Although the First Amendment prohibited the establishment of a national church, a number of states continued to give support to churches until Massachusetts became the last state to eliminate its establishment in 1833.
In 1818, the state of Connecticut did something similar when, through the efforts of the state’s aptly named Tolerationist Party and the Jeffersonian Democratic Republican Party, it adopted a new constitution to replace its earlier charter. In the process, it disestablished the Congregational Church, which the Puritan founders had established.
Connecticut disestablishes Congregational Church
Article VII of the new Connecticut constitution provided that “It being the duty of all men to worship the Supreme Being, the Great Creator and Preserver of the Universe, and their right to render that worship in the mode most consistent with the dictates of their conscience, no person shall by law be compelled to join or support, or be classed with or associated to any congregation, church, or religious association.” Although it had allowed denominations to assess their members for support, it had also provided that they could withdraw from such denominations.
Even after adoption of this new constitution, there was dispute as to whether it was simply an evolution of previous policies or a revolutionary break with them (Shakelton 2003). Although initial decisions by Connecticut courts tended to lean to a revolutionary break, in time the court began to adhere to the evolutionary idea.
Case arose over legislature’s power to incorporate, divide churches
This is evident in the case of the Second Ecclesiastical Society of Portland v. First Ecclesiastical Society of Portland, 23 Conn. 255 (1854), which was decided by Connecticut’s Supreme Court of Errors.
After a split in the Congregational Church in Portland, which has been incorporated by the state general assembly in 1714, the splitting group asked that it too be incorporated and that the assets of the initial group be divided between them. The general assembly had adopted legislation to honor this request in 1853, but the First Ecclesiastical Society had refused to transfer the funds and argued that the state no longer had authority to give public corporate status to religious groups.
Judge William Storrs delivered the majority opinion of the Court. Noting that “from the earliest period of our government until the adoption of our present constitution, the general assembly constantly exercised the power of establishing and dividing local ecclesiastical societies, and on such division, of dividing the funds of the societies so divided” and that at that time “provision for the support and maintenance of religious instruction and worship was considered to be a duty resting on the state,” Storrs saw this as consistent with considering such entities to be state instrumentalities (272-73).
Storrs argued, however, that the adoption of the new constitution had brought about “a radical change in our ecclesiastical polity” (274). Noting that not all members of the two societies agreed to the separation, Storrs thought that a governmental decision so dividing them would result in the very kind of religious compulsion the new constitution had intended to discontinue and was thus beyond the power of the legislature to effect.
What is state’s role in dividing property of split church?
Religious societies were no longer governmental but private entities. Noting that some judicial decisions since 1818 had attempted to divide such entities, he attributed this to the fact that they “arose very soon after the constitution went into operation, and when it was a matter of uncertainty, growing perhaps, in a measure out of the terms of that instrument, how far the former ecclesiastical polity of the state was intended to be affected by it” (276).
In dissent, Judge Henry Matson Waite argued that the new constitution had not intended to affect the corporate status of religious entities and that the constitutional provision relative to religion “do little more than carry out principles, which had previously been recognized by the legislature, in relation to religious toleration, and are not, at all, incompatible with the full exercise, in all other respects, of all the powers previously possessed by the legislature, in reference to religious corporations” (281). He thought the state maintained its power to intervene “in conformity with immemorial usage in this state” (283).
Many states have state constitutional provisions on religion. These provisions often are interpreted similarly to the First Amendment’s establishment and free exercise clauses.
Guided by the First Amendment, U.S. courts now typically adhere to its decision in Watson v. Jones (1871) and defer questions of property law to denominations according to their hierarchical structure (or lack of it) or on the basis of neutral principles of state property law rather than through legislative judgments.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.