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.
Charles L. Gowen: Mr. -- I have --
Earl Warren: You have said -- excuse me, excuse me, I know it Mr. Page, you had already started your argument. You may proceed.
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 --
Earl Warren: That has no prohibition against what?
Owen H. Page: Prohibition about an individual church withdrawing.
Earl Warren: Oh, I see, yes.
Abe Fortas: Well, are you, is this argument addressed to a proposition that there was no implied trust?
Owen H. Page: No, sir. I was just rebutting yesterday that I thought they might have left this impression and I was --
Abe Fortas: I want to be clear about one thing.
Owen H. Page: Yes sir.
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 --
Owen H. Page: No sir, I do not.
Abe Fortas: I think there was an implied trust.
Owen H. Page: No, sir, I do not.
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.
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.
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.
Owen H. Page: That has -- that's -- yes sir.
William J. Brennan, Jr.: 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.
Owen H. Page: Yeah.
William J. Brennan, Jr.: Is that an inquiry where I am right?
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 --
Hugo L. Black: Would you mind -- would you mind stating to me first how was this trust created?
Owen H. Page: This trust Your Honor under the --
Hugo L. Black: Did anybody signed it --
Owen H. Page: No Mr. Justice, no sir, there was no -- not -- we are here --
Hugo L. Black: How was it created?
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 --
Earl Warren: Does your constitution provide that?
Owen H. Page: No sir. This is --
Earl Warren: Where do you get that?
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.
Earl Warren: Is that the only place you get it?
Owen H. Page: Yes sir.
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.
Owen H. Page: Yes sir. That's in the secu -- that is in the secular law.
Potter Stewart: And the --
Owen H. Page: There is no canonical laws supporting this in this particular case.
Potter Stewart: None at all.
Owen H. Page: Yes.
Potter Stewart: So this is a doctrine of a secular law.
Owen H. Page: Yes sir.
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.
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.
Hugo L. Black: Now, absent -- the doctrine of the implied trust, would this case get in to court?
Owen H. Page: No sir.
Hugo L. Black: And that's a creation of the court's opinion, do you think in Watson?
Owen H. Page: Yes sir. Subject to the modification and -- then Gonzales.
Hugo L. Black: Mixes the court up considerably in connection with the policies of the church at one time and another?
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.
Hugo L. Black: What is the factual matter?
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.”
Hugo L. Black: Suppose it does that, what does that have to do with the title of the land that some people --?
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.
Hugo L. Black: What if the people far distant?
Owen H. Page: Sir?
Hugo L. Black: It goes to people far distant from the church.
Owen H. Page: No sir.
Hugo L. Black: Well then, who would get it?
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.
Hugo L. Black: Under the --
Owen H. Page: And these are the people --
Hugo L. Black: -- that the unanimous, devoted there against the interest there?
Owen H. Page: No sir. They unanimously voted to sever their relationship with the Presbyterian Church, the two local --
Hugo L. Black: And he tell to keep that property from their own use.
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.
Earl Warren: Well, is this departure from the original dogma fall under that phrase of fraud or whatever it was?
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.
Earl Warren: But just what are the -- you were about to specify --
Owen H. Page: Yes sir.
Earl Warren: -- this is --
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 --.
Earl Warren: Yeah, but what other specifications of departure from that?
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.
Thurgood Marshall: Mr. Page, who do you think would be better able to decide that question, ecclesiastical court or ordinary jury, Savannah, Georgia?
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.
Thurgood Marshall: Before?
Owen H. Page: That's correct.
Thurgood Marshall: The --
Owen H. Page: The secular court.
Thurgood Marshall: Before the church courts have had an opportunity to pass for it.
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 --
Thurgood Marshall: Is that true when you join -- was that true when you joined?
Owen H. Page: Yes sir.
Thurgood Marshall: Do you submit it to it voluntarily?
Owen H. Page: I think when people submit --
Thurgood Marshall: Was that correct?
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 --
Thurgood Marshall: Well, what is the reason you didn't follow them through and -- within the church before going to the court?
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.
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?
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 --
Earl Warren: And what?
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.
Earl Warren: So --
Hugo L. Black: When you get down to the bottom here, is there anything in dispute at all except who controls this property?
Owen H. Page: No sir. That's basically --
Hugo L. Black: Nothing in the move?
Owen H. Page: No sir. That's (Voice Overlap) --
Hugo L. Black: But who could (Voice Overlap) --
Owen H. Page: Who has the right possession and used the property, that's correct.
Hugo L. Black: And they claim they have withdrawn so as -- from the mother church.
Owen H. Page: That's correct.
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?
Owen H. Page: Yes sir. So that it can possess that it's a --
Hugo L. Black: Then they'd have to get some other congregation --
Owen H. Page: That's correct.
Hugo L. Black: They'd have no congregation to go there.
Owen H. Page: That's correct. The sort of --
Hugo L. Black: -- have nothing involved on or dispute except the control over this property, the local people voluntarily.
