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Persona ‘Nun’ Grata: Separation of Church and State

George M. Heymann

The opening provision of the First Amendment to the U.S. Constitution, ratified 227 years ago on Dec. 15, 1791, states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; …”

The doctrine of separation of church and state is a bedrock in our institutions of government since the founding of our country, notwithstanding, ironically, that the words “In God We Trust” appears in every courtroom, and on all U.S. currency.

Over the years, much has come to light about members of the priesthood who not only became predators to young men under their tutelage, but to the nuns as well who live in the convents on church property. See “Pope Addresses Abuse of Nuns by Priests and Bishops,” New York Times (Feb. 7, 2019).

In the recent case Russian Orthodox Convent Novo-Diveevo v. Sukharevskaya, 2018 NY Slip Op 08167 (2d Dept. Nov. 28, 2018), the Appellate Division, Second Department, in a 3-2 decision, affirmed the decision of the lower court to dismiss the plaintiff’s summary proceeding as well as its action for ejectment and for use and occupancy against the defendant.


The plaintiff (convent) owns property in Nanuet, N.Y. on which it operates a church and convent. The defendant was a nun who has resided at the convent since 1999. In 2003 the nun alleged that there was sexual misconduct by one of the convent’s priests and complained to her superiors in that regard. Two years later, in 2005, she was directed to vacate the covenant property. Upon her refusal to abide by this directive, she was disciplined by an ecclesiastical court in June 2006 and for a two-year period was ineligible to wear her religious garb and to receive communion. As a result of continued complaints of sexual harassment by the resident priest, the ecclesiastical court, in 2008, permanently defrocked the nun and disallowed her to remain as a resident at the convent.

Previously, in 2006 the convent sought to evict the nun via a summary proceeding in the Justice Court. Subsequently, in May 2008, the convent commenced a second action for ejectment in the Supreme Court and to recover damages for use and occupancy as against the defendant nun. The Supreme Court consolidated the two proceedings in September 2008 and conducted a nonjury trial. The court determined that the ecclesiastical court’s proceedings and findings were in retaliation for the misconduct allegations and that the defendant established an equitable defense to her eviction and ejectment. The court then dismissed both the summary proceeding and complaint and the convent appealed.

Second Department's Decision

In affirming the decision of the Supreme Court, the majority relied heavily on the case Matter of Congregation Yetev Lev D’Satmar v. Kahana, 9 N.Y.3d 282 (2007), citing the First Amendment which “forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs.” Id. at 286. The court stated, however, that it may “properly preside over a dispute involving a religious body only when the dispute may be resolved utilizing neutral principles of law” (citations omitted).

In Matter of Congregation Yetev Lev D’Satmar v. Kahana, the sons of the deceased Grand Rabbi in Brooklyn were the heads of their respective congregations, one in Brooklyn the other in Monroe, N.Y. Aside from a major feud between the two congregations, there was a split within the Brooklyn congregation. Each of the Brooklyn factions held an election for president of its respective congregation but there arose an issue as to whether the individual selected by one faction could serve because the deceased Grand Rabbi had previously removed him from the congregation. The matter was brought in Kings Supreme Court, which declined to make a determination as to the validity of the election dispute, stating that the application of neutral principles of law would also require the application of ecclesiastical doctrines in violation of the First Amendment. The Appellate Division, Second Department, with one justice dissenting, determined that the condition for membership in the congregation was based on religious criteria, including whether a congregant follows the ‘ways of the Torah.’” Thus, the issue of expulsion called into question religious issues beyond the mere criteria of membership found in the Congregation’s bylaws.

The Appellate Division granted leave to appeal and the Court of Appeals affirmed, holding that “membership issues such as those that are at the core of this case are an ecclesiastical matter because … here, the Congregation’s bylaws condition membership on religious criteria… .” Id. at 287-88 (citations omitted).

Judge Smith, in his dissent, pointed out:

In cases like this one, there is no religious tribunal to defer to, and the rule becomes one of justiciability; the majority here does not accept the decision of a religious tribunal binding, but simply refuses to decide the case at all. Such a refusal is a drastic measure, because when a case is nonjusticiable it means the wrong committed, if there is one, cannot be remedied anywhere. Whichever side happens to be the defendant in the case will win. … Nonjusticiability implies that the party having the burden of proof loses; thus it is ordinarily a “defendant wins” rule. It will inevitably produce arbitrary and inconsistent, and sometimes perverse or unjust, results.

Id. at 289, 291.

In Russian Orthodox Convent Novo-Diveevo v. Sukharevskaya, the Second Department determined that the issue was “nonjusticiable” because it would require making an “impermissible inquiry” into religious doctrine, since the civil proceedings were “inextricably intertwined” with the ecclesiastical court’s decision.

In the dissent by Justice Connolly, in which Justice Cohen concurred, it is noted that the defenses to an action of ejectment are extremely limited and there was nothing in this matter that could establish that the nun had rights superior to the church for remaining in the covenant for an infinite period of time.

As pointed out, “even assuming that the plaintiff acted inequitably toward the defendant in defrocking her, the defendant failed to demonstrate that the plaintiff acted inequitably vis-à-vis its property rights, such that equity should be invoked to deny the plaintiff the right to exclude the defendant from its property. … Under the circumstances of this case, the neutral-principles-of-law doctrine requires that this Court treat the ecclesiastical court’s determination as binding on the parties.” 2018 NY Slip Op 08167 (citations omitted).

Referring to the religious nature of the dispute between the parties as a “red herring,” the dissent concludes that “the majority’s determination effectively converts the defendant’s license to reside at the property into a life estate in complete derogation of the plaintiff’s rights as a real property owner.”


In the opinion of this writer, the stance taken by the dissent is the proper way to resolve this issue which, otherwise, will never be resolved. This situation is, in my opinion, akin to the many superintendent holdover proceedings I presided over in Housing Court, where the landlord sought to regain possession of the premises resided in by the super as part of his or her employment. The court had no jurisdiction to inquire as to, or respond to, the allegations by the respondent-super that his or her termination of employment was wrongful and improper. That was a matter to be determined in another forum. The court had to accept the termination as fact and then rule on whether the super should be evicted from the subject premises.

Similarly, while the defrocking of the nun remains beyond the scope of the Supreme Court, the related property issues are justiciable in nature as they are clearly severable from the basis for the defrocking.

Thus, it would behoove the Court of Appeals to depart from its holding in Matter of Congregation Yetev Lev D’Satmar v. Kahana in this instance and reverse the Second Department’s decision. Here, neutral principles of law apply as to the convent’s rights to regain its property and the court would be prohibited from interfering in any manner as to the ecclesiastical determination with respect to the defendant-nun’s status with the convent as a matter of deference.

George M. Heymann, a former NYC Housing Court Judge, is of counsel at Finz & Finz and an adjunct professor of law at the Maurice A. Deane School of Law at Hofstra University.