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Citation:
Mary R. Jensen, Crisis or Planning:
Inter-Jurisdictional Merger of Orthodox Christian
Parishes, 10 Duq. Bus. L.J. 19 (2008)

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 Crisis or Planning: Inter-Jurisdictional Merger of
Orthodox Christian Parishes
Mary R. Jensen

INTRODUCTION

The Orthodox Christian Church is facing a critical test of its

ability to adapt to existence in the United States. Changing eco-
nomic and population trends, combined with the idiosyncratic or-
ganizational structure of the Orthodox Church, has created the
following unfortunate situation. Dying parish communities that
attempt merger with other local Orthodox parishes may be ob-
structed and penalized financially by the very Church organizing
documents' and governing bodies which should be helping them.
This crisis could and should be averted by proper planning and
thoughtful amendment of Orthodox Church organizing documents.
Two examples here illustrate the broader need. In 1930, the
Pennsylvania steel towns of Monessen and Ambridge were thriv-
ing communities, with populations of 20,268 and 20,227, respec-
tively. 2 Today, those populations have fallen by 57% and 65% to
8,669 in Monessen and 7,769 in Ambridge. 3 Not surprisingly, this
dramatic drop in population has had an equally negative effect
upon population of the numerous Orthodox parishes in those
communities. This article addresses this demographic change,
which is one-half of the challenge faced by Orthodox parishes,
while the history and organizational structure of the parishes cre-
ates the other half.
Historically, Monessen and Ambridge were supported by the
steel mills, and the mills were fueled largely by first and second
generation immigrant labor. Many of these laborers were of East-
ern European background or descent, and a large percentage of
them were Eastern Orthodox Christians. 4 As these immigrants

1. These documents include constitutions, bylaws, etc. for the various Orthodox juris-
dictions in the United States.
2. Southwestern Pennsylvania Commission, Municipal Population Tables, available at
http://www.spcregion.org/data-datalib-munpop.shtml.
3. Id.
4. THOMAS E. FITZGERALD, THE ORTHODOX CHURCH 28 (1995).
 Duquesne Business Law Journal Vol. 10

came from Greece or Russia, Romania or Serbia, each group

looked to the Orthodox hierarchy of their homeland for religious
support and structure. 5 As a result, rather than forming a cohe-
sive national church in the United States, the Orthodox Church is
comprised of overlapping ethnically-based jurisdictions. 6 For ex-
ample, in Ambridge there are four Orthodox Churches, one each
for the Orthodox Church in America (Russian), the Ukrainians,
the Carpatho-Russians and the Greeks. A similar situation exists
in Monessen, where four churches serve individual congregations
in the Ukrainian, Antiochian, Greek and Orthodox Church in
7
America dioceses.
Although this divided structure is canonically irregular, as will
be explained in Part II of this article, the division functioned until
the mills began to close, and the declining steel town populations
and worker migration emptied the churches. Today, some of the
congregations in Ambridge and Monessen have only a handful of
active members. One option for parish survival would be to merge
one or more parishes. Unfortunately, most parish and diocesan
bylaws are written so that such a merge would automatically trig-
ger a reversion of all the parish property8 back to the governing
jurisdiction. Naturally, most or all of these parishes would prefer
not to lose property that could contribute to a successful merger.
This article will explore this issue, in light of both U.S. law and
Church history, and suggest two important guidelines to facilitate
a successful merger. Part I gives a brief overview of the structure
of the Orthodox church in the United States by reviewing both the
history of Orthodox immigration and examining the general struc-
ture of the contemporary Church. Part II traces the history of
leading church property cases in the United States Supreme Court
and explains the U.S. Supreme Court's two suggested approaches
for resolving such cases. Part III looks at how specifically Ortho-
dox Church property cases have been resolved in the U.S. courts.
Finally, Part IV gives both guidelines for and hypothetical exam-

5. NICHOLAS FERENCZ, AMERICAN ORTHODOXY AND PARISH CONGREGATIONALISM

(2006).
6. RONALD ROBERSON, THE EASTERN CHRISTIAN CHURCHES: A BRIEF SURVEY (6th
Edition 1999). There are currently 32 Orthodox Jurisdictions represented in the United
States. Id.
7. The words "diocese," "jurisdiction," and "metropolis" are used interchangeably in
this paper to refer to the administrative structure overseeing multiple parishes.
8. The reversion would affect both real and personal property, as well as all bank
accounts and negotiable securities owned in the name of the parish.
2008 Crisis or Planning

ples as to how two parishes might merge across jurisdictional

lines.

I. STRUCTURE OF THE ORTHODOX CHURCH

Understanding the historical growth of the Orthodox Church is

important to resolving the merger issue for three reasons. First,
the pattern of Church growth in the United States produced the
organizational duplication of demographically-based Orthodox
jurisdictions (i.e., Russian, Greek, etc.) which created in turn the
current need for parish mergers. Second, past inter-jurisdictional
conflict and parish movement between jurisdictions led to the re-
strictions on parish autonomy that are part of many of the
Church's organizing documents. Finally, these conflicts have also
given rise to a fairly extensive history of civil litigation between
U.S. Orthodox parishes and their jurisdictional leadership, a point
that will be developed further in Part II of this article.

A. ORTHODOX CHURCH STRUCTURE IN THE OLD WORLD

The early Christian Church was not organized demographically,

i.e., by ethnic origin or social class, but geographically, based on
the population centers of the ancient world. 9 By the end of the
fourth century, the early Christian Church was loosely organized
into city-based churches with a single bishop presiding over the
city church, assisted by presbyters who served the smaller
churches that met in nearby towns and villages.10 The Church
affirmed this "one bishop, one city" organizational structure in
both practice and in the canons.1 1
From the fourth to the eighth centuries, Church structure con-
tinued to evolve until it reached the structure most modern Chris-
tians recognize as a diocese: a number of geographically proximate
parish assemblies served by priests, overseen by a bishop.1 2 Dur-
ing this time, the bishops had the ultimate control over church
property, although presbyters could sell property with the consent
of the bishop.1 3 The laity were expressly forbidden from exercising

9. TIMOTHY WARE (Bishop Kallistos of Diokleia), THE ORTHODOX CHURCH 13 (revised

1997).
10. FERENCZ, supra note 5, at 22-23.
11. Nicea 8 (R175-76) is the main canon. (Cited in FERENCZ, supra note 5, at 31).
12. WARE, supra note 8, at 13.
13. FERENCZ, supranote 5, at 40 (citing Canon 15 of The Council of Ancyra in 314 AD).
 Duquesne Business Law Journal Vol. 10

authority over church property. 14 Post-schism, 15 the Orthodox

Churches generally retained this basic geographic diocesan struc-
ture (overlaid by a nationally-based structure of patriarchates or
bishops' counsels) although the prohibition against lay authority
over Church property was not universally enforced. 16

B. THE U.S. DIASPORA

The development of the Church in America is unique in the his-

tory of the Orthodox Church in that its structure is based on
demographics, rather than geography. 17 For the first time,
Church growth did not proceed primarily through conversion of
entire populations, but in a varied and piecemeal fashion. This
growth was further complicated by several waves of large scale
conversions, where multiple, relatively-intact parishes from an-
other faith joined an Orthodox jurisdiction.1 8 As mentioned previ-
ously, a basic knowledge of the history of the Orthodox Church in
the U.S. is essential to understanding the current jurisdictional
structures which form the backdrop for the property questions
examined in this article.
The Russian Orthodox Church was the first to enter the New
World, through missionaries who followed Russian exploration of
Alaska in the 1740's.19 In 1870, the Russian Synod of Bishops es-
tablished a separate Diocese of Alaska. 20 Around the same time,
isolated Orthodox parishes were being formed in the continental
U.S. states by immigrant Orthodox laity. 2 1 Originally, these par-
ishes were pan-Orthodox, comprised of Greeks, Russians and
Serbs. 22 They obtained clergy by requesting a priest either from
the Diocese of Alaska or directly from Russia, Greece or Bul-
garia. 23

