Nearer To Thee: Cy Près And Religious Discrimination

III. A Closer Look at Religious Purpose Trusts in America

The foregoing section of this Article discusses the historical evolution of charitable trust law, the cy près doctrine, and the role of religious purpose trusts in the development of the law of charitable trusts and that which surrounds the cy près doctrine. And in an earlier study, I detailed the rise of the use of the cy près doctrine throughout history. But where the last section and my earlier article looked broadly at each of those considerations, this section tends toward specificity about the types of religious purpose trust cases that came before American courts for the last two centuries and more. In particular, and in the sections of this Article that follow, I sought to analyze both descriptively and empirically those cases where a specific religion, denomination, or religious persuasion was implicated by the creation of a charitable trust. I now apply the dataset I used in that study to investigate the nuance of religious purpose trusts and the tenor of the American courts in relation to them. This section of the Article details the dataset I created, the coding decisions I used, and my descriptive and empirical findings.

A. The Dataset

In creating a dataset to analyze religious purpose trusts, inter alia, I made every effort to make the dataset as comprehensive as possible. In fact, I cast the net even wider than religious purpose trusts by locating as many judicial decisions concerning the doctrine of cy près and its application to charitable trusts as possible. As such, I used several search terms in WestlawNext to compile the underlying cases that would constitute the dataset. This search yielded 1,561 cases, but most of these cases were not germane to my present inquiry. After screening out cases that did not relate to religious purpose trusts and cy près, I was left with just over one-fifth of the total case volume, or 320 cases. The majority of the cases I sourced dealt with other trust typologies, such as general charitable purpose trusts; medical purpose trusts; educational purpose trusts; and so forth. Notwithstanding the pruning of the data that I did to narrow the dataset to cases involving religious purpose trusts, the dataset represented a treasure trove of codable cases—spanning two centuries, between the years of 1820 to 2019—providing a wealth of information about the cy près doctrine and its application to religious purpose trusts.

B. Coding Decisions and Imputed Values

Making such a comprehensive dataset required deliberate decisions about what data to draw from a case, in order to quantify and to analyze these data. It also demanded significant forethought and following a systematic protocol for making coding decisions. As such, I coded multiple variables according to the conventions outlined below.

To begin, I assigned every case a unique identifier, as well as a special designation unique to each level of court within each state or jurisdiction. I then analyzed every observable characteristic of the outcome of the case to construct an array of dependent variables. I coded cases as follows: cases where the court invalidated the trust for lack of an ascertainable beneficiary; cases where then-existing law prohibited the trust; cases where the court invalidated the trust altogether; cases where the court validated the trust but did not use cy près or deviation; cases where the court changed the trust based on impracticability or waste; cases where the court resolved an ambiguity about the beneficiary or trustee of the trust; and cases where the court validated or invalidated provisions, or even the whole, of a trust on constitutional grounds. I coded the vast possibility of these outcome categories as a function of whether the court used or did not use cy près or deviation to reach its result in these categories. Thus, the key dependent variables were subject to this function; to wit, whether or not the court employed the use of cy près or deviation to change the trust.

I then went back and coded a broad series of independent variables for my empirical models, searching the entirety of cases in the dataset to code facts about the nature of the trust in question. The categories I utilized were as follows: charitable trusts with reversionary or gift-over provisions; trusts with private recipients before the trust became charitable (for example, life estates or life distributions to ascertainable beneficiaries); public purpose trusts; educational purpose trusts; medical purpose trusts; trusts for the benefit of art, library, or museum collections; trusts for the upkeep of cemeteries; religious purpose trusts; and trusts containing racial restriction clauses. For the most part, these categories were mutually exclusive through the late nineteenth century, but by the early twentieth century, trusts became more complex, with material provisions concerning multiple beneficiaries that varied across categories. In such an instance, I coded the case as involving multiple categories of trusts.

I also coded a binary variable for the decade in which the court made its decision. Likewise, I coded a variable, which I refer to as a date differential, by subtracting the date on which the trust was created from the date on which the court’s decision was made. Finally, and for my present purpose, I classified each religious trust by the religious group it benefitted. This often required searching through historical documentation of what religious sect a particular congregation belonged to. These variables, along with the categories of trusts described above, serve as the principal independent variables in my analysis.

In spite of the richness of this dataset, it is incomplete. No dataset can contain the entire universe of religious purpose trust cases in which cy près was implicated before an American court. Instead, the dataset comprises only those cases that received a judicial opinion and, more specifically, those searchable on the WestlawNext database. Even with these shortcomings, the dataset provides a first-of-its-kind basis to analyze the application of the cy près doctrine to religious purpose trust cases through empirical methods.

C. Descriptive Results

In analyzing the dataset, I first endeavored to represent the number of times that certain religious purpose trusts arose throughout the decades of decisions comprising the dataset. This analysis is descriptive. It paints a picture of how frequently religious purpose trusts benefitted certain religious denominations over others.

1. Episcopalian Religious Purpose Trusts

First, I analyzed the frequency of religious purpose trusts made for the Episcopalian faith. The earliest of these was one of the first cases in the dataset, Dashiell v. Attorney General, from 1822. This case concerned whether the settlor’s intention that his largesse be left to “the poor children belonging to the congregation of Saint Peter’s Episcopal Church” constituted a valid trust. The Court of Appeals of Maryland, which was then the highest court in the jurisdiction, determined the class of beneficiaries to be too indefinite as to constitute a valid trust. It would take another forty-one years before a court heard another case involving the Episcopalian church, but much had changed in the intervening years. Courts began to find that trusts made for the benefit of particular congregations were valid. And in Appeal of St. Luke’s Church, the Pennsylvania Supreme Court declared in 1863 that a trust made for the benefit of the Episcopalian congregation was a valid trust.

In the wake of such a decision, suddenly, a spate of cases in the late Nineteenth and early Twentieth Centuries concerned trusts made for the benefit of Episcopalian congregations. Some resulted in outcomes that were favorable to recognizing and continuing the trusts; some did not. By this I mean that, typically, courts moved toward recognizing religious purpose trusts as valid charitable trusts, and in doing so, would move to the merits of the cy près claim, but in many instances, courts still found that cy près was not a doctrine they would recognize. For example, in Holmes v. Mead, the Court of Appeals of New York—the high court of the state—charted a path toward the recognition of religious purpose trusts as valid charitable trusts, but stopped short of recognizing cy près. Eventually, several cases in this era also brought about judicial consideration of the use of cy près.

By the end of this era, in the early twentieth century, a few courts found that religious purpose trusts, made for the benefit of Episcopal churches, were eligible for cy près relief. By way of example, in Rector of St. James Church v. Wilson, the Court of Chancery of New Jersey was faced with a case where the trust—created to build a new church building for an Episcopalian parish on specific plot of land—could effectuate the donor’s intent. The value of the fiscal assets of the trust was rather small, even for its time, and the plot of land given in trust was hampered by zoning restrictions. Because of these limitations, the court found that cy près could apply to give the land and the fiscal assets, intended by the donor for the creation of a new church building in trust, to the existing parish to be used for its betterment. Thus, trusts for the benefit of Episcopalian congregations played a pivotal role not only in moving toward the recognition of religious purpose trusts as valid charitable trusts, but also in recognition of cy près as a viable doctrine to modify religious purpose trusts in such a way that their charitable impact could still be realized through repurposement.

