Most of the posts in this series have focused on the activities of the South Dakota Council of Defense. But it had no inherent mechanism to enforce its legal authority. When “the Russian colonist problem” brought the Council in conflict with religious principles, it turned to the courts, often considered the last bastion for the protection of civil liberties. How would the scales of justice tip?
The Council’s “informal investigation” of four Hutterian Brethren religious corporations determined that their agricultural and related activities meant they were secular, not religious, entities. As a result, the Council filed lawsuits to dissolve and cancel their articles of incorporation. While the Council’s Executive Committee thought it “would be no loss” if the Hutterites left, it was concerned about the property the colonies owned. It filed lis pendens — a notice that any sale of the subject property would be affected by the outcome of a pending lawsuit — in counties where the Hutterites owned property. The Council offered to remove the lis pendens and allow a sale on certain conditions. Among other things, the colony had to invest 2½ % of the sale price in government securities, donate another one-half of one percent to the Red Cross, pay the Council’s costs and attorneys’ fees in the lawsuit, and agree to revocation and cancellation of its charter.
Undoubtedly prompted by mass migration to Canada, more than half the colonies took the offer. By the time the Council released its post-war report, three colonies in one corporation and one each from the other three sold their property. The sales resulted in $20,500 invested in Liberty Bonds and just over $4,000 in Red Cross donations (the equivalent of more than $320,000 and approximately $63,000 today, respectively). Three other colonies had sales pending. Yet some colonies kept up the fight, including the Hutterische Bruder Gemeinde (“Hutterite Brother Community”) in Bon Homme County.
After trial, Beadle County Circuit Court Judge Alva Taylor said the Hutterites “firmly adhere” to their religious precept of withholding all voluntary aid to the prosecution of any war “on the alleged ground that their duty to God is higher, in a moral sense, than their obligation to any human government.” He also found that the Hutterites believed they were pursuing their beliefs by living “a communistic life” and engaging in farming and similar pursuits. Still, in September 1919, Judge Taylor ruled that the corporation was “a misuser” of its charter because it engaged in “secular pursuits and business” and owned real property. He permanently enjoined it and its officers from engaging in secular pursuits. He gave them 90 days to sell all real estate not devoted to religious purposes and to amend the corporate by-laws to exclude any reference to secular business and submit the proposed amendments to him for approval. Otherwise, he would enter an order dissolving the corporation.
The Hutterian Brethren appealed to the South Dakota Supreme Court. In a per curiam (not identifying a specific author) opinion released on December 30, 1922, the Court acknowledged that any alleged law-breaking by the Hutterites
consists solely in a refusal to aid physically or financially in the carrying on of war. They are not shown to have engaged in any unlawful or immoral pursuits or occupations. It is not shown that they have ever harmed the state, society, or any human being, unless we assume that they harm themselves, their children, and the state by following the mode of living adopted by them, and which they believe to be in accordance with the teachings of the New Testament.
It also cited case law holding that the colonists’ refusal to support a war didn’t violate any state or federal law. Moreover, a religious corporation didn’t lose that status as long as any secular acts or transactions “are incident and subordinate to the religious purposes of the church, and so long as they are directed primarily to that purpose.”
So, it appears the Hutterites were freely exercising their religion under the First Amendment and believed any secular activities were in pursuit of their religious beliefs. Yet the Court ruled Hutterische Bruder Gemeinde should be dissolved. It said the corporation’s financial records “compel … the conclusion that the principal business of the corporation is secular, viz. the engaging in farming and other industrial pursuits for the purpose of the sustenance of its colonies; that next in order the business of the corporation is political, viz. the government of its members; and that lastly and secondarily the objects of the corporation are religious[.]” As a result, it should not have been chartered as a religious corporation at the outset. Only Justice Ellison G. Smith — who lost reelection in the general election the month before — dissented, convinced that the group was and always had been a religious corporation.
And the Supreme Court seemed to add insult to injury. It ruled in favor of the State’s cross-appeal of the trial court allowing Hutterische Bruder Gemeinde to remain in existence while disposing of its property. It said the corporation must transfer all of its property to trustees of an unincorporated organization, which would then dispose of it.
The decisions reflected political realities, even though they came after the war ended. Despite the recognized sincerity of the Hutterite beliefs, the scales were tipped against them. The colonists largely spoke German at a time when anything German was perceived as a threat. That was magnified by the Hutterites refusing to participate in the war or even but Liberty Bonds to help fund it. Finally, the Hutterite belief in common ownership was “communistic” as the first Red Scare and the Palmer Raids were commanding public attention. Ultimately, their religious principles were viewed as anti-democratic and anti-American views, something the times couldn’t tolerate.
Naturally the defendant colonies employed counsel and fought to escape the imposing of any restrictions upon their church[.]