ownership

of the property.° It is well established that civil courts may

6. Trinity Presbyterian Church v. Tankersley, 374 So. 2d 861,

866 (Ala. 1979) (“In this case, the issues involved clearly dealt with

property ....”); Arkansas Presbytery of the Cumberland Presbyterian

Church v. Hudson, 344 Ark. 332, 334, 40 $.W.3d 301, 303 (2001)

(action to quiet title); Presbytery of Riverside v. Community Church

of Palm Springs, 90 Cal. App. 3d 910, 914-915, 152 Cal. Rptr. 854,

856 (1979) (action for “ejectment, recovery of property, quiet title

and damages”); Protestant Episcopal Church v. Barker, 115 Cal.

App. 3d 599, 604, 171 Cal. Rptr. 541, 542-43 (1981) (dispute over

title to church property); Korean United Presbyterian Church of Los

Angeles v. Presbytery of the Pacific, 230 Cal. App. 3d 480, 485-86,

281 Cal. Rptr. 396, 398 (1991) (dispute over ownership, use and

control of church property); California-Nevada Annual Conference

of the United Methodist Church v. St. Luke's United Methodist

Church, 121 Cal. App. 4th 754, 761, 17 Cal. Rptr. 3d 442, 448 (2004)

(“We should note here, for purposes of clarity, that the parties agreed

that the subject of the litigation was the St. Luke’s real property

....”); Bishop and Diocese of Colorado v. Mote, 716 P.2d 85, 87

(Cont'd)

18

(Cont'd)

(Colo. 1986) (“dispute over the control of the real and personal

property of St. Mary’s Church in Denver”); Rector, Wardens and

Vestrymen v. Episcopal Church, 224 Conn. 797, 799, 620 A.2d 1280,

1281 (1983) (“This appeal involves a dispute over the ownership of

church property .. . .”); East Lake Methodist Episcopal Church,

Inc. v. Trustees of the Peninsula-Delaware Annual Conference of

the United Methodist Church, Inc., 731 A.2d 798, 800-01 (Del. 1999)

(“In this appeal . . ., we examine the legal standards that govern

disputes over church property between local congregations and

general ecclesiastical authorities.”); Crumbley v. Solomon, 243 Ga.

343, 343, 254 S.E.2d 330, 332 (1979) (“This court is again confronted

with the difficult task of resolving a church property dispute.”); Jones

v. Wolf, 241 Ga. 388, 388, 260 S.E.2d 84, 84 (1979) (dispute over

control and use of church property); Reddick v. Jones, 251 Ga. 195,

196, 304 S.E.2d 389, 391 (1983) (“This church dispute involves

property rights . . . .”); First Born Church of the Living God, Inc. v.

Bank South, N.A., 221 Ga. App. 739, 739, 472 S.E.2d 469, 470 (1996)

(“dispute as to who was authorized to control certain [church] bank

accounts”); Srisovana v. Cambodian Buddhist Soc., Inc., 269 Ga.

App. 600, 602, 604 S.E.2d 637, 640 (Ga. App. 2004) (“disputes

involving a nonprofit corporation’s board of directors as well as the

disposition of church property by that board”); York v. First

Presbyterian Church, 130 Ill. App. 3d 611, 612, 474 N.E.2d 716,

717 (1984) (“The central controversy involves the ownership and

control of the property of Anna Church.”); Grace Evangelical

Lutheran Church vy. Lutheran Church-Missouri Synod, 118 lil. App.

3d 151, 154, 454 N.E.2d 1038, 1041 (1983) (dispute involving right

to purchase rea! property); Bjorkman v. Protestant Episcopal Church

in the United States of America, 759 S.W.2d 583, 584 (KY 1988)

(dispute “as to the ownership of the church property”); Mount Gideon

Baptist Church, Inc. v. Robinson, 812 So. 2d 758, 764 (La. App.

2002) (dispute between two rival factions over control of church,

and therefore church property); Babcock Memorial v. Presbytery of

Baltimore, 464 A.2d 1008, 575 (Md. 1983) (“In this case involving

a dispute as to ownership and control of church property .. . .” );

Calvary Presbyterian Church v. Presbytery of Lake Huron, 148 Mich.

