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DOUGLAS, J., dissenting.

United States to those of the States requires that claims even as serious as those here urged first be raised in the courts of the demanding State. Even so, it is appropriate to emphasize that in this case there is no suggestion in the application for habeas corpus that the prisoner would be without opportunity to resort to the courts of Alabama for protection of his constitutional rights upon his return to Alabama. We cannot assume unlawful action of the prison officials which would prevent the petitioner from invoking the aid of the local courts nor readily open the door to such a claim. Compare Cochran v. Kansas, 316 U. S. 255. Our federal system presupposes confidence that a demanding State will not exploit the action of an asylum State by indulging in outlawed conduct to a returned fugitive from justice.

MR. JUSTICE DOUGLAS, dissenting.

The petition presents facts which, if true, make this a shocking case in the annals of our jurisprudence.

Respondent, a Negro, was convicted of burglary in Alabama and sentenced to hard labor at a state penitentiary. After six years he escaped and was apprehended in Ohio. Thereafter Alabama undertook to extradite him so that he could be returned to Alabama and serve the balance of his sentence. He thereupon filed this petition for habeas corpus to be released from the custody of petitioner, the Ohio sheriff who presently detains him.

He offered to prove that the Alabama jailers have a nine-pound strap with five metal prongs that they use to beat prisoners, that they used this strap against him, that the beatings frequently caused him to lose consciousness and resulted in deep wounds and permanent

scars.

He offered to prove that he was stripped to his waist and forced to work in the broiling sun all day long without a rest period.

DOUGLAS, J., dissenting.

344 U.S.

He offered to prove that on entrance to the prison he was forced to serve as a "gal-boy" or female for the homosexuals among the prisoners.

Lurid details are offered in support of these main charges. If any of them is true, respondent has been subjected to cruel and unusual punishment in the past and can be expected on his return to have the same awful treatment visited upon him.

The Court allows him to be returned to Alabama on the theory that he can apply to the Alabama courts for relief from the torture inflicted on him. That answer would suffice in the ordinary case. For a prisoner caught in the mesh of Alabama law normally would need to rely on Alabama law to extricate him. But if the allegations of the petition are true, this Negro must suffer torture and mutilation or risk death itself to get relief in Alabama. It is contended that there is no showing that the doors of the Alabama courts are closed to petitioner or that he would have no opportunity to get relief. It is Isaid that we should not assume that unlawful action of prison officials would prevent petitioner from obtaining relief in the Alabama courts. But we deal here not with an academic problem but with allegations which, if proved, show that petitioner has in the past been beaten by guards to the point of death and will, if returned, be subjected to the same treatment. Perhaps those allegations will prove groundless. But if they are supported in evidence, they make the return of this prisoner a return to cruel torture.

I am confident that enlightened Alabama judges would make short shrift of sadistic prison guards. But I rebel at the thought that any human being, Negro or white, should be forced to run a gamut of blood and terror in order to get his constitutional rights. That is too great a price to pay for the legal principle that before a state prisoner can get federal relief he must exhaust his state

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DOUGLAS, J., dissenting.

remedies. The enlightened view is indeed the other way. See Johnson v. Dye, 175 F. 2d 250 (which unhappily the Court reversed, 338 U. S. 864); Johnson v. Matthews, 86 U. S. App. D. C. 376, 383-386, 182 F. 2d 677, 684-687; Commonwealth v. Superintendent of County Prison, 152 Pa. Super. 167, 31 A. 2d 576.

Certainly there can be no solid objection to the use of habeas corpus to test the legality of the treatment of a prisoner who has been lawfully convicted. In Cochran v. Kansas, 316 U. S. 255, 258, habeas corpus was used to challenge the legality of the practice of prison officials in denying a convict the opportunity of presenting appeal papers to a higher court. And see In re Bonner, 151 U. S. 242. Such an act of discrimination against a prisoner was a violation of the Equal Protection Clause of the Fourteenth Amendment. The infliction of "cruel and unusual punishments" against the command of the Eighth Amendment is a violation of the Due Process Clause of the Fourteenth Amendment, whether that clause be construed as incorporating the entire Bill of Rights or only some of its guaranties. See Adamson v. California, 332 U. S. 46. Even under the latter and more restricted view, the punishments inflicted here are so shocking as to violate the standards of decency implicit in our system of jurisprudence. Cf. Francis v. Resweber, 329 U. S. 459.

