Introduction
The early American republic saw the disestablishment of government-supported churches in the original colonies. This was a decentralized process, one that in the ordinary telling began during the American Revolution and was completed by the early 1830s. According to the traditional story, the body of law produced by this so-called first disestablishment fostered freedom and religious pluralism in the new republic. On this view, the first disestablishment ended just at the height of the so-called Second Great Awakening, a religious upheaval that produced a welter of new sects and resulted in various forms of evangelical Protestantism becoming the dominant religion in the United States.Footnote 1 It also spawned a host of new sects. Among the new religious movements that emerged from the Second Great Awakening, perhaps none has proven as successful as Mormonism.Footnote 2 Indeed, one might point to the rise of the Church of Jesus Christ of Latter-day Saints (hereafter the LDS Church) as one of the fruits of the religious freedom vouchsafed by the first disestablishment. This article, however, tells a different story, one that recasts America's first disestablishment as a much longer process involving continuing controversy throughout the nineteenth century. Far from being triumphantly concluded by the early 1830s, for the remainder of the nineteenth century government actors targeted churches that rejected the congregational ecclesiology and limited sphere imposed on them by the legal regime of the first disestablishment.
The scriptures of the LDS Church mark its beginning with a legal event. They speak of “The rise of the Church of Christ in these last days . . . it being regularly organized and established agreeable to the laws of our country; by the will and commandments of God.”Footnote 3 From its legal beginnings in April 1830, the LDS Church struggled to find a legal personality. In the lifetime of its founder Joseph Smith, it was incorporated under the laws of two states—and perhaps a third—in an unsuccessful effort to find a legal model that would accommodate its ecclesiastical ambitions. After the murder of Smith in 1844, the Latter-day Saints emigrated en masse beyond the borders of the United States to Utah, in what was then Mexican territory. Once there, they organized a government that provided a more congenial legal existence for the LDS Church. However, with the integration of Mormon country into the United States, these legal structures drew the ire of Congress, which wished to impose the legal model of the first disestablishment on the Latter-day Saints. Thus, began a three-decade-long battle between the federal government and the Latter-day Saints over the nature of their legal personality. The final skirmishes in this legal war were not completed until the opening decade of the twentieth century. At the heart of these battles was a fundamental disagreement between the Latter-day Saints and the broader currents of American law over what it meant to be a church.
This article provides a history of the Church of Jesus Christ of Latter-day Saints as a legal entity.Footnote 4 In so doing, it makes two contributions to our understanding of legal history. First, it recasts the story of the first disestablishment, revealing that it was longer lasting and more contentious that has often been assumed.Footnote 5 The first disestablishment produced a body of law governing churches encoded with largely congregationalist, Protestant assumptions about church government and the role of religion in society. In this context, “congregationalist” is not a denominational term but rather refers to a broadly Reform ecclesiology centered on the individual, lay-controlled congregations.Footnote 6 Unsurprisingly, these assumptions created problems for the Latter-day Saints, who did not share the law's ecclesiological commitments. The history of the LDS Church's corporate existence is thus a useful corrective to whiggish stories that emphasize religious freedom and fail to recognize how the first disestablishment created mechanisms for controlling and coercing churches that strayed too far from its basically Reformed assumptions. This history also illustrates the ways in which, far from being settled in the early 1830s, the legal structures of the first disestablishment continued to spawn hard-fought battles into the late nineteenth and even early twentieth centuries.
The Latter-day Saints were not the only religious group that struggled against nineteenth-century corporate law. The Roman Catholic hierarchy found American law uncongenial as well. Controversies involving Catholics, however, tended to center on questions of internal church governance with lay Catholics wielding American law against the bishops in battles over control of parish affairs, whereas the Latter-day Saints found restrictions on property and corporate purposes more irksome.Footnote 7 Finally, there were some Protestants who felt that American law did not go far enough in disestablishing religion because it continued to allow churches to incorporate at all.Footnote 8
Second, this article contributes to our understanding of Mormon history by providing the first comprehensive history of the LDS Church as a legal institution. This story reveals legal personality as one of the points of legal conflict between the Latter-day Saints and American society. This insight, in turn, is a useful corrective to narratives that emphasize polygamy and theocracy as the points of legal contention.Footnote 9 An understanding of the history of the LDS Church as a legal entity, however, supplements these stories by revealing how the hard-fought legal battles of the late nineteenth century can be seen as an extension of the process of legal disestablishment that began during the American Revolution.
The Legacy of America's First Disestablishment
In 1774, nine of the thirteen colonies had established churches.Footnote 10 What precisely establishment meant as a legal matter varied from colony to colony. In all of these colonies, established churches benefited from tax revenues, grants of valuable land, or both. In some colonies, established churches had a monopoly on certain activities, such as poor relief or the performance of legally valid marriages.Footnote 11 The most commonly established denomination was Anglicanism, while in New England, Congregationalists dominated, although in theory the principle of local church governance meant that multiple establishments were possible. In early nineteenth-century Massachusetts, this structure of local options led to intense legal battles when Unitarianism divided old-line Congregationalist churches across New England.Footnote 12 All colonies regulated religion to a greater or lesser extent to support Protestant Christianity. Blasphemy laws restricted religious speech, preaching without a license was an offense in some jurisdictions, and voting and holding public office were often contingent on subscribing to some version of Christianity.Footnote 13
States began disestablishing churches during the Revolution and continued this long process in a variety of ways until formally completing the process in the 1830s. Prior to the passage of the Civil War amendments and their interpretation in the twentieth century, the Establishment Clause of the First Amendment to the U.S. Constitution, which provided that “Congress shall make no law respecting an establishment of religion,”Footnote 14 applied only to the federal government.Footnote 15 Disestablishment was thus a matter of state corporate law rather than federal constitutional law.Footnote 16 This was because incorporation had been, in large part, the mechanism for establishment. The corporation did not become the dominant form of private business organization in America until after the Civil War, and in the early republic corporations were thought of as public institutions whose primary role was to serve the common good. As one Virginia judge put it in the early nineteenth century, a legitimate corporation could not have a purpose that was “merely private or selfish, if it is detrimental to, or not promotive of the public good.”Footnote 17 Incorporation also required a special act of the legislature. Thus, for a church to be incorporated marked it out as the recipient of special favor from the state in view of the church's presumed promotion of the public good.