14. II Nicea 12 (R441-442) (Cited in FERENCZ, supra note 5, at 41).

15. The Great Schism of 1054 resulted in a split between the Catholic Churches of the
West, united under the Roman Pontiff, and the Orthodox Churches of the East, united in a
more conciliatory manner through Patriarchates centered in various Orthodox lands.
16. FERENCZ, supra note 5, at 46-47. There were occasional exceptions, such as Tsar
Peter the Great. Id.
17. WARE, supra note 8, at 174.
18. The first was comprised of Byzantine Catholic parishes in the 1930s and the most
recent of Evangelical Christian churches in the 1980s.
19. FITZGERALD, supra note 4, at xi.
20. Id. at 20-21.
21. These parishes were formed in Galveston in 1862 in New Orleans in 1964, and in
San Francisco in 1867. FERENCZ, supra note 5, at 116-18.
22. Id.
23. Id.
2008 Crisis or Planning
During the great immigration period from 1875 to 1920, the Or-
thodox Church experienced its largest growth. 24 Immigrants from
Greece, Russia, and various Arab and Eastern European states
flooded to the U.S., bringing with them their Orthodox faith and a
need for Orthodox parishes. Some, for example, the Greeks,
looked back to their country of origin for clergy to serve in these
new parishes. 25 Others, including many Serbs and Arabs, looked
to the Russian Diocese of Alaska to help them establish parishes. 26
In order to form parishes, they also had to form corporations
under U.S. law in order to acquire land and other property.
Originally, most of these parishes were owned by the congrega-
tions as a corporate entity, not a diocese. Often, these corpora-
tions were outgrowths of ethnically-based fraternal organiza-
tions. 27 As the Orthodox Church structure grew, some of these
parishes were deeded over to the bishop, while newer parishes
were formed directly under diocesan auspices. 28
In the early twentieth century, two things complicated the fledg-
ling growth of the Russian Orthodox Diocese of Alaska (which had
been moved to San Francisco in 1872 and expanded to a Metropo-
lis which encompassed the entire U.S.). First, between 1891 and
1914, approximately 250,000 Byzantine Catholics joined the Rus-
sian Orthodox Metropolis, breaking with the Roman Catholic
Church in an attempt to maintain their Eastern Christian tradi-
tions. 29 Because of their experience with the Roman hierarchy,
these new parishes were extremely leery of bishops and insisted
on ownership of their own parish property. 30 Second, the Commu-
nist Revolution in Russia saw increasing Communist control over
the Synod of the Russian Orthodox Church, along with the birth of
the radical "Living Church," which rejected core Orthodox teach-
ings. In response, the Metropolis split from the Russian Orthodox
Church. In order to protect church property in the U.S., many
31
parish properties were returned to the parishes.

24. FERENCZ, supra note 5, at 119.

25. FITZGERALD, supra note 4, at 25-27.
26. JOHN MEYENDORF, THE ORTHODOX CHURCH 167 (1996). Many Arab hierarchs and
clergy had trained in Moscow, so they were comfortable serving under Russian hierarchs.
FERENCZ, supra note 5, at 164. The Antiochian Archdiocese did not separate from the
Russian Church until 1975. FITZGERALD, supranote 4, at 47.
27. FERENCZ, supranote 5, at 167.
28. FERENCZ, supranote 5, at 121.
29. FITZGERALD, supra note 4, at 29-30.
30. FERENCZ, supranote 5, at 156-57.
31. ORTHODOX AMERICA: 1785-1976, 188 (Constance Tarasar and John Erickson, eds.,
1975). "Throughout the country further protective actions were taken. Properties were
 Duquesne Business Law Journal Vol. 10

Also in the early twentieth century, other divisions and multi-

plicity of jurisdictions began to develop. In 1918, the Holy Synod
of Greece officially created a new diocese of the Autocephalous
Church of Greece, a Greek "Archdiocese of America" to oversee "all
Greek Orthodox of permanent and/or temporary residence in
North and South America. ' 32 In 1926, the U.S. Serbian parishes
moved from the Russian Archdiocese to the authority of the Ser-
bian Orthodox Church. 3 3 The Ukrainian Orthodox Church of the
U.S.A. was formed in 1924. Other, separate groups were formed
by the Bulgarians in 1922, the Romanians in 1923, and the Alba-
nians in 1932. 34 Finally, when a new group of Byzantine Catholics
defected from the Roman Church in the 1930's, they formed their
own jurisdiction under the authority of the Patriarch of Constan-
tinople. 35 Currently, there are more than thirty Orthodox jurisdic-
36
tions within the United States.

C. ORTHODOX PARISH PROPERTY: CONTEMPORARY U.S.

NORMS

In addition to creating overlapping jurisdictional structures, the

American history of laity forming parishes and then sending for
clergy also altered the previously hierarchical structure of the Or-
thodox Church. Today, Orthodox Christians see a balance be-
tween parish and diocese, on both a practical and a theological
level. For example, Metropolitan Maximos (Aghiorigoussis) has
37
stated that "the Church of God is both Parish and Diocese."
Other scholars agree: "In administration, the Orthodox in North
America most closely resemble Protestants." 38 At the same time,
the Orthodox Church retains a strongly hierarchical identity.

sold back to the parish for nominal fees by the bishops; deeds were returned; new trustee-
ships or corporations were set up in the parishes... But such protective actions, though
necessary at the time, could be directed not only against usurpers but against any bishop
whatsoever." Id.
32. FERENCZ, supranote 5, at 134-35.
33. Id. at 138.
34. Id. at 138-39.
35. Id. at 163-64.
36. ROBERSON, supranote 6.
37. Maximos Aghiorigoussis, Metropolitan, The Parish Presbyter and His Bishop: A
Review of the PastoralRoles, Relationship and Authority, 29 ST. VLADIMIR'S THEOLOGICAL
QUARTERLY 55 (1985) (emphasis added).
38. MARK STOKOE AND LEONID KISHKOVSKY, ORTHODOX CHRISTIANS IN NORTH
AMERICA, 1794-1994, 2 (1994). See also, FERENCZ, supra note 5, whose main thesis is that
the American Orthodox Church is hierarchical on the diocesan level and above, as well as
in regards to the spiritual realm of the parish, but congregational in its control of parish
property.
2008 Crisis or Planning

Over the past century, this new and uncertain duality has re-
sulted in parishes attempting to control their own property
through civil suits. With the change in judicial analysis which
will be discussed in the next section, these cases have been in-
creasingly successful in recent decades.
The various Orthodox jurisdictions have responded to the dual-
ity and the resulting suits in slightly differing ways, each reflect-
ing their own political history. 39 Not surprisingly, many of the
jurisdictions have attempted to make it more difficult for parishes
to leave. A review of the five jurisdictions 40 that represent the ma-
jority of Orthodox Christians in the United States indicates that
the governing rules of most of these jurisdictions include provi-
sions that (1) prohibit parishes from leaving the jurisdiction with-
out permission; (2) state parishes that leave the jurisdiction for
any reason 41 are considered to be closed; and (3) cause all property
of closed parish to revert to the jurisdiction.

II. U.S. LAW AND CHURCH PROPERTY

When the United States was formed, the founders intended that
there should be no official national religion. To effect this, the
First Amendment to the U.S. Constitution includes the provision,
"Congress shall make no law respecting an establishment of relig-
ion, or prohibiting the free exercise thereof." The U.S. Supreme
Court has consistently discouraged U.S. courts from becoming in-
42
volved in purely religious matters.