After a lull, the mid-twentieth century brought several more cases concerning Episcopalian beneficiaries. Outcomes varied in these cases, but most courts recognized that religious charitable trusts were not only valid, but that cy près could apply to them, to the extent that it became impracticable or impossible to carry out the donor’s intent. In others, the court found that the trust was no trust at all but an absolute gift. But after these cases from the mid-twentieth century, only a few more cases trickled before the courts in the late twentieth and early-twenty-first centuries. The slowing of the volume of cases involving Episcopalian beneficiaries is consistent with a decline in cases involving cy près more generally. Below, Table 1 maps the volume of the cy près cases brought by Episcopalian beneficiaries over time.

2. Lutheran Religious Purpose Trusts

Though fewer in number than trusts set up for the Episcopalian denomination, cases involving trusts benefitting Lutheran churches have a long history in America as well. The first such case was Witman v. Lex, decided by the Supreme Court of Pennsylvania in 1827. Like many cases of the day, this case hinged on the validity of a bequest made for the benefit of two Lutheran churches—St. Michael’s and Zion churches—and the court had to decide whether the bequest constituted a trust. But unlike other courts of their day, the Supreme Court of Pennsylvania determined that the settlor’s intention of bequest to benefit not one but both churches was specific enough and general enough to create a charitable trust. That is, the beneficiaries were ascertainable, and the purpose was the furtherance of the Lutheran faith. Thus, the court’s decision helped to establish the validity of religious purpose trusts, at least within Pennsylvania. But it would take more than 50 years before another court would hear a case involving a religious purpose trust made for the benefit of a Lutheran trust. And in Schmidt v. Hess, the Supreme Court of Missouri was less sanguine about the creation of a trust made for the benefit of the “Lutheran Church,” to which two churches, one Lutheran and one not, sought title. The court decided—without using cy près—that the trust in question should go to the church that maintained the Lutheran faith, based on what the court would in essence deem a mistake of the settlor. Still, the court’s holding recognized the validity of religious purpose trusts made for a Lutheran congregation.

The early twentieth century would bring a handful cases where courts had to determine whether the application of cy près was proper to save distressed trusts made to benefit Lutheran churches. In most cases, they did apply cy près to save the charitable trust. For example, in In re Becker’s Estate, the Pennsylvania Orphans’ Court considered a case in which a testatrix left money to the trustees of a church—New Jerusalem Lutheran Church—to build a window in the memory of her father. The church presented evidence that it was practically impossible to add a window to their current building. Based on the evidence presented, the court determined that the testatrix had created a testamentary charitable trust and decided that following the specific intent of the testator was impracticable. Thus, the court held that the money placed in trust would go to the church either to put up a painting in memory of the testatrix’s father or to use for the general work of the church—a clear application of cy près.

However, the mid-twentieth century was bereft of cy près cases involving Lutheran churches. It wasn’t until the late twentieth century and the early twenty-first century that cases about trusts made for Lutheran charities resurfaced, and this time, the courts were less willing to apply cy près to save the trusts than their predecessor courts were, for one reason or another. This trend departs from that seen in other religious purpose trust cases discussed below. However, there were countervailing reasons for the courts not to apply cy près in these cases, especially in the presence of gift-over provisions included in the trust instruments. Thus, it may be the case that Lutheran religious purpose trust of the late twentieth and early twenty-first centuries did not receive the benefit of cy près simply because the facts of the cases precluded the use of the doctrine to save the trust. Table 2 illustrates the volume of cy près cases involving Lutheran beneficiaries.

3. Methodist Religious Purpose Trusts

Trusts made for the benefit of Methodist congregations were more common, over time, than trusts made for the previous two Christian denominations. Their history not only demonstrates the tendencies of courts to incrementally recognize religious purpose trusts as valid trusts but also to eventually adopt the cy près doctrine.

As with many trust cases in the early to mid-nineteenth century, the caselaw shows that these courts were faced with construing the validity of the underlying trusts. Those made for the benefit for Methodist churches during this time-period were, like many others, considered to be void for various reasons. This was not uncommon, but by voiding the trusts, the courts likewise refused to afford them cy près relief. Often, courts decidedly repudiated the doctrine along with their recognition that religious purpose trusts benefitting a particular congregation were void. This would begin to change in the late nineteenth century, when courts found that religious purpose trusts benefitting Methodist congregations were valid, per se.

But the application of cy près to these trusts was still wanting until the early twentieth century. In one case, Buckley v. Monck, the Supreme Court of Missouri recognized cy près outright but found that it did not have to apply it to save the trust. In the case, the challengers of the trust wanted to carry-over a life estate in a family farm that was deeded to be used as a resting house for retired Methodist ministers at the conclusion of the life estate. The court deemed that the challengers could not do so and that the settlor’s intent must be effectuated. In another case, Starr v. Morningside College, the Supreme Court of Iowa applied cy près directly to turn over a gift in trust to a Methodist college, which later merged with another Methodist college, to the successor college. As such, the courts’ application of cy près was in keeping with national trends of the day and blazed a trail for its further use. In this way, caselaw involving Methodist religious purpose trusts illustrate not only a greater judicial appetite for recognizing such trusts as valid trusts but also toward broader applications of cy près.

Likewise, the mid-twentieth century saw an uptick in cy près litigation involving Methodist religious purpose trusts. By this time, courts were well-versed in the use of cy près and applied it with alacrity, especially when the intended beneficiary—a Methodist congregation or charity—closed or merged with another such entity. Similarly, courts of the late twentieth century tended to use cy près to save trusts benefitting Methodist religious purposes, but as the close of the century drew nearer, applications of cy près declined—in part because the facts of these cases did not merit cy près relief. Yet, for the aforementioned reasons, the caselaw indicates that Methodist churches and charities received the benefit of cy près more often than not, beginning with the earliest judicial recognitions of the doctrine. Table 3 lists the frequency of cy près cases involving Methodist religious purpose trusts.

4. Presbyterian Religious Purpose Trusts

Like trusts benefitting Methodist religious purposes, cases involving trusts made for Presbyterian religious purposes were exceedingly common in the dataset. But they did not begin in earnest until the mid-to-late nineteenth century. These early cases tended to focus on the courts’ interpretation of the validity of the trust as a charitable trust and, as a secondary question, whether the trust was eligible for cy près. In most cases, the courts upheld these trusts benefitting Presbyterian congregations as valid charitable trusts but declined to apply cy près to the extent that cy près relief was pled.

This trend would change at the onset of the early twentieth century, which began with a flurry of cases where the beneficiary was a Presbyterian charitable endeavor. Initially, courts were hesitant to apply cy près in these cases—especially in courts located in the American South. But courts of the Northeast region of the United States—especially in New Jersey, New York, and Pennsylvania—were more apt to recognize the potential of, if not outright grant, such relief to trusts made for Presbyterian congregations. This speaks both to the broader acceptance on the doctrine at the beginning of the twentieth century, as well as a judicial preference for using the doctrine to afford trusts benefitting Presbyterian charities a longer shelf-life. In this way, Presbyterian congregations were afforded the same remedies around the same time that their other mainline Protestant peers—particularly Methodist churches—received.

