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Oct. 1977 Term-No 1
1OF UNITED STATES SUPREME COURT CASES
September 6, 1977
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KEY v. DOYLE
(Docket No. 76-1057)
Wills-Religion-Equal protection-Constitutionality of a
District of Columbia statute invalidating religious bequests
made within 30 days of the testator's death
On Appeal from the District of Columbia Court of Appeals.
Decision below: 365 A.2d 621 (1976)
Analysis prepared July 10, 1977, by Lawrence W. Waggoner,
Professor of Law, University of Michigan Law School, Ann
Arbor, MI 48109; telephone (313) 763-2586
Counsel for Appellants: Floyd Willis, III, and Edith N. Gel-
fand, Rockville, MD; for Appellee Calvary Baptist Church:
Charles H. Burton and Carl F. Bauersfeld, Bethesda, MD;
for Appellee St. Matthew's Cathedral: William A. Glasgow,
Stephen A. Trimble, and Nicholas D. Ward, Washington, DC
Issues
1. Does a statute invalidating religious bequests made
within 30 days of the testator's death prohibit the free exer-
cise of religion or constitute a law respecting the establish-
ment of religion, in violation of the first amendment to the
United States Constitution?
2. Does this statute deny due process or equal protection
of the laws, in violation of the fifth amendment to the United
States Constitution?
Facts
Sally Lipscomb French, a resident of the District of Colum-
bia, executed a will on October 13, 1972, in whiich she left
one-third of her residuary estate to Calvary Baptist Church
and another third to St. Matthew's Cathedral, both in Wash-
ington, D.C. Less than 30 days later, on November 2, 1972,
Mrs. French died. There is no evidence that either religious
legatee had attempted to influence Mrs. French.
The executor of Mrs. French's estate instituted an action
seeking instructions for the proper distribution of the estate
in light of section 18-302 of the District of Columbia Code,
which provides: A devise or bequest of real or persona
property to a minister, priest, rabbi, public teacher, or
preacher of the gospel, as such, or to a religious sect, order
or denomination, . . is not valid unless it is made at least
30 days before the death of the testator. The two churches
argued that the statute was unconstitutional. The trial court
agreed, ruling that both the free exercise clause of the first
amendment and the due process clause of the fifth amend-
ment were violated by the statute. The District of Columbia
Court of Appeals affirmed, ruling that the statute denied
equal protection in violation of the fifth amendment. The
Court did not consider first amendment issues. The heirs of
Mrs. French appealed to the United States Supreme Court.
Background and Significance
The challenged statute was enacted by Congress in 1866
and has since remained substantially unchanged. Although
other states have similar laws, this statute is alone in invali-
dating only religious bequests, rather than charitable be-
quests generally. The stated purpose of section 18-302 is to
prevent improvident gifts . . when the testator is weak and
in apprehension of death; it thus protects the family from
disinheritance without due deliberation on the part of the
testator. In 1974, a Pennsylvania statute invalidating all
charitable bequests made within 30 days of death was de-
clared unconstitutional by the highest court of that state.
In re Estate of Cavill, 459 Pa. 411, 329 A.2d 503 (1974).
The first amendment requires that Congress make no law
prohibiting the free exercise of religion. The Supreme Court
has recognized that the free exercise clause has two aspects:
the freedom to believe and the freedom to act. The freedom
to believe is absolute, but the freedom to take action because
of religious beliefs is subject to legislative control. To justify
such control, however, the state must have a lawful and
compelling interest in regulating that activity. Sherbert v.
Verner, 374 U.S. 398, 403 (1963). In some cases, the Supreme
Court has upheld statutes placing an indirect burden on the
exercise of religion when the purpose and effect of the
statute were to further secular goals not attainable without
imposing that burden. For example, the Court has upheld
the application of a Sunday closing law to a Jewish merchant
Continued on page 2
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