Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America/Opinion of the Court

by Stanley Forman Reed

United States Supreme Court

344 U.S. 94

Kedroff  v.  St. Nicholas Cathedral of Russian Orthodox Church in North America

 Argued: Oct. 14, 1952. --- Decided: Nov 24, 1952

The right to the use and occupancy of a church in the city of New York is in dispute.

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

The corporate right is sought to be enforced so that the head of the American churches, religiously affiliated with the Russian Orthodox Church, may occupy the Cathedral. At the present time that head is the Metropolitan of All America and Canada, the Archbishop of New York, Leonty, who like his predecessors was elected to his ecclesiastical office by a sobor of the American churches. ^[1]

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

Determination of the right to use and occupy Saint Nicholas depends upon whether the appointment of Benjamin by the Patriarch or the election of the Archbishop for North America by the convention of the American churches validly selects the ruling hierarch for the American churches. The Court of Appeals of New York, reversing the lower court, determined that the prelate appointed by the Moscow ecclesiastical authorities was not entitled to the Cathedral and directed the entry of a judgment that appellee corporation be reinvested with the possession and administration of the temporalities of St. Nicholas Cathedral. St. Nicholas Cathedral of Russian Orthodox Church in North America v. Kedroff, 302 N.Y. 1, 33, 96 N.E.2d 56, 74. This determination was made on the authority of Article 5-C of the Religious Corporations Law of New York, 302 N.Y. at page 24 et seq., 96 N.E.2d at page 68, against appellants' contention that this New York statute, as construed, violated the Fourteenth Amendment to the Constitution of the United States.

Because of the constitutional questions thus generally involved, we noted probable jurisdiction, and, after argument and submission of the case last term, ordered reargument and requested counsel to include a discussion of whether the judgment might be sustained on state grounds. 343 U.S. 972, 72 S.Ct. 1069. Both parties concluded that it could not, and the unequivocal remittitur of the New York Court of Appeals, 302 N.Y. 689, 98 N.E.2d 485, specifically stating the constitutionality of the statute as the necessary ground for decision, compels this view and precludes any doubt as to the propriety of our determination of the constitutional issue on the merits. Grayson v. Harris, 267 U.S. 352, 45 S.Ct. 317, 69 L.Ed. 652; State of Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 58 S.Ct. 443, 82 L.Ed. 685. The case now has been reargued and submitted.

Article 5-C was added to the Religious Corporations Law of New York in 1945 and provided both for the incorporation and administration of Russian Orthodox churches. Clarifying amendments were added in 1948. The purpose of the article was to bring all the New York churches, formerly subject to the administrative jurisdiction of the Most Sacred Governing Synod in Moscow or the Patriarch of Moscow, into an administratively autonomous metropolitan district. That district was North American in area, created pursuant to resolutions adopted at a sobor held at Detroit in 1924. ^[2] This declared autonomy was made effective by a further legislative requirement that all the churches formerly administratively subject to the Moscow synod and patriarchate should for the future be governed by the ecclesiastical body and hierarchy of the American metropolitan district. ^[3] The foregoing analysis follows the interpretation of this article by the Court of Appeals of New York, an interpretation binding upon us. ^[4]

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

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

Late in the Eighteenth Century the Russian Church entered the missionary field in the Aleutian Islands and Alaska. From there churches spread slowly down the Pacific Coast and later with the Slavic immigration to our eastern cities, particularly to Detroit, Clevelant, Chicago, Pittsburgh and New York. The character of the administrative unit changed with the years as is indicated by the changes in its name. See note 2. In 1904 when a diocese of North America was created its first archbishop, Tikhon, shortly thereafter established himself in his seat at Saint Nicholas Cathedral. His appointment came from the Holy Synod of Russia as did those of his successors in order Platon and Evdokim. Under those appointments the successive archbishops occupied the Cathedral and residence of Saint Nicholas under the administrative authority of the Holy Synod.

