Presbyterian Church in United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church

PETITIONER:Presbyterian Church in United States
RESPONDENT:Mary Elizabeth Blue Hull Memorial Presbyterian Church
LOCATION:Souther District Court of Georgia

DOCKET NO.: 71
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 393 US 440 (1969)
ARGUED: Dec 09, 1968 / Dec 10, 1968
DECIDED: Jan 27, 1969

ADVOCATES:
Charles L. Gowen – For the Petitioner
Owen H. Page – For the Respondent

Facts of the case

The general Presbyterian Church (general church), and two local churches, Hull Memorial Presbyterian Church (Hull Church) and Eastern Heights Presbyterian Church, were in dispute over the control of properties used by the local churches in Savannah, Georgia. The local churches withdrew from the general church due to these conflicting views. In response, the general church took over the local churches’ property. Each of the local churches sued the general church for trespass on the disputed property. The general church argued that the civil courts don’t have the power to determine whether the general church had departed from its faith and practice. The district court disagreed and concluded that, under Georgia law, the implied trust of local church property for the benefit of the general church was terminated because of the general church’s substantial departure from its doctrines. The Supreme Court of Georgia affirmed the judgment, but the U.S. Court of Appeals for the Eleventh Circuit reversed the decision by agreeing with the general church that the First Amendment prevents civil courts from ruling on church doctrine issues. 

Question

Do the civil courts have the ability to determine title to church property on the basis of the civil court’s interpretation of the church doctrine?

Earl Warren:

No. 71, Presbyterian Church in the United States, et. al., petitioners vs. Mary Elizabeth Blue Hull Memorial Presbyterian Church, et. al.

Mr. Gowen.

Charles L. Gowen:

Mr. Chief Justice, may it please the court.

The Presbyterian Church in the United States, the petitioner, is a hierarchical church, sometimes called the Southern Presbyterian Church.

The first step in the church government is the “Session”, composed of ruling elders and the pastor of the local church.

The next is the “Presbyterian”, which is composed of representatives of local churches in a geographical area and also the ministers from those churches.

Under the form of government of this church, a pastor of a local church is not a member of the local church but is a member of the Presbyterian.

The next is the “Senate”, which generally but not always corresponds to state lines and which is composed of representatives of the local churches together with the ministers in the included Presbyterians.

Next is the “General Assembly”, which is composed of representatives of Presbyterians, divided equally between ministers and laymen.

This also constitutes the courts of each government church; the General Assembly being the highest court in the denomination.

In April of 1966, the congregation of two local churches of this church voted to savor all connections will and remove themselves from all ecclesiastical control, jurisdiction and oversight of the Presbyterian Church in the United States and so notified the Presbytery of Savannah.

The Savannah Presbytery then appointed an Administrative Commission under the law of the church with full authority to act on the premises and with special instructions to visit the ruling elders of each church – the ruling elders constituting the session, which as I have said is the governing body of the local church.

After each elder in each church saved one, reaffirmed the action and after the pastor of each church had reaffirmed his renunciation of the Presbyterian church in the United States, the Commission, by a resolution, that’s the Administrative Commission of the Presbyterian, by resolution declared the pulpit of these church to be vacant because administers had savored all the connections with the church and assume the regional jurisdiction over these local churches in accordance with the Book of Church Order which is part of the record in this case and declared that Commission’s intention to secure ministers to provided regular services of worship in the sanctuaries of each of the two local churches for those members who wish to continue their membership and communion with the general church.

Byron R. White:

If you are going to point specifically where in the church order there’s any reference to the use of property or a right of the central to the real property of a local church?

Charles L. Gowen:

We will cover that but the decision of the Georgia Supreme Court we think —

Byron R. White:

I understand that.

They may not have gone on the space.

I just like to know where, on what basis within the church does the central church or general church have any claim to local — on the local church?

Charles L. Gowen:

On the basis of the implied trust.

