A Publication of Separation of Church and State Law Ministry.
December 18, 2017
This article will succinctly answer several questions:
- What did “establishment or religion” mean in the colonies?
- What did “establishment or religion” mean at the time of the adoption of the First Amendment?[i]
- What happened with the remaining forced religious establishments after the adoption of the First Amendment?
- What does “establishment or religion” mean today?
I. Introduction: Meaning of “Establishment of Religion”
II. The Path to Multiple Establishments in the American Colonies
III. State Establishments
I. Introduction: Meaning of “Establishment of Religion”
To understand these issues, one must first define “establishment of religion” and understand the meaning of “law ‘respecting’ an ‘establishment of religion.” At the adoption of the First Amendment, “No law respecting” meant “no law concerning or touching the subject of.” That still leaves unresolved the meaning of “establishment of religion.” Prior to colonization and for some time thereafter, “establishment of religion” meant one officially recognized church which worked with, over, or under the state, the civil government. The original meaning of “establishment of religion” which existed prior to and at the founding of America, was replaced by a “multiple establishment” understanding long before the adoption of the First Amendment. “The evidence demonstrates that by an establishment of religion the framers meant any government policy that aided religion and its agencies, the religious establishments.”[ii]
“After the American Revolution, seven of the fourteen states that comprised the Union in 1791 required establishments of religion by law. The other states which originally had established churches, had already done away with forced establishment in favor of chosen establishment and they all provided for multiple establishment. No state maintained a single or preferential establishment of religion. An establishment of religion meant to those who framed and ratified the First Amendment what it meant to the states: support of religion on a nonpreferential basis. It was specifically this support on a nonpreferential basis that the establishment clause of the First Amendment sought to forbid.”[iii]
In 1833, Massachusetts became the last state to replace forced establishment of religion with establishment of religion by choice. The First Amendment forbade establishment of religion in federal jurisdiction.
II. The Path to Multiple Establishments in the American Colonies
Establishment by choice and the free exercise of religion (soul liberty) took different paths in America. Almost all the colonies started out with single establishments of religion. Due to a variety of factors, by the time of the adoption of the First Amendment, all state establishments, whether by force or choice, were general or multiple establishments.
In the conventional sense, before the colonization of America as well as in most of the original colonies when founded, an establishment of religion meant the legal union of government and a single church or denomination such as Catholicism (numerous European countries), Calvinism (Geneva), Presbyterianism (Scotland), Lutheranism (Germany), or the Church of England.
With the founding of the colonies, conventional establishments existed in the southern colonies of Virginia, Maryland, North Carolina, South Carolina, and Georgia. In 1778, South Carolina created an establishment or religion endorsed by William Tennent. “He called it a ‘general establishment’ because it recognized and nurtured the legal equality of all Protestants without preferring one denomination over others.” These general establishments were replaced by multiple establishment.
New England, Massachusetts, New Hampshire, and Connecticut at first had single establishments, Congregationalism. Massachusetts, Connecticut, and New Hampshire were founded and ruled by the Puritans, who came to American for freedom of religion “for themselves only.” The Puritans felt that they were the right people, at the right place, at the right time to establish a “city on a hill” to light the world, to show the world the rightness and resulting blessings of doing things God’s way (according to their Calvinist theology). Their experiment was well on its way to self-destruction by 1660. Gradually, the exclusive establishments in these New England colonies were replaced by multiple establishments.
Persecutions of “heretics,” those whose conscience prohibited them from bowing down to the colonial establishments were well documented. Those who supported establishment of their church were persecuted when in a colony with another established church. For example, Anglicans in New England were persecuted when they went to Massachusetts, and Presbyterians and others were persecuted to one extent or another in Virginia and other southern colonies. However, in opposing the persecuting establishment, they never favored complete separation of church and state and combined church and state when in the majority or in control.
A minority remnant of the Baptists were the only ones who consistently stood against union of church and state. That most Baptists by that time did not oppose total separation of church and state became clear when most of them sought certificates and compromised on the issue when the move toward multiple establishments had taken force.
