Nearer to thee: cy près and religious discrimination

• Pages: 93-178
• Date: 01 July 2024
• Author: Christopher J. Ryan, Jr.
• Subject Matter: Administrative & Public Law

NEARER TO THEE: CY PRÈS AND RELIGIOUS

DISCRIMINATION

Christopher J. Ryan, Jr.

Author’s Synopsis: In the law of charitable trusts, courts wield excep-

tional power with respect to two equitable remedies: cy près and the

closely related doctrine of deviation. Courts can grant these equitable

remedies for trusts that have purposes or terms rendered ineffectual, and

either doctrine allows the court to p rolong the trust’s life, perhaps

forever. Historically, the invocation of these remedies was anathema to

American courts. But increasingly, they have contemplated the po ssi-

bility of extending the life of charitable trusts through application of

these doctrines. In many ways, the evolution of these doctrines is owing

to the jurisprudence involving trusts created for the benefit of a religious

congregation or charity. Yet, this connection and the implications of

judicial decisions regarding the right to these remedies has not garnered

much attention until now.

In this study, I analyze the extent to which courts have applied these

equitable remedies to religious purpose charitable trusts via an

econometric analysis of a universe of cases with a published opinion

from an American court from the nation’s founding through 2019. This

study provides a novel analysis of these equitable remedies and the

history of religious purpose charitable trusts along a considerable

timeline in American h istory. First, it explores how the equitable reme-

dies of cy près and deviation were shaped by and shaped the caselaw

around religious purpose charitable trusts, revealing simultaneously

that each is a valid remedy and trust. Second, it examines the possible

bias of the courts in awarding these remedies to certain religious groups

but no t others, ultimately finding that trusts created for the benefit of

Catholic churches and charities were d eemed less worthy of these

remedies by the cou rts, all else equal. These findings have implications

not only for understanding the application of these equitable remedies

 Christopher J. Ryan, Jr., Professor of Law at the Indiana University Maurer School

of Law, Affiliated Scholar at the American Bar Foundation, and Academic Affiliate at the

International Center for Law & Economics. I wish to thank my research assistants—

Samantha Ferrucci, Blaine Payer, Jordan Sasa, and Sophia Weaver—who devoted

significant time and effort in helping me create the dataset on which my findings are based.

Next, I wish to thank my research assistants, Natalie Whitt and Madison Wurth , who

contributed meaningful research on the history of religious discrimination in America. I

would also like to thank Ariana Levinson and Joe Dunman for their helpful suggestions

about this Article in its early stages, which considerably improved it. Finally, I would like

to thank the attendees of the Conference on Empirical Legal Studies and the AALS Section

on Nonprofit and Philanthropy Law, where this paper was presented, for their commentary

on the Article.

94 59 REAL PROPERTY, TRUST AND ESTATE LAW JOURNAL

more deeply but also for uncovering the implicit and overt bias of the

courts in cases where it has no actual basis.

I. INTRODUCTION ............................................................................... 95

II. CY PRÈS AND CHARITABLE TRUSTS .............................................. 99

A. The Origins of Cy Près .............................................................. 99

B. Cy Près in America .................................................................. 101

C. Religious Purpose Trusts in America ...................................... 106

III. A CLOSER LOOK AT RELIGIOUS PURPOSE TRUSTS IN

AMERICA ....................................................................................... 112

A. The Dataset .............................................................................. 113

B. Coding Decisions and Imputed Values .................................... 113

C. Descriptive Results .................................................................. 116

1. Episcopalian Religious Purpose Trusts ............................ 116

2. Lutheran Religious Purpose Trusts ................................... 120

3. Methodist Religious Purpose Trusts.................................. 123

4. Presbyterian Religious Purpose Trusts ............................. 126

5. Baptist Religious Purpose Trusts ...................................... 129

6. Congregational Religious Purpose Trusts ........................ 131

7. Reformed Religious Purpose Trusts .................................. 133

8. Shaker Religious Purpose Trusts ...................................... 135

9. Evangelical Protestant Religious Purpose Trusts ............. 139

10. Salvation Army Religious Purpose Trusts ......................... 142

11. Catholic Religious Purpose Trusts .................................... 144

12. “Other” Religious Purpose Trusts .................................... 147

13. Jewish Religious Purpose Trusts ....................................... 149

14. Areligious Purpose Trusts ................................................. 151

D. Empirical Results ..................................................................... 152

1. Preliminary Analysis ......................................................... 153

2. Disaggregation of Churches ............................................. 158

IV. IMPLICATIONS: CY PRÈS AND RELIGIOUS DISCRIMINATION .... 162

A. Discrimination against Catholics ............................................. 163

1. Anti-Catholicism (Pre-Colonial Period to the 1930s)....... 163

2. Anti-Catholicism (1930s to the Present) ........................... 166

B. Qualitative Evidence of Bias in Religious Purpose Trust

Cases ........................................................................................ 167

C. The Net Effect of Judicial Bias in Religious Purpose Trust

Cases ........................................................................................ 170

V. CONCLUSION ................................................................................. 174

VI. APPENDIX ...................................................................................... 176

SUMMER 2024 NEARER TO THEE 95

I. INTRODUCTION

Christ Episcopal Church of Columbia, South Carolina, was a “large

and valuable church.”

1

Like many before it, it is forgotten now. It was all

but razed in the blaze of 1865, during the last year of the Civil War.

2

On

its sacred ground now sits doctors’ offices for internal medicine.

3

It lost

members, little by little, but its burning in the Civil War marked its death

knell, scattering its disbanded congregation. In the aftermath of its destruc-

tion, dust and ash collected on the seats of its remaining scorched pews,

their kneelers kicked up. Only its bricks were of value for its salvage. But

before its proverbial death, the church’s organ played merry music on

holidays and weddings, funereal dirges when church members passed on,

and hymns every Sunday. Its rafters once echoed with the dulcet tones

from the mouths of the choir in the loft. The church was a community, as

well as place where its congregation worshipped their God together.

The story of the church’s founding, use, and unfortunate fate is not

unique. But what made the story different was that the church benefitted

from the largesse of one member of its congregation—its pastor—that

should have kept it alive, albeit under a new incarnation. Through a char-

itable trust, the Rev. James M. Pringle gave a most generous gift to the

members of the church: the gift of land.

4

Pringle bought the land on which the church stood from the estate of

a Mr. Latta with his own money in 1858, seven years before the church’s

demise.

5

Holding title to the land, Pringle sought to convey the church lot

to the vestry—the church’s leadership—represented by one Thomas B.

Clarkson on November 18, 1858.

6

The conveyance was so effected. But

Pringle had a change of heart six years after the church was reduced to

rubble. In September of 1871, he entered into an agreement to sell the land

1

Pringle v. Dorsey, 3 S.C. 502, 503 (1872); see also Christ Episcopal Church,

Columbia, S.C. (photograph), in UNIV. OF SOUTH CAROLINA DIGITAL COLLECTION,

https://digital.tcl.sc.edu/digital/collection/civilwar/id/4230/.

2

See Pringle, 3 S.C. at 503.

3

See Intersection of Blanding St. & Marion St., GOOGLE MAPS, https://bit.ly/3UY4c

U2.

4

See Pringle, 3 S.C. at 503. The deed read: “Received from the Rev. J.M. Pringle, in

trust for the congregation of Christ Church, Columbia, November 18th, 1858.” It was

signed by “Thomas B. Clarkson, for Vestry of Christ Church, Columbia.” Id.

5

See id.

6

See id. at 504.