Byron R. White:

You mean you have to turn the civil law for the implied trust?

Charles L. Gowen:

No, sir, but —

Byron R. White:

The judge made law for the implied trust?

Charles L. Gowen:

No, sir.

When you join the church, the Book of Church Order contains the procedure under which the local churches are maintained.

The Book of Church Order says —

Byron R. White:

Did it say anything about property?

Charles L. Gowen:

I don’t think it says anything about the property but it does say who has the use and the right to occupy the church when the church ceases to function as a church in the denomination.

Byron R. White:

Now where is that?

Charles L. Gowen:

That’s in Book of Church Order, Section 16-7(a) or it may 7(d).

Byron R. White:

Where do you find that in the record?

Charles L. Gowen:

It’s not in the appendix.

It’s in the record.

The Book of Church Order is a part of the record that is —

Byron R. White:

You mean that isn’t in the printed record here?

Charles L. Gowen:

It is not in the printed record.

Byron R. White:

You quoted it on the brief?

Charles L. Gowen:

No, sir, it is not been quoted in the brief but —

Byron R. White:

The quote is a rather important matter as to what — after all, Kedroff and Kreshik said that within the Canon Law of the church, there is some sort of basis for saying that the elders of that church, whatever you or the bishops or whatever they were had the right to the use and occupancy of the property.

Now how about some similar basis of the church law for this?

Charles L. Gowen:

Well, the decision in the statement in the church law is that when a local church ceases to function as a church; that the property then is within the jurisdiction of the general church and our position is, that this local church has ceased to function.

The finding of the Administrative Commission was that one elder did not constitute the Session; that there was no session to govern the church and that it had no minister.

And that therefore, the Administrative Commission would take the occupancy and use of the property for the purpose of carrying out the dedication of the property which came about when the local churches affiliated with the general church.

Byron R. White:

Is there some place on the record that we can find this church order (Voice overlap)

Charles L. Gowen:

It’s in the record –

Byron R. White:

Is it in the typewritten record?

Charles L. Gowen:

It’s in the book itself.

It’s a part of the record.

The Book of Church Order is a part of the record.

William J. Brennan, Jr.:

Overnight, could you find that in the record and direct it to us please?

Charles L. Gowen:

Yes, I’ll be happy to do that.

Earl Warren:

Is that, as you understand, that is not the basis of the determination of the reason implied thrust here or is a basis of it?

I’m not suggesting this is correct.

I’m not trying to disentangle this.

There is a basis of the implied trust conclusion of the following, that when the church property was acquired by purchase or by gift, that it was acquired by the church’ cooperation subject to the implied trust just implied from the circumstances that it would be dedicated to the users of the Presbyterian church and that meant the central authority of the Presbyterian church whether that implication, and that that was the implication that was the conclusion where the implication proceeded from the circumstances of acquisition or the church laws I suppose is not clear.

But I know this far of my study of the cases see nothing that would indicate that the implication was drawn from the church laws rather than from the circumstances of the acquisition.

Charles L. Gowen:

I think it was from the circumstances of acquisition and also from the general politic of the church that has existed for a hundred years.

I think it was also the decision in — had been decided in the numerous other jurisdictions that this was the politic of the Presbyterian church and we have cited those in our brief.

Earl Warren:

What’s that mean “Politic”?

Charles L. Gowen:

Politic is the laws and the practices of the church.

Earl Warren:

You mean that the courts here are making an inference from the implied trust from the policy in practice in the church?

Earl Warren:

I hope that — I trust and I assume your argument basically is this is something that we can leave to the state court.

State court has found an implied trust and that’s that.

Charles L. Gowen:

The state court has founded and the local court, local state court founded and the respondents have never questioned.

Earl Warren:

And they don’t question it here.

Charles L. Gowen:

They don’t question it here.

Earl Warren:

Because once you get beyond that, the situation gets a little complicated than vague to me in a way.

