Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America/Concurrence Frankfurter
Mr. Justice FRANKFURTER, concurring.
Let me put to one side the question whether in our day a legislature could, consistently with due process, displace the judicial process and decide a particular controversy affecting property so as to decree that A not B owns it or is entitled to its possession. Obviously a legislature would not have that power merely because the property belongs to a church.
In any event, this proceeding rests on a claim which cannot be determined without intervention by the State in a religious conflict. St. Nicholas Cathedral is not just a piece of real estate. It is no more that than is St. Patrick's Cathedral or the Cathedral of St. John the Divine. A cathedral is the seat and center of ecclesiastical authority. St. Nicholas Cathedral is an archiepiscopal see of one of the great religious organizations. What is at stake here is the power to exercise religious authority. That is the essence of this controversy. It is that even though the religious authority becomes manifest and is exerted through authority over the Cathedral as the outward symbol of a religious faith.
The judiciary has heeded, naturally enough, the menace to a society like ours of attempting to settle such religious struggles by state action. And so, when courts are called upon to adjudicate disputes which, though generated by conflicts of faith, may fairly be isolated as controversies over property and therefore within judicial competence, the authority of courts is in strict subordination to the ecclesiastical law of a particular church prior to a schism. Watson v. Jones, 13 Wall. 679, 20 L.Ed. 666. This very limited right of resort to courts for determination of claims, civil in their nature, between rival parties among the communicants of a religious faith is merely one aspect of the duty of courts to enforce the rights of members in an association, temporal or religious, according to the laws of that association. See Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16-17, 50 S.Ct. 5, 7-8, 74 L.Ed. 131.
Legislatures have no such obligation to adjudicate and no such power. Assuredly they have none to settle conflicts of religious authority and none to define religious obedience. These aspects of spiritual differences constitute the heart of this controversy. The New York legislature decreed that one party to the dispute and not the other should control the common center of devotion. In doing so the legislature effectively authorized one party to give religious direction not only to its adherents but also to its opponents. See St. Nicholas Cathedral of Russian Orthodox Church in North America v. Kedroff, 302 N.Y. 1, 24-29, 96 N.E.2d 56, 68-72.
The arguments by which New York seeks to justify this inroad into the realm of faith are echoes of past attempts at secular intervention in religious conflicts. It is said that an impressive majority both of the laity and of the priesthood of the old local church now adhere to the party whose candidate New York enthroned, as it were, as Archbishop. Be that as it may, it is not a function of civil government under our constitutional system to assure rule to any religious body by a counting of heads. Our Constitution does assure that anyone is free to worship according to his conscience. A legislature is not free to vest in a schismatic head the means of acting under the authority of his old church, by affording him the religious power which the use and occupancy of St. Nicholas Cathedral make possible.
Again, it is argued that New York may protect itself from dangers attributed to submission by the mother church in Moscow to political authority To reject this claim one does not have to indulge in the tendency of lawyers to carry arguments to the extreme of empty formal logic. Scattered throughout the country there are religious bodies with ties to various countries of a world in tension-tension due in part to shifting political affiliation and orientation. The consideration which permeates the court's opinion below would give each State the right to assess the circumstances in the foreign political entanglements of its religious bodies that make for danger to the State, and the power, resting on plausible legislative findings, to divest such bodies of spiritual authority and of the temporal property which symbolizes it.
Memory is short but it cannot be forgotten that in the State of New York there was strong feeling against the Tsarist regime at a time when the Russian Church was governed by a Procurator of the Tsar. And when Mussolini exacted the Lateran Agreement, argument was not wanting by those friendly to her claims that the Church of Rome was subjecting herself to political authority.  The fear, perhaps not wholly groundless, that the loyalty of its citizens might be diluted by their adherence to a church entangled in antagonistic political interests, reappears in history as the ground for interference by civil government with religious attachments.  Such fear readily leads to persecution of religious beliefs deemed dangerous to ruling political authority. It was on this basis, after all, that Bismarck sought to detach German Catholics from Rome by a series of laws not too different in purport from that before us today.  The long, unedifying history of the contest between the secular state and the church is replete with instances of attempts by civil government to exert pressure upon religious authority. Religious leaders have often made gestures of accommodation to such pressures. History also indicates that the vitality of great world religions survived such efforts. In any event, under our Constitution it is not open to the governments of this Union to reinforce the loyalty of their citizens by deciding who is the true exponent of their religion.
