Regarding the Decision of the California Supreme Court in the Los Angeles Case

This text complements the essay by Fr. Gregory Lomako “The Ecclesiastical-Canonical Situation of the Russian Diaspora,” written, as well as this article, in connection with the trial in Los Angeles, when the American court awarded the possession of the Transfiguration Church to the Russian Church Abroad. To learn about Fr. Gregory, please follow the link above. In this article, Gregory represented the position the of Russian North American Metropolitanate answering his opponent at the Los Angeles trial, Protopresbyter Mikhail Polsky, who outlined the position of the ROCOR in his pamphlet “The American Metropolitanate and the Los Angeles Trial.” The above-mentioned article by Fr. Gregory is of interest as part of an extensive discussion in connection with the 1948 publication of the book by Archpriest Mikhail Polsky “The Canonical Position of the Supreme Church Authority in the USSR and abroad.” This discussion was searching for an answer to the question: which church structure is most consistent with the Orthodox canonical ideal. You may follow this discussion here in the section on Church Law.

Deacon Andrei Psarev,
November 2, 2021

The above-mentioned “Decision” has made an unusually heavy impression on the heart and soul of the Orthodox. It was brought about when certain parishioners of Holy Transfiguration Church in Los Angeles, who did not wish to recognize Metropolitan Theophilus as their diocesan hierarch, filed suit in the California Supreme Court. Such an appeal to a secular court (and a heterodox one at that) regarding a church issue by believers is a direct violation of church canons, which very definitely forbid this. Here is what these canons say:

“Moreover it seemed good that if any bishop, presbyter, or deacon, who has a criminal charge brought against him or who had a civil case, refused to be tried by an ecclesiastical tribunal, but wished to be judged by the secular courts, even if he won his suit, nevertheless he should lose his office. This is the law in a criminal suit; but in a civil suit he shall lose that for the recovery of which he instituted the proceedings, if he wishes to retain his office.” (Carthag. 15)

And while Mr. Lisitsyn, G. Blagoi, A. Sveshnikov, M. N. Strokina, and others may not have known this canon, Mitred Archpriest V. Shaposhnikov must have at least heard about it, and the hierarchs who are recognized by the aforementioned individuals, Archbishops Tikhon and Vitalii, can in no way plead ignorance, since before their consecration they had to respond to the following questioning by the primary hierarch: “Explain to us how do you believe in the Truth of the embodiment of God’s son and Logos and how many natures are in Christ our God? And tell us if you uphold the canons of the holy apostles, holy fathers, Church Traditions and Constitutions?”

And in the rite of consecration they made a promise to observe the canons of the Holy Apostles, the Seven Ecumenical Councils, the Nine Local Councils, the rules of the Holy Fathers, and to preserve without change church traditions, holy statutes, and rites of the entire Catholic Eastern Orthodox Church. And if they made such promises, it then stands to reason that they knew and must have known that which they had promised to “preserve without change.” However, the suit was brought before a “secular court” and vehemently pursued, and once the court renders its decision, this decision, not without demagogic devices and aims, is disseminated with intensity and is proclaimed through the lips of a bishop (Bishop Nikon of Florida) as establishing the canonicity of the “Russian Church Abroad.”

The establishment of the canonicity of one or another part of God’s Church by a decision of a secular tribunal is an unprecedented fact in the life of the Church. The same bishop (in the introduction to the brochure entitled Reshenia Vysshago Suda po Los-Anzhelosskomu delu [The Decision of the Supreme Court in the Los Angeles Case]) proposes submitting to this decision, “so that none of us will hear on that Dreadful Day of Christ His stern words, ‘Depart from Me, ye that work iniquity…’, ‘Depart from Me, all ye who practice falsehood….’.”

A feeling of profound unease takes over the soul of an Orthodox Christian upon encountering such facts of church life. What is this in essence? How could it happen that God’s believers and hierarchs, forgetting the Church’s canons and violating them, could appeal to secular courts? How and why did this court render such a decision?

Clarification of these issues requires that they be investigated in all their breadth and in a truly unbiased and thorough manner, without neglecting any aspect of this matter.

The One Holy, Catholic, and Apostolic Church, in which we all believe, as the ninth section of the Nicene Creed says—although Archbishop Vitalii deemed it possible to insert the word “Russian” here, writing “I believe in One Holy, Catholic, Apostolic Russian Church” (Rossiia, No. 106:2, Vol. 11, 1935)—in its earthly structure and existence from the very beginning, from the first centuries of Christianity, appeared and still appears as separate local “Holy Churches of God, existing in all places everywhere”: those of Antioch, Alexandria, Rome, Jerusalem, Russia, and others. In other words, from the very beginning, God’s One Holy Church was defined in its earthly structure by territoriality, and not at all by national or tribal attributes. Entry into God’s One Holy Church and belonging to it is determined by belief (how do you believe?), by purity of belief. One cannot be a church member incorrectly, while not believing in an Orthodox manner. The Church is the pillar and ground of Truth, and those dwelling in it dwell in Truth. The external relationship of a believer to the Church is determined by his location, in the “Holy Churches of God existing in all places everywhere.” And in this local and territorial arrangement the Church is guided by definite rules, by the holy canons put forth by the Local and Ecumenical Councils. It is most obviously clear from this that 1) each local church is strictly defined by the specific boundaries of its region, and 2) within the boundaries of each local church, people of all nationalities who confess the faith of the One Holy Church are included in a given local church and are subject to its leadership. It has been this way since the earliest times, until… until the emergence of the Karlovci Synod, which has placed, contrary to all of the Church’s rules and traditions, national and… political considerations as a basis for its existence and activities. If we Russians recall the life of the Russian Church in the pre-Revolutionary period, we will see that significant numbers of Orthodox Greeks, Serbs, Bulgarians, and Romanians dwelt in Russia, and they had no thought of turning to their own hierarchs and patriarchs. They were living in an Orthodox country and the leadership of this country guided them. The Greek embassy church in St. Petersburg even received its metrical books from the St. Petersburg Consistory. And in the 18^th and early 19^th centuries, many thousands of Greeks, fleeing Turkish brutalities, relocated into Russia, with clergy and hierarchs among them. All of them became part of the Russian Church, since one enters the Church according to faith, not according to one’s passport or political convictions. The Greek bishops who relocated to Russia would not start exercising their powers before receiving dioceses of the Russian Church (Anastasios Konondi, assigned to Vologda, and Nicephoros Theotoki, to Astrakhan), and prior to being appointed they, of course, did not cease being hierarchs. The development of “New Serbia” also comes to mind, which was a Serbo-Slavic province inhabited by those Serbs whom Patriarch Arsenii Cernoevic led out of Old Serbia and the confines of the Turkish Empire at one point and settled them in Austrian territory, from whence they relocated into Russia in the thousands. None of them, upon relocation, appealed to their patriarchs, who had their residence in the same Sremski Karlovci where the Russian refugee hierarchs established themselves.