In 1917 Archbishop Evdokim returned to Russia permanently. Early that year an All Russian Sobor was held, the first since Peter the Great. It occurred during the interlude of political freedom following the fall of the Czar. A patriarch was elected and installed-Tikhon who had been the first American Archbishp. Uncertainties as to the succession to and administration of the American archbishopric made their appearance following this sobor and were largely induced by the almost contemporaneous political disturbances which culminated swiftly in the Bolshevik Revolution of 1917. The Russian Orthodox Church was drawn into this maelstrom. After a few years the Patriarch was imprisoned. There were suggestions of his counter-revolutionary activity. Church power was transferred, partly through a sobor considered by many as non-canonical to a Supreme Church Council. The declared reforms were said to have resulted in a 'Living Church' or sometimes in a 'Renovated Church.' Circumstances and pressures changed. Patriarch Tikhon was released from prison and died in 1925. He named three bishops as locum tenens for the patriarchal throne. It was one of these, Sergius, who in 1933 appointed the appellant Benjamin as Archbishop. The Church was registered as a religious organization under Soviet law in 1927. Thereafter the Russian Church and the Russian State approached if not a reconciliation at least an adjustment which eventuated by 1943 in the election of Sergius, one of the bishops named as locum tenens by Tikhon, to the Patriarchate. The Living or Renovated Church, whether deemed a reformed, a schismatic or a new church, apparently withered away. After Sergius' death a new patriarch of the Russian Orthodox Church, Alexi, was chosen Patriarch in 1945 at Moscow at a sobor recognized by all parties to this litigation as a true sobor held in accordance with the church canons. ^[7]

The Russian upheaval caused repercussions in the North American diocese. That Diocese at the time of the Soviet Revolution recognized the spiritual and administrative control of Moscow. White Russians, both lay and clerical, found asylum in America from the revolutionary conflicts, strengthening the feeling of abhorrence of the secular attitude of the new Russian Government. The church members already here, immigrants and nativeborn, while habituated to look to Moscow for religious direction, were accustomed to our theory of separation between church and state. The Russian turmoil, the restraints on religious activites and the evolution of a new ecclesiastical hierarchy in the form of the 'Living Church,' deemed noncanonical or schismatic by most churchmen, made very difficult Russian administration of the American diocese. Furthermore, Patriarch Tikhon, on November 20, 1920, issued Decision No. 362 relating to church administration for troublesome times. This granted a large measure of autonomy, when the Russsian ruling authority was unable to function, subject to 'confirmation later to the Central Church Authority when it is reestablished.' Naturally the growing number of American-born members of the Russian Church did not cling to a hierarchy identified with their country of remote origin with the same national feeling that moved their immigrant ancestors. These facts and forces generated in America a separatist movement.

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

Delegates from the North American Diocese intended to be represented at an admittedly canonical Sobor of the Russian Orthodox Church held in 1945 at Moscow. They did not arrive in time on account of delays, responsibility for which has not been fixed. The following stipulation appears as to their later actions while at Moscow:

'It is stipulated that Bishop Alexi and Father Dzvonchik, representing the local group of American Churches under Bishop Theophilus, appeared before the Patriarch and the members of his Synod in Moscow, presented a written report on the condition of the American Church, with a request for autonomy and a few days later received from the Patriarch the Ukase * * *.' There came to the Russian Church in America this Ukase of the Moscow Patriarchy of February 14 or 16, 1945, covering Moscow's requirements for reunion of the American Orthodox Church with the Russian. It required for reunion that the Russian Church in America hold promptly an 'all American Orthodox Church Sobor'; that it express the decision of the dioceses to reunite with the Russian Mother Church, declare the agreement of the American Orthodox Church to abstain 'from political activities against the U.S.S.R.' and so direct its parishes, and elect a Metropolitan subject to confirmation by the Moscow Patriarchy. The decree said, 'In view of the distance of the American Metropolitan District from the Russian Mother Church * * * the Metropolitan-Exarch * * * may be given some extended powers by the Moscow Patriarchy * * *.'

