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The Last Days of Erastianism—Forms in the American Church-State Nexus

  • Robert E. Rodes (a1)


In 1843, the Reverend Robert Baird, “an esteemed minister of the American Presbyterian Church,” sojourning seven years in Europe “for the prosecution of certain religious and philanthropic objects,” published a book for the benefit of the various Europeans who had addressed to him “innumerable inquiries … respecting his native country, and especially respecting its religious institutions.”



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1 Baird, Robert, Religion in the United States of America (Glasgow, Blackie & Son, 1844), v, vi.

2 Id., 69.

3 Carroll, H. K., The Religious Forces of the United States (New York, Christian Literature Co., 1893), lx–lxi.

4 Rotuli Parliamentorum (1767) I, 319a, quoted in the preamble to 25 Edw. III c. 6 (1350).

5 See my The Passing of Nonsectarianism, Notre Dame Lawyer 38 (1963), 115, 121–28.

6 Stokes, Anson Phelps, Church and State in the United States, 3 vols. (New York, Harper, 1950); hereafter, Stokes.

7 See Howe, Mark Dewolfe, The Garden and the Wilderness (Chicago, University of Chicago Press, 1965), 131 and passim, in which he contrasts with Jefferson's doctrine of church-state separation (which he considers anticlerical if not antireligious) Roger Williams' doctrine on the same subject, as set forth in the following passage, id., at 5–6: … The faithful labors of many witnesses of Jesus Christ, extant to the world, abundantly proving that the church of the Jews under the Old Testament in the type, and the church of the Christians under the New Testament in the antitype, were both separate from the world; and that when they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the candle-stick, and made His garden a wilderness, as at this day. And that therefore if He will ever please to restore His garden and paradise again, it must of necessity be walled in peculiarly unto Himself from the world; and that all that shall be saved out of the world are to be transplanted out of the wilderness of the world, and added unto his church or garden.

8 Stokes, II, 356–69.

9 Addison, James T., The Episcopal Church in the United States, 1789–1931 (New York, Scribner's, 1951), devotes a whole chapter to “The Oxford Movement and its American Results” without finding it necessary to say anything at all about the church-state aspects of the English movement.

10 Ecclesiastical Law in Halsbury, , The Laws of England, 3d edition, Simonds, ed., XIII (1955), 1, 527–34.

11 See the extensive discussion of this point in Selden v. Overseers of the Poor (Va. Ch. 1830), Cases on Church and State in the United States, Howe, ed. (Cambridge, Harvard, 1952), 16, affirmed 11 Leigh 127 (Va. 1830).

12 This approach to ecclesiastical disputes is developed in Figgis, J. N., Churches in the Modern State (New York, 1914).

13 See the exuberant statement of this principle in McGinnis v. Watson, 41 Pa. St. 9 (1861).

14 Stkingfellow, Law, Polity and the Reunion of the Church, Ohio State Law Journal 20 (1959), 412; Casad, The Establishment Clause and the Ecumenical Movement, Michigan Law Review 62 (1964), 419.

15 Hayes v. Trustees of Holy Trinity Baptist Church, 225 N.Y.S.2d 316 (Sup. 1962).

16 Robertson v. Bullions, 11 N.Y. 243 (1854), a leading case on the distinction between church and corporation, attaches considerable weight to the exclusiveness of full communion.

17 It is expressly rejected, for instance, in the encyclical Mystici Corporis of Pius XII.

18 Wall. 679 (U.S. 1871).

19 Watson v. Garvin, 54 Mo. 353 (1873), a product of the same Presbyterian schism over slavery that evoked Watson v. Jones, takes the latter case vigorously to task as an abrogation of the proper responsibility of civil courts:

The civil courts are presumed to know the law touching property rights; and if questions of ecclesiastical law, connected with property rights, come before them, they are compelled to decide them. They have no power to abdicate their own jurisdiction and transfer it to other tribunals. If they are not sufficiently advised concerning the questions that arise, it is their duty to make themselves better acquainted with them, in all their bearings, and not to blindly register the decrees of tribunals having no jurisdiction whatever over property.

20 Kedrof f v. St. Nichola s Cathedral, 34 4 U.S. 94 (1952)

21 Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 89 Sup. Ct. 601 (U.S. 1969).

