Masonry, The Texas Supreme Court, and the Law of Texas

The officers of the 14th MWSA wish to thank the Texas Lodge of Research for allowing us to share this article with our members. If you are interested in learning more about the Texas Lodge of Research, you can find it on their website here.



Written by Jack E. Hightower, PGM, FMR


When Judge Rose Spector of San Antonio stood to take the oath of office as Justice of the Supreme Court of Texas on 1 January 1993, she was the first woman to join the 150-year-old Court for an elective term. The interpretation of the Texas Constitution and the Statutes of the Court, as well as the development of the common law, had been the work of men and 51 of those 126 Justices have been Freemasons. Having served as a Justice on the Court from 7 December 1988 to 1 January 1996, I am honored to count myself among the Masons who were Justices. Law is a tool used by men to organize society, and laws are the building blocks of civilization. Freemasons understand the analogy to architecture, and to understand the law fully, we must seek to understand the makers of the law and their historical background. Certainly, the development of law within our culture is far too complicated to be explained by a study of a small segment of the society in which it developed. Such a study is dwarfed by the realization that the law of the State of Texas is a small part of English jurisprudence. Similarly, although Texans take pride in their state, the decisions of the Supreme Court of Texas are but a minuscule part of the law of this land. Identifying as Masons many of the opinion makers who have directed the development of the law while serving on the Supreme Court of Texas only permits speculation as to the influence of the Fraternity on their interpretation or development of the law. However, this speculation regarding the participation of men with an identifiable philosophy, Masonic in this case, is worth examination. Masons cannot be lumped into a general category and defined. All Masons are not alike any more than all Baptists, all Catholics, all Democrats, or all Republicans are alike. Their identity as Masons, however, can be helpful. As Masons, they share many philosophical ideas or concepts. The depth of their philosophic convictions, however, is varied and unknowable. Each man by becoming a Mason has professed a belief in God. Each has assumed fraternal obligations in regard to his fellows and their families. Each has agreed to seek the common good. These things they hold in common. Justice Joseph W. Hale, a Member of the Fourth Court of Civil Appeals in Waco, Texas, wrote: "While there is no standard yardstick by which to measure the degree of influence which the Masons, individually or collectively, exerted upon the early life of Texas, it is interesting to note the large number of that fraternity who held high positions of leadership in the establishment and operation of the government under the Republic." As one considers the role of Masons serving on the Supreme Court, the first issue should be the propriety of their participation in cases where Masonry is involved. The law requiring a Justice of the Court to recuse in a case in which he has an interest or for any reason may be disqualified has been the law of Texas since the Constitution of 1845. The key words in the law are "disqualification by virtue of interest."

In a 1924 case involving the Woodmen of the World, a fraternal organization, three members of the Court recused themselves. Certainly, the Justices in this case, being members of this mutual benefit society, would have had a financial interest in the outcome of the case. "Interest," as in this case, has historically been defined as pecuniary interest. Although some might claim that membership in the Masonic Fraternity could cause bias or prejudice on the part of the judge, mere bias or prejudice does not constitute interest and is not grounds for disqualification. A litigant may complain of an erroneous ruling, but it is the error in the ruling and not the judge's prejudice that gives the litigant the right to complain. As the case of Shriner v. Simmons in 1972 noted: a judge is not disqualified "because of opinions formed, held or expressed by him, concerning the issues involved, or because he has a personal knowledge of the facts of the case." The records do not reflect that a Justice of the Supreme Court of Texas ever recused from a cause of action citing his membership in the Masonic Fraternity. An examination of the cases that have been decided by the Supreme Court of Texas since the original court in 1836 in which the word "Mason," "Masonry," or "Freemasonry" appears, leads to the conclusion that Masons have not been a litigious lot. Many of the cases of record appear to involve Lodges of black Masons which were not recognized by the Grand Lodge of Texas that was organized in 1845. Many such cases involve fraternal benefit societies, and the questions at issue were contract interpretations of insurance claims. Here are four cases decided by the Texas Supreme Court in which Masonic Lodges are involved or in which the issue turns on some question affecting a member of the Masonic Lodge. In Morris v. Lone Star Chapter No. 6, Royal Arch Masons in 1887, the Chapter claimed it was exempt from taxation as an "institution of purely public charity." The court agreed the Chapter was a tax-exempt charity, but noted that the Chapter had rented areas in its three-story building for purposes of profit; thus this profit was taxable. Justice John William Stayton, a Mason, concurred without written opinion. In City of Houston v. Scottish Rite Benevolent Association in 1903, a trial court ruled in favor of the Association and its "Scottish Rite Cathedral" as organizations "for the relief of needy Masons, their wives, widows, mothers, and children." Upon appeal to the Texas Supreme Court, the decision was reversed. The property was used by the Masonic organizations to "enable them to pursue their work as Masonic Lodges," but such work was deemed only partially charitable. The record does not reflect whether Justice William Pierson, a Mason, made a disclosure of his membership in the Fraternity. Considering the result, it is of no consequence. In Burrell et al. v. Michaux in 1926, the officers of a white Shrine complained against the officers of a black Shrine. The fact of the case occurred long before the desegregation cases of the 1950s. Therefore, echoing white sentiments of the era, the Texas Supreme Court ruled: "It cannot be denied that one of the chief values, and one of the strongly attractive features, of the complainants' order consists in the fact that none but white males are entitled to its benefits. In thus restricting the rights of membership,

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