Religious Disputation and the Civil Courts: Quasi-Establishment and Secular Principles

• Published date: 01 December 1989
• Date: 01 December 1989
• DOI: http://doi.org/10.1177/106591298904200406
• Subject Matter: Articles

RELIGIOUS DISPUTATION AND
THE
CIVIL COURTS: QUASI-ESTABLISHMENT
AND SECULAR PRINCIPLES
FRANK WAY
University of California, Riverside
HE
study of American religious liberty is the study of change
t
and adaptation. There was general accord on the principles of
religious liberty at least by the early years of the Republic yet
an awareness of a need for specific rules which would implement this
accord did not come about until well after the Civil War. Thus the
principle of no state establishment of religion was widely accepted by
the end of the Revolutionary War and fully realized with the disestab-
lishment of the Congregational Church of Massachusetts in 1833. Yet
disestablishment, whether by constitutional provision or legislative
enactment, did not lead immediately to the creation of working rules.
Defining the boundary between church and state was to begin with the
&dquo;no establishment&dquo; or &dquo;no preference&dquo; principle but a more complete
definition had to await particular legal disputes and an awareness that
these had constitutional implications.
Yet awareness that some legal disputes have constitutional implica-
tions does not necessarily occur to litigants and judges when the dis-
putes first surface in the courts. In 1969 Blue Hull Presbyterian
Church vs. Presbyterian Church and again in 1979 in Jones vs. Wolf
the United States Supreme Court imposed constitutional limits under
the &dquo;no establishment&dquo; clause on the use of the Pearson rule which had
been used at various times in a large number of states for approxi-
mately 135 years, that is to say well over 150 years after the principle of
&dquo;no establishment&dquo; had been accepted in the federal and state
constitutions. 1
Under the Pearson rule when churches became divided over mat-
ters of faith and/or church government, the property was awarded to
that part of the church, however small, that was most faithful to the
doctrines and polity of the church at the time it was established. In
short, the courts implied a trust in favor of doctrinal and connectional
Received: August 15, 1988
Revision Received: December 19, 1988
Accepted for Publication: December 22, 1988
NOTE: The author acknowledges the support of the Senate Committee on Research,
University of California, Riverside, and the encouragement of Barbara Burt-Way
and Edwin Gaustad.
1
393 U.S. 440 (1969); 443 U.S. 595 (1979).

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524
continuity. In general it was a doctrine used by a minority of the
church congregation to gain control of the church from an &dquo;unfaith-
ful&dquo; majority. Its operation often required courts to examine closely
church creeds and books of discipline in order to determine the ortho-
doxy of the parties.2
While this form of quasi-establishment may shock contemporary
ideas of government neutrality in religious affairs, there was no
squeamishness about civil courts acting in a quasi-ecclesiastical capac-
ity in the nineteenth and early twentieth centuries. Yet the passage of
time did add substantial qualifications to the Pearson rule, qualifica-
tions just short of the constitutional limits imposed in Blue Hull and
Jones.
The developmental conclusions reported here about Blue Hull and
Jones are based on an examination of the universe of all recorded
church-property disputes, state and federal, in the following time
frames: 1800-1849; 1870-1880; 1890-1900; 1916-1926; 1946-1956;
1970-1982. The periods of time examined were selected to coincide
with or follow closely upon major religious changes in American
society.3
3
The advent of a new constitutional rule by the United States
Supreme Court can give the appearance of a sudden leap, disjointed
from the body of legal history. Yet to conceive of Supreme Court con-
stitutional rules as spontaneous creations, disconnected from the past is
to misperceive the essentially conservative nature of the Court. Thus,
when new constitutional rules are characterized as revolutionary, as we
sometimes do in our less thoughtful moments, we impart to these rules
a degree of novelty that denies that many constitutional rules have an
anterior historical reality. The basically conservative nature of legal
change is perhaps most pronounced in the area of constitutional law,
where rules must of necessity be tied to constitutional principles, prin-
ciples often shrouded by the lapse of time. Thus a new constitutional
rule is not merely the by-product of the current judicial comprehension
of the meaning of a constitutional provision, such as &dquo;no establish-
ment,&dquo; but a comprehension within a certain context that has given
shape historically to patterns of litigation and decisions in a specific
issue area. The shape of those patterns will influence the options and
2

