PRESBYTERIAN CHURCH v. HULL CHURCH

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Argument of Charles L. Gowen

Chief Justice Earl Warren: Number 71, Presbyterian Church and the United States et al., petitioner, versus Mary Elizabeth Blue Hull Memorial Presbyterian et al.

Mr. Gowen, you may continue with your argument.

Mr. Charles L. Gowen: Mr. -- I have --

Chief Justice Earl Warren: You have said -- excuse me, excuse me, I know it Mr. Page, you had already started your argument.

You may proceed.

Argument of Owen H. Page

Mr. Owen H. Page: Mr. Chief Justice and may it please the Court.

Yesterday, counsel for the petitioner, I had observed as I recall that the respondent churches had ceased to function.

I think this was an attempt to bring the situation within that Section of the Book of Church Order and which has been identified, I think yesterday as Section 6-3.

Oh, a complete explanation of that Section, if the court will referred to page 83 of the appendix.

But let me just sum it up for you.

That refers to a situation in which we either have a church which has withered and died on the vine or one which is in the process of withering.

Now, I -- the viability of these churches are, I think is manifested by the fact that these cases are before you today.

Furthermore, if you examine the action of the administrative commission which the counsel made some imports, you will find, there was a completely innocuous act.

What it did, it did more than -- did nothing more than accept the or recognize the cessation, you might say or removal of the session by their own volition and then it said in effect for those members of the congregation that still wish to worship, we will furnish you a minister.

So, as to the question of im -- whether these judges should have appealed the action of the administrative commission.

There were two reasons I didn't have to.

First, under the guard of the First Amendment, these people individually or collected really have the right to withdraw.

Second, the constitution of the Presbyterian church has no prohibition against a church taking this action and this too is in the record.

Now, I briefly --

Chief Justice Earl Warren: That has no prohibition against what?

Mr. Owen H. Page: Prohibition about an individual church withdrawing.

Chief Justice Earl Warren: Oh, I see, yes.

Justice Abe Fortas: Well, are you, is this argument addressed to a proposition that there was no implied trust?

Mr. Owen H. Page: No, sir.

I was just rebutting yesterday that I thought they might have left this impression and I was --

Justice Abe Fortas: I want to be clear about one thing.

Mr. Owen H. Page: Yes sir.

Justice Abe Fortas: I thought I was but I'd like to get your view on it.

You do not contest the finding of the conclusion of the court below --

Mr. Owen H. Page: No sir, I do not.

Justice Abe Fortas: I think there was an implied trust.

Mr. Owen H. Page: No, sir, I do not.

Justice Abe Fortas: And that -- the terms of that implied trust are that this property will be used as part of and subject to the mechanism of the church and the central direction and guidance of the church and the church discipline.

Mr. Owen H. Page: Yes, with one qualification.

In the -- because when we talked about the implied trust Mr. Justice, we are talking about the imposition of the polity which is the doctrine and discipline of a church at the time of the acquisition of the property.

Now what the Supreme Court of Georgia found below and this was on its statutory mandate that the court invoked.

The court found under Section 28 -- 22408 of the Georgia Code that when a property is devoted to a specific doctrine or trust, the court will intervene to prevent it -- the property being diverted to a doctrine which is contrary to that which existed at the time of the acquisition of the property.

Justice Abe Fortas: Well you have as I see it, and your case comes down to two points.

One, assuming that there is an implied trust which you -- are going to.

Two, is that trust dependent upon a maintenance of the church polity at the time the trust was cleared and mainly as of the time of the acquisition of the properties by the local church.

Mr. Owen H. Page: That has -- that's -- yes sir.

Justice William J. Brennan: And three, if that is so, was there such a change in the polity of the church between the time of acquisition and the time of the disaffiliation so as to defeat the implied the trust.

Mr. Owen H. Page: Yeah.

Justice William J. Brennan: Is that an inquiry where I am right?

Mr. Owen H. Page: That's correct, that's it.

So, we then -- we look at the constitution to determine what was imposed upon the property at that time then we look at the charged transgressions which are set forth in the action and the resolution of the Judge and let me just briefly refer to it and I think --

Justice Hugo L. Black: Would you mind -- would you mind stating to me first how was this trust created?

Mr. Owen H. Page: This trust Your Honor under the --

Justice Hugo L. Black: Did anybody signed it --

Mr. Owen H. Page: No Mr.Justice, no sir, there was no -- not -- we are here --

Justice Hugo L. Black: How was it created?

Mr. Owen H. Page: It was created under the -- I would assume under what we call the polity of this particular church government which has denied a knowledge to be a representative type of church but the representative type of church is of course have -- may have a variation of polity.

For example, a representative type of church may be representative in its spiritual relationships as we acknowledge here but it may have congregational aspects in relation to property.

So what we have here under the theory of --

Chief Justice Earl Warren: Does your constitution provide that?

Mr. Owen H. Page: No sir.

This is --

Chief Justice Earl Warren: Where do you get that?

Mr. Owen H. Page: This is an implication Your Honor from Watson versus Jones that they said in that particular type of church government where you have a series of ascending judicatories that there is an implied consent absent some particular transgression of the constitution that it is held for the benefit of the church as a whole.

Chief Justice Earl Warren: Is that the only place you get it?

Mr. Owen H. Page: Yes sir.

Justice Potter Stewart: This is a -- then its origin is in the secular law in the sense that the -- either the legislature or a court is said that in these circumstances, they trust the right.

Mr. Owen H. Page: Yes sir.

That's in the secu -- that is in the secular law.

Justice Potter Stewart: And the --

Mr. Owen H. Page: There is no canonical laws supporting this in this particular case.

Justice Potter Stewart: None at all.

Mr. Owen H. Page: Yes.

Justice Potter Stewart: So this is a doctrine of a secular law.

Mr. Owen H. Page: Yes sir.

Justice Potter Stewart: Now, do you say -- apparently you don't argue that if the terms of the trust which is imposed by the secular law may not be adjudicated by the secular courts that therefore the trust cannot be observed.

Mr. Owen H. Page: Yes, that -- in Gonzalez versus Archbishop, Mr. Brandeis -- Mr. Justice Brandeis, I think put this in focus for all of us.

He said in this team, this I think was about 1929 decision some years after Watson versus Jones in which he said, “Absent for evidence of fraud, collusion or arbitrariness that the secular courts, all of the findings of an ecclesiastical court in matters involving ecclesiastical law even though civil rights are involved.

Now, this theory has been followed by any number of decisions both state and federal subsequent at that time.

So, what was acknowledged in Watson versus Jones, you might say it -- by Jones, absolute deference to the authority of the highest church court is no longer, it has been cons -- it has been modified and the court may now look beyond the rule formulated in Watson as to the three -- as to the types of churches that he acknowledge there.

Justice Hugo L. Black: Now, absent -- the doctrine of the implied trust, would this case get in to court?

Mr. Owen H. Page: No sir.

Justice Hugo L. Black: And that's a creation of the court's opinion, do you think in Watson?

Mr. Owen H. Page: Yes sir.

Subject to the modification and -- then Gonzales.

Justice Hugo L. Black: Mixes the court up considerably in connection with the policies of the church at one time and another?

Mr. Owen H. Page: No sir.

I -- may I take this exception.

When we look -- you see, the charge, when we looked at the charged transgressions, we do not imply into the faith that inspired this particular constitutional commandment of the church in its organic law.

All we looked is at this organic law in its doctrine and discipline as a factual, is purely factual matter.

Justice Hugo L. Black: What is the factual matter?

Mr. Owen H. Page: Well, the factual matter here is that the general assembly made pronouncement concerning civil disobedience and becoming involved in civil affairs in direct conflict with the church -- with its -- with church's constitution.

The constitution says, “ You shall not do this.”

Justice Hugo L. Black: Suppose it does that, what does that have to do with the title of the land that some people --?

Mr. Owen H. Page: Well, I -- under the theory we are having to move along on sir, we'll have to go on a theory that this constitutes a breach of the trust and under the law, if there is a breach in the trust or the part of the denomination on the church at its highest level, there is then the property is restored to those who are still uttering the concepts, the constitutional concepts.

Justice Hugo L. Black: What if the people far distant?

Mr. Owen H. Page: Sir?

Justice Hugo L. Black: It goes to people far distant from the church.

Mr. Owen H. Page: No sir.

Justice Hugo L. Black: Well then, who would get it?

Mr. Owen H. Page: Those who are still in this instance as the Supreme Court of Georgia found, those who are still occupying the church premises.

Justice Hugo L. Black: Under the --

Mr. Owen H. Page: And these are the people --

Justice Hugo L. Black: -- that the unanimous, devoted there against the interest there?

Mr. Owen H. Page: No sir.

They unanimously voted to sever their relationship with the Presbyterian Church, the two local --

Justice Hugo L. Black: And he tell to keep that property from their own use.

Mr. Owen H. Page: Yes, which they had financed by their tithes, offering, and pledges and you see, you have a difference here, the other thing I'm think in Kedroff, in Kedroff there was some evidence as I recall in the record that the Russian based church had money in the cathedral in New York.

There's no evidence like that and these are all raised by the local people.

Chief Justice Earl Warren: Well, is this departure from the original dogma fall under that phrase of fraud or whatever it was?

Mr. Owen H. Page: Yes sir.

And the subsequent -- this Courts have had expanded the word arbitrariness to mean an ultra vires on constitutional act and these are clearly charged in the initial pleadings on the part of the petitioner, I mean of the respondents.

If you -- the reference would be in the appendices, pages -- in appendix, page 29 also and 116 where these constitutional violations are charged.

Chief Justice Earl Warren: But just what are the -- you were about to specify --

Mr. Owen H. Page: Yes sir.

Chief Justice Earl Warren: -- this is --

Mr. Owen H. Page: -- from our constitution.

Senates and counsels are to handle or conclude nothing but that which is ecclesiastical or not to intermeddle in civil affairs with concern to the commonwealth.

Lest by way of humble petition in cases all extraordinary by way of advise or satisfaction of conscience.

If they'd be there until required and then the other violation that was found, it is the duty of the people to pray for the magistrates to honor their persons to pay them tribute and other dues to obey their lawful commands and be subject to their authority for conscience sake, these are the parts of the cons --.

Chief Justice Earl Warren: Yeah, but what other specifications of departure from that?

Mr. Owen H. Page: The specifications are in the resolution which bring to the court's attention pronouncements by the highest tribunal in 1965, in 1966 in which the highest tribunal where on the record condoning civil disobedience and embroiling the church in them military and diplomatic affairs over the Vietnam War.

Now, these were the basis, the primary basis for the action that's before and these are reflected in the judgment of the Supreme Court of Georgia.

Justice Thurgood Marshall: Mr. Page, who do you think would be better able to decide that question, ecclesiastical court or ordinary jury, Savannah, Georgia?

Mr. Owen H. Page: Mr. Justice, under the theory that is presented to us and properly right being involved, it of necessity has to go before the courts.