These brief remarks have been made in order to establish a correct view of the matter under investigation. The “Decision of the Supreme Court” is based on the Karlovci understanding of the Church’s nature, its structure and life, when the predicates of the universal Church—“One, Holy, Catholic, and Apostolic”—are attributed to the Karlovci organization, with this Karlovci organization claiming to be the One, Holy, Catholic, and Apostolic Church. It is true that the Church is one and that falling away from it is a sin causing the one who falls away to perish, and it is also true that the Church’s supreme ruling body is the Ecumenical Council, and its executive body includes the Synods in harmonious unity with their leaders. But whether the Karlovci organization is a Church and the Councils and Synods that took place in Karlovci are actually Councils and Synods is a question that cannot be answered positively.

How did these Karlovci Church organizations arise? “The Established Facts” (it is totally unknown on what basis and how they were established) mentioned in “The Decision of the Supreme Court” paint some sort of fantastic picture that does not correspond in any way either to the actual situation or to the Church’s canons (although in almost each section we read the words “according to the canons”—which ones specifically?—“and according to Church law”—what law is this, what does it proclaim, who issued it?), but which is in full agreement with the Karlovci Church ideology.

When the White Armies campaigning against the Bolsheviks in the south and south-east of Russia liberated huge territories from under their control (those of Ekaterinodar, Vladikavkaz, Stavropol, Novocherkassk, Ekaterinoslav, Kharkov, Kiev, Poltava, Odessa, Kursk, Tsaritsyn, and others), and when the designated territories were cut off from His Holiness the Patriarch and the organs of supreme authority under him, the urgent and insistent necessity arose to organize and create some kind of a central and supreme body of church authority in order to coordinate activities and resolve issues exceeding the power and competence of the diocesan bishop. This was in 1919, when the well-known Decree No. 362 of “His Holiness the Patriarch,” the Holy Synod, and the Supreme Church Council (we will return to a detailed examination and precise exploration of this document specifically in due time), of November 20, 1920, had not yet been issued.

The initiators of the creation of the “Temporary Supreme Church Authority in the South-east of Russia” (such was the exact title of this body) approached this matter with great caution, primarily wishing to be in accord with the canons of the Church and its entire spirit, making it the basis of their activities and the object of their efforts to observe the ecclesiastical norms in structuring church life. In May 1919, a local council was called in Stavropol, modeled on the great Moscow Council that had just (in 1918) wrapped up its activity. Specifically, the participants included all of the bishops of the dioceses which had been liberated from Bolshevik rule, with two clergymen from each diocese and three laymen. Representatives from the Volunteer Army were invited, and all members of Great Moscow Council who happened to be in the above-mentioned region took part. It was the Local Council formed in this manner that established the above-mentioned Temporary Supreme Church Authority in Russia’s Southwest, and the scope of this authority’s activity, its sphere of expansion, and its duration were strictly limited. The content and scope of its activity included the most urgent matters and issues, such as assigning bishops to vacant dioceses, which, if left unresolved, would make it possible to meddle in and disrupt church life. The sphere of their activity was only the territories liberated from Bolshevik rule. This Authority was only to be active until communication could be restored with the Patriarch and the bodies of supreme ecclesiastical authority in the Russian Church under him. The Karlovci ideologues seek to envisage the sources of their movement’s existence in the directives of the Stavropol Council and in the Temporary Supreme Church Authority in Russia’s Southwest it established, regarding the Karlovci Councils and Synod as their successors, and this succession is determined very simply. Archpriest M. Polsky writes with “inspiration” —yet not convincingly—on this point, as follows: “In November 1920, the Russian hierarchs held their first council in Constantinople, which changed the name of the Southern Church Authority of Russia to the Supreme Church Authority Abroad, and from then on, this Council has met annually, according to the canons. In 1921, the church administration moved to Yugoslavia.” None of this actually happened. There was no Council, nor was there any name change. The matter was conducted somewhat differently.

The establishment of the Temporary Supreme Church Authority in the South-east of Russia essentially came to an end with the evacuation of Novorossiisk, when General Denikin’s army left the Kuban area and Novorissiisk and went over to the Crimean Peninsula. The only member of this Authority who ended up in Crimea was Archbishop Dimitrii of the Tauride, while the other six individuals who formed the Supreme Church Authority there had not been elected at a Council, as had been done in Stavropol. The Crimean Supreme Church Authority, having broken its succession with the Stavropol Council in terms of its makeup, also violated its understanding of the scope of its activity and the sphere of its application by examining and resolving matters without urgent necessity and opening up episcopal sees outside the boundaries of the territory occupied by General Wrangel’s army; [1]We are referring to the opening up of an episcopal see for Lubny in Poltava Province and the appointment there, upon his consecration to the episcopate, of Archimandrite Seraphim, Rector of the … Continue reading it was only on this territory that the aforesaid Supreme Church Authority was able to realize its activity, both juridically and in fact.

