Tag Archives: Thomas Jefferson

XI. The Fight against the Assessment Bill Continues; The Virginia Act for Religious Liberty, Drafted by Thomas Jefferson, Passes instead; Thomas Jefferson’s Unswerving Position on Religious Liberty, All Vestiges of the Establishment Removed


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Jerald Finney
Copyright © March 5, 2018


Virginia Bill For Religious Freedom -Passed in 1786. Click above image to go to the online PDF.

The people were against the assessment bill, and the Presbyterians reversed their position, opposed the bill, and for the first time, on August 10, 1785, the whole Presbyterian body supported Jefferson’s “Bill for Establishing Religious Freedom,” “although that bill had been before the Legislature since June 1779.” The Baptists asked all counties which had not yet prepared a petition to do so and agreed to prepare a remonstrance and petition against the assessment. Thus the Presbyterians and Baptists stood together, but for different motives. Mr. Madison’s opinion was that the Presbyterians were “moved by either a fear of their laity or a jealousy of the Episcopalians. The mutual hatred of these sects has been much inflamed by the late act incorporating the latter…. Writings of Madison, I., 175.”[1]

Patrick Henry, the leading proponent of the assessment bill was elected governor, “depriving the bill of its ablest legislative leader.” The Memorial and Remonstrance had received wide distribution. At the next session, the General Assembly was flooded with petitions and memorials from all parts of the State, overwhelmingly against the bill. The bill was defeated by three votes.

On January 16, 1786, the Virginia Act for Religious Liberty, drafted by Thomas Jefferson, was passed instead. That bill provided for religious liberty and freedom of conscience. Click here to see the entire PDF of the Bill. It stated, in part:

  • “I. Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the Holy Author of our religion, who being Lord of both body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do;
  • that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such, endeavoring to impose them on others hath established and maintained false religions over the greatest part of the world and through all time;
  • that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, … that our civil rights have no dependence on our religious opinions any more than [on] our opinions in physics or geometry;
  • that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right; …
  • that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with, or differ from his own;
  • that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt [open, or public] acts against peace and good order; …
  • “II. Be it enacted by the General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.
  • “III. And though we well know that this assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with powers equal to her own, and that therefore to declare this act irrevocable would be of no effect in law, yet, as we are free to declare, and do declare, that the rights hereby asserted are of the natural right of mankind, and that if any act shall hereafter be passed to repeal the present or to narrow its operation, such act will be an infringement of natural rights.”[2]

The act included three factors: church, state, and individual. It protected the individual from loss at the hands of the state incursion into his church affiliation, and implicitly banned church establishment. “It did not attempt to define the relations between Church and State except in terms of the individual.”[3]

Thomas Jefferson, the author of the above bill, never swerved from his devotion to the complete independence of church and state. He wrote:

  • “The care of every man’s soul belongs to himself. But what if he neglect the care of it? Well, what if he neglect the care of his health or estate, which more clearly relate to the state. Will the magistrate make a law that he shall not be poor or sick? Laws provide against injury from others; but not from ourselves. God himself will not save men against their wills.”[4]
  • “But our rulers can have no authority over such natural rights, only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God….
  • “Is uniformity attainable? Millions of innocent men, women, and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advanced one inch towards uniformity. What has been the effect of coercion? To make one half the world fools, and the other half hypocrites. To support roguery and error all over the earth.”[5]

The Baptists continued their struggle to remove all vestiges of the establishment until 1802 when the glebes were sold and all religious societies were placed on equal footing before the law. The glebes were tracts of land and buildings built thereon for the accommodation of the minister and his family, all at the expense of the people within the parish. The Baptists fought to have the act incorporating the Episcopal church repealed. Reuben Ford and John Leland attended the first 1787 assembly meeting as agents in behalf of the Baptist General Committee.[6] On August 10, 1787, the act incorporating the Episcopal church was repealed, and until 2001—when Jerry Falwell and trustees of the Thomas Road Baptist Church, who were joined by the American Civil Liberties Union, challenged the Virginia Constitutional provision forbidding the incorporation of churches in federal district court—no church in Virginia could be incorporated.[7]