Broadly speaking, states took two approaches to disestablishment. Some states simply disincorporated all churches, while others made the corporate form available to all churches.Footnote 18 Both approaches sought to diminish the social power of religious institutions by limiting the amount of property they could hold.Footnote 19 These so-called mortmain provisions assumed that churches were essentially congregational structures and needed no more than a meeting house, a parsonage, and a small glebe (an income-producing parcel of land with which to pay the minister).Footnote 20 In addition, general incorporation statutes created mandatory governance structures for churches.Footnote 21 These rules followed broadly Reformed, congregational assumptions about church government. Each incorporated congregation was legally independent of any denominational or supra-congregational structure. The law conferred ultimate power on the laity rather than the clergy, who were to be treated as employees of the corporation and subject to the control of a lay board of trustees.Footnote 22 The result was a legal regime shaped by strong ecclesiological assumptions that were congenial to Calvinists and evangelical Protestants but more difficult for hierarchical churches, such as the Roman Catholic and the Episcopal churches.Footnote 23 This preference was not accidental. In the early republic, both Catholicism, with its ties to Rome, and Anglicanism, with its ties to England, were seen as threats to republican government that should be either suppressed or sharply limited. Indeed, in 1779 the New York legislature went so far as to adopt a bill of attainder sentencing the royalist Anglican rector of Trinity Church in New York and his wife to death.Footnote 24
Joseph Smith and the Search for Legal Personality
The Church of Jesus Christ of Latter-day Saints was thus born into a world in which the corporate personality of churches was both a chief site of legal conflict over disestablishment and the primary mechanism by which the state regulated religious communities. During the lifetime of Joseph Smith, the LDS Church spanned four different American jurisdictions: New York, Ohio, Missouri, and Illinois. Each of these states took a somewhat different approach to disestablishment, and in all of them the nascent Mormon movement struggled to find a workable legal personality. There were two basic problems. First, Latter-day Saints gathered to specific locations to create godly communities, a process they referred to as “building Zion.” Not only did these utopian ambitions generate at times deadly hostility from neighbors, Zion building deeply involved the LDS Church in community-building projects far beyond the ken of the first disestablishment's legal regime. Second, the LDS Church gradually developed an ecclesiology focused on hierarchical rather than lay control, and, in Smith's lifetime, it had relatively ill-defined congregational structures, making it a poor fit with the law's vision of ecclesiastical structure and government.
New York
The New York statute of which Joseph Smith and his associates availed themselves in 1830 was the result of more than a century of conflict over the legal status of churches under New York law.Footnote 25 The colony of New Amsterdam, founded by the Dutch West India Company, in 1625 consistently subordinated its nominal support for the Dutch Reformed Church to commercial expediency by adopting a tolerant stance toward religion. In 1664, the English acquired the colony in the Second Anglo-Dutch War and renamed it New York. In the late seventeenth and early eighteenth centuries, when royal officials sought to create an established Anglican church in the colony, their efforts met resistance from largely secular commercial interests and dissenting sects. Nevertheless, royal charters and provincial legislation granted benefits to the Church of England, including the incorporation of Trinity Church in New York City, the wealthiest and most important Anglican congregation in the colony. Whether or not Anglicanism was in fact the established church of the colony, however, was hotly contested until the Revolution.Footnote 26 The state's 1777 constitution provided that “the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind,”Footnote 27 and the state constitutional convention published a statement that the new constitution rejected “all such . . . statutes and acts . . . as may be construed to establish or maintain any particular denomination of Christians or their ministers.”Footnote 28 In 1784, the legislature abrogated the provisions in previously granted corporate charters that had given churches taxing authority.Footnote 29 The New York legislature also took the radical step of allowing any religious society to incorporate without legislative action merely by electing trustees and filing a certificate containing their names and the name of the church with local officials.Footnote 30 This law was repeatedly amended in succeeding decades, but it provided the basic framework under which Smith organized his new church in 1830.
The traditional date and place for the incorporation of the Church of Christ, later renamed the Church of Jesus Christ of Latter-day Saints, is April 6, 1830, in Fayette, New York. Because no documents from 1830 attesting this event have survived, some writers have suggested that no such legal organization ever occurred.Footnote 31 A revelation purportedly given to Joseph Smith on April 6, 1830, declares that the church was organized “agreeable to the laws of our country,”Footnote 32 but the original document has not survived, and the earliest extant copy of the revelation dates from March 1831.Footnote 33 It is possible that the certificate of incorporation was filed and subsequently lost or destroyed. It is also possible that Smith sought to incorporate his church but, through ignorance or oversight, never filed the required paperwork. Nevertheless, there is evidence that at least an attempt at incorporation was made in New York. Later records insist that there were six original “members” of the church, although more than six people had been baptized into the movement.Footnote 34 The number makes sense, however, if it refers not to baptized members but to the trustees required by New York law.Footnote 35 It is entirely possible that Smith and his associates failed to comply with New York law, but the best evidence suggests that they were attempting to do so.Footnote 36 David Whitmer, who was present, insisted that, “On the 6th of April, 1830, the church was called together and the elders acknowledged according to the laws of New York.”Footnote 37
In 1830, incorporation conferred three concrete legal benefits on New York churches. The first was legal personality, which simplified the process of obtaining property and incurring debts. The second was the clear segregation of the church's assets from those of its members and officers. The third was perpetual succession, which avoided conflicts with heirs and creditors upon the death of a trustee.Footnote 38 In 1830, however, Joseph Smith's nascent church held no property. Its only real economic activity was the effort to publish the Book of Mormon by means of a formal business partnership between Smith and his associate Martin Harris.Footnote 39 The New York organization of the LDS Church thus presents a puzzle. What were the movement's problems for which incorporation would have been a solution? Why did the church seek a legal existence rather than simply operate as an unincorporated religious society? Indeed, prior to April 6, 1830, this is precisely what Smith and his followers had been doing. Smith's revelations speak of a “church” as early as March 1829,Footnote 40 he began performing baptisms by May 1829, and in June his associate Oliver Cowdrey drew up “Articles of the Church of Christ”Footnote 41 to provide a governing structure. As David Whitmer later wrote, “we were as fully organized—spiritually—before April 6th as we were on that day.”Footnote 42 Why, then, incorporate?