22 See, e.g., Stansberry v. McCarty, 238 Ind. 338, 149 N.E.2d 683 (1958); Holiman v. Dovers, 236 Ark. 211, 366 S.W.2d 197, 15 A.L.R 3d 277 (1963).

23 See CASAD, supra, note 14 at 445f.

21 See, e.g., Mills v. Yount, 393 S.W.2d 96 (Mo. App. 1965).

23 See, e.g., Western Conference v. Creech, 256 N.C. 128, 123 S.E.2d 619 (1962); CASAD, supra, note 14 at 44 on. Among the complications not envisaged in the Watson v. Jones categories is that presented by a case with which I have some acquaintance in which the issue was which of three hierarchies was the one to which a certain local congregation had adhered. Another complication was suggested by an unsuccessful petition for certiorari to the United States Supreme Court in the famous Mellish case. See Pfeffer, Leo, Church, State and Freedom (Boston, Beacon, 1953), 251–57(hereafter, PFEFFER). The case involved a state court intervening in a dispute in an Episcopal parish by (quite properly under Watson v. Jones standards) granting an injunction in favor of the faction approved by the bishop. The point raised on the petition for certiorari was that the canon law of the Episcopal Church had a specific sanction for a parish violating the bishop's order — deprivation of representation in the diocesan convention. Accordingly, the application of Watson v. Jones gave the bishop more power than the canons of the church gave him — more power, it might be added, than any Anglican bishop has had in all history before.

26 89 Sup. Ct. 601 (U.S. 1969).

27 Id. at 607.

28 Id. at 606.

29 Brundage v. Deardoff, 55 Fed. 839 (C.C.N.D. Ohio 1893), cited 89 Sup. Ct. 605.

30 8 9 Sup. Ct. at 606.

31 Supra, note 25.

32 Supra, note 20.

33 344 U.S. at 120–21.

34 Id. at 121.

35 Id. at 126, 131.

36 See the same case below, 302 N.Y. 1 (1950): “The Russian Church originally was subject to the Patriarch of Constantinople but acquired greater autonomy when Constantinople fell to the Turks and the Metropolitan of Moscow was no longer appointed by the Patriarch of Constantinople but was elected by the Russian bishops.”

37 Tellenbach, Gerd, Church, State, and Christian Society, Bennet, ed. & tr. (Oxford, O.U.P., 1959). Instructive on this point is Frankfurter's language, 344 U.S. at 123–24, analogizing the action of the New York authorities to the German Kulturkampf of the 1870's, and to other disputes “not unfairly attributable to a claim by the State of comprehensive loyalty, undefiected by the competing claims of religious faith.”

38 241 Md. 383, 216 A.2d 897 (1966).

30 Mrs. Murray's case was a companion case to School District of Abington Township v. Schempp, 374 U.S. 203 (1963).

40 Earlier cases would probably not make this concession. See the quote at Stokes, III, 419.

41 319 U.S. 105 (1943).

42 Corpus Juris Canonici, Canon 3, Book III, title 23 in Sext. Translation from Documents Illustrative of English Church History, Gee, and Hardy, eds. (London, Macmillan, 1896), 87.

43 385 U.S. 816 (1968).

44 Fellowship of Humanity v. County of Alameda, 153 Cal. App.2d 673, 315 P.2d 394, 409–10 (1957).

45 Washington Ethical Society v. District of Columbia, 249 F.2d 127 (D.C. Cir. 1957).

46 United States Internal Revenue Code (1954), §511.

47 Moore, and Dohan, , Sales, Churches, and Monkeyshines, Tax Law Review 11 (1955), 87, 103.

48 De La Salle Institute v. United States, 195 F. Supp. 891 (N.D. Cal., 1961).

49 319 U.S. 105 (1943).

50 Id. at III.

51 Id. at 112.

52 Id. at 134, especially 136–37: “Nor, as I have indicated, can a tax be invali-dated because the exercise of a constitutional privilege is conditioned upon its payment. It depends upon the nature of the condition that is imposed, its justification, and the extent to which it hinders or restricts the exercise of the privilege.”

53 Howe, , supra, note 7, at 91118.

54 321 U.S. 573 (1944). The facts differed from those in Murdock only in that here the Jehovah's Witness involved was not an itinerant, but worked full time in the community that endeavored to tax him. A dissenting opinion by Roberts, Jackson, and Frankfurter, JJ., 319 U.S. at 579, 581–82, suggested that the entire publication industry would have to be afforded the immunity established in the prevailing opinion. The majority did not address this point.