39. For example, the American Carpatho-Russian Orthodox Diocese was a group of
formerly Byzantine Catholic parishes that became an essentially autonomous jurisdiction
under the omophorion of the Ecumenical Patriarch in 1938. Wresting control of their par-
ish property from the Roman Catholic Church was integral to their development as an
Orthodox Church. Not surprisingly their Constitution differs from most other jurisdiction
in that the property of individual Carpatho-Russian parishes is explicitly owned by the
parish, and the Diocese is prohibited from interfering with that property in any way. The
Constitution and Laws of the American Carpatho-Russian Orthodox Greek Catholic Dio-
cese of the United States of America (Johnstown, PA 1996) at 125.
40. These five jurisdictions are part of the Standing Conference of Orthodox Bishops in
America: the Greek Orthodox Archdiocese of North and South America, the Orthodox
Church in America, the Antiochian Archdiocese, the Ukrainian Orthodox Church of the
U.S.A., and the American Carpatho-Russian Orthodox Diocese.
41. Parishes may wish to leave one jurisdiction to join another or, more rarely, to form
independent churches.
42. In fact, until 1872, the U.S. Supreme Court refrained from hearing any cases in-
volving religious controversies, although various state courts did try cases during that
period involving "such matters as Sunday mails, the ownership of church property, the
purity of church doctrine, the nature of church government, and even appropriate punish-
ments for blasphemy." EDWIN S. GAUSTAD, PROcLAIM LIBERTY THROUGHOUT ALL THE LAND
40-41 (2003).
 Duquesne Business Law Journal Vol. 10

To date, The United States Supreme Court has expressly al-

lowed two basic approaches to resolving church property disputes:
the "polity-deference approach" of Watson v. Jones43 and the "neu-
tral principles of law" analysis embraced in Jones v. Wolf, 44 over
100 years later. Both approaches are grounded in the principles of
free association. "All who unite themselves to such a body [as a
church] do so with an implied consent to [that church's] govern-
ment, and are bound to submit to it." 45 States are free to follow
46
either approach.

A. UNITED STATES SUPREME COURT CASES

The U.S. Supreme Court issued certiorari to its first church

property case, Watson v. Jones, in 1872 only after the highest
Kentucky court found for one party, while the Circuit Court of the
47
United States found for the opposing party in a parallel suit.
Watson grew out of a decision by the Presbyterian General As-
sembly, that church's ruling body, to withhold church membership
from any congregant who supported or promoted slavery. 48 A sig-
nificant proportion of the Kentucky parish repudiated that deci-
sion and joined with another group, which claimed to represent
the true Presbyterian faith. 49 Both the pro- and anti-slavery
50
groups laid claim to the church's property and finances.
In Watson, the U.S. Supreme Court made two important dis-
tinctions, which have governed the judicial approach to church
controversies ever since. 51 First, the Court differentiated between
churches with a "congregational" form of government and those
with a "hierarchical" structure. 52 Congregational churches are
"strictly independent of other ecclesiastical associations [owing no]

43. 80 U.S. 679 (1872).

44. 443 U.S. 595 (1979).
45. Watson 80 U.S. at 729. See also, John E. Fennelly, Judicial Symposium: Property
Disputes and Religious Schisms: Who Is the Church?, 9 ST. THOMAS L. REV. 319, 325 (1997).
46. Jones, 443 U.S. at 602.
47. See GAUSTAD, supra note 42, at 43.
48. Watson, 80 U.S. at 684.
49. Id.
50. Id. at 685.
51. The Watson Court also noted that a third category of church property cases could be
resolved without consideration of church structure: express trust disputes. In an express
trust situation, the donor has deeded property to the church on the condition that the
church continues to follow a specified religious doctrine. The courts can decide property
ownership by determining whether the group using the church property is still following
the doctrine specified in the trust. Id. at 722-24.
52. Watson, 80 U.S. at 679.
2008 Crisis or Planning

obligation to any higher authority."5 3 Such churches are ulti-

mately governed by a majority of local elected officials or the con-
gregation itself.54 The Court noted that disputes in congregational
churches could be resolved by a simple head count, because "the
rights of such conflicting bodies ... must be determined by the or-
dinary principles which govern voluntary associations." 55 If the
court found that the majority of members had voted one way or
56
another, that would be the side that prevailed.
Church disputes involving hierarchical churches, on the other
hand, could not be so easily resolved. Hierarchical churches are
those where individuals or bodies of higher authority than the lo-
cal congregation make ultimate decisions.5 7 The U.S. Supreme
Court reasoned that disputes in hierarchical churches require a
second judicial distinction: between matters of faith and matters
of law. 58 The Watson Court decided that "whenever the questions
of discipline or of faith, or ecclesiastical rule, custom or [church]
law have been decided" by the highest authority in a hierarchical
church, the federal court "must accept such decision as final, "59
unless, of course, those religious doctrines "violate the laws of mo-
60
rality and property" or other wise infringe on personal rights.
The Court determined the Presbyterians were in fact a hierarchi-
cal church, so that the Watson church property belonged to the
group which had accepted the General Assembly's decision.
Following Watson, the U.S. Supreme Court avoided hearing
church property cases for nearly a half-century, until Gonzalez v.
Roman Catholic Archbishop of Manila61 in 1929. In Gonzalez, the
Supreme Court limited federal judicial deference to the hierarchi-
cal courts to those cases where the church decision did not involve

53. Id. at 722.

54. Examples of congregationalist churches include Baptists, Disciples of Christ, and
not surprisingly, Congregationalists. GAUSTAD, supra note 42, at 44.
55. Watson, 80 U.S. at 725.
56. Id.
57. Id. at 724-726. In this structure, the local church "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." Id. In addition to the Presbyteri-
ans, other hierarchical churches include Episcopalians, Roman Catholics and Orthodox.
GAUSTAD, supra note 42, at 44.
58. Watson, 80 U.S. at 727.
59. Id.
60. Id. at 728. See also GAUSTAD, supra note 42, at 44. Consistent with this declara-
tion, the U.S. Supreme Court subsequently supported laws sanctioning the Mormon prac-
tice of polygamy as being against the laws of morality in Reynolds v. United States (U.S.
1879) and Davis v. Beason (U.S. 1890). Id.
61. 280 U.S. 1 (1929).
 Duquesne Business Law Journal Vol. 10

"fraud, collusion, or arbitrariness. ' 62 Gonzalez tried to claim the

income from a chaplaincy established by his ancestor, but the
Catholic Diocese argued that he was not ecclesiastically qualified
for the position. 63 Although the Court ultimately ruled against
Gonzalez and in favor of the Roman Catholic Church, this case
marked a small but significant shift in church property jurispru-
dence by allowing that there could be any cases where a civil court
could legitimately review a hierarchical church court's decision.
In 1969, with PresbyterianChurch v. Mary Elizabeth Blue Hull
Memorial Presbyterian Church,6 4 the U.S. Supreme Court moved
even further from the strict Watson rule. In Hull Presbyterian,
two Georgia congregations sought to disaffiliate from the Presby-
terian Church of the United States, following doctrinal disagree-
ments. 65 Just as in Watson, both the greater church and the par-
ishes laid claim to the parish property.6 6 The parishes held actual
title and they sued in a Georgia civil court, which found for the
parishes, reasoning the national church's doctrinal changes were
so extreme that it was no longer the same church to which the
parishes had originally belonged. 67 The Georgia Supreme Court
affirmed the trial court, but the U.S. Supreme Court reversed and
remanded, suggesting that a neutral principals of law approach
would be preferable to the Georgian "departure from doctrine" in-
68
quiry.
Finally, in Jones v. Wolf, the U.S. Supreme Court expressly em-
braced the "neutral principles of law" approach as being "com-
pletely secular in operation, and yet flexible enough to accommo-
date all forms of religious organizations and polity."69 Courts ap-
plying the neutral principles of law doctrine to settle church prop-
erty disputes may review the deeds to the disputed property, the
corporate charter of the local church, the constitution of the gov-

62. Gonzalez, 280 U.S. at 16. The "arbitrariness" exception was later eliminated in
Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivo-
jevich, 426 U.S. 696 (1976), which is discussed in greater detail in Section III of this paper.
63. Gonzalez, 280 U.S. at 16
64. 393 U.S. 440 (1969).
65. Hull Presbyterian, 393 U.S. at 443. Among other issues, the parishes disagreed
with the national church's decision to ordain women. Id.
66. Id.
67. Id.
68. Id. at 449. "[T]here are neutral principles of law, developed for use in all property
disputes, which can be applied without 'establishing' churches to which property is
awarded. ... Hence, States, religious organizations, and individuals must structure rela-
tionships involving church property so as not to require the civil courts to resolve ecclesias-
tical questions." Id.
69. Jones, 443 U.S. at 603.
2008 Crisis or Planning

erning church, and any state statutes governing the holding of

church property. 70 The Court is not required to defer to the
Church's interpretation of any of these documents, unless such
71
interpretation involves a religious controversy.
Although Wolf suggested the new doctrine as best approach for
church property questions, the Court took the somewhat unusual
step of allowing each state considerable latitude in determining its
own approach. "[A] State may adopt any one of various ap-
proaches for settling church property disputes so long as it in-
72
volves no consideration of doctrinal matters."

