Freedom of Religion in America – Episode 2 (full version)

This is the story of Freedom of Religion in the United States and its subsequent assault and attempt at subjugation by the concept of “Separation of Church and State”

The fundamental right of Religious Freedom and the imposition of the concept of the Separation of Church and State are embroiled in a constant struggle.  The latter concept as it was and is invoked in the conduct of our lives and in our society affairs is a misrepresentation, a lie, that spread throughout the nation before the truth got its boots on, and is now regarded by most as a factual truth. Paradoxically, neither the term, nor the concept of “Separation of Church and State” appears in the U.S. Constitution.  Yet, the overreaching, misguided and zealous invoking of the concept of Separation of Church and State as if it is the law of the land in our Constitution has effectively served to diminish the actual free exercise of religion specifically provided for in our Constitution’s Bill of Rights.

The first tenet in the Bill of Rights as stated in the First Amendment to the Constitution is that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  (“respecting” may be read as “pertaining to” or “with respect to”) 

Colonial Unification and Constitutional History Related to Freedom of Religion

As described in Episode 1 neither “freedom of religion” nor the concept of or inclination toward  the “Separation of Church and State” were principles in the founding and early expansion of the 13 Colonies.  As the colonies grew over the next 100 years or so and the revolutionary period approached, “state churches” continued to exist in most of the colonies.  The concepts of freedom of religion and religious toleration arose or existed in some regions but there was no organized, concerted effort to extend or push this principle.  More commonly there were prejudicial actions and restrictions placed on individuals and groups who did not belong to the “state” sponsored church.  For example, typically membership in the “state church” was a requirement for holding office in the colony’s government. Each colony functioned relatively independently, and when the colonies did work together it was usually related to common defense, foreign policy, trade or some other economic issue.  And internally, within each colony, because there were more important or more pressing issues to occupy the consciousness of the populous, religious toleration was to a certain extent “unofficially” practiced.

However, the status quo of the Colonies, each to some degree under the thumb of the British King and Parliament, began to change after the French and Indian War (1754-1763).  The Colonists, viewing themselves as British subjects, considered they had the “rights” of British subjects.  Complaints concerning England’s governance of the Colonies arose (taxation, quartering of British soldiers, etc.) and the Colonists considered that the Mother Country was restricting or retracting their rights.  Freedom of religion, however, was not one of the rights about which most Colonists were concerned.  Many were Anglican in the first place, and they did not previously have a religious freedom right under the crown.  Further Britain was not actively involved in the religious affairs of their subjects in the American Colonies.   So religious freedom was not one of the root issues leading to the revolutionary war.  But as a practical matter there were several factors that eventually drove religious freedom to the forefront of the Bill of Rights.

These factors included: (1) the necessity of the religiously disparate colonies to unite, (2) the common sense that recognized the diversity in Christian sects present among the states and within the total population had to be accommodated, (3) recognition of the incongruity of individual liberty and freedom for all and the dictating of a religious belief by a state, (4) the absence of any religious fervor or agenda among the founding fathers toward pushing for any particular Christian sect (and the “Anglican” denomination would certainly not be put forward in that role because of its ties to England), and (5) the religious freedom resolution which was put into the Virginia Constitution in which James Madison participated.  Now let’s explore these factors.

The 13 original colonies were not all that interested in uniting and giving up their “states rights”, not at the time before the Revolutionary War nor even afterward when the time came to prepare a Constitution and form a stronger central government.  However, it must have been evident to the Colonial leaders, like Franklin,  Adams, Washington, Jay, Hamilton and Madison who worked to unite the Colonies, first via the Committees of Correspondence, then under the Articles of Confederation, and finally under the U.S.  Constitution for the governing of the United States, that:

• there was no need for the individual states, much less the central government, to establish a “state church”
• it was not reasonable or realistic to establish a single Christian church denomination to which each of the States would be required to adopt and all the people would be required to belong
• such a requirement would have been antithetical to the cause of individual freedom.

Further at that time in history, Deism (believe in a Supreme Being but not the Christian Gospel) had become common among many, including some of the most influential founding fathers (writers of the constitution).  As a rule deists continued to attend church services (Anglican,  Puritan, Universalist, etc. ) throughout their lives, as it was important in maintaining their social standing.  However, imposing a state church upon the populous would not have been something that all of them would have personally supported.