Justice Thurgood Marshall: Before?

Mr. Owen H. Page: That's correct.

Justice Thurgood Marshall: The --

Mr. Owen H. Page: The secular court.

Justice Thurgood Marshall: Before the church courts have had an opportunity to pass for it.

Mr. Owen H. Page: Now, in this particular essence, of course we once again run across a rather unique situation, we have the tribunal of the supreme tribunal of the Presbyterian Church acts both as a legislative agency and also a judicial agency.

So we find them in pronouncing and then they're going to stand upon --

Justice Thurgood Marshall: Is that true when you join -- was that true when you joined?

Mr. Owen H. Page: Yes sir.

Justice Thurgood Marshall: Do you submit it to it voluntarily?

Mr. Owen H. Page: I think when people submit --

Justice Thurgood Marshall: Was that correct?

Mr. Owen H. Page: With this qualification Mr. Justice, I don't believe you submit absolutely to something -- I believe you submit conditionally that the people to whom you are submitting are going to honor their consti -- the constitutional concepts of that government or agency at the time you are here.

I don't believe they have any absolute right to --

Justice Thurgood Marshall: Well, what is the reason you didn't follow them through and -- within the church before going to the court?

Mr. Owen H. Page: Well, it went to two reasons.

First, I think that this action was -- as I mentioned has made on a highest level and I believe it might have been a little exercised in futility to have attacked a legislative pronouncement before the judicial body which is -- determine its own legislative act.

But more importantly if and this I think is valid, if the act of the general assembly is a con -- unconstitutional act, well, if they did, then this, I don't believe that it imposes any responsibility upon the lesser tribunal which is the local congregation to appeal that act.

And certain courts where this situation has been presented where the highest tribunal has been accused of an ultra vires or unconstitutional act.

It said known app -- no appeal is necessary because I don't believe this -- it impose any duty on it.

Chief Justice Earl Warren: But were these departures that you referred to mandatory and binding on the -- on these churches or were they statements or views of the hierarchy of the church?

Mr. Owen H. Page: Under the position of the churches set forth in the resolution of 1880, there are two types of pronouncement.

One is the judicial decision and what is called an in esse and is --

Chief Justice Earl Warren: And what?

Mr. Owen H. Page: An in esse decision such as this.

And it said that the Con -- the members of the church have to submit to both with equal dignity and respect unless they violate the constitution of the Presbyterian Church.

Chief Justice Earl Warren: So --

Justice Hugo L. Black: When you get down to the bottom here, is there anything in dispute at all except who controls this property?

Mr. Owen H. Page: No sir.

That's basically --

Justice Hugo L. Black: Nothing in the move?

Mr. Owen H. Page: No sir.

That's (Voice Overlap) --

Justice Hugo L. Black: But who could (Voice Overlap) --

Mr. Owen H. Page: Who has the right possession and used the property, that's correct.

Justice Hugo L. Black: And they claim they have withdrawn so as -- from the mother church.

Mr. Owen H. Page: That's correct.

Justice Hugo L. Black: The mother church -- and their -- and their big church wants to get it so it can do what, to use the property?

Mr. Owen H. Page: Yes sir.

So that it can possess that it's a --

Justice Hugo L. Black: Then they'd have to get some other congregation --

Mr. Owen H. Page: That's correct.

Justice Hugo L. Black: They'd have no congregation to go there.

Mr. Owen H. Page: That's correct.

The sort of --

Justice Hugo L. Black: -- have nothing involved on or dispute except the control over this property, the local people voluntarily.

Mr. Owen H. Page: That's right.

Chief Justice Earl Warren: Oh, I suppose there is a question of whether this is a departure from the doctrine of the church, isn't there?

Mr. Owen H. Page: Well, I'm worrying sir if that assessment hasn't been made.

Chief Justice Earl Warren: By whom?

Mr. Owen H. Page: Hasn't been made initially in the -- when it was presented in the lower court.

Chief Justice Earl Warren: Well, that's --

Mr. Owen H. Page: To impart, I mean.

Chief Justice Earl Warren: That's it, i'd like to asked you --

Mr. Owen H. Page: Yes sir.

Chief Justice Earl Warren: -- whether there was anything involved in this case other than property.

You said no but as I understand it, you stand on the premise that this was a departure from the constitution of the church and if the court shall determine that it is a departure from the dogma of the church.

Mr. Owen H. Page: I'll understood his question so much when he said, “Basically isn't the question who is entitled to the possession of the property.”

That's what I thought he asked me.

Chief Justice Earl Warren: That's exactly what I meant.

And I can't see whether the dogma of the church has anything to do with that issue.

Justice Abe Fortas: But your point is, as I understand it, that you in effect agree that unless the court properly -- a court properly finds that there has been a departure from the church dogma or church polity as comparing the present with the time of the acquisition of the property by the local church, unless there has been a departure by the central church in church dogma or polity, then you agree that the -- you're wrong and the central church is right.

And that the central church is entitled with the property.

Mr. Owen H. Page: They simply come down --

Justice Abe Fortas: So that your case really depends as I see it upon two questions.

One, did the court below properly go into -- did they have any business going into the question that you put.

And second, was it properly decided so that when you look at it from that point of view, your whole case depends not on property law in the common law sense but upon the question of a church dogma.

Mr. Owen H. Page: And -- in applying the proper church polity to it in this instance.

Because in this instance, we find out under the theory of, what was known as prescribed use in Watson versus Jones that the right to dictate this property as far as use, alienation, acquisition, who shall be the minister, who shall finance the church programs and discipline all are under the church constitution given to the local church.

Justice William J. Brennan: On page --

Justice Hugo L. Black: They have one and did not agree with you.

With you too on that issue, about the trust but one thought that a trust of a church couldn't be decided in the court of law, to take away property from somebody to whom it belongs on the basis of the church dogma, then the case is quite different, isn't it?

Mr. Owen H. Page: Yes sir.

Then you would have to look as this -- in the record as to the historical position of this church in relation to his church property in way of the pledge -- in the way it is recognized, the autonomy of the church control in the local --

Justice William O. Douglas: You state on page 18 of your brief that the civil courts have power to overwrite the decision of an ecclesiastical authority where to enforce its decision, first would be offensive to peace and order.

Second, would approve an arbitrary or ultra vires act or third, would be repugnant to the principle of equity.

We have a lot of controversies in churches, taking birth control, how would you -- how would your theory go about resolving -- in birth control dispute in the church?

Mr. Owen H. Page: Well, I don't know.

I know that's a raging problem.

I don't know whether -- what status that has within the Catholic Church.

Well, it's a canonical situation or not, I couldn't answer Mr. -

Justice William O. Douglas: -Well, you're talking about offensive to peace and good order, arbitrary or ultra vires or repugnant to the principles of equity.

Mr. Owen H. Page: Yes.

Well, I --

Justice William O. Douglas: As I have read our prior decisions, I had -- I don't see them -- the relevancy of those three standards to Watson, to Kendrick.

Mr. Owen H. Page: Well, the Watson, this subsequently modified Watson.

Now, a subsequent state and federal -- for example, in Kedroff, Kedroff even said, “We believe the right to select clergy where no improper methods are shown” is given constitutional (Inaudible).

So it gives this Court the right to look in and that's we -- what we contend and historically where property has been in dispute.

The court has looked in.

But may I suggest this --

Justice William O. Douglas: You will agree once you -- that it is better if possible, in view of their First Amendment for this Court not to look into anything in connection with dogmas unless it is imperatively required by some law.

Mr. Owen H. Page: Well, I -- yes and I may I answer this way, it seems to me that a church can only claim the protection of the -- over the First Amendment, free exercise if it operates within the framework of its own constitution.

And that -- there's no restraint of this church action here as long as it operates within the constitution --

Justice Hugo L. Black: Well, they're not attempting to interfere with this dogma.

They just simply insisting on taking -- withdrawing apartment and keeping the church.

Mr. Owen H. Page: That's correct.

And they're asking of the highest church tribunal the same constitutional accountability that they would impose on the lesser.

But let me --

Justice Hugo L. Black: Oh, may I ask you --

Justice Thurgood Marshall: When did they asked --

Justice Abe Fortas: -- this question please.

One of the issues that was tendered to the jury, was your contention that the central church had departed from original dogma on the doctrine of "for ordinations," is that right?

Mr. Owen H. Page: Yes sir.

Justice Abe Fortas: That was one of the issues that you tendered.

Now, if the jury had disbelieved you on everything else, if they had disbelieved you on everything else they might still have come in with the verdict on your behalf because they believe it -- that the church, the central church had departed from the doctrine of “for ordinations” as an existent as of the time that these properties were acquired that is the thrust of the instruction under which the jury was operating, isn't that correct?

Mr. Owen H. Page: The thrust of the charge was encompassed to all of them Mr. Justice.

Justice Abe Fortas: And it did encompassed to all of them but it's a -- the lower court said if you find that there has been a departure from church dogma as of the time of acquisition, then you will decide for the plaintiffs, is that right?

Mr. Owen H. Page: Yes sir.

Justice Abe Fortas: And the jury might have decided this case on the basis of a departure by the central church in respect of the doctrine of “for ordination.”

Mr. Owen H. Page: Yes sir.

And --

Justice Abe Fortas: Is that -- was one of your charges and one other things that you -- on which you submitted proof, am I correct?

Mr. Owen H. Page: Yes sir.

In addition of it.

Let me just conclude on this one, I believe --

Chief Justice Earl Warren: Well, let me give you another one of those specifications and receive just where we stand.

The general assembly's -- what are these objections they made to the, as you called departure from dogma, is the general assembly's failure to endorse a proposal to amend the U.S. constitution to overcome this Court's school prior decisions.

Response characterize this is giving support to the removal of Bible reading and prayer in the public schools, now what is there in the constitution that says that the church as a whole must endorse a constitutional amendment to overcome the decision of this Court?

Mr. Owen H. Page: Mr. Justice there was no evidence submitted on that so I think --

Chief Justice Earl Warren: What is -- one of the --

Mr. Owen H. Page: Yes sir.

Chief Justice Earl Warren: Maybe no evidence but you charged that to this one other thing and I suppose that went entered the judgment.

Mr. Owen H. Page: The -- that all I know sir is the evidence which was introduced which was the basis for the action of the court.

Now let me just conclude on this order.

Chief Justice Earl Warren: Well, I know but as a matter of fact, is that a departure?

Mr. Owen H. Page: Quite frankly Mr. Justice, I couldn't answer that.

Chief Justice Earl Warren: Why can't you answer it?

Mr. Owen H. Page: (Voice Overlap)

Chief Justice Earl Warren: Because you don't want to?

Mr. Owen H. Page: No sir.

For two reasons, first I am not a Presbyterian and I was not member of these church congregations at the time this initial action was taken.

Chief Justice Earl Warren: Well, but you said -- tell us this other things are departures.

