BY ROBERT ROSEN

In light of the fascinating controversy and trial recently concluded in the Court of Common Pleas between the national Episcopal church and local break-away churches, it is interesting to contemplate the role of our judicial system in deciding religious issues. They are tough cases.

In the 1840s, one group of Jewish Charlestonians sued another group over who controlled Kahol Kadosh Beth Elohim (Holy Congregation House of God) on Hasell Street. It all began in 1824 when a group of "reformers" (their opponents would have said "heretics") formed the Reformed Society of Israelites and sought to change the way the congregation worshipped. Beth Elohim had always been a strictly traditional, or Orthodox, synagogue like virtually all synagogues. It followed the Sephardic (Portuguese) Minhag or service. Jews traditionally eschewed musical instruments or even allowing women to sing. Music was provided by a male cantor or a male choir. This is still the practice in Orthodox congregations.

The Charleston reformers wanted to create a new service with less Hebrew and more English. They eventually wanted to install an organ, something unheard of in synagogues.

In 1840, the reformers outnumbered the orthodox and voted to install an organ. It was the first organ in an American synagogue, and this the orthodox members could not abide. They left to form a new congregation, Shearith Israel which means (fittingly) "remnant of Israel." (That synagogue was on Wentworth Street.)

In 1843, the traditionalists at Beth Elohim, joined by some of the former members who had left the congregation, went to court before Judge David Wardlaw, formerly Speaker of the South Carolina House. The reformers were represented by the famous lawyer, James L. Petigru, and Henry Bailey, the attorney general; the orthodox group was represented by Mitchell King, another giant of the local bar, and Christopher Memminger, later Secretary of the Treasury of the Confederacy. (Memminger Auditorium and school are named for him).

The case went on from October 1843 to 1846. Meanwhile, each group shared the building on Hasell Street.

Ultimately, a jury decided that the majority of the legal members of Beth Elohim were reformers, and the court ordered that the reformers could install an organ, if they wished, and conduct services in the manner they saw fit.

"The legal precedent set forth in the so-called 'Charleston organ case,'" Professor Jonathan Sarna concluded, "significantly affected the course of Judaism in America by establishing that 'questions of theological doctrine, depending on speculative faith and/or ecclesiastical rites' should not be decided by the courts at all." Even though Beth Elohim was supposed to follow the Sephardic Minhag (tradition), the civil court could find no way to determine what Jewish law or practice was.

"Matters of that kind," Judge A.P. Butler wrote for the Court of Appeals, "must necessarily belong and should be committed to the jurisdiction of the body that has the right of conducting the religions concerns of ecclesiastical corporations," namely the synagogue's legally constituted board of trustees. Unlike Europe, American courts took a hands-off policy toward religious bodies.

"How can a court ascertain the faith of others except by their profession? Can it be done by the opinions of others, and if so, by whose opinions?" Judge Butler asked. In this case, he said, suppose the trial judge had inquired as to the faith and doctrines of the dominant party? Where would the judge have looked for information? "Should he have consulted those who live in Palestine, in Germany, in England or in the United States? He might have assumed the power to do this, but it would have been a wilderness of power with scarcely a compass to guide him."

While it was true that the congregation had earlier agreed to follow the Jewish ritual as practiced in London and Amsterdam, the majority of the current members now wanted a change.

The trial judge did not allow testimony about theological issues. The traditionalists offered testimony to show that the use of the organ in the synagogue, on the Sabbath, was contrary to the practice of the Jews in London and Amsterdam, but the judge overruled the testimony as irrelevant and "likely to lead to tedious investigations of matters of faith, unfit for the decision of the civil tribunal."

"There should be great caution observed, in relation to cases like the present," the Court of Appeals held. "From his habits of thinking and education, a judicial magistrate is not very well-qualified to give a definite and enforceable judgment on questions of theological doctrine, depending on speculative faith, or ecclesiastical rites."

Judge Butler admonished the parties to reconcile. He believed the traditionalists "were engaged in an honest struggle ... They have claims upon the toleration and respect of the dominant [reform] party. In matters not really essential, concession would seem to be a becoming course of conduct." No one listened to him.

Postscript

In April 1861, just after the Civil War began, the lawyer for the reformers, Mr. Petigru, walked out of the Sunday morning service at St. Michael's church when the minister omitted the traditional Episcopal prayer for the President of the United States, Abraham Lincoln. Mary Chesnut noted in her famous Civil War diary that in June 1861, "When they pray for our President [Jefferson Davis], Mr. Petigru gets up from his knees."

Robert Rosen, a Charleston attorney, is the author of "Confederate Charleston," "A Short History of Charleston" and other books.