B. STATE COURT CASES

As a result of the broad discretion granted in Wolf, each state

has developed its own guidelines for resolving church property
disputes.7 3 Some state courts continue to follow the polity-
deference doctrine for hierarchical churches, holding that a parish
or local church that leaves a national church must surrender its
property back to the mother church. 74 State courts applying com-
pulsory deference include Florida, 75 Maine, 76 Michigan, 77 Ne-
81
vada, 78 New Jersey, 79 Texas,8 0 and West Virginia.
Courts in many other states have embraced some version of the
neutral principles doctrine. Unfortunately, this has not resulted
in the uniformity of results hoped for by the Supreme Court. Crit-
ics of this approach point out that there are many possible neutral

70. Id. at 602-603.

71. Id. at 604.
72. Id. at 602. In fact, "a State may adopt any one of various approaches in 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." Id. (quoting Maryland &
Va. Churches,396 U.S. at 368 (J. Brennan, concurring)) (emphasis in original).
73. Natalie L. Yaw, Cross Fire: JudicialIntervention in Church Property Disputes after
Rasumussen v. Bunyan, 2006 MICH. ST. L. REV. 813, 823 (2006).
74. Id. at 825.
75. Mills v. Baldwin, 362 So. 2d 2 (Fla. 1978); Townsend v. Teagle, 467 So. 2d 772 (Fla.
Dist. Ct. App. 1984).
76. Parent v. Roman Catholic Bishop of Portland, 436 A. 2d 888 (Me. 1981).
77. Bennison v. Sharp, 329 N.W. 2d 466 (Mich. 1983).
78. Tea v. Protestant Episcopal Church in the Diocese of Nevada, 610 P.2d 182 (Nev.
1980).
79. Protestant Episcopal Church v. Graves, 417 A.2d 19 (N.J. 1980); Moore v. Protes-
tant Episcopal Church, 417 A.2d 19 (N.J. 1980); Diocese of Newark v. Burns, 417 A.2d 31
(N.J. 1980).
80. Casa Linda Presbyterian Church v. Grace Union Presbytery, Inc. 710 S.W. 2d 700
(Tex. Ct. App. 1986).
81. Church of God v. Noel, 318 S.E. 2d 920 (W. Va. 1984).
 Duquesne Business Law Journal Vol. 10
principles;8 2 as a result, courts may rely on the same church
documents and reach contradictory results.8 3 Nevertheless, many
state courts have ventured into the neutral principles water, in-
cluding New York 8 4 and Connecticut, which apply a trust theory85
and look at the parish's compliance to the applicable canon law.8 6
Still other state courts, such as Indiana, look only at which entity
owns formal title, to be determined by considering "deeds, reverter
clauses, and general state corporation laws in the same manner as
in resolving any other property disputes."8 7 Additional state
courts applying the neutral principles analysis include Alabama,8 8
Colorado,8 9 Louisiana, 90 Kentucky, 91 Maryland, 92 Massachusetts, 9 3
Missouri, 94 Ohio, 95 and Pennsylvania. 96 California is perhaps the
strictest of the neutral principles state courts, allowing "no room

82. For example, formal title could conflict with estoppel, trust doctrines collide with
contract law. Fennelly, supra note 45, at 334. Even those commentators who favor this
approach have noted that some state courts apply neutral principle analysis to determine
that the local church holds title to the property, but then routinely defer to the main
church's interpretation as to who controls the title holder, regardless of whether the 'loyal-
ists' constitute a majority or a minority of the local church. Patty Gerstenblith, Civil Court
Resolution of Property DisputesAmong Religious Organizations,39 AM. U.L. REV. 513, 539.
83. Fennelly, supra note 45, at 352-53. For example, the Pennsylvania Commonwealth
Court applied neutral principles analysis to similar fact patterns in both Orthodox Church
of America v. Pavuk, 538 A.2d 632 (Pa. Commw. Ct. 1988) and Conference of African Union
First Colored Methodist Protestant Church v. Shell, 659 A.2d 77 (Pa. Commw. Ct. 1995),
but reached contradictory conclusions. See also, Nathan Clay Belzer, Deference in the
JudicialResolution of Intrachurchdisputes: The Lesser of Two ConstitutionalEvils, 11 ST.
THOMAS L. REV. 109 (1998); and William G. Ross, The Need for an Exclusive and Uniform
Application of "Neutral Principles"in the Adjudication of Church PropertyDisputes, 32 ST.
LOUIS U. L.J. 263 (1987).
84. First Presbyterian Church of Schenectady v. United Presbyterian Church in the
United States, 464 N.E. 2d 454 (N.Y. 1984).
85. See discussion supra note 51.
86. Yaw, supra note 73, at 825 (citing Rector v. Episcopal Church, 620 A.2d 1280
(Conn. 1993) and Application of Congregation Yetev Lev D'Satmar, Inc. v. Kahan, 5 Misc.
3d 1023(a) (N.Y. Sup. Ct. 2004).
87. Id. at 825 (quoting Merryman v. Price, 259 N.E. 2d 883 (Ind. Ct. App. 1970).
88. Trinity Presbyterian Church v. Tankersly, 374 So. 2d 861 (Ala. 1979); Harris v.
Apostolic Overcoming Church, 457 So. 2d 385 (Ala. 1984).
89. Bishop and Diocese of Colorado v. Mote, 716 P. 2d 85 (Colo. 1986) (en banc).
90. Fluker Community Church v. Hitchens, 419 So. 2d 445 (La. 1982); LeBlanc v.
Davis, 432 So. 2d 239 (La. 1983).
91. Bjorkman v. Protestant Episcopal Church in the United States of America of the
Diocese of Lexington, 759 S.W. 2d 583 (Ky. 1988).
92. Babcock Memorial Presbyterian Church v. the Presbytery of Baltimore, 464 A.2d
1008 (Md. 1983).
93. Primate and Bishops' Synod of the Russian Orthodox Church Outside Russia v.
Russian Orthodox Church of the Holy Resurrection, Inc., 636 N.E. 2d 211 (Mass. 1994).
94. Presbytery of Elijah Parish Lovejoy v. Jaeggi, 682 S.W. 2d 465 (Mo. 1984) (en banc).
95. Southern Ohio State Executive Offices of Church of God v. Fairborn Church of God,
573 N.E.2d 172 (Ohio App. 1989).
96. See infra notes 156-157, and accompanying discussion.
2008 Crisis or Planning 31

for the Watson theory which states that implied consent to the
97
ecclesiastical doctrine will bind the congregation."
As a result of these disparate approaches, similar disputes in-
volving nationally based churches, including the Orthodox juris-
dictions, may result in very dissimilar results, as can be seen in
the next section's review of cases.