Owen H. Page: That's right.
Earl Warren: Oh, I suppose there is a question of whether this is a departure from the doctrine of the church, isn't there?
Owen H. Page: Well, I'm worrying sir if that assessment hasn't been made.
Earl Warren: By whom?
Owen H. Page: Hasn't been made initially in the -- when it was presented in the lower court.
Earl Warren: Well, that's --
Owen H. Page: To impart, I mean.
Earl Warren: That's it, i'd like to asked you --
Owen H. Page: Yes sir.
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.
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.
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.
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.
Owen H. Page: They simply come down --
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.
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.
William J. Brennan, Jr.: On page --
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?
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 --
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?
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. -
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.
Owen H. Page: Yes. Well, I --
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.
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 --
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.
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 --
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.
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 --
Hugo L. Black: Oh, may I ask you --
Thurgood Marshall: When did they asked --
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?
Owen H. Page: Yes sir.
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?
Owen H. Page: The thrust of the charge was encompassed to all of them Mr. 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?
Owen H. Page: Yes sir.
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.”
Owen H. Page: Yes sir. And --
Abe Fortas: Is that -- was one of your charges and one other things that you -- on which you submitted proof, am I correct?
Owen H. Page: Yes sir. In addition of it. Let me just conclude on this one, I believe --
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?
Owen H. Page: Mr. Justice there was no evidence submitted on that so I think --
Earl Warren: What is -- one of the --
Owen H. Page: Yes sir.
Earl Warren: Maybe no evidence but you charged that to this one other thing and I suppose that went entered the judgment.
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.
Earl Warren: Well, I know but as a matter of fact, is that a departure?
Owen H. Page: Quite frankly Mr. Justice, I couldn't answer that.
Earl Warren: Why can't you answer it?
Owen H. Page: (Voice Overlap)
Earl Warren: Because you don't want to?
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.
Earl Warren: Well, but you said -- tell us this other things are departures.
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.
Earl Warren: Are there any Presbyterian lawyers here on each side.
Owen H. Page: No sir, I don't think so.
Thurgood Marshall: Would any Presbyterians on the jury?
Owen H. Page: No sir.
Thurgood Marshall: They decided the non-Presbyterians decide it, what was actually the dogma of the Presbyterian Church.
Owen H. Page: The -- I think that what the -- under the --
Thurgood Marshall: You -- isn't that --
Owen H. Page: -- tragic --
Thurgood Marshall: Isn't that statement correct?
Owen H. Page: Yes but that was under the instructions of the court. Let me just conclude this.
Thurgood Marshall: Was the court -- was the judge a Presbyterian?
Owen H. Page: No sir. The judge was not a Presbyterian.
Thurgood Marshall: So everybody else --
Hugo L. Black: A Presbyterian judge be disqualified from sitting in a case for this thing?
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.
Hugo L. Black: Does the record show, how much this land on which this church is located?
Owen H. Page: Yes sir. I think it does.
Hugo L. Black: What is it?
Owen H. Page: In answer to it, it would run together approximately a hundred and seventy thousand dollars.
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.
Owen H. Page: The application of it.
Hugo L. Black: Yes. Now, let's assume --
Owen H. Page: That's a factual determination.
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.
Owen H. Page: That's correct sir.
Byron R. White: And you wouldn't challenge that implied trust at all on any -- on the First Amendment grounds.
Owen H. Page: That's right.
Byron R. White: And then the property would go to the mother church.
Owen H. Page: If -- unless there was a violation of the trust.
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.
Owen H. Page: Well, the federal courts haven't held that Mr. --
Byron R. White: Let's assume that we held it though.
Owen H. Page: Well, --
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.
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 --
Byron R. White: Well, what would you say though?
Owen H. Page: I would say, first --
Byron R. White: I know you would say we wrong.
Owen H. Page: And I would employ you not to do that.
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.
Owen H. Page: I can take exception to do that under the precedence that have preceded this case here.
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.
Owen H. Page: Well sir, I certainly welcome that, I play a little tennis because it's nice to win. Thank you sir.
Earl Warren: Mr. Gowen.
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 --
Earl Warren: How about a pretty good vote?
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.
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?
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 --
Byron R. White: On what basis would you -- would your claim then rest?
Charles L. Gowen: The claim would rest on the implied trust that is recognized in the similar Presbyterian Church in Watson versus Jones.
Byron R. White: But this would be a secular -- a trust implied by the secular law.
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.
Byron R. White: What would be your remedy to get possession of the church?
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 --
Byron R. White: But willing to enforce the ecclesiastical decision.
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.
Earl Warren: Mr. Gowen you were going to give us the citations of --
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).
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.
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.
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 --
Charles L. Gowen: I don't --
Earl Warren: -- on the church (Voice Overlap).
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.
Earl Warren: A lot of them do that.
Charles L. Gowen: Frequently. Thank you.
Earl Warren: Very well.