Yet, in the mid-twentieth century, several courts—regardless of their regional location—disallowed cy près relief to Presbyterian congregations. This was mainly due to the underlying facts of the cases not supporting the application of the doctrine. For example, in State Bank & Trust Co. of Harrodsburg v. Vandyke, the Court of Appeals of Kentucky—the commonwealth’s highest court of its day—found that cy près was inapplicable, but it also went a step further. In that case, the court invalidated a trust directed to the Presbyterian Church of Salvisa, Kentucky, that later ceased operations, because the will creating the testamentary trust had a reverter provision, should the church cease operations. Thus, the case can be said to have been rightly decided, because cy près would not be appropriate in the presence of a reverter provision.

However, by the late twentieth century to early twenty-first century, amidst a number of church closures and mergers, courts were generally more likely than not to grant cy près relief to Presbyterian congregations. This suggests a return to a judicial preference for affording the Presbyterian denomination such relief more generally. Table 4 lists the number of cy près cases involving Presbyterian charities over time.

5. Baptist Religious Purpose Trusts

Cy près cases involving trusts made for the benefit of Baptist congregations were not as common as those made for the benefit of the previous two denominations, but they demonstrate a unique pattern in that their volume was steady over time. The first occurred in the 1820s, but nearly every decade of the nineteenth century had a case involving a Baptist religious purpose trust. Throughout much of the rest of the nineteenth century, courts found charitable trusts benefitting Baptists congregations to be void and thus ineligible for cy près relief. But toward the end of the nineteenth century, courts not only found the same sorts of trusts to be valid but also extended cy près relief to them. Thus, application of cy près to Baptist churches predates the application of the doctrine to some of the other mainline Protestant churches mentioned above.

But this trend would reverse in the early twentieth century. A few courts—all located in the midwestern United States—found that cy près was not an appropriate remedy to reform the material purposes of trusts set up for Baptist religious purposes. But this reversal would cede to a broader application of cy près by the mid-twentieth century. For example, in Henshaw v. Flenniken, the Supreme Court of Tennessee expressly allowed a deviation from a material purpose of a trust benefiting a Baptist congregation, even though cy près was not recognized within the jurisdiction. The donor of the trust deeded land, in trust, the rental income from which was to be used to benefit a Baptist church, on the condition that the land never be sold. However, the land was undeveloped and generated little income for the church. The church petitioned the court to sell the land and place the proceeds in trust for the church’s benefit. The court, stating that it was not applying cy près or equitable deviation, permitted the sale of the land. This sleight-of-hand cy près was not uncommon in the era, as courts began to realize the utility of the cy près doctrine. And by the end of the twentieth century, Baptist congregations reaped the benefits of cy près nearly unanimously. Table 5 illustrates the modest but steady cy près caselaw involving religious purpose trusts created to benefit Baptist churches.

6. Congregational Religious Purpose Trusts

Congregational churches also benefitted from the movement of the courts to accept the equitable remedies provided by cy près. By the time that cases involving Congregational churches came before the American courts, the courts were not only favorable to the idea that religious purpose trusts were charitable in nature, but also to the notion that equitable modification remedies, like cy près, were available to these trusts. Yet, in the latter part of the twentieth century, a number of religious purpose trusts benefitting Congregational churches and missions were denied cy près, typically on the basis of reverter or gift-over provisions. This trend illustrates the shift from once simple trust instrumentation to increasingly more considered and complex trust-making. Table 6 lays out the volume of cy près cases where a settlor’s religious purpose trust benefitted a Congregational church or charitable endeavor.

7. Reformed Religious Purpose Trusts

While Reformed churches were involved in the typical litigation over whether a trust for a particular congregation constituted a valid charitable trust, Reformed churches were also involved in some of the earliest cases involving the element of waste to trigger a prayer for the remedy of cy près. In one such case, First German Reformed Church v. Weikel, the settlor of a trust left his house to be used as a parsonage for a German Reformed church with a clause that allowed for it to be sold, due to changed circumstances, to build a new parsonage. However, the house appreciated in value to the point where the church did not require all of the sale proceeds to build a new parsonage. The court invoked cy près because the testamentary trust was silent on what to do with surplus money, and the court directed that the church should keep the surplus sale proceeds for maintenance of the new parsonage. Such cases were atypical of their day, given that many trusts described above were insufficient to cover expenses of certain congregations. Yet, at least two trusts benefitting Reformed churches had the good fortune of appreciating in value to the extent that cy près was a necessary remedy.

Of course, that was not always the case with trusts made for the benefit of Reformed churches. Sometimes, even courts of the twentieth century determined that trusts benefitting Reformed churches failed for one reason or another. But, more commonly, they not only upheld the trusts made for Reformed churches, they also extended cy près relief where warranted. Yet, trusts made to benefit Reformed churches with specific forethought about their future use, including reverter provisions, foreclosed the use of cy près in a few instances. Table 7, below, tracks the relatively small volume of cy près cases involving Reformed churches.

8. Shaker Religious Purpose Trusts

Although they were few in number, the cases involving trusts left to the Shakers are among the most interesting religious purpose charitable trust cases in the dataset for myriad reasons. The Shaker religion held, as a tenet, the equality of the sexes. But, taking this belief to its logical extreme, Shakers were sworn to celibacy once they entered the congregation. This meant that the religion could only grow by taking on new members who subscribed to the values of the Shaker church and gave up their former lives and possessions to work and worship in Shaker communities. It also meant that members had to relinquish all they possessed to the Shaker congregation they joined. At its height, the Shaker movement benefitted tremendously from the gifts of land, assets, and other valuables members would gift their congregations upon entry. Yet, as the numbers of Shakers dwindled, and most congregations became defunct—in part because the adherents to the religion lacked the ability to propagate it because of its tenets—questions lingered about what to do with the gifts made in trust for the benefit of Shaker communities.

All of the observable cases involving the dissolution of Shaker communities come from Kentucky, where cy près was not a recognized remedy for well over a century. In the first case—in 1834, Gass v. Wilhite—the Court of Appeals of Kentucky failed to recognize the validity of the doctrine even though the Shaker community in the United States predated the organization of the commonwealth. In the case, seceding members of the Shaker community at Pleasant Hill, Kentucky, sued for their share of the trust assets held by the congregation, and they attacked the validity of the trust protecting the property that their community held in common. Thus, at issue in the case was whether the property that the Shaker community held in trust was charitable or not. The court determined that it was charitable. But the court held that

considering the objects and purposes of the trust under which the property of the Shaker society is held, as legitimate and valid, and that the complainants never had any interest therein by the terms of the trust, except as members and so long as they remained members, they have no right to the partition which they claim . . . .

The seceding Shaker members’ claim failed, and the court refused to award them a cy près remedy to take their share of the trust assets to a new community.