The most likely reason is that the attempted incorporation was expressive. Gaining legal status was less a matter of solving concrete problems than using the law to define the new church in the minds of both believers and outsiders. Smith's first revelations about a church spoke of an entity that already existed, and they suggested the universal Christian church rather than a particular denomination or institution.Footnote 43 These earliest revelations, however, predated the 1830 publication of the Book of Mormon, which contains a more concrete vision of an institutionalized church. Indeed, Oliver Cowdery's 1829 articles quote extensively from the Book of Mormon and take it as an ecclesiological model. Thus, between 1828 and 1830, what had begun as a diffuse, prophetic movement centered on Smith increasingly defined itself as an institutionalized church. The act of incorporation in 1830 would have signaled to believers this shift. This is how David Whitmer, who came to regard the institutionalization of the LDS Church as a spiritual disaster, saw the April 6, 1830, organization.Footnote 44
Incorporation also lent respectability to the movement. Mormonism had begun life as a legally disfavored variety of religion. Smith, his family, and his closest earliest associates were all deeply involved in so-called folk magic.Footnote 45 While Smith later tried to distance himself from these practices, in reality they were integral to a spiritual life that included his visions and the translation of the Book of Mormon. His use of a “seer stone” in 1826 to find lost treasure had resulted in being charged as a “disorderly person,” although he seems to have been found not guilty.Footnote 46 The 1788 New York law under which he was prosecuted was based on the English Witchcraft Act of 1735 and applied to “all persons pretending to have skill in . . . crafty science. . . .”Footnote 47 While such folk magic drew the scorn of elites as well as possible legal censure, for many believers it marked the return of spiritual gifts and revelation.Footnote 48 Nevertheless, Smith was in search of religious respectability. Incorporation had been a mark of religious establishment in New York before the Revolution, and after the New York legislature threw open the doors of establishment to all religious societies in 1784, incorporation offered Smith's nascent movement legal respectability.
Finally, Smith's Church of Christ was contemplating the legal benefits conferred by the State of New York. Under New York law, property could be held in trust without a corporation, and marriages could be performed by “ministers of the gospel and priests of every denomination.”Footnote 49 But since it was not precisely clear what was necessary to be recognized as a minister of the gospel, formal incorporation would provide evidence for that recognition. Nor were the benefits of being a recognized minister entirely hypothetical. On July 7, 1830, the Palmyra Reflector reported: “A disciple of the ‘Gold Bible,’ lately called on an assessor and demanded an exemption from taxation, to the amount of $1500—alleging that he was a Minister of the Gospel, at the same time producing a certificate, signed by Jo. Smith, and Oliver Cowdry, by way of proof—the course to be taken in this matter has not as yet transpired.”Footnote 50 New York exempted the property of “every minister of the gospel, or priest, of any denomination” from taxation up to the value of fifteen-hundred dollars.Footnote 51 Again, while the statute is silent on incorporation, legal formality would have strengthened the claim to be a minister or priest.Footnote 52
Prior to the Revolution, incorporation was the chief legal vehicle of religious establishment. Rather than dispense with incorporation, New York disestablished its church by making the mechanism of establishment available to all. In effect, all religions could obtain the special recognition that had previously been available only to favored denominations. For a widely disparaged and struggling religious group such as the followers of Joseph Smith, incorporation thus provided a legal mechanism for claiming respectability. Because in 1830, Smith's movement had yet to articulate a hierarchical ecclesiastical structure or any wide-ranging social ambitions, the price of respectability in terms of legal restrictions was not yet apparent. The narrow field of operations that the law created for legally incorporated churches, however, would become apparent as the LDS Church moved west and pursued increasingly grandiose ecclesiastical projects.
Ohio
Early in 1831, Smith relocated the headquarters of the LDS Church to Kirtland, Ohio, where Mormon missionaries had baptized a large number of converts the previous year. In Ohio, the LDS Church's legal affairs became far more complicated than in New York. The governing structures and activities of the Latter-day Saints conformed with Reformed models in some ways but, more importantly, began to depart from them. This divergence resulted in a series of unstable legal entities, none of which used the corporate model that Smith and his associates had used in New York.
For the first time, the LDS Church in Ohio engaged in the prototypical legal transaction for a church: the purchase of real property and the construction of a meetinghouse, namely, the Kirtland Temple. The Latter-day Saints acquired the property on which the Temple was to be built through a confused series of transactions,Footnote 53 which included the execution of a deed in May 1834 by John and Elsey Johnson, a Latter-day Saints couple, conveying the temple site to Joseph Smith as “President of the Church of Christ.”Footnote 54 In 1819, Ohio had passed a general incorporation statute for churches modeled on New York's law.Footnote 55 There is no evidence that the LDS Church sought to avail itself of this law. In 1824, however, Ohio passed a second law providing that any property deeded to “any person as trustee or trustee in trust for any religious society”Footnote 56 should be held in perpetual succession by the religious society and that the trustee “shall have the same power to defend and prosecute suits . . . and do all other acts . . . as individuals may do in relation to their individual property.”Footnote 57 In effect, this law meant that property held in trust for an otherwise unincorporated religious society would be treated as though it were held by a corporation. In 1834, the Ohio Supreme Court treated the conveyance of property under this law to a Baptist congregation in Dayton as creating a corporation.Footnote 58 Although the meaning of the deed to Smith was never ultimately decided in court,Footnote 59 in all likelihood the deed inadvertently created a corporation under Ohio law at the time.Footnote 60
Kirtland also saw the divergence of Smith's religious vision from that encoded within the law of religious corporations. Smith had begun to proclaim that the children of God would be gathered and that Zion was to be built in Jackson County, Missouri. The LDS Church's conception of its own mission thus expanded beyond congregational structures devoted to maintaining houses of worship.Footnote 61 Rather, the church became involved in defining a new people and creating economically viable communities in which to build the city of God. Thus, the most important manifestations of the LDS Church's legal personality in Ohio were a business partnership and a bank rather than a religious corporation.
The business partnership was called the United Firm.Footnote 62 In New York, Smith had already revealed a preference for pursuing religious missions outside of religious corporate law when he formed a business partnership with Martin Harris to publish the Book of Mormon. Smith massively expanded this model in Ohio, forming a partnership with the leaders of the nascent church that encompassed three “firms.” The first of these was centered on the Newel K. Whitney store in Kirtland and focused on the economic development of the town for the benefit of the Latter-day Saints. The second firm was located in Jackson County, Missouri, and served similar purposes. Finally, the “literary firm” was devoted to the publication of LDS Church newspapers and a collection of Smith's revelations. At the time, neither Ohio nor Missouri law allowed for general incorporation of business enterprises, so as a legal matter these firms were part of a single general partnership. The partners drew up a bond, or contract, to govern the business.Footnote 63 By 1834, however, in large part because of the violent expulsion of the Saints from Jackson County, the United Firm had failed as a business entity. It was dissolved, internal debts among the partners were cancelled, and the remaining property was distributed to its members.Footnote 64
In Kirtland, the LDS Church also sought to organize a bank, the Kirtland Safety Society,Footnote 65 to assist with gathering the Latter-day Saints by providing credit and liquidity and assisting in financing construction of the Kirtland Temple. Ohio law required that banks receive a charter of incorporation from the state legislature to issue notes, and initially Smith and his associates took this route. They drew up a constitution for their bank and petitioned the legislature for a charter.Footnote 66 When this effort proved unsuccessful, Latter-day Saint leaders organized the Kirtland Safety Society as a joint-stock company, drawing up a new set of “articles of agreement.”Footnote 67 This unincorporated entity functioned much like a partnership, with unlimited liability for the stockholders and no separate legal personality for the bank.Footnote 68 While it initially sold stock and issued notes backed by the resulting capital and loans, the Safety Society rapidly ran into trouble. In part, the bank was built on the expectation of increasing land prices, an expectation disappointed by the Panic of 1837, when land prices became depressed. More importantly, however, there was a serious question under Ohio law about the legal enforceability of the notes that the Society had issued as a joint-stock company.Footnote 69 As a result, the notes rapidly traded at a steep discount, which made it difficult for the Society to build up its asset book by issuing loans. In the wake of the bank's failure, Joseph Smith and his associates were swamped in lawsuits.Footnote 70
The Mormon experience in Ohio is striking in that the Latter-day Saints abandoned the legal regime that they had previously used in New York. Ohio law closely tracked New York law, and Smith could have sought incorporation in Kirtland. Church corporations, however, simply could not engage in the kind of economic development that, because of Latter-day Saints efforts to “build Zion,” became central to Mormon religion in this period. Thus, rather than using the legal regime created by the first disestablishment, the Latter-day Saints tried to use and sanctify the legal mechanisms of commerce: the business partnership, the banking corporation, and the joint-stock company.
