Religious Freedom and Role of the States in Their Own Early Constitutions, Part 2 – Guest Essayist: Joerg Knipprath

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At the time of the Revolution, Americans had shown that established churches could co-exist with free exercise of religious conscience. Still, religious restrictions on holding office, requirements to attend some religious service and financial support of the colony’s official church through taxes remained. Of those, as might be expected, the last was the most reviled by the public and, thereby, most easily attacked by willing politicians. It is on that ground that disestablishment of most colonial churches was initiated during the Revolutionary and Early Republican periods.

The Southern colonies, especially, moved to disestablish the official status of the Anglican Episcopal Church. North Carolina began the process in 1776, followed during the war by New York, Maryland, and South Carolina. There also began a decade-long struggle in Virginia towards that end. The Virginia constitution of 1776 declared, “THAT religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience ….” Thus was protected free exercise, but the established church yet survived. After the war, demands increased to disestablish the Episcopal Church, tainted by its connection to the Church of England. In 1784, the popular governor, Patrick Henry, proposed his “Bill Establishing a Provision for Teachers of the Christian Religion.” This would have protected de facto the preferred position of the Episcopal Church even if formal disestablishment were to occur, because it had the majority of pastors. Madison helped defeat the bill with his “Memorial and Remonstrance against Religious Assessments” when it came up for a vote in 1785. Madison was motivated in part by what he perceived as continuing persecution of religious dissent, despite the state constitution’s high-sounding declaration. He fulminated in 1784, “That diabolical, Hell conceived principle of persecution rages among some and, to their eternal infamy, the clergy can furnish their quota of imps for such business.” Finally, on January 16, 1786, the legislature adopted Jefferson’s Statute of Religious Liberty, to disestablish fully the Episcopal Church.

On the other hand, the deeply engrained theocratic tradition in New England prevented complete disestablishment of the Congregational Church. The Massachusetts Constitution of 1780 had a strongly pious Preamble, and in Article II of its Declaration of Rights asserted not only the right, but the duty, of everyone “publickly, and at stated seasons, to worship the SUPREME BEING, the Great Creator and Preserver of the Universe.” To be sure, no one would be punished for worshipping God according to the dictates of his conscience. But worship, one must. Article III emphasized the classic republican connection among good government, religion, and morality. This connection could only be maintained by the “publick worship of God, and…publick instructions in piety, religion and morality.” Accordingly, the legislature was directed to require the “towns…and other bodies politick, or religious societies” to provide financial support for such public worship and for “the support and maintenance of publick protestant teachers of piety, religion and morality.” Moreover, the people, acting through their legislature, could compel attendance at these services.

These blunt commands were softened by allowing those paying the support to direct that the funds go to a religious teacher of their own denomination whose services the taxpayer attended. If there was none, the funds went to the support of teachers the parish selected. Most likely, those selected would belong to the Congregational Church, in light of its dominance among the populace. As well, the same article prohibited the formal legal subordination of one denomination to another. This partial disestablishment of the Congregational Church was largely undermined by the support provision. Adherence to proper religious doctrine was also enforced for state officials through their declaration before taking office that they “believe the christian [sic] religion, and have a firm persuasion of its truth.”

By the time the Constitution was adopted, most states had fully disestablished their churches, though Massachusetts, Connecticut, New Hampshire, Maryland, and North Carolina retained some provision for mandatory taxation for the religion of one’s choosing. At the state ratifying conventions, many delegates had expressed fear that Congress might establish a national religion. The first Congress in 1789 debated a proposed Bill of Rights. Madison included a provision that no one’s rights should be abridged by Congress on account of religion, and that no national religion shall be established. The right of conscience was also protected in another section against invasion by the states. Significantly, the draft said nothing about state religious establishments. Elbridge Gerry of Massachusetts objected to “national” as implying that the United States was a consolidated entity, rather than a confederation. In response, the Report of the House Committee altered the language to “no religion shall be established by law.” The sections protecting the rights of conscience against infringement by Congress and the states, respectively, were unchanged. There still was no language about state religious establishments.

