In a prior post I talked about the Supreme Court’s decision in Terrett v. Taylor, which in a sense was the first federal case that assessed church/state relations. Taylor has many fascinating details, and I thought that I would elaborate.
Virginia, like many other colonies, had an established church. In 1776, Virginia enacted a statute that disestablished its church but maintained that all of the church’s property would remain church property. Twenty plus years later, though, the state enacted a law asserting that the state actually owned the church’s property.
As a private lawyer, Bushrod Washington advised the Church that any revocation of their land grants would be unconstitutional. In part, this was an argument sounding in property rights, but he addressed the thought that letting the church keep its property after its disestablishment violated the Free Exercise Clause of the Virginia Declaration of Rights. Rejecting this claim, he said that the free exercise issue “cut both ways.” (I was surprised to see this phrase because I thought this as a modern expression, but evidently it is not.) Washington pointed out that the free exercise of the church would be adversely impacted by withdrawing property that was important for its financial well-being, though you could also say that the free exercise of other churches was impeded by the special property privileges of the Episcopal Church. He also stated that the statute that secured the church’s property in 1776 possessed a special presumption of constitutionality because it was contemporaneous with the Declaration of Rights.
The Supreme Court, in an opinion by Justice Story, agreed with these conclusions and held the Virginia law taking away the church property unconstitutional. The Court relied on no federal constitutional provision to strike down this law. Instead, Taylor invoked the “great and fundamental principle of a republican government, the right of citizens to the free enjoyment of their property.” (In short, a natural law justification that would never pass muster today.) Justice Story also opined that the 1776 statute guaranteeing church property did not violate the Virginia Declaration of Rights; an odd position for a federal court to take, though to be fair the distinctions between state and federal authority were not so clear in 1815.
On the latter point, I am leaning in the direction of saying that Washington must have contributed his earlier analysis to Story’s opinion. We’ll see if I can learn more