Missouri and Illinois
In Missouri, the LDS Church had no legal personality for the simple reason that the Missouri Constitution explicitly provided that “no religious corporation can ever be established in this state.”Footnote 71 In New York, disestablishment after the Revolution took the path of opening the corporate form to all comers. In Virginia, however, disestablishment had taken a different route, one that became the model for Missouri. In 1786, the Virginia Statute for Religious Freedom, authored by Thomas Jefferson, abolished tax support for churches.Footnote 72 The following decade, the Virginia legislature repealed laws that had established or incorporated religious sects, “all of which is inconsistent with the principles of the constitution, and of religious freedom, and manifestly tends to the re-establishment of a national church.”Footnote 73 Accordingly, disestablishment in Virginia meant that churches had to be organized as a trust and lacked any distinct legal personality, with all church property held by trustees. This, was the model for Missouri law. It would be an oversimplification to call this a “southern” model of disestablishment, as some southern states did allow churches to incorporate.Footnote 74 This different approach, however, does mark the difference in legal culture between New York, where the LDS Church emerged, and Missouri. The goal of Missouri law, following Virginia, was to keep churches even more institutionally weak than they were in New York—more disestablished, as it were. Coupled with the experience in Ohio, this meant that for most of Joseph Smith's career after 1831, there was no effort to create a legal entity for the LDS Church as such. Legally, the temporal affairs of the church were managed either by leaders acting individually or through business partnerships. That changed when the Latter-day Saints founded their city of Nauvoo in Illinois.
The Latter-day Saints arrived in Illinois in 1839 as refugees from Missouri.Footnote 75 Eventually they settled on the tiny village of Commerce, Illinois, as their gathering place. Renamed Nauvoo, it would be the headquarters of the LDS Church until the Saints abandoned the city in 1846. During the final stages of their Missouri sojourn, the Latter-day Saints sought to acquire title to land by settling on public land and making improvements. Technically they were squatters, but following a well-established American pattern, they expected the federal government to pass a preemption statute that would allow them to purchase the public land at favorable prices because of their improvements. Indeed, one of the factors motivating those who ultimately drove the Saints from northern Missouri was a desire to take possession of improved Mormon land and thereby acquire the favorable preemption rights, something that the leaders of the mob that drove out the Latter-day Saints were ultimately able to do.Footnote 76 In contrast, the Latter-day Saints acquired their real property in Illinois by purchase. They bought large tracts of land on and near Nauvoo on credit, mainly from land speculators.Footnote 77 These large lots of land were then to be subdivided into small parcels and sold to the gathering Saints so that the original debt could be repaid.
The purchases were made through agents acting on behalf of the LDS Church.Footnote 78 The church, however, lacked any legal existence under Illinois law, and eventually much of this property was titled in the name of Joseph Smith, who found himself exposed to massive liability on the debt used to purchase the land. Beginning in 1840, the leaders of the LDS Church made efforts to create a more formal legal existence for the church. The state legislature that year considered a slew of bills related to the Latter-day Saints, including passage of the Nauvoo charter incorporating the Mormon city rising on the banks of the Mississippi.Footnote 79 On December 14, state senator Sidney Little, who represented Hancock County, where Nauvoo was located, introduced a “Bill to Incorporate the Church of Jesus Christ of Latter-Day Saints.”Footnote 80 The bill listed the names of Smith and a number of other LDS Church leaders and declared that they and “members of the Church of Jesus Christ of Latter Day Saints, commonly called Mormons, are hereby created, constituted, and declared to be a body corporate and politic.”Footnote 81 The law would have made the First Presidency, the senior governing council of the church, “in conjunction with the General Assembly of said church, or the general Conference of said church . . . the law-making department of such corporation for all secular purposes.”Footnote 82 The First Presidency was to comprise “trustees in trust for the church, for the acquisition, regulation, and disposal of” church property. The corporation was given “full power and authority to do all such acts as they may consider necessary for the welfare and prosperity of said church,” with the proviso that “no act shall be done repugnant to, or inconsistent with, the Constitution of the United States, or the constitution and laws of this state.”Footnote 83
The bill was never passed, and the absence of any documents discussing the proposal make it difficult to interpret its significance.Footnote 84 In 1835, Illinois had passed a general incorporation statute for churches, and some historians have speculated that the incorporation bill was dropped when this earlier statute was brought to the sponsors’ attention.Footnote 85 This explanation, however, overlooks the importance of the distinctions between the 1840 bill and the kind of corporation permitted by the 1835 law. Under the 1835 law, religious corporations could own no more than five acres, and the property had to be used “for the purposes of religious worship.”Footnote 86 In contrast, the proposed incorporation of the LDS Church would have allowed it to hold unlimited amounts of property for any purpose not otherwise prohibited by law. It is worth noting that under Illinois law, the uses to which religious corporations could put their property were sufficiently restricted that a few years later, in 1845, the legislature felt it necessary to explicitly authorize religious societies to lease their property if they found “it more convenient to occupy for worship some other lot or building.”Footnote 87 It is possible, of course, that the very broad powers that would have been granted to the LDS Church by the proposed incorporation were accidental, arising from the legal ignorance of those who drafted the bill. However, it is striking that at the time, Smith and the LDS Church were involved in what amounted to a massive real estate development of Nauvoo. Such a project would have been clearly beyond the legal power of a corporation created under the 1835 act, but the proposed law would have provided the LDS Church with precisely the legal powers it needed.