The amendments adopted by the House once more changed the language. Congress was disabled from establishing religion or prohibiting its free exercise. The rights of conscience were expressly protected once more against infringement by either Congress or the states. Yet again, no such language addressed state religious establishments. The clear implication of the language, then, was that states were not prohibited from having official churches, as long as the rights of conscience were maintained, but that Congress could not establish a church for the United States.

The Senate adopted its own amendments. The relevant provision prohibited Congress from “establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion.” The House’s restriction on interference with the rights of conscience by the states was dropped. A conference between House and Senate developed the language submitted to the states for approval. The Senate’s establishment language was seen as too weak, as it opened the door for Congress to fund a religious body, thereby creating an established church through the back door of preferred financial support. In turn, the House’s language that restricted state legislative power was deemed contrary to the purpose of the Bill of Rights, namely, to limit the general government. The result was, as Supreme Court justice and professor of constitutional law at Harvard, Joseph Story, wrote later in his influential Commentaries on the Constitution of the United States, “[The] whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions.” Further, Story wrote, “The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government…. [The] Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.”

However, simply adopting in isolation the House’s language that merely prohibited Congress from establishing religion would suggest that Congress could disestablish existing state churches.  That possibility ran counter to the federal nature of the union and endangered adoption of the amendments by undermining support in New England. That produced the awkward language that “Congress shall make no law respecting an establishment of religion.” Congress shall not establish formal religious orthodoxy through a national church, such as the overall still dominant Episcopal Church; at the same time, Congress, likely to be dominated by adherents of that church, shall not make it its business to disestablish existing state churches. The clause, one might say, incorporates a principle of antidisestablishmentarianism, too. Free exercise of religion (but not of non-religion) was fully embraced even in New England by the late 1780s, though it took several more decades of controversy to disestablish fully the Congregational Church in Connecticut (1819) and Massachusetts (1833).

Today, determining the scope and meaning of the establishment clause in controversies far removed from imprisonment for dissent, civil disabilities for attending prescribed religious services, or direct funding of specific ecclesiastical bodies has proved difficult for the Supreme Court. The clause retains both aspects of disestablishment and of its opposite. Religious test oaths are forbidden, which also means that one’s position even as a leader of a religious denomination is not a disqualifier from political office. The recent questioning by Senators Kamala Harris and Maizie Hirono of a nominee to the federal bench about his fitness for office due to his membership in the Catholic Knights of Columbus at least violates the principle behind the prohibition of such oaths.

As well, the Supreme Court has frequently reminded courts and legislatures that the establishment clause prohibits laws that demonstrate hostility to religion. Indeed, government may take a position of benevolent neutrality towards religion and may (and sometimes must) accommodate the actions of religious believers in otherwise neutral laws of general applicability. Certainly, contrary to some exaggerated assertions based on a hasty metaphor in a politically-charged letter by Thomas Jefferson, the clause does not represent a strict principle of an “impenetrable wall of separation” between church and state. Rather, the establishment clause originally represented a limit on the general government to interfere with institutions that represented the sovereign authority of the people of the states, either by displacing them with a superior national church or by prohibiting them (or, even worse, just some of them) directly. The free exercise clause (and its ubiquitous counterparts in the state constitutions) protected the individual rights of conscience and free exercise of religion, a distinction that Justice Clarence Thomas has emphasized. Today, the establishment clause attempts to strike a balance between, on the one hand, the importance to republican government of fostering the natural human inclination to religion and association in religious communities and, on the other, the social instability that historically has occurred when the realm of Caesar is fused to a particular conception of God, as well as the inevitable corruption of religious doctrine and institutions that results from dependence on government favors.

Let the unabashedly left-wing Justice William Douglas have the last word. He wrote in 1952 in Zorach v. Clausen, “The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State…. Otherwise the state and religion would be aliens to each other—hostile, suspicious, and even unfriendly…. We are a religious people whose institutions presuppose a Supreme Being…. When the State encourages religious instruction…, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.”

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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