Among those who stood their ground and led the fight against any establishment were Roger Williams, Dr. John Clarke, Isaac Backus, and John Leland. In New England, Roger Williams, Dr. John Clarke, and later, Isaac Backus wrote extensively against establishment and chronicled the persecutions which continued until the eve of the American Revolution and after, to a lesser extent.[iv] On the eve of the American Revolution, in 1774, eighteen Baptists were jailed in Warwick, Massachusetts for refusing to pay taxes in support of the town’s Congregational minister. To be exempted from paying the ministerial tax, a Baptist had to obtain a certificate that he regularly attended a church of his own denomination. For a copy of the certificate, he had to pay a tax of four pence. Isaac Backus, and some of his followers opposed the tax and the certificate and maintained that they were persecuted by the Congregational majority. John Adams, a Congregationalist (Puritan) leader stated that the establishment was “but a slender one” that did not infringe religious liberty.
In 1774, Baptists still paid ministerial taxes in Virginia and other colonies for building churches and were imprisoned for preaching in unlicensed Houses, preaching without Anglican ordination, and for other infractions. Virginia Baptists were beaten by mobs, fined, and imprisoned for their religious beliefs which prevented them from obeying the laws of the established Anglican Church, preaching. The Virginia establishment originated with the colonies first charter in 1606.
Rhode Island not only never had an establishment of any kind, but also commanded complete religious freedom of soul liberty for all. Pennsylvania, Delaware, and New Jersey had no establishment of religion, but did not allow completed religious freedom for all. For example, Pennsylvania did not grant freedom of religion to Catholics.
In New York, Massachusetts, Connecticut, and New Hampshire, the pattern of establishment was diversified and unique. New York was the first example of an establishment very different from the European type, a general establishment without preference to one church over others.
III. State Establishments
The First Amendment, which until 1947 applied only to the federal government, forbade establishment of religion and guaranteed soul liberty at the national level only. After the First Amendment was adopted, states which still had laws requiring establishment gradually amended their constitutions to do away with the requirement that churches be “established.” All state constitutions allow churches to became established, but also provide that a church can make the choice not to become established. State constitutional provisions regarding church and state do not require establishment and also mandate soul liberty or the free exercise of religion.
A remnant of the Baptists continued to stand against any kind of establishment, including establishment by incorporation until all states had done away with forced establishment. John Leland was notable Baptist preacher, writer, and activist against union of church and state during a period starting in the 1780’s in Virginia and later in Massachusetts and Connecticut. The efforts and writings of earlier Baptist leaders, especially those of Isaac Backus, continued their influenced during this period. Most Baptists had already been severed from their roots and betrayed God and their historic Baptist forefathers who had stood against the establishment to the death.[v]
New Jersey (1776), Pennsylvania (1776), New York (1777), and Delaware (1776 and 1792) made clear in their Constitutions that there would be no coerced establishment of religion.
North Carolina, by its constitution of 1776, became the first southern state to enact preferential establishment. “In Maryland, Georgia, and South Carolina, ‘an establishment of religion’ meant very much what it did in the three New England states that maintained multiple establishments. However, those three southern states merely permitted but did not create establishment.”[vi]
In six other states, pro-establisment parties were forced to make concessions to the growing sentiment against any forced establishments. Four other states replaced single establishments by authorizing multiple establishments, and two substituted multiple establishments for dual ones. “The evidence relating to each of these six proves that an …an establishment of religion was not restricted in meaning to a state church or to a system of public support of one sect alone; instead, and establishment of religion meant public support of several or all churches, with preference to none.”[vii]
Three of these states—Massachusetts, New Hampshire, and Connecticut—were in New England. The 1780 Massachusetts Constitution allowed for the possibility that a Baptist or some other minority minister might be elected by a town and receive the taxes of his congregation. This happened in several towns where the Baptists became the majority. In those towns, the Baptist ministers, by law, were supposed to receive their salaries from the town treasuries. As the Reverend John Leland pointed out, in towns where Baptists formed a majority, they might “tax all in the town or precincts to part with their money for religious uses,” thereby violating Baptist principles.[viii] A minority of Baptists stood on Bible principles and followed Isaac Backus in refusing to compromise their beliefs; but a majority followed men such as Hezekiah Smith and compromised on the important doctrine of separation of church and state. The conflicts continued until 1833, when Massachusetts became to last state to do away with required establishments.