The only member of the Crimean Supreme Church Authority to arrive in Constantinople was Bishop Veniamin, Vicar to the Archbishop of Tauride. Archbishop Dimitrii of the Tauride, fully cognizant of his episcopal duty, refused to abandon his diocese and flock. “Dioceses are not evacuated,” he told me personally, “and I am not a diocesan hierarch.” The Russian hierarchs who were in Constantinople in November 1920 had ended up there as a result of looming danger from the Bolsheviks. They were “evacuated” along with various institutions and office holders of a governmental nature; by the fact of their “evacuations”, they both demonstrated that they did not have a totally clear understanding of their service and duty, and through their actions manifested the regrettable fact that they had come to equate ecclesiastical elements with national ones indissolubly in their life and activity. Efforts to provide ideological justification for the fact that the hierarchs had abandoned their sees and dioceses appeared later on the pages of the Karlovci press, in terms of their alleged care for the flock they had abandoned, since, as these articles said, they could have received a martyr’s crown if they had stayed behind, but they refused to do so out of care for their flock. Putting aside this aspect of the matter as requiring special attention, of a sort that is intensive to the point of gentleness, we cannot avoid stating that the Russian hierarchs who ended up in Constantinople in November 1920, in fleeing Russia and leaving (forever, as time would show) their native land and their dioceses behind, did not in any way and could not have had in mind that they were going to a Council, but were simply fleeing danger (“evacuating”).

The canonicity of a council is determined not only by “a general presence of bishops, invested with higher grace (are there bishops invested with a “lower” grace?) and who are successors to the apostles, independently of the degree of their administrative rights,” as Fr. M. Polsky writes (p. 114). For a council to be canonical, the bishops’ administrative rights must be maintained. A vicar to a diocesan hierarch or a retired bishop cannot call councils together over the head of the leader of a given local Church. Hierarchs who have left their dioceses cannot convene councils and even take part in them before the relevant authorities have handled the matter of their abandoning of their dioceses. You cannot call together a council of a given church within the boundaries of another church, and unbeknownst to the top leadership of either. Yet this is exactly what happened with the Russian hierarchs who were in Constantinople in 1920. We cannot state and confirm with all certainty that the Russian bishops who were in Constantinople in November 1920 had no thought or intent of calling or arranging any kind of council. Fr. M. Polsky’s assertion that “[t]he Russian hierarchs conducted their first council in 1920” bears no resemblance to reality. There was no council of Russian hierarchs in Constantinople in 1920. We state this with all certainty and insistence, since we were ourselves in Constantinople at the time and played an active role in Russian church affairs. Something different was the case. The idea of starting a Supreme Church Authority dealing with Russian church affairs arose in the head of the fervent, always enthusiastic, and never unbalanced Bishop Veniamin, who was “Bishop of the Christ-loving Armed Forces” at the time and is currently Metropolitan of Riga. We can assume that this idea was known to General Wrangel as well. We at least personally heard Bishop Veniamin’s own words, “Vladyko, we (who was we?) have decided to found a Supreme Church Authority here,” on the day when Bishop Veniamin came into the embassy building from the ship “General Alexeev,” which had transported General Wrangel as well. These words were met by a very strong rebuff on the part of Metropolitan Antony, who simply called anyone a fool for thinking of founding any kind of Supreme Church Authority in the capital city of the Ecumenical Patriarch.

In spite of such a sharp and definite objection to such a proposal, the elderly metropolitan was somehow prevailed upon to head a delegation to the Ecumenical Throne (the Ecumenical Throne was vacant at the time and Metropolitan Dorotheos of Prussa was the locum tenens), which would petition, not to call a council, but to start a Supreme Church Authority. And this petition was not the fulfillment of any kind of “first council of the Russian hierarchs in Constantinople,” as Fr. M. Polsky writes, for otherwise this would have been mentioned, both in the petition and in the response. I happened to receive a packet with this document from the Patriarchate, open it up, and read its text to Metropolitan Antony and then Archbishop Anastasy in the semi-darkness of the Russian embassy in Constantinople. Here is what it said: “ἀποτελεστείτε ὑπὸ τὴν ἀνώτατην προστασίαν τοῦ Οἰκουμενικοῦ Πατριαρχείου προσωρινὴν ἐκκλιαστικὴν Ἐπιτροπὴν μέλλουσαν ἐπιβλέπειν καὶ διευθύνειν τὴν ἐκκλιαστικὴν ἐν γένει ζωὴν τῶν ἐν τῇ περιοχῇ μὴ Ὀρθοδόξων Περιφερειὼν εὑρισκομένων ρωσσικῶν παροικιῶν”.

In other words, the Ecumenical Patriarchate allowed the Russian hierarchs who petitioned them to establish under the supreme leadership of the Patriarchate itself (ὑπὸ τὴν ἀνώτατην προστασίαν) a temporary (προσωρινὴν) ecclesiastic epitrope (ἐκκλιαστικὴν Ἐπιτροπὴν) to oversee and administer (μέλλουσαν ἐπιβλέπειν καὶ διευθύνειν) church life in the general order (τὴν ἐκκλιαστικὴν ἐν γένει ζωὴν) of Russian parishes in non-Orthodox territories (ἐν τῇ περιοχῇ μὴ Ὀρθοδόξων Περιφερειὼν εὑρισκομένων ρωσσικῶν παροικιῶν).

So this is what actually took place in Constantinople in November–December 1921, and this reality is so far from Fr. M. Polsky’s inspired assertions. This makes clear and understandable the “established nature” of the facts by the Los Angeles court and its durability.

We do not know the Los Angeles Court’s attitude toward acts originating in the Ecumenical Patriarchate. But, whatever its attitude might be, it cannot to any extent lessen nor increase the canonical significance and power of these acts. In the Orthodox Church, God’s Holy Church, these acts have definite significance and weight. Metropolitan Antony, who headed the “Karlovci-conciliar” institutions before his death, writes the following himself about the prerogatives of the Ecumenical Throne:

“The See of Constantinople, which, according to the teaching of Christ’s Church as laid out in the rulings of the seven Ecumenical Councils, is not only one of the Church’s provinces, but is regarded as an unchangeable element of the fulness of the Orthodox Church, as an instance that is linked not only with its diocese, but also with the entire Orthodox Church throughout the entire universe. That is why it has been named the See of the Ecumenical Patriarch since the fifth century. It was named this way because, long before the separation between the East and Rome, the Patriarch of Constantinople, as the Bishop of the New Rome, was acknowledged by the Ecumenical Council as being equal in honor and power with the Bishop of the Old Rome (2^nd Ecum. 3, 4^th Ecum. 28, 6^th Ecum. 36), and, especially importantly, he alone has the right of receiving appeals from bishops unhappy with decisions made regarding them by Local Councils (4^th Ecum. 17). In this last sense the Patriarch of Constantinople is the Supreme Justice for the Orthodox of all countries.”

