Diocesan Ownership of Parish Property: Aspirational or Actual?

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?).



Fr Ben,

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.

In Christ,

+Fr Gregory

For Consideration: Right Answers Require Right Questions

Paperback: $15.30

The first lesson to be taught is that when we run across a situation we don’t like – “outrageous exploitation of sick people,” for example – we should start by asking how the situation came about and why it persists. What’s actually going on here? That’s an extremely important lesson: for the dinner table, the conference room, the legislative hall, and the faculty lounge as well as the economics classroom. We all have a tendency, especially when we’re filled with indignation, to begin with the conclusions and subsequently to choose the facts that will enable us to reach our preestablished results. That does little to promote understanding; it merely hardens opinions already held. It does not lead to learning. And it fosters debate rather than discussion. Doesn’t it make far more sense to ask why, if the situation is as intolerable as it seems to be, it continues to exist? Social phenomena are not facts of nature, like mountains. They emerge from the choices individuals make in response to the situations they encounter, situations that are in turn largely created by the choices other people make. If we want to change society, we must first understand it. The first step toward understanding how markets work, and the beginning, I would say, of all social understanding, is the recognition that social phenomena are the product of particular choices in response to particular incentives. Incentives matter! To fix any social problem, we must alter the incentives. To do that, we must first discover what they are.

Paul Heyne (2008), “Teaching Economics By Telling Stories,” in in the 2008 collection of Heyne’s writings, “Are Economists Basically Immoral?” and Other Essays on Economics, Ethics, and Religion (Geoffrey Brennan and A.M.C. Waterman, eds.), p. 322, emphasis in original.

Casuistry, Virtue and the Fruit of the Spirit

We sometimes draw an unappreciative distinction between the Orthodox Church’s “therapeutic” model of the Christian life and the “forensic” or legalistic model of Western Christian traditions. While not wholly without some foundation, this is basically silly.

Western Christian traditions also are concerned with healing the soul and, as Orthodox Christians, we have a long history of law. Not only canon law governing things like how a diocese functions but also very legalistic teaching on sin and confession.

In others, Orthodox moral theology can be every bit as legal (and legalistic) as anything in the West!

Looking at the ways in which moral theology become moralizing, some Orthodox Christians have downplayed or even dismissed the importance of moral theology. But as youth ministers, having no familiarity with the moral tradition of the Church is like trying to be a physician without knowing anatomy or an engineer who doesn’t know mathematics. It just ain’t gonna happen!

We need to know something of moral theology if we hope to guide young people successfully through the many struggles they’ll face as they move from childhood into adulthood.

Broadly, moral theology has two concerns: casuistry and virtue formation.

Casuistry, or the objective analysis of moral issues, has a bad reputation (and not just among Orthodox Christians). But to help someone live a virtuous life, we need to know what are the moral limits of our life in Christ, Casuistry is how we discern the moral boundaries that we can’t transgress and still remain in communion with Christ and the Church.

Casuistry is also important because, unlike virtue, sin is boring. We are all of us good in unique ways. There are an almost infinite number of ways for us to live morally good but moral goodness reflects the Infinite Goodness of God.

Sin, on the other hand, is monotonous and predictable. If a morally good life opens us to God neverending love, sin is narrowing our vision. Virtue makes us more than we were yesterday, sin makes us less than were.

But we need to remember, objective morality isn’t an end in itself. It does, however, remind us that we are all broken in similar ways (for more see Be the Bee #124). We aren’t going to grow in holiness as disciples of Jesus Christ because we don’t violate a short list of moral do’s and don’ts.

The priest who received my wife and me into the Church summarized the importance of objective morality this why: “You’re not a Christian because you keep the Ten Commandments but you can’t be a Christian if you don’t!”

So in addition to keeping the Commandments, to not sinning, the fathers say we need to cultivate virtue. We need to not simply do good things now and then, we need to be in the habit of doing good things.

I would define virtue this way. Virtue is made up of those habits of thought and action that lead to a life of Christian holiness. If casuistry, objective morality, sketches out the boundaries of the Christian life, virtue provides us the content of that life.