New Hampshire’s establishment of religion after the Revolution did not significantly differ from that of Massachusetts. Article VI of its 1784 Declaration of Rights created a multiple establishment. The majority of New Hampshire’s Baptists, sometimes sought the incorporation of their churches, as in Massachusetts, to insure tax exemption of their congregants from a local Congregational church. But, says William G. McLoughlin, most of the petitions to incorporate “seemed to originate from the Baptists’ desire to enable their congregations to levy religious taxes on their own members which could be binding in law,” the Baptists as well as Congregationalists also accepted from the state ministerial lands regardless of the demands of some of them for a separation of church and state.[ix] The establishment of religion in New Hampshire fell victim to state politics, not to the drive to separate church and state because of the principle of voluntarism. “Voters, increasingly non-Congregationalist, rallied around the Democrats’ condemnation of the tax system as having promoted an establishment of religion that supposedly favored the prevailing denomination at the expense of the religious liberty of others.” The Democrats passed a Toleration Act in 1919 that ended the system of tax support for religion.[x]
In 1784, Connecticut passed its Toleration Act which allowed certain Protestant denominations to publicly worship “in a way agreeable to their consciences” and be exempted from taxes if they produced certificates. Due to continuing protests and changes in the law which did not satisfy many dissenters who continued to protest, a law was passed that allowed nonconformists to write their own certificates attesting membership in a different religious society which they supported, thus exempting them for the support of the town church. John Leland, in a tract describing the evils of an establishment of religion, did not doubt that Connecticut had one, even though one’s contribution to religion went to the church whose worship one attended.[xi] The battle in Connecticut continued. In 1802 the Baptists in petitioned the legislature to repeal the system of compulsory religious taxes; held a statewide convention remonstrating against Connecticut’s establishment because it favored the Congregationalists and because religion should be left to voluntary support, petitioned the government in 1804 because the required certificates did not apply to the Congregationalists as well as others. The consistent argument of the Baptists, except for a minority led by Isaac Backus, was that the existing church-state relationship preferred Congregationalism and that private donations should be the only source of support to religion, despite Baptist participation in the establishment’s largess. In 1816, Connecticut received a windfall repayment from the United States for its costs incurred in the War of 1812 and divided 6/7 of it among the denominations and the Baptists accepted their share. The Baptists, except for a remnant who stood for complete separation of church and state, compromised when it became “practical.” In 1818, Connecticut provided that no one could be compelled to support any religious society, yet allowed any religious society to tax itself and privately collect the assessment from each member. As with every state, Connecticut provided for voluntary incorporation by churches.
“Maryland’s constitution of 1776 ended the former supremacy of the Episcopalian church, which had an exclusive establishment during the colonial period; but allowed the legislature to legislate multiple or nonpreferential establishment of “Christian,” to include Roman Catholic churches. In 1810, Maryland amended its constitution to remove any taxation for support of any religion. Churches could still incorporate under state law, but no religious taxes were to be collected from anyone.
When the First Amendment was adopted, South Carolina’s constitution permitted multiple establishment and collection of taxes for religious support of the established churches. Under the constitution of 1778, all Protestant denominations were treated equally. “Any religious society of a Protestant denomination might therefore be incorporated and become ‘a church of the established religion of this State’ on condition of subscribing to articles of faith: a belief in God, a promise to worship him publicly, profession of Christianity as ‘the true religion’ and reliance on the Scriptures as divinely inspired.” No one was required to pay toward any church that he did not “freely join.” This was the first religious establishment ever that “did not exact religious assessments.” [xii] The 1790 South Carolina constitution did away with religious taxes altogether, but still allowed incorporation of churches.
The Baptists led the fight for religious liberty in Virginia. Many were abused and jailed for their refusal to bow down to the established church/state in Virginia. They influenced statesmen like Thomas Jefferson, George Washington, and James Madison to fight for religious liberty in Virginia. The result was the 1776 Virginia Bill for Religious Liberty.