“From the earliest times,” Metropolitan Antony goes on to write, “the Russian Church has been accustomed to appeal to the Ecumenical Patriarch for clarity in ecclesiastical and religious questions, and its most honored hierarch, Patriarch Nikon of Moscow and All Russia, appealed the decision of the Council of Russia Bishops to Constantinople in 1681.” (Tserkovnye Vedomosti, 1923, Srem. Karlovci)

The same Metropolitan Antony writes elsewhere that “[m]any do not appreciate this Orthodoxy, through which the Hellenes, the Slavs, and the Syrians do but shine, and for the sake of which it may become necessary under circumstances to sacrifice one’s ethnicity and one’s home, cast away everything as useless rags, so as to obtain the pearl of salvation which is preserved in the Ecumenical Church. We do not refuse to recognize the hegemony of the Greeks in preserving divine truths. We cast ourselves into the dust before the Most Holy Throne of the Patriarch of Constantinople and continue to see him as the Supreme Pastor. We will regard the Ecumenical Church as our fatherland and intact Orthodoxy as our the patrimony of our people.” (Vozrozhdenie, November 5, 1927)

Such is the actual situation of the Ecumenical Throne in God’s Church, and such is the significance of its rulings. We are certain that if the Los Angeles Court had been correctly informed about all of this, many of the facts that were “established” by this Court would have simply vanished, and the Court’s ruling would have been different.

Indeed, how can any significance and efficacy be attributed to the Karlovci-conciliar institutions, which arose arbitrarily and called themselves a Council and Synod falsely? In 1924 the Ecumenical Patriarchate published a book titled Ζήτημα τῶν Ρώσσων Ἀρχιερέων Προσφύγων [The Issue of the Russian Refugee Hierarchs]. In that book the name of the Karlovci Russian Synod always appears in quotation marks (e.g., Ἀρχιερατικὴ Σύνοδος τῆς Ρωσσικῆς Ἐκκλησίας τοῦ « ἐξωτερικοῦ », the Synod of Bishops of the Russian Orthodox Church “Abroad”), which, as is known, is equivalent to using the expression “so-called.” This book definitely says that this Synod is αὐτοκαλούμενη ‘self-convoked’, unauthorized, and αὐτοτιτλοφορούμενη ‘bearing a self-willed title’. Further on, it is characterized as having no canonical justification and as never having received the blessing of the Ecumenical Patriarchate to exercise synodal authority over Russians in the diaspora: “Ἀρχιερατικὴ Σύνοδος τῆς Ρωσσικῆς Ἐκκλησίας τοῦ « ἐξωτερικοῦ » οὐδεμίαν Κακονικὴν Ὑπόστασιν νὰ ἔχειν καὶ οὐδέποτε ἔλαβεν Εὐλογίαν τοῦ Οἰκουμενικοῦ Πατριαχεῖου πρὸς ἐξάσκησιν Συνοδικῆς ἐξουσίας ἐπὶ τῶν Ρώσσων τοῦ Ἐξοτερικοῦ.”

Of course, the recognition by the Los Angeles Court of the canonicity of the Karlovci-conciliar institutions filled the hearts of the supporters of these institutions with joy and even made it possible for the Bishop of Florida to frighten opponents with the Savior’s stern words (the uses to which the words of Holy Scripture are put!). But with all this in mind, it must be said with all certainty that the canonicity of ecclesiastical institutions can in no way and can never be, and must not be (this is addressed to those who appeal to secular courts) established by “secular tribunals”, but rather by establishments of appropriate competence, institutions and persons in God’s Church. To reiterate, we are absolutely certain that if the Court had been aware of the above-mentioned judgments regarding the Karlovci Russian Synod Abroad, it would never have rendered its decision in the form, spirit, and content that it did. For then it would have been clear to the Court that the Patriarch of Constantinople, whom the Court itself regards as “senior” in the Eastern Orthodox Church, does not recognize the Karlovci Russian Council Abroad as being canonical, calls it self-convoked and bearing its title in a self-willed manner, and denies that it has any authority to rule over the Russian diaspora on its behalf, [2]Following is what the Ecumenical Patriarchate has to say about this exactly: “Ἡ ἐν Σερβίᾳ καὶ ἐν ἄλλαις ἐκκλησιαστικαῖς περιφερεíαις … Continue reading and states definitely that no blessing was ever given to this Synod by the Ecumenical Patriarch. And then, perhaps, the Court could have avoided the major error of equating the One Holy Catholic Church with the Karlovci institutions, which, as is apparent, constitute a self-willed uncanonical fact of the church life of a certain group of believers, but are not at all any kind of church, and, of course, this group cannot have a shadow of semblance of the Church Universal. [3]The extent to which the Karlovci figures understood the rights and competence of their institutions becomes clear from the scope of matters subject to the oversight of the Bishops’ Council and … Continue reading

It is perfectly clear that the Karlovci Russian Councils and Synod thought of themselves as ecclesiastical institutions possessing the entire fulness of the competence and authority of the institutions of the Church Universal. It is noteworthy that the Karlovci Russian ecclesiastical institutions have not at least made themselves known to any autocephalous church through their representatives. So many of the “established facts” would have been eliminated then.

