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The Catholic

Volume 11 Number 1 Volume 11, Winter 1965, Number 1 Article 6

The First Amendment and

Brendan F. Brown

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Part of the First Amendment Commons, and the Supreme 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

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 on the basis of . 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 . 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 . 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 , 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 . 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 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 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 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 ' 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 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 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 . 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 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 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. The hierarchical by a number of entered into be- structure of the Catholic Church, as it ex- tween Spain and the Papacy. International 11 CATHOLIC LAWYER, WINTER 1965 law obliged the executive branch of the In the Ponce case, therefore, the Su- United States government to allow the con- preme Court upheld the canonical concept tinuation of the status quo in regard to the of the Church's legal and moral person- law of the Catholic Church in those Span- ality, under what is now embodied in ish possessions which were acquired in Canon 100, not, of course, on the ground 1898. The treaty-making power, in turn, of divine ordinance, but on the authority bound the Supreme Court of the United of a treaty. What was later the law of States to give effect to the action of the Canon 3, as to the sanctity of concordats, executive branch. was therefore followed, i.e., agreements en- The first case was Municipality of Ponce tered into between the and the v. Roman Catholic Church. 5 There, the various nations are not abolished or modi- Roman Catholic Church in Puerto Rico, fied by the Code. through the , sued the municipality Effect was given also in the Ponce case of Ponce in order to obtain title to prop- to what is now Canon 1499, i.e., the erty pursuant to an act of the legislative Church can acquire temporal goods by all assembly of Puerto Rico passed in 1904. just means which are sanctioned in the case This act purported "to confer original jur- of others by the natural or the positive law. isdiction on the Supreme Court of Puerto The ownership of goods belongs, under the Rico for the and of cer- supreme authority of the Apostolic See, to tain property claimed by the Roman that legal person which legitimately ac- Catholic Church in Puerto Rico."6 The de- quired the goods. The Ponce case also gave fense of the municipality was that this effect to what is now Canon 1518, i.e., as was contrary to the fourteenth the Supreme Head of the Church, the amendment since it deprived it of property Roman Pontiff is also the supreme admin- without due process of law. The Supreme istrator of all ecclesiastical goods; and also Court of the United States, rejecting the to what is now Canon 1517, i.e., the local arguments of the municipality, held that ordinary, the Bishop or , is charged the property in question belonged to the with the administration of all ecclesiastical Church. Mr. Fuller wrote: goods which are in his territory and which The corporate existence of the Roman have not been removed from his jurisdic- Catholic Church, as well as the position tion. occupied by the papacy, has always been The second case was Santos v. Roman recognized by the Government of the Catholic Church, 8 wherein the legal per- United States. At one time the United States maintained sonality of the Catholic Church was again diplomatic relations with the , recognized. There, the Church sued to re- which continued up to the time of the loss cover a chapel from which it had been of the temporal power of the papacy. ejected by the defendants, members of an (Authority omitted.) Oglipayan community. The Supreme Court The Holy See still occupies a recognized of the Philippine Islands ordered the de- position in , of which the courts must take judicial notice.7 fendants to deliver possession to the plain- 5 210 U.S. 296 (1908). tiff. This decision was affirmed by the Su- 6 Id. at 303. 7id. at 318. 8 212 U.S. 463 (1909). FIRST AMENDMENT preme Court of the United States. Mr. Jus- Although in Gonzales, the Court did tice Holmes, writing for the majority, not expressly recognize the legal person- stated that "the only questions open are ality of the Catholic Church, it did so im- those raised by the decision that the Ro- pliedly by holding the Archbishop of the man Catholic Church is entitled to the pos- Philippines to be a juristic person amen- session of the property, and they have now able to the jurisdiction of the Philippine been answered by Ponce v. Roman Catho- courts for the enforcement of legal rights. lic Church, 210 U. S. 296." 9 He continued Mr. Justice Brandeis delivering the opin- to state that "the legal personality of the ion of the Court wrote: Roman Church and its capacity to hold The new Codex Juris Canonici, which was property in our insular possessions is rec- adopted in Rome in 1917 and was promul- ognized; and the fact that such property gated by the Church to become effective was acquired from gifts, even of public in 1918, provides that no one shall be ap- funds, is held not to affect the absolute- pointed to a collative chaplaincy who is not a cleric, Can. 1442. It requires students ness of its rights."'1 for the priesthood to attend a seminary; The third case was Gonzales v. Roman and prescribes their studies, Can. 1354, Catholic Archbishop of Manila.- There, a 1364. It provides that in order to be a had been established in 1820, a cleric one must have had "prima tonsura," time when a layman could hold the bene- Can. 108, par. 1; that in order to have "prima tonsura" one must have begun the fice, which carried a considerable income, study of theology, Can. 976, par. 1; and and have a priest say the masses in his that in order to study theology one must be place. But under the Church Code, which a "bachiller," that is, must have obtained became effective in 1918, the plaintiff, a the first degree in the sciences and liberal boy of fourteen, was forbidden appoint- arts, Can. 1365. It also provides that no ment. The Supreme Court held that the one may validly receive ordination unless in the opinion of the ordinary he has the Canon Law in force at the time of the ap- necessary qualifications, Can. 968, par. 1, pointment, rather than that existing in 1464.13 1820, controlled the rights of the parties. The Third Period: 1939-1965 Since the claimant was not entitled to be appointed chaplain, he had no right to earn In the third period, from 1939 to the a living from the income of the chaplaincy. present time, the Supreme Court shifted the The Court wrote: "By Canon 1481 of the basis of the relationship between the juri- new Code the surplus income of a chap- dical orders of church and state, in the re- laincy, after deducting expenses of the act- spective states of the union, from natural ing chaplain, must one-half be added to law to that of the liberty clause of the first the endowment or capital and one-half to amendment. The 1939 case of Cantwell 14 the repair of the church, unless there is a v. Connecticut involved the constitution- custom of using the whole for some com- ality of a state which sought to re- '1 mon good to the . 2 strict the house-to-house activities of a group known as Jehovah's Witnesses. For 9 Id. at 465. the first time it was held that the funda- 10 Ibid. 11 280 U.S. 1 (1929). 1"Id. at 13-14. 121d. at 18. 14310 U.S. 296 (1940). 11 CATHOLIC LAWYER, WINTER 1965 mental concept of liberty, embodied in the On the basis of the liberty clause of the fourteenth amendment, embraced the lib- first amendment, this case confirmed a long erties guaranteed by the first amendment. line of which held that the civil Thus, in this revolutionary and controver- law will neither interfere with the wholly sial case, the Court ruled that the first spiritual and internal affairs of ecclesiasti- amendment not only bound the federal gov- cal juridical orders in general, nor with ernment, but also the states. From then on, the appointment or removal of the the Supreme Court consistently upheld in particular. The Court wrote: "Freedom church law under the liberty clause of the to select the clergy, where no improper fourteenth amendment, rather than the methods of choice are proven . . . must natural law. now be said to have federal constitutional The dominating case in the sphere of protection as a part of the free exercise of church-state relations in the third period religion against state interference.' 7 It was Kedrof v. St. Nicholas Cathedral.15 added that "legislation that regulates This case resulted from a schism in the church administration, the operation of in the United the churches, the appointment of clergy States caused by the domination of the . . prohibits the free exercise of reli- Russian Church in America by the Patri- gion." ' The Court continued by declar- arch of Moscow, then suspected of being ing: under the control of the Russian govern- Ours is a government which by the "law ment. The schismatics prevailed upon the of its being" allows no statute, state or na- of New York to pass special leg- tional, that prohibits the free exercise of islation which provided "that all the religion. There are occasions when civil courts must draw lines between the respon- churches formerly administratively subject sibilities of church and state for the disposi- to the Moscow and tion or use of property. Even in those cases should for the future be governed by the when the property right follows as an inci- ecclesiastical body and hierarchy of the dent from decisions of the church custom American metropolitan district."'16 In Ked- or law on ecclesiastical issues, the church This under our Constitution roff, the plaintiff, a New York corporation, rule controls. necessarily follows in order that there may was created to acquire a cathedral for the be free exercise of religion.19 Russian Orthodox Church in North Amer- ica. It held legal title to St. Nicholas Cathe- The Kedroff case gave effect to Canon in substance provides that the dral in New York City. The defendants, 218, which clergymen appointed by the supreme au- Pope has supreme jurisdiction over the thority of the Russian Orthodox Church, Church in matters of faith, morals, disci- pline and government, and that this juris- were sued in the New York State courts. The Court of Appeals of New York de- diction is independent of all human author- gave approval to the independ- cided in favor of the plaintiff; however, the ity. It also ence of all church decisions, although the Supreme Court of the United States re- authority might be versed. ultimate governmental

