The Constitutional Right to Leave a Faith and the “Dead Hand” of Religious Obligations

Americans enjoy an inalienable First Amendment right to the free exercise of religion. Recently, the California Court of Appeals reaffirmed that the First Amendment implicitly includes the right to change one’s religious beliefs, forms of worship, and religious affiliations. In certain circumstances, an individual’s freedom to change religions or religious affiliations is impeded by religious contracts, agreements, or other obligations. For example, some couples enter a prenuptial or antenuptial agreement wherein they agree to raise their children in a particular faith. Such an agreement, if enforced, could severely impede a parent’s freedom to leave the faith. As a result, some courts have held that such agreements are not enforceable against a parent who has left the faith.

In 2014, Dalton & Tomich attorney Christopher Lund, who serves as an associate professor of law at Wayne State University Law School, addressed these issues and highlighted the “dead- hand problem” of religious obligations in his article, “Free Exercise Reconceived:  The Logic and Limits of Hosanna Tabor.” He writes:

“The second problem with enforcing religious contracts is quite different from the first, and it comes up much less frequently. The dead hand problem arises from the intertemporal nature of contracts. Contracts create obligations today that the parties will be legally bound to perform in the future, sometimes the far distant future. In the context of religious obligations, this can create knotty problems.”

And as Professor Lund mentions in his article, the dead-hand problem with religious obligations arises in property disputes as well. For example, an individual or even a group of people may initially agree to hold title to property in trust for a larger religious body or denomination. However, if the individual or group later wish to disassociate from the religious denomination, their freedom to do so is severely impaired by the denomination’s potential claim to their property. As Professor Lund points out,

“Generally speaking, individuals can create trusts for any number of purposes, including religious ones.  But the Restatement of Trusts makes a strange but significant exception to this general principle:

But the use of private trusts that create financial pressure regarding the future religious choices of beneficiaries is a different matter. A trust provision is ordinarily invalid if its enforcement would tend to restrain the religious freedom of the beneficiary by offering a financial inducement to embrace or reject a particular faith or set of beliefs concerning religion.”

At Dalton & Tomich, we are helping congregations across the country exercise their freedom to change their religious affiliations and avoid the dead-hand of religious obligations that seeks to hold them or their properties captive. An increasing number of courts are recognizing the rights of local congregations to enjoy the equal protection of the neutral principles of their state’s trust and property laws, and in doing so, thwarting the efforts of some denominations which seek to unilaterally assert control over disaffiliating congregations’ properties.