“This book and its companion volume provide a concise, but complete account of all the relevant cases since 1789 with sophisticated scholarly analysis. It is by far the best introduction I have seen to all that the Supreme Court has ever said about church and state. Hitchcock presents difficult and controversial material in a fair-minded manner, and the treatment of cases is remarkably free of polemic. A valuable and unique contribution to the field.”–Gerard V. Bradley, University of Notre Dame

“Hitchcock covers a tremendous amount of American legal history and does so with remarkable clarity and brevity. His arguments are nuanced and always thought-provoking. The book compels a rethinking of prevailing legal doctrines and thus has the potential to have a significant impact on the continuing debate on the constitutional relationships between religion and American life.”–Daniel Dreisbach, American University

“This book and its companion volume provide a concise, but complete account of all the relevant cases since 1789 with sophisticated scholarly analysis. It is by far the best introduction I have seen to all that the Supreme Court has ever said about church and state. Hitchcock presents difficult and controversial material in a fair-minded manner, and the treatment of cases is remarkably free of polemic. A valuable and unique contribution to the field.”–Gerard V. Bradley, University of Notre Dame

“Hitchcock covers a tremendous amount of American legal history and does so with remarkable clarity and brevity. His arguments are nuanced and always thought-provoking. The book compels a rethinking of prevailing legal doctrines and thus has the potential to have a significant impact on the continuing debate on the constitutional relationships between religion and American life.”–Daniel Dreisbach, American University

James Hitchcock is Professor of History at St. Louis University. He is the author of six books, including Catholicism and Modernity.

The Supreme Court and Religion in American Life

Volume II, from “Higher Law” to “Sectarian Scruples”By James Hitchcock

Princeton University Press

Copyright © 2004 James Hitchcock
All right reserved.
ISBN: 9780691119236

Chapter One

THE KINGDOM OF THIS WORLD

ONE OF THE INHERENT PARADOXES of religion is that most faiths enjoin a spirit of unworldliness, urging believers to look beyond earthly possessions in their search for ultimate reality, while at the same time all religions exist in the temporal order and can only manifest themselves through material realities. Hence organized religions have usually been quick to secure their property rights, justifying this on the grounds that material assets are necessary in order to witness the reality of the spiritual.

Most civil cases in the American judicial system involve disputes over property, and courts have perhaps been most comfortable when adjudicating issues that can be quantified in terms of wealth. It has been the Supreme Court’s consistent policy, almost always followed, to ignore what could be called ideological issues in dealing with internal church disputes and to content itself with applying ecclesiastical rules in the ways such rules were apparently intended. Property cases, while perhaps not the most interesting or significant to arise under the Religion Clauses of the Constitution, were the earliest and have been the most persistent. Religious bodies that claim broad autonomy with respect to their beliefs and practices nonetheless submit to the civil law for the final resolution of otherwise irresolvable disagreements over possessions.

Disputes over church property arguably involve both the Religion Clauses, in that religious freedom is potentially threatened if the government is called upon to intervene in religious disputes, and government thereby risks taking upon itself the improper role of favoring one religious group over another. Property cases have come before the Court in almost every era, however, and almost always at the behest of church members themselves.

COLONIAL LAND GRANTS

The first religion cases ever to come before the Court, in 1815, were disputes of this kind, arising out of grants of land made by the English Crown in colonial times.

In Terrett v. Taylor¹ the churchwardens of a Virginia Episcopal parish attempted to sell some of the parish land but were opposed by the local overseers of the poor, who contended that the land no longer belonged to the church, under a Virginia statute repealing ecclesiastical land grants made to the Anglican Church by the British Crown.²

Justice Joseph Story found that the land in question was in fact not a gift from the Crown but had been purchased by the parish. But even if the Crown had granted it, he continued, the grant could not be revoked unless it was shown that it was originally intended to be revocable.³ Later in the same year, the Court heard a case involving a royal grant of land to the Church of England in a town that had been part of the colony of New Hampshire but was now in the state of Vermont.⁴

At the time of the grant (1761) there was no Anglican parish in the town of Pawlet, and not until 1802 did a group of residents organize a parish of the Episcopal Church, which then claimed the land and leased it for the support of the parish. Between 1790 and 1805 the state of Vermont passed and repealed a series of seemingly contradictory laws concerning colonial grants to the Anglican Church, and the latest of these had abolished all claims that churches might make under such grants. The state of Vermont now claimed the land, intending to use the income to support education.⁵

The state argued that, since there was no Anglican church in Pawlet to receive the grant at the time it was made, the grant was void and had reverted to the donor. Since the donor was the English Crown, the land in turn passed to the state of Vermont after the Revolution.