But nearly a century would pass before the Court of Appeals of Kentucky would once again consider a set of cases involving the Shakers and what to do with their considerable landholdings upon the community’s dissolution. The first case in this new set, Adams v. Bohon, was unique in that the Commonwealth of Kentucky asserted its right to the escheat of the land of the dissolving Shaker community. Here, again, the case concerned the Shaker community at Pleasant Hill which continued to hold all property—land and personal property—in trust up until its demise. But, to satisfy creditors prior to its dissolution, members of the community decided to sell a large portion of the land they controlled. Of what remained, the executrix of one of the creditors claimed rights to it. And the Mercer County superintendent, where the Shaker village was located, also sued the Shaker community, arguing that a Kentucky statute provided that the land escheated to the state when the religious community dissolved. The court—upon giving a detailed history of the community and its beliefs—determined that the statute did not apply to the Shakers’ property (which the legislature seemed to have specifically exempted from the law) and cy près could not be used to give the land to the county for purposes of its schools either, dismissing the case of the creditor’s heir and the county superintendent.

But the resolution of this case would raise the question of whom the property belonged to when the Shaker community became defunct. So, the familial relatives of the charter member of the Shaker Village at Pleasant Hill—a John Slain, who gifted his land in trust to the community—brought suit in a follow-on case, Easum v. Bohon, arguing that the land belonged to them. This time, the Court of Appeals of Kentucky was sparing in its decision, declaring that it could not possibly belong to the heirs, given that the property had passed in trust to the Shaker community, and it ruled out cy près as an accepted doctrine. But, importantly, the court punted as to whom the property belonged. Ultimately, the same court in Board of Parent Ministry v. Bohon would disallow ownership of the land to the parent Society of Shakers as well, who sought title to the property under the contention that it reverted to it when the Shaker community at Pleasant Hill became defunct.

Perhaps, these important legal decisions saved what remained of the land the Shakers at Pleasant Hill once controlled for future donative use. In fact, the last living member of the Shaker community at Pleasant Hill, a Dr. Pennebaker, devised the land, in 1922, to a charitable corporation on the condition that said corporation use the land to provide “educational facilities for girls financially unable to educate themselves and whose parents, if living, were unable to assist them in securing a practical education.” Such a school was created, but after several years, the corporation no longer had enough income to operate the school. Instead, it operated as a home for girls to attend the nearby county schools. The administration of the corporation would change, but the financial prospects for the charitable endeavor did not. Yet, in Pennebaker v. Pennebaker Home for Girls, the court reconsidered its position on the cy près doctrine. Because the marketable value of the land had increased considerably, the court permitted the sale of the land on the condition that the proceeds be invested to carry out the purpose of the trust elsewhere or to fund scholarships for the benefit of those entitled to such benefits as the testamentary trust of Dr. Pennebaker prescribed. And so it went with the Society of Shakers at Pleasant Hill. Below, Table 8 notes the frequency of the litigation in cy près cases involving the Shakers.

9. Evangelical Protestant Religious Purpose Trusts

Among the largest classification of Christian denominations—to the extent that it can be considered a unified movement—that benefitted from religious purpose trusts belonged to the numerous churches that together shared Evangelical Protestant ties. That is, these were not affiliated with mainline Protestant churches but rather separate churches that collectively subscribed to Evangelical beliefs or promoted Evangelism more broadly. Cy près cases involving these churches and missionary endeavors began to arise in the latter part of the nineteenth century and the subject matter primarily concerned interpretations of whether the trust could be construed as charitable, and if so, whether cy près could apply. Typically, and even well into the twentieth century, courts decided these cases in the negative.

This did not change even by the mid-twentieth century, when cy près had caught on, even in jurisdictions that permitted it. An illustrative case is Industrial National Bank v. Drysdale. In the instant case, a settlor created a trust for the benefit of The People’s Mission, Inc.—a mission which held nondenominational Christian religious services and also helped the poor. The corporation dissolved, and the court determined that the trust had no general charitable intent in the first place, deciding that the trust failed and that the remainder of the trust must pass to the settlor’s heirs. Yet, in a few instances, the courts of the mid-twentieth century would apply cy près to repurpose such trusts. But that, too, would change by the end of the twentieth century, as courts reverted to their old ways in cases involving Evangelical Protestant churches and ministries, once again refusing cy près relief.

More so than other Christian religious denominations, the adversity these Evangelical churches and missionary endeavors faced is descriptively evidenced in the slim rate at which cy près claims for trusts made of the benefit of Evangelical Protestant churches and missions were granted. In fact, the great weight of the caselaw suggests that cy près claims largely failed when seeking to continue benefits afforded to Evangelical Protestant purposes. Table 9 lists the number of cy près cases involving Evangelical Protestant churches and ministries.

10. Salvation Army Religious Purpose Trusts

Cases involving trusts made for the benefit of the Salvation Army were relatively sparing and were predominately twentieth century cases, but one case came from the nineteenth century. Because of this, these cases tended to focus on the applicability of cy près at a time when the doctrine was gaining, or had gained, wider acceptance. This worked to the advantage of litigants seeking cy près as a remedy in these cases. For example, in In re Smith’s Will, a settlor created a testamentary trust, in part, to be given to the Salvation Army of Norwich, New York. The religious organization was in fact defunct at the time the will was drafted. However, the surrogate’s court used cy près to award the applicable funds to the Salvation Army of Binghamton, ostensibly the parent organization of the first organization within the same geographic region. Likewise, in Petition of Salvation Army, a testator left land and funds, in trust, to the Salvation Army to build a religious school on the land. However, the land was sold via private sale. The Pennsylvania Orphans’ Court invoked cy près so that the Salvation Army could build the school on another plot of land, using the proceeds of the land sale and the funds given in trust.

This result was typical of other cases, as well, where the Salvation Army was the beneficiary of a religious purpose trust. Thus, because the Salvation Army is something of a latter-day religious organization, it seems to have benefitted tremendously from cy près as a remedy when it was given property in trust. The number of cy près cases involving trusts made for the benefit of the Salvation Army is contained, below, in Table 10.

11. Catholic Religious Purpose Trusts

Many cy près cases in the dataset centered on trusts made for Catholic religious purposes—including some that dated back to the early- to mid-nineteenth century. Once again, most of these early cases concerned the validity of the trust, and if it existed, whether the trust could be afforded cy près. Most courts answered the former question and the latter question in the negative.

Even when courts began to find that religious purpose trusts made for the benefit of Catholic churches were valid trusts in the beginning of the twentieth century, courts still denied cy près as a remedy to them, including where cy près was recognized within the jurisdiction.

For a brief time, this would change, as courts of the Northeast—and primarily those in New York—began to apply cy près to trusts made for the benefit of Catholic churches. In one such case, In re Dean’s Estate, which was ripe for cy près, a settlor created a trust, given to St. Joseph's Catholic Church of Millbrook, New York, for the opening of a parochial school. However, the funds were insufficient for that purpose. Thus, the surrogate’s court used cy près to direct the funds to the church for general purposes. This is a classic example of the conditions necessary for and the proper application of cy près.

Yet, after a spate of cases where courts did provide the remedy of cy près to those Catholic charitable endeavors, they would reverse course elsewhere. And in the latter part of the twentieth century and early part of the twenty-first century, Catholic charities’ prayers for cy près were met with uncertainty at the bench. In some cases, the courts affirmed the underlying trusts but held that cy près wasn’t appropriate for one reason or other. In other cases, courts did grant cy près remedy, but on the narrowest possible grounds. The lack of uniformity in approach to the treatment of trusts created for the benefit of Catholic religious purposes stands in contrast to the several other Christian denominations’ judicial treatment discussed above and may evince bias on the part of courts against providing Catholic charities the same remedies their Protestant counterparts received. The frequency of cy près cases involving Catholic churches and charitable endeavors is illustrated in Table 11, below.