“The Baptists continued to memorialize the Legislature … and in 1799 that body passed an act entitled ‘An Act to Repeal Certain Acts, and to Declare the Construction of the Bill of Rights and the Constitution Concerning Religion,’ which act declared that no religious establishment had legally existed since the Commonwealth took the place of the regal government, repealed all laws giving to the Protestant Episcopal church any special privileges, and declared that ‘the act establishing religious freedom’ contains the true construction of the Bill of Rights and of the Constitution; but no order was given for the sale of the glebes.”[8]

As the Anglican establishment in Virginia yielded to pressure from Baptists [and to a much lesser extent Presbyterians] so that religious liberty was established in that state, “[t]he same pressure, reinforced by the conditions of frontier living, ended the Anglican establishment in the Carolinas and Georgia…. [T]he conditions which made establishment possible never existed in the states admitted after Vermont, nor in the territories with the exception of unique Utah.”[9]

By the time the Constitutional Convention convened in 1787, “three states, Rhode Island, New York, and Virginia granted full religious freedom. Pennsylvania, Delaware, and Maryland demanded in different degrees adherence to Christianity. New Jersey, North Carolina, South Carolina, and Georgia demanded Protestantism.”[10]


Endnotes

[1] Lenni Brenner, editor, Jefferson and Madison on Separation of Church and State (Fort Lee, NJ: Barricade Books, Inc, 2004), p. 74 (letter dated August 20, 1785); Charles F. James, Documentary History of the Struggle for Religious Liberty in Virginia (Harrisonburg, VA.: Sprinkle Publications, 2007; First Published Lynchburg, VA.: J. P. Bell Company, 1900), p p. 134-139. Madison’s quote was from a letter to Mr. Jefferson.

[2] Cited in Norman Cousins, In God We Trust (Kingsport, Tennessee: Kingsport Press, Inc., 1958), pp. 125-127; see also, for an edited version, Living American Documents, Selected and edited by Isidore Starr, Lewis Paul Todd, and Merle Curti, (New York, Chicago, Atlanta, Dallas, Burlingame: Harcourt, Brace & World, Inc., 1961), pp. 67-69.

[3] William H. Marnell, The First Amendment: Religious Freedom in America from Colonial Days to the School Prayer Controversy (Garden City, New York: Doubleday & Company, Inc., 1964), pp. 96-97.

[4] Leo Pfeffer, Church, State, and Freedom (Boston: The Beacon Press, 1953), p. 94, citing Saul K. Padover, The Complete Jefferson (New York: Duell, Sloan & Pearce, 1943), p. 943. Keep in mind that although Pfeffer’s quotes of Jefferson and others often spoke of God and His sovereignty and freedom of conscience, Pfeffer passes over God as though he had not been mentioned.

[5] Pfeffer, citing Joseph L. Blau, Cornerstones of Religious Freedom in America (Boston: Beacon Press, 1949), pp. 78-79.

[6] James, pp. 142-146.

[7] See Falwell v. Miller, 203 F. Supp. 2d 624 (W.D. Va. 2002).

[8] James, pp. 142-145.

[9] Marnell, p. 130.

[10] Ibid., p. 98.

VII. The Revival Dies; Separate Churches Die; Baptist Denomination Grows; Formation of the Warren Association in 1770 To Obtain Religious Liberty; Isaac Backus’s Efforts; An Appeal to the Public

 


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Jerald Finney
Copyright © February 28, 2018


The revival died out almost as fast as it had appeared. Conversions became rare. People turned their attention to politics and controversy. The Separate churches and groups either died, or found their way into the Baptist camp. The Baptist denomination experienced an unprecedented growth. In 1740 no more than six Calvinistic Baptist churches existed in New England; but by 1800 there were more than 325 Baptist churches, most of them Calvinistic.[1]