Mr. Owen H. Page: Well, this abide as which you have been introduced as a matter of proof, now that's the only way I can respond to that.

Chief Justice Earl Warren: Are there any Presbyterian lawyers here on each side.

Mr. Owen H. Page: No sir, I don't think so.

Justice Thurgood Marshall: Would any Presbyterians on the jury?

Mr. Owen H. Page: No sir.

Justice Thurgood Marshall: They decided the non-Presbyterians decide it, what was actually the dogma of the Presbyterian Church.

Mr. Owen H. Page: The -- I think that what the -- under the --

Justice Thurgood Marshall: You -- isn't that --

Mr. Owen H. Page: -- tragic --

Justice Thurgood Marshall: Isn't that statement correct?

Mr. Owen H. Page: Yes but that was under the instructions of the court.

Let me just conclude this.

Justice Thurgood Marshall: Was the court -- was the judge a Presbyterian?

Mr. Owen H. Page: No sir.

The judge was not a Presbyterian.

Justice Thurgood Marshall: So everybody else --

Justice Hugo L. Black: A Presbyterian judge be disqualified from sitting in a case for this thing?

Mr. Owen H. Page: Mr. Justice I assume that addresses it to the judge himself, I'd say, I wouldn't ask him to be disqualified.

In conclusion, I find this -- if you look at the record to it, there is a fatal federal question before this Court and I submit that the -- that this case should be dismissed because there is no federal question before the court since it'll be raise.

And here's what the four points that they raised, they said that federal question was raised in the Supreme Court of Georgia on a motion for rehearing and that that many questions thrust before that court were entertained.

The federal question was -- the motion was entertained and the many federal questions presented were answered.

That is not the record in the writing and it of course, this violates the historic position of this Court that on a motion for rehearing when the federal question is raised for the first time, you must entertain and decide.

The other question was that in overruling Matt v. Kahn (ph) it violated the rule of stare decisis.

This is -- again this Georgia Court has adopted the federal rule and that you do not have a vested right in a prior decision and the Supreme Court of Georgia so ruled.

Looking again at the other, that the overruling Matt versus Kahn (ph) violated the First and Fourteenth Amendment application of Watson versus Jones.

This is not the case.

Matt versus Kahn (ph) specifically stated that on a proper showing of a complete abandonment of the dogma and doctrine that the court would then protect the rights of the local property, local church who were adhering to the dogma and discipline.

So this comes as absolutely no surprise there.

All the Supreme Court of Georgia did was to modify its substantive law which had had the right to do any change, the complete task to that of -- substantial.

And finally, they contend that the federal question was properly raised on the local at the initial level in the trial court by the general allegation that the -- this act that they -- act in appropriating the property would violate it, the laws of the United States of America.

This lack -- they require specificity of the state court and also the federal court and there was no motion or other appropriate action taken in the trial court to bring this federal question to the state court and thus to this Court.

Thank you so much.

Justice Hugo L. Black: Does the record show, how much this land on which this church is located?

Mr. Owen H. Page: Yes sir.

I think it does.

Justice Hugo L. Black: What is it?

Mr. Owen H. Page: In answer to it, it would run together approximately a hundred and seventy thousand dollars.

Justice Hugo L. Black: (Inaudible).

Can I ask you just to make sure, as I understand it, there really isn't much a question in this case but what church dogma was involved and the disposition o the case, the lower court required interpretation of the church dogma to see if there was a breach of trust.

Mr. Owen H. Page: The application of it.

Justice Hugo L. Black: Yes.

Now, let's assume --

Mr. Owen H. Page: That's a factual determination.

Justice Hugo L. Black: Let's assume for the moment that the -- that this Court held that the First Amendment forbade the civil courts from adjudicating church dogma in this manner.

I take it, if that were the rule, you would -- then -- that you would say that the implied trust imposed by the secular law would still prevail.

Mr. Owen H. Page: That's correct sir.

Justice Byron R. White: And you wouldn't challenge that implied trust at all on any -- on the First Amendment grounds.

Mr. Owen H. Page: That's right.

Justice Byron R. White: And then the property would go to the mother church.

Mr. Owen H. Page: If -- unless there was a violation of the trust.

Justice Byron R. White: Well, but lets assume that the First Amendment forbids the civil courts from adjudicating whether or not there has been a breach trust and forbids it because adjudicating the breach requires an interpretation of church dogma.

Mr. Owen H. Page: Well, the federal courts haven't held that Mr. --

Justice Byron R. White: Let's assume that we held it though.

Mr. Owen H. Page: Well, --

Justice Byron R. White: Then what would you say about the implied trust.

We said that the breach may not be -- your claim, the breach may not be adjudicated because of the First Amendment.

Mr. Owen H. Page: I would -- yes, I would be in the position with a tennis player who was at match point where they had out.

And so --

Justice Byron R. White: Well, what would you say though?

Mr. Owen H. Page: I would say, first --

Justice Byron R. White: I know you would say we wrong.

Mr. Owen H. Page: And I would employ you not to do that.

Justice Byron R. White: Yes, but what if we did because that's the -- the issue here that's been argued, is it the First Amendment to the federal question.

The First Amendment forbids that kind of an adjudication of the breach of trust.

Mr. Owen H. Page: I can take exception to do that under the precedence that have preceded this case here.

Justice Hugo L. Black: I see to it, and It seems to me that instead of being add out, you might be in a position of the tennis player who has just won his game.

Mr. Owen H. Page: Well sir, I certainly welcome that, I play a little tennis because it's nice to win.

Thank you sir.

Chief Justice Earl Warren: Mr. Gowen.

Rebuttal of Charles L. Gowen

Mr. Charles L. Gowen: Mr. Chief Justice and may it please the Court.

I think in this question of property, we must consider that the Presbyterian Church is a great church composed of many thousands of people who have joined it over the years.

These local churches, when they joined, when they have became members of the Presbyterian Church in this great volume, the church, when they joined it, they placed their property under the polity and control of this church and therefore, they didn't have to do it.

They could've remained the congregational church.

They could've kept their property but for -- because they wanted to do just as I did and I happen to be a Presbyterian.

The justice I did when I joined that church, I put myself under the polity and control of the church and therefore these local churches did it with their property at that time and all these churches -- all that the Savannah Presbyterians has asked to do is to put a minister who is a Presbyterian minister because these churches no longer have Presbyterian members.

They renounced the church and withdrew from it.

All they asked to do is to put a Presbyterian minister in the church to hold services for any members of this church who might want to come and while the vote was unanimous about those who were there, I think the court will take judicial cognizance at the very few churches that have all the members their at any one given day.

And there was no vote taken --

Chief Justice Earl Warren: How about a pretty good vote?

Mr. Charles L. Gowen: That was a good vote but on the other hand, one member of the session refused to follow the action according to the record in the case because the return was all of the members of the session say one.

And if there was only one member of that church who wanted the Presbyterian services yield in it, I say he had a right under the constitution and the law to have that service alive.

We think Watson versus Jones and Kedroff have decided ever issue in the -- this case in favor of the respondents.

We think Watson versus Jones and this case are very similar on the facts.

Both involved Presbyterian churches.

Watson involved the statement by the church on the question of slavery.

This case involved the statement of the church on civil rights because the evidence is that the witness for the plaintiffs said that was the main reason that they withdrew and in each case the state sought to try ecclesiastical issues in the civil courts which this Court said could not be done.

The churches in this country have lived under Watson versus Jones for a hundred years and with Kedroff for 15 years with no injury to our religious life.

Justice Byron R. White: What the -- what would be the situation in the case if the -- if it is determined here for example, I'm not suggesting that it would be but lets just assume that the court determines adjudication of church dogma is contrary to the First Amendment and that the -- it -- those at the lower court's adjudications must be set aside.

Where does the case stand there?

Mr. Charles L. Gowen: Well, then -- this Court if it reaches that conclusion should instruct the Georgia Supreme Court to deny the relief sought by the plaintiffs and give the relief sought by the defendants which would give them possession of the church property for the purposes of conducting services --

Justice Byron R. White: On what basis would you -- would your claim then rest?

Mr. Charles L. Gowen: The claim would rest on the implied trust that is recognized in the similar Presbyterian Church in Watson versus Jones.

Justice Byron R. White: But this would be a secular -- a trust implied by the secular law.

Mr. Charles L. Gowen: Yeah.

But the courts have held both in Kedroff and in Watson versus Jones that after the church tribunal has made its determination, it is the duty of the civil courts to throw the property in the direction that the ecclesiastical courts have indicated.

Justice Byron R. White: What would be your remedy to get possession of the church?

Mr. Charles L. Gowen: This -- simply that the court would issue an order that the Presbyterian Church, the presbytery of Savannah should have possession of the church for the purpose of carrying this --

Justice Byron R. White: But willing to enforce the ecclesiastical decision.

Mr. Charles L. Gowen: Yes sir.

By that, all of the courts have held that it is the duty of the civil court when property rights are involved for the civil courts to enforce the decision of the ecclesiastical court.

Chief Justice Earl Warren: Mr. Gowen you were going to give us the citations of --

Mr. Charles L. Gowen: There is no -- nothing in the church law that deals directly with the disposition of the property of the local churches of the central church (Inaudible).

Chief Justice Earl Warren: They are just one other thing that I'd like to know, I understood from your brief that most of these specifications of departure from a dogma of the church were not binding on any of the local churches except one.

Mr. Charles L. Gowen: The forward -- the making women eligible to hold church office and that was an amendment to the constitution of the church, regular devoted by the requisite dome of presbyteries and there's no attack upon the adoption of that constitutional amendment.

All the rest of them are merely statements of position and there's nothing in the church, book of church order.

There's nothing in the evidence in this case.

There's nothing in the case to say that I as a Presbyterian have to believe anyone of those to remain a member in good standing in the church.

Chief Justice Earl Warren: Now, I understood counsel just a few moments ago to say the contrary that there were two kinds of pronouncements that could come from a general assembly and both of them were binding on the --

Mr. Charles L. Gowen: I don't --

Chief Justice Earl Warren: -- on the church (Voice Overlap).

Mr. Charles L. Gowen: I don't think is an in esse deliverance.

This is merely if you will read the statements and they are all in the record that they complained off.

If you'll -- part of it is Sunday school literature.

But if you will read the statement you will find that it is nothing more than a statement of the position of this general assembly, the next general assembly could have an entirely different position and there's nothing in it that says that any member of the church has to believe it or has to act on it.

It simply -- its no more than a deliverance of a minister whom -- and by - and the church might preach a sermon with which he didn't agree.

Chief Justice Earl Warren: A lot of them do that.

Mr. Charles L. Gowen: Frequently.

Thank you.

Chief Justice Earl Warren: Very well.

Print this transcript Transcript: 

Argument of Charles L. Gowen

Chief Justice Earl Warren: No. 71, Presbyterian Church in the United States, et. al., petitioners vs. Mary Elizabeth Blue Hull Memorial Presbyterian Church, et. al.

Mr. Gowen.