12. “Other” Religious Purpose Trusts

Not every religious denomination had multiple observations across the dataset. Thus, for purposes of adding statistical power to a group of trusts that would otherwise be lost from observation, I coded each of these churches together as one unit, in that they shared the fact that, relatively speaking, so few observable trusts were created for their benefit. But, ultimately, the category “other” constitutes a variety of churches affiliated with Christianity. That said, they share another commonality: only on one occasion did a court employ a cy près or other equitable remedy to save the trust benefitting these churches. Table 12 illustrates the volume of cases for “other” religious purpose trusts.

13. Jewish Religious Purpose Trusts

This section discusses the first, and one of two, non-Christian groups found in the dataset. There are few of this variety; the trusts set up for Jewish religious purposes totaled just sixteen. Of course, in keeping with the prior discussion on various Christian denominations, the early cases involving Jewish trusts stemmed from controversy over the validation of the trust and whether cy près could apply to it. What is striking about these cases is that they occurred in the early to mid-twentieth century, when such matters were generally settled law: religious purpose trusts were considered charitable in nature, nearly universally by then. Yet, contemporaneously, courts commonly awarded cy près relief in cases involving trusts set up for the benefit of Jewish congregations or charitable endeavors. For example, Congregation Bnai Jacob-Tifereth Israel v. Stolitzky illustrates a classic fact pattern for cy près, when a surrogate’s court of New York awarded the successor congregation a testamentary trust meant for Congregation Bnai Jacob, after it merged with Congregation Tifereth Israel.

Maybe the facts were on the side of the congregations that benefitted from Jewish religious purpose trusts at a time when the posture of the courts had moved toward deploying cy près remedies to save religious purpose trusts more broadly. However, these trusts also benefitted from equitable deviation relief, which courts were willing to award rather liberally in the mid- to late-twentieth century as well. Thus, Jewish religious purpose trusts typically benefitted from cy près relief for a goodly portion of the twentieth century. Yet, as the twentieth century closed and the twenty-first century began, these same trusts lost favor with the courts for purposes of receiving equitable remedy. This trend tracks with some Christian denominations discussed earlier. Table 13 charts the prevalence of cy près cases involving Jewish religious purpose trusts below.

14. Areligious Purpose Trusts

Finally, a handful of cases dealt not with a church beneficiary at all but rather the promotion of atheist or agnostic ideals. These were uncommon. And I did not encounter any other trusts that were created for non-Judeo-Christian religions in the dataset. The frequency of cy près involving a religious purpose trusts are listed, below, in Table 14.

D. Empirical Results

The foregoing sections of this Article describe the ways in which the jurisprudence of American courts in affording religious purpose charitable trusts equitable remedies both reflects the development of the doctrine and influenced its evolution. This relationship has heretofore been unexamined empirically, let alone through the statistically descriptive manner that the immediately previous section endeavors to do. This study now aims to uncover whether the descriptive trends observed in the previous section bear out through empirical analysis, or whether they were an aberration.

To do so, I used several independent variables. First, as discussed above, I created a variable based on the decade in which the decision was rendered, given the fact that the jurisprudence for religious purpose trusts and the cy près doctrine did not develop swiftly but rather through a saltatory series of decisions that took place over the course of a century. Next, I controlled for several factors collectively categorizing the typology of cases before the courts involving religious purpose trusts and the litigants’ plea for equitable relief. These control variables accounted for the complexity of the trust-making over time, where settlors of trusts created charitable trusts that served multiple purposes. And, often before the court was the question of which material purpose to effectuate or repurpose. These categories included trusts with reversionary interests or gifts over; private purpose trusts (those with life estates or some other interest vesting in an individual before effectuating the charitable intention of the donor); public purpose trusts; educational purpose trusts; medical purpose trusts; art, library, and museum collection trusts; cemetery trusts; and trusts containing racial, gender, or religion-specific clauses (that is the beneficiaries of a given trust could only be white and male Protestants). I included these variables in the analysis because of the increasing complexity of trust-making over time, and because in previous studies, I observed that some of these trust types possess a greater likelihood of receiving equitable relief through cy près or deviation. If this is still the case, even when these trust typologies were combined with religious purpose trusts, controlling for these trust groups improves the reliability of estimates of the other independent variables for which I controlled—including those of interest in the present study. These variables, of course, were each of the religious groups I classified in the immediately previous section.

I tested these independent variables against a dependent variable outcome, described below, using a method of logistic regression analysis to forecast court decisions. This statistical method fits the probability of a court deploying cy près, as a remedy to save the religious purpose trust through a repurposing, along a sinusoidal estimation curve, where zero is equivalent to no equitable relief and one (or more) represents equitable relief. It estimates probability of decisions with a mean of one, the distance from which can be interpreted as percentage points of likelihood for equitable relief. Estimates above this mean indicate percentage points of positive likelihood, while estimates below this threshold represent percentage points of negative likelihood for equitable relief. This estimation method is arguably preferable to an ordinary least squares regression approach because it simulates a bounded-binary outcome on the specified dependent variable: relief of cy près or equitable deviation. My results follow.

1. Preliminary Analysis

In my first analysis, I merely sought to determine the relationship between religious groups and the cy près or deviation remedies that litigants sought in the dataset of cases I compiled. That is, I tested whether courts were more or less likely to apply cy près or deviation to certain religious purpose trusts groups, as compared with the average religious purpose trust, against the several independent variables I created.

I will begin by discussing the results of the control variables I tested for in the model. First, the results indicate that courts were, on balance, more likely to afford cy près relief over time. This result appears notwithstanding the earlier set of cases in which cy près was seldom given as a remedy, as well as the modern trend of courts not to apply cy près. Next, to the extent that a trust served a private or business purpose before converting to a charitable trust, this factor was a negative indicator that a court would apply cy près.

Likewise, many of the typologies of trusts that religious purpose trusts could have also served were not statistically significant predictors of this outcome (that is general public purpose trusts, educational purpose trusts, cemetery trusts, and trusts containing racial clauses). In an earlier study, I found that general public purpose trusts and educational purpose trusts were “favorites” of the courts for applying cy près or, in some cases, deviation. The result, here, could be because courts were more uncertain about how to proceed towards an outcome in these cases involving multiple trust purposes. However, the focus of the present study relies on the results for the religious denominations in this analysis.

I find that two religious denominations received statistically significant results for a court’s likelihood to provide the remedy of cy près: Catholic and Other. The estimates on these variables indicate that, in these cases, courts were far less likely to grant cy près relief as compared with the average trust created for religious purposes. And this result seemed consistent with the descriptive results I observed when classifying the cases above.