App. 105, 109, 384 N.W.2d 92, 93 (1986) (dispute over “ownership

of real property”); Benninson v. Sharp, 121 Mich. App. 705, 709,

(Cont'd)

19

apply neutral principles of law to decide church property

disputes. See Jones v. Wolf, 443 U.S. at 602-03. As Petitioners

concede, however, this case “involves no dispute over

property.” (Pet. 19)

Four cases cited by Petitioners in footnote 4 did not

involve a church property dispute. In two of those cases, the

intermediate state appellate courts applied the rule of judicial

deference from Milivojevich and held that the controversy

was not justiciable because it required an impermissible

inquiry into matters of church governance.’ One case

(Cont'd)

329 N.W.2d 466, 468 (1983) (“This is a church property dispute

....”); Shepherd of the Valley Lutheran Church v. Hope Lutheran

Church, 626 N.W.2d 436, 441 (Minn. Ct. App. 2001) (“{W]e may resolve

the property dispute between SOTV and Hope Lutheran Church by

applying neutral principles of law.”); Shirley v. Christian Episcopal

Methodist Church, 748 So. 2d 672, 674 (Miss. 1999) (dispute involving

“title, use and possession of the church property, both real and personal”);

Presbytery of Elijah Parish Lovejoy v. Jaefggi, 682 S.W.2d 465, 466

(Mo. 1984) (“The principal adversaries in this church property dispute

....”); Tea v. Protestant Episcopal Church, 96 Nev. 399, 400, 610 P.2d

182, 182 (1980) (“This is a declaratory judgment action to determine

title to church property.”); Protestant Episcopal Church v. Graves, 83

N.J. 572, 573, 417 A.2d 19, 20 (1981) (“This case involves a dispute

over control of local church property.”); Presbytery of Beaver-Butler of

United Presbyterian Church v. Middlesex Presbyterian Church, 507

Pa. 255, 257, 489 A.2d 1317, 1318 (1985) (“This is a dispute over the

ownership of church property.”); First Presbyterian Church of

Schenectady v. United Presbyterian Church in the United States, 62

N.Y.2d 110, 114, 464 N.E.2d 454 (1984) (dispute over “use and

enjoyment of the local church property”).

7. Basich v. Board of Pensions, Evangelical Lutheran Church,

540 N.W.2d 82, 86 (Minn. Ct. App. 1995) (pastors’ claims against church

for breach of contract and breach fiduciary duty were non-justiciable

under the First Amendment); Singleton v. Christ the Servant Evangelical

Lutheran Church, 541 N.W.2d 606, 611 (Minn. Ct. App. 1996) (pastor’s

claims against church for breach of contract, wrongful discharge and

promissory estoppel were non-justiciable under the First Amendment).

20

addressed the authority of a church board to ratify a contract

with building contractor, a purely secular matter. Chimney

Ville Missionary Baptist Church of Garland v. Johnson, 665

So. 2d 730 (La. App. 1995). In the fourth case, the court

awarded specific performance of a marriage contract that

required the husband to appear before a rabbinical tribunal

so that his wife could obtain a decree of divorce under Jewish

law. See Avitzur v. Avitzur, 58 N.Y.2d 108 (1983). That case,

however, did not involve a decision from the highest authority

of a hierarchical church, nor did it involve the interpretation

of a church’s constitution or charter. Petitioners have not cited

any case in which a court reviewed a constitution or charter

of a hierarchical church to determine matters of church

governance.

Petitioners elevate form over substance in focusing on

the nature of the document and insisting that courts can

interpret church constitutions for any purpose whatsoever.

The nature of the document is not determinative; it is the

nature of the dispute that determines whether judicial review

of a church constitution is permissible. Thus, that some courts

have reviewed church constitutions in church property

disputes is irrelevant. A property dispute is secular; a

governance dispute is ecclesiastical. Thus, Petitioners’ church

property cases are not in conflict with the Appellate

Division’s decision.

C. The State Appellate Courts Are Not Divided On

The Issue Of Church Autonomy

Petitioners chide this Court for “nearly three decades of

inattention” to church autonomy issues that has led to “utter

incoherence” and a “welter of confusion” in the state courts

“over what to do when a local congregation leaves the

national body.” (Pet. 13, 15) That issue, however, is not

presented here. No local parish in the Greek Orthodox church

has left the Archdiocese, and there is no dispute regarding

21

the legal or beneficial title to any church property. Thus, even

if the state appellate courts were divided (and they are not),

this case does not present the facts necessary to resolve the

issue.