Although Virginia still had single establishment before 1776, no state or colony had a statute that included every religion. Three of the states with multiple establishments authorized by law established Protestantism and three established Christianity. The establishments of all six included all denominations and sects with a sufficient number of members to form a church. Protestantism was synonymous with religion because Jews and Roman Catholics were nonexistent or too few to make a difference; “and where Christianity was established, as in Maryland which had many Catholics, Jews were scarcely known.” “Clearly the provisions of these six states show that to understand the American meaning of “an establishment of religion” one cannot adopt a definition based on European experience.”[xiii]
Georgia’s constitution of 1777 permitted multiple establishment without exception, thereby replacing the exclusive establishment of the Anglican church. The establishment of religion meant government tax support of all churches, with preference for none. The 1789 constitution permitted multiple establishments. In 1798, Georgia finally guaranteed nonpreferential establishment of religion and that no person should be “obliged to pay tithes, taxes, or any other rate, for … any place of worship, or for maintenance of any minister or ministry, contrary to what he believes to be right, or hath voluntarily engaged.”
Vermont became the fourteenth state in 1791 and had a multiple establishment. Due largely to the stand of Baptists in Vermont, that state repealed all laws concerning taxation for religion, thus doing away with forced union of church and state.
As establishment became available to all churches, many or the majority of churches incorporated. Today the overwhelming majority of churches, to include Baptist churches, incorporate in order to obtain perceived temporal earthly benefits for the state governments After the addition of 26 United States Code §§ 501(c)(3) and 508, churches sought benefits from the federal government as well by obtaining “tax exempt” status.
All church state establishments which have ever existed came about as a result of a civil government law which combined church and state. In all cases, a church or churches combined with the state under man’s law for perceived benefits from the state. That is the case in America. Even today, one of the reasons for choosing such arrangements is financial. All reasons given by churches for joining with the state are based upon man’s temporal, fleshly, earthly and legal reasoning. All such reasons, by their very nature, circumvent God’s eternal, spiritual, heavenly, and Biblical principles for His churches. [xiv]
[i] See, for list of source authorities, List of Scholarly Resources Which Explain and Comprehensively Document the True History of Religious Freedom in America.
[ii] Leonard W. Levy, The Establishment Clause/Religion and the First Amendment (London: MacMillan Publishing Co., 1986), p. xiv.
[iii] Id., p. xvi.
[iv] See, e.g., Isaac Backus. A History of New England With Particular Reference to the Denomination of Christians Called Baptists, Volumes 1 and 2 (Eugene, Oregon: Wipf & Stock, Previously Published by Backus Historical Society, 1871)(originally published in the late 1700’s); Williams, Roger and Underhill, Edward Bean. The Bloudy Tenent of Persecution for Cause of Conscience Discussed and Mr. Cotton’s Letter Examined and Answered. London: Printed for the Society, by J. Haddon, Castle Street, Finsbury, 1848 (Reprint)(originally published in 1644); Clarke, John. Ill News from New-England or A Narative of New-Englands Persecution. Paris, Ark.: The Baptist Standard Bearer, Inc., Reprint: 1stprinted in 1652; List of Scholarly Resources Which Explain and Comprehensively Document the True History of Religious Freedom in America.
[vi] Levy, The Establishment Clause/Religion and the First Amendment, p. 47.
[vii] Levy, p. 26.
[viii] “The Yankee Spy” (1794), in L.F. Greene, ed., The Writings of John Leland (New York, reprint 1969), pp. 225, 227, cited in id., p. 40. John Leland (May 14, 1754 – January 14, 1841) was an American Baptist minister who preached in Virginia,, Massachusetts, and Connecticut, as well an outspoken abolitionist. He was an important figure in the struggle for religious liberty in the United States.
[ix] William G. McLoughlin, New England Dissent 1630-1833: The Baptists and the Sepration of Church and State (Cambridge, Mass., 1971, 2 vols.), II, pp. 874, 886, cited in Levy, The Establishment Clause/Religion and the First Amendment, p. 40.
[x] Levy, p. 40.
[xi] John Leland, “The Rights of Conscience Inalienable,” in Writings of John Leland, p. 186.
[xii] Levy, p. 50-51.
[xiii] Levy, p. 60-61.
[xiv] See, for a complete understanding of church incorporation and church 26 United States Code §§ 501(c)(3) and 508 status, Separation of Church and State: God’s Churches – Spiritual or Legal Entities?