Standard errors in parentheses
*** p<0.01, ** p<0.05, * p<0.1

However, this was merely the beginning of my inquiry. In particular, I aimed to further test the relationships I observed in Table 15 above by applying the same methodology to the entire dataset—and not just the percentage of the dataset that constituted trusts created for religious purposes. That is, I leveraged every available observation of charitable trust in the dataset to test whether the trends I observed still held. The purpose of this methodology was to identify whether courts tended to favor certain groups for whom religious purpose trusts were created as compared with the average charitable trust. While it is true that religious purpose trusts are not “favorites” of the law like public, educational, and medical purpose trusts are (as a matter of empirical fact), it still remains to be seen whether there is some systematic bias present in meting out the remedy of cy près or deviation, which would prolong the life of the trust, net of all other factors for which I could control. Thus, I added nearly 1,000 more observations to the regression equation by controlling for secular trusts in the dataset. I did so as a basis for determining the robustness of the effects I observed in the baseline model in Table 15. Also, I coded binary variables for a court’s referencing of terms related to impracticability or ambiguity, given that these terms signal the proper use of equitable remedies like cy près or deviation. I added each of these new variables to the model to control for whether the presence of traditional equitable rhetoric in the court’s opinion tipped their hand as to the remedy they would provide. These additional controls also improve the precision of the estimates of the other covariates.

I note that the magnitude and directionality of the other trust typologies appear to be fairly constant across the models, but here, with the addition of observations from the full dataset, the courts’ preference for certain of those typologies is on full display, from the perspective of statistical significance. As relevant to my present inquiry, however, the mere status of a charitable trust as a religious purpose trust seems to depress the likelihood that the trust would receive an equitable remedy like cy près or deviation at all, as compared with the average charitable trust. However, the coefficients for several religious groups did not bear statistically significant results (for example, Mainline Protestant, General Evangelical Protestant, Jewish, etc.). Yet, the coefficients on Catholic and Other groups signal that they were far less likely to receive cy près or deviation relief for trusts made for their benefit, as compared with the average charitable trust. Specifically, religious purpose trusts made for the benefit of the Catholic church were more than seventy-three percent less likely than the average charitable trust to receive such equitable relief. Worse still, the Other group of churches received equitable relief nearly ninety-one percent less frequently than the average charitable trust. No other religious group recorded effect sizes as large or achieved statistical significance. This was yet another indication that there may be something systematic about the way courts award cy près or deviation relief—or not—to these religious groups. However, I sought to perform one final analysis to determine whether the effects that I observed in Tables 15 and 16 were accurate empirical depictions of this evidence of judicial bias against these groups.

Standard errors in parentheses
*** p<0.01, ** p<0.05, * p<0.1

2. Disaggregation of Churches

Finally, I sought to determine which factors influenced a court in its reasoning to grant cy près or equitable deviation relief to churches not grouped together but disaggregated—as they were presented in the foregoing section. Here, again, I employed a logistic regression analysis, to bound the outcome between zero and one, where one represents the court’s application of either equitable remedy. Logistic regression analysis also helps with the interpretability of the estimates in that it reports results in odds ratios, with distances away from a mean of one. This means that each estimate I report below can be interpreted in percentage points, above or below the mean of one.

In the first specification of my model, produced in Tables 15 and 16 above, I grouped all Mainline Protestant denominations and all Evangelical Protestant denominations together to decipher whether, as a group, these denominations benefitted from the equitable remedies the court could provide in these cases; whereas, in the second specification, I tested each of the Mainline Protestant denominations and Evangelical Protestant denominations independently. This is the main difference between the model specifications I report in Table 17, below, and the tables that precede it. Again, this inquiry was focused on whether certain denominations that benefitted from religious purpose trusts also received, from the court, the equitable remedies plead by them. And again, I controlled for a host of ancillary independent variables.

In each model, I found that courts were more likely than not to grant equitable relief to religious purpose trusts with the passing of each decade. This result was statistically significant across all models and the effect sizes were comparable. This stands to reason, given the evolving posture of courts toward the use of either equitable doctrine, and it is consistent with findings I made in a prior study. I also found that all other trust typologies had no statistically significant bearing on a court’s decision to apply cy près or deviation. This result could be due to the fact that, until the mid-twentieth century, most religious purpose trusts benefitted a particular religious congregation only and were not more complex than those that would follow by the end of the twentieth century. However, the primary purpose of this analysis was not to test the relationship of these control variables with the outcome; instead, I sought to isolate the impact of a trust’s creation for a particular denomination against the propensity of courts to grant equitable remedies. The results differ, slightly, across the models I present in Tables 15-17 with respect to this inquiry, but they tend to converge on the same general picture.

In Tables 15 and 16, I discovered that, in terms of directionality, nearly all religious denominations had a strong likelihood of being denied the equitable remedies that they sought. Yet, few rose to the level of statistical significance. Only Catholic and “Other” religious purpose trusts met statistically significant thresholds. Mainline and Evangelical Protestant religious purpose trusts came very close to conventional levels of statistical significance but did not meet them. Thus, I sought to examine whether the same results would bear out if I disaggregated the several Mainline Protestant churches from one another.

In Table 17, I did just that. I encountered several interesting results that both confirm and disaffirm the results found in the first model. Instead, they tend to support the descriptive observations I posited earlier in this Article.

Specifically, the plausibility of the statistical significance of a putative bias against Mainline Protestant churches dissolved when they were disaggregated. Not one of them produced remotely statistically significant results. But I also endeavored to test the picture painted by the descriptive results described in a foregoing section of this Article with respect to how certain trusts intended for denominations fared before the courts on their cy près or deviation claims. For example, with respect to Evangelical Protestant churches, which descriptively fared worse than other denominations, the results indicate that general Evangelical religious purpose trusts were nearly fifty-four percent less likely to be afforded relief under either cy près or deviation. However, this result was not statistically significant. Yet, religious purpose trusts benefitting the Salvation Army were close to five times more likely to be given these equitable remedies, and, again, at nearly statistically significant rates.

Two other results stand out. Courts were over sixty-six percent less likely to apply cy près or deviation when cases involved a religious purpose trust created for the benefit of a Catholic charitable endeavor. Likewise, courts were nearly ninety percent less likely to equitably cure issues with religious purpose trusts made for beneficiaries in the “Other” category—but like the result for the Salvation Army, this result fell just shy of statistical significance. Together, these results imply that courts are more apt to disfavor the application of such equitable remedies for religious purpose trusts benefitting primarily the Catholic church, net of all other control variables. And this was the only truly statistically significant result in the lot. Perhaps, this is evidence of implicit religious bias by the courts against trusts made to benefit the Catholic faith. But it also begs the question: why would courts single out this denomination when choosing to apply these equitable remedies?

IV. Implications: Cy Près and Religious Discrimination

While scholarly treatment of cy près has been fairly limited, ample literature suggests that the discrimination against certain groups of religious practitioners is not random. Rather, it is deep-seated and imbedded in the fabric of our nation’s history. This part explores a history of anti-Catholicism in America, and the literature that brings it to light, to better understand the roots of religious discrimination that may be at play in court decisions of cases involving religious purpose trusts. But, first, a disclaimer.

Dealing with the subject of religion naturally involves hosts of normative judgments. Even using the term “anti-Catholic” connotes that a person’s opposition to Catholicism is somehow unjustified or unfairly prejudicial. Yet, throughout the discussion below, I will use that term to describe views that represent distrust, fear, or bias against Catholics and their religious endeavors, regardless of whether those views are justified. Ultimately, the purpose of the discussion that follows is to focus on how uneven outcomes in the cases involving religious purpose trust cases came to be and to better understand why these outcomes can differ between religious denominations, rather than to make a value judgment about whether the motives behind those outcomes were warranted.