III. U.S. CASE LAW AND ORTHODOX CHURCH PROPERTY

A. U.S. SUPREME COURT CASES

The U.S. Supreme Court has heard two cases directly involving
Orthodox Church property rights, one or both of which are in-
variably cited by lower courts looking to determine subsequent
Orthodox cases. Both cases occurred before the Supreme Court's
development of neutral policy analysis in Jones v. Wolf. In both
cases, the U.S. Supreme Court clearly applied the established pol-
ity doctrine.
In 1952, the Supreme Court issued certiorari to Kedroff v. St.
Nicholas Cathedral, a battle between representatives of the Mos-
cow Patriarchate and the newly formed Orthodox Church in
America (OCA) for the right to occupy St. Nicholas Cathedral in
New York City.98 As mentioned in Part I of this article, the Com-
munist Revolution had significant repercussions on the Russian
Orthodox Church in the United States. In 1920, Patriarch Tikhon
of Moscow issued Decision No. 362, granting the Russian church
abroad administrative autonomy while the Orthodox Church in
Moscow was unable to function. 99 In response, many Russian Or-
thodox separated from the mother church and incorporated the
"Orthodox Church in America" by means of a special act of the
New York State Legislature. 10 0 At the time of the case, the newly
incorporated OCA actually held title to the cathedral, but it was
occupied by a bishop appointed by the then reestablished Moscow
Patriarchate. 10 1 While the Supreme Court's tone expressed sym-
pathy for the OCA, it strictly applied the Watson v. Jones polity

97. Yaw, supra note 73, at 829. See also, Protestant Episcopal Church v. Barker, 171
Cal. Rptr. 541 (Cal. Ct. App. 1981).
98. Kedroff v. Saint Nicholas Cathedral of the Russian Orthodox Church in North
America, 344 U.S. 94 (1952). The Supreme Court also later heard a related case, Kreshik v.
St. Nicholas Cathedral,363 U.S. 190 (1960).
99. Kedroff, 344 U.S. at 103.
100. Id. at 104.
101. Id. at 95
 Duquesne Business Law Journal Vol. 10

approach and deferred to the Moscow Patriarch's decision. 0 2 The

Court also found the New York law to be an unconstitutional es-
03
tablishment of religion.
More recently, the U.S. Supreme Court heard the case of Ser-
bian Eastern Orthodox Diocese v. Milivojevich.'0 4 In resolving this
dispute "over control of the Serbian Orthodox Diocese ... , its prop-
erty and assets,"'10 5 the Court affirmed the right of the jurisdiction
to control property through its chosen clergy. In brief, Milivo-
jevich was a Serbian bishop properly elected by the Serbian Or-
thodox Holy Assembly of Bishops and sent to head the church in
America. 10 6 When the Holy Assembly subsequently tried to re-
place Miliovjevich with other leadership in order to reorganize the
Diocese, he refused to leave, and "asserted that he no longer rec-
ognized the decisions of the Holy Assembly [because it was] 'com-
10 7
munistic."'
Although the Supreme Court of Illinois which first heard the
case, ruled for Miliovjevich on the grounds that his recall decision
was an "arbitrary" one by the Holy Assembly, 0 8 the United States
Supreme Court reversed on the grounds that the state court had
impermissibly substituted its own judgment for that of the
Church's highest governing body. 10 9 The U.S. Supreme Court
noted that when Miliovjevich repudiated the Holy Assembly, he
gave up any right to govern in the name of the Serbian Orthodox
Church. 10 Finally, the Court partially overruled Gonzalez by
eliminating the "arbitrariness" exception because the only way a
civil court could determine that a church had made an arbitrary
decision would by to conduct exactly the type of theologically in-
terpretive review prohibited by the First Amendment."' Writing
for the majority, Justice Brennan noted:

102. Id. at 109-10.

103. Id. at 107.
104. Serbian Eastern Orthodox Diocese for the United States and Canada v. Milivojevich,
426 U.S. 696 (1976).
105. Milivojevich, 427 U.S. at 699.
106. Id. at 702.
107. Id. at 704.
108. Id. at 708.
109. Id. at 708-09. Specifically, the Illinois Supreme Court was criticized because it had
"unconstitutionally undertaken the resolution of quintessentially religious controversies
whose resolution the First Amendment commits exclusively to the highest ecclesiastical
tribunals of this hierarchical church." Id. at 720.
110. Milivojevich, 426 U.S. at 717.
111. Id. at 714. More specifically, the Milivojevich court concluded that the Gonzalez
arbitrariness exception was only dictum. Id.
2008 Crisis or Planning

Indeed, it is the essence of religious faith that ecclesiastical

decisions are reached and are to be accepted as matters of
faith whether or not rational or measurable by objective crite-
ria. Constitutional concepts of due process, involving secular
notions of 'fundamental fairness' or impermissible objectives,
are therefore hardly relevant to such matters of ecclesiastical
112
cognizance.

B. SUBSEQUENT ORTHODOX CHURCH CASES IN LOWER COURTS

Clearly, the Supreme Court reviewed both Kederoff and Milvo-

jevich under the polity-deference doctrine. As detailed in this sec-
tion, lower court cases involving Orthodox Church property, re-
viewed under the polity-deference standard have generally also
been resolved in favor of the hierarchy. There are, however, two
interesting exceptions, which will be examined below. Not sur-
prisingly, recent Orthodox Church property cases reviewed in neu-
tral-principles jurisdictions have resulted in disparate resolutions.
This lack of predictable results is yet another reason that the Or-
thodox Churches should draft careful guidelines for parish merg-
ers. Struggling parish communities should never be forced to
waste any of their dwindling resources in legal struggles over
property, especially given the uncertain outcome in the civil
courts.

1. Orthodox Church Cases Reviewed Under the

Polity-Deference Doctrine

a. Cases resolved in favor of the hierarchy

When courts apply the polity-deference doctrine to Orthodox

Church property cases, most of these cases are not unexpectedly
resolved in favor of the hierarchy under which the parish was cre-
ated. For example, in Russian Church of Our Lady of Kazan v.
Dunkel, 113 when a dissident group of parishioners tried to take the
parish from the OCA to the Moscow Patriarchate, the Court of
Appeals of New York affirmed the trial court's decision in favor of
the OCA. 114 The Court of Appeals noted that the parish had been
organized and incorporated in 1942 as an OCA parish, expressly

112. Id. at 714-15.

113. 310 N.E.2d 307 (N.Y. 1974).
114. Dunkel, 310 N.E. 2d at 310.
 Duquesne Business Law Journal Vol. 10

"in accordance with the instruction" and approval of the OCA Met-
ropolitan. 115 In reaching its conclusion, the Court reasoned:

When Kazan was organized its members, and later its incor-
porators, were free to select the ecclesiastical body with which
it wished to affiliate or become subordinate. It knowingly and
voluntarily chose the [OCA] and consistently recognized its
authority. The trustees thus held the property in trust for
116
that greater body.
Other courts applying polity deference reached the same results.
The Michigan Court of Appeals applied Dunkel-like logic to a simi-
lar pattern in Colin v. Iancu, granting control of the parish to the
minority that remained faithful to the Romanian Orthodox Epis-
copate of America, when the majority wanted to follow their popu-
lar priest into another jurisdiction. 117 The Court of Appeals of
8
Indiana took a similar approach in Draskovich v. Pasalich.11
Draskovich grew out of the same dispute over the reorganization
of the Serbian Orthodox Diocese of America that spawned Milivo-
jevich, and was resolved in a like manner. 119
The United States Court of Appeals for the Sixth Circuit like-
wise held that the Byelorussian Autocephalic Orthodox Church
(BOAC), the hierarchical church in Kendysh v. Holy Spirit Byelo-
russianAutocephalic Orthodox Church,120 had the right to create a
new constitution which invalidated any previous bylaws of all its
member churches.' 2' The Sixth Circuit affirmed the District
Court's use of a two step analysis. 122 The court first concluded the
validity of the BOAC statute that, inter alia,invalidated any pre-
existing parish bylaws, and then it determined that Holy Spirit