37Id. at 117. (Emphasis added.) 15 344 U.S. 94 (1952). 18 Id. at 107. 16 Id. at 98-99. 1' Id. at 120-21. FIRST AMENDMENT located outside the United States. It should cendental moral value and to express that also be noted that the authority by which belief. This was the test laid down by Mr. the Supreme Court interpreted the first Justice Frankfurter in McGowan v. Mary- amendment as applying to the states could land:21 "The Establishment Clause with- only have arisen by introduction of a norm drew from the sphere of legitimate legisla- into the first amendment based upon a tive concern and competence a specific, but standard outside the Constitution, either comprehensive, area of human conduct: that of natural law or social utility. man's belief or disbelief in the verity of In the contemporary phase of the third some transcendental idea and man's ex- period, the Supreme Court began to inter- pression in action of that belief or disbe- pret the establishment clause of the first lief."22 Thus a state officially establishes a amendment so as to prevent the state from religion when it publically fosters a quasi- promoting belief in the basic moral values ethical belief and expression. Apparently of the natural law. Within the last few the children would not even have been con- years, the Supreme Court has redefined stitutionally allowed to affirm their belief "religion" as understood in Watson v. in the transcendental, intrinsic dignity of Jones, in its interpretation of the establish- man or the human person (much less the ment clause of the first amendment. In the Divine Being). Applying the Court's rea- leading case of Engel v. Vitale,'0 New York soning, this might lead to the formation of required the Board of Education of Union the religion of the Church of the Dignity of Free District #9, New Hyde Park, New the Human Person in New York State. York, to direct the school district's princi- In June 1963, the case of School Dist. of pal to cause the following philosophical Abington Township v. Schempp 23 was de- and rationally derived affirmation to be cided. There, a Pennsylvania statute re- said aloud by each class in the presence of quired the reading, without comment, of a teacher at the beginning of the school the and the recitation of the Lord's day: "Almighty God, we acknowledge our Prayer by students at the beginning of the dependence upon Thee, and we beg Thy school day. Students were free to absent blessings upon us, our parents, our teach- themselves from these exercises. The Su- ers, and our country." Students were at preme Court declared, in effect, that these liberty to absent themselves while this practices, though very old, were unconsti- affirmation took place. The practice was tutional from their very inception. Of declared unconstitutional on the ground course, if a natural law affirmation of belief that it violated the establishment clause of in the existence of a Creator by students the first amendment, although the practice during school time was unconstitutional, a was not attacked as an "establishment," fortiori, a supernatural law affirmation of but solely as a violation of religious liberty. faith in a Judaeo-Christian source is for- According to the Engel decision, "reli- bidden by the first amendment. gion" no longer means Church in the tradi- Hence, the Supreme Court is using the tional sense of a congregation with a doctrine of "Judicial Supremacy," based spiritual entity. To establish "religion" now means to promote belief in any trans- 21 366 U.S. 420, 465-66 (1961). "" Ibid. 20 370 U.S. 421 (1962). 23 374 U.S. 203 (1963). 11 CATHOLIC LAWYER, WINTER 1965

