teacherken's musings on everything

Our First Amendment begins with two separate clauses about freedom of religion, one which says that there will be no establishment and the other which guarantees free exercise. Both restrictions were applied only to the Federal government (“Congress shall make no law”) because to have attempted otherwise would have doomed any chance of getting a meaningful Bill of Rights. Religion, like slavery, was an issue on which the country was deeply divided in the 1780’s, and any attempt to force a resolution would have meant the new nation would have been stillborn.

In this diary I want to explore something of the background of how the US developed a unique position on religion and government, with both clauses. I lack Unitary Moonbat’s skill as an historian, but this is an area that has long concerned me and I have just completed a month of intensive study at an NEH seminar. If the subject interests you, please keep reading.


Prior to the Declaration, the thirteen colonies that were to form the new nation had a very mixed record on the subject of religion. Despite the national myth of religious freedom being an essential part of our early settlement, the reality is something quite different. Massachusetts Bay was founded as a religious theocracy, and even Maryland in its early and Catholic days in theory prescribed in its famous Act of Toleration death for anyone who denied the Holy Trinity. The only colony which even guaranteed what we would consider free exercise (or non-exercise) for all was the Rhode Island founded by Roger Williams (who perhaps ironically we would probably best describe as a Baptist). Even Penn’s woods required one to believe in God in order to be a resident.

I cannot go through the complete histories of every colony / state during the period from the Declaration in 1776 to the final disestablishment of the Congregational Church in Massachusetts - first passed by the legislature in 1832 and ratified by the populace the following year. Probably the best work on the entire history of Church-State relationships in the US up until the time it was written is now out of print, published in 1950. It is by Anson Phelps Stokes, it is in three massive volumes, and is entitledChurch and State in the United States. Much of the material you will read in this diary is derived either directly from Stokes, or from the presentations of my fellows at the NEH seminar.

The first notable move towards total religious freedom took place in Virginia. George Mason, with some prompting from the young James Madison, first drafted the Virginia Declaration of Rights which stood for freedom of conscience, and the enabling law under the new (1776) Constitution exempted dissenters from paying taxes for the still established Anglican Church. While not full disestablishment, it recognized the inequity of forcing people to pay for support of a religion that they opposed. In 1780, after heavy lobbying by Baptists, the Anglican monopoly of marriage was finally modified, with other denominations receiving the write to perform the ceremony and special adaptations made to meet the religious needs of Quakers and Mennonites. Over the next few years Baptists often took the lead in arguing for further separation, on the grounds, to quote Phelps

that the Declaration of Rights prohibited the regulation of ecclesiastical affairs by the legislature, and consequently that the latter had no right to adopt any regulations for the Episcopal Church.

(p. 374) Other influences in Virginia came from Presbyterians, from Quakers, and especially from the influence of philosophers, especially in their impact on thinkers like Mason, Jefferson and Madison. But here Stoke notes

It should be noted that chronologically the effective efforts of the philosopher-statesmen came only after the ground had been well cleared by the dissenting ministers, and that the former were for the most part connected by membership or association with Establishment which they overthrew.

(p. 379)
The clear ending of establishment in Virginia was the result of Jefferson’s Statute, which he had drafted while Governor in 1779, but not finally passed into law until 1785 while Jefferson was in Paris, and because of the good efforts of Madison.

While North Carolina adopted its own declaration of rights also in 1776, it was a document that did not go as far as Virginia would later go. It stopped mandating religious taxes and in theory disestablished the Anglican Church, but required one to be a Protestant to hold office and barred clergy from public office. These provision remained until1835, at which time being a Christian was substituted for being a Protestant, thus allowing Roman Catholics to hold office. Further changes did not occur until after the Civil War.