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

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

This ended the efforts to compose the differences between the Mother Church and its American offspring, and this litigation and the enactment of Article 5-C of the Religious Corporations Law of New York followed. We understand the above factual summary corresponds substantially with the factual basis for determination formulated by the Court of Appeals of New York. From those circumstances it seems clear that the Russian Orthodox Church was, until the Russian Revolution, an hierarchical church with unquestioned paramount jurisdiction in the governing body in Russia over the American Metropolitanate. Nothing indicates that either the Sacred Synod or the succeeding Patriarchs relinquished that authority or recognized the autonomy of the American church. The Court of Appeals decision proceeds, we understand, upon the same assumption. 302 N.Y. at pages 5, 23, 24, 96 N.E.2d at pages 57, 68, 69. That court did consider 'whether there exists in Moscow at the present time a true central organization of the Russian Orthodox Church capable of functioning as the head of a free international religious body.' It concluded that this aspect of the controversy had not been sufficiently developed to justify a judgment upon that ground. 302 N.Y. at pages 22-24, 96 N.E.2d at pages 67-69.

The Religious Corporations Law.-The New York Court of Appeals depended for its judgment, refusing recognition to Archbishop Benjamin, the appointee of the Moscow Hierarchy of the Russian Orthodox Church, upon Article 5-C of the Religious Corporations Law, quoted and analyzed at notes 2 and 3, supra. ^[10] Certainly a legislature is free to act upon such information as it may have as to the necessity for legislation. But an enactment by a legislature cannot validate action which the Constitution prohibits, and we think that the statute here in question passes the constitutional limits. We conclude that Article 5-C undertook by its terms to transfer the control of the New York churches of the Russian Orthodox religion from the central governing hierarchy of the Russian Orthodox Church, the Patriarch of Moscow and the Holy Synod, to the governing authorities of the Russian Church in America, a church organization limited to the diocese of North America and the Aleutian Islands. This transfer takes place by virtue of the statute. Such a law violates the Fourteenth Amendment. It prohibits in this country the free exercise of religion. Legislation that regulates church administration, the operation of the churches, the appointment of clergy, by requiring conformity to church statutes 'adopted at a general convention (sobor) held in the City of New York on or about or between October fifth to eighth, nineteen hundred thirty-seven, and any amendments thereto,' note 3, supra, prohibits the free exercise of religion. Although this statute requires the New York churches to 'in all other respects conform to, maintain and follow the faith, doctrine, ritual, communion, discipline, canon law, traditions and usages of the Eastern Confession (Eastern Orthodox or Greek Catholic Church),' their conformity is by legislative fiat and subject to legislative will. Should the state assert power to change the statute requirng conformity to ancient faith and doctrine to one establishing a different doctrine, the invalidity would be unmistakable.

Although § 5 of the Religious Corporation Law ^[11] had long controlled religious corporations, the Court of Appeals held that its rule was not based on any constitutional requirement or prohibition. ^[12] Since certain events of which the Court took judicial notice indicated to it that the Russian Government exercised control over the central church authorities and that the American church acted to protect its pulpits and faith from such influences, the Court of Appeals felt that the Legislature's reasonable belief in such conditions justified the State in enacting a law to free the American group from infiltration of such atheistic or subversive influences. ^[13]

This legislation, Art. 5-C, in the view of the Court of Appeals, gave the use of the churches to the Russian Church in America on the theory that this church would most faithfully carry out the purposes of the religious trust. ^[14] Thus dangers of political use of church pulpits would be minimized. Legislative power to punish subversive action cannot be doubted. If such action should be actually attempted by a cleric, neither his robe nor his pulpit would be a defense. But in this case no problem of punishment for the violation of law arises. There is no charge of subversive or hostile action by any ecclesiastic Here there is a transfer by statute of control over churches. This violates our rule of separation between church and state. That conclusion results from the purpose, meaning and effect of the New York legislation stated above, considered in the light of the history and decisions considered below.