Charles L. Gowen:

Indeed the judge suggesting in a possible way, we could leave it to the church government itself.

I think it’s been left to the church government because the church government, the Administrative Commission of the Presbyterian, which was opponent in the accordance with the Book of Church Order which is a Constitution of the government of the church made this finding.

And the local churches —

William J. Brennan, Jr.:

May they find and have a jury make a finding?

Charles L. Gowen:

No.

They found first the Administrative Commission of the Presbyterian, was appointed to go and see these churches and to find out/discuss with them the differences at —

William J. Brennan, Jr.:

How many churches are there that have –(Voice overlap)

Charles L. Gowen:

Withdrawn?

William J. Brennan, Jr.:

I don’t want to use the wrong word “secede” or went wrong.

Charles L. Gowen:

Secede — Two churches on Savannah.

William J. Brennan, Jr.:

Only two?

Charles L. Gowen:

Only two.

William J. Brennan, Jr.:

In the United States?

Charles L. Gowen:

That’s as far as the records show and as far as I know.

William J. Brennan, Jr.:

That’s because — between churches and the other.

Charles L. Gowen:

Two churches and the rest of the denomination.

But the church —

William J. Brennan, Jr.:

Is it over religious matter?

Charles L. Gowen:

It’s over — we think it’s over religious matters.

The Court —

William J. Brennan, Jr.:

I noticed as it seems to me but Vietnam and —

Charles L. Gowen:

Yes, while here’s what the differences were – first —

William J. Brennan, Jr.:

Civil law, civil disobedience.

Charles L. Gowen:

The first was a statement in some Sunday School literature about civil disobedience.

Charles L. Gowen:

The evidence was on the trial of the case and the local churches didn’t even use the Sunday School literature and what required to use it.

There was also a statement by the General Assembly of the church on civil disobedience as a final resort to secure individuals their rights.

That statement on civil disobedience is in the record; the summation of it is on page 58.

I think it’s relatively mild statement of it.

It ends up by saying that it regard civil disobedience as a measure of last resort, to be employed only on circumstances otherwise herein mediatable need.

And then the exercise of which, the whole concept of law is not denied but affirmed.

And to continue the support and regard with compassion, those who practice civil disobedience when no legal recourse has been left open to them and you act in Christian conscience and a legions to Almighty God.

William J. Brennan, Jr.:

Was the question of that kind submitted to the jury?

Charles L. Gowen:

Yes, sir.

They are submitted to the jury as whether —

William J. Brennan, Jr.:

And did the jury pass on that?

Charles L. Gowen:

Yes, the jury passed on that.

William J. Brennan, Jr.:

What did they hold, is it religious or not religious?

Charles L. Gowen:

They held that it was a departure from —

William J. Brennan, Jr.:

You mean the civil disobedience?

Charles L. Gowen:

Civil disobedience was a departure from the tenets and doctrines of the Presbyterian Church in the United States as they existed in 1861.

And as they existed in 1890, when one of these local churches affiliated with, and that the holding was, is apparently they adopted the English rule that was rejected by this Court on Watson vs. Jones and said “that you couldn’t change the doctrine that existed in 1861 of the time when the church affiliations because of — they were bound by.

William J. Brennan, Jr.:

Does the state could decide in favor of the two courts (voice overlap).

Charles L. Gowen:

They decided in favor of the two local churches and the Court.

William J. Brennan, Jr.:

And let them keep the church?

Charles L. Gowen:

Yes, sir and the Court made a statement that the state went on the civil disobedience, this is a court in the Georgia Supreme Court, is an absolute defiance of law on order and this is the road to anarchy.

Earl Warren:

Well, in the holding that’s before us the one that appears on page 124 of the appendix and the opinion of the Georgia Supreme Court and it says that after saying that there is implied trust and the Court says we take the view that such a trust is conditioned upon the general churches adherence to the tenets of faith and practice existing in the local church adhered with it and that an abandon may now over a departure from such tenets as a diversion from the trust that civil courts will prevent and it goes on to say that that abandonment or departure has then have to be total but have to be substantial.