Regardless, the state appellate courts are not “sharply

divided,” as Petitioners assert. (Pet. 13) Petitioners draw a

false dichotomy between two types of church property cases:

those that award the property to a local church, and those

that award the property to a national church. The differences

in Outcomes in these-church property cases, however, are

entirely attributable to differences in the facts of each case.

Indeed, Petitioners fail to point to any misapplication of a

legal principle by any court, but merely focuses on the

divergent results.

Petitioners’ unstated premise is that application of neutral

principles of law should always yield the same result, i.e.,

that property ownership should always be awarded to either

the local church or the national church. The application of

the doctrine, however, requires a review of secular

documents, such as deeds and contracts, to determine

ownership of property. Those facts differ from case to case.

Thus, in Presbytery of Beaver-Butler, the Pennsylvania

Supreme Court faithfully applied the neutral principles of

law doctrine and ruled that the property belonged to the local

church because the local church held record title and there

was no equitable trust in the property created in favor of the

national church. 507 Pa. at 268-69, 489 A.2d at 1324. In

Babcock Memorial Presbyterian Church, the Maryland

Supreme Court ruled that the church property belonged to

the national Presbytery because that church’s rules prohibited

the local church from alienating its property without

permission of the Presbytery. 464 A.2d at 1017. It is hardly

“anyone’s guess” how these church property disputes will

be determined, as Petitioners cavalierly assert. (Pet. 16) For

22

state courts applying neutral principles of law, the outcome

will depend on the application of weil established property

law to the facts of each case.

As Petitioners note, when deciding property disputes

within a hierarchical church, some states have applied a rule

of compulsory deference to the decisions of the hierarchy

first articulated in Watson, rather than the neutral principals

of law doctrine. See, e.g., Benninson v. Sharp, 121 Mich.

App. 705, 725, 329 N.W.2d 466, 475 (1983) (noting that

outcome would be the same under neutral principals approach

as under polity approach); Protestant Episcopal Church v.

Graves, 83 N.J. 572, 577-80, 417 A.2d 19, 22-24 (1981)

(noting that there are two generally accepted approaches to

resolving church property disputes, the hierarchical ( Watson)

approach and the neutral principles of law approach, and

applying hierarchical approach in absence of evidence of

express trust). But those cases are consistent with Jones v.

Wolf, which endorsed the neutral principals approach but

refused to require states to apply a single approach. “‘[A]

State may adopt any one of various approaches for settling

church property disputes so long as it involves no

consideration of doctrinal matters, whether the ritual and

liturgy of worship or the tenets of faith.’” Jones v. Wolf, 443

U.S. at 602 (quoting Maryland & Virginia Eldership of the

Churches of God v. Church of God at Sharpsburg, Inc. , 396

U.S. 367, 368 (1970) (Brennan, J., concurring)).®

Thus, the state court church property decisions are not

“incoherent”; they are remarkably clear and consistent in their

application of Milivojevich, Jones v. Wolf, and other Supreme

Court cases. They uniformly adhere to the general rule that

hierarchical churches may decide for themselves which entity,

8. The New York State Court of Appeals has adopted the neutral

principles of law approach. See First Presbyterian Church, 62 N.Y.2d

at 121, 464 N.E.2d at 460, 476 N.Y.S.2d at 93 (1984).

23

local or national, will own church property and how that

property will be treated in the event a local parish breaks

from the national church.

Nor has this Court been “inattenti[ve}]” to church

autonomy issues. This Court has addressed these issues on

numerous occasions. See, e.g., Jones v. Wolf, 443 U.S. 595 _

(1979); Serbian Eastern Orthodox Diocese for the United

States of America and Canada v. Milivojevich, 426 U.S. 696,

710 (1976); Maryland & Virginia Eldership of the Churches

of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367

(1970); Presbyterian Church v. Mary E. B. Hull Memorial

Presbyterian Church, 393 U.S. 440 (1969); Kedroff v. St.

Nicholas Cathedral of Russian Orthodox Church, 344 U.S.

94 (1952); Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871).

The state courts have applied these decisions consistently

and fairly, demonstrating that no review is warranted here.

Although Petitioners allude to other petitions for certiorari

that have presented issues of “great moment,” none are

identified. (Pet. 22). The Court need not reexamine settled

principles of law merely because the case law has reached a

certain age.

D. The Appellate Division Did Not Intrude Into

Religious Matters |

Petitioners take issue with the Appellate Division’s

conclusion that “if this case were to proceed further, a trial

court would ultimately be required to decide whether the

Ecumenical Patriarch had authority unilaterally to grant a

charter to defendant in 2003 — clearly, a religious matter.”