As an example and illustration of the “established” nature of the “established facts”, let us take the Court’s treatment of the well-known Decree No. 362 of November 20, 1920, of the Office of the Holy Synod and the Supreme Church Council chaired by His Holiness Patriarch Tikhon. This ruling is the actual and undeniable basis of the autonomous existence of the North American Metropolia, but does not have and cannot have anything to do with the Karlovci institutions. The Court writes the following regarding this decree; “This ukase, understood in the light of the canons [which ones?] and laws [what laws?] of the Church, authorized and required [?] all dioceses, bishops, and parts outside the territory of Russia to organize a provisional supreme church administration abroad [where does the term “abroad” or “outside Russia” appear in this decree?] with the object of supporting and preserving the unity of the Church outside Russia, and for the purpose of exercising, with respect to all parts of the Church outside Russia, all the powers, authority and functions heretofore exercised by the supreme administration within Russia, until such time as there should be restored within Russia normal church life and true religious freedom and there should be re-established within Russia the supreme church administration of the Church with freedom unhampered by the state to manage its affairs in a normal manner. Said Ukase No. 362 was and is canonical and lawful, and did require then and always has required all bishops, priests and laymen, and all parts, dioceses, missions, parishes and congregations of the Church situated outside of Russia, to be united together, to organize, establish and maintain a supreme church administration and organization for the government of their affairs and to be integral and component members and parts of such provisional church organizations until such time as normal church life returned inside Russia.”

Further examination of the actual text of this decree makes it irrefutably clear that it provides no basis for such assertions. But beforehand, we cannot avoid noting two features of this “established fact” (the eleventh in number).

The Church is repeatedly mentioned here, and this word is capitalized without any definition, so the impression is made that the subject is the One, Holy, Apostolic Church, the Church Universal, the One Church of God. It is equated not even with the Russian Church, but with the Karlovci organizations. But in actuality the entire great Church of Russia is only a part of the Church Universal, and the leadership of the Russian Church has no, and cannot have, jurisdictional privileges outside its boundaries, and especially over the entire Church Universal. The other feature of this “established fact,” if the impression that was just mentioned of the combination or equation of the Russian Church, or rather the Karlovci institutions, with the Church Universal, is incorrect, this is already an acknowledgement of a national element (and perhaps even a political one) determining, when it comes to structuring church life, that all members of a given Church, wherever they may be, remain “subjects” of sorts of their top church leadership. The Church Universal has never recognized this, always condemning phyletism as something that violated the normal structure and order of church life, and the Bulgarian schism, which has recently ended, serves as a clear and living example of the Church’s attitude toward basing church life on nationalistic elements. Apparently, this was all unknown to the Court, as was much else about the basic positions of the canon law of the Orthodox Church. In all 48 “established facts”, the Court, using diverse terminology, but insistently and repeatedly, sets forth the church ideology of the Karlovci institutions, affirming its positions with the words and expressions such as “according to the canons” (never indicating which ones) and the Church’s law (without citing the text of this “law”).

The Court adopted the ideology of the Karlovci figures, and all of the “facts” “established” by it have the following scheme as its basis:

“God’s Church is headed by the Council and the Synod. This is the One Church, and its leaders, the Council and the Synod, are the Karlovci figures and the Karlovci ecclesiastical institutions. Therefore, they have the full right to give orders everywhere, all are obliged to obey them, and their determinations are indisputably mandatory and always correct. All who do not obey them are rebels, schismatics, and apostates. But it all boils down to whether the Karlovci group is a church and its institutions are actually a Council and a Synod. It is impossible to give a positive response to these questions if the respondent does not wish to violate the canons and norms of structuring church life set out by them.”

In actual fact, the Karlovci Russian hierarchs are bishops who had abandoned their sees and dioceses (“to God’s will”), and from the moment they left their dioceses, they ceased to be diocesan hierarchs and forfeited all of their rights. In such a capacity and situation, they founded a new ecclesiastical institution on the territory of another local church, in the capital city of the Ecumenical Patriarch himself and without his consent, in violation of the definite instruction of the Ecumenical Patriarchate regarding their way of life and activity. They did this totally arbitrarily, and therefore uncanonically and utterly criminally, naming the institution a Supreme Church Authority, and later, after receiving Patriarch Tikhon’s decree shutting down this Supreme Church Authority, they named it the Synod of Bishops of the Russian Church Abroad.

So what canonical power and significance can the actions of this Synod have? None at all, of course.

When the Holy Ruling Synod was established in lieu of the Patriarchate in the Russian Church under Peter I, all of the patriarchs were informed about this, and only after they recognized the Russian Synod as “a beloved brother in Christ” did it acquire canonical significance. The Karlovcian Russian Synod was recognized by none of the patriarchs. Having arisen arbitrarily and without canonical basis, it did not appeal to any of the autocephalous churches asking to be recognized. On the contrary, its actions were not recognized and were condemned repeatedly by the local church leadership. Copies of the resolutions of the Ecumenical Patriarchate reveal the attitude of this patriarchate toward this Authority. There was a similar attitude toward the Russian Provisional Church Authority on the part of the Jerusalem Patriarchate, and the Karlovci figures cannot deny this without transgressing truthfulness. Patriarch Miron of Romania and Metropolitan Chrysostomos of Athens did not acknowledge the Karlovcian institutions’ right to exercise their jurisdictional authority in those regions. And when Metropolitan Antony, in the heat and fervor of his polemics announced that Metropolitan Evlogii was excommunicated from the Church due to his turning to the Ecumenical Patriarch, quoting the Savior’s words, “And if he still refuses to hear the church, let him be to you as a heathen and a tax collector,” he thereby clearly equated the voice of Karlovci Russian institutions with the voice of the Church—the One, Holy, and Apostolic Church of God. The autocephalous Churches demonstrated the following attitude to this action of the President of the Karlovci Synod: after this article by Metropolitan Antony appeared, Metropolitan Evlogii received Christmas greetings from all the Eastern Patriarchs, calling him (who had been excommunicated for transgressing the voice of the Church and becoming “as a heathen and a tax collector”) a beloved brother in Christ and their concelebrant. Patriarch Gregory of Antioch, a personal friend and great admirer of Metropolitan Antony, in his letter to Metropolitan Evlogii after his “excommunication”, calls him not only his fellow brother and concelebrant, but also a “co-participant” in Christ’s mysteries, showing very clearly his attitude toward this “excommunication” of Metropolitan Evlogii. Where, we might ask, does the Church’s voice resound, where does it originate: from the height of the ancient patriarchal thrones, or from the office of a refugee Russian hierarch?

