46. Aid, Contracts.—Under the constitution of the United States, Congress cannot make appropriations for nor give aid to any denomination. Also, similar provisions are in many of the constitutions of the States. However, many cases arise out of contracts which border upon these various rules, and in some States the constitutional provision of the State is such that the State Legislature may legislate concerning religion and give certain aid and support thereto. Paying rent to a congregation for a school-room is not an appropriation or aid to a church contrary to the constitution.[74]
47. Protestant Teacher, Tax.—Formerly every parish in Massachusetts was obliged to elect and support a Protestant teacher, and might erect churches and parsonages. To provide the expenses thereof, a tax [pg 038] might be assessed upon the polls of the inhabitants.[75] Until 1890 New Hampshire permitted a tax to be levied in towns for religious purposes. It is still legal under the New Hampshire constitution to tax the inhabitants for the purpose of supporting Protestant teachers, but not to support a teacher of any other denomination.[76] A section of land in every township in Ohio was set apart for religious societies, in which they all shared equally.[77] Vermont had a similar provision.[78]
48. Office, God.—The constitutions of Arkansas, Mississippi, North Carolina, South Carolina, and Texas, prohibit a man from holding office who denies the existence of a Supreme Being; and the constitutions of Delaware, Maryland, Kentucky, and Tennessee, make all clergymen ineligible to hold a civil office.[79]
49. Religious Liberty, Bible, Religious Garb, Wages.—The authorities are not uniform as to what constitutes a violation of religious liberty. The question of whether the reading of the Bible in the public schools is a violation of the constitution, is an open [pg 039] one in some States and in others the courts have passed upon it, some holding that it is a violation of the constitution,[80] and some holding that it is not.[81] The weight of authority seems to permit the reading of the “King James” Bible,[82] and where portions only are read, as in “reading books” prepared for school work, or where the children are not obliged to be present during the exercises, the cases seem to be unanimous that it is not a violation of the constitution.[83] In Pennsylvania the court held that while Sisters in their religious garb might be teachers in the public schools, they could not give instruction in the Catholic religion at the schoolhouse before or after school hours, or at any other time use the school building for religious purposes. Also, in Wisconsin the court decided that while a portion of a parochial school building might be leased for public school purposes and the Sisters be employed therein as teachers, religious exercises and instructions could not be given in [pg 040] such leased premises.[84] In New York it was held not only that Sisters could not wear their religious garb or pray in school, but that they could not collect wages for teaching.[85]
Chapter IV. Statutory Law
50. Wisconsin, Mississippi, New York.—The statutory law of the different States of the Union is so varied and the laws of one State are of so little interest to the people of another that it would be almost useless and beyond the boundaries of this work to give the substance of the various statutes. In some States there is a limitation upon the real estate that a church or charitable organization may hold, and in other States there is no limitation whatever. Wisconsin, perhaps, occupies the extreme of greatest liberality, by not only allowing full freedom in everything relating to religion and charity, but it further excepts from the limitation all rights of alienation of real estate granted or devised to a charitable association or to literary or charitable corporations organized under the law of the State. The State of Mississippi probably stands at the other extreme both in the narrowness of its constitution and statutory law, and prohibits any [pg 042] devise or bequest of any personal property or real estate in favor of any religious or ecclesiastical corporation or any religious or ecclesiastical society. Neither does it exempt a clergyman, physician, or lawyer, from examination as a witness concerning information that he obtained in the performance of his functions or duties as such. Its judges, however, are more liberal than its legislators, and I know of no instance in which a clergyman, physician, or lawyer, as a witness, was sent to jail for contempt of court for not divulging information obtained in his professional capacity. Probably New York has the most complete code[86] relating to religious corporations.
51. Real Estate, Parish, Diocese, Taxation.—It is very important that a congregation about to purchase real estate should examine and understand the statutory law of the State governing the powers and authority of the Church as a civil organization. In some States there is no special law for incorporating religious societies; while in most States there are special provisions therefor. For this reason, I emphasize the fact that no parish or clergyman is justified in organizing a congregation or purchasing land without first knowing the law of that particular [pg 043] State. But generally it is best that each congregation be incorporated and that its property be held in the name of the corporation, so that the debts of one corporation will not embarrass the diocese, and that bequests and gifts made to a church may be enforced in the courts. The proceedings to incorporate are fully stated in the statutes of each State. One of the things of the utmost importance is that any notice to be given must be given strictly as required by law.[87] Another is to incorporate in the way that avoids taxation.[88]
52. Riot, Damages.—Under a statute providing that a person whose property is destroyed by riot may bring suit against the county for damages, a corporation for religious purposes, as well as an individual, has a right of action.[89]