The proposed incorporation also raises another intriguing possibility. Prior to the passage of the 1835 act, the Illinois legislature had not granted a special act of incorporation to any church. In New York, however, such special acts were not unknown, even after the passage of the first general incorporation statute for churches in 1784. Thus, in 1830, when Smith first attempted to legally incorporate his movement, there continued to be a de facto legal hierarchy among New York's churches. Most religious corporations, for example, were limited to holding three thousand dollars’ worth of property;Footnote 88 however, a number of powerful congregations had obtained special statutes allowing them to hold as much as three times that amount of property.Footnote 89 Likewise, an 1813 act for religious incorporation contained special procedures to accommodate the operations of the powerful Episcopal and Dutch Reformed churches.Footnote 90 It is possible that by seeking a special act of incorporation in 1840, rather than using the Illinois general incorporation statute, Smith and his followers were trying to signal Mormonism's status as a similarly special and preferred religion, at least in Nauvoo. This might also explain why the state legislature refused to pass the law. The preamble to the 1835 law suggests that the Illinois legislature was sensitive to the kind of special privileges common in New York, which could be seen as a kind of quasi-establishment. “All religious societies,” said the preamble to the Illinois law, “of every denomination, should receive equal protection and encouragement from the legislature, and no one society be granted exclusive privileges.”Footnote 91 Exclusive privileges, however, are precisely what the proposed incorporation would have granted to the LDS Church.
After the failure of these efforts, the LDS Church availed itself of the general Illinois incorporation statute. At a special conference of the church held on January 30, 1841, the membership voted to elect Smith as sole trustee for the church. A week later, Smith filed a certificate of incorporation with the Hancock County clerk. In the document, Smith declared himself to have been elected the sole trustee of the church during his life and vested with plenary powers.Footnote 92
Illinois law, following New York and that of most other jurisdictions, sought to enshrine the principle of lay control over ecclesiastical government while limiting the ability of ecclesiastical corporations to own property. In this it followed the largely congregational assumptions about church government that lay behind the first disestablishment's legal regime. To a certain extent, Latter-day Saints ecclesiology, as it developed during Smith's lifetime, contained echoes of this assumption. In particular, the authority of the general conference of the church to ratify or veto actions by the LDS Church hierarchy was largely consistent with this approach to church government. By the Nauvoo period, however, Smith and his inner circle were developing a vision of ecclesiastical power increasingly centered on priestly authority rather than lay supremacy.Footnote 93 In addition, the LDS Church continued to sit at the heart of the real estate transactions that formed the life blood of Nauvoo's economy. As a result, the newly incorporated church almost immediately began taking actions that exceeded its authority under Illinois law.
The 1835 act provided that “Every society . . . shall have the power to provide for filling vacancies which may happen in the office of trustee and also to remove trustees from office.”Footnote 94 The certificate filed by Joseph Smith, however, purported to remove this power from the general membership, ensuring that succession as trustee would be confined to the First Presidency. More important, Joseph and Emma Smith began executing deeds to transfer real property that he had held as an individual to himself as trustee for the church. Emma's signature was likely required to extinguish her dower rights to the property.Footnote 95 As a result, the LDS Church soon purported to own real property far in excess of the five-acre limit contained in the 1835 statute. Furthermore, this property was being held for sale rather than “for the purposes of religious worship” as provided for by the statute.
The 1841 incorporation also gave birth to a quasi-religious office later retained in the Mormon movement: the trustee-in-trust. At common law, it is unexceptional to convey property to “A, as trustee, in trust for B.” Such a deed splits legal and equitable ownership of the property, creating a trust in which A has title to the property but is required to manage it exclusively for B's benefit. General incorporation statutes borrowed concepts from trust law. Thus, the 1835 Illinois statute explicitly referred to the agents of a religious corporation as “trustees.” However, the idea of “trustee-in-trust” as a distinct office was a Mormon neologism, a truncating of the traditional conveyancing language of trusts into something new.Footnote 96 The trustee-in-trust became a quasi-ecclesiastical office designating the person with formal control over LDS Church assets. This can be seen, for example, in the fact that the term “trustee-in-trust,” as an office or legal status, never appears in American case law except in reference to the Latter-day Saints.Footnote 97 In the early twentieth century, the laws of Utah and surrounding states in the west with large Mormon populations would treat the term as referring to a religious rather than a legal office.Footnote 98
The legal structure created in 1841 ultimately proved ineffective. Matters came to a head when a Nauvoo-based steamboat sank.Footnote 99 Joseph Smith had guaranteed a loan to the ship's promoters, and after the steamboat sank, Smith became liable on the note. In 1842, Congress passed one of its recurrent nineteenth-century bankruptcy laws, and Smith sought to take advantage of the law.Footnote 100 At the time of his death, his bankruptcy petition was languishing in federal court and would not be finally resolved until the 1850s. The court ultimately found that the efforts to segregate Smith's personal property from the property of the LDS Church had been unsuccessful because of the mortmain provision in the 1835 statute. The chief beneficiary of this failure was his widow, Emma Smith. Because the conveyances from Joseph Smith as an individual to Joseph Smith as trustee for the LDS Church were found to be invalid, Emma Smith could assert her dower rights against the subsequent transferees of the property. Had Smith not been murdered, it is unlikely that the legal structure under which the LDS Church sought to promote the gathering to Nauvoo by selling real estate to new immigrants could have continued. Ultimately, Illinois law simply would not permit a church to engage in such expansive activity. Churches were to confine their activities to Sunday worship. They could dream of Zion, but church corporations could not implement that theology by building new cities of God in the wilderness.
Legal Personality and the Battle with the Federal Government
In 1851, the legislature of the State of Deseret, the de facto government created by the Latter-day Saints upon their arrival in the Great Basin, granted the LDS Church a corporate charter that eliminated the issues that had bedeviled it for the previous two decades.Footnote 101 It gave the LDS Church unlimited ability to hold property but did not break completely with American church law of the time. It conceptualized the LDS Church as the corporate expression of its members and contemplated ultimate lay control. Church officers in control of church property were required to post bonds, and “said trustee and assistant trustees shall continue in office during the pleasure of said church.”Footnote 102 At the same time, the statute was unique. It provided that the LDS Church could “solemnize marriages compatible with the revelations of Jesus Christ,” a sly way of providing legal recognition to polygamous unions.Footnote 103 It went on to provide that the LDS Church's power for “the pursuit of bliss, and the enjoyment of life, in every capacity of public association, and domestic happiness; temporal expansion; or spiritual increase upon the earth, may not legally be questioned.”Footnote 104 This exuberantly broad grant of powers seems to have carried forward and expanded the vision of the LDS Church's legal capacity first sketched out in the failed 1840 proposal to the Illinois state senate.
