|The Constitutional Principle: Separation of Church and State
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The struggle for religious freedom began with the states. It was a roller coaster type struggle: frequently provisions in newly written Constitutions and statutes were in conflict with each other and actual practice.
When the original thirteen colony/states began writing their own constitutions in 1776, four of those colony/states [Rhode Island, New Jersey, Delaware, Pennsylvania]had never had an establishment of religion. The greater part of New York, had never had an establishment of religion. However, there were four counties in the area around New York City that did have an establishment. The other eight colony/states did have some form of an establishment of religion.
An establishment of religion, in terms of direct tax aid to churches, was the situation in nine of the thirteen colonies on the eve of the American revolution. (1)
Within a period of seventeen years, that had been reversed. By approximately 1791, nine of eleven states that ratified the amendments of 1789 had ended that support.
As Leonard Levy sums it up:
The First Amendment bans laws respecting an establishment of religion. Most of the framers of that amendment very probably meant that government should not promote, sponsor, or subsidize religion because it is best left to private voluntary support for the sake of religion itself as well as for government, and above all for the sake of the individual. Some of the framers undoubtedly believed that government should maintain a close relationship with religion, that is, with Protestantism, and that people should support taxes for the benefit of their own churches and ministers. The framers who came from Massachusetts and Connecticut certainly believed this, as did the representatives of New Hampshire, but New Hampshire was the only one of these New England states that ratified the First Amendment. Of the eleven states that ratified the First Amendment, New Hampshire and Vermont were probably the only ones in which a majority of the people believed that the government should support religion. In all the other ratifying states, a majority very probably opposed such support. But whether those who framed and ratified the First Amendment believed in government aid to religion or in its private voluntary support, the fact is that no framer believed that the United States had or should have power to legislate on the subject of religion, and no state supported that power either.(2)
The process of formal disestablishment would be quick and fairly painless is some states while in others, such as Virginia, the process would require a much longer fight--approximately ten years, and in still others (in the New England area) the process would go on well into the 1800s. Connecticut would disestablish in 1818, New Hampshire would disestablish in 1819 and Massachusetts would disestablish in 1833]
In 1776, eight states (Delaware, Maryland, New Hampshire, New Jersey, North Carolina, Pennsylvania, South Carolina, Virginia) wrote constitutions. These were followed by New York, and Georgia in 1777, and Massachusetts in 1780. Connecticut and Rhode Island elected to continuing operating under their charters and (until 1818 in the case of Connecticut and 1843 in the case of Rhode Island). The fourteenth state, Vermont, actually wrote its first constitution in 1777.
The learning curve for constitution writing and application coupled with the events of the War for Independence, the experiment under the Articles of Confederation, the formation of the new central government and finally the amendments added to that national constitution would cause many of these original constitutions to be rewritten and revised at least once and in some cases more then once by 1800:
Reality was that even in those states that did not have religious establishments, real religious freedom wasn't always present.
As John K. Wilson explains,
Many of the states included guarantees of religious freedom, but these vague statements were not as easily enforced as the specific provisions against establishment. Indeed, many times the same state legislatures which passed religious freedom provisions turned around and infringed religious rights without any qualms. . . .
But the commitment to religious liberty, at least in theory, was strong throughout the Revolutionary Era and afterwards. Every substantial state constitution written during the period 1776-1800 includes a protection of religious freedom. (3)
The provisions found in the various constitutions usually contained basically some form of the following elements:
As Wilson surmises: "The vagueness of these provisions, and the lack of a mechanism to enforce them, suggests that they rarely affected the actual treatment of religious groups in any of the states." (4)
The most important thing to observe in studying the process is the constant evolution from a lack of religious freedom prior to the Revolution towards greater freedom as each state wrote and re-wrote its constitution.