Is that the issue before?

Charles L. Gowen:

That’s the issue.

And our contention is, that under the First Amendment as construed in Watson vs. Jones and in Kedroff vs. St. Nicholas Cathedral that this court has held that under the free exercise and establishment clauses of the First Amendment that the civil courts do not have a right to inquire into those matters but those matters are for decision by the ecclesiastic courts.

And that is the question and the issue that we think it’s been in disposed of by Watson vs. Jones which was not decided on constitutional grounds originally but we believed was raised to constitutional status by Kedroff vs. St. Nicholas Cathedral.

William J. Brennan, Jr.:

You are not representing the two churches?

Charles L. Gowen:

No, sir, I’m representing the central, the petitioner —

William J. Brennan, Jr.:

Who paid for the church?

Charles L. Gowen:

Sir?

William J. Brennan, Jr.:

Who bought the church?

Charles L. Gowen:

The local congregations bought the churches and paid for it.

William J. Brennan, Jr.:

Whose name is it then?

Charles L. Gowen:

The title is on the local churches.

William J. Brennan, Jr.:

Title is on the local church.

Charles L. Gowen:

Yes, and the decision of the Court, and that we think correctly, the correct decision was that when these local churches affiliate or joined the central church that there was an implied trust that those, the church property, would be use for purposes of the denomination.

So you rely on the implied trust rather than on any specific provisions of the (Voice overlap)

Charles L. Gowen:

I think so.

I think I could —

Well, can you do otherwise?

Charles L. Gowen:

— show you the specific provision that —

But can you do otherwise?

In other words, you may show us.

As the case comes to us, are we not concluded (Voice overlap)

Charles L. Gowen:

— that there is an applied rules.

That’s right.

And then, I gather that trust does not resolve in your client, taking these properties in the circumstances because the Supreme Court of Georgia said, “Your body had departed from the central (Voice Overlap).

Charles L. Gowen:

That’s what they say that that defeated the trust.

So really what’s before us is just an element of it, isn’t it?

Not whether or not (Voice overlap) source of the title.

You’re only source of the title is the implied trust as far as (Voice overlap)

Charles L. Gowen:

The title isn’t involved. (Voice overlap)

The thing that’s involved is his right to occupy and use it the same thing that was involved in St. Nicholas Cathedral and the Kedroff case.

Potter Stewart:

Yes, but in those two cases, they found within the ecclesiastical law itself of the right to use and occupy the property.

Charles L. Gowen:

Well, I’m sure that there is that we can’t point out to the court.

William J. Brennan, Jr.:

No, but the Court of Appeals of New York found that in Kedroff and the other case.

Charles L. Gowen:

The Court of Appeals of New York in the Kedroff case, the Kedroff case involved an Act of the legislature which in effect undertook to place the property in the hands of the American branch of the church relevant to Moscow branch because they said/felt that the Moscow branch had been tainted by the communist of the government that existed there and was not capable of managing.

And that the Court held that they couldn’t do that because under the rules of the church and under its practice in the Orthodox church that they have the right to occupy the cathedral though the cathedral belong to the local people who went into question what they had the title to it, to the state.

Earl Warren:

Well, we do not have any comments on these questions?

Charles L. Gowen:

No sir.

Charles L. Gowen:

Well, we got/have Vietnam War and we have statement on policy.

There’s also one of the things they found fault with —

Earl Warren:

Found what?

Charles L. Gowen:

One of the things the local church has found fault with was an amendment to the church Constitution that authorizes women to hold church offices.

Earl Warren:

That would be communist, would it? [laughter attempt]

Charles L. Gowen:

Well, I wouldn’t think so.

They also found fault with the central church because the General Assembly refused to endorse a motion to — because the general ssembly refused to endorse the amendment of the Constitution of the United States to overcome the decision of this court dealing with bible reading and prayer in the public school.

