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Protecting private property: The road to sainthood?

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The decision to protect private property from state control played a pivotal role in the upcoming beatification of a Catholic martyr. On June 25 in Vilnius, the Roman Catholic Church will beatify Archbishop Teofilius Matulionis. The ceremony will mark the first time the Vatican has recognized a Soviet-era martyr from Lithuania, and the first Lithuanian beatified in his native land, according to the local bishops’ conference.

Archbishop Teofilius was born in 1873 in the village of Kadariškiai. He was ordained in 1900 and served in Latvia before taking up a parish in St. Petersburg, Russia, in 1910. He was said to have a profound devotion to the Sacred Heart of Jesus. But seven years later, the Bolshevik Revolution would change the character of the nation and put him on the path to martyrdom.

In March 1922, Lenin ordered his fellow Bolsheviks to use a severe famine as a guise to “confiscate all Church property with all the ruthless energy we can still muster.” The following year, they demanded that Abp. Teofilius – then still a priest – “voluntarily” sign over church property to the State. He refused and was sentenced to three years in prison, the first of his three prison sentences.

Teofilius Matulionis, circa 1933. (Public domain.)

After his release, he was secretly ordained a bishop in 1929, promptly returning to prison. In Solovki prison, later immortalized in Aleksandr Solzhenitsyn’s Gulag Archipelago, he labored by day and secretly celebrated the Mass by moonlight. After a prisoner exchange, he was released in 1933.

After gaining his freedom, he met Pope Pius XI and asked for his pontifical blessing. The pope reportedly replied, “You are a martyr! You must bless me first!” Teofilius was made bishop of Kaišiadorys, Lithuania, in 1943.

The Soviets had occupied the nation in 1940 and commanded all priests to take a loyalty oath and to spy on their parishioners for the NKVD. Refusing to do so, and issuing a defiant pastoral letter in 1945, he was sentenced to 10 years in prison. After his release, he consecrated a bishop without government approval and was exiled.

In 1962, he received word that he had been made an archbishop ad personam and was invited to attend the Second Vatican Council. Upon learning this, Communist authorities beat him and administered a lethal injection, causing his death on August 20, 1962. Pope Francis has certified that the Marxists killed him in odium fidei (out of hatred for the faith), paving the way for his beatification.

Obviously, the archbishop did not prize property for its own sake. He loved not his own life unto the death. But his first step to defending his faith was protecting church property from profanation, even in a clearly futile undertaking. His witness shows that private property exists as a hedge around other human rights, which must stand or fall together.

Teofilius’ followers need not look far to see the relevance of his example. Thousands in his former home of St. Petersburg have protested the government’s decision to return St. Isaac’s Cathedral – which the Bolsheviks seized and turned into a museum of atheism – to regular use by the Russian Orthodox Church.

In Ukraine, it is the Russian Orthodox Church whose property and church order may be threatened by the State. Two controversial bills, which apply only to the Ukrainian Orthodox Church (Moscow Patriarchate), would undermine church property rights (Bill 4128) and require government approval for the appointment of bishops and metropolitans (Bill 4511) – the same sequence used in Russia 90 years earlier.

The Moscow Patriarchate worries that rival churches will send parishioners to “join” parishes en masse strictly for the purpose of seizing their property by majority vote. The leader of the Bulgarian Orthodox Church, Patriarch Neophyte, sent a letter to Ukrainian President Petro Poroshenko this month calling the measures “extremely dangerous.”

“We believe that the proposed changes are blatantly discriminatory,” the patriarch wrote. “They obviously violate the equality of religious organizations of Ukraine before the law and give parishes’ fates into the hands of strangers, creating a legal basis for the seizure of the churches of the canonical Ukrainian Orthodox Church by schismatics and extremists.” In his message is the implicit warning that, if the government can shuffle church buildings between Orthodox jurisdictions, it can as easily transfer property from the Church to the State.

The Ukrainian government defends these laws, saying the state of hostilities requires greater scrutiny of Russian Church appointees (who are not devoid of government influence themselves) and that Bill 4128 simply allows parishioners to vote on whether they belong to the Moscow Patriarchate or a (not currently canonically recognized) patriarchate based in Kiev. “The change lies in the fact that if a majority decide to change jurisdiction, they also receive any religious property,” said MP Victor Yelensky, who sponsored the bill.

But that’s not the way the Orthodox canon law or property rights work.

In churches with an episcopal/hierarchical church government, such as the Orthodox and Roman Catholic churches, congregations use their property under the guidance of the diocese, which is its custodian. If its members wish to leave the denomination, they may do so – but they may not take Church property with them. U.S. courts have upheld this principle in numerous cases: Parishioners may not use the courts to evade ecclesiastical laws they had once accepted as binding.

The matter is relatively simple in the West due to the norms of private property, enforceable contracts, and the rule of law. It is infinitely more complicated when the churches are state property, as is the case in many Orthodox countries.

The archbishop of Athens and All Greece, Abp. Ieronymos, recently lamented this aspect of Church-State relations. “The Church must be free and financially independent,” he said on May 28. Churches desiring the independence to serve the Lord must first seek self-sufficiency apart from the treasury of Caesar.

Private property gives force to religious liberty. Property rights assure that the government cannot expropriate and redistribute “religious property” at will. It assures that, in the words of the Byzantine Divine Liturgy, “The holy things are for the holy.”

In the way Archbishop Teofilius Matulionis handled government assaults on the church’s private property, Christians of all backgrounds may find an example worthy of imitation.

(Photo credit: Vilensija. This photo has been cropped and modified for size. CC BY-SA 3.0.)

Rev. Ben Johnson Rev. Ben Johnson is Senior Editor at the Acton Institute.

Comments

  • Seizing church property was one of the crimes Protestants committed in the Reformation.

  • 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) 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 moral law. What happens though when the exercise of one or more of these rights come in 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 (https://risu.org.ua/en/index/all_news/community/religion_and_policy/67257). 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. In traditional 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 (http://www.doaks.org/resources/publications/doaks-online-publications/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 profitably 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 (https://publicorthodoxy.org/2017/05/22/church-property-ukraine/#more-2964).***

    Evidently, our eucharistic ecclesiology and emphasis on active lay participation in the governance of the Church looks 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 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 (https://publicorthodoxy.org/2017/05/22/church-property-ukraine/#more-2964).**

    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 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 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