Let me skip to summarizing the status in the 13 new states after independence, but prior to the Federal Constitution. I will quote again from Stokes, p. 444, where he builds on the work of others:

Two out of thirteen, Virginia and Rhode Island, conceded full freedom;

One, New York, gave full freedom except for requiring naturalized citizens to abjure foreign allegiance and subjection in all matters ecclesiastical as well as civil;

Six, New Hampshire, Connecticut, New Jersey, Georgia, North and South Carolina, adhered to religious establishment;

Two, Delaware and Maryland, demanded Christianity;

Four, Pennsylvania, Delaware, North and South Carolina, required assent to the divine inspiration of the Bible;

Two, Pennsylvania and South Carolina, imposed a belief in heaven and hell;

Three, New York,Maryland, and South Carolina, excluded ministers from civil offices;

Two, Pennsylvania and South Carolina, emphasized belief in one eternal God;

One, Delaware, required assent to the doctrine of the Trinity;

Five, New Hampshire, Massachusetts, Connecticut, Maryland, and South Carolina, insisted on Protestantism;

One, South Carolina, still referred to religious “toleration.”

Congress under the Articles of Confederation, in 1787 passed the Northwest Ordinance to govern the territory that became the 5 midwestern Great Lakes states. In Article I of that document it declares that no peaceable person

shall ever be molested on account of his mode of worship or religious sentiments

which is the first statement at a national level of the idea of free exercise.

The Constitution itself is almost silent on the subject of religion. It was only at the last minute that the provision in Article VI for no religious test was added. Jonas Phillips, a Jewish Revolutionary War veteran, wrote to the convention asking for no test, and referred specifically to the Pennsylvania oath of office which required one to

acknowledge the Scriptures of the Old and New Testament to be given by Divine inspiration.

The provision was proposed by Charles Pinckney of SC and referred to committee, which did not report it back in the final draft, so Pinckney moved it from the floor where it passed without significant opposition. Pinckney as Governor of the state was also able to get that state’s Constitution changed in 1790 to achieve full disestablishment and complete enfranchisement and complete religious freedom ”without distinction or preference” although the state maintained its ban on clergy holding office.

There is one more point that needs to be made about the early Republic. In 1797 the Senate ratified a treaty with Tripoli, a document whose 11th article contains the following words:

As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any .war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.

It is worth noting that the Senate of this 5th Congress including 7 men who had been in the 1st Congress and thus voted on the First Amendment. There were at this time 16 states, and thus 32 Senators. This provision of the treaty was well publicized in the press of the day, and no significant opposition on account of Article XI is reported in the press, nor was there any serious opposition in the Senate.

By 1800 we can thus note the following. (1) there is a history of moving increasingly towards separation of church and state, but at the state level there are still established churches, mainly in New England. (2) Free exercise was generally accepted even at state levels, and had been guaranteed for federal territory even before the Constitution. (3) There was no religious test for federal office. (4) many states still had religious tests for office. (5) The Senate of the United States had ratified (and thus added to the Constitution under the supremacy clause) a treaty that bluntly stated that we were not a Christian nation.

It is my belief that this early history is poorly understood by most Americans. People will pick and choose data to support predetermined positions. While there was a general acceptance of the idea of free exercise of religion, and at a national level we had been able to separate church and state, that may have been as much because of the regional differences in religion as it was due to enlightenment ideas driving men like Mason, Jefferson, and Madison. One can see various levels of Christian domination continuing for years at the state level. Maryland did not allow non-Christians to hold public office until the Jew Bill of 1826. And if one were to look at the most recent Constitution of the Commonwealth of Pennsylvania, adopted in 1978, one finds the following:

“Religion
Section 4.
No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth.”

.

Now strictly speaking this is NOT a religious test - it is a guarantee. And thus it is not in conflict with having extended provisions of the Bill of Rights to the states under the doctrine of incorporation, something the Supreme Court first does for free exercise in Hamilton v. Regents of the Univ. of Cal., 293 U.S. 245, 261–62 (1934) and for establishment in Everson v. Board of Educ., 330 U.S. 1, 8 (1947). Thus when Justice Thomas argues against incorporation applying to the religion clauses of the First Amendment he has the greater part of our judicial history on his side, even if the trend at state levels was to fairly completely include the provisions of the Federal constitution in state constitutions and legislation.