Thus, upon winning independence from Britain and becoming united Colonies, the freedoms that the colonists had specifically fought for and won became reality.  Freedom of religion, while not a right given much attention with respect to the Revolutionary War, was a byproduct of it.  While a large number of Anglicans and New England Congregationalists may not have even considered freedom of religion an issue (as they essentially had it all along), there were likely a great number of people who recognized and rejoiced in the fact that there was no longer a “state church” and that freedom of religion would become a reality and an acknowledged fact.  The numerous Christian people whose denominations in America had been the receivers of religious intolerance would have been keenly interested in making religious freedom a documented fact in the new country and its constitution.   The need to acknowledge this fact may have been one of the major driving forces behind the need for the Bill of Rights.

One major exception to the general state of ambivalence of the liberated Colonists attention toward documenting religious liberty was in the colony of Virginia. Recall Virginia was one of the colonies that had an established Anglican “state” Church.    Virginia, was alive with the fervor of individual liberties, and one of those liberties that was being abridged was freedom of religion via the imposition of the Anglican Church.  So, not withstanding that the Anglican Church was the church home of most of the prominent Virginia revolutionaries and statesmen who had sought liberty, it was even more so the home church of the British loyalists with whom they had contended.  The patriot revolutionaries including James Madison, George Mason and Thomas Jefferson, who were representatives to the Virginia constitutional convention did not like the idea of the imposition of the requirement for a “state” Anglican Church in Virginia and supported and obtained “a declaration of the free exercise of religion” in their Constitution.   Three years later, state aid to the Anglican Church was cut off and in 1786 (just before the United States Constitutional Convention in 1787) Jefferson’s famous “Bill for Establishing Religious Freedom” was passed by both houses of the state legislature.  This bill stated “all men shall be free to profess, and by argument to maintain, their opinion in matters of religion”, and guaranteed Virginians that they would not be compelled to “support any religious worship place or ministry whatsoever”.  It took other states many years to include like language in their state constitutions.

The answer to the question of how and why “freedom of religion” become the first and one of the key rights, named in the Bill of Rights despite it not being a key issue driving the Revolution War is now becoming a bit clearer.  But it is still three more years before “Freedom of Religion” becomes an integral part of our founding documents.

As indicated above, at the time the Constitution was being written, maintaining States Rights was the prevailing mentality among the delegates.  Most delegates to the Constitutional Convention in 1787 represented their states with the idea that the central government should be limited.  Thus, the intent and focus of those preparing the Constitution was, that only the powers and responsibilities delegated to the central Government would be covered in the Constitution, everything else, anything that was not specifically identified, would remain with the states or with the people.  (This intent was later captured and still exists in the 10^th amendment to the U.S. Constitution.)

Because of the limited delegation of powers intent and focus, James Madison, the prime mover of the Constitution, and other delegates did not consider it necessary for the Constitution to spell out those powers / rights that were not given to the Central Government.  Thus, it is not surprising, especially in light of the discussion above, that there was no consideration and no discussion of a “state church” or in fact anything to do with religion in the Constitution.   There was to be no coercive power, no legislative influence, and no preference to be given to one church denomination over another by the Federal Government.  The Constitution assigned no powers and responsibilities to the central Government regarding religion.  There was no discussion of the concept or idea of the separation of church and state.    By silence on the matter it was clear that the past practice of a “state church” would not be the future practice and thus the Federal Government would not be establishing a “preferred” state sponsored denomination.   Churches (and their status in various states) and the Federal Government were recognized and accepted as distinct institutions.  But importantly, not as conflicting institutions.  Many of the founding fathers considered, just as the Pilgrims did, that the making of America was divinely inspired and divinely led.  James Madison, known as the father of the Constitution, when commenting on the Constitution, stated:  “We have staked the whole future of American civilization, not upon the power of government, far from it. We have staked the future of all of our political institutions upon the capacity of mankind of self-government; upon the capacity of each and all of us to govern ourselves, to control ourselves, to sustain ourselves according to the Ten Commandments of God.”   John Adams recognized the opportunity of the American Colonies to found a great democracy of the people as a gift from God and said we therefore “better get it right”.

So on September 17, 1787 the U.S. Constitution was completed and sent to the states for ratification and on June 21, 1788 it was ratified by the 9^th state and became the law of the land.  The key aspect of the Constitution with respect to religion was that there would be no “State Church” and in fact the Federal Government was granted no powers with respect to “governing” religion.  However, ratification came with requests from several states that specific rights of the people be spelled out.

That brings us to the end of Episode 2.  In Episode 3 we will learn how James Madison’s simply stated first sentence in the First Amendment of the Bill of Rights, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”, came to be. That statement, which is the only statement concerning religion or the church within the United States Constitution (as amended), provides the basis of a clear understanding of intent and we will see how that intent was implemented, respected and followed for the next 150 years.