When the claim involved an allegation of change in faith it was called departure
from doctrine and when the claim involved leaving a connectional association it
was called departure from discipline.
3

The cases were selected from the Decennial Digest for each of the periods using the
appropriate sub-headings under Religious Societies. The cases were overwhelming-
ly state cases (N = 263) with only eight federal cases; they were also largely appel-
late cases (N=252); the final period examined, 1970-1982 was used simply as a
means of determining the early effect Blue Hull and
Jones
had on the lower courts.

---

525
the degree of change that is subsequently available to the Court. This is
not to imply that the constitutional rules in religious liberty that have
been announced in the past generation were historically inevitable; the
long-time course of religious liberty litigation, stretching back over 150
years, did not pre-determine the outcomes; a degree of judicial/insti-
tutional choice remained. The choices, however, had a context that
was greatly influenced by long-term patterns of litigation in the area of
religious liberty, as well as by the revolutionary era settlements that
occurred from 1776 to 1799.
REVOLUTIONARY SETTLEMENTS
’
To characterize the changes in church-state relations occurring in
the United States from 1776 to 1799 as revolutionary settlements is per-
haps misleading. The Revolutionary War was not fought primarily for
reasons of religious liberty, either for freedom of worship or for dis-
establishment, although the war probably hastened disestablishment
and it may have given legitimacy to the scattered efforts of religious
dissenters (Bailyn 1967).4 The Anglican Church had been disestab-
lished in all Southern states by 1798 and the final disestablishment of
the Congregational Church was accomplished in the last New England
state in 1833 (Massachusetts). Passage of established churches,
whether by gradual transformation, as in New England, or a funda-
mental break with the past, as in Virginia, opened a new era, at least
in those areas where organized religion and the state had been fused
(McLoughlin 1971). Disestablishment meant the end of church privi-
lege and the beginnings of a fully voluntary system of churches. To a
degree, disestablishment republicanized religion, foreshadowing an
end to a deferential and religiously corporate community. Yet the
passage of the old social ethos did not produce secular republicanism
(Isaac 1982). Secular republicanism, with its high wall of separation
between church and state, may have reflected the vision of Madison
and Jefferson, but it had little immediate impact in the new Republic.
The enlightenment-inspired rationalism of the preamble of Jefferson’s
Virginia Bill for Religious Freedom (1786) was ultimately to find its
way into the constitutional law of church-state relations, but not in the
early years of the Republic. Disestablishment in the South and New
England ended the old preferential order, but it was preference that
was ended, not cooperative relationships between religion and the
state. Not only is this clear in the early judicial decisions, it is equally
clear in the early state constitutional provisions on church-state
relations.
4
Cf. Martin Marty. 1977. Religion, Awakening and Revolution. New York: McGrath.

---

526
A fair reading of these eighteenth and nineteenth century state
constitutions suggests that disestablishment did not mean separation of
religion and the state (Way 1987). On the contrary, often the framers
of these constitutions publicly acknowledged the central importance of
religion to the security of the state. Thus the New Hampshire Constitu-
tion of 1784 (as well as the New Hampshire Constitution of 1902) con-
tained the following language:
... Morality, piety, rightly grounded on evangelical principles, will give
the best and greatest and best security to the government, and will lay in
the hearts of men the strongest obligations to due subjection; and ...
the knowledge of these, is most likely to be propagated through a society
by the institution of public worship of the DEITY, and public instruc-
tion in morality and religion....
Disestablishment, coupled with the various state constitutional pro-
visions, did signify a change, a measurable step away from the pattern
of fusion of organized religion and the state. It was not a rejection,
however, of the Christian heritage of the Republic. When the various
state judiciaries first encountered church-state litigation, they were
faced with constitutional provisions which, at best, can be character-
ized as ambiguous and which implicitly, if not explicitly, supported
cooperation between organized Christianity and the states. Thus, the
state constitutional provisions often left the courts...