Abe Fortas:

There was also something about Foreordination.

Charles L. Gowen:

Yes, but the last one was the statement of the General Assembly on Foreordination.

And if you read the statement of the General Assembly on Foreordination, it simply says that in order to be a Presbyterian, you don’t have to believe that people are condemned everlasting death at the time of their birth and that that is necessary.

You don’t have to say you can’t believe it if you want to.

It don’t deprive you, it don’t deprive the members of these local churches from believing and if they wanted to.

They simply say that if I don’t believe that that I can still be a member in good standing of the church.

Anything about predestination or just Foreordination?

Charles L. Gowen:

Just Foreordination.

William J. Brennan, Jr.:

I was reading the other night the trial of Tomas Miore in Scotland in 1793.

He was tried for sedition and convicted and his crime was advocating suffrage for women.

So may be this is — on practice that is very fundamental here.

Charles L. Gowen:

Well, we think that this Court has held that all of these matters are matters for determination in the church courts or by the church itself and not by the civil court —

William J. Brennan, Jr.:

Except for the property, except for the implied trust, would you think the state law is free to imply to settle the property dispute within the church?

Charles L. Gowen:

No, I think this — I think this Court has held that the property, the only property of the civil courts is to take the property in the way that the general church has decided that it should go.

William J. Brennan, Jr.:

So that you don’t rely on the implied trust?

Charles L. Gowen:

No, sir. (Voice overlap)

The Georgia court held it and I think it’s in this case.

Potter Stewart:

Well, I ask you whether we were concluded by the holding of implied trust.

You’re answer to me now is, “We are not”.

In the determination here whether or not this is a matter of church law, we witness to this property any authority of the state by whatever property concept.

Charles L. Gowen:

I don’t think the State Courts have a right to determine the — where the property goes but that’s a matter for determination by the ecclesiastical courts.

Potter Stewart:

(Voice overlap) to what Justice White asked you earlier.

It was true, wasn’t it that we were able to find in Kedroff that there was a provision of Canon Law that dealt with this problem?

Potter Stewart:

And if you are going to suggest that there is one in — we have your Book of Church Order here but can you suggest what the provision was now that you referred us to earlier?

Charles L. Gowen:

It’s either 16.7 (a) or 17.7 (a).

The copy, I have that 16.7 (a) but it is not identical with this one.

Byron R. White:

We don’t have As or Bs in this one, the one that it’s on the record?

Charles L. Gowen:

16.7.

Byron R. White:

But would you say then that that the civil courts are entitled to interpret the ecclesiastical law or the Canon Law with respect to property?

Charles L. Gowen:

No, sir.

I don’t think —

Byron R. White:

Well then, isn’t – if you don’t rely on the implied trust and then it seems to me the court, in order to settle the property dispute, would have to interpret the church law.

And it can’t do that either; it should dismiss the case and leave it at the file as traits.

Charles L. Gowen:

No, that’s being suggestive.

I don’t think that that is the law.

I think that the law is that after the church has made the determination, the duty of the civil court then is to enforce the decision of the ecclesiastical courts.

Byron R. White:

Which church, the local church or the central church?

Charles L. Gowen:

Well, the central church because the local church had a house access to the church courts.

Now these local churches didn’t see fit to exhaust any remedies in the church court.

The local churches had a right of appeal to the Presbytery.

The Presbytery appointed the Commission.

The evidence is, they refused to participate into and they have anything to do with.

Abe Fortas:

What’s your basis for civil courts in this country accepting a determination as to property rights or right of that by church courts that it can’t be because it is a Canon Law or a church law.

It’s got to be because it is relevant to some common-law principle that we can entertain in civil courts, is that right?

Charles L. Gowen:

It’s because —

Abe Fortas:

I don’t know of anything in our constitutional system that —

Charles L. Gowen:

Well, I think —

Abe Fortas:

— would think to what you say.