Mr. Charles L. Gowen: Mr. Chief Justice, may it please the court.

The Presbyterian Church in the United States, the petitioner, is a hierarchical church, sometimes called the Southern Presbyterian Church.

The first step in the church government is the “Session”, composed of ruling elders and the pastor of the local church.

The next is the “Presbyterian”, which is composed of representatives of local churches in a geographical area and also the ministers from those churches.

Under the form of government of this church, a pastor of a local church is not a member of the local church but is a member of the Presbyterian.

The next is the “Senate”, which generally but not always corresponds to state lines and which is composed of representatives of the local churches together with the ministers in the included Presbyterians.

Next is the “General Assembly”, which is composed of representatives of Presbyterians, divided equally between ministers and laymen.

This also constitutes the courts of each government church; the General Assembly being the highest court in the denomination.

In April of 1966, the congregation of two local churches of this church voted to savor all connections will and remove themselves from all ecclesiastical control, jurisdiction and oversight of the Presbyterian Church in the United States and so notified the Presbytery of Savannah.

The Savannah Presbytery then appointed an Administrative Commission under the law of the church with full authority to act on the premises and with special instructions to visit the ruling elders of each church - the ruling elders constituting the session, which as I have said is the governing body of the local church.

After each elder in each church saved one, reaffirmed the action and after the pastor of each church had reaffirmed his renunciation of the Presbyterian church in the United States, the Commission, by a resolution, that’s the Administrative Commission of the Presbyterian, by resolution declared the pulpit of these church to be vacant because administers had savored all the connections with the church and assume the regional jurisdiction over these local churches in accordance with the Book of Church Order which is part of the record in this case and declared that Commission’s intention to secure ministers to provided regular services of worship in the sanctuaries of each of the two local churches for those members who wish to continue their membership and communion with the general church.

Justice Byron R. White: If you are going to point specifically where in the church order there’s any reference to the use of property or a right of the central to the real property of a local church?

Mr. Charles L. Gowen: We will cover that but the decision of the Georgia Supreme Court we think --

Justice Byron R. White: I understand that.

They may not have gone on the space.

I just like to know where, on what basis within the church does the central church or general church have any claim to local -- on the local church?

Mr. Charles L. Gowen: On the basis of the implied trust.

Justice Byron R. White: You mean you have to turn the civil law for the implied trust?

Mr. Charles L. Gowen: No, sir, but --

Justice Byron R. White: The judge made law for the implied trust?

Mr. Charles L. Gowen: No, sir.

When you join the church, the Book of Church Order contains the procedure under which the local churches are maintained.

The Book of Church Order says --

Justice Byron R. White: Did it say anything about property?

Mr. Charles L. Gowen: I don’t think it says anything about the property but it does say who has the use and the right to occupy the church when the church ceases to function as a church in the denomination.

Justice Byron R. White: Now where is that?

Mr. Charles L. Gowen: That’s in Book of Church Order, Section 16-7(a) or it may 7(d).

Justice Byron R. White: Where do you find that in the record?

Mr. Charles L. Gowen: It’s not in the appendix.

It’s in the record.

The Book of Church Order is a part of the record that is --

Justice Byron R. White: You mean that isn’t in the printed record here?

Mr. Charles L. Gowen: It is not in the printed record.

Justice Byron R. White: You quoted it on the brief?

Mr. Charles L. Gowen: No, sir, it is not been quoted in the brief but --

Justice Byron R. White: The quote is a rather important matter as to what -- after all, Kedroff and Kreshik said that within the Canon Law of the church, there is some sort of basis for saying that the elders of that church, whatever you or the bishops or whatever they were had the right to the use and occupancy of the property.

Now how about some similar basis of the church law for this?

Mr. Charles L. Gowen: Well, the decision in the statement in the church law is that when a local church ceases to function as a church; that the property then is within the jurisdiction of the general church and our position is, that this local church has ceased to function.

The finding of the Administrative Commission was that one elder did not constitute the Session; that there was no session to govern the church and that it had no minister.

And that therefore, the Administrative Commission would take the occupancy and use of the property for the purpose of carrying out the dedication of the property which came about when the local churches affiliated with the general church.

Justice Byron R. White: Is there some place on the record that we can find this church order (Voice overlap)

Mr. Charles L. Gowen: It’s in the record –

Justice Byron R. White: Is it in the typewritten record?

Mr. Charles L. Gowen: It’s in the book itself.

It’s a part of the record.

The Book of Church Order is a part of the record.

Justice William J. Brennan: Overnight, could you find that in the record and direct it to us please?

Mr. Charles L. Gowen: Yes, I’ll be happy to do that.

Chief Justice Earl Warren: Is that, as you understand, that is not the basis of the determination of the reason implied thrust here or is a basis of it?

I’m not suggesting this is correct.

I’m not trying to disentangle this.

There is a basis of the implied trust conclusion of the following, that when the church property was acquired by purchase or by gift, that it was acquired by the church’ cooperation subject to the implied trust just implied from the circumstances that it would be dedicated to the users of the Presbyterian church and that meant the central authority of the Presbyterian church whether that implication, and that that was the implication that was the conclusion where the implication proceeded from the circumstances of acquisition or the church laws I suppose is not clear.

But I know this far of my study of the cases see nothing that would indicate that the implication was drawn from the church laws rather than from the circumstances of the acquisition.

Mr. Charles L. Gowen: I think it was from the circumstances of acquisition and also from the general politic of the church that has existed for a hundred years.

I think it was also the decision in -- had been decided in the numerous other jurisdictions that this was the politic of the Presbyterian church and we have cited those in our brief.

Chief Justice Earl Warren: What’s that mean “Politic”?

Mr. Charles L. Gowen: Politic is the laws and the practices of the church.

Chief Justice Earl Warren: You mean that the courts here are making an inference from the implied trust from the policy in practice in the church?

I hope that -- I trust and I assume your argument basically is this is something that we can leave to the state court.

State court has found an implied trust and that’s that.

Mr. Charles L. Gowen: The state court has founded and the local court, local state court founded and the respondents have never questioned.

Chief Justice Earl Warren: And they don’t question it here.

Mr. Charles L. Gowen: They don’t question it here.

Chief Justice Earl Warren: Because once you get beyond that, the situation gets a little complicated than vague to me in a way.

Mr. Charles L. Gowen: Indeed the judge suggesting in a possible way, we could leave it to the church government itself.

I think it’s been left to the church government because the church government, the Administrative Commission of the Presbyterian, which was opponent in the accordance with the Book of Church Order which is a Constitution of the government of the church made this finding.

And the local churches --

Justice William J. Brennan: May they find and have a jury make a finding?

Mr. Charles L. Gowen: No.

They found first the Administrative Commission of the Presbyterian, was appointed to go and see these churches and to find out/discuss with them the differences at --

Justice William J. Brennan: How many churches are there that have –(Voice overlap)

Mr. Charles L. Gowen: Withdrawn?

Justice William J. Brennan: I don’t want to use the wrong word “secede” or went wrong.

Mr. Charles L. Gowen: Secede -- Two churches on Savannah.

Justice William J. Brennan: Only two?

Mr. Charles L. Gowen: Only two.

Justice William J. Brennan: In the United States?

Mr. Charles L. Gowen: That’s as far as the records show and as far as I know.

Justice William J. Brennan: That’s because -- between churches and the other.

Mr. Charles L. Gowen: Two churches and the rest of the denomination.

But the church --

Justice William J. Brennan: Is it over religious matter?

Mr. Charles L. Gowen: It’s over -- we think it’s over religious matters.

The Court --

Justice William J. Brennan: I noticed as it seems to me but Vietnam and --

Mr. Charles L. Gowen: Yes, while here’s what the differences were - first --

Justice William J. Brennan: Civil law, civil disobedience.

Mr. Charles L. Gowen: The first was a statement in some Sunday School literature about civil disobedience.

The evidence was on the trial of the case and the local churches didn’t even use the Sunday School literature and what required to use it.

There was also a statement by the General Assembly of the church on civil disobedience as a final resort to secure individuals their rights.

That statement on civil disobedience is in the record; the summation of it is on page 58.

I think it’s relatively mild statement of it.

It ends up by saying that it regard civil disobedience as a measure of last resort, to be employed only on circumstances otherwise herein mediatable need.

And then the exercise of which, the whole concept of law is not denied but affirmed.

And to continue the support and regard with compassion, those who practice civil disobedience when no legal recourse has been left open to them and you act in Christian conscience and a legions to Almighty God.

Justice William J. Brennan: Was the question of that kind submitted to the jury?

Mr. Charles L. Gowen: Yes, sir.

They are submitted to the jury as whether --

Justice William J. Brennan: And did the jury pass on that?

Mr. Charles L. Gowen: Yes, the jury passed on that.

Justice William J. Brennan: What did they hold, is it religious or not religious?

Mr. Charles L. Gowen: They held that it was a departure from --

Justice William J. Brennan: You mean the civil disobedience?

Mr. Charles L. Gowen: Civil disobedience was a departure from the tenets and doctrines of the Presbyterian Church in the United States as they existed in 1861.

And as they existed in 1890, when one of these local churches affiliated with, and that the holding was, is apparently they adopted the English rule that was rejected by this Court on Watson vs. Jones and said “that you couldn’t change the doctrine that existed in 1861 of the time when the church affiliations because of -- they were bound by.

Justice William J. Brennan: Does the state could decide in favor of the two courts (voice overlap).

Mr. Charles L. Gowen: They decided in favor of the two local churches and the Court.

Justice William J. Brennan: And let them keep the church?

Mr. Charles L. Gowen: Yes, sir and the Court made a statement that the state went on the civil disobedience, this is a court in the Georgia Supreme Court, is an absolute defiance of law on order and this is the road to anarchy.

Chief Justice Earl Warren: Well, in the holding that’s before us the one that appears on page 124 of the appendix and the opinion of the Georgia Supreme Court and it says that after saying that there is implied trust and the Court says we take the view that such a trust is conditioned upon the general churches adherence to the tenets of faith and practice existing in the local church adhered with it and that an abandon may now over a departure from such tenets as a diversion from the trust that civil courts will prevent and it goes on to say that that abandonment or departure has then have to be total but have to be substantial.

Is that the issue before?

Mr. Charles L. Gowen: That’s the issue.

And our contention is, that under the First Amendment as construed in Watson vs. Jones and in Kedroff vs. St. Nicholas Cathedral that this court has held that under the free exercise and establishment clauses of the First Amendment that the civil courts do not have a right to inquire into those matters but those matters are for decision by the ecclesiastic courts.

And that is the question and the issue that we think it’s been in disposed of by Watson vs. Jones which was not decided on constitutional grounds originally but we believed was raised to constitutional status by Kedroff vs. St. Nicholas Cathedral.

Justice William J. Brennan: You are not representing the two churches?

Mr. Charles L. Gowen: No, sir, I’m representing the central, the petitioner --

Justice William J. Brennan: Who paid for the church?

