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Religious Liberty: The Early American Experience

By: 
General Counsel/Director of Government Affairs

The Constitutional provision against "establishing" a state religion is so ingrained in our common experience that many Americans never stop to wonder how we got here. As part of the Interfaith Center's ongoing analysis of religious liberty and state public policy in Texas, we took a look at the roots of disestablishment in the early years of the United States.

By the time of the American Revolution, the right of “private judgment” (free exercise) was largely unquestioned.  Once other faiths were openly permitted, the subsequent controversy that followed was “voluntaryism” (disestablishment), or how to disentangle the institutions of religion from the new institutions of civil government. 

Madison thought making our First Amendment binding on the States was the most important amendment of all the proposals to be put in the Bill or Rights.  Though that proposal failed, Madison and others continued the struggle for disestablishment state by state.  By 1789, 8 of the 13 colonies had no established church.   Four states never had an established church, and four others had disestablished.  By 1833, no state would have an established church. 

The form establishments took varied, and Massachusetts and Virginia provide good examples of the disestablishment trend.  Massachusetts did not have a statewide established church, but a form of “multiple establishment” decided at the local level where individuals paid a tax, but were permitted to redirect it. In Virginia, establishment was statewide and included laws requiring a license for non-Anglican clergy; approved locations for houses of worship; restrictions on dissenter clergy from performing marriages; restrictions on incorporation of churches and religious organizations; the criminalization of certain religious doctrines; required worship attendance; prescribed modes of worship; and taxes on individuals of non-established churches. 

Virginia

In late 1774, several Baptist ministers in Virginia were jailed for preaching without a license and publishing those sermons.  A young James Madison was outraged.  Brought up Anglican, Madison was educated at the ecumenical Princeton in New Jersey.  He wrote to his college friend from Philadelphia to learn about the Pennsylvania model for church-state relations.  Madison became a lifelong champion for the cause. 

Shortly thereafter, Madison was elected to the Virginia General Assembly which had been tasked by the Second Continental Congress with writing a state constitution.  As a freshman, Madison proved adept at working through elder statesman.  Objecting to the term “toleration,” Madison penned the amendment to the initial draft of what would become Article 16.  Madison believed “toleration” implied subordination and a mere permission of what was truly an inalienable right.  It was a term inseparable from an established church.  Instead, Madison used “free exercise” because it signified the equality of all faiths.  It is the first known use of the term “free exercise.” 

Madison’s amendment also included language to disestablish the Church of England.  In early 1776, that language proved to be a sticking point and Madison had pragmatically stripped it.  However, with war declared in July of 1776, dissenters such as Presbyterians and Baptists began flooding the General Assembly with petitions.  The Presbytery of Hanover stressed the need to unify every denomination behind the war effort, and called for a suspension of divisive laws.  Soon thereafter, the tax supporting the Church of England was suspended and Baptists were allowed to marry couples without going through an Anglican minister.  While laws requiring licensing of ministers and approval of meeting house locations went unenforced, laws barring Baptists from the local vestry which administered the tax dollars collected for the poor continued to be a sticking point.

In 1779, Thomas Jefferson filed Bill No. 82, A Bill for Establishing Religious Freedom.  Like most legislation, it did not pass on the first try.  After the war, Patrick Henry championed the cause of the established church arguing government needed to support religion to help former soldiers transition back into moral, productive citizens.  Jefferson’s bill was stalled, and debate throughout the war had been over which form a “multiple establishment” system might take.  Predictably, previous versions of multiple establishment bills died over articles of faith defining what was too heterodox to be taxpayer funded.  Henry and proponents of a general assessment to support religion strategically waited until late in 1784 to unveil a written version of A Bill Establishing a Provision for Teachers of the Christian Religion.  Nevertheless, Madison was able to use delay tactics in a divided legislature to postpone the bill until the next Legislative session. 

Over the interim, Presbyterians, Baptists, other dissenters and their allies like Madison mobilized.  George Mason, who was married to a Catholic, prompted Madison to write the Memorial and Remonstrance with 15 points in opposition to multiple establishments.  Lobbyists for the Presbyterians and Baptists flooded legislators with numerous other petitions from the dissenter strongholds of the middle and western counties.  When the Virginia Legislature reconvened in October of 1785, Henry’s bill was dead on arrival.  With Jefferson serving in Paris by 1785, Madison took up his Bill No. 82, and seized the moment.  In January of 1786, Virginia passed Jefferson’s Bill for Establishing Religious Freedom.

Massachusetts

To be permitted to redirect the tax to the faith community of the individual’s choosing under Massachusetts’s “multiple establishment” system, a person had to obtain special permission through a certificate.  Such persons were known as “certificate men.”  Certificate men were subject to ridicule and ostracism.  In the 1740’s, property values fell wherever Baptists moved.

Despite its Puritan history, the disestablishment struggle was strong even in New England.  Congregationalist churches were supportive of the Revolution, unlike the Church of England’s clergy with Tory sympathies in the South.  Nevertheless, the disestablishmentarians produced stiff resistance when the state constitution was debated in 1780.  Professor John Witte has cast doubt on whether the controversial Article 3 ever had the two-thirds majority necessary to become part of the state constitution.  It was ratified along with the remainder of the whole document. 

Though slower in Puritan regions compared to the other states with more diversity, the tide was against the establishmentarians.  As a public school system developed after the Revolutionary period, controversy ensued over disentangling from civil government what had previously been the role of religious societies.  In 1827, Massachusetts made it unlawful to teach sectarian doctrines in the common school system and effectively ended public funding of religious schools. 

In the early 19th Century, Unitarianism was on the rise in Congregationalist dominated Massachusetts.  Unitarians were becoming the majority in many of the towns surrounding Boston.  In those towns, Congregationalists were now “certificate men.”  Faced with becoming the stigmatized “other” having to obtain permission from Unitarians to divert their taxes to their own church, Congregationalists gave up.  Massachusetts passed a state constitutional amendment and became the last state to disestablish all churches in 1833. 

See all Religious Liberty post.