115. Id. at 308.

116. Id. at 309-10.
117. Colin v. Iancu, 267 N.W.2d 438 (Mich. App. 1978).
118. 280 N.E.2d 69 (Ind.App. 1972).
119. The parish in Draskovich was split between the plaintiffs, a group loyal to the de-
frocked Bishop Milivojevich and the defendants, a group loyal to the mother church in
Serbia. Id. at 71. Having determined that the Serbian Orthodox Church was hierarchical
and that the parish at issue was indeed part of the Serbian Orthodox Church, the Indiana
court deferred to the Serbian church's hierarch in defining the allocation of power and
related property rights of the party. Id. at 81.
120. 850 F.2d 692 (6th Cir. 1988), 1988 U.S. App. LEXIS 9230, *2.
121. Id. at*6.
122. Id. at *5. Although the Sixth Circuit states that the District Court used neutral
principle analysis, it is apparent that the first step in the process is grounded in polity-
deference. Moreover, the Sixth Circuit's opinion expressly cites the Milivojevich rule that
"a civil court must defer to the decisions of the ecclesiastical tribunals of a hierarchical
church on matters of church polity and administration." Id. at *6.
2008 Crisis or Planning

Church had indeed been part of BOAC both before and at the time
123
the statute was enacted.
In an unusual situation where the hierarchy of origin could not
be determined, the Connecticut Supreme Court favored the older,
more established hierarchy. In Russian Orthodox Greek Catholic
All Saints Church v. Kedrovsky, 124 the parish was torn by two in-
ternal factions, one favoring an OCA bishop and the other favoring
a bishop of the Moscow Patriarchate. 125 The Supreme Court found
for the faction favoring Moscow because "allegiance to that body
by any branch of the Church goes as far toward preservation of
126
the unity of the Church general as it is now possible to go."'

b. Cases resolved in favor of the parish

Like the Kederoff case, St. Peter and St. Paul's Church v.
Burdikoffl 27 grew out of the struggle between the Russian Ortho-
dox Church (Moscow Patriarchate) and the Orthodox Church in
America (OCA), which had declared its autonomy in 1924 follow-
ing the Russian Revolution. 28 However, the Ohio Court of Ap-
peals found that the parish and its property belonged to the OCA
rather than the Moscow Patriarchate, even though it was Moscow
that had overseen the founding of the parish in 1912.129 The Pa-
triarchate reasserted its claim on the church at the time of the
case by secretly receiving the allegiance of then-pastor, Fr.
Burdikoff.130 The Court of Appeals distinguished Kederoff on the
grounds that Fr. Burdikoff had violated his first oath of loyalty to
the OCA when he secretly accepted the authority of the Patriar-
chate. 131 The court noted that a congregation loyal to the OCA
had held and improved the church property for 35 years, without
challenge by Moscow. 132 It applied the common law doctrines of
laches and estoppel to decide the case in favor of the parish and
the OCA. 133

123. Id. at *6.

124. 156 A. 688 (Conn. 1931).
125. Id. at 691.
126. Id.
127. The Russian Orthodox Greek Catholic St. Peter and St. Paul's Church of Lorain,
Ohio v. Burdikoff, 189 N.E. 2d 451 (Ohio App. 1962).
128. Burdikoff, 189 N.E. 2d at 452-453.
129. Id. at 453.
130. Id.
131. Id. at 456.
132. Id. at 455.
133. Burdikoff at 455. "Delay alone in asserting a right does not itself constitute laches;
yet where, as here, there is knowledge and long acquiescence in the use of the property, the
 Duquesne Business Law Journal Vol. 10

The trial court that originally heard St. John's Russian Ortho-
dox Church of Rahway v. Fedak134 applied strict deference and
found for the OCA. However, when the parishioners favoring dis-
affiliation appealed, New Jersey appellate court held that St.
John's was independent of the OCA hierarchy and free to affiliate
with another jurisdiction.1 35 St. John's had originally been estab-
lished in 1915 as a constituent church of the Moscow Patriarchate,
136 but had not sent representatives to the 1924 meeting that

birthed the OCA. 137 However, by 1964 lay leaders at St. John's
had become disgruntled with the OCA and voted to join another
jurisdiction. 138 Despite finding that the OCA is a hierarchical
church and noting an ongoing 40 year relationship between St.
John's and the OCA, 139 the Superior Court found these insufficient
to establish an actual affiliation where there had never been a
formal approval of affiliation by the parish.1 40 In reaching this
conclusion, the Superior Court considered the sometimes ambigu-
ous status of the OCA itself, the lack of specificity as to jurisdic-
tion in the St. John's bylaws, the bylaws allowing for St. John's
parishioners to make decisions regarding employment of its
priests, and the voluntary nature of the funding provided to the
OCA by the parish.141

equitable doctrine of laches ought to apply." Id. The determination of estoppel was based
on a quit claim case that the parish had brought against the Russian Orthodox bishop in
1925. Id.
134. St. John's Greek Catholic Hungarian Russian Orthodox Church of Rahway, NJ v.
Michael Fedak, 213 A.2d 651 (N.J. Super 1965).
135. St. John's Greek Catholic Hungarian Russian Orthodox Church of Rahway, NJ v.
Michael Fedak, 233 A.2d 663 (N.J. Super. Ct. App. 1967).
136. Id. at 666.
137. Id.At 670.
138. Id. at 667.
139. Id. at 668. This evidence included St. John's: "(a) continued relationship with [the
OCA bishop] after the Detroit Sobor of 1924; (b) dependence upon the [OCA] for most of its
priests during the ensuing period; (c) financial donations to the [OCA] over the years; (d)
participation by either delegates or observers at certain of the sobors of the [OCA], and (e)
acceptance of the authority of the [OCA Metropolitan] and consultation with him concern-
ing various parish matters." Id.
140. Id.
141. Fedak, 213 A.2d at 671-673.
2008 Crisis or Planning

2. Orthodox Church Cases Reviewed Using Neutral

Principles Analysis

a. Cases resolved in favor of the hierarchy

In contrast to the cases reviewed under the polity-deference

standard, there are only two cases where a court reviewed an Or-
thodox Church property dispute using neutral principles analysis
and found for the diocese. However, it should not be assumed that
this indicates an about-face on the part of the courts. It is reason-
able to conclude that the provisions in jurisdictional charters and
uniform parish bylaws discussed in Section I of this article are
sufficient to keep many such disputes from ever reaching the civil
courts.
In fact, despite the express appeal to neutral principles, the two
cases that fall within this category reveal a judicial analysis that
is strongly reminiscent of that used by courts applying polity-
deference. For example, the New York Supreme Court ignored the
fact that the parish property was held solely in the name of the
local church in MalankaraArchdiocese of Syrian Orthodox Church
in North America v. St. Mary's Church,142 and that nothing in ei-
ther the parish or the diocesan organizing documents granted any
property interest in the diocese. 143 Instead, the majority stressed
the theory of voluntary association and focused only on a provision
in the parish constitution which stated that St Mary's was "under
the spiritual direction of the Syrian Orthodox Church and could
'not be amalgamated with any other Church or religious group"'
144
without the consent of the Syrian Patriarch and the Archbishop.
Similarly, when a Georgia court heard the OCA case, St. Mary
of Egypt Orthodox Church v. Townsend, 145 both the factual situa-
tion 146 and the court's reasoning were strongly reminiscent of the
Michigan case, Colin v. Iancu. Having determined that the OCA
has a hierarchical form of church government, 147 the court then
reviewed the corporate documents and organizational statutes of
both the parish and the OCA to determine which group had the

142. 33 A.D.3d 887 (N.Y. App. Div. 2006).