After Congress organized Utah Territory as part of the Compromise of 1850, the territorial legislature adopted the previous statutes of the now defunct State of Deseret, thus incorporating the LDS Church under American law.Footnote 105 With this act, the Latter-day Saints escaped the legal structures of the first disestablishment. Indeed, the legal position of the church in the first years of Utah Territory most resembled the position of New York's established church before 1784, although it lacked the taxing authority of the colonial establishment.
This escape, however, was only temporary. In 1860, the Republican Party—founded to rid the territories of the twin relics of barbarism: slavery and polygamy—came to power, and in 1862 Congress passed the Morrill Anti-Bigamy Act.Footnote 106 The centerpiece of the act, section 1, made bigamy a crime in the territories.Footnote 107 However, the law contained two other provisions aimed at the LDS Church's legal personality. Section 2 invalidated the charter issued by the territorial legislature.Footnote 108 However, the law stated that “this act shall be so limited . . . as not to affect or interfere with the right of property legally acquired under [the church's charter] . . . but only annul such acts and laws which establish, maintain, protect, or countenance the practice of polygamy.”Footnote 109 Section 3 went on to state that “it shall not be lawful for any corporation . . . for religious purposes to acquire or hold real estate . . . of a greater value than fifty thousand dollars.”Footnote 110 Property “acquired or held” in violation of the act was to escheat to the United States, but “existing vested rights in real estate shall not be impaired by the provisions of this section.” As the manager of the bill in the Senate explained, “the third section . . . is in the nature of a mortmain law.”Footnote 111 He went on: “The object is to prevent the accumulation of real estate in the hands of ecclesiastical corporations in Utah. . . . [T]he object of the section is to prevent the accumulation of . . . property and wealth of the community in the hands of what may be called theocratic institutions, inconsistent with our form of government.”Footnote 112
Interestingly, the House sponsor was careful to note that, while the law applied on its face to all territories, it would have no impact on the large Catholic establishments in New Mexico, as those religious institutions were protected under the 1848 Treaty of Guadalupe Hidalgo, which had ceded northern Mexico to the United States.Footnote 113 Left unexplained is why the LDS Church, which, though not incorporated at the time, was settled in Mexican territory in 1847, did not receive protection under the Treaty.
Whether the LDS Church continued to have a legal existence was unclear, as the Morrill Act could be construed to repeal only those portions of its charter that directly supported polygamy. Brigham Young responded to this uncertainty by claiming to hold church property as trustee-in-trust, regardless of the status of the LDS Church as a legal entity. Unsurprisingly, upon his death, in 1877, a bitter property dispute between the church and his heirs took place in the courts.Footnote 114 His successors continued to hold LDS Church property personally. In the early 1880s, Franklin S. Richards, the LDS Church's legal counsel, foreseeing that the government would move against LDS Church property, urged the creation of corporations for regional organizations (called “stakes”) and local congregations (called “wards”) to hold church assets.Footnote 115 It was difficult for him to persuade LDS Church president John Taylor to adopt the plan, but this was finally done around 1884. The law used was an 1878 territorial statute modeled on mainstream American corporate law. It allowed for corporations of “persons associated together for religious, social, scientific, benevolent or other purposes”Footnote 116 but limited their ability to hold property. “[N]o such corporation,” the statute read, “must own or hold more real estate than may be necessary for the business and objects of the association.”Footnote 117
As Richards had predicted, Congress moved decisively against the LDS Church with the Edmunds-Tucker Act of 1887.Footnote 118 That law entirely revoked the 1851 charter and dissolved the LDS Church as a corporation. Proponents of the bill justified it using the language of disestablishment, insisting that the purpose of the law was “to amend the incorporation of the church, so as to divorce it from the state.”Footnote 119 The House sponsor of the bill, John Randolph Tucker of Virginia, saw the disincorporation of the LDS Church as the final chapter in the process of disestablishment begun by “the immortal Thomas Jefferson in the immortal act for religious freedom of the people of the State of Virginia.”Footnote 120 For Tucker, disincorporation was a way to “disestablish the civil establishment” of the LDS Church.Footnote 121 He said, “I have in reality attempted to engraft the polity of old Virginia upon the polity of Utah. In old Virginia we do not allow the church to have any property except the property upon which the church building stands and that upon which the parsonage for its pastor is erected.”Footnote 122 In his posthumously published treatise on constitutional law, Tucker characterized the act in terms of disestablishment, stating that it repealed “[a]ll laws giving special privileges to the Mormon Church.”Footnote 123
By the 1880s, however, Tucker's approach to disestablishment was increasingly anachronistic. The Jeffersonian attack on religious corporations in Virginia took place in a world where the creation of corporate entities was cumbersome, and the idea of incorporation was closely tied to the agency of the state. New York began chipping away at this idea with its 1784 general incorporation statute, and a century later the legal landscape had shifted dramatically. In particular, in the decades after the Civil War, the corporate form had been thrown open not only to churches but also to private businesses and other enterprises.Footnote 124 Tucker insisted that the LDS Church as an “ecclesiastical organism is a menace to the civil power” because of “the influence which concentrated and corporate wealth always acquires.”Footnote 125 By 1887, however, it was relatively easy for Franklin S. Richards to fragment the legal personality of the LDS Church and scatter the bulk of its property across dozens of corporate entities. As a result, by the time the Edmunds-Tucker Act was passed, the corporate entity that it dissolved ironically enough owned comparatively little property.
