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Subject Area: Law
Topic: The American Revolution and Constitution

§ 64.: State control of churches and congregations.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 64.

State control of churches and congregations.—

In the English law of corporations, one of the classifications is into ecclesiastical and lay. The religious incorporations were called ecclesiastical, and because of the legal recognition and establishment of church and religion, they are possessed of peculiar characteristics, which called for this special classification. But in this country there is no need for it. In conformity with the general encouragement of religious worship, voluntary religious societies are at their request incorporated under the general laws, in order that they may hold and transmit property, and do other necessary acts as a corporate body, which without incorporation would be the joint acts of the individual members, with the general liability of partners. All religious societies are alike entitled to incorporation, and whatever privileges are granted to one society or sect, must be granted to all, in order not to offend the constitutional prohibition.

Upon the incorporation of a religious society, two different bodies, co-existing and composed of the same members, are to be recognized. The religious organization, together with the spiritual affairs of the society, has received no legal recognition and has, in fact, no legal status, except as it might affect the temporal affairs and civil rights of the members of the corporation, wherewith it is so intimately bound up that it is difficult at times to trace the line of demarcation. There has been no incorporation of the spiritual organization. Its members have only become incorporators of the religious corporation. While the corporation and the spiritual organization are usually composed of the same members, it is not at all impossible for what appears, to clericals and laymen alike, as a remarkable anomaly to happen, viz.: that some of the members of the corporation are not members of the spiritual corporation, and some members of the latter do not belong to the temporal society. Of course, this is only possible when the organic law of the corporation does not require membership in the spiritual organization, as a condition of membership in the legal incorporation. The law cannot undertake to regulate the religious affairs of the society, or overrule the decisions and actions of the properly constituted authorities of the church in respect to such religious affairs.1 The creed, articles of faith, church discipline, and ecclesiastical relations generally are beyond State regulation or supervision. “Over the church, as such, the legal or temporal tribunals of the State do not profess to have any jurisdiction whatever, except so far as is necessary to protect the civil rights of others, and to preserve the public peace. All questions relating to the faith and practice of the church and its members belong to the church judicatories to which they have voluntarily subjected themselves.”2 But whenever the civil and property rights of the individual are invaded, the State is justified and expected to exercise the same control and supervision as it would in the case of any other incorporation.1 The legal corporations may be established simply upon the basis of a community of property, without introducing any religious qualification as a member,2 and in that case there is no opportunity whatsoever for State interference in the religious affairs of the organization. But this is not usually the case. Membership in the corporation assumes ordinarily a more or less religious aspect, and depends upon the performance of certain religious conditions. The civil rights of such a member may, therefore be materially affected by the decisions of the ecclesiastical authorities, and to that extent and for the protection of such civil rights are these decisions on religious matters subject to review. The religious status cannot be determined in any event by a civil court, except as it bears upon and interferes with the temporal or civil rights of the individual. And even then the courts are not permitted to review and determine the essential accuracy of the decision. The court must confine its investigation to ascertaining, whether the proper religious authorities had had cognizance of the case, and had complied with their organic law in the procedure, and how far the decision affects the civil rights under the by-laws and charter of the corporation.1

[1]Baxter v. McDonnell, 155 N. Y. 83; First Presbyterian Church of Perry v. Myers, 5 Okl. 809.

[2]Walworth, Chancellor, in Baptist Church v. Wetherell, 3 Paige, 296 (24 Am. Dec. 223). “In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations, to assist in the expression and dissemination of any religious doctrine and to create tribunals for the decision of controverted questions of faith within the association and for the ecclesiastical government of all the individual members, congregations and officers within the general associations is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.” Watson v. Jones, 13 Wall. 679. See, also, Sohier v. Trinity Church, 109 Mass. 1; Lawyer v. Cipperly, 7 Paige, 281; Robertson v. Bullions, 11 N. Y. 243; Bellport v. Tooker, 21 N. Y. 267 (29 Barb. 256); O’Hara v. Stack, 90 Pa. St. 477; Keyser v. Stansifer, 6 Ohio, 363; Shannon v. Frost, 3 B. Mon. 253; Lucas v. Case, 9 Bush, 297; Ferraria v. Vasconcellos, 31 Ill. 25; Calkins v. Chaney, 92 Ill. 463; German Congregation v. Pressler, 17 La. Ann. 127; Wheelock v. First Presbyterian Church, 119 Cal. 477; In re Election of Trustees of Bethany Baptist Church, 60 N. J. L. 88.

[1]Watson v. Jones, 13 Wall. 679; Smith v. Nelson, 18 Vt. 511; Hale v. Everett, 53 N. H. 9; Ferraria v. Vasconcellos, 31 Ill. 25; Watson v. Avery, 2 Bush, 332; Happy v. Morton, 93 Ill. 398.

[2]Waite v. Merrill, 4 Me. 102 (16 Am. Dec. 238); Scribner v. Rapp, 5 Watts. 311 (30 Am. Dec. 327).

[1]“When a civil right depends upon an ecclesiastical matter, it is the civil court and not the ecclesiastical which is to decide. But the civil tribunal tries the civil right and no more, taking the ecclesiastical decisions out of which the civil right arises as it finds them.” Harmon v. Dreher, 2 Speer’s Eq. 87.

“The entire separation of church and State is not the least of the evidences of the wisdom and forethought of those who made our nation’s constitution. It was more than a happy thought, it was an inspiration. But although the State has renounced authority to control the internal management of any church, and refuses to prescribe any form of church government, it is nevertheless true that the law recognizes the existence of churches, and protects and assures their right to exist, and to possess and enjoy their powers and privileges. Of course, wherever rights of property are invalid, the law must interpose equally in those instances where the dispute is as to church property as in those where it is not, and it also takes note of, but does not itself enforce, the discipline of the church, and the maintenance of church order and internal regulation.” State v. Hebrew Congregation, 30 La. Ann. 205 (33 Am. Rep. 217). See, also, Watson v. Jones, 13 Wall. 679; Grosvenor v. United Society, 118 Mass. 78; Dieffendorf v. Ref. Col. Church, 20 Johns. 12; Baptist Church v. Wetherell, 3 Paige, 301 (24 Am. Dec. 223); People v. German Church, 53 N. Y. 103; Hendrickson v. Decon, 1 N. Y. Eq. 577; Den v. Bolton, 12 N. J. 206; McGinnis v. Watson, 41 Pa. St. 9; Wilson v. Johns Island Church, 2 Rich Eq. 192; Lucas v. Case, 9 Bush, 297; Chase v. Chaney, 58 Ill. 508; State v. Farris, 45 Mo. 183; Moseman v. Heitshousen (Neb.), 69 N. W. 957; Lemp v. Raven, 113 Mich. 375. See Fitzgerald v. Robinson, 112 Mass. 371, in which it was held that an excommunication would not be permitted to affect property and other civil rights.