143. Malankara,33 A.D.3d at 890 (J. Spolzino, dissenting).
144. Malankara,33 A.D. 3d at 887.
145. 532 S.E.2d 731 (Ga. App. 2000).
146. In Townsend, the parish priest and his supporters also tried to move their parish
from the jurisdiction of the OCA to that of the Russian Orthodox Church Abroad (ROCA).
Id. at 732-33.
147. Townsend, 532 S.E. 2d at 733.
 Duquesne Business Law Journal Vol. 10

right to control local church property. 148 Taken as a whole, the

court determined that these documents indicated "control of the
parish property is placed in the parish corporation, but control of
the parish corporation is in its turn placed in the Diocesanauthor-
ity...."149 Therefore, the court concluded that any judicial interfer-
ence with the decision of the archbishop would constitute an im-
permissible intrusion into the internal religious affairs of the
OCA."I5 0

b. Cases resolved in favor of the parish

Most of the Orthodox property cases which have been reviewed

using neutral principles of law analysis have been resolved in fa-
vor of the parish. At least some of these results are based on the
courts' growing awareness of U.S. Orthodoxy's dual-governance.
For example, in The Primate and Bishops' Synod of the Russian
Orthodox Church Outside Russia (ROCA) v. The Russian Orthodox
Church of the Holy Resurrection,151 a Massachusetts appeals court
noted that a church may "be hierarchical in some matters and
congregational in others. 'For example ...a church may be hierar-
chical in terms of internal administration and discipline, and yet
congregational as far as control and use of its property is con-
cerned."'152 Applying this analysis to the ROCA case, the court
found that the parish had always held title to its real property in
its own name, and that the history of the Russian Orthodox
Church indicated a variety of possible property ownership sche-
mas, including the owning of churches by the Tsar. 153 Further-
more, the court reviewed considerable evidence that numerous
other parishes had moved into and out of ROCA without the
Synod laying any claim to their property. 154 This evidence was
sufficient to outweigh church documents granting the bishops the
right to "administer" or authorize the handling of church prop-
55
erty.1

148. Id.
149. Id. at 736 (emphasis added).
150. Id.
151. 617 N.E.2d 1031 (Mass. App. 1993), affirmed 636 N.E.2d 211 (Mass. 1994).
152. Holy Resurrection, 617 N.E.2d at 1033 (quoting Antioch Temple, Inc. v. Parekh, 383
Mass. 854, 861-62 (1981).
153. Id. at 1034.
154. Id. at 1034-35.
155. Id. at 1033. In addition, the court held that the parish articles of incorporation,
which granted no rights to the Synod, were controlling over the parish bylaws which did.
Id. at 1035.
2008 Crisis or Planning

Pennsylvania courts have reviewed three Orthodox cases using

neutral principles analysis. In the wake of Hull Presbyterian,The
Pennsylvania Supreme Court began development of its applicable
neutral principles of law in St. Michael and Archangel Russian
Orthodox Greek Catholic Church v. Uhniat in 1973.156 The main
issue in this case arose from a previous conflict in which the Penn-
sylvania Supreme Court had granted control of the contested par-
ish to the Moscow Patriarchate rather than the OCA, under the
doctrine of polity-deference. 157 The OCA supporters had complied
by turning over the church building itself, but were resisting the
turnover of a rectory building that had been purchased, before the
conclusion of the first case, with "new building fund" money col-
lected expressly in the name of the OCA.15 8 Furthermore, the
property deed expressly identified it as being owned by the parish
as part of the OCA Metropolia for the use of parishioners who
supported the OCA. 159 The Supreme Court used a "formal title"
approach to conclude that these parishioners could be determined
to be a separate unincorporated religious society, with the right to
160
hold real estate under Pennsylvania law.
Pennsylvania jurisprudence moved even further from polity-
deference in Mikilak v. Orthodox Church in America.'6 1 Although
this case largely mirrored the facts in St. Mary of Egypt Orthodox
Church v. Townsend with a dissident parish desiring to move from
the OCA to ROCA, the commonwealth court reached an opposite
conclusion from the Georgia court. The commonwealth court laid
down the following guideline:
Under a neutral principles approach, the burdened party ...
would have to demonstrate either (1) an actual transfer of
property from the congregation to the hierarchical church
body or, (2) clear and unambiguous language or conduct evi-
dencing intent on the part of the congregation to create a
162
trust in favor of the hierarchical church body.

Applying this rule, and considering that the parish held its
property in its own name, the Commonwealth Court held that the

156. 301 A.2d 655, 659 (Pa. 1973).

157. St. Michael and Archangel Russian Orthodox Greek Catholic Church v. Uhniat, 259
A.2d 862 (Pa. 1969).
158. Uhniat 301 A.2d at 659-60.
159. Id. at 660.
160. Id. at 661.
161. 513 A.2d 541 (Pa. Commw. 1986).
162. Mikilak, 513 A. 2d at 545.
 Duquesne Business Law Journal Vol. 10

hierarchy by-laws alone were insufficient evidence to meet the

hierarchy's burden. 163 Two years later, the Commonwealth Court
revisited the Mikilak holding when it was faced with a similar fact
pattern in Orthodox Church of America v. Pavuk and reached the
164
same conclusion.
Courts in other jurisdictions have also used neutral principles
analysis to reach results favoring the rights of Orthodox parishes
over those of their respective dioceses.
In 1970, the Ohio Supreme Court reversed a lower court's pol-
ity-deference based decision for the hierarchy. The Ohio Supreme
Court held that neutral principle analysis limited the courts to
consideration of the incorporating documents of the churches, the
corporate laws of Ohio, and "any other secular instruments not
requiring the resolution of religious tenets or doctrine."' 165 In this
case, Serbian Orthodox Church v. Kelemen, the Ohio Supreme
Court focused on the fact that the parish, as a corporation, held
legal title to all of its property; furthermore, the court did not con-
sider to be relevant the fact that the parish had joined a hierarchi-
cal church. 166 In 1985, Ohio Appellate Court applied the Keleman
rule to determine that the Bulgarian Orthodox Church had no
claim on the property of a parish whose members testified "they
recognized the Bulgarian leadership spiritually, but not adminis-
1 67
tratively or judicially."
An Illinois court of appeals, in Aglikin v. Kovacheff,168 similarly
found that a trial court's deference to the hierarchy to determine a
property dispute was an unconstitutional attempt "to confer eccle-
siastical authority."'169 The American-Bulgarian Eastern Orthodox

163. Id. at 546. Unlike the parish in Townsend, there is nothing on record to indicate
the Mikilak parish had ratified the OCA uniform parish regulations.
164. 538 A.2d 632 (Pa. Commw. 1988).
165. Serbian Orthodox Church Congregation Of St. Demetrius of Akron v. Kelemen, 256
N.E.2d 212, 217 (Ohio 1970).
166. Id. at 215-16.
167. Sts. Cyril and Methodius Orthodox Church v. Rev. Valdimir Ivanov, 1985 Ohio App.
LEXIS 6060.
168. Aglikin v. Kovacheff, 516 N.E.2d 704 (Ill. App. 1987).
169. Id. at 710. (In fact, the Appellate Court reasoned: "...in employing the deference
approach, a court may presume a local church has relinquished all power to a hierarchical
body which may, in some instances, frustrate the actual intent or goals of the local church
and deprive the local church of legal remedies that otherwise would or should be available
to it. [Such] a rule may result in discouraging local churches from associating themselves
with other churches, and thereby infringe upon the free exercise of religion. 'Strict defer-
ence is oblivious to the tension between ensuring total autonomy to religious societies, its
apparent goal, and affording members of those societies the legal remedies normally avail-
able to attack unauthorized 'management' actions.' Adherence to the strict deference ap-
proach is not always counseled by the First Amendment. According greater deference to the
2008 Crisis or Planning

Diocese of Akron had dismissed local church officers and ordered

them to turn over church property to new officers appointed by the
diocese. 170 Because the parish articles of incorporation stated that
it was "administratively and canonically [an] inseparable organic
part of the Bulgarian Eparchy in American and ... under its juris-
diction," the trial court granted summary judgment for the dio-
cese. 17 1 The appellate court first noted that neutral principles ap-
ply to two types of church property disputes: ownership disputes
and control disputes. 172 It then vacated the judgment and re-
73
manded the case for neutral principles analysis.
With the growing use of neutral principle analysis, it is clear
that Orthodox dioceses can no longer rely upon their hierarchical
structure to ensure that disaffiliating parishes leave their prop-
erty behind. At the same time, however, parishes cannot expect
that every court will pick its way through the thicket of parish,
diocesan and jurisdictional organizing documents to find a path
that lets the parish keep its property if it changes jurisdictions.
Add to this uncertainty the multiplicity of analytic options open to
the courts, and one could unfortunately expect to see Orthodox
Churches squandering their precious resources on court battles for
decades to come. At least in the case of appropriate inter-
jurisdictional mergers, these struggles can and should be avoided
through proper planning now.