Mr. Charles L. Gowen: Sir?

Justice William J. Brennan: Who bought the church?

Mr. Charles L. Gowen: The local congregations bought the churches and paid for it.

Justice William J. Brennan: Whose name is it then?

Mr. Charles L. Gowen: The title is on the local churches.

Justice William J. Brennan: Title is on the local church.

Mr. Charles L. Gowen: Yes, and the decision of the Court, and that we think correctly, the correct decision was that when these local churches affiliate or joined the central church that there was an implied trust that those, the church property, would be use for purposes of the denomination.

Unknown Speaker: So you rely on the implied trust rather than on any specific provisions of the (Voice overlap)

Mr. Charles L. Gowen: I think so.

I think I could --

Unknown Speaker: Well, can you do otherwise?

Mr. Charles L. Gowen: -- show you the specific provision that --

Unknown Speaker: But can you do otherwise?

In other words, you may show us.

As the case comes to us, are we not concluded (Voice overlap)

Mr. Charles L. Gowen: -- that there is an applied rules.

Unknown Speaker: That’s right.

And then, I gather that trust does not resolve in your client, taking these properties in the circumstances because the Supreme Court of Georgia said, “Your body had departed from the central (Voice Overlap).

Mr. Charles L. Gowen: That’s what they say that that defeated the trust.

Unknown Speaker: So really what’s before us is just an element of it, isn’t it?

Not whether or not (Voice overlap) source of the title.

You’re only source of the title is the implied trust as far as (Voice overlap)

Mr. Charles L. Gowen: The title isn’t involved. (Voice overlap)

The thing that’s involved is his right to occupy and use it the same thing that was involved in St. Nicholas Cathedral and the Kedroff case.

Justice Potter Stewart: Yes, but in those two cases, they found within the ecclesiastical law itself of the right to use and occupy the property.

Mr. Charles L. Gowen: Well, I’m sure that there is that we can’t point out to the court.

Justice William J. Brennan: No, but the Court of Appeals of New York found that in Kedroff and the other case.

Mr. Charles L. Gowen: The Court of Appeals of New York in the Kedroff case, the Kedroff case involved an Act of the legislature which in effect undertook to place the property in the hands of the American branch of the church relevant to Moscow branch because they said/felt that the Moscow branch had been tainted by the communist of the government that existed there and was not capable of managing.

And that the Court held that they couldn’t do that because under the rules of the church and under its practice in the Orthodox church that they have the right to occupy the cathedral though the cathedral belong to the local people who went into question what they had the title to it, to the state.

Chief Justice Earl Warren: Well, we do not have any comments on these questions?

Mr. Charles L. Gowen: No sir.

Well, we got/have Vietnam War and we have statement on policy.

There’s also one of the things they found fault with --

Chief Justice Earl Warren: Found what?

Mr. Charles L. Gowen: One of the things the local church has found fault with was an amendment to the church Constitution that authorizes women to hold church offices.

Chief Justice Earl Warren: That would be communist, would it? [laughter attempt]

Mr. Charles L. Gowen: Well, I wouldn’t think so.

They also found fault with the central church because the General Assembly refused to endorse a motion to -- because the general ssembly refused to endorse the amendment of the Constitution of the United States to overcome the decision of this court dealing with bible reading and prayer in the public school.

Justice Abe Fortas: There was also something about Foreordination.

Mr. Charles L. Gowen: Yes, but the last one was the statement of the General Assembly on Foreordination.

And if you read the statement of the General Assembly on Foreordination, it simply says that in order to be a Presbyterian, you don’t have to believe that people are condemned everlasting death at the time of their birth and that that is necessary.

You don’t have to say you can’t believe it if you want to.

It don’t deprive you, it don’t deprive the members of these local churches from believing and if they wanted to.

They simply say that if I don’t believe that that I can still be a member in good standing of the church.

Unknown Speaker: Anything about predestination or just Foreordination?

Mr. Charles L. Gowen: Just Foreordination.

Justice William J. Brennan: I was reading the other night the trial of Tomas Miore in Scotland in 1793.

He was tried for sedition and convicted and his crime was advocating suffrage for women.

So may be this is -- on practice that is very fundamental here.

Mr. Charles L. Gowen: Well, we think that this Court has held that all of these matters are matters for determination in the church courts or by the church itself and not by the civil court --

Justice William J. Brennan: Except for the property, except for the implied trust, would you think the state law is free to imply to settle the property dispute within the church?

Mr. Charles L. Gowen: No, I think this -- I think this Court has held that the property, the only property of the civil courts is to take the property in the way that the general church has decided that it should go.

Justice William J. Brennan: So that you don’t rely on the implied trust?

Mr. Charles L. Gowen: No, sir. (Voice overlap)

The Georgia court held it and I think it’s in this case.

Justice Potter Stewart: Well, I ask you whether we were concluded by the holding of implied trust.

You’re answer to me now is, “We are not”.

In the determination here whether or not this is a matter of church law, we witness to this property any authority of the state by whatever property concept.

Mr. Charles L. Gowen: I don’t think the State Courts have a right to determine the -- where the property goes but that’s a matter for determination by the ecclesiastical courts.

Justice Potter Stewart: (Voice overlap) to what Justice White asked you earlier.

It was true, wasn’t it that we were able to find in Kedroff that there was a provision of Canon Law that dealt with this problem?

And if you are going to suggest that there is one in -- we have your Book of Church Order here but can you suggest what the provision was now that you referred us to earlier?

Mr. Charles L. Gowen: It’s either 16.7 (a) or 17.7 (a).

The copy, I have that 16.7 (a) but it is not identical with this one.

Justice Byron R. White: We don’t have As or Bs in this one, the one that it’s on the record?

Mr. Charles L. Gowen: 16.7.

Justice Byron R. White: But would you say then that that the civil courts are entitled to interpret the ecclesiastical law or the Canon Law with respect to property?

Mr. Charles L. Gowen: No, sir.

I don’t think --

Justice Byron R. White: Well then, isn’t – if you don’t rely on the implied trust and then it seems to me the court, in order to settle the property dispute, would have to interpret the church law.

And it can’t do that either; it should dismiss the case and leave it at the file as traits.

Mr. Charles L. Gowen: No, that’s being suggestive.

I don’t think that that is the law.

I think that the law is that after the church has made the determination, the duty of the civil court then is to enforce the decision of the ecclesiastical courts.

Justice Byron R. White: Which church, the local church or the central church?

Mr. Charles L. Gowen: Well, the central church because the local church had a house access to the church courts.

Now these local churches didn’t see fit to exhaust any remedies in the church court.

The local churches had a right of appeal to the Presbytery.

The Presbytery appointed the Commission.

The evidence is, they refused to participate into and they have anything to do with.

Justice Abe Fortas: What’s your basis for civil courts in this country accepting a determination as to property rights or right of that by church courts that it can’t be because it is a Canon Law or a church law.

It’s got to be because it is relevant to some common-law principle that we can entertain in civil courts, is that right?

Mr. Charles L. Gowen: It’s because --

Justice Abe Fortas: I don’t know of anything in our constitutional system that --

Mr. Charles L. Gowen: Well, I think --

Justice Abe Fortas: -- would think to what you say.

I was hoping that you would say that in this case, the purposes of this case, as to whether the Georgia Court’s decision on the existence of an implied trust should be taken by this court.

Apparently, you don’t say that.

Mr. Charles L. Gowen: Well I think that the Georgia Court -- I don’t think this been in the appeal from that decision.

But I understood, Mr. Justice White that it has to be whether or not I felt that if this decision have not been made by the Georgia court that it would have been open for determinations by the court.

I think you’re bound by because the court laid the decision and there had been no appeal from it.

Justice Byron R. White: Georgia courts.

Mr. Charles L. Gowen: Yes.

Justice Byron R. White: Alright.

Unknown Speaker: Does the record show whether there was a vote on your local church member?

Mr. Charles L. Gowen: Yes.

Now as they vote among the local church members and it was unanimous to the extent of the local church members who were present at that time, I don’t believe it.

Chief Justice Earl Warren: Which weights?

Mr. Charles L. Gowen: Unanimous in favor of withdrawing from the central church.

Chief Justice Earl Warren: You will get us that citation from the record overnight, will you?

Mr. Charles L. Gowen: Yes.

Chief Justice Earl Warren: Mr. Page?

Argument of Owen H. Page

Mr. Owen H. Page: Mr. Chief Justice and may it please the Court.

I think I can put this in a correct prospective point.

At the time these churches, the local churches withdrew in April 1966 in the resolution of disaffiliation, they charged the denomination or church with specific violations of the church doctrine/dogma and discipline.

Now in light of that, then the Supreme Court of Georgia rightfully there being an -- and Mr. Justice White, the only reference in the Book of Church Order to the right of a Presbyterian at (Inaudible) is Chapter 6, Days 3 of the Book of Church Order.

Chief Justice Earl Warren: But that works only if the church has been dissolved, they come to an end is that right?

Mr. Owen H. Page: Yes, sir, that’s correct.

Chief Justice Earl Warren: Which is not the case here.

Mr. Owen H. Page: Excuse my degradation but I want a Sixth Amendment.

So the Supreme Court of Georgia rightfully then looked at the question of the implied trust.

They examined it and they found under the implied trust, of course in a church property dispute, you don’t go to the words on the grant because we don’t have an express trust situation.

Therefore, the Court has to look at the church doctrine and dogma that existed at the time of the acquisition of the property.

And that’s what the Supreme Court of Georgia did in invoking the implied trust.

Justice Potter Stewart: But where does this civil court have the right to imply trust in --

Mr. Owen H. Page: Because of the fact that property right is involved, Mr. Justice and this is historically correct in cases where you have a property dispute involving church and then the civil courts have the right above a sides and this is particularly true if in the final determination it is a question of violation of a church constitution such as we have here.

This was specifically alleged, let me make reference to those parts of the Constitution that were particularly presented and alleged to have been violated.

Justice Byron R. White: Before you get to that, may I just ask you one question.

Are you going to suggest any way in which we can get out of this without having depends on that church Constitution?

Mr. Owen H. Page: No, sir.

I believe that question has already been resolved.

It is –

Justice Byron R. White: How can it be resolved?

It is still here.

Mr. Owen H. Page: I mean the question of the violation of the church doctrine and dogma --

Justice Byron R. White: (Voice overlap) resolved in the court below.

It appear now.

Mr. Owen H. Page: Yes, sir.

But in examining --

Justice Byron R. White: I’m just asking are you going to suggest anyway that we can decide this case without having to get into that church Constitution?

Mr. Owen H. Page: No, sir.

I don’t think we are going into the question.

I think we are looking at a different situation.

We aren’t involved in faith and dogma.

What we have here and the Court’s have looked into this very carefully what they say when you present a church doctrine or dogma in the implied trust such as this, you look at the doctrine and dogma just to determine that the –

Chief Justice Earl Warren: Finish your little statement and then --

Mr. Owen H. Page: You look at it as though you had an express trust.