The Church of England as a whole could not receive such grants, Vermont argued, since in English law it was not a corporation but one of the “estates of the realm.” Grants to the church could only be made to specific units of the church, such as parishes. Also relevant was the fact that the Church of England was never officially established in the colony of New Hampshire.⁶

Vermont also raised an issue as much ecclesiastical as legal, claiming that, despite “similarities” between the Church of England and the Episcopal Church in the United States, the American church was not identifiable with the English church and could not inherit any rights the Anglican Church might have possessed.⁷

The defense argued that the land in question had been granted to the inhabitants of Pawlet collectively for the support of religion, thus there had been a grantee to receive it. The Crown knew there was no Anglican parish in Pawlet at the time and thus intended the grant to be held in abeyance for future use. The Episcopal Church was the natural recipient of the grant, a fact that for a brief period Vermont law had explicitly recognized.⁸

The case came before the Supreme Court because it involved two separate states-New Hampshire and Vermont-along with the Crown of England. However, Vermont challenged the jurisdiction of the Court, claiming that only one state was involved, since Vermont and New Hampshire had been one at the time of the original grant. Thus the case should simply be tried in Vermont state courts.⁹

Story again rendered the verdict of the Court, quickly disposing of the jurisdictional question by finding that, since Vermont and New Hampshire were now separate states, their previous unity was irrelevant.¹⁰

The royal grant made clear that the land was to be divided among various individuals and the church land was not to be held in common, Story found. The Church of England was indeed an estate of the realm rather than a corporation, and as such could not receive grants. There was no branch of the Church of England in Pawlet at the time of the grant and for some years afterward.¹¹

Based on English law, he defined a parish as “a consecrated place having attached to it rights of burial and the administration of the sacraments.” The parson of a parish had the “care of souls” only for the duration of his own life, and any grant made to a parish would thus be held in abeyance if there was no parson. Had there been an Anglican parson in Pawlet at the time of the grant, it would have been made to him and to his successors, but officially there could have been no parson until there was first a parish. The charter of colonial New Hampshire explicitly guaranteed liberty of conscience in matters of religion, and the Church of England was not established there.¹²

Since the grant for the church was made to the inhabitants of the town, such land could be alienated only by the joint action of both the Crown and the citizens, with the rights of the Crown passing to the state after the Revolution.¹³

Story characterized the Episcopal Church established in Pawlet as “a mere voluntary association” and held that it could not claim the rights of the Anglican Church merely “on account of their religious tenets.”¹⁴

Justice William Johnson wrote a concurring opinion complaining that Story relied too much on English law and precedents.¹⁵

These two pioneer religion cases were decided in the same year but in seemingly opposite ways because the Anglican Church had been officially established in Virginia before the Revolution but not in New Hampshire. Thus the Virginia Episcopal parish could show an unbroken history dating to colonial times, while the New Hampshire parish was treated as a recent creation not in continuity with the prerevolutionary Anglican Church.

In 1823 an English group, the Society for the Propagation of the Gospel in Foreign Parts, sued to regain land that, as in the Pawlet case, had been granted in the colony of New Hampshire by King George III in 1761. Also as in the Pawlet case, there was an appeal against the postrevolutionary statute by which Vermont claimed the land and authorized leasing it for the support of schools.¹⁶

The issue took on a complexity beyond the Pawlet case when Vermont cited the fact that in England all religious bodies were subject to the Statute of Mortmain and had to be granted an exemption by the king in order to acquire property. Such exemptions were not granted in the colonies, Vermont insisted. The state also asserted that, since the SPGFP’s trustees were in England, they could not be made subject to American courts and thus could not be held accountable for the proper use of the land.¹⁷

Justice Bushrod Washington ruled that the “dismemberment of empire” following the Revolution had not invalidated English land titles in America, the treaty ending the war (1783) specifically protecting such titles. The purposes of the SPGFP were “benevolent and laudable,” and the property could not be alienated to a different kind of use.¹⁸ Unlike in the Pawlet case, the SPGFP existed as a part of the Church of England in 1761 and was thus qualified to receive the grant.