Not just young people but all of us need to know not only the moral limits but also the moral content of what it means to follow Christ. The Apostle Paul gives us a good summary of the virtues we need to cultivate as Orthodox Christians:

**But the fruit of the Spirit is love, joy, peace, longsuffering, kindness, goodness, faithfulness, gentleness, self-control. Against such there is no law (Galatians 5:22-23).**

In addition to thinking of sin as individual, morally bad actions, we also need to think of it as any habit or action that undermines the fruits of the Spirit.

What, for example, am I doing that robs me or others of joy or peace for example? How am I being unkind? What are the ways in which I’m unloving or selfish preferring my own will to what’s best for the people in my life?

In the next few classes, we’ll look at particular moral issues that are currently being debated in the culture. We’ll do this with an eye to answering the kinds of questions I asked here. While we shouldn’t use the moral tradition as a club to beat people or as an excuse to not love others or for self-promotion, we need to understand that what the Church says is objectively immoral are those things that undermine love and the other fruits of the Spirit that St Paul lists.

In Christ,

+Fr Gregory

…for all who take the sword will perish by the sword.

I must respectfully disagree with Casey Williams’ essay in the NYT (Has Trump Stolen Philosophy’s Critical Tools?):

Trump’s playbook should be familiar to any student of critical theory and philosophy. It often feels like Trump has stolen our ideas and weaponized them.

He goes on to say that

For decades, critical social scientists and humanists have chipped away at the idea of truth. We’ve deconstructed facts, insisted that knowledge is situated and denied the existence of objectivity. The bedrock claim of critical philosophy, going back to Kant, is simple: We can never have certain knowledge about the world in its entirety. Claiming to know the truth is therefore a kind of assertion of power.

It isn’t Trump who weaponized critical theory; it’s always been a weapon. Critical theories of one sort or another have been used to undermine the Great Tradition, Christianity, natural law and now even simple courtesy.

William’s complaint is that, now, the weapon has been turned on those who used it first. What did Jesus say? I remember,

Put your sword in its place, for all who take the sword will perish by the sword. (Matthew 26:52, NKJV)

In Christ,

+Fr Gregory

For Consideration

(Acton Power Blog) Key quotes from the work of the Austrian/British economist Friedrich Hayek:

 

On Faith in Freedom: Freedom necessarily means that many things will be done which we do not like. Our faith in freedom does not rest on the foreseeable results in particular circumstances but on the belief that it will, on balance, release more forces for the good than for the bad. (The Case for Freedom)

On Equality: From the fact that people are very different it follows that, if we treat them equally, the result must be inequality in their actual position, and that the only way to place them in an equal position would be to treat them differently. Equality before the law and material equality are therefore not only different but are in conflict with each other; and we can achieve either one or the other, but not both at the same time. The equality before th

English: GFDL picture of F.A. Hayek to replace...

F.A. Hayek (Photo credit: Wikipedia)

e law which freedom requires leads to material inequality. (The Constitution of Liberty)

On Democracy: A limited democracy might indeed be the best protector of individual liberty and be better than any other form of limited government, but an unlimited democracy is probably worse than any other form of unlimited government, because its government loses the power even to do what it thinks right if any group on which its majority depends thinks otherwise. If Mrs. Thatcher said that free choice is to be exercised more in the market place than in the ballot box, she has merely uttered the truism that the first is indispensable for individual freedom, while the second is not: free choice can at least exist under a dictatorship that can limit itself but not under the government of an unlimited democracy which cannot. (Letter to The Times (July 11, 1978))

On Wealth and Power: [W]ho will deny that a world in which the wealthy are powerful is still a better world than one in which only the already powerful can acquire wealth? (The Road to Serfdom)

On Private Property: What our generation has forgotten is that the system of private property is the most important guarantee of freedom, not only for those who own property, but scarcely less for those who do not. It is only because the control of the means of production is divided among many people acting independently that nobody has complete power over us, that we as individuals can decide what to do with ourselves. (The Road to Serfdom)

On Ignorance: All political theories assume, of course, that most individuals are very ignorant. Those who plead for liberty differ from the rest in that they include among the ignorant themselves as well as the wisest. Compared with the totality of knowledge which is continually utilized in the evolution of a dynamic civilization, the difference between the knowledge that the wisest and that the most ignorant individual can deliberately employ is comparatively insignificant. (The Constitution of Liberty

Reasons to fail

NIMBY is just one specific physical manifestation of a broader mentality of stasis. There is also: 

  • NIMEY—Not In My Election Year 
  • NIMTOO—Not In My Term Of Office 
  • LULU—Locally Undesirable Land Use 
  • NOPE—Not On Planet Earth 
  • CAVE—Citizens Against Virtually Everything 
  • BANANA—Build Absolutely Nothing Anywhere Near Anything 

One upshot of this current Zeitgeist of community-enforced social stasis is that our physical infrastructure won’t get much better anytime soon.

