Portland State University PDXScholar Dissertations and Theses Dissertations and Theses 1985 Each in its own sphere : religion and law in Oregon history Alan L. Gallagher Portland State University Follow this and additional works at: https://pdxscholar.library.pdx.edu/open_access_etds Part of the History of Religion Commons, and the Political History Commons Let us know how access to this document benefits ou.y Recommended Citation Gallagher, Alan L., "Each in its own sphere : religion and law in Oregon history" (1985). Dissertations and Theses. Paper 3575. https://doi.org/10.15760/etd.5459 This Thesis is brought to you for free and open access. It has been accepted for inclusion in Dissertations and Theses by an authorized administrator of PDXScholar. Please contact us if we can make this document more accessible: [email protected]. AN ABS'IRPCI' OF 1HE 'IHESIS OF Alan L. Gallagher for the Master of Arts in History, presented Noverber 21, 1985. TITLE: Each In Its Ollll Sphere: Religion and Law in Oregon History APPIDVED BY MEMBffiS OF 1HE '!HF.SIS c:D'MITIEE: Thanas D. M>rr is, Olainmn ~9bn B. IX>dds Ann Weikel Olarles A. Tracy The author employs research skills from law, history and religion in order to present an account of the relations of law and religion in Oregon's history from its earliest days to the present. Oregon is considered by its leading historians to be affected periodically by religious and racial prejudice. The salient example is the period of Ku Klux Klan dominance in the 1920s and the Oregon School Bill. The management of church-state relations has generated a larger number of cases and controversies than most lawyers and historians realize. Using techniques and insights employed by historian-lawyers such as Mark De Wolf Howe and Orville Zabel, the author examines in detail, case by case and sect by sect, the development of principles of church-state relations in Oregon. Zabel, in his history of Nebraska's church-state development, had opined that Nebraska's history was that of the nation writ small. He concluded that American jurisdictions had essentially followed a common path. The Oregon 2 example suggests otherwise. Howe has demonstrated the wide variety of forms church-state management took in American jurisdictions and suggested a rationale for some convergence among the States in form. However, what each demonstrates upon examination is how each jurisdiction had a wide range of choices, and that wide experimentation was and continues, in spite of the homogenizing pressures of the federal courts, to be the rule. Howe predicted that the concept of equality of treatment, which he saw as the dominant theme of 20th Century law and politics, would have the effect of so broadening the definitions of religious groups as to eventually remove the protections afforded them when the definition was more narrow. Finally, in recent years the United States Supreme Court, reversing a pattern of at least thirty years, has begun to defer again to the States in such Constitutional areas as religion. States, Oregon being a leading example, have responded with increasingly independent interpretations of their own Constitutions. This reversion to state court law-making has created a need for detailed state histories of religion and law. The author presents the major themes, events and persona of Oregon's legal-religious history. He examines education, enforcement of morality, taxation and exemption, the treatment of minority religious groups, and the rise of professional interest groups. Legal sources such as court decisions, Attorney General opinions and statutes are assembled, assessed and annotated. Church histories, theses on Oregon religious groups, biographies and memoirs of leading actors are carefully reviewed. Special attention is given to Oregon's 3 Constitutional development on religion and to the Oregon School Bill, which set a national precedent for religious liberty while simultaneously expanding the federal role. The author concludes that a combination--the expansion of the roles of state and federal governments, the rise in taxation, religious prejudice (especially anti-Catholic prejudice), the progressive secularization of legal rationales and public fora, the impulse to equalize treatment of religious and non-religious groups--have all converged in Oregon. That combination has left the law in appearance and in fact not only unfriendly to religion, but in many areas seemingly on the attack against it. Because U.S. Supreme Court decisions establish a minimum to which states must adhere, state independence can only be directed toward further restriction of religion. Whatever the reality, state institutions will therefore appear