55 374 U.S. 398 (1963). The case holds that persons with religious scruples against obeying a law may have a constitutional right to exemption where others would have no such right. Thus, it is a drastic departure from the doctrine of the ‘40's, as represented by West Virginia Board of Ed. v. Barnette, 319 U.S. 624 (1943), where the court established the right of a Jehovah's Witness not to salute the flag by holding that everyone has a right not to salute the flag. The religious right in Barnette was assimilated to free speech by saying that free speech included freedom not to speak, and therefore freedom not to salute the flag. But if freedom of religion is conceived in terms of Sherbert, no comparable free speech analogues can be developed.

56 The conclusions set forth in PFEFFER, 603, seem to accord fairly well with mine. It is interesting also that President Grant, an early proponent of doing away with general tax exemption for churches, was prepared to exempt “the last resting-place of the dead, and possibly, with proper restrictions, church edifices.” Quoted Id. at 188.

57 PFEFFER, 173–79. The federal law on the point is found in United States Code, title 42, §§ 291, 291d.

58 Office of Economic Opportunity Community Action Program Guide (1965), 99–100.

59 United States Code, title 20, §§ 445, 611, 671, 751, 952(e), 1107a, 1205(a)(5) are examples of provisions making private schools eligible for the various programs to which they apply.

60 Stokes, Anson Phelps and Pfeffer, Leo, Church and State in the United States, revised ed. (New York, Harper & Row, 1964).

61 175 U.S. 291 (1899).

62 281 U.S. 370 (1930).

63 175 U.S. at 298.

64 Including the Supreme Court in Board of Education v. Allen, 392 U.S. 236 (1968), which came down while I was preparing this article.

65 Quoted in STOKES and PFEFFER, op. cit. supra, note 60, at 442.

66 330 U.S. 1, 28.

67 Id. at 50–51.

68 Id. at 51n.

69 Id. at 41n.

70 Id. at 52n.

71 Id. at 57–58.

72 The one serious exception is presented by military chaplains. On this, see Pfeffer, 151, 217f.

73 United States Code, title 20, § 1116.

74 Looking more or less at random for the sort of thing I have in mind, I turned to the “Church Organizations” entry in the South Bend, Indiana, telephone book on my desk. It has a quarter-page advertisement, compliments of the telephone company, saying: “Go to the Church of your choice… Take someone with you, you'll both be richer for it…”

75 Thomassin, Louis, Ancienne et Nouvelle Discipline de I'Eglise, André, ed. (Bar-le Due, Guérin, 1867), VII, 343 (my translation).

79 STOKES, II, 137.

80 Id., 187–88.

78 Id., 167.

79 Id., IlI, 91.

80 Id., II, 344.

81 Id., 196.

82 Id., 298.

83 Id., 350.

84 Id., 377.

85 Id., 343.

86 Dirks, Lee E., Religion in Action (Silver Spring, Md., National Observer, 1965), 147.

87 STOKES, II, 332.

88 Id., 190.

89 1 have decided, with some reluctance, to brave the conceptual perils of characterizing an institution, qua institution, as “High Church.” High Churchmanship, as I have denned it, is not an institutional form, but an insight into the overall church-state relation – that is, into the relation of institutions generally with one another. Historically, though, this insight has always cast up institutional forms peculiar to itself – not, perhaps, by any logical necessity, but by the exigencies of the dialectic in a given time and place. The medieval institutions of sanctuary and clerical immunity are examples. When I speak of “High Church institutions” here, I mean institutions that seem to take their raison d'etre from a High Church insight, or that seem calculated to hold up the High Church end of the dialectic.

90 How an institution can stand witness to anything is a question of some subtlety. I have tried to explore it a little in A Prospectus for a Symbolist Juris-prudence, Natural Law Forum 2 (1957), 88. I suspect, incidentally, that it is this symbolic aspect of High Churchmanship that supports its traditional connection with a “high” doctrine of the sacraments and the liturgy. This connection is, I think, one of congruity rather than of logical necessity. It is noteworthy that English Presbyterians tended to take a High Church stand in the seventeenth century, and that a number of nineteenth-century High Churchmen based their liturgical practices on their interpretation of the rubrics established by ecclesiastical authority rather than on their sacramental theology.