The Court of Appeals should be sustained in its action in giving respondent an opportunity to prove his charges. If they are established, respondent should be discharged from custody and saved the ordeal of enduring torture and risking death in order to protect his constitutional rights.*

*The requirements of 28 U. S. C. § 2241 (c) regulating the use of habeas corpus are met since the charges, if proved, would result in a return of respondent to Alabama to a "custody in violation of the Constitution" of the United States.

KEDROFF ET AL. v. SAINT NICHOLAS CATHEDRAL OF THE RUSSIAN ORTHODOX

CHURCH IN NORTH AMERICA.

APPEAL FROM THE COURT OF APPEALS OF NEW YORK.

No. 3. Argued February 1, 1952.-Reargued October 14, 1952.Decided November 24, 1952.

In a suit brought in a New York state court by a corporation, holder of the legal title, to determine which prelate was entitled to the use and occupancy of a Cathedral of the Russian Orthodox Church in New York City, the Court of Appeals of New York held for plaintiff, on the ground that Article 5-C of the Religious Corporations Law of New York had the purpose and effect of transferring the administrative control of the Russian Orthodox churches in North America from the Supreme Church Authority in Moscow to the authorities selected by a convention of the North American churches. Held: As thus construed and applied, the New York statute interferes with the free exercise of religion, contrary to the First Amendment, made applicable to the states by the Fourteenth Amendment. Pp. 95-121.

(a) Legislation which determines, in an hierarchical church, ecclesiastical administration or the appointment of the clergy, or transfers control of churches from one group to another, interferes with the free exercise of religion contrary to the Constitution. Pp. 106-116, 119.

(b) That the purpose of such legislation is to protect American churches from infiltration of atheistic or subversive influences does not require a different result, though legislative power to punish subversive action cannot be doubted and neither his robe nor his pulpit would be a defense to a cleric attempting subversive actions. Pp. 108-110, 117-121.

(c) American Communications Association v. Douds, 339 U. S. 382; and Late Corporation of Latter-Day Saints v. United States, 136 U. S. 1, distinguished. Pp. 117–121.

(d) Freedom to select the clergy, where no improper methods of choice are proven, must now be said to have federal constitutional protection against state interference, as a part of the free exercise of religion. Pp. 115-116.

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Opinion of the Court.

(e) Even in those cases when property rights follow as incidents from decisions of the church custom or law on ecclesiastical issues, the church rule controls and must be accepted by the civil courts. Watson v. Jones, 13 Wall. 679. Pp. 115-116, 120-121.

302 N. Y. 1, 33, 96 N. E. 2d 56, 74, reversed and remanded.

In an action brought in a state court by appellee, a New York corporation, to determine the right to the use and occupancy of a church in New York City, the trial court gave judgment in favor of the defendants, appellants here. 192 Misc. 327, 77 N. Y. S. 2d 333. The Appellate Division of the State Supreme Court affirmed. 276 App. Div. 309, 94 N. Y. S. 2d 453. The Court of Appeals reversed. 302 N. Y. 1, 33, 96 N. E. 2d 56, 74. On appeal to this Court, reversed and remanded, p. 121.

Philip Adler argued the cause and filed the briefs for appellants.

Ralph Montgomery Arkush argued the cause and filed the brief for appellee.

MR. JUSTICE REED delivered the opinion of the Court. The right to the use and occupancy of a church in the city of New York is in dispute.

The right to such use is claimed by appellee, a corporation created in 1925 by an act of the Legislature of New York, Laws of New York 1925, c. 463, for the purpose of acquiring a cathedral for the Russian Orthodox Church in North America as a central place of worship and residence of the ruling archbishop "in accordance with the doctrine, discipline and worship of the Holy Apostolic Catholic Church of Eastern Confession as taught by the holy scriptures, holy tradition, seven oecumenical councils and holy fathers of that church."

The corporate right is sought to be enforced so that the head of the American churches, religiously affiliated with the Russian Orthodox Church, may occupy the