One other issue that often comes up in disputes about church and state is the idea of the wall of separation, which comes from Jefferson’s 1802 Letter to the Danbury Baptist Association, in which he argues that the First Amendment has the effect of

thus building a wall of separation between church and state

. This letter is first relied upon by the Supreme Court in Reynolds v. United States, 98 US 145. (1878) [which is a case that upheld a ban on polygamy in the Utah Territory, not allowing an exemption for religious reasons for a Mormon], and next used, by referral to this case, by Hugo Black in Everson v. Board of Education. 330 US 1 (1947).

The wall of separation argument leads into another, perhaps more subtle, argument. Does the idea of no establishment mean total neutrality on the religion or merely impartiality? That is, must government stay uninvolved with religion, remaining neutral as to religion or non-religion, or must it merely avoid showing favoritism to a particular religion? There is a fair amount of evidence that many of our Founders thought religion a good thing, and wished to encourage it, to which some who argue for more governmental involvement with religion often point. But it is not clear that their idea of religion and its role would correspond with what those advocates argue today - many of our key founders cannot legitimately be claimed as conventional or “orthodox” Christians as we might apply those terms in our own time.

It is probably fair to say that the vast majority of Americans accept the premise of free exercise in general, even though they may on occasion react viscerally to certain groups for varied reasons, including world events. But we are far less clear on the idea of establishment.

And in a sense this corresponds with what most of the world thinks. Even as there are an increasing number of democracies in the world, disestablishment at a national level is far less common than some sort of guarantee of free exercise to some degree. Thus the democracies in Scandinavia have state churches, as does the UK, and so on.

We can see this pattern in two key international documents, which do address elements of free exercise, but which remain silent on establishment. These are the Universal Declaration of Human Rights and the Universal Covenant on Civil and Political Rights. Let me offer a brief glance at each.


Universal Declaration of Human Rights adopted by the UN General Assembly in 1948 has the following items related to freedom of religion bold added):

Article 2.

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. . . .


Article 16.

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution....


Article 18.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

The final article of the Declaration is also quite important:

Article 30.

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

This document was a statement of principles, but was not something subject to ratification as an international agreement.

In 1966 an updated document, the International Covenant on Civil and Political Rights was created, which became part of international law when it was ratified by 35 countries, a goal achieved in 1976. We find included there many of the same provisions as in the 1948 document. Here the key part is Article 18:

Article 18

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

.

While the U.S. signed this document, it was not ratified by the Senate, perhaps because it barred execution of people under the age of 18 at the time of their crimes, perhaps for other reasons. While Israel has ratified the document, many Muslim countries did not. Among those that did were Afghanistan(!), Algeria, Egypt, Iran, Iraq, Jordan, Libya, Mali, Morocco, Somalia, Sudan, Syria, Tunisia and Yemen. I’m not sure what conclusions we can draw from presence or absence of ratification.




This has been an overview of the relationship of religion and government in the early history of the US. I have chosen NOT to go through many of the key Supreme Court decisions, because our national jurisprudence is not that stable, and given the current makeup of SCOTUS may well see even further changes.

I would argue that democracy is not possible without complete free exercise, and I think the span of our history and the trends in international documents such as those cited support that position. I do not believe that complete disestablishment, to the point of Jefferson’s wall of separation, is an equivalent necessary requirement: after all, there are many Western European nations that are quite democratic and still have state churches.

That does not mean that I am not a vigorous supporter of Jefferson’s wall, because I am. To my mind, absent that wall of separation the United States as the vibrant and diverse and free nation that we have been could not exist. Perhaps it is because I have spent much of my life as a member of minority religions that I tend to agree with Thomas Paine that the idea of tolerance is that a more powerful grants certain privileges to the less powerful, and that such an idea is alien to democratic thought, to the idea of full equality. But I also recognize that the idea of complete government neutrality towards religion has never been fully accepted in this nation. I believe that most Americans do not know our history on this, full as it has been both of achievements and problems. I am not an expert, but I hope this posting may help increase some understanding, and perhaps whet some appetites to explore the issue more fully than I could.

peace.