on the authority of natural law, or at least foundation of the Republic, there has al- some moral norm espoused by the Consti- ways been a union of church and state, tution, to devitalize the ideal of natural i.e., the church of the natural law, if one law. That is why Mr. Justice Brennan in may be permitted to use the word "church" the Abington case, upholding Mr. Justice in the sense implicitly given to it by the Frankfurter's insight in the McGowan case, Court in recent years. The Court now seeks refers to the situation as a paradox, i.e., to disestablish that church. the Court seems to, but actually does not, It is ironical that the Court has dis- contradict itself by praising the fact that couraged a laissez-faire attitude on the part we are a people whose institutions rest on of the state in economic areas of the com- basic moral values, and yet paralyzes the mon good and social justice. Dedication to state from promoting those values. It is the ideal of liberty has not prevented this. respectfully submitted that the situation But in the sphere of the first amendment, does not entail a paradox, but a flat con- dedication to that ideal appears to have tradiction. been so great as to identify the establish- It is manifest that these three cases are ment clause with the liberty clause. Of contrary to the spirit of Canon 1373, course, the movement of the legal philos- which, of course, purports to be binding ophy of the Supreme Court away from the only upon Catholic schools. The Canon philosophy of natural law-first, to that implicitly favors the teaching of the natural of the neo-Kantian ideal of freedom, read moral values to all children, in providing into the liberty clause of the first amend- that "in every elementary school the chil- ment, and secondly, to that of social utility dren must, according to their age, be in- -apparently has not yet endangered the structed in Christian doctrine." holding in Watson v. Jones. If the Court Conclusion should find, however, that social utility Further devitalizing of natural law dictated that this case should be overruled, values, either as such, or as a part of the it would be quite easy to do so by a new spiritual laws of the various churches, by interpretation of the liberty clause. It the Supreme Court may well disturb an would only be necessary for the Court to essential jural postulate of American civili- find that the decision in Watson now im- zation. The only essential difference be- pedes religious liberty by its upholding a tween the civilization of the United States coercive, ecclesiastical jurisdiction repug- and that of the Communist Bloc is the jural nant to the Constitution. This would be a postulate of the intrinsic, immutable, and serious blow to hierarchical churches. transcendental dignity of the human per- The purpose of the philosophical affirm- son. But the survival of that postulate is ation prescribed for the public school chil- now being imperiled more than ever before dren of New York was not to inculcate the because of the growing ascendancy of the truth or falsity of any particular theological forces of secularism. The Supreme Court system, but rather to impress upon such is currently paralyzing the authority of the children, as American citizens, the ultimate state to protect that postulate, while giving source of their obligations toward state lip service to the great importance of re- and society. Manifestly, the source of that ligion for the common good. From the (Continued on page 47)