Rethinking Deference: How the History of Church Property Disputes Calls Into Question Long-Standing First Amendment Doctrine

Long-held constitutional principles state that where the factual foundation that underlies a decision is shown to have been wrong, the Supreme Court will reconsider that body of law. This article demonstrates that the foundations upon which the entire doctrine of church property law has been developed may be wrong, necessitating a reconsideration of that area of law. Watson v. Jones, 80 U.S. 679 (1871), a divisive church property dispute from Kentucky, marked the United States Supreme Court’s first entry into church property disputes. Prior to Watson, state courts had handled church property disputes according to the rules of English common law. In Watson, the Supreme Court developed wholly different principles of federal common law that came to apply in such cases generally throughout the land, including the “hierarchical deference rule.” Those principles still apply in many jurisdictions today, as church property litigation has become one of the most active, yet rarely discussed, areas of First Amendment law. However, nearly everything about the Watson case was ensnared in the turmoil of the Reconstruction era. For reasons that appear more political than legal, the Court strained to overcome questionable jurisdiction and doubt as to whether there was a claim for relief to reach its result. What if the decision was so politicized and tied to fervent religious belief as to raise suspicions about the deference rule? This article examines the religious and political history behind Watson to make precisely this point. The article then shows some of the historical effects of the Watson decision on subsequent developments in the Presbyterian Church. We aim to demonstrate that Watson was a shortsighted decision, made by a politicized Court controlled by justices with fervent religious views, that distorted prior understandings of church polity and property and has led to unintended consequences for both the law and the churches. We conclude by suggesting that courts would do well to leave behind the deference rule and in its place use an approach that takes into account the full factual, legal, and equitable background of each unique church property case