When in looking at the implied trust, you look at the doctrine and dogma that existed that the property was acquired then you determine if there has been a violation of that to determine if the implied trust has been breached.

Chief Justice Earl Warren: And now, we’ll recess.

Print this transcript Transcript: 

Argument of Charles L. Gowen

Chief Justice Earl Warren: Number 71, Presbyterian Church and the United States et al., petitioner, versus Mary Elizabeth Blue Hull Memorial Presbyterian et al.

Mr. Gowen, you may continue with your argument.

Mr. Charles L. Gowen: Mr. -- I have --

Chief Justice Earl Warren: You have said -- excuse me, excuse me, I know it Mr. Page, you had already started your argument.

You may proceed.

Argument of Owen H. Page

Mr. Owen H. Page: Mr. Chief Justice and may it please the Court.

Yesterday, counsel for the petitioner, I had observed as I recall that the respondent churches had ceased to function.

I think this was an attempt to bring the situation within that Section of the Book of Church Order and which has been identified, I think yesterday as Section 6-3.

Oh, a complete explanation of that Section, if the court will referred to page 83 of the appendix.

But let me just sum it up for you.

That refers to a situation in which we either have a church which has withered and died on the vine or one which is in the process of withering.

Now, I -- the viability of these churches are, I think is manifested by the fact that these cases are before you today.

Furthermore, if you examine the action of the administrative commission which the counsel made some imports, you will find, there was a completely innocuous act.

What it did, it did more than -- did nothing more than accept the or recognize the cessation, you might say or removal of the session by their own volition and then it said in effect for those members of the congregation that still wish to worship, we will furnish you a minister.

So, as to the question of im -- whether these judges should have appealed the action of the administrative commission.

There were two reasons I didn't have to.

First, under the guard of the First Amendment, these people individually or collected really have the right to withdraw.

Second, the constitution of the Presbyterian church has no prohibition against a church taking this action and this too is in the record.

Now, I briefly --

Chief Justice Earl Warren: That has no prohibition against what?

Mr. Owen H. Page: Prohibition about an individual church withdrawing.

Chief Justice Earl Warren: Oh, I see, yes.

Justice Abe Fortas: Well, are you, is this argument addressed to a proposition that there was no implied trust?

Mr. Owen H. Page: No, sir.

I was just rebutting yesterday that I thought they might have left this impression and I was --

Justice Abe Fortas: I want to be clear about one thing.

Mr. Owen H. Page: Yes sir.

Justice Abe Fortas: I thought I was but I'd like to get your view on it.

You do not contest the finding of the conclusion of the court below --

Mr. Owen H. Page: No sir, I do not.

Justice Abe Fortas: I think there was an implied trust.

Mr. Owen H. Page: No, sir, I do not.

Justice Abe Fortas: And that -- the terms of that implied trust are that this property will be used as part of and subject to the mechanism of the church and the central direction and guidance of the church and the church discipline.

Mr. Owen H. Page: Yes, with one qualification.

In the -- because when we talked about the implied trust Mr. Justice, we are talking about the imposition of the polity which is the doctrine and discipline of a church at the time of the acquisition of the property.

Now what the Supreme Court of Georgia found below and this was on its statutory mandate that the court invoked.

The court found under Section 28 -- 22408 of the Georgia Code that when a property is devoted to a specific doctrine or trust, the court will intervene to prevent it -- the property being diverted to a doctrine which is contrary to that which existed at the time of the acquisition of the property.

Justice Abe Fortas: Well you have as I see it, and your case comes down to two points.

One, assuming that there is an implied trust which you -- are going to.

Two, is that trust dependent upon a maintenance of the church polity at the time the trust was cleared and mainly as of the time of the acquisition of the properties by the local church.

Mr. Owen H. Page: That has -- that's -- yes sir.

Justice William J. Brennan: And three, if that is so, was there such a change in the polity of the church between the time of acquisition and the time of the disaffiliation so as to defeat the implied the trust.

Mr. Owen H. Page: Yeah.

Justice William J. Brennan: Is that an inquiry where I am right?

Mr. Owen H. Page: That's correct, that's it.

So, we then -- we look at the constitution to determine what was imposed upon the property at that time then we look at the charged transgressions which are set forth in the action and the resolution of the Judge and let me just briefly refer to it and I think --

Justice Hugo L. Black: Would you mind -- would you mind stating to me first how was this trust created?

Mr. Owen H. Page: This trust Your Honor under the --

Justice Hugo L. Black: Did anybody signed it --

Mr. Owen H. Page: No Mr.Justice, no sir, there was no -- not -- we are here --

Justice Hugo L. Black: How was it created?

Mr. Owen H. Page: It was created under the -- I would assume under what we call the polity of this particular church government which has denied a knowledge to be a representative type of church but the representative type of church is of course have -- may have a variation of polity.

For example, a representative type of church may be representative in its spiritual relationships as we acknowledge here but it may have congregational aspects in relation to property.

So what we have here under the theory of --

Chief Justice Earl Warren: Does your constitution provide that?

Mr. Owen H. Page: No sir.

This is --

Chief Justice Earl Warren: Where do you get that?

Mr. Owen H. Page: This is an implication Your Honor from Watson versus Jones that they said in that particular type of church government where you have a series of ascending judicatories that there is an implied consent absent some particular transgression of the constitution that it is held for the benefit of the church as a whole.

Chief Justice Earl Warren: Is that the only place you get it?

Mr. Owen H. Page: Yes sir.

Justice Potter Stewart: This is a -- then its origin is in the secular law in the sense that the -- either the legislature or a court is said that in these circumstances, they trust the right.

Mr. Owen H. Page: Yes sir.

That's in the secu -- that is in the secular law.

Justice Potter Stewart: And the --

Mr. Owen H. Page: There is no canonical laws supporting this in this particular case.

Justice Potter Stewart: None at all.

Mr. Owen H. Page: Yes.

Justice Potter Stewart: So this is a doctrine of a secular law.

Mr. Owen H. Page: Yes sir.

Justice Potter Stewart: Now, do you say -- apparently you don't argue that if the terms of the trust which is imposed by the secular law may not be adjudicated by the secular courts that therefore the trust cannot be observed.

Mr. Owen H. Page: Yes, that -- in Gonzalez versus Archbishop, Mr. Brandeis -- Mr. Justice Brandeis, I think put this in focus for all of us.

He said in this team, this I think was about 1929 decision some years after Watson versus Jones in which he said, “Absent for evidence of fraud, collusion or arbitrariness that the secular courts, all of the findings of an ecclesiastical court in matters involving ecclesiastical law even though civil rights are involved.

Now, this theory has been followed by any number of decisions both state and federal subsequent at that time.

So, what was acknowledged in Watson versus Jones, you might say it -- by Jones, absolute deference to the authority of the highest church court is no longer, it has been cons -- it has been modified and the court may now look beyond the rule formulated in Watson as to the three -- as to the types of churches that he acknowledge there.

Justice Hugo L. Black: Now, absent -- the doctrine of the implied trust, would this case get in to court?

Mr. Owen H. Page: No sir.

Justice Hugo L. Black: And that's a creation of the court's opinion, do you think in Watson?

Mr. Owen H. Page: Yes sir.

Subject to the modification and -- then Gonzales.

Justice Hugo L. Black: Mixes the court up considerably in connection with the policies of the church at one time and another?

Mr. Owen H. Page: No sir.

I -- may I take this exception.

When we look -- you see, the charge, when we looked at the charged transgressions, we do not imply into the faith that inspired this particular constitutional commandment of the church in its organic law.

All we looked is at this organic law in its doctrine and discipline as a factual, is purely factual matter.

Justice Hugo L. Black: What is the factual matter?

Mr. Owen H. Page: Well, the factual matter here is that the general assembly made pronouncement concerning civil disobedience and becoming involved in civil affairs in direct conflict with the church -- with its -- with church's constitution.

The constitution says, “ You shall not do this.”

Justice Hugo L. Black: Suppose it does that, what does that have to do with the title of the land that some people --?

Mr. Owen H. Page: Well, I -- under the theory we are having to move along on sir, we'll have to go on a theory that this constitutes a breach of the trust and under the law, if there is a breach in the trust or the part of the denomination on the church at its highest level, there is then the property is restored to those who are still uttering the concepts, the constitutional concepts.

Justice Hugo L. Black: What if the people far distant?

Mr. Owen H. Page: Sir?

Justice Hugo L. Black: It goes to people far distant from the church.

Mr. Owen H. Page: No sir.

Justice Hugo L. Black: Well then, who would get it?

Mr. Owen H. Page: Those who are still in this instance as the Supreme Court of Georgia found, those who are still occupying the church premises.

Justice Hugo L. Black: Under the --

Mr. Owen H. Page: And these are the people --

Justice Hugo L. Black: -- that the unanimous, devoted there against the interest there?

Mr. Owen H. Page: No sir.

They unanimously voted to sever their relationship with the Presbyterian Church, the two local --

Justice Hugo L. Black: And he tell to keep that property from their own use.

Mr. Owen H. Page: Yes, which they had financed by their tithes, offering, and pledges and you see, you have a difference here, the other thing I'm think in Kedroff, in Kedroff there was some evidence as I recall in the record that the Russian based church had money in the cathedral in New York.

There's no evidence like that and these are all raised by the local people.

Chief Justice Earl Warren: Well, is this departure from the original dogma fall under that phrase of fraud or whatever it was?

Mr. Owen H. Page: Yes sir.

And the subsequent -- this Courts have had expanded the word arbitrariness to mean an ultra vires on constitutional act and these are clearly charged in the initial pleadings on the part of the petitioner, I mean of the respondents.

If you -- the reference would be in the appendices, pages -- in appendix, page 29 also and 116 where these constitutional violations are charged.

Chief Justice Earl Warren: But just what are the -- you were about to specify --

Mr. Owen H. Page: Yes sir.

Chief Justice Earl Warren: -- this is --

Mr. Owen H. Page: -- from our constitution.

Senates and counsels are to handle or conclude nothing but that which is ecclesiastical or not to intermeddle in civil affairs with concern to the commonwealth.

Lest by way of humble petition in cases all extraordinary by way of advise or satisfaction of conscience.

If they'd be there until required and then the other violation that was found, it is the duty of the people to pray for the magistrates to honor their persons to pay them tribute and other dues to obey their lawful commands and be subject to their authority for conscience sake, these are the parts of the cons --.

Chief Justice Earl Warren: Yeah, but what other specifications of departure from that?

Mr. Owen H. Page: The specifications are in the resolution which bring to the court's attention pronouncements by the highest tribunal in 1965, in 1966 in which the highest tribunal where on the record condoning civil disobedience and embroiling the church in them military and diplomatic affairs over the Vietnam War.

Now, these were the basis, the primary basis for the action that's before and these are reflected in the judgment of the Supreme Court of Georgia.

