Nathan B. Oman (College of William & Mary Law School) has posted Preaching to the Court House and Judging in the Temple on SSRN. Here is the abstract:
A number of American religious denominations - Quakers, Baptists, Mormons, and others - have tried with varying degrees of success to opt out of the secular legal system, resolving civil litigation between church members in church courts. Using the story of the rise and fall of the jurisdiction of Mormon courts over ordinary civil disputes, this article provides three key insights into the interaction between law and religion in nineteenth-century America. First, it dramatically illustrates the fluidity of the boundaries between law and religion early in the century and the hardening of those boundaries by its end. The Mormon courts initially arose in a context in which the professional bar had yet to establish a monopoly over adjudication. By century's end, however, the increasing complexity of the legal environment hardened the boundaries around the legal profession's claimed monopoly over adjudication. Second, the decline of the Mormon courts shows how allegiance to the common-law courts became a prerequisite of assimilation into the American mainstream. While hostility to the secular courts had been a hallmark of a major stream of American Protestantism during the colonial period and the first decades of the Republic, by the end of the nineteenth century, Mormons' rejection of those courts marked them off as dangerous outsiders. Part of the price of their acceptance into the national mainstream was the abandonment of legal distinctiveness. Finally, the story of the Mormon courts also illustrates the importance of law for the development of religious beliefs and practices. Other scholars have documented the "public law" side of this story, showing how the federal government's effort to eradicate Mormon polygamy was central to Mormon experience in the last half of the nineteenth century and ultimately forced a revolution in Mormon beliefs and practices. The rise and fall of the Mormon court system, however, shows that private law could exercise no less of a power over the religious imagination.
And a bit more from the text:
The case of Leavitt v. Birdsall illustrates these problems.268 The Birdsall family moved from Nebraska to Utah in 1881, eventually settling in Sevier County, located in the central part of the Territory.269 Three years later the family converted to Mormonism. Members of the Birdsall family began trying to acquire land under various federal statutes. They purchased land from the Rio Grande railroad, which had been given huge tracts by Congress as a subsidy.270 They also claimed land under the Timber Culture Act, which granted a quarter section of public land to any person “who shall plant, protect, and keep in healthy growing condition for eight years ten acres of timber.”271 The land the Birdsalls claimed, however, had long been claimed by an early settler, who sold the property to a James Leavitt in 1883.272 Leavitt, who had “owned” the land for a decade in 1893 when the Birdsalls first claimed it, insisted later that they agreed to sell to him the portion he occupied thus quieting title.273 The Panic of 1893, however, kept Leavitt from obtaining financing, although he apparently gave the Birdsalls some cows in partial payment.274 In doing so, Leavitt seems to have been trying to follow the established Mormon policy for dealing with title conflicts between older settlers and claims based on federal statutes.
And skipping a bit:
Upon his return to Utah, Isaac Birdsall, acting as guardian for his daughter, sued Leavitt for the disputed land, arguing that the deed Cora had executed was invalid. The district court rejected his claim that she was mentally incompetent and that the elders who “labored” with her to comply with the church court’s decision exercised undue influence, writing:
All churches … have a right to discipline their members and … they have a right to handle such person so far as their fellowship in such … church is concerned. The members, however, are under no legal obligations to obey such regulation or decision of their … church organizations … .282
On appeal to the Utah Supreme Court, however, Birdsall prevailed.283 The Court held that “[Cora] at the time she executed the deed was mentally incapacitated and therefore incompetent to make the same.”284 The justices went on to signal their concerns with the church courts:
While courts do not interfere in disputes between churches and their members in respect to church or spiritual affairs, the property rights of the members will be protected as readily from church interference as from any other.
Oman's article tells a fascinating story that connects in interesting and important ways with contemporary theorizing about legal pluralism. Highly recommended.