A. Discrimination against Catholics

1. Anti-Catholicism (Pre-Colonial Period to the 1930s)

Anti-Catholic sentiment in America predates the founding of the United States. The discrimination that American colonials—then subjects of Britain—exacted towards Catholics was evident in their governing laws. Excluding Rhode Island, every colony overtly denied Catholics most civil or religious rights. By 1702, Maryland Protestants passed a law prohibiting Catholics from holding office or practicing law. This was shortly followed by the Maryland legislature’s decision to ban Catholics from maintaining a school for their children and prohibiting public worship. It appears that—even in Maryland, a colony that was originally at least tolerant of Catholics—the only civil right Catholics held during the Colonial period was the right to vote, which was later revoked in 1718.

Yet, the de jure discrimination against Catholics in the Colonial period may not have been as diffuse as legislative records suggest. “In practice, [] the restrictive laws against ‘Papists’ were widely ignored after 1720 and, except for sporadic anti-Catholic war hysteria, they enjoyed a de facto freedom of conscience.” But an anti-Catholic legislature continued to be proposed in Maryland and other colonies through the 1750s. This anti-Catholic sentiment would gradually change with the nation’s founding.

The American Revolution acted as an equalizer between Protestants and Catholics. Some scholars attribute this equalization to the many Catholic volunteers who served the American patriots. Perhaps their service to the common cause of independence stemmed anti-Catholic sentiments for a time during the war. Nevertheless, seven post-independence state constitutions prohibited Catholics from holding political office, and even more contained other more general anti-Catholic provisions. Some of these prohibitions even outlived the federal Constitution’s guarantee of religious freedom and remained in effect until the 1830s.

During the same period, a revival of anti-Catholic sentiment resurfaced in the United States, beginning in the late 1820s, due to the influx of Irish Catholic immigration which spurred the emergence of the “[N]ativist [M]ovement[].” This Nativist Movement, as historian Ray Allen Billington describes, arose from the nativists’ anxiety over the influence of Catholics in the United States, particularly in the public education and political sectors. During the 1830s through the 1850s, anti-Catholicism is evident in literary propaganda and the many anti-Catholic riots targeting Catholic churches, schools, businesses, and homes. American Catholic historian Thomas Timothy McAvoy describes the Nativist motives as attempting to steer a path between the extreme nativist demand that Catholic immigrants give up all vestiges of foreign customs, including religion, and the extreme Catholic immigrant claim that any concession to such conditions inevitably compromised their faith. And, unsurprisingly, anti-Catholic sentiment endured throughout the nineteenth century, despite the interruption of the Civil War.

In fact, by the late 1800s, anti-Catholicism was pervasive. The emergence of nativist political groups such as the Know-Nothing Party and the American Protective Association (APA) actively promoted anti-Catholic sentiment and worked to thwart the “[p]apal plots against the Republic.” At the end of the nineteenth century, the United States also saw a wave of southern and eastern European immigration, particularly among Catholic Italians and Slavs, inflaming nativists’ sentiments yet again. Historian Donald L. Kinzer explains that the APA’s “use of anti-Catholic rhetoric and propaganda had little to do with real religious hatred . . . but served instead as a screen, masking cultural anxieties over ‘problems arising from industrialization and rapid urbanization.’” It has been further described:

[A]nti-Catholicism acted as a unifying force as American Protestants were in the throes of denominational conflicts and schisms; political parties were becoming more and more rhetorically vitriolic, partisan, and corrupt; and sectional strife over slavery was becoming more and more a dominant concern. This was accomplished by creating the illusion that despite denominational and political animosities and divisions, Protestant Americans could delude themselves into a false sense of unity, providing the sense that there was a common bond achieved through identification of a common enemy.

2. Anti-Catholicism (1930s to the Present)

As with the American Revolutionary War, World War I served to quell Protestant-Catholic conflict in the United States. However, this period was short lived; by the 1920s, anti-Catholicism was revived. The rebirth of the Ku Klux Klan (KKK) and the presidential campaign of New York Governor, Al Smith, set forth a new anti-Catholic movement. The APA and the KKK distributed defamatory literature warning that a vote for Catholic, Al Smith, would mean a victory for the Pope, because Smith would place “the Pope above the President, the canon law above the Constitution, and the Papal rag above the American flag.” The KKK used tactics such as boycotts, intimidation, and political activity to gain power in states throughout America and promote nativist programs and legislation once again.

But overt anti-Catholicism ostensibly lessened during the Depression and World War II, and many argue that the sentiment died with the election of Roman Catholic, President John F. Kennedy. However, in the wake of scandals within the Catholic Church that defined much of the late twentieth century and early twenty-first century, it is possible that anti-Catholicism only took a more implicit route, including before and in the courts.

B. Qualitative Evidence of Bias in Religious Purpose Trust Cases

To the extent that cy près is a good thing—and it is when it accords with a trust settlor’s putative intent for continued charitable effect—its remedy ought not be withheld, especially with discriminatory bias as an overriding rationale for its withholding. Yet, it appears, at least implicitly, that may have been the case when it came to the fate of certain Catholic charitable endeavors’ pleas before the courts of the United States.

Take, for example, In re Staab’s Estate, in which a testatrix from Le Mars, Iowa, created a testamentary charitable trust—from the residue of her estate—for the benefit of four Catholic charitable enterprises. The dispute concerned the disposition of one of the four shares of her residuary estate that was intended for Good Shepherd’s Home in Sioux City, Iowa, some thirty miles from the testatrix’s home. At the time of the execution of the testatrix’s will, the home was “an institution for the care of disturbed teenage girls who were not able to live in their own homes or could not properly adjust to society, operated by the Sisters of the Good Shepherd[.]” But four years before the testatrix’s death, Good Shepherd’s Home surrendered its license, and the grounds were sold to a hospital and razed to make room for the hospital’s parking lot. After the testatrix’s death, the executors of her estate looked for a suitable replacement for Good Shepherd’s share. Catholic Charities of the Diocese of Sioux City operated a home for the care of teenage girls—performing the same function as Good Shepherd’s Home—and the executors sought a declaratory judgment to bestow the share meant for the Good Shepherd’s Home on Catholic Charities. It was denied. On appeal, the Supreme Court of Iowa reasoned that the testatrix would have known about the closure of the home and must have meant for the gift to lapse. In refusing cy près relief, the court held that the devise to Good Shepherd’s Home constituted a gift, not a charitable trust, and was required, as a result, to pass to the testatrix’s heirs at law.

Because this was such a clear case for cy près to be deployed by the court, this case’s reasoning and outcome present several puzzling attributes. With respect to the court’s reasoning, if the testatrix meant for the residuary “gift” to be made to her heirs at law, surely she would have made such heirs her residuary beneficiaries. Instead of her kin, she named four charities to benefit, a sound indicator of her charitable intent. Thus, giving the gift to her heirs clearly violated the testatrix’s charitable intent. It cut short the reach of her philanthropy and placed her wealth—intended for charity—in private hands, denying public benefit. This could be a case of judicial shortsightedness, or as the foregoing discussion suggests, it could be that the court did not deem Catholic charities as worthy of the remedy of cy près. And it is not a one-off; other cases abound.