From: Tyler Cowen, The Complacency Class:The Self-Defeating Quest for the American Dream

Marriage & Parenthood

Remember the song? First comes love, then comes marriage, then comes the baby carriage. The data suggests that this order is best for all concerned, children and parents. 

… children born to a cohabiting couples are about twice as likely to experience a parental breakup by age 12 as children born to married parents. This is true even for children born to more educated cohabiting mothers. 

For more go here

The Moral and Spiritual Blessings of Trade Among All Nations 

St John Chrysostom (c.349—407) Archbishop of C...

St John Chrysostom (c.349—407) Archbishop of Constantinople (398—404) (Photo credit: Wikipedia)

 Sarah Skwire, Literary Editor of FEE.org and a senior fellow at Liberty Fund, Inc., writes:

Free trade doesn’t just make us better off.

It makes us better people.

Donald Trump claims that raising barriers to trade is one of the things it will take to “Make America Great Again,” but he is wrong. Greatness—both of wealth and of moral character—comes from trade. And we have known this for a very long time.

She goes on to quote St John Chrysostom’s argument “that God had arranged the geography of the world in such a way that humans would be required to trade with one another to meet their needs.”

Read the rest: here.

No Free Lunch, No Free Argument

The opportunity cost of enchanting one’s fellow economists is alienating noneconomists.  There is no such thing as a free argument.

Deirdre N. McCloskey (1985/1998), The Rhetoric of Economics, p. 83.

Constitutional Liberties Under Assault

More thoughts on Pussy Riot at UW-Madison…

Like many Orthodox Christians (I won’t speak for those outside the Orthodox Church) I think the Russian government and the Church of Russian over reacted to Pussy Riot. I think that the ROC is too closely identified with Putin.

At the same, Pussy Riot wasn’t simply pointing out that Church and State are too close in Russia. They desecrated Christ the Saviour Cathedral in Moscow. The original Cathedral was destroyed by the Communist. Pussy Riot “performance” was in the new Cathedral. Pussy Riot’s protest in the Cathedral was, is, offensive to many Orthodox Christians in Russia and around the world. They choose a place that is sacred to the Orthodox Church not only because it is a cathedral but because it is a memorial to millions of martyrs. And frankly, I find it impossible to believe that UW’s Center for Russia, East Europe, & Central Asia (who are co-sponsoring the event) doesn’t know this. More likely they just don’t care.

What concerns me more as both a Christian and an American citizen is that now twice within one week UW has shown a marked hostility to fundamental human rights. UW has signaled its willingness to limit free speech by regulation and to support those who made a thuggish assault on the freedom of religion.

Pussy Riot didn’t civilly engage the Church on her position on homosexuality. They desecrated a church. And now UW is giving them a forum as if they were something other than common criminals.

Since I was an undergraduate, I’ve gone to church with Christians who suffered for the Gospel under fascism and communism. What I’ve learned from them is the resilience of faith. And from their example, I know that the  idea that UW represents any credible, long-term threat to me or the Orthodox Church is laughable.

And yes, I understand why people are upset about someone wearing an Obama mask was seen with a noose around his neck (here). Likewise, I understand why people at UW are swooning over Pussy Riot.

However, it is worrisome to me, as a citizen, that there is seemingly no willingness to even entertain the idea that the noose was not a racist act but a legitimate form of political protest. Likewise, Pussy Riot is invited to campus with seemingly no awareness that their protests were an assault (however feckless) on the conscience of the Orthodox Church and on religious liberty more generally.

Come UW, you’re better than this! At least I hope you are.

In Christ,

+Fr Gregory

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