91 The Selected Writings of John Jay Chapman, Barzun, ed. (Garden City, Doubleday, 1959), 288.

92 New York, Sheed & Ward, 1968 (hereafter U.C.).

93 Brown, , Toward a United Peace and Freedom Church, U.C.31, 41–42. See also Zimmer, , The People of the Underground Church, U.C.7, 7–8.

94 Grossman, , The Invisible Christian, U.C.207, 216: “The liturgy is not meant to form the community, but, rather, to be an expression of that community.”

95 This is Art. XIX of the Anglican Thirty-Nine Articles. Art. VII of the Lutheran Augsburg Confession is to the same effect. Standard Roman Catholic doctrine would have to be stated a little differently to allow for the claims of the hierarchy, but the idea that the liturgy forms the community, not the community the liturgy, seems to underlie the insistence of the Second Vatican Council that liturgical innovation is a prerogative of the highest authorities in the church.

96 Boyd, , Ecclesia Christi, U.C. 1, 4.

97 Grossman, , supra, note 94, at 209.

98 Boyd, , Imitatio Christi, U.C.238, 245. Cf. Groppi, , The Church and Civil Rights, U.C. 70, 75: “I do not believe that morality is synonymous with a negative attitude toward sex and abstinence from what we call bad language.” Cf. Brown, , supra, note 93, at 4344: The one thing which is lacking so far is a definition of family life as a Christian. To a large extent this is a reflection of the stresses of the Peace movement, which favor the unmarried, those with casual liaisons, Catholic celibates, the divorced, little old ladies in tennis shoes. Lest this be thought a criticism, it is simply intended as a translation of St. Paul's recommendations to the Church at Corinth.

99 Zimmer, , supra, note 93, at 14.

100 Groppi, , supra, note 98, at 74.

101 Baird, , supra, note 1, at 298–99.

102 Supra, note 98, at 74.

103 My own community, for instance, has just enacted an open-housing ordinance. The first serious attempt to put such an ordinance through was mounted in 1963. Those who prepared the 1963 ordinance assembled a considerable amount of data on the need for it. The main thrust of the data was that middle-class Negroes were finding it outrageously difficult to get middle-class housing. By 1968, this situation was considerably ameliorated, though by no means done away with. On the whole, in 1968, a middle-class Negro could put a suitable roof over his head, though not always the roof he wanted. The ordinance may do something to widen the range of available choices for him. If it had been enacted in 1963, it might have also had some value as an earnest of good will on the part of the white majority. In 1968, it seems too little and too late to serve that purpose. As for increasing the range of housing choices available to Negroes who have not yet made the middle class, the problem in 1968 is just what it was in 1963 — they cannot get better housing be-cause they have not the wherewithal to pay for it.

104 Brown, , supra, note 93, at 46, seems to be working toward an understanding of this: “But if we try and enter down into the secret places of our psychology or think about our knowledge of history, we truly know that the pressures that brought us together are permanent ones.”

105 Groppi, , supra, note 98, at 74.

106 Zimmer, , supra, note 93, at 26.

107 GRODEN and CLASBY, Church as Counter-sign: Process and Promise, U.C. 102, 113–14.

108 Hafner, , Up from the Underground, U.C.120, 131.

109 Kirk, , Emmaus: A Venture in Community and Communication, U.C.138, 151.

110 It is significant in this regard that BROWN, the one professional theologian among the authors in U.C, seems to regard the church as gathered not by the word of God but by the exigencies of the historical situation. See the passage quoted supra, note 104.

111 On this, see the critique of situation ethics in Burtchaeix, , The Conservatism of Situation Ethics, New Blackjriars 48 (1966), 7.

112 This idea of faith as an open-ended acceptance of enlightenment is well brought out in Dunne, John S., A Search for God in Time and Memory (New York, Macmillan, 1969).

113 For instance in my own church, some modification of Codex Juris Canonici Canons 684–99 would seem in order, e.g., can. 686, § 1: “No association will be recognized in the Church that has not been set up or at least approved by legitimate ecclesiastical authority.”

114 I like Father Groppi's, notion of “creative tension,” supra, note 98, at 83.


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