Hierarchical churches may be defined as those organized as a body with other churches having similar faith and doctrine with a common ruling convocation or ecclesiastical head. In Watson v. Jones, 13 Wall. 679, 20 L.Ed. 666, they are spoken of in like terms. ^[15] That opinion has been given consideration in subsequent church litigation-state and national. ^[16] The opinion itself, however, did not turn on either the establishment or the prohibition of the free exercise of religion. It was a church controversy in the Third or Walnut Street Presbyterian Church of Louisville, Kentucky, arising out of the slavery conflict and was filled with the acrimony of that period. It was decided here at the 1871 Term. 'The government of the (Presbyterian) church is exercised by and through an ascending series of 'judicatories', known as Church Sessions, Presbyteries, Synods and a General Assembly.' Id., 13 Wall. at page 681, 20 L.Ed. 666. The opinion of this Court assumed without question that the Louisville church, its property and its officers were originally and up to the beginning of the disagreements subjected to the operation of the laws of the General Assembly of the Presbyterian Church. Id., 13 Wall. at page 683, 20 L.Ed. 666. The actual possession of the church property was in trustees; its operation or use controlled by the Session composed of elders. ^[17] Both were groups elected at intervals by the members.

In May of 1865 the General Assembly, the highest judicatory of the church, made a declaration of loyalty to the Federal Government denouncing slavery, and directed that new members with contrary views should not be received. The Louisville Presbytery, the immediate superior of the Walnut Street Church, promptly issued a Declaration and Testimony, refusing obedience and calling for resistance to the alleged usurpation of authority. The Louisville Presbytery divided as did the Walnut Street Church and the proslavery group obtained admission into the Presbyterian Church of the Confederate States. In June 1867 the Presbyterian General Assembly for the United States declared the Presbytery and Synod recognized by the proslavery party were 'in no sense a true and lawful Synod and Presbytery in connection with and under the care and authority of the General Assembly of the Presbyterian Church in the United States of America.' They were "permanently excluded from connection with or representation in the Assembly.' By the same resolution the Synod and Presbytery adhered to by those whom (the proslavery party) opposed were declared to be the true and lawful Presbytery of Louisville, and Synod of Kentucky.' Id., 13 Wall. at page 692, 20 L.Ed. 666.

Litigation started in 1866 with a suit in the state court by certain of the antislavery group to have declared their right to act as duly elected additional elders 'in the management of church property for purposes of religious worship.' Id., 13 Wall. at page 685, 20 L.Ed. 666. As the Court of Appeals of Kentucky thought that certain acts of the Louisville Presbytery and the General Assembly of the United States, in pronouncing the additional elders duly elected, were void as beyond their functions, id., 13 Wall. at page 693, 20 L.Ed. 666, ^[18] it refused the plea of the antislavery group and left the proslavery elders and trustees in control of the Walnut Street Church.

Thereupon a new suit, Watson v. Jones, was begun by alleged members of the church to secure the use of the Walnut Street Church for the antislavery group. This suit was to decide not the validity of an election of elders fought out in Watson v. Avery, supra, but which one of two bodies should be recognized as entitled to the use of the Walnut Street Presbyterian Church. It was determined that plaintiffs had a beneficial interest in the church property and therefore a standing to sue for its proper use, if they were members. Id., 13 Wall. at pages 697, 714, 20 L.Ed. 666. A schism was recognized. Id., 13 Wall. at page 717, 20 L.Ed. 666. It was held:

'The trustees obviously hold possession for the use of the persons who by the constitution, usages, and laws of the Presbyterian body, are entitled to that use.' Id., 13 Wall. at page 720, 20 L.Ed. 666.