Justice Thurgood Marshall: Mr. Page, who do you think would be better able to decide that question, ecclesiastical court or ordinary jury, Savannah, Georgia?

Mr. Owen H. Page: Mr. Justice, under the theory that is presented to us and properly right being involved, it of necessity has to go before the courts.

Justice Thurgood Marshall: Before?

Mr. Owen H. Page: That's correct.

Justice Thurgood Marshall: The --

Mr. Owen H. Page: The secular court.

Justice Thurgood Marshall: Before the church courts have had an opportunity to pass for it.

Mr. Owen H. Page: Now, in this particular essence, of course we once again run across a rather unique situation, we have the tribunal of the supreme tribunal of the Presbyterian Church acts both as a legislative agency and also a judicial agency.

So we find them in pronouncing and then they're going to stand upon --

Justice Thurgood Marshall: Is that true when you join -- was that true when you joined?

Mr. Owen H. Page: Yes sir.

Justice Thurgood Marshall: Do you submit it to it voluntarily?

Mr. Owen H. Page: I think when people submit --

Justice Thurgood Marshall: Was that correct?

Mr. Owen H. Page: With this qualification Mr. Justice, I don't believe you submit absolutely to something -- I believe you submit conditionally that the people to whom you are submitting are going to honor their consti -- the constitutional concepts of that government or agency at the time you are here.

I don't believe they have any absolute right to --

Justice Thurgood Marshall: Well, what is the reason you didn't follow them through and -- within the church before going to the court?

Mr. Owen H. Page: Well, it went to two reasons.

First, I think that this action was -- as I mentioned has made on a highest level and I believe it might have been a little exercised in futility to have attacked a legislative pronouncement before the judicial body which is -- determine its own legislative act.

But more importantly if and this I think is valid, if the act of the general assembly is a con -- unconstitutional act, well, if they did, then this, I don't believe that it imposes any responsibility upon the lesser tribunal which is the local congregation to appeal that act.

And certain courts where this situation has been presented where the highest tribunal has been accused of an ultra vires or unconstitutional act.

It said known app -- no appeal is necessary because I don't believe this -- it impose any duty on it.

Chief Justice Earl Warren: But were these departures that you referred to mandatory and binding on the -- on these churches or were they statements or views of the hierarchy of the church?

Mr. Owen H. Page: Under the position of the churches set forth in the resolution of 1880, there are two types of pronouncement.

One is the judicial decision and what is called an in esse and is --

Chief Justice Earl Warren: And what?

Mr. Owen H. Page: An in esse decision such as this.

And it said that the Con -- the members of the church have to submit to both with equal dignity and respect unless they violate the constitution of the Presbyterian Church.

Chief Justice Earl Warren: So --

Justice Hugo L. Black: When you get down to the bottom here, is there anything in dispute at all except who controls this property?

Mr. Owen H. Page: No sir.

That's basically --

Justice Hugo L. Black: Nothing in the move?

Mr. Owen H. Page: No sir.

That's (Voice Overlap) --

Justice Hugo L. Black: But who could (Voice Overlap) --

Mr. Owen H. Page: Who has the right possession and used the property, that's correct.

Justice Hugo L. Black: And they claim they have withdrawn so as -- from the mother church.

Mr. Owen H. Page: That's correct.

Justice Hugo L. Black: The mother church -- and their -- and their big church wants to get it so it can do what, to use the property?

Mr. Owen H. Page: Yes sir.

So that it can possess that it's a --

Justice Hugo L. Black: Then they'd have to get some other congregation --

Mr. Owen H. Page: That's correct.

Justice Hugo L. Black: They'd have no congregation to go there.

Mr. Owen H. Page: That's correct.

The sort of --

Justice Hugo L. Black: -- have nothing involved on or dispute except the control over this property, the local people voluntarily.

Mr. Owen H. Page: That's right.

Chief Justice Earl Warren: Oh, I suppose there is a question of whether this is a departure from the doctrine of the church, isn't there?

Mr. Owen H. Page: Well, I'm worrying sir if that assessment hasn't been made.

Chief Justice Earl Warren: By whom?

Mr. Owen H. Page: Hasn't been made initially in the -- when it was presented in the lower court.

Chief Justice Earl Warren: Well, that's --

Mr. Owen H. Page: To impart, I mean.

Chief Justice Earl Warren: That's it, i'd like to asked you --

Mr. Owen H. Page: Yes sir.

Chief Justice Earl Warren: -- whether there was anything involved in this case other than property.

You said no but as I understand it, you stand on the premise that this was a departure from the constitution of the church and if the court shall determine that it is a departure from the dogma of the church.

Mr. Owen H. Page: I'll understood his question so much when he said, “Basically isn't the question who is entitled to the possession of the property.”

That's what I thought he asked me.

Chief Justice Earl Warren: That's exactly what I meant.

And I can't see whether the dogma of the church has anything to do with that issue.

Justice Abe Fortas: But your point is, as I understand it, that you in effect agree that unless the court properly -- a court properly finds that there has been a departure from the church dogma or church polity as comparing the present with the time of the acquisition of the property by the local church, unless there has been a departure by the central church in church dogma or polity, then you agree that the -- you're wrong and the central church is right.

And that the central church is entitled with the property.

Mr. Owen H. Page: They simply come down --

Justice Abe Fortas: So that your case really depends as I see it upon two questions.

One, did the court below properly go into -- did they have any business going into the question that you put.

And second, was it properly decided so that when you look at it from that point of view, your whole case depends not on property law in the common law sense but upon the question of a church dogma.

Mr. Owen H. Page: And -- in applying the proper church polity to it in this instance.

Because in this instance, we find out under the theory of, what was known as prescribed use in Watson versus Jones that the right to dictate this property as far as use, alienation, acquisition, who shall be the minister, who shall finance the church programs and discipline all are under the church constitution given to the local church.

Justice William J. Brennan: On page --

Justice Hugo L. Black: They have one and did not agree with you.

With you too on that issue, about the trust but one thought that a trust of a church couldn't be decided in the court of law, to take away property from somebody to whom it belongs on the basis of the church dogma, then the case is quite different, isn't it?

Mr. Owen H. Page: Yes sir.

Then you would have to look as this -- in the record as to the historical position of this church in relation to his church property in way of the pledge -- in the way it is recognized, the autonomy of the church control in the local --

Justice William O. Douglas: You state on page 18 of your brief that the civil courts have power to overwrite the decision of an ecclesiastical authority where to enforce its decision, first would be offensive to peace and order.

Second, would approve an arbitrary or ultra vires act or third, would be repugnant to the principle of equity.

We have a lot of controversies in churches, taking birth control, how would you -- how would your theory go about resolving -- in birth control dispute in the church?

Mr. Owen H. Page: Well, I don't know.

I know that's a raging problem.

I don't know whether -- what status that has within the Catholic Church.

Well, it's a canonical situation or not, I couldn't answer Mr. -

Justice William O. Douglas: -Well, you're talking about offensive to peace and good order, arbitrary or ultra vires or repugnant to the principles of equity.

Mr. Owen H. Page: Yes.

Well, I --

Justice William O. Douglas: As I have read our prior decisions, I had -- I don't see them -- the relevancy of those three standards to Watson, to Kendrick.

Mr. Owen H. Page: Well, the Watson, this subsequently modified Watson.

Now, a subsequent state and federal -- for example, in Kedroff, Kedroff even said, “We believe the right to select clergy where no improper methods are shown” is given constitutional (Inaudible).

So it gives this Court the right to look in and that's we -- what we contend and historically where property has been in dispute.

The court has looked in.

But may I suggest this --

Justice William O. Douglas: You will agree once you -- that it is better if possible, in view of their First Amendment for this Court not to look into anything in connection with dogmas unless it is imperatively required by some law.

Mr. Owen H. Page: Well, I -- yes and I may I answer this way, it seems to me that a church can only claim the protection of the -- over the First Amendment, free exercise if it operates within the framework of its own constitution.

And that -- there's no restraint of this church action here as long as it operates within the constitution --

Justice Hugo L. Black: Well, they're not attempting to interfere with this dogma.

They just simply insisting on taking -- withdrawing apartment and keeping the church.

Mr. Owen H. Page: That's correct.

And they're asking of the highest church tribunal the same constitutional accountability that they would impose on the lesser.

But let me --

Justice Hugo L. Black: Oh, may I ask you --

Justice Thurgood Marshall: When did they asked --

Justice Abe Fortas: -- this question please.

One of the issues that was tendered to the jury, was your contention that the central church had departed from original dogma on the doctrine of "for ordinations," is that right?

Mr. Owen H. Page: Yes sir.

Justice Abe Fortas: That was one of the issues that you tendered.

Now, if the jury had disbelieved you on everything else, if they had disbelieved you on everything else they might still have come in with the verdict on your behalf because they believe it -- that the church, the central church had departed from the doctrine of “for ordinations” as an existent as of the time that these properties were acquired that is the thrust of the instruction under which the jury was operating, isn't that correct?

Mr. Owen H. Page: The thrust of the charge was encompassed to all of them Mr. Justice.

Justice Abe Fortas: And it did encompassed to all of them but it's a -- the lower court said if you find that there has been a departure from church dogma as of the time of acquisition, then you will decide for the plaintiffs, is that right?

Mr. Owen H. Page: Yes sir.

Justice Abe Fortas: And the jury might have decided this case on the basis of a departure by the central church in respect of the doctrine of “for ordination.”

Mr. Owen H. Page: Yes sir.

And --

Justice Abe Fortas: Is that -- was one of your charges and one other things that you -- on which you submitted proof, am I correct?

Mr. Owen H. Page: Yes sir.

In addition of it.

Let me just conclude on this one, I believe --

Chief Justice Earl Warren: Well, let me give you another one of those specifications and receive just where we stand.

The general assembly's -- what are these objections they made to the, as you called departure from dogma, is the general assembly's failure to endorse a proposal to amend the U.S. constitution to overcome this Court's school prior decisions.

Response characterize this is giving support to the removal of Bible reading and prayer in the public schools, now what is there in the constitution that says that the church as a whole must endorse a constitutional amendment to overcome the decision of this Court?

Mr. Owen H. Page: Mr. Justice there was no evidence submitted on that so I think --

Chief Justice Earl Warren: What is -- one of the --

Mr. Owen H. Page: Yes sir.

Chief Justice Earl Warren: Maybe no evidence but you charged that to this one other thing and I suppose that went entered the judgment.

Mr. Owen H. Page: The -- that all I know sir is the evidence which was introduced which was the basis for the action of the court.

Now let me just conclude on this order.

Chief Justice Earl Warren: Well, I know but as a matter of fact, is that a departure?

Mr. Owen H. Page: Quite frankly Mr. Justice, I couldn't answer that.

Chief Justice Earl Warren: Why can't you answer it?

Mr. Owen H. Page: (Voice Overlap)

Chief Justice Earl Warren: Because you don't want to?