The true canonical significance of Karlovci institutions and their actions now becomes clear. The “established” nature of the Court’s 48 facts as well as their veracity also become clear. We are certain that the Court’s opinion regarding the established and factual nature of the “established facts” it brought forward would have been different had it been aware not of the “established” facts, but of those that actually existed and that we brought forward. But it is difficult for us to say what prevented the Court from discovering these facts and familiarizing itself with them.

It must be acknowledged that the expressions that the Court uses, such as “in the light of the canons,” “according to the canons,” and “according to the laws”—without any basis—contributes nothing to the “established” nature of the facts. The “established facts” contain assertions that have no bearing on reality, as, for example, the assertion in “fact” 13 that the Provisional Church Authority in the South of Russia had been in Constantinople after Crimea— though it was never there. There are assertions in these “established” facts that graphically demonstrate that the Court had not totally mastered the subject it was addressing, that it had not clarified for itself the essence of church life and its structure, but simply repeated Karlovci assertions in its own words. In the same “established” Fact 13, the Court uses (repeating the Karlovcians) the expression “the Church Abroad” without taking into consideration (because it is simply repeating what others are saying) that this expression contains an inner contradiction and therefore lacks any meaning, affirming what does not and cannot exist, and attributing features of a normally healthy organism to an unhealthy phenomenon. What do the words Russkaia Zarubezhnaia Tserkovʹ ‘Russian Church Abroad’[4]Although usually translated as “abroad” or “outside Russia,” this is actually an adjective which literally means “beyond the border” [—trans.]. actually signify? The Church ‘beyond [za] the border [rubezh]’—beyond the border of what? We assume, to the extent that this question can be answered, that it means either “beyond the borders of the Russian Church” or “beyond the borders of the Russian nation.” The first answer cannot be regarded as correct or even admissible in general. Each local church, including, of course, the Russian Church, is strictly delimited by its borders, its location, and simply does not exist beyond these borders. The second answer can be applied only to the dioceses of the Russian Church that are outside the borders of Russia, such as the North American Metropolia, the Diocese of Japan, and the missions of the Russian Church (Peking, Urmia, Jerusalem). But the expression “Russian Church Abroad” includes not only the above-mentioned dioceses and missions, but the entire mass of the Russian diaspora, wherever it might be living, thereby introducing a national and political element into the definition of the concept of the “Russian Church”; this has always been condemned and never admitted by the Church. Yet the Court, having adopted the Karlovcian ideology without requisite critique and examination, uses this expression without taking into account what it means and to what contradictions it inevitably leads.

Through not being informed that the Karlovci institutions are not recognized as canonical by any of the local churches, the Court has committed a major error, attributing the canonical status of irrefutability to these actions, as if on behalf of the entire Church of God. Metropolitans Platon and Evlogii, having received their canonical rights from Patriarch Tikhon, attempted, in their desire to grant unity and peace to the Russian diaspora, to give legitimacy to the Karlovci institutions by taking part in their work. But when it was discovered that the Karlovci Council and Synod regard themselves as an authority, albeit one based upon nothing other than their own self-determination and not subject to anyone or anything, Metropolitans Evlogii and Platon ceased their activities in the Council and Synod. This was the inalienable right and duty of these two hierarchs. The Karlovci institutions decidedly had no right to dismiss them and to appoint anyone in their place in a “proper and normal manner,” as the Court expresses it. Although “[t]he Court finds that the Church Abroad did not ever withdraw from the Russian Orthodox Church” and that “the church organizations headed by Metropolitan Platon and Metropolitan Theophilus were not and are not part of the Russian Orthodox Church, but withdrew from said Church and were set up, existed and functioned unlawfully…” (Fact 13), these “findings” of the Court remain merely its own findings and, of course, cannot, and do not, have canonical force or significance.

Canonical significance in church life is possessed by actions, judgments, and opinions of individuals and institutions that have a place and position in the Church giving them a basis and a right to the same. But the opinions of secular courts remain their opinions. If in the course of governmental coercion such “findings” are put into practice, this would be simply yet another incursion of a governmental element and governmental power into the life of the Church, but there would not be any canonicity in this at all. During the last war, the “canonicity” of the Karlovci institutions in Central Europe was established by Hitler’s government. Now it has been established by the California State Court.

Recently, the newly elected Ecumenical Patriarch Athenogoras, as he journeyed from the United States, while visiting all of the Orthodox churches, avoided the churches of the Karlovci jurisdiction. This was no accident.

Leaving behind for now other “established” facts and their established nature, let us shift to a detailed and intensive examination of Decree No. 362, which is actually a basis for the life of the parts of the Russian Church that have been separated from their top leadership, but which does not have, and cannot have, anything to do with the Karlovci institutions.

Prior to adducing the original full text of this decree, it is necessary to bring to mind those promises which are made by one being consecrated to the episcopate before the consecration. “I confess that if I go to any foreign land I will not serve liturgy without the being ordered to do so by the metropolitan in whose borders I will be, and not to ordain a priest or a deacon of another region.”

And presently we also hear this promise from the mouth of him who is being consecrated: “Not to serve liturgy or perform any other sacred action in another diocese without the wish of the hierarch of that diocese, nor to perform any ordinations to the priesthood, diaconate, or any other clerical rank in another diocese, nor to accept anyone into my diocese who has not been dismissed by his local hierarch.”

Such are the promises that hierarchs make when they are consecrated. They demonstrate with total clarity that each hierarch can exercise his powers only in his diocese, and that beyond its boundaries, his hierarchical authority cannot be exercised without the consent of the hierarch of the diocese in which he is located. Therefore, the rulings by Patriarch Tikhon and the organs of the Supreme Church Authority, the Holy Synod, and the Supreme Church Council are valid and applicable only within the Moscow Patriarchate. It is totally incomprehensible how Fr. M. Polsky could assert in the Los Angeles Court in his inspired manner, yet totally contrary to reality, that a hierarch coming into someone else’s diocese was not obliged to ask the local hierarch for consent to perform sacred acts. We repeat that we are certain that if the Court had been aware of these facts, which have been established by the Church’s thousand-year practice, many of the Court’s “established” facts would have simply ceased to exist.