They were required to recognize 'the true uses of the trust.' Id., 13 Wall. at page 722, 20 L.Ed. 666. Then turning to the consideration of an hierarchical church, as defined in note 15, supra, and, as it found the Presbyterian church to be, this Court said:

'In this class of cases we think the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.' Id., 13 Wall. at page 727, 20 L.Ed. 666.

As the General Assembly of the Church had recognized the antislavery group 'as the regular and lawful Walnut Street Church and officers,' id., 13 Wall. at page 694, 20 L.Ed. 666, newly elected, and the trial court had found complainants members of that group, and had entered a decree adjudging that this group's duly chosen and elected pastor, ruling elders and trustees 'respectively entitled to exercise whatever authority in the said church, or over its members or property, rightfully belonged to pastor, elders, and trustees, respectively, in churches in connection with 'The Presbyterian Church in the United States of America,' Old School, and according to the regulations and usages of that church,' id., 13 Wall. at page 698, 20 L.Ed. 666, this Court affirmed the decree.

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

'In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.' Id., 13 Wall. at pages 728 729, 20 L.Ed. 666.

This is applicable to 'questions of discipline, or of faith, or of ecclesiastical rule, custom, or law,' id., 13 Wall. at page 727, 20 L.Ed. 666. ^[20] This controversy concerning the right to use St. Nicholas Cathedral is strictly a matter of ecclesiastical government, the power of the Supreme Church Authority of the Russian Orthodox Church to appoint the ruling hierarch of the archdiocese of North America. No one disputes that such power did lie in that Authority prior to the Russian Revolution.

Watson v. Jones, although it contains a reference to the relations of church and state under our system of laws, ^[21] was decided without depending upon prohibition of state interference with the free exercise of religion. It was decided in 1872, before judicial recognition of the coercive power of the Fourteenth Amendment to protect the limitations of the First Amendment against state action. It long antedated the 1938 decisions of Erie R. Co. v. Tompkins and Ruhlin v. New York Life Ins. Co., 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 and 304 U.S. 202, 58 S.Ct. 860, 82 L.Ed. 1290, and, therefore, even though federal jurisdiction in the case depended solely on diversity, the holding was based on general law rather than Kentucky law. ^[22] The opinion radiates, however, a spirit of freedom for religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. Freedom to select the clergy, where no improper methods of choice are proven, ^[23] we think, must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.

Legislative Power.-The Court of Appeals of New York recognized, generally, the soundness of the philosophy of ecclesiastical control of church administration and polity but concluded that the exercise of that control was not free from legislative interference. ^[24] That Court presented forcefully the argument supporting legislative power to act on its own knowledge of 'the Soviet attitude toward things religious.' 302 N.Y. pages 32-33, 96 N.E.2d at page 74. It was said:

'The Legislature realized that the North American church, in order to be free of Soviet interference in its affairs, had declared its temporary administrative autonomy in 1924, pursuant to the ukase of 1920, while retaining full spiritual communion with the patriarchate, and that there was a real danger that those properties and temporalities long enjoyed and used by the Russian Orthodox Church worshippers in this State would be taken from them by the representatives of the patriarchate.' 302 N.Y. at page 33, 96 N.E.2d at page 74.

It was thought that American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, supported the thesis that where there is some specific evil, found as a fact 'some infringement upon traditional liberties was justifiable' to effect a cure. 302 N.Y., at page 31, 96 N.E.2d at page 73. On that reasoning it was thought permissible, in view 'of the changed situation of the patriarchate in Russia', to replace it with the Russian Church in America as the ruling authority over the administration of the church. The legal basis for this legislative substitution was found in the theory that the Russian Church in America 'was the trustee which 'may be relied upon to carry out more effectively and faithfully the purposes of this religious trust (Carrier v. Carrier, 226 N.Y. 114, 123 N.e. 135)". Id., 302 N.Y. at page 30, 96 N.E.2d at page 72. Mindful of the authority of the Court of Appeals in its interpretation of the powers of its own legislature and with respect for its standing and ability, we do not agree with its statement as to legislative power over religious organizations.