Richards's strategy paid off when the solicitor general of the United States ruled that property held by stake and ward corporations was not subject to the Edmunds-Tucker Act.Footnote 126 Accordingly, federal officials made no effort to move against property held by those entities. The federal receiver, however, did take control of property not held by stake or ward corporations, including, for a brief period, the Salt Lake Temple.Footnote 127 Richards challenged the constitutionality of the Edmunds-Tucker Act in court, arguing that it violated the Contracts Clause of the U.S. Constitution under the Dartmouth College Case.Footnote 128 In addition, a group of LDS Church tithe payers intervened in the case, arguing that if the church were to be dissolved, its property should go to the original donors, rather than to the territorial schools as provided by the act.Footnote 129 During the debates over the act, its supporters in Congress had claimed that church property should be returned to the original donors if possible, and only the residue would be escheated for the benefit of public schools.Footnote 130
Both the Utah Territorial Supreme Court and the U.S. Supreme Court rejected all of these arguments, affirming the federal government's plenary authority over the territories and its ability to direct the LDS Church assets to public purposes if it so chose.Footnote 131 Three members of the U.S. Supreme Court dissented in a brief opinion by Chief Justice Fuller. While acknowledging the power of Congress to criminalize polygamy in Utah, the dissenting justices insisted that Congress “is not authorized, under the cover of that power, to seize and confiscate the property of persons, individuals, and corporations, without office found, because they may have been guilty of criminal practices.”Footnote 132 Shortly after the constitutionality of the Edmunds-Tucker Act was upheld by the U.S. Supreme Court in 1890, LDS Church president Wilford Woodruff issued the Manifesto, which stated that the LDS Church would no longer perform plural marriages.Footnote 133 In response, the Utah Territorial Supreme Court, administering the case, ruled that property should be returned to the trustee-in-trust to advance the legal, non-polygamous goals of the church.Footnote 134
Legal Personality in the Twentieth Century
The federal government's legal crusade against the Latter-day Saints in the 1870s and 1880s centered on polygamy and the political power of the LDS Church in Utah and the Intermountain West. The complex and decisive legal maneuvering over the LDS Church's property, however, reveals that the conflict also centered on the nature of the LDS Church's legal personality. Church corporate law was one of the primary legal mechanisms by which American governments disestablished religion and enforced their vision of proper religious conduct by churches. Unsurprisingly, the legal personality that the Latter-day Saints initially created for their church in Utah sought to escape that regime, just as their vision of religion transgressed the boundaries of religious respectability set down by the American Protestants for whom that regime was created. By the 1890s, the LDS Church had succeeded in preserving itself by adopting a Reformed-style legal personality, with property held in a system of decentralized, congregational corporations that were under nominal lay control. The federal government had very pointedly decided not to move against those portions of the LDS Church organized legally according to the ecclesiological norms of congregational Protestantism. This legal structure, however, was fundamentally at odds with Mormon ecclesiology, and as the intensity of the anti-polygamy crusade receded, Franklin S. Richards sought a legal personality for the LDS Church that would accommodate its actual hierarchical structure without reigniting legal attacks on the Latter-day Saints
Utah became a state in 1896, and the legislature adopted a law allowing for the incorporation of religious societies.Footnote 135 The LDS Church, however, chose not to avail itself of this law. Most local meetinghouses continued to be held by stake and ward corporations. The remainder of church property was held by the president of the LDS Church as trustee-in-trust. By 1901, Richards had hit upon a new mechanism for holding LDS Church property.Footnote 136 He proposed that stake and ward corporations be reorganized as corporations sole. Most corporations are fictitious persons who legally represent some collective of natural persons, such as members of a church or shareholders in a company. A corporation sole, however, is the legal instantiation of an office—such as the king of England or the archbishop of Canterbury—that has but a single occupant.Footnote 137 Crucially, however, the corporation sole is distinct from the natural person who occupies the office, and it thus persists when that person dies or when a new person takes office. Richards likely took his inspiration from the Catholic hierarchy in the United States. Throughout the nineteenth century, American bishops fought legal battles with lay Catholics over the control of church property and the appointment of parish priests, matters that American corporate law committed to lay rather than clerical control. During the 1870s and the 1880s, however, numerous states adopted corporation sole statutes.Footnote 138 In 1884, the Third Baltimore Plenary Council of American Bishops declared: “In the states in which civil legal incorporation of parishes of ecclesiastical congregations, in harmony with ecclesiastical laws, does not exist, the bishop himself, by law to be passed in the assemblies may become a public corporation or moral person (Corporation sole) to hold and administer the goods of the entire diocese.”Footnote 139 In 1895, Idaho passed “An Act Providing for the Incorporation of Churches and Religious Societies,” which seems to have been aimed at accommodating the Catholic hierarchy, and which allowed any duly chosen bishop to form a corporation sole.Footnote 140 Richards did not mention the Idaho law as his inspiration, but, given the large Latter-day Saints presence in the state, he almost certainly would have been aware of Idaho law as LDS Church general counsel.
Under a 1901 Utah law, a corporation sole could consist of a single person—either the stake president or bishop.Footnote 141 Furthermore, the identity of this person would be defined in terms of ecclesiastical status. For example, a stake president whose term of office concluded or who died would automatically cease to be the occupant of the corporation, which would continue to exist until his successor was chosen by the LDS Church hierarchy. This eliminated the risk of title to church property passing by operation of law to the heirs of church leaders or the possibility of rogue congregations taking control of church assets. Richards later wrote: “It occurred to me that this system was admirably adapted to our condition, and after giving the matter careful consideration, I suggested it . . . to the First Presidency. After much deliberation they decided to adopt this plan, which involved the necessity of getting the legislatures of states where our wards and stakes were located to enact laws providing for the creation of corporations sole to hold title to church property. We finally succeeded, after much effort and persuasion in getting laws passed in Idaho, Utah, Nevada, Arizona, and Wyoming providing for corporations sole.”Footnote 142
In 1901, Rulon S. Wells, a member of the LDS Church's First Council of the Seventy then serving in the Utah House of Representatives, introduced the bill providing for the creation of corporations sole, which passed unanimously.Footnote 143 Originally this statute was intended only for the use of wards and stakes. Thus, while only an “arch-bishop, bishop, overseer, presiding elder, rabbi or clergyman”Footnote 144 could formally be a member of the corporation, the corporation could not dispose of property without “the consent of the majority of the members of the church or religious society present at a meeting duly called for that purpose.”Footnote 145 Such a procedure would clearly be too cumbersome for use by the president of the LDS Church.
However, Richards's thinking on this topic was continuing to develop. In 1903, almost certainly at the discreet request of the LDS Church, the Utah legislature replaced the 1901 statute with a new law governing corporations sole.Footnote 146 By this point, Richards seems to have been thinking of providing a corporate existence above the stake and ward level. The religious officials allowed to incorporate as a corporation sole now included “bishop, president, trustee in trust, [and] president of stake.”Footnote 147 The inclusion of the term “trustee in trust” is particularly telling, because, as we have seen, this term was a Mormon neologism coined in Nauvoo. It is also clear, however, that the church hierarchy had not yet decided to avail itself of incorporation for the LDS Church as a whole. The evidence for this can be seen in the statute.
