The Clergyman's Hand-book of Law: The Law of Church and Grave

by Charles Martin Scanlan

36. Test Oath, Attainder.—No test oath of any kind, whether religious or otherwise, can be required of a citizen of the United States. Therefore the test oath of Congress requiring an officer to swear that he never voluntarily bore arms against the United States, was held unconstitutional. Exclusion from any vocation on account of past conduct is punishment and contrary to the constitution on the subject of bills of attainder.[62] But there is a limitation to this rule to prevent the open violation of the laws of the United States or any State under the cloak of religion.[63]

37. Establishment of Religion, Free Exercise.—The first amendment to the United [pg 033] States constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

38. Sovereignty, States, Bigamy.—The courts have held that this provision applies to Congress only, and can not be construed to interfere with the sovereignty of the several States; that the constitutional guarantee of religious freedom was not intended to prohibit legislation against polygamy; and that section 5352 of the United States Revised Statutes against bigamy, is constitutional. Also, that on a trial for bigamy in Utah, a man who was living in polygamy was not competent to serve as a juror.[64]

39. Church of the Latter-Day Saints.—In 1851 the assembly of the so-called State of Deseret, which subsequently became the territory of Utah, incorporated “the Church of the Latter-Day Saints.” In 1887 Congress repealed the act of incorporation and abrogated the charter, which the Supreme Court held was within its plenary powers. The pretense of religious belief can not deprive Congress of the power to prohibit polygamy and all other open offenses against the enlightened sentiments of mankind.[65]

40. Crime, Religion.—The law prohibiting any person who is a polygamist or bigamist, or who teaches, advises, counsels, or encourages the same, from holding any office of honor, trust, or profit, is constitutional; and a crime is none the less so, nor less odious, because it is sanctioned by what any particular sect may designate as religion. A state has the right to legislate for the punishment of all acts inimical to the peace, good order, and morals of society.[66]

41. Donation, Hostile, Religion.—On the other hand the United States Supreme Court declared the legal right of donees of a college to make as a condition of the donation that all ecclesiastics, missionaries, and ministers of any sort, should be excluded from holding any station of duty in the college or even visiting the same. The condition being only negatively derogatory and hostile to the Christian religion, did not make the devise for the foundation of the college void.[67]

42. Christian Scientist.—A law requiring a person to be a physician to treat the sick, is constitutional; and the defense of a person who has no license to practise, that he is a Christian Scientist, is not good. Also, [pg 035] a parent must furnish a doctor for his sick child, notwithstanding that he believes in prayer cure.[68]

43. Protestant.—In the early days, under the constitution of the State, the courts of Massachusetts practically held that the Protestant religion was the religion of that State.[69] Also, the constitution of New Hampshire referred to different Christians, and the court in construing the terms “Roman Catholic” and “Protestant,” held that any one who did not assent to the truth of Christianity as a distinct system of religion, could not be classed as either. The court stated that Mohammedans, Jews, pagans, and infidels, are neither “Catholics” nor “Protestants.” The term “Protestant,” as used in the constitution of New Hampshire, includes all Christians who deny the authority of the Pope of Rome. When the children of Protestant parents renounce that religion, and voluntarily accept another, they cease to be Protestants.[70] At present under the constitution of New Hampshire, the legislature may authorize towns or parishes to [pg 036] provide for the support of Protestant ministers.[71]

44. Hospitals, Sisters, Appropriation.—In 1864, Providence Hospital, of Washington, was incorporated by an act of Congress, for general hospital purposes. In 1897, $30,000 was appropriated for the District of Columbia to put up two isolation buildings in connection with two hospitals in that city, to be operated as a part of such hospitals. Providence Hospital was selected as one, and because it was in charge of Sisters of the Roman Catholic Church, the right of Congress to make the appropriation was disputed. Among other things, Judge Peackham says: “Whether the individuals who compose the corporation under its charter happen to be all Roman Catholics, or all Methodists, or all Presbyterians, or Unitarians, or members of any other religious organization, or of no organization at all, is of not the slightest consequence with reference to the law of its corporation, nor can the individual beliefs upon religious matters of the various incorporators be inquired into.” The appropriation was “for two hospital buildings to be constructed in the discretion of the commissioners of the District of Columbia on the grounds of two hospitals [pg 037] and to be operated as a part of such hospitals.”[72]

45. Constitution, Rights.—The provisions in the constitution do not in any way interfere with property rights obtained by a church organization prior to its adoption.[73]