In our view the Douds case may not be interpreted to validate New York's Article 5-C. That case involved the validity of § 9(h) of the National Labor Relations Act as amended, 61 Stat. 136, 146, 29 U.S.C. § 159(h), 29 U.S.C.A. § 159(h). That section forbade the N.L.R.B. from acting at the suggestion of a labor organization unless affidavits of its officers were filed denying affiliation with subversive organizations or belief in the overthrow of this Government by force or other unconstitutional means. We upheld the enactment as a proper exercise of the power to protect commerce from the evil of disreption from strikes so politically inspired. In so doing we said, 'legitimate attempts to protect the public, not from the remote possible effects of noxious ideologies, but from present excesses of direct, active conduct are not presumptively bad because they interfere with and, in some of its manifestations, restrain the exercise of First Amendment rights.' Id., 339 U.S. at page 399, 70 S.Ct. at page 684. And added, 'But insofar as the problem is one of drawing inferences concerning the need for regulation of particular forms of conduct from conflicting evidence, this Court is in no position to substitute its judgment as to the necessity or desirability of the statute for that of Congress.' Id., 339 U.S. at page 400, 70 S.Ct. at page 685. It is an exaggeration to say that those sound statements point to a legislative power to take away from a church's governing body and its duly ordained representative the possession and use of a building held in trust for the purposes for which it is being employed because of an apprehension, even though reasonable, that it may be employed for improper purposes. In Douds we saw nothing that was aimed at the free expression of views. Unions could have officers with such affiliations and political purposes as they might choose but the Government was not compelled to allow those officers an opportunity to disrupt commerce for their own political ends. We looked upon the affidavit requirement as an assurance that disruptive forces would not utilize a government agency to accomplish their purposes. Id., 339 U.S. at page 403, 70 S.Ct. at page 686.

In upholding the validity of Article 5-C, the New York Court of Appeals apparently assumes Article 5-C does nothing more than permit the trustees of the Cathedral to use it for services consistent with the desires of the members of the Russian Church in America. Its reach goes far beyond that point. By fiat it displaces one church administrator with another. It passes the control of matters strictly ecclesiastical from one church authority to another. It thus intrudes for the benefit of one segment of a church the power of the state into the forbidden area of religious freedom contrary to the principles of the First Amendment. Such prohibition differs from the restriction of a right to deal with Government allowed in Douds, in that the Union in the Douds case had no such constitutionally protected right. New York's Article 5-C directly prohibits the free exercise of an ecclesiastical right, the Church's choice of its hierarchy.

We do not think that New York's legislative application of a cy-pres doctrine to this trust avoids the constitutional rule against prohibition of the free exercise of religion. Late Corporation of Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 10 S.Ct. 792, 34 L.Ed. 478, relied upon by the appellee, does not support its argument. There the Church of Jesus Christ of Latter Day Saints had been incorporated as a religious corporation by the State of Deseret, with subsequent confirmation by the Territory of Utah. Its property was held for religious and charitable purposes. That charter was revoked by Congress and some of the property of the church was escheated to the United States for the use of the common schools of Utah. This Court upheld the revocation of the charter, relying on the reserved power of the Congress over the acts of territories, 136 U.S. at pages 45-46, 10 S.Ct. at pages 803-804. The seizure of the property was bottomed on the general rule that where a charitable corporation is dissolved for unlawful practices, id., 136 U.S. at pages 49-50, 10 S.Ct. at page 805, the sovereign takes and distributes the property according to the cy-pres doctrine to objects of charity and usefulness, e.g., schools. Id., 136 U.S. at pages 47, 50-51, 10 S.Ct. at pages 804, 805-806. A failure of the charitable purpose could have the same effect. Id., 136 U.S. at page 59, 10 S.Ct. at page 808. None of these elements exist to support the validity of the New York statute putting the Russian Orthodox churches of New York under the administration of the Russian Church in America. See notes 2 and 3, supra.

