The Catholic Lawyer Volume 11 Number 1 Volume 11, Winter 1965, Number 1 Article 6 The First Amendment and Canon Law Brendan F. Brown Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the First Amendment Commons, and the Supreme Court of the United States Commons This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. THE FIRST AMENDMENT AND CANON LAW BRENDAN F. BROWN* N THE FIRST PERIOD, from 1871 to 1898, the Supreme Court of the United States determined the relationship between the law of the state and that of the church on the basis of natural law. In 1871, the Court decided the epoch-making case of Watson v. Jones.' In that case the General Assembly of the Presbyterian Church in the United States had condemned the institution of slavery. This resulted in a schism in which each faction claimed title to the property of a local church in Kentucky. The supreme court of that state ruled that the General As- sembly had exceeded its jurisdiction. Some of the parties to the dis- pute lived in Indiana. Because of this diversity of citizenship, the case was properly brought into the federal courts. The Supreme Court of the United States upheld the validity of the action of the General Assembly, and recognized that the title to the property in question belonged to the anti-slavery faction. In Watson, the right of the individual to form a church, considered as a congregation, plus a moral entity with spiritual bonds, was admitted. Accordingly, a church may possess a governmental structure with a true juridical order, like the Roman Catholic and Presbyterian Churches, or have no law-making power, like the Baptist and Congregational Churches. If a particular church had a governmental structure, it might be of the prelatial or hierarchical type, with different echelons of su- periors, like the Catholic Church, or it might be of the synodal type with different levels of authoritative bodies, as in the instance of the Presbyterian Church. If a church lacked a juridical order, then it was held together solely by spiritual and organizational bonds. The Watson decision did not recognize the legal personality of any church, i.e., no church was a legal entity so as to be recognized as an artificial person before the law with rights and duties, analogous to those * Professor of Law, Loyola University School of Law. 180 U.S. (13 Wall.) 679 (1871). 11 CATHOLIC LAWYER, WINTER 1965 of a natural person, unless it had been in- plane" than that of temporal authority. corporated under civil law. All churches The Watson decision, however, did not in the United States were expressly re- recognize the moral personalities of garded as voluntary religious associations churches of the congregational type. The of individuals. The United States, there- Court stated that "the rights of such bodies fore, made no exceptions in the ecclesiasti- to the use of the property must be de- cal sphere to the general rule that all cor- termined by the ordinary principles which porations are creatures of the political govern voluntary associations." 2 Churches sovereign. of the congregational type do not recognize The Court in Watson, however, implic- an authority higher than that of the local itly recognized that those churches with church, and are in no way subject to the true juridical orders were moral persons, discipline or rule of any other body. Au- when it decided that their decisions were thority is considered by them to be moral exempt from review by civil courts. Judg- and organizational and not juridical. ments of a church tribunal were to be con- Watson v. Jones is still the law in the clusive where strictly ecclesiastical ques- federal courts and in many state courts. tions were involved. In the absence of It was a departure from the earlier judi- fraud and duress, civil courts were obliged cial theory, held by a number of state to accept the decisions of a church's court courts, that members were bound to their of last resort, even where such rulings in- church, whatever its type, by a contract volved property rights. The Court estab- not essentially different from other kinds lished this doctrine in spite of the fact that of contract. However, this contract did not church tribunals are not agents or instru- result in a status which obligated them to mentalities of the state, and thus the source obey ecclesiastical determinations. Hence, of the obligation to obey their decisions they were free to have recourse to the civil is not to be found in the authority of the courts. state. It is significant to note that the hold- According to American civil law, mem- ing in the Watson case was based on gen- bership in all churches, even those with eral law.3 The Court declared that the governmental powers and a legal system, basis of its decision was "a broad and begins with an implied contract. In the in- sound view of the.., system of laws ' 4 and stances of churches of the prelatial or syno- general principles of the Anglo-American dal kind, this contract creates a status legal system. These are, however, just which thereafter binds the members, re- other names for right reason or objective gardless of their consent, in such matters scholastic natural law. It was natural law, as discipline, ecclesiastical rule, custom therefore, which dictated a spirit of free- and law. Since this status, which was rec- dom for churches and an independence ognized by the Supreme Court in the Wat- from secular control or interference. Ob- son case, does not arise from civil law, it viously, man has a natural law right and can come only from divine or the ecclesias- duty to belong to a church, to determine its tical law of a particular church. Hence, 2 Id. at the jurisdiction of church tribunals rests on 725. 3 Cantwell v. Connecticut, what has been 310 U.S. 296 (1940). described as a "higher 4 80 U.S. (13 Wall.) 679, 727 (1871). FIRST AMENDMENT type, and to be bound by an ecclesiastical isted in 1871 and later outlined in the juridical order. Code, namely, in Canons 329, 1322, 1326 Watson was not based on either the lib- and 1569#1, was acceptable to American erty clause of the first amendment or any civil law according to the Watson case. other provision of the United States Con- The Second Period: 1898-1939 stitution since it was not until 1939, sixty- In the second period, from 1898 to eight years after Watson, that the Supreme 1939, the relation between civil and eccle- Court recognized the power of the four- siastical laws was decided by the Supreme teenth amendment to impose the limita- Court, principally on the authority of in- tions of the first amendment upon the law- ternational law under the treaty-making making authority of the respective states. power. Article VI of the Constitution pro- Generally, the relationship between the vides, among other things, that "this Con- law of the state and that of the church as stitution and the Laws of the United States worked out in Watson accommodates the which shall be made in pursuance thereof, position of the canon law which existed in and all Treaties made, or which shall be 1871 and which was later embodied in the made, under the authority of the United present Code of Canon Law. It is in ac- States, shall be the Supreme Law of the cord with what are now Canons 1 and 100 Land." It was in light of this clause that insofar as these Canons implicitly declare the Supreme Court recognized not only the that the Church is a moral person. Ac- moral, but also the legal, personality of the cording to Canon 1, the Church has the Catholic Church in three famous cases. In right and duty to establish a juridical or ex- each case, the Court held that the law ternal order with legislative, judicial, ad- made by the 1898 Treaty of Paris between ministrative, and executive processes for Spain and the United States constituted the those under its jurisdiction. Canon 100 "Supreme Law of the Land." provides that the Catholic Church and the In this Treaty the executive branch of Apostolic See have the nature of a legal the United States government conceded the person by divine ordinance. Implicit in juristic personality of the Catholic Church this is that the church is a moral person- and papal sovereignty, under international a complete, independent and sovereign so- law, in those territorial acquisitions which ciety with free autonomy in the ecclesiasti- were formerly under Spanish dominion. cal sphere. Moral personality flows from The Church had the right to acquire and the qualities of transcendence and perpetu- possess property of all kinds, as well as to ity, in addition to perfection and self- make contracts and to institute civil and sufficiency. criminal actions, in accordance with the The Watson decision is also adaptable to "Law of the Land," in Puerto Rico, Cuba, what is now Canon 218. This Canon pro- and the Philippines. From the very begin- vides that the supreme power of jurisdic- ning of Spanish colonization in 1492, the tion in the universe resides in the Pope legal personality of the Church, with un- and that his power to rule is independent restricted corporate rights, including own- of any human authority and extends to all ership of property, had been acknowledged members of the Church.