Incorporating the trustee-in-trust as a corporation sole would eliminate the possibility of a dispute between the LDS Church and the heirs of a deceased president of the kind that had broken out upon the deaths of Joseph Smith and Brigham Young. Richards, however, inserted a provision in the law providing that: “[In the case of a] trustee in trust . . . who at the time of his death . . . was holding the title to trust property for the use or benefit of any church . . . and not incorporated as a corporation sole, the title to any and all such property . . . shall not revert to the donor, nor vest in the heirs of such deceased person, but shall . . . vest in the person appointed to fill such vacancy.”Footnote 148 In other words, the statute solved this problem without requiring the hierarchy to decide on whether to incorporate. Likewise, the 1901 provision requiring a vote by church members prior to the conveyancing of church property was eliminated. In 1903, LDS Church headquarters began instructing bishops to avail themselves of the new law to incorporate as corporations sole.Footnote 149 These corporations would hold title to ward property, but all conveyancing of real property was centralized in the LDS Church counsel's office, “as complications may arise that will be difficult to overcome.”Footnote 150
Before Richards's plan was fully implemented, however, there was a final effort to wield the regime of the first disestablishment against the LDS Church in court. In 1906, Charles Smurthwaite, a disgruntled Latter-day Saint, sued then LDS Church president Joseph F. Smith, alleging that he was misappropriating tithing funds by investing them in for-profit enterprises.Footnote 151 Drawing on over a century of American law, Smurthwaite's lawyer argued that as an ecclesiastical corporation, the law placed tight controls on LDS Church affairs and any investments were ultra vires.Footnote 152 The problem with this argument was that the LDS Church as such had not been incorporated under state law. He then argued that the LDS Church president received all tithing as a trustee for individual church members.Footnote 153 Representing the church, Franklin S. Richards argued that Smurthwaite needed to prove the individual intentions of tithe payers to establish the scope of any trust-based obligations applying to Smith as trustee-in-trust.Footnote 154 Finally, Smurthwaite's attorney argued that there was a public policy against churches investing in for-profit businesses.Footnote 155 He was unable, however, to point toward any Utah authority supporting his position.Footnote 156 Ultimately, the non-Mormon judge in the case dismissed Smurthwaite's lawsuit.Footnote 157 The case became part of the national agitation over the election and seating of apostle Reed Smoot to the U.S. Senate, which resulted in a Senate investigation that dragged on for years.Footnote 158 Controversy centered on the continuing divergence between the LDS Church and broader American norms about proper ecclesiastical conduct. Eventually, Smurthwaite's case became a focus of the Senate hearings, evidence of the Latter-day Saint refusal to abide by American legal norms for churches.Footnote 159
The corporate law developed in the first disestablishment a century before, with its assumptions about church government and actions, was essentially hostile to the hierarchical priesthood of Latter-day Saint ecclesiology. In particular, the law's emphasis on congregational structure worked at best awkwardly for holding denominational—rather than congregational—buildings such as the temples or missionary housing around the world. Likewise, the law's emphasis on lay control created a system in which ecclesiastical disputes could be refought in the courts, as happened repeatedly in other denominations during the nineteenth century.Footnote 160 Smurthwaite was an unsuccessful effort to apply this basic framework to the LDS Church. It thus represented the final parting shot in the battle over the church's legal personality that began with the passage of the Morrill Act in 1862.
Ten years after Smurthwaite, in 1916, the solution that had been latent in Utah law since 1903 was adopted when the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints was organized.Footnote 161 Seven years later, in 1923, Richards organized the Corporation of the President of the Church of Jesus Christ of Latter-day Saints, finally creating a formal legal structure for the LDS Church completely independent of the personal identity of the hierarchy.Footnote 162 For most of the next century, this dual structure of corporations sole provided the legal framework for the LDS Church.Footnote 163
The policy of widespread local incorporations begun in the 1880s, however, persisted. In 1909, property held by local Relief Societies, the Latter-day Saints’ women's organization, was transferred to the bishops’ corporations sole.Footnote 164 During this period the incorporation of stake presidents as corporations sole was left to the discretion of local leaders.Footnote 165 By the 1920s, however, the LDS Church was organizing wards and stakes beyond the Mormon heartland.Footnote 166 In California, for example, Latter-day Saints lacked the political power to pass the kind of bespoke legislation that the LDS Church had obtained in Utah and the surrounding states. Accordingly, other legal mechanisms for holding LDS Church property had to be found.Footnote 167 By the mid-twentieth century, however, the relaxation of the ultra vires doctrine and the increasing flexibility of the corporate form had rendered anachronistic the LDS Church's earlier difficulties. Property could be held directly by the Corporation of the Presiding Bishop and the Corporation of the President, and the legal management of property had passed into the hands of the general counsel's office decades earlier. By the late 1960s, except where required by local law, the LDS Church had dispensed with ward and stake corporations, the final legal vestige of the Latter-day Saints’ long conflict with the legacy of America's first disestablishment.Footnote 168
Conclusion
Since its formal organization in April 1830, the Church of Jesus Christ of Latter-day Saints has sought a legal personality, both as a way of solving concrete legal problems, such as the disposition of LDS Church property upon the death of church leaders, and as an expressive mechanism for gaining public legitimacy. However, the law created by America's first disestablishment was encoded with very definite ideas about what constituted legitimate activity for religious organizations. The law took what amounted to Reformed Protestant positions on church structure and government, insisting that church corporations should limit their activity to weekly worship services and remain firmly under lay control. The Latter-day Saints, in contrast, saw their church primarily as a mechanism for establishing Zion. In concrete terms, this meant that they needed mechanisms for their church to establish religiously inspired settlements on the American frontier under the hierarchical control of Mormon priesthood leaders. The conflict between these differing visions of a church provided grist for legal conflicts throughout the nineteenth century. These conflicts in turn illustrate the ways that governments sought to establish certain forms of religion while restraining others.
Ultimately, Mormon conflicts over the legacy of the first disestablishment point to deeper issues in the relationship between religion and the state. Governments will always have their own vision of the proper role for religious institutions, and that vision often does not coincide with believers’ own conception of their mission in the world. The result is legal conflict. Ironically, at the very moment when the LDS Church had finally found a congenial form under American law, it faced new versions of its old problems as it expanded beyond the borders of the United States.Footnote 169 As early as 1913, the LDS Church ran into difficulties in pursuing its nineteenth-century strategy of having property outside the United States held by the president of the LDS Church as trustee-in-trust.Footnote 170 Mexico, for example, has long placed legal restrictions on the ability of foreigners to own land.Footnote 171 Furthermore, successive waves of Mexican reform in the nineteenth and early twentieth centuries directed at the land holdings of the Catholic Church resulted in mortmain provisions complicating the ecclesiastical ownership of land.Footnote 172 Again and again, over the course of the LDS Church's international expansion in the second half of the twentieth century, the Latter-day Saints found themselves facing the same issue that bedeviled their movement from its legal beginnings in 1830: how to accommodate law and religious practice when law and religion offer conflicting visions of what it is proper for a church to do.
Acknowledgments
I am grateful for comments and suggestions on earlier drafts of this article from Stephen Bainbridge, Sam Brunson, Evan Criddle, Mark McGarvie, Tom McSweeney, Ben Park, Alex Smith, and Mark Staker. In addition, I benefited from discussions with Sally Gordon and Kathleen Flake and comments from the editors and anonymous peer reviewers for the Journal of Law and Religion. Julie Borzage and Katy Naef provided excellent research assistance. As always, I thank Heather.