The record before us shows no schism over faith or doctrine between the Russian Church in America and the Russian Orthodox Church. It shows administrative control of the North American Diocese by the Supreme Church Authority of the Russian Orthodox Church, including the appointment of the ruling hierarch in North America from the foundation of the diocese until the Russian Revolution. We find nothing that indicates a relinquishment of this power by the Russian Orthodox Church.

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

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

Reversed and remanded.

Notes

1. A sobor is a convention of bishops, clergymen and laymen with superior powers, with the assistance of which the church officials rule their dioceses or districts.
2. 50 McKinney's N.Y.Laws § 105:
3. Id., § 107:
4. Hebert v. State of Louisiana, 272 U.S. 312, 317, 47 S.Ct. 103, 104, 71 L.Ed. 270; Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669, 92 L.Ed. 840.
5. First Amendment to the Constitution:
6. Hamilton v. Regents of University of California, 293 U.S. 245, 262, 55 S.Ct. 197, 204, 79 L.Ed. 343; Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213; Everson v. Board of Education of Ewing Tp., 330 U.S. 1, 14-15, 67 S.Ct. 504, 510, 511, 91 L.Ed. 711; People of State of Illinois ex rel. McCollum v. Board of Education of School Dist. No. 71, Champaign County, Ill., 333 U.S. 203, 210-211, 68 S.Ct. 461, 464, 465, 92 L.Ed. 648; Zorach v. Clauson, 343 U.S. 306, 310, 72 S.Ct. 679, 682.
7. Fortescue, supra (1916); Brian-Chaninov, The Russian Church (1931), c. VIII; Zemnov, The Russians and Their Church (1945); French, The Eastern Orthodox Church (1951), c. VII;Danzas, The Russian Church (1936); Anderson, People, Church and State in Modern Russia (1944), pp. 121-140; Bolshakoff, Foreign Missions of the Russian Orthdox Church (1943), c. IV.
8. The attitude of the Russian Church in America will be made sufficiently plain by these extracts from their records of action taken at the Detroit Sobor, 1924:
9. Nemolovsky v. Rykhloff, 187 App.Div. 290, 175 N.Y.S. 617; Kedrovsky v. Archbishop and Consistory of Russian Orthodox Greek Catholic Church, 195 App.Div. 127, 186 N.Y.S. 346; Kedrovsky v. Rojdesvensky, 214 App.Div. 483, 212 N.Y.S. 273; Id., 242 N.Y. 547, 152 N.E. 421; Kedrovsky v. Archbishop and Consistory of Russian Orthodox Greek Catholic Church, 218 App.Div. 121, 217 N.Y.S. 873; Id., 218 App.Div. 124, 217 N.Y.S. 875; Id., 220 App.Div. 750, 222 N.Y.S. 831; Id., 249 N.Y. 75, 162 N.E. 588; Id., 249 N.Y. 516, 164 N.E. 566; Nikulnikoff v. Archbishop and Consistory of Russian Orthodox Greek Catholic Church, 142 Misc. 894, 255 N.Y.S. 653; Waipa v. Kushwara, 259 App.Div. 843, 20 N.Y.S.2d 174; Id., 283 N.Y. 781, 28 N.E.2d 417.
10. The Court said, 302 N.Y. 1, 96 N.E.2d 56:
11. 'The trustees of every religious corporation shall have the custody and control of all the temporalities and property, real and personal, belonging to the corporation and of the revenues therefrom, and shall administer the same in accordance with the discipline, rules and usages of the corporation and of the ecclesiastical governing body, if any, to which the corporation is subject, * * *.'
12. 302 N.Y. at page 30, 96 N.E.2d at page 72:
13. 302 N.Y. at page 13, 96 N.E.2d at page 62:
14. See note 10, supra.