But let us turn to Decree No. 362. Here is the original text of this document:

By the blessing of His Holiness the Patriarch [Tikhon — ed.], the Holy Synod and the Supreme Church Council have come to a judgment regarding the necessity, above and beyond the instructions in His Holiness’ encircular, that in the event that diocesan councils cease their activity, the diocesan hierarchs should be given the same instructions in the event that their dioceses lose contact with the supreme church authorities, or that these authorities cease their activity, and they have decreed on the basis of existing judgments:

By a circular in the name of His Holiness, the diocesan hierarchs are to be given the following instructions for requisite cases:

1) In the event that the Holy Synod and the Supreme Church Council, for whatever reason, should cease their church-administrative activity, the diocesan hierarch shall immediately consult His Holiness the Patriarch or a person or institution designated for this purpose by His Holiness the Patriarch for guidelines and instructions for his service and in order to resolve cases that rightly fall within the remit of the Supreme Church Authority.

2) In the event that a diocese, due to movement of the front, changes in national borders, etc., should find itself cut off from the Supreme Church Authority, or if the Supreme Church Authority itself, headed by with His Holiness the Patriarch, should cease its activity for any reason, the diocesan hierarch shall immediately establish contact with the hierarchs of neighboring dioceses in order to organize a top level of church authority for several dioceses in similar circumstances, as either a temporary supreme church authority, a metropolitan district, or something else.

3) Care for organizing a supreme church authority for an entire group of dioceses in the situation indicated in paragraph 2 is the immutable duty of the senior hierarch in the group.

4) In the event that it should prove impossible to establish of contact with the hierarchs of neighboring dioceses, until the highest level of church authority is restored, the diocesan hierarch shall assume the entire fulness of authority granted him by the canons, taking all measures to organize local life, and, if necessary, to organize the diocesan administration as applicable to the current circumstances, resolving all matters that fall within his hierarchical authority in accordance with the canons, and with the cooperation of the appropriate diocesan administrative bodies (a diocesan assembly, council, and so on) or those that have been organized anew; in the event of the impossibility of forming the above institutions personally, he is to rule unilaterally, subject to his own responsibility.

5) In the event that the situation indicated in paragraphs 2 and 4 turns out to be longstanding and even permanent, especially if it becomes impossible for the hierarch to enlist the cooperation of diocesan administrative bodies, it would be more expedient, for the sake of maintaining church order, to divide the dioceses into several local dioceses, for which the diocesan hierarch is to:

A) grant his Right Reverend Vicars, who are now exercising, according to orders, the rights of semi-autonomous bishops, the full privileges of diocesan hierarchs, as well as organizing administrations under them as applicable to local conditions and possibilities;

B) establish, according to the conciliar purview of the other diocesan hierarchs, new episcopal sees, with autonomous or semi-autonomous privileges.

6) A diocese that has been divided in the manner indicated in paragraph 5 forms an ecclesiastical district headed by the hierarch of the main diocesan city, which assumes the direction of local church affairs according to the canons.

7) If a diocese that has been deprived of its hierarch finds itself in the situation described in paragraphs 2 and 4, the Diocesan Council, or, in its absence, the clergy and laity, are to turn to the diocesan hierarch of the nearest diocese, or the one most accessible in terms of transportation, and the designated hierarch shall either assign his vicar to administer the widowed diocese or start administering it himself, acting in the cases indicated in paragraph 5 with respect to this diocese, according to paragraphs 5 and 6; under appropriate circumstances the widowed diocese may be organized into a special ecclesiastical province.

8) If for any reason there is no summons from a widowed diocese, the diocesan hierarch indicated in paragraph 7 shall take it upon himself to care for it and its affairs on his own initiative.

9) In the event of the extreme disorganization of church life, when certain persons and parishes cease recognizing the authority of the diocesan hierarch, he, should he find himself in the situation indicated in paragraphs 2 and 6, shall not divest himself of hierarchical authority, but shall organize parishes made up of persons who have remained loyal to him, and deaneries and dioceses made up of these parishes, allowing services to be conducted where needed, even in private homes and in other premises adapted for this purpose, while breaking ecclesiastical relations with those who are disobedient.

10) In the event that central church authority is restored, all measures undertaken locally, in accordance with the present instructions, must subsequently be presented to it for confirmation.

+Patriarch Tikhon

We have presented this document in full, and the Karlovci figures cannot reject this text, since they have printed it in exactly this form in the 1948 Orthodox Calendar, which was published at Holy Trinity Monastery.

What, then, does this document tell us? To whom does it apply? What are its basic purpose and aim?

It is absolutely clear and undeniable that this document is aimed at preserving order and norms in church life in any diocese within the Moscow Patriarchate. It speaks of dioceses of the Moscow Patriarchate that are cut off from their central ecclesiastical authority. It refers to these dioceses and to the hierarchs ruling them. The concept and words “diocesan hierarch” have had and have a definite and precise meaning in the Russian Church. This is a hierarch to whom a certain diocese has been given and entrusted, over which he rules. Hierarchs who do not rule a diocese have had and have other names: either vicars, retired, or “present” (that is, present in the Synod, as, for example, Bishop Markel Popel from the Uniate clergy or Bishop Nikon). The qualifier “diocesan” was never applied to them. We assume that another understanding cannot be given to this document without violating the laws of logic and common sense.