(Pet. 24 (quoting App. 3a)) Petitioners concede that this

question “is indeed a religious matter.” (/d.) They suggest,

however, that such a decision might be unnecessary because

the parties “might readily reach accord.” (/d.) Idle speculation

that the parties might settle is not a reason to set aside the

24

First Amendment. Next, Petitioners assert that this statement

“completely overlooks the fact that the CLC has no

jurisdiction whatever over doctrinal or canonical matters of

the church.” (Pet. 24) That argument is a non-sequitur.; the

Appellate Division’s statement concerned the Ecumenical

Patriarchate’s power, not the CLC’s jurisdiction.

Petitioners argue that the court improperly “enter[ed] the

theological thicket” by concluding that the Greek Orthodox

church is hierarchical, and proceed to lecture on the subtle

differences in church governance between different

hierarchical churches. (Pet. 25, n.15) Petitioners, however,

concede that the Greek Orthodox church is hierarchical. (Pet.

23 (“We have never disputed the fact that the church is

hierarchical, which has not ever been at issue.”)) Petitioners’

contention is, therefore, puzzling.

Petitioners also misinterpret the Appellate Division’s

decision, arguing that the court made a “naive and

provocative theological judgment that the hierarchical nature

of a church excuses it from its contractual or corporate

obligations.” (Pet. 24-25) The Appellate Division did not so

rule. The court merely held that an inquiry into ecclesiastical

matters of internal church governance is not justiciable.

Repeatedly denigrating the Appellate Division does not

advance Petitioners’ position: there is nothing “naive” or

“amateurish” about the court’s ruling, nor did the court

proceed “with blinders on.” (Pet. 24, 26) The court’s ruling

is entirely consistent with the settled law of this Court.

E. The Appellate Division Correctly Rejected

Petitioners’ “Impairment of Contract” Argument

Petitioners also argue that the Appellate Division’s

decision discriminates on the basis of religion. (Pet. 27)

According to Petitioners theory, because the Archdiocese’s

25

constitution is a form of a contract, the court must interpret

that contract regardless of the ecclesiastical nature of its

provisions or the effect of such interpretation on the internal

governance of a religious organization.

Petitioners’ argument is frivolous. Petitioners cite no

authority to support their incorrect contention that contract

law trumps the First Amendment’s prohibition on

governmental interference in ecclesiastical matters. To the

contrary, Milivojevich is controlling. As discussed above, the

Milivojevich court expressly refused to interpret the

constitutions of the Diocesan and Mother Church, the same

alleged “contract” at issue here. Milivojevich, 426 U.S. at

721 (“We will not delve into the various church constitutional

provisions relevant to this conclusion for that would repeat

the error of the Illinois Supreme Court.”). Furthermore, the

proposition that any church governance document is subject

to judicial interpretation because it is a contract is absurd.

The law is just the opposite; courts are not entitled to

adjudicate ecclesiastical matters, even those that involve

contracts. 7

Contrary to Petitioners’ dire predictions, the Court’s

abstention from determining ecclesiastical matters would not

result in “dismissal of virtually all cases brought against a

hierarchical church.” (Pet. 29) The Archdiocese has not

asserted, nor did the court below find, that the Archdiocese’s

commercial contracts with third parties are shielded from

judicial review. The First Amendment bars review of

ecclesiastical matters, not commercial transactions.

Moreover, because the Greek Orthodox Church is

hierarchical, all adherents consent to be governed by the

hierarchy’s interpretation of its own governance documents.

As the Watson court put it:

All who unite themselves to such a body do so

with an implied consent to this government, and

26

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

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.

80 U.S. at 729. Indeed, it is remarkable to argue that the

United States Supreme Court’s prohibition under

Milivojevich discriminates against religious claimants. (Pet.

27) To the contrary, it protects religious organizations from

the disgruntled few who, dissatisfied with the decisions of

church leaders, run to the civil courts in an effort to impose

their views on the church and all other parishioners.

CONCLUSION

For the foregoing reasons, Respondent respectfully

requests that this Court deny the petition.

Respectfully submitted,

GLENN M. Kurtz

Counsel of Record

CHRISTOPHER J. GLANCY

Wuite & Case Lip

1155 Avenue of the Americas

New York, New York 10036-2787

(212) 819-8252

Attorneys for Respondent