The Warren Association, an association of Baptist churches, was formed in 1770. The main goal was to obtain religious liberty. This marked an important movement in the history of New England. An advertisement to all Baptists in New England was published requesting them to bring in exact accounts of their cases of persecution to the first annual meeting on September 11, 1770. The establishment feared the association and countered by dealing deceitfully with it and spreading lies about the association.[2]

Isaac Backus was the key member of the grievance committee of the Warren Association in September 1771. “[He soon] became the principal spokesman for the Baptists in their efforts to disestablish the Puritan churches. As such he did more than any other man to formulate and publicize the evangelical position on Church and State which was ultimately to prevail throughout America.”[3]

“An Appeal to the Public for Religious Liberty Against the Oppression of the Present Day” was the most important of the 37 tracts which Backus published during his lifetime and was central to the whole movement for separation of church and state in America. “It remains the best exposition of the 18th century pietistic concept of separation.”[4] In that tract, Backus argued, among other things:

  • “Basic to the Baptist position was the belief that all direct connections between the state and institutionalized religion must be broken in order that America might become a truly Christian country. Backus, like Jefferson and Madison, believed that ‘Truth is great and will prevail’—but by ‘Truth’ he meant the revealed doctrines of grace. His fundamental assumption was that ‘God has appointed two different kinds of government in the world which are different in their nature and ought never to be confounded together; one of which is called civil, the other ecclesiastical government.’ The two had been ‘confounded together’ by the Emperor Constantine and the Papacy and had ultimately been brought to New England by the Puritans ‘who had not taken up the cross so as to separate from the national church before they came away.’ A ‘Brief view of how civil and ecclesiastical affairs are blended together among us [in 1773] to the depriving of many of God’s people of that liberty of conscience which he [God] has given us’ utilized also the long–forgotten arguments of Roger Williams to defend the doctrines of separation.”[5]

Amidst persecutions of Baptists for failing to pay ministerial taxes, the association met on September 1773 and voted to refrain from giving any more certificates for tax exemption to pay the established minister. Backus listed the reasons why they would no longer obey “a law requiring annual certificates to the other denomination.” “Jefferson in his preamble to the Religious Liberty Act of Virginia and Madison in his famous Remonstrance of 1785 utilized essentially deistic arguments based upon reason and natural law. Backus’s arguments were pure pietism[:]”[6]

  • [To get a certificate] “implies an acknowledgement that religious rulers had a right to set one sect over another, which they did not have.” 2. Civil rulers have no right to impose religious taxes. 3. Such practice emboldens the “actors to assume God’s prerogative.” 4. For the church, which is presented as a chaste virgin to Christ, to place her trust and love upon others for temporal support is playing the harlot. 5. “[B]y the law of Christ every man is not only allowed but also required to judge for himself concerning the circumstantials as well as the essentials of religion, and to act according to the full persuasion of his own mind.” The practice tends to envy, hypocrisy, and confusion, and the ruin of civil society.[7]

An Appeal to the Public was pietistic America’s declaration of spiritual independence. Like Jefferson’s Declaration three years later, it contained a legal brief against a long train of abuses, a theoretical defense of principle, and a moral argument for civil disobedience.”[8] No answer was ever given to “An Appeal to the Public” which was published in Boston. The collection of taxes for support of the established religion continued with confiscation of property and imprisonments occurring.[9]


Endnotes

[1] William L. Lumpkin, Baptist Foundations in the South (Eugene, Oregon: Wipf & Stock Publishers, 2006), p. 20.

[2] Isaac Backus, A History of New England With Particular Reference to the Denomination of Christians called Baptists, Volume 2 (Eugene, Oregon: Wipf & Stock Publishers, Previously published by Backus Historical Society, 1871), pp. 154-156; pp. 408-409 of A History of New England… gives more on the formation of the Warren Association.