15. 'The third is where the religious congregation or ecclesiastical body holding the property is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control more or less complete, in some supreme judicatory over the whole membership of that general organization.' 13 Wall. 679, 722-723, 20 L.Ed. 666.
16. Zollman, American Church Law (1933), c. 9. E.g., Shepard v. Barkley, 247 U.S. 1, 38 S.Ct. 422, 62 L.Ed. 939; Barkley v. Hayes, D.C., 208 F. 319, 326; McGinnis v. Watson, 41 Pa. 9; State of Missouri ex rel. Watson v. Farris, 45 Mo. 183, 197-198; First English Lutheran Church v. Evangelical Lutheran Synod of Kansas and Adjacent States, 10 Cir., 135 F.2d 701. Cf. Gibson v. Armstrong, 7 B. Mon., Ky., 481; German Reformed Church v. Commonwealth ex rel. Seibert, 3 Pa. 282.
17. 'One or two propositions which seem to admit of no controversy are proper to be noticed in this connection. 1. Both by the act of the Kentucky legislature creating the trustees of the church a body corporate, and by the acknowledged rules of the Presbyterian Church, the trustees were the mere nominal title holders and custodians of the church property, and other trustees were, or could be elected by the congregation, to supply their places once in every two years. 2. That in the use of the property for all religious services or ecclesiastical purposes, the trustees were under the control of the church session. 3. That by the constitution of all Presbyterian churches, the session, which is the governing body in each, is composed of the ruling elders and pastor, and in all business of the session the majority of its members govern, the number of elders for each congregation being variable.' Id., 13 Wall. at page 720, 20 L.Ed. 666.
18. Watson v. Avery, 2 Bush, Ky., 332, 347, et seq.
19. Compare Watson v. Avery, note 27, supra, at page 349 of 2 Bush, with Watson v. Jones, supra, 13 Wall. at page 732 et seq., 20 L.Ed. 666.
20. The decision has encountered vivid and strong criticism for the breadth of its statement that where 'a subject-matter of dispute, strictly and purely ecclesiastical in its character,' is decided, the civil court may not examine the conclusion to see whether the decision exceeds the powers of the judicatory. Id., 13 Wall. at page 733, 20 L.Ed. 666. See Zollman, American Church Law (1933), c. 9, p. 291. The criticism does not go so far, however, as to condemn the nonreviewability of questions of faith, religious doctrine and ecclesiastical government, Watson v. Jones, 13 Wall. at pages 729, 732, 20 L.Ed. 666, when within the 'express or implied stipulations of the agreement of membership.' Zollman, supra, §§ 310, 311, 315, 340.
21. Id., 13 Wall. at page 727, 20 L.Ed. 666. See, 344 U.S. 113, 73 S.Ct. 153, supra.
22. Barkley v. Hayes, D.C., 208 F. 319, 334; Sherard v. Walton, D.C., 206 F. 562, 564; Helm v. Zarecor, D.C., 213 F. 648, 657.
23. Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16-17, 50 S.Ct. 5, 7, 74 L.Ed. 131:
24. St. Nicholas Cathedral of Russian Orthodox Church in North America v. Kedroff, 302 N.Y. 1, 30, 96 N.E.2d 56, 72, Note 12, supra.
25. Ponce v. Roman Catholic Apostolic Church in Porto Rico, 210 U.S. 296, 322, 28 S.Ct. 737, 747, 52 L.Ed. 1068.
26. Watson v. Jones, supra; Barkley v. Hayes, D.C., 208 F. 319, 327, affirmed on appeal, Duvall v. Synod of Kansas of Presbyterian Church, 8 Cir., 222 F. 669; Shepard v. Barkley, 247 U.S. 1, 38 S.Ct. 422, 62 L.Ed. 939.