In 1824 the Terrett issue was again before the Court, in the light of its decision in the Pawlet case.¹⁹ The appellant had purchased land from the Alexandria parish following the Terrett decision. Now, however, he sued to invalidate the transaction, on the grounds that the Pawlet ruling had rendered his title suspect.

His contention was that the rights of the parish had to be exercised through its parson, and for a period of time, there had been none. In addition, the prerevolutionary parish had been designated “Fairfax Parish,” whereas the putative owner of the disputed land called itself “Christ’s Church Parish, Alexandria.” As such it constituted merely a part of the original Fairfax parish and could not claim title to the land.²⁰

As in 1815, Story found in favor of the parish, holding that according to the polity of the Episcopal Church, the vestry of Christ’s Church was the legal successor of the vestry of Fairfax Parish. New Episcopal parishes could only be founded by authority of the diocesan bishop, and no such authorization was either sought or given for Christ’s Church, thus demonstrating that it had long existed.²¹

No other land-grant case then came before the Court for almost seventy years.

In 1882 the Court rejected a claim by a Methodist mission society in Oregon.²² The organization had received land in an Oregon town in 1847, while the territory was under British rule. When it became a territory of the United States the following year, Congress confirmed land grants made to missionary groups. However, because of Indian wars the mission did not occupy the land until 1850, and the mission was later abandoned. In 1850 the U.S. Army purchased part of the land from the mission, and in 1882 the town claimed the remainder on the grounds that the tract had originally been transferred “improvidently.” Justice William B. Woods ruled that no land claim before 1850 was secure, and, since the missionary group was not occupying the land in 1848, it could not claim title.

In 1894 the Court heard another case arising out of the same situation.²³ In 1838 a Catholic mission in Oregon had been given the use of a tract of land by the Hudson’s Bay Company. In 1849 the company sold most of the tract to the army, but in 1894 the church claimed title to all of the land. Justice David Brewer ruled that it was entitled only to that portion of the tract that was in use as a mission in 1849.

In 1907 the Court decided a case from Puerto Rico challenging the fact that two churches had been built with municipal funds. Chief Justice Melville Fuller again issued the ruling, which found that such grants, made in colonial times, were irrevocable.²⁴

CAPACITY TO INHERIT

In 1819 the Court heard a case involving a complex issue of inheritance. In 1790 a Virginia man willed part of his estate to establish a fund for the education of Baptist youth, especially those inclined toward the ministry. Two years later Virginia repealed the English law of charities, hitherto in force in America, and because of this, the executors refused to implement the bequest. Chief Justice John Marshall ruled that the Philadelphia Baptist Association, never having been incorporated, could not receive the bequest as a legal entity, nor could its individual members obtain the money, since it had not been intended for their personal benefit.²⁵ (The case came before the Court under Article III, Section 2, of the Constitution-“diversity of citizenship”-because the disputants resided in different states.)

In 1866 the Court upheld a 1786 legacy to a Congregational parish in Hartford. The grant had been made “for the maintenance of the ministry of the Gospel,” but in 1852 the parish had been granted permission by the Connecticut legislature to sell the property. Descendants of the original donor then sued for ownership of the land on the grounds that the terms of the grant had been violated. Justice Samuel Nelson found for the Court that the legislature had acted within its authority.²⁶

In 1872 the Court upheld the right of a missionary group with headquarters in New York to acquire land in Illinois, the acquisition challenged by the heirs of a man who sold the land to the American and Foreign Christian Union. Justice John Marshall Harlan found that Illinois law did not prohibit a “foreign corporation” from acquiring land, nor did it prevent charitable organizations from doing so.²⁷

A similar case, also from Illinois, was decided in the same way in 1887. Heirs sought to invalidate the will of a man who had left the residue of his estate to “the board of foreign and the board of home missions.”²⁸

Harlan saw no difficulty in the fact that the two mission boards were not more precisely identified, since elsewhere in the will the donor made clear that, having been an active Presbyterian all his life, he was referring to the Presbyterian Church in the United States. If the designation were truly unclear, Harlan thought, the legacy would have to be divided equally among all those groups having the same name. He again rejected the claim that the mission boards constituted “foreign bodies” forbidden to own property in Illinois.²⁹

The appellants also pointed out that the law allowed only ten acres of land to groups “formed for the purpose of religious worship.” However, Harlan ruled that the mission boards were not set up for “worship” but for “the spread of the Gospel.”³⁰

In 1879 the Court reached a conclusion similar to that in the 1819 Baptist testamentary case.

Continues…
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