Mr. Owen H. Page: No sir.

For two reasons, first I am not a Presbyterian and I was not member of these church congregations at the time this initial action was taken.

Chief Justice Earl Warren: Well, but you said -- tell us this other things are departures.

Mr. Owen H. Page: Well, this abide as which you have been introduced as a matter of proof, now that's the only way I can respond to that.

Chief Justice Earl Warren: Are there any Presbyterian lawyers here on each side.

Mr. Owen H. Page: No sir, I don't think so.

Justice Thurgood Marshall: Would any Presbyterians on the jury?

Mr. Owen H. Page: No sir.

Justice Thurgood Marshall: They decided the non-Presbyterians decide it, what was actually the dogma of the Presbyterian Church.

Mr. Owen H. Page: The -- I think that what the -- under the --

Justice Thurgood Marshall: You -- isn't that --

Mr. Owen H. Page: -- tragic --

Justice Thurgood Marshall: Isn't that statement correct?

Mr. Owen H. Page: Yes but that was under the instructions of the court.

Let me just conclude this.

Justice Thurgood Marshall: Was the court -- was the judge a Presbyterian?

Mr. Owen H. Page: No sir.

The judge was not a Presbyterian.

Justice Thurgood Marshall: So everybody else --

Justice Hugo L. Black: A Presbyterian judge be disqualified from sitting in a case for this thing?

Mr. Owen H. Page: Mr. Justice I assume that addresses it to the judge himself, I'd say, I wouldn't ask him to be disqualified.

In conclusion, I find this -- if you look at the record to it, there is a fatal federal question before this Court and I submit that the -- that this case should be dismissed because there is no federal question before the court since it'll be raise.

And here's what the four points that they raised, they said that federal question was raised in the Supreme Court of Georgia on a motion for rehearing and that that many questions thrust before that court were entertained.

The federal question was -- the motion was entertained and the many federal questions presented were answered.

That is not the record in the writing and it of course, this violates the historic position of this Court that on a motion for rehearing when the federal question is raised for the first time, you must entertain and decide.

The other question was that in overruling Matt v. Kahn (ph) it violated the rule of stare decisis.

This is -- again this Georgia Court has adopted the federal rule and that you do not have a vested right in a prior decision and the Supreme Court of Georgia so ruled.

Looking again at the other, that the overruling Matt versus Kahn (ph) violated the First and Fourteenth Amendment application of Watson versus Jones.

This is not the case.

Matt versus Kahn (ph) specifically stated that on a proper showing of a complete abandonment of the dogma and doctrine that the court would then protect the rights of the local property, local church who were adhering to the dogma and discipline.

So this comes as absolutely no surprise there.

All the Supreme Court of Georgia did was to modify its substantive law which had had the right to do any change, the complete task to that of -- substantial.

And finally, they contend that the federal question was properly raised on the local at the initial level in the trial court by the general allegation that the -- this act that they -- act in appropriating the property would violate it, the laws of the United States of America.

This lack -- they require specificity of the state court and also the federal court and there was no motion or other appropriate action taken in the trial court to bring this federal question to the state court and thus to this Court.

Thank you so much.

Justice Hugo L. Black: Does the record show, how much this land on which this church is located?

Mr. Owen H. Page: Yes sir.

I think it does.

Justice Hugo L. Black: What is it?

Mr. Owen H. Page: In answer to it, it would run together approximately a hundred and seventy thousand dollars.

Justice Hugo L. Black: (Inaudible).

Can I ask you just to make sure, as I understand it, there really isn't much a question in this case but what church dogma was involved and the disposition o the case, the lower court required interpretation of the church dogma to see if there was a breach of trust.

Mr. Owen H. Page: The application of it.

Justice Hugo L. Black: Yes.

Now, let's assume --

Mr. Owen H. Page: That's a factual determination.

Justice Hugo L. Black: Let's assume for the moment that the -- that this Court held that the First Amendment forbade the civil courts from adjudicating church dogma in this manner.

I take it, if that were the rule, you would -- then -- that you would say that the implied trust imposed by the secular law would still prevail.

Mr. Owen H. Page: That's correct sir.

Justice Byron R. White: And you wouldn't challenge that implied trust at all on any -- on the First Amendment grounds.

Mr. Owen H. Page: That's right.

Justice Byron R. White: And then the property would go to the mother church.

Mr. Owen H. Page: If -- unless there was a violation of the trust.

Justice Byron R. White: Well, but lets assume that the First Amendment forbids the civil courts from adjudicating whether or not there has been a breach trust and forbids it because adjudicating the breach requires an interpretation of church dogma.

Mr. Owen H. Page: Well, the federal courts haven't held that Mr. --

Justice Byron R. White: Let's assume that we held it though.

Mr. Owen H. Page: Well, --

Justice Byron R. White: Then what would you say about the implied trust.

We said that the breach may not be -- your claim, the breach may not be adjudicated because of the First Amendment.

Mr. Owen H. Page: I would -- yes, I would be in the position with a tennis player who was at match point where they had out.

And so --

Justice Byron R. White: Well, what would you say though?

Mr. Owen H. Page: I would say, first --

Justice Byron R. White: I know you would say we wrong.

Mr. Owen H. Page: And I would employ you not to do that.

Justice Byron R. White: Yes, but what if we did because that's the -- the issue here that's been argued, is it the First Amendment to the federal question.

The First Amendment forbids that kind of an adjudication of the breach of trust.

Mr. Owen H. Page: I can take exception to do that under the precedence that have preceded this case here.

Justice Hugo L. Black: I see to it, and It seems to me that instead of being add out, you might be in a position of the tennis player who has just won his game.

Mr. Owen H. Page: Well sir, I certainly welcome that, I play a little tennis because it's nice to win.

Thank you sir.

Chief Justice Earl Warren: Mr. Gowen.

Rebuttal of Charles L. Gowen

Mr. Charles L. Gowen: Mr. Chief Justice and may it please the Court.

I think in this question of property, we must consider that the Presbyterian Church is a great church composed of many thousands of people who have joined it over the years.

These local churches, when they joined, when they have became members of the Presbyterian Church in this great volume, the church, when they joined it, they placed their property under the polity and control of this church and therefore, they didn't have to do it.

They could've remained the congregational church.

They could've kept their property but for -- because they wanted to do just as I did and I happen to be a Presbyterian.

The justice I did when I joined that church, I put myself under the polity and control of the church and therefore these local churches did it with their property at that time and all these churches -- all that the Savannah Presbyterians has asked to do is to put a minister who is a Presbyterian minister because these churches no longer have Presbyterian members.

They renounced the church and withdrew from it.

All they asked to do is to put a Presbyterian minister in the church to hold services for any members of this church who might want to come and while the vote was unanimous about those who were there, I think the court will take judicial cognizance at the very few churches that have all the members their at any one given day.

And there was no vote taken --

Chief Justice Earl Warren: How about a pretty good vote?

Mr. Charles L. Gowen: That was a good vote but on the other hand, one member of the session refused to follow the action according to the record in the case because the return was all of the members of the session say one.

And if there was only one member of that church who wanted the Presbyterian services yield in it, I say he had a right under the constitution and the law to have that service alive.

We think Watson versus Jones and Kedroff have decided ever issue in the -- this case in favor of the respondents.

We think Watson versus Jones and this case are very similar on the facts.

Both involved Presbyterian churches.

Watson involved the statement by the church on the question of slavery.

This case involved the statement of the church on civil rights because the evidence is that the witness for the plaintiffs said that was the main reason that they withdrew and in each case the state sought to try ecclesiastical issues in the civil courts which this Court said could not be done.

The churches in this country have lived under Watson versus Jones for a hundred years and with Kedroff for 15 years with no injury to our religious life.

Justice Byron R. White: What the -- what would be the situation in the case if the -- if it is determined here for example, I'm not suggesting that it would be but lets just assume that the court determines adjudication of church dogma is contrary to the First Amendment and that the -- it -- those at the lower court's adjudications must be set aside.

Where does the case stand there?

Mr. Charles L. Gowen: Well, then -- this Court if it reaches that conclusion should instruct the Georgia Supreme Court to deny the relief sought by the plaintiffs and give the relief sought by the defendants which would give them possession of the church property for the purposes of conducting services --

Justice Byron R. White: On what basis would you -- would your claim then rest?

Mr. Charles L. Gowen: The claim would rest on the implied trust that is recognized in the similar Presbyterian Church in Watson versus Jones.

Justice Byron R. White: But this would be a secular -- a trust implied by the secular law.

Mr. Charles L. Gowen: Yeah.

But the courts have held both in Kedroff and in Watson versus Jones that after the church tribunal has made its determination, it is the duty of the civil courts to throw the property in the direction that the ecclesiastical courts have indicated.

Justice Byron R. White: What would be your remedy to get possession of the church?

Mr. Charles L. Gowen: This -- simply that the court would issue an order that the Presbyterian Church, the presbytery of Savannah should have possession of the church for the purpose of carrying this --

Justice Byron R. White: But willing to enforce the ecclesiastical decision.

Mr. Charles L. Gowen: Yes sir.

By that, all of the courts have held that it is the duty of the civil court when property rights are involved for the civil courts to enforce the decision of the ecclesiastical court.

Chief Justice Earl Warren: Mr. Gowen you were going to give us the citations of --

Mr. Charles L. Gowen: There is no -- nothing in the church law that deals directly with the disposition of the property of the local churches of the central church (Inaudible).

Chief Justice Earl Warren: They are just one other thing that I'd like to know, I understood from your brief that most of these specifications of departure from a dogma of the church were not binding on any of the local churches except one.

Mr. Charles L. Gowen: The forward -- the making women eligible to hold church office and that was an amendment to the constitution of the church, regular devoted by the requisite dome of presbyteries and there's no attack upon the adoption of that constitutional amendment.

All the rest of them are merely statements of position and there's nothing in the church, book of church order.

There's nothing in the evidence in this case.

There's nothing in the case to say that I as a Presbyterian have to believe anyone of those to remain a member in good standing in the church.

Chief Justice Earl Warren: Now, I understood counsel just a few moments ago to say the contrary that there were two kinds of pronouncements that could come from a general assembly and both of them were binding on the --

Mr. Charles L. Gowen: I don't --

Chief Justice Earl Warren: -- on the church (Voice Overlap).

Mr. Charles L. Gowen: I don't think is an in esse deliverance.

This is merely if you will read the statements and they are all in the record that they complained off.

If you'll -- part of it is Sunday school literature.

But if you will read the statement you will find that it is nothing more than a statement of the position of this general assembly, the next general assembly could have an entirely different position and there's nothing in it that says that any member of the church has to believe it or has to act on it.

It simply -- its no more than a deliverance of a minister whom -- and by - and the church might preach a sermon with which he didn't agree.

Chief Justice Earl Warren: A lot of them do that.

Mr. Charles L. Gowen: Frequently.

Thank you.

Chief Justice Earl Warren: Very well.