In “established” Fact 11, the Court says that “[t]his ukase, interpreted in the light of the canons [which ones?] and laws [again, which ones?] authorized and required all dioceses, bishops and parts of the Church outside of the territory of Russia to organize a provisional supreme church administration abroad…” We have just quoted this decree in full and it has no mention of Russia (the word does not even appear) nor of its territory, nor of an ecclesiastical authority abroad. It only speaks of dioceses of the Moscow Patriarchate (to which alone it is applicable) and which are separated for various reasons, due to the Revolution and civil war, from its central authority. In “established” Fact 13, the Court asserts that in 1921, the Temporary Supreme Church Administration was in Constantinople. One can ask the Court: what diocese of the Russian Church was in Constantinople at the time, and in the “light” of which canons and laws is it permitted for two dioceses to be in one territory? We are aware, and it is impossible to convince us otherwise, that from the earliest times, the diocese of the Ecumenical Patriarch has been in Constantinople, and we are also aware that there cannot be two episcopal sees in the same city and in one territory according to the canon law of the Orthodox Church. If the Court is aware of anything else in this regard, definite information about this would be a valuable asset to the study of canon law, and since this information would be appropriately substantiated by the Court, it would be included in all courses of canon law on a par with the Novellas of Justinian, the Syntagma of Blastares, and the commentaries of Balsamon.

In actual fact, there was no diocese of the Russian Church in Constantinople at the end of 1920, nor could there have been one. There were a few Russian hierarchs who rather accidentally ended up in the capital city of the Ecumenical Patriarch, having abandoned their dioceses and sees “to God’s will.” Such abandonment of their dioceses did not give these hierarchs any rights and privileges, and could not have done so. They divested themselves of their rights as ruling hierarchs at the moment when they decided to “evacuate,” forgetting that a diocese, i.e. hundreds and thousands of churches, and hundreds or millions of faithful, were not evacuating, and apparently forgetting at that moment that they were diocesan hierarchs. In what way, on what basis, could the above Decree No. 362 apply to them? If the Court had established this relationship, it would have made a huge contribution to logic, indicating the way in which the human mind, without violating the laws of logic, can construct such a syllogism:

1. Decree No. 362 can apply only to dioceses of the Russian Church.
2. There was never a diocese of the Russian Church in Constantinople, nor could there ever have been one.

Conclusion: Therefore, the Russian hierarchs who were in Constantinople in 1920 could, on the basis of this decree, and had the right to, establish a Supreme Church Authority in Constantinople.

Of course, there are no such laws of logic that could support the above syllogism. It is thus permissible to think that Decree No. 362 was not known to the Court in its actual details, but only in the Karlovcian interpretation.

We will set aside the numerous assertions by the Court that elicit total bewilderment, always remaining unanswered due to their unexpected nature and unknown provenance. For instance, there is the Court’s assertion that the schism between the Eastern and Western Churches took place in the tenth century, whereas ties were maintained until 1054, and the assertion that Orthodoxy in Russia spread in the Middle Ages, while the baptism of Rusʹ was in 988, and the assertion that Patriarch Tikhon had some sort of assistant who was jailed by the Bolsheviks and was then executed.

We took part in the Great Moscow Council of 1917—1918, and we know exactly how the patriarchate was restored at that Council. The Council did not appoint any “assistant” to the patriarch. We will set this and much else aside. Having adopted the Karlovcian ecclesial ideology, the Court was obliged to make assertions that were possible only in light and in the spirit of this ideology, but which had no bearing on reality, such as, for example, the affirmation of something close to infallibility of the Karlovci Council’s and Synod’s decisions regarding church matters or the adoption by the Karlovci organization of the predicates of the One, Holy, and Apostolic Church Universal, which is the pillar and ground of truth. And the Court is unaware of the definitions by the Constantinople and Jerusalem Patriarchates regarding the actions of the Karlovci institutions and figures. The Court is unaware of the actual and fully justified attitude of the other local autocephalous churches toward the Karlovci organization. In the meantime, it would seem that the judgment of the leaders of the local churches regarding a church organization that all but claims infallibility in its actions and words has primary significance. The significance and merit of various institutions and organizations is determined by the judgment of institutions of a similar nature, and the Russian church organizations in Karlovci and Munich can receive ecclesiastical canonical significance, power, and merit only if these qualities and attributes are recognized in them by autocephalous churches and not by secular governmental institutions. A government, of course, can give actual outward power and significance to any church organization by imposing its governmental authority—cuius regio, eius religio.

During the last war, as we have already said, these same Karlovci organizations obtained their influence and significance in Central Europe from Hitler’s regime. The canonicity of these organizations in this regard cannot be discerned. The Court of the State of California, as an institution foreign in nature to the Church, cannot, due to this foreign nature in relation to the Church and its institutions, grant, even on the basis of “established” facts (we saw how these facts were established and to what extent they are actually facts) canonicity to a certain church organization that lacks that canonicity, but wishes and covets it to the utmost degree. Governmental authority cannot give what it does not have itself. Neither grace nor canonicity can be received or determined by governmental authority.

This, perhaps, is what the fear mongers should think about, rather than frightening the faithful with the Savior’s words that have nothing to do with the current situation.

In this article, we have set aside the problem of the canonical structure of the Russian diaspora church. This is available in our other article, “Tserkovno-kanonicheskoe polozhenie russkogo razseianiia” [“The Ecclesiastical-Canonical Situation of the Russian Diaspora”]. We will only state here that the above-mentioned Decree No. 362 is currently applicable only to the North American Metropolia as an undisputed part of the Russian Church. The right and duty to grant canonicity in the Russian diaspora rests with Metropolitan Theophilus and not with organizations that are self-constituted, arbitrary, and recognized nowhere in God’s Church. The ecclesiastical-canonical structuring of the Russian diaspora is a very difficult and complex matter and can be undertaken only according to the judgment and decision of God’s entire Church, by way of agreement among its leaders and through the mediation of the Ecumenical Patriarch as the first among them. This requires separate treatment. It bears mention here that the above-mentioned Decree No. 362, although it does not and cannot apply to the Karlovci-Munich organizations, is superscribed by them as “The Basic Law of the Russian Orthodox Church Abroad,” in the naïve assumption that their point of view will be accepted without any investigation. And here, of course, we can discern neither “workers of iniquity”, nor “those who practice lawlessness.”

Is this not the work of the Church? Is this not the structuring of church life?