Of the five states which wrote more than one constitution from 1776 to 1800, four increased religious freedom, and the sole exception, Pennsylvania, already strongly protected it. Delaware, from 1776 to 1792, eliminated the provision giving equal protection of laws only to Protestants and the statement that civil law could not be violated because of religious beliefs. The latter was also eliminated in Georgia from 1777 to 1789, and in 1798 equal protection and no forced attendance were added. From 1778 to 1799 South Carolina ended the limitation of equal protection to only Christians and Jews, and Vermont (from 1777 to 1784) ended a similar protection for Protestants, thereby allowing it for all. Two states which joined the United States in this period, Kentucky (1792) and Tennessee (1796), wrote strong provisions for religious freedom, revealing this trend towards greater freedom.(5)
In addition, many states required tests to keep non-Christians or in some cases Catholics out of public office:
The first constitution to prohibit religious tests was the United States Constitution written in 1787.(6)
Article VI of the Constitution guarantees that "no religious test shall ever be required as a qualification to any office or public trust under the United States" reflecting the growing movement in America towards religious freedom and also encouraging many states to end religious tests. After the U.S. Constitution came a shift in state constitutions as Georgia (1789), Delaware (1792), Vermont (1793), and Tennessee (1796) expressly forbade religious tests, and Kentucky (1792) did not mention them. Of the other two states to change constitutions in this period, Pennsylvania (1790) extended its religious test to allow Jews as well as Christians to hold office while South Carolina (1790) was the only state to continue a religious test unaltered.(7)
Some states prohibited members of the clergy from running for office, serving as an elected official or taking any role in the civil government. When the Constitution was adopted; Maryland, Virginia, North Carolina, Georgia, New York, Delaware, and South Carolina had such restrictions. Gradually throughout the 1800s such restrictions were removed in most states that still had them. Finally in 1961 and again in 1978 the U S Supreme Court struck such restrictions in Maryland and Tennessee as being unconstitutional.
The use of the word "establishment" in the First Amendment is unique to constitutions of this period. No state constitution used this particular term, preferring to make specific provisions which prohibited tax monies for churches, discrimination against minority sects, and other measures which might establish a church. The use of the vague term in the Bill of Rights indicates the belief that the national government had no power in these specific areas, so that a general prohibition towards matters of religion was sufficient. In this sense, the two religion clauses, taken together, were meant to incorporate the measures in state constitutions, as well as placing further limitations on Congressional power.
The treatment of religion in the Constitution and the Bill of Rights is notably different from the provisions in state constitutions; not only are the national clauses noticeably shorter in both number and length, but the completeness of their prohibitions is unprecedented--no religious tests, no establishments, no laws prohibiting the free exercise of religion. In all state constitutions there are some limits placed on these religious liberties. But the national government under the U.S. Constitution is prevented by clear and bold language from any power to control religion. Even the Preamble lacks the common reference to God which is even found in most current state constitutions.
This study of state constitutions in the founding period reveals both a wide variety of provisions concerning religion and a quick turnover of these clauses when constitutions were modified. Two important facts can be clearly discerned: (A) that the United States Constitution and the Bill of Rights were a significant advancement of religious liberty over state constitution of the time; and (B) that without significant exception, the numerous changes in state constitutions served to expand, rather than restrict, religious liberty. These early constitutions show that the religion clauses of the First Amendment were only; part of a larger trend towards religious liberty and disestablishment which was ongoing in every state and eventually led to the end of direct tax support for religion in America.(8)
It is important to keep in mind that disestablishment was a process. Many times people forget that, and they point to this event or that event and say, "See, this shows the founders didn't mean to separate church and state because they did this or that."
Writing a clause or provision into a constitution, or passing statutes does not automatically bring about change. Humans are creatures of habit and thus tend to continue to do things in the same ways. Disestablishment, the separation of church and state producing religious freedom, would not take place over night. As already demonstrated here, it was a process, one that began on the state level in 1776, and moved forward over a period of time. That process still takes place today.
The events on the state level influenced what took place on the national level, which in turn helped reinforce and further influence what was taking place on the state level.
Moving into the 1800s and continuing on into this century; battles were, at times, fought in the state courts. Between 1800 and 1920 there were 87 recorded Sabbath closing law cases, 112 recorded church property disputes, 18 public school prayer and bible reading cases, 15 cases involving public aid to sectarian school, and 22 reported blasphemy cases. (9)
(2). The Establishment Clause, Religion and the First Amendment, By Leonard W Levy, page 146-147.
(3). Religion Under the State Constitutions, 1776-1800, John K Wilson, Journal of Church and State, Volume 32, Autumn 1990, Number 4, pp 760-761.
(4). Religion Under the State Constitutions, 1776-1800, John K Wilson, Journal of Church and State, Volume 32, Autumn 1990, Number 4, pp 761.
(5). Religion Under the State Constitutions, 1776-1800, John K Wilson, Journal of Church and State, Volume 32, Autumn 1990, Number 4, pp 762.
(6). Religion Under the State Constitutions, 1776-1800, John K Wilson, Journal of Church and State, Volume 32, Autumn 1990, Number 4, pp 764.
(7). Religion Under the State Constitutions, 1776-1800, John K Wilson, Journal of Church and State, Volume 32, Autumn 1990, Number 4, pp 765.
(8). Religion Under the State Constitutions, 1776-1800, John K Wilson, Journal of Church and State, Volume 32, Autumn 1990, Number 4, pp 766.
(9). Death of the Christian Nation: The Judiciary and Church-State Relations, H. Frank Way, Journal of Church and State, Volume 29, Autumn 1987, Number 3, pp 511.