In In re Trust ex rel. Gurney, the Appellate Division of the New York Supreme Court exhibits slightly more overt bias. Its majority opinion is short on detail, but the dissent supplies additional facts. A decedent left the residue of her estate in trust to three charitable entities: a regional hospital, a private liberal arts college, and a Catholic parochial school. The parochial school closed four years prior to the trust settlor’s death, but the parish that operated the school continued its educational mission through the parish’s faith formation program. And the decedent, in fact, was a parishioner of the parish, St. Mary’s Roman Catholic Church in Oneonta, New York, until her death. At the settlor’s death, the trustee sought to distribute the share intended for the parochial school to the hospital and the liberal arts college. The parish and diocese intervened, seeking cy près relief to have the share allocated instead to the parish’s faith formation education program. The surrogate’s court denied that relief, as did the appellate division. The appellate division split on the issue but reasoned that the decedent’s intent was to support the particular parochial school and not the parish or religious education in general. Therefore, the court held that cy près was unavailable to the save the gift and leave it to the parish. It was distributed among the other residuary trust beneficiaries instead.

In a smarting dissent, Judge Lynch highlights the hypocrisy of the majority’s finding by emphasizing that the school would not have existed at all but for the parish that operated it. The judge also underscored the decedent’s history of philanthropy to the parish as established in the record. Finally, the dissenting opinion touted the way in which the parish had continued the school’s educational legacy through its faith formation program. All of these factors seemed to support the invocation of cy près. But it was not enough. The majority’s decision gave the gift to two secular entities instead.

These are but two examples of when cy près could have and should have been used by the courts, and yet, the courts in these cases failed to employ it for reasons that do not sound in law. These are more than poorly decided cases, for the jurisdictions in which they were heard recognized cy près and had a history of conferring the remedy in other similar situations that benefited other religious denominations. Instead, the outcomes point to something more subtle but empirically pervasive: religious discrimination. And their effect may spell financial demise for the effected beneficiaries of this form of charitable wealth transmission.

C. The Net Effect of Judicial Bias in Religious Purpose Trust Cases

It may seem that denying cy près, as a remedy, is fairly benign. But collectively, it amounts to an existential threat for religious charities. Recent decisions like those shared above evince a quiet killing of the lifeblood of religious institutions: charitable gifts. Entities like Catholic charitable enterprises necessarily rely on the charity of others to support their mission and sustain them as a going concern. By denying continued charitable benefits to Catholic charitable endeavors, it chips away at their permanence for affecting public good. Perhaps this is the very thing that the jurists rejecting Catholic charities’ plea for cy près want to see in the world.

Yet, this trend exhibits myopia on the part of courts that do so. Courts are arms of the state and work to further its interests. But the state cannot possibly provide for the welfare of its citizens in totality. That is why charitable endeavors like hospitals, schools, and social programs operated by private non-profit corporations are necessary to fill such needs in the first place—regardless of their affiliation with certain churches. When courts contort the law to cut off revenue to such organizations, the public loses.

As the foregoing portions of this part of the Article reveal, religious discrimination against Catholics has deep roots in American society. Moreover, it has found purchase in decisions by American courts. Judges are not immune to sentiments that pervade the American consciousness of their time. Although judges are positioned to remain impartial in interpreting the law, each jurist brings his or her own priors to the bench. Judges have subscribed to anti-Catholic positions in their opinions, and in doing so, evinced a tendency to oppose the church for its internal theology and practices—rather than its beneficial effects on society. And their decisions about which charitable trusts are worthy of the equitable remedies of cy près or deviation are no different. For the courts, then, the performance of equitable remediation on an underlying trust seems to be a question of “worthiness.” If Catholic charities, including parishes and parochial schools, are deemed less worthy of receiving the equitable remedies that are granted more commonly to other religious charitable endeavors—regardless of their affiliation with a particular denomination or religion, as the data presented in this Article suggest—then judicial religious bias must be present, whether overt or implicit. And this bias is not only an historical artifact, but it remains to this day.

V. Conclusion

Jurisprudence of the law of charitable trusts developed alongside judicial application of longstanding equitable remedies that courts can grant these special trusts. These remedies—cy près and deviation—are unique among other remedies in trust law in that they perpetuate the life of charitable trusts, maybe forever. And the stakes are high: a court’s failing to grant these remedies often results in the trust’s immediate dissolution or eventual demise. To use a religious analogy, the courts are the guardians of St. Peter’s Gate, determining the fate of charitable trusts—not to mention the economic viability of religious charities benefitting from them—in a final way.

Heretofore, little attention has been paid to the role that religious purpose charitable trusts have played in the evolution of the cy près and deviation doctrines in America, much less the role of courts in using these doctrines to prolong the lives of religious purpose charitable trusts. These topics have never received empirical treatment, and no consideration has been given to the possibility of religious bias on the part of the courts in making these determinations. If present, this bias could have rippling effects on the viability of targeted religious charitable endeavors.

The discussion provided in this Article sheds greater light on the equitable remedies of cy près and deviation and their shaping of and by the law surrounding religious purpose charitable trusts. However, the principal contribution of this Article is its examination of the potential religious bias of judges in deciding these cases, as revealed through a novel application of empirical methods to analyze whether the courts engage in such discrimination. And no other study to date has captured raw data to descriptively and empirically relate that religious discrimination indeed exists within the courts in terms of the religious purpose charitable trust case outcomes observed.

This study tests whether courts prefer to grant the equitable remedies of cy près and deviation to perpetuate religious purpose charitable trusts for some religions but not for others. While the observations in the dataset I created and employed contained very few cases involving trusts benefitting non-Judeo-Christian denominations, my results indicate possible bias by the courts against certain Christian congregations. For example, courts are far less likely to apply cy près or deviation for trusts benefitting Catholic charities, as compared with trusts benefitting activities associated with other religious affiliations. Because the results are indeterminate for all other religions and Christian denominations, this suggests that there is a greater preference by courts to provide these churches and charities the benefits that cy près and deviation confer—or at least that there is not a systemic denial of the benefit of these equitable remedies for these religions.

A good deal of research bears out the long history of anti-Catholicism in the American past. And some of this research also considers the role of government in perpetuating this discrimination. Yet, none has brought into focus the implicit or overt biases of judges against this religious group with respect to trusts that benefit them. Courts have unfathomable influence under charitable trust law when it comes to the power of their determinations to grant equitable remedies that would prolong the life of a trust—or condemn it—for eternity. And, in turn, this influence decides the fate of religious charitable endeavors as well as the legal mechanisms for affecting transmission of the charitable assets on which these institutions depend. This study adds to the literature on the religious biases of jurists in a new way by discovering the presence of such bias against religious groups in ways that directly impact their viability, in an effort not only to bring this bias to light but also to expose it as bias that is worthy of reversing.

VI. Appendix

Standard errors in parentheses
*** p<0.01, ** p<0.05, * p<0.1

Standard errors in parentheses
*** p<0.01, ** p<0.05, * p<0.1