Supreme Court Justice David J. Brewer has long been known for his decision in Church of the Holy Trinity v. United States (1892). In that decision, while deciding that a law banning foreign laborers did not apply to a member of the clergy from England, he declared that the United States was a “Christian nation.” Almost a decade earlier, however, when serving as a justice on the Kansas Supreme Court, Brewer had made a similar statement about that state in his decision in Wyandotte County Commissioners v. First Presbyterian Church, 30 Kan. 620 (1883).
Wyandotte had set aside land for a church
The case involved whether a tract of land in Wyandotte city, which had been marked as a “church lot,” was appropriately being occupied by a Presbyterian church, or whether reserving the land for the church was a violation of the doctrine of separation of church and state. This, in turn, involved whether such a property “church purpose” could be considered to be a “public purpose.”
Brewer saw support of religion, morality as a public concern
Noting that the practice of reserving city lands for a church was not new and that Kansas had borrowed the practice from Missouri, Brewer cited a Missouri decision in Hannibal v. Draper, 15 No. 634, that observed that:
It is presumed that in the nineteenth century, in a Christin land, no argument is necessary to show that church purposes are public purposes, and that the inhabitants of a town have an interest in ground reserved for such a use. To deny that church purposes are public purposes is to argue that the maintenance, support, and propagation of the Christian religion is not a matter of public concern. Our laws, although they recognize no particular religious establishment, are not insensible to the advantages of Christianity, and extend their protection to all, in that faith and mode of worship they may choose to adopt.
Noting that Kansas had recognized “the absolute separation of church and state,” Brewer acknowledged that a church is not “a public purpose in the sense that the state can assume control, or that taxation or eminent domain may be invoked on its behalf. We have no state church, and the settled rule in this country is of entire separation between state and church.”
Separation of church and state did not prohibit religious encouragement, ruling said
Much as in the Church of the Holy Trinity Case, however, Brewer did not believe that this separation prevented a state from encouraging religion:
This is a Christian commonwealth. We believe that the best interests of both [church and state] are promoted by enforcing entire separation between the state and the church; and yet it is universally recognized that religion lies at the basis of morality, and that for the purpose of securing the best and most thoroughly extended morality it is fitting that religion and the church be recognized; and everything done by individuals to support and further their interest is regarded with favor in the law and protected by the courts.
Brewer argued that governmental support of a religious institution “may be invoked to support an appropriation to uses not strictly and technically public.” He relied heavily on English common law and on the analysis that Justice Joseph Story had offered in the case of Town of Pawlet v. Clark, 13 U.S. (9 Cranch) 292, 1815).
Brewer believed that individuals who had bought property in the expectation that nearby land would be for a church were entitled to see that it did not become the home “for a livery stable, a saloon, a gambling house, or a brothel.” In this case, testimony indicated that the town had specifically designated this land for a Presbyterian church, a Lutheran church having already been established in the town. Moreover, the land had never been designated for taxation, and authorities had long recognized its dedication to a church.
In 1800s, some judges viewed supporting religion as support for public morality
The case demonstrates how some 19th century judges and justices viewed religion as a support for public morality, identified the United States as a Christian nation, and did not interpret the doctrine of separation of church and state in a manner that would preclude some government supports for religion as long as such support was not sectarian.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.