V. LOOKING TO THE FUTURE

One of the reasons the U.S. Supreme Court adopted the neutral
principles of law approach in Jones v. Wolf was to give churches
guidance on keeping their property disputes out of the civil courts
all together:

Furthermore, the neutral-principles analysis shares the pecu-

liar genius of private-law systems in general -- flexibility in
ordering private rights and obligations to reflect the inten-
tions of the parties. Through appropriate reversionary clauses
and trust provisions, religious societies can specify what is to

decisions of a hierarchical religious association than to the decisions of comparable volun-

tary secular associations on similar questions may, in avoiding interference with the free
exercise of religion, create more complex problems under the Establishment Clause.") (in-
ternal citations omitted).
170. Id. at 705.
171. Id. at 706-707.
172. Id. at 708.
173. Id. at 708, 710.
 Duquesne Business Law Journal Vol. 10

happen to church property in the event of a particularcontin-

gency, or what religious body will determine the ownership in
the event of a schism or doctrinal controversy. In this manner,
a religious organization can ensure that a dispute over the
ownership of church property will be resolved in accord with
the desires of the members. 174

The Orthodox Church should follow the Supreme Court's sound

suggestion, and create provisions now that will allow for appropri-
ate parish mergers.
Consider the following hypothetical:
The majority of parishioners in both Parish A and Parish B
want to merge. Both parishes are located on the same street
in a community with a shrinking population base. Each par-
ish owns a church building and has $50,000 in savings. Par-
ish A is in Diocese X, which has strict regulations prohibiting
any parish from leaving and giving the Bishop the power to
seize the property of any parish attempting to do so. These
provisions have also been included in Parish A's bylaws. Par-
ish B is in Diocese Y, which states that its parishes are an in-
tegral part of the diocese, and Parish B's articles of incorpora-
tion contain a dissolution clause stating that its property re-
verts to Diocese Y in case of dissolution.

Under current law, the outcome of such a hypothetical is uncer-

tain. If either Bishop X or Bishop Y objects to the merger, an en-
suing court battle could decimate the struggling parish's re-
sources, thus effectively closing the parish. Even if both Bishop X
and Bishop Y were personally supportive, the merger would have
to be structured so that Parish B's dissolution clause was not trig-
gered. Furthermore, the Bishops' agreement to this merger could
be used against them in future suits because it would provide evi-
dence of non-compliance with their own organizing documents.
It would be much better for all Orthodox Bishops in the United
States, together with their clerical and lay leadership, to decide
now what sort of circumstances should allow for the cross-
jurisdictional merger of parishes. The need for such mergers is
only going to increase in the immediate future. Not only were
many Orthodox churches established in industrial towns that
have now fallen on hard times, but falling immigration rates and

174. Jones, 443 U.S. at 603-604 (emphasis added).

2008 Crisis or Planning

the increasing Americanization of successive generations is caus-

ing a decline in many of the ethnically focused parishes. 175 Add to
this, the general U.S. population shifts from the Northeast, where
most Orthodox churches are located, to the South and West, and
the critical need for immediate planning is clear.
As may be seen in both the church history and case law sections
of this article, the Orthodox Church in the U.S. maintains a bal-
ance of governance between the hierarchy and the parishes, albeit
a sometimes precarious balance. To be successful, merger plan-
ning must maintain and improve this balance. These provisions
should protect both the interests of the jurisdictional hierarchy
and of the individual parishes.

A. HIERARCHICAL INTERESTS
As was noted in the Orthodox Church structural overview in
Section I, several of the jurisdictions have attempted to take steps
to prevent parish property from ever leaving the diocese or juris-
diction. This often made sense in light of the turbulent history of
the Orthodox Church in this country. Jurisdictional leaders were
understandably reluctant to vest property rights in the individual
parishes because that could too easily allow "jurisdiction shop-
ping" by disgruntled parishioners.
Because this is a valid concern, Church leaders should prede-
termine the criteria that would trigger the merger provisions. For
example, such a provision could read:
When, in the Diocese of X, a parish's population has declined
to less than 50% of its historical high, parishioners may hold
an election, in the presence of the Bishop or his representa-
tive, to decide whether to merge with one or more other Or-
thodox parishes in jurisdictions that are in communion with
X. If a majority of parishioners vote in favor of a merger, ...

This is merely one example. Other possible triggers could in-

clude an overall decline in membership over a five or ten year pe-
riod, or the presence of two or more Orthodox churches within a
certain geographic proximity.

175. There is considerable question as to the actual number of Orthodox Christians in

this country. Estimates range from one million to six million. (Citation?)
 Duquesne Business Law Journal Vol. 10

B. PARISH NEEDS

Once the requisite trigger conditions have been met, merger

guidelines should give the parishes involved the maximum flexi-
bility. Each situation will be unique, and it is the parishioners
themselves who will best be able to assess their community's
needs. It is also these parishioners who will have to live with the
results of such a merger, so it is a matter of equity and justice that
they should be free to plan for their own futures and decide how
best to use the physical and financial resources gathered by their
parents and grandparents.
Diocesan leaders should support parish reorganization plans
approved by the parishes. The parishes should be free to choose
whether to simply close one parish (presumably, but not necessar-
ily, the smaller) and move its assets to the second parish or
whether to close both parishes and merge into a truly new entity.
They should also be free to keep, sell or dispose of church prop-
erty, some of which they could choose to return to the jurisdiction
of origin. Finally, the newly formed parish, whatever its form,
should have the one-time right to choose which of the two previous
jurisdictions it will now join. Mergers of three or more parishes
would have a correspondingly increased number of options.

CONCLUSION

In consideration of the Orthodox Church's changing needs, it is

now time to build an exception into Church organizing documents
which will facilitate the legitimate merger of parishes for the or-
ganizational health of both congregations. Shrinking congrega-
tions should not be forced to expend precious financial resources
just trying to hold on to what little they have. Wise hierarchs
should act now, so that parishes have the guidance necessary to
move forward, without needing to risk or fear the uncertainties of
the civil courts. 176
The closing of parishes is never an easy task. It is likely to take
months, if not years of preliminary discussion. Unfortunately, it
is also likely to result in hurt feelings and a sense of loss. How-
ever, the pooling of resources represented by a merger of parishes
would also bring about the hope of new beginnings. This hope
176. "A national denomination already weakened by modern social pressures and issues
will become even weaker when faced with divisive state legal battles." Ashley Alderman,
Note: Where's the Wall? Church PropertyDisputes Within the Civil Courts and the Need for
ConsistentApplication of the Law, 39 GA. L. REv. 1027, 1051 (2005).
2008 Crisis or Planning 45

should not be tarnished by the bruising battle of extended civil

litigation. Well-considered and carefully drafted merger guide-
lines would help prevent such litigation and give new communities
their best chance. After all, isn't new life one of Christianity's ma-
jor themes?