My response to a recent post on property rights and the Church over at the Acton Institute’s PowerBlog (Protecting private property: The road to sainthood?).
Thanks for posting this. I especially appreciate your pointing out the shared appreciation of the right to property in both Catholic and Orthodox moral teaching.
One of the challenges with the right to property is that this right is typically a bundle of rights. For example, in The Basis of the Social Concept of the Orthodox Church (2000), the bishops of the Moscow Patriarchate affirm the human vocation to labor and right to “the fruits of labour.” The latter includes “the right to own and use property, the right to control and collect income, the right to dispose of, lease, modify or liquidate property” (VII.1).
So immediately, we see that the right to property includes not only (1) actual ownership but (2) use the property, (3) control how the property is (and so isn’t) used, (4) obtain income from the property, (5) sell for profit or donate the property, (6) rent or lease the property, (7) alter the property in some way (e.g., build a house on land I own) or (8) surrender the property in partial payment of debts.
I leave the law to others, but the interesting thing about this bundle of rights is that exercise of any and all of them must be done in conformity to at least to the moral demands of the moral law. What happens though when the exercise of one or more of these rights come into conflict with other rights in the bundle.
Ownership of church property in Ukraine, to return to your post, is anything but straightforward. In addition to competing claims and counterclaims among the various Orthodox jurisdictions, there is the conflict between Orthodox and Greek Catholic communities. I agree with the representative of the Kyiv Patriarchate, Archbishop Yevstratii, that banning the Moscow Patriarchate is counterproductive politically and, more importantly, immoral (here). Adjudication of these claims is anything but easy.
Without prejudice to the Holy Spirit, a just solution to the property conflicts in Ukraine requires a clarity about the canonical control of parish property that we don’t as Orthodox Christians have.
Historically at least diocesan control over parochial property is typically aspirational rather than actual. For example, in traditionally Orthodox countries, the Orthodox Church is an established Church and, as such, the ultimate control of Church property belongs to the State.
Interestingly, from the early centuries, Orthodox monasteries and church buildings were often established as private foundations with the deed for the property held by an individual. This happened throughout the Byzantine era (Byzantine Monastic Foundation Documents). It was done in part to keep monastic and parish communities independent of diocesan, and so Imperial, control.
Diocesan ownership of parish property in the US is more or less established under American law. Typically, the parish holds the deed to the property in trust for the diocese with the latter having ultimate control over the property. In other words, diocesan control is possible in the US because the courts will (usually) support the diocese.
Even in the US, however, bishop rarely exercise control over parish property. When they do it is typically because of either a schism or an unwillingness of the local bishop to allow a parish to leave one Orthodox jurisdiction for another.
This means that in practice, diocesan control over parochial property reflects not just the canonical tradition but (as you allude to) the peculiarities of American law on property and religious non-profits.
(An interesting and profitable discussion could, I think. be had on whether or not the Orthodox Church is a “hierarchical church” as defined by US law. The definition embraces not only the Roman Catholic Church but also mainline Protestant denominations such as the Episcopal Church USA, the Presbyterian Church USA and the United Methodist Church. As an aside, the Catholic Church in the US didn’t actually obtain diocesan control over parochial property until late in the 19th century.)
At least in some states, the Orthodox Church has a hybrid status. We are both hierarchical and congregational. For example, in 1993, the Appeals Court of Massachusetts agreed with the trial judge in Primate and Bishops’ Synod of Russian Orthodox Church Outside Russia v. Russian Orthodox Church of Holy Resurrection, Inc., that the parish “was hierarchical in terms of internal administration, discipline, and matters of faith,” but “congregational as far as the control and use of its property.” The appellate court went on to say that “While the only person who could appoint a priest was the bishop, property and indeed churches belonged to various groups, including tradesmen, nobles, and the Tsars.”
A footnote in the case is interesting and offers a caution to assuming that the American Orthodox Church is necessarily a hierarchical church under US law:
Unlike the Roman Catholic Church, there was evidence that in the Russian Orthodox Church authority was vested in the whole body of the laity as well as with the hierarchy; it was described as “an organic, as opposed to a juridical notion of authority.” There was also testimony that there were congregational aspects in the orthodox faith; in theory the bishop is elected by the people as well as the clergy, and that even in appointing the priest, the bishops would not impose someone upon the parish that the parish did not want (for more on this go here).
Evidently, our eucharistic ecclesiology and emphasis on active lay participation in the governance of the Church look very different to US courts than it does to us. Moreover, the observation that the Orthodox Church has a mixed polity, isn’t unique to the Massachusetts Appellate Court. Though he is critical of this mixed structure, Fr Nicholas Frencez makes an argument similar to that of the Court in American Orthodoxy and Parish Congregationalism.
Returning to the situation in Ukraine, while I think the proposed laws are imprudent, and even arguably immoral, they are not wholly without basis in either the canonical tradition or historical practice of the Orthodox Church. Indeed, they are not without precedent in the practice of the Moscow Patriarchate. In the 1990’s, the Moscow Patriarchate advocated for a position similar that in bill № 4128.
In 1990, a quadripartite commission was formed that included representatives of the UGCC, the Vatican, the Moscow Patriarchate, and the Ukrainian Orthodox Church (Moscow Patriarchate). One of the key points of contention was how to distribute church property. The UGCC insisted on returning churches that were forcibly taken from her in 1946 and transferred to the ROC. Representatives of the Moscow Patriarchate refused to negotiate with the UGCC as an institution that could claim lost property and insisted that the fate of the church buildings should be decided by the communities themselves locally. In other words, individual Greco-Catholics—but not the Church as an institution—could claim the property of their own communities. Following this logic, where most of the community identified as Greco-Catholic, the church building was transferred to the Greco- Catholics, and where the majority was Orthodox, the church building was theirs (more here).
Again, I’m not advocating for the proposed laws. More importantly, I agree with your point that secure, legally defensible property rights serve to secure other rights among them freedom of religion and conscience.
In defense of the right to property in general and of the Orthodox Church’s right to property, we need to be careful, however, that we do not confuse the ideal to which we aspire and the reality that we live. Diocesan, and indeed episcopal, control of parish property is in our canonical tradition. However, this tradition is more complicated than we think. Diocesan control has depended to a greater or lesser degree on the authority of the state and the co-operation of the lower clergy and laity. When the latter is absent, bishops have appealed willing to the former. St Paul’s warning against Christians appealing to civil courts comes to mind here (1 Corinthians 6:1-8).
Without minimizing the all too human elements of the conflict in Ukraine, part of the conflict arises out of the Orthodox Church’s lack of clarity regarding her own practice.
This is why, and I’ll conclude here, both this essay and Orthodox involvement in think tanks like the Acton Institute is of critical importance for the Church. For the first time since the 4th century, the majority of the Church has (in principle at least) the political and social freedom to structure our own, internal life and how we relate to the larger society. The challenge now is to figure out what to do with the mixed blessing of such freedoms.