I was hoping that you would say that in this case, the purposes of this case, as to whether the Georgia Court’s decision on the existence of an implied trust should be taken by this court.

Apparently, you don’t say that.

Charles L. Gowen:

Well I think that the Georgia Court — I don’t think this been in the appeal from that decision.

But I understood, Mr. Justice White that it has to be whether or not I felt that if this decision have not been made by the Georgia court that it would have been open for determinations by the court.

I think you’re bound by because the court laid the decision and there had been no appeal from it.

Byron R. White:

Georgia courts.

Charles L. Gowen:

Yes.

Byron R. White:

Alright.

Does the record show whether there was a vote on your local church member?

Charles L. Gowen:

Yes.

Now as they vote among the local church members and it was unanimous to the extent of the local church members who were present at that time, I don’t believe it.

Earl Warren:

Which weights?

Charles L. Gowen:

Unanimous in favor of withdrawing from the central church.

Earl Warren:

You will get us that citation from the record overnight, will you?

Charles L. Gowen:

Yes.

Earl Warren:

Mr. Page?

Owen H. Page:

Mr. Chief Justice and may it please the Court.

I think I can put this in a correct prospective point.

At the time these churches, the local churches withdrew in April 1966 in the resolution of disaffiliation, they charged the denomination or church with specific violations of the church doctrine/dogma and discipline.

Now in light of that, then the Supreme Court of Georgia rightfully there being an — and Mr. Justice White, the only reference in the Book of Church Order to the right of a Presbyterian at (Inaudible) is Chapter 6, Days 3 of the Book of Church Order.

Earl Warren:

But that works only if the church has been dissolved, they come to an end is that right?

Owen H. Page:

Yes, sir, that’s correct.

Earl Warren:

Which is not the case here.

Owen H. Page:

Excuse my degradation but I want a Sixth Amendment.

So the Supreme Court of Georgia rightfully then looked at the question of the implied trust.

They examined it and they found under the implied trust, of course in a church property dispute, you don’t go to the words on the grant because we don’t have an express trust situation.

Therefore, the Court has to look at the church doctrine and dogma that existed at the time of the acquisition of the property.

And that’s what the Supreme Court of Georgia did in invoking the implied trust.

Potter Stewart:

But where does this civil court have the right to imply trust in —

Owen H. Page:

Because of the fact that property right is involved, Mr. Justice and this is historically correct in cases where you have a property dispute involving church and then the civil courts have the right above a sides and this is particularly true if in the final determination it is a question of violation of a church constitution such as we have here.

This was specifically alleged, let me make reference to those parts of the Constitution that were particularly presented and alleged to have been violated.

Byron R. White:

Before you get to that, may I just ask you one question.

Are you going to suggest any way in which we can get out of this without having depends on that church Constitution?

Owen H. Page:

No, sir.

I believe that question has already been resolved.

Owen H. Page:

It is –

Byron R. White:

How can it be resolved?

It is still here.

Owen H. Page:

I mean the question of the violation of the church doctrine and dogma —

Byron R. White:

(Voice overlap) resolved in the court below.

It appear now.

Owen H. Page:

Yes, sir.

But in examining —

Byron R. White:

I’m just asking are you going to suggest anyway that we can decide this case without having to get into that church Constitution?

Owen H. Page:

No, sir.

I don’t think we are going into the question.

I think we are looking at a different situation.

We aren’t involved in faith and dogma.

What we have here and the Court’s have looked into this very carefully what they say when you present a church doctrine or dogma in the implied trust such as this, you look at the doctrine and dogma just to determine that the –

Earl Warren:

Finish your little statement and then —

Owen H. Page:

You look at it as though you had an express trust.

When in looking at the implied trust, you look at the doctrine and dogma that existed that the property was acquired then you determine if there has been a violation of that to determine if the implied trust has been breached.

Earl Warren:

And now, we’ll recess.