Finally, we are told that the present Moscow Patriarchate is not the true superior church of the American communicants. The vicissitudes of war and revolution which have beset the Moscow Patriarchate since 1917 are said to have resulted in a discontinuity which divests the present Patriarch of his authority over the American church. Both parties to the present controversy agree that the present Patriarch is the legitimately chosen holder of his office, and the account of the proceedings and pronouncements of the American schismatic group so indicate. Even were there doubt about this it is hard to see by what warrant the New York Legislature is free to substitute its own judgment as to the validity of Patriarch Alexy's claim and to disregard acknowledgment of the present Patriarch by his co-equals in the Eastern Confession, the Patriarchs of Constantinople, Alexandria, Antioch, and Jerusalem, and by religious leaders throughout the world, including the present Archbishop of York. 
These considerations undermine the validity of the New York legislation in that it enters the domain of religious control barred to the States by the Fourteenth Amendment.
Mr. Justice BLACK agrees with this opinion on the basis of his view that the Fourteenth Amendment makes the First Amendment applicable to the States.
Mr. Justice DOUGLAS, while concurring in the opinion of the Court, also joins this opinion.
Mr. Justice JACKSON, dissenting.
^1 The Encyclopedia Britannica recounts that under the agreement between the Papal See and Mussolini, 'The supremacy of the state was recognized by compelling bishops and archbishops to swear loyalty to the government.' Encyclopedia Britannica: 'Anticlericalism,' 62, 62A (1948 ed.).
^2 Such apprehension, at least in part, seems to have underlain two important religious controversies in a nation as devoted to freedom as Great Britain and as recently as a century ago. Both the dispute giving rise to the Free Church of Scotland Appeals and the brief but vigorous anti-Catholic outburst of 1850 are not unfairly attributable to a claim by the State of comprehensive loyalty, undeflected by the competing claims of religious faith. See Laski, The Problem of Sovereignty, 27-68, 121 210. See also Buchanan, The Ten Years' Conflict (Edinburgh 1849); Free Church of Scotland v. Overtown, (1904) A.C. 515; Free Church of Scotland Appeals (Orr. ed., Edinburgh, 1904).
^3 Reichs-Gesetzblatt, 1871, p. 442; Reichs-Gesetzblatt, 1872, p. 253; Reichs-Gesetzblatt, 1874, p. 43; Reichs-Gesetzblatt, 1876, p. 28; 5 Gesetz-Sammlung fur die Koniglich Preussischen Staaten, 154, 221, 223, 225, 228, 337, 342; 6 id., at 30, 38, 40, 75, 170; 7 id., at 291. These laws have been thus summarized: 'The Falk Laws are an attempt to insist on the universal paramountcy of German influences. The expulsion of the Jesuits removed an order which he (Bismarck) believed to be concerned with the promotion of Polish interests. The refusal of bishoprics to any save a German who has followed a course of study approved by the government has a clear purport * * * of purging the Catholic episcopate of men not likely to be in sympathy with German ideals. * * * The twenty-fourth article went even further and gave the State the right of interference with ecclesiastical functions where it deemed them improperly performed. * * * The law of the twentieth of May, 1874, virtually handed over the control of vacant bishoprics to the State. * * * Catholic Churches on Prussian soil were handed over to the old Catholics (those refusing to adhere to the newly-promulgated dogma of papal infallibility) in such parishes as those in which the majority consisted of their sympathisers, for certain hours of the day * * *.' Laski, op. cit. supra, note 2, at 256-258. Bismarck's Culturkampf, of which these laws were a part, is fully discussed in Goyau, Bismarck et l'Eglise. A full text of the laws may be found in the appendix to that work.
^4 See Garbett, In an Age of Revolution, 207-213; Niemo ller, Why I Went to Moscow, The Christian Century, March 19, 1952, p. 338.