to be more unfriendly than the federal. The general animus against special deference to religious groups overarches and contributes to the special actions which, when taken against this church or that, seem to display only special bias. While anti-Catholic prejudice, e.g., is real and important, it is not sufficient explanation for the state's persistent extreme separationist trend. The author suggests that a correct reading of the history of Oregon Constitutional foundations and of the practices of its people should result in a more accommodationist attitude on the part of Oregon's legal entities. EACH IN ITS OWN SPHERE: RELIGION AND LAW IN OREGON HISTORY by Alan L. Gallagher A thesis submitted in partial fulfillment of the requirements for the degree of Master of Arts in History Portland State University 1985. 'ID THE OFFICE OF GRADUATE STUDIES AND RESEARCH: The members of the Coomittee approve the thesis of Alan L. Gallagher presented November 21, 1985. Thanas D. Morris, Chainnan \Gor4on B. Dodds ""'- I Ann Weikel Charles A. Tracy APPROVED: __ .// Dril Bernard Burke, Head, Departrrent of History Studies and Research ----~ ' TABLE OF CONTENTS Chapter Page lntroduct ion............................................... 1 I • Pro 1ogue • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 9 I I. The Federal :Ba.ckground ••••••••••••••••••••••••••••••••••••• 13 III. Oregon Constitutional Developnent •••••••••••••••••••••••••• 20 IV. Private Parties, Churches, and the State ••••••••••••••••••• 38 (a) Charitable Irnnmity (b) Intra-church Litigation. V. Taxa t i on • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 4 6 VI. The Oregon School Bill of 1922 ••••••••••••••••.•••••••••••• 54 VII. Dissident and Minority Churches •••••••••••••••.•••••••••••• 71 (1) The Catholic Church (2) Early Churches (3) Christian Scientists (4) The Peace Churches (5) Jehovah's Witnesses (6) Jews (7) The International Society for Krishna Consciousness (''Hare Kr i shnas"). (8) Ethnic Churches (9) The Church of Scientology (10) The World Church for the Unification of Christianity (The ''IVboni es") (11) The Bhagwan Shree Rajneesh and his followers (''Raj- neeshees") (12) Protestants and Other ''Majorities" (13) Seventh Day Adventists (14) Other Groups and Cases VI I I • Educ at ion. • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 94 IX. A Confusion of Actors •••••••••••••••••••••••••••••••••••••• 105 X. State Fnforc~nt of Morality •••••••••••••••••••••••••••••• 109 XI • Cone 1us ion ••••••••••••••••••••••••••••••••••••••••••••••••• 117 XI I. Notes ••.•••••••••••••••.•••••••.•••••.•.••••••..••••.•••••• ll9 IV XIII. Sources: {a) Bibliographical Essay •••••••••••••••••••••••••••••••••• 136 {b) Books, Articles and Archives ••••••••••••••••••••••••••• 138 (cl Ca.ses . ................................................. 146 {d) Attorney General Opinions •••••••••••••••••••••••••••••• 155 {e) Statutes and Proposed Laws ••••••••••••••••••••••••••••• 161 {f) Law R.ev i ew Ar t i c 1es ••••••••••••••.• ••••••••••••••••••••• 164 {g) Interviews/Speeches •••••••••••••••••••••••••••••••••••• 166 NOTE Oregon cases, opinions, laws, and law review articles are given in the bibliography with full citation and annotation. This information is not repeated in the text save where necessary. The reader should refer to the bibliography for fuller information on sources, using the name of the case, or the year for Attorney General Opinions and laws. " ..• the religion clauses of the First Amendment were intended to erect "a wall of separation between church and state" ••• (which) must remain "high and impregnable"". Jefferson's Danbury Letter and Eversonl "the line of separation, far from being a 'wall', is a blurred, and indistinct, and variable barrier depending on all the circumstances of a particular relationship." Chief Justice Burger in Lemon2 "Something there is that doesn't love a wall." Robert Frost, Mending wan3 INTRODUCTION Historically the church-state controversy has been in the United States largely confined to the state level. 4 Only in the years since 1941 has the area of church-state matters become federalized through decisions of the United States Supreme Court.5 Recently, however, that court has seemed to be adopting a more accommodationist role. It has deferred to the states in this and other constitutional areas. The result has been an increased attention to the resolution of church-state matters within the states. This thesis presents a summary of Oregon history relating to the ·interaction of law and religion, and presents analysis of the causes of the major events and trends. In so doing, it seeks to show the proper approach and mix of disciplinary skills needed