Separating Church and State, Part 2: The Divided Faithful

[This column is the second in a two-part series.]

Earlier this year, the South Dakota Supreme Court heard an appeal involving a proposal to disband a Hutterite colony near Aberdeen.

Last week’s column (Part One) traced the history of the Hutterite tradition from the 1500’s. Its followers encountered persecution from the beginning and initially sought refuge in Moravia, which is part of the modern-day Czech Republic.

Moravia’s openness and religious tolerance was fleeting, however. Within a decade, the Hutterites were banished and their founder, Jacob Hutter, was burned at the stake. Jacob’s crime: heresy against King Ferdinand’s chosen religion.

The Hutterites scattered for safety. Some would later return to Moravia, counseled by the leadership of Peter Riedermann. He was imprisoned for his faith.

For three centuries, the communal Hutterites continued to search for a safe place to call home. The journey was long and difficult. At one point, their numbers dwindled to just 49 members. During their exodus to Russia, the tiny group survived by eating weeds and tree bark.

It is difficult to understand why the Hutterites’ neighbors were so unwilling to accept them. Hutterites are peaceful, industrious, and faithful… universal qualities that we all strive for.

(The Hutterites also invented the first kindergarten.)

But bigotry is not rational, so perhaps there will never be a good explanation for centuries of mistreatment.

One constant source of friction, though, has been one of church vs. state. In particular, the Hutterite commitment to absolute pacifism is at odds with any government that institutes a military draft.

Pacifism is not a problem during times of peace. But at almost every stop along their journey, sooner or later the local government demanded military service from their able-bodied men. And the Hutterites had two choices: submit or leave.

Living communally was also difficult to sustain, due to external and internal pressures. The Hutterites abandoned their communal colonies during two, separate half-century periods.

The first abandonment (in 1690) was caused by persecution and pillaging from outsiders. The second time (in 1819) resulted, instead, from infighting about money and their religious principles. In the face of uncertainty, family ties took priority over the community. The colony was dissolved and the assets were divided equally.

Fifty years later, three communal colonies were re-established in the Ukraine, under the leadership of three separate men, whose last names are familiar in South Dakota (Waldner, Walter, and Wipf).
Those three colonies found initial success, though they disagreed about each other’s methods and beliefs.

Meanwhile, the Czar of Russia had announced the end of religious freedom for the Hutterites. Thus, the one thing they could agree on was the need to relocate. This time, the destination would be the American heartland.

In 1873, a delegation led by Paul Tschetter traveled to the United States to search for a suitable home. He inspected farm sites from Omaha to Manitoba, and his top choice was the Red River Valley.
Based on his reports, the three groups began arriving the following year. They settled near Yankton, rather than in the Red River Valley, for reasons that are unclear. (One source suggests that a railroad ticketing agent in Chicago mistakenly routed the group south, rather than north.)
Each of the three Hutterite groups established a separate colony (though all were located near each other). Their differences were mild: less a matter of theology than of practice. Over the years, several attempts were made to unify the branches.

None of those efforts succeeded, perhaps because the colonies were thriving in their new home and no longer needed the safety of unity. As the colonies grew, they used some of their people and resources to plant new ones. From those three original colonies there are now almost 500 today.
The majority of those were aligned with the Waldner branch. However, in recent years that branch found itself growing into two parts: a liberal faction and a conservative faction.
Many individual colonies have struggled to choose which half to follow. Some, like the Hutterville colony near Aberdeen, are at a stalemate.

Since each colony is organized as a non-profit corporation, some of the members sought to use corporate law to settle the dispute in court.

When the shareholders and directors of a company are deadlocked, the legal solution is to dissolve the company, sell the assets, and divide them fairly among the shareholders. This isn’t a common occurrence, but it happens often enough that the Legislature created an entire set of statutes that explain the process.

One problem in the Hutterville case was determining who the members are who would divide the assets.

According to the definition in the company’s charter, “members” are colony residents who follow the tenets of the Hutterite religion. This proved problematic for our Supreme Court.

Our First Amendment guarantees the separation of church and state. This usually is understood to mean that the legislature isn’t going to create a state-sponsored religion. However, it also means that the judicial branch is not allowed to wade into controversies of religious doctrine.

Here, resolving the issue of colony membership hinges directly on religious questions, namely what the tenets of the faith are and who is correctly following them.

The Court, as an arm of the state, has no ability to decide such things. Thus, it dismissed the entire case.

Although this leaves the colony’s members without any legal remedy, it is perhaps the most fitting result. After five centuries of searching, the Hutterites have finally found a government that will leave them alone.

About the author

I'm a South Dakota trial lawyer, raised on a hog farm near Lennox. My cases tend to involve corporate wrongdoing (such as insurance companies that lie or deny claims, or both). science (such as whether someone had the mental capacity to execute a Will or Trust), or technical aspects (like construction litigation). I also regularly sue public entities that refuse to pay their fair share. I studied international relations as an undergrad at Georgetown University in Washington, D.C., and then graduated second in my law school class at the University of South Dakota. I'm an avid runner and a "family-taught" carpenter (i.e., I learned most of what I know from Grandpa, Dad, and my brother Steve). And I'm a kid at heart, with a love for model trains and my children's Legos. Beyond the practice of law, my most passionate endeavor is The Finish Line Fund. We founded this non-profit in 2017 in order to raise funds and expand research for rare diseases, including Friedreich’s Ataxia, which affects my 17-year-old daughter. You can learn more (and give) at