[3] William G. McLoughlin, Isaac Backus and the American Piestic Tradition (Boston: Little, Brown and Company, 1967), p. 109.

[4] Ibid., p. 123. The entire contents of the tract are in Isaac Backus on Church, State, and Calvinism, Pamphlets, 1754-1789, Edited by William G. McLoughlin (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 1968), pp. 303-343.

[5] Ibid., pp. 123-124.

[6] Ibid., p. 126.

[7] Backus, Volume 2, p. 178, citing “An Appeal to the Public for Religious Liberty.”

[8] McLoughlin, Isaac Backus and the American Piestic Tradition, p. 127.

[9] Backus, Volume 2, pp. 178-182. Christian, Volume I, p. 388.

VIII. Backus Presents Appeal for Religious Liberty at Continental Congress; Debate in the Newspapers; Warren Association Activities; Backus Urges Religious Liberty in New Massachusetts Constitution; John Adams Works against Religious Liberty


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IX. The Baptists Fight in the Courts; Reject Backus’s Advice; Backus Changes His Focus to Baptist Doctrines; Connecticut Continues To Persecute Dissidents; Connecticut Rejects Forced Establishment in 1818

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Jerald Finney
Copyright © February 28, 2018


Attempts to gain religious freedom continued. The Warren Association sent Isaac Backus to the Continental Congress in 1774 where he met with an Association of other Baptist churches from several adjacent colonies which had elected a large committee to assist. They presented their appeal for religious liberty. John Adams and Samuel Adams, neither of whom was a friend to separation of church and state, falsely asserted that Massachusetts had only a “very slender” establishment, hardly to be called an establishment, that the General Court was clear of blame and always there to hear complaints and grant reasonable help.[1] While Mr. Backus was gone, the lie was spread that he had gone to Philadelphia to break the union of the colonies.

All the time these happenings were going on, the issues were being debated in the newspapers. The Warren Association continued to publish to the public instances of persecution as well as to actively seek religious liberty from the government. The Warren Association presented a memorial on July 19, 1775, requesting religious liberty and pointing out the inconsistency of rebelling against England for taxing without representation while doing the same thing in the colonies. Ultimately, nothing came of this. In 1777, Mr. Backus prepared an address, which was supported by a large number from various denominations, urging religious liberty to the Assembly which had been empowered to frame a new Constitution which was accomplished in 1780. The Third Article of the new constitution “excluded all subordination of one religious sect to another,” but imprisonment, and confiscation of property from men who refused to acknowledge such subordination continued.[2]

In 1778, Mr. Backus wrote “Government and Liberty Described and Ecclesiastical Tyranny Exposed.” He quoted Charles Chauncy:

  • “We are in principle against all civil establishments in religion. It does not appear to us that God has entrusted the State with a right to make religious establishments…. We claim no right to desire the interposition of the State to establish that mode of worship, [church] government, or discipline we apprehend is most agreeable to the mind of Christ. We desire no other liberty than to be left unrestrained in the exercise of our principles in so far as we are good members of society.” This, said Backus, was all that Baptists asked. [3]
  • “Perhaps as a result of this tract, the General Assembly tried to conciliate the Baptists by appointing a Baptist minister to deliver the election sermon in May 1779. That minister, in his sermon, remained faithful to the principle of separation.”[4]

Massachusetts began efforts to adopt a new constitution in 1777. The proposed constitution was defeated, but a new effort which began in 1779 proved successful. John Adams worked against the Baptist position at the convention. Mr. Backus, although not a delegate, went to Boston to stand for Baptist principles during the constitutional convention. He lobbied, wrote newspaper articles, published new tracts, and informed his brethren of what was going on.[5]

Mr. Backus worked at the convention for a Bill of Rights. The first basic rights he listed were:

  • “All men are born equally free and independent, and have certain natural, inherent and unalienable rights, among which are the enjoying and defending life and liberty, acquiring, possessing, and protecting property, and persuing and obtaining happiness and safety.”
  • “As God is the only worthy object of all religious worship, and nothing can be true religion but a voluntary obedience unto his revealed will, of which each rational soul has an equal right to judge for itself; every person has an unalienable right to act in all religious affairs according to the full persuasion of his own mind, where others are not injured thereby. And civil rulers are so far from having any right to empower any person or persons to judge for others in such affairs, and to enforce their judgments with the sword, that their power ought to be exerted to protect all persons and societies, within their jurisdiction, from being injured or interrupted in the free enjoyment of his right, under any pretence whatsoever.”[6]

Backus’ position, although seeking the same end, was from a different point of view than that of George Mason, Thomas Jefferson and James Madison.

“Three years earlier George Mason, with Jefferson’s approval and Madison’s amendments, had written a statement on religious freedom into the Bill of Rights in the Virginia Constitution:

  • ‘That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.’
  • “Backus’s tone was that of a New Light pietist; Mason’s that of an Enlightened latitudinarian. The Virginians spoke of the ‘Creator,’ Backus spoke of ‘God.’ Mason stressed reason and duty, Backus stressed ‘religious worship.’ Backus referred directly to God’s ‘revealed will’ and to the ‘soul.’ Mason omitted any reference to them.
  • “The difference was obvious and fundamental. The Virginia separationists were interested in leaving the mind free to follow its own rational direction. The Massachusetts pietists believed that separation was necessary in order to leave the ‘rational soul’ free to find ‘true religion’ as expressed in the Bible, ‘the revealed will’ of God. Implicit in both statements was a belief in God, in natural law, in man’s ability to find them. But the deistic separationists of Virginia trusted entirely to man’s reason and free will. The pietists insisted that only through the supernatural grace of God would men find the Truth that is in Jesus Christ. Though both views were individualistic, the deist was anthropocentric, the pietist theocentric.”[7]

The humanistic view of Mason, Jefferson, and Madison that man, through his reason could successfully address all his problems, and the humanistic goal of the “happiness of man” were inherent in the Declaration of Independence and the Constitution, the two greatest governing documents of all time, although blended with Biblical principles. Neither the name of Jesus nor the goal of “the glory of God” was in the Declaration of Independence or the Constitution.[8]

The Warren Association, on September 13, 1780, published a remonstrance, authored by Mr. Backus, against Article Three of the proposed constitution. The remonstrance stated, among other things, that the provision therein requiring the majority of each parish “the exclusive right of covenanting for the rest with religious teachers,” thereby granting a power no man has a right to; and further stating that “the Legislature, by this Article, are empowered to compel both civil and religious societies to make what they shall judge to be suitable provision for religious teachers in all cases where such provision shall not be made voluntarily.”[9] However, support for ministry could only be through voluntary support, not coercion that denied freedom of conscience. Backus and other Baptists “did not object to the view that Massachusetts should remain a Christian commonwealth; piety, religion, and morality could only be maintained with the institution of the public worship of God and of public instructions in piety, religion, and morality” were “generally diffused throughout the community.[10]

  • “Jefferson, Mason, and Madison, designing the creation of a secular state, not only opposed all such practices but also objected to the use of chaplains in the Congress and armed forces, the authorization by the state of certain days of fasting, thanksgiving, and prayer; and the compulsory religious services in state universities. Jefferson explicitly stated that America was not and ought not to be a Christian country…. Backus never qualified his belief in a Christian commonwealth. He consistently argued for ‘a sweet harmony between’ Church and State. ‘It is readily granted,’ he wrote in 1784, ‘that piety, religion, and morality are essentially necessary for the good order of civil society.’”[11]

Endnotes

[1] Isaac Backus, A History of New England With Particular Reference to the Denomination of Christians called Baptists, Volume 2 (Eugene, Oregon: Wipf & Stock Publishers, Previously published by Backus Historical Society, 1871), pp. 200-202, and fn. 1, p. 201.

[2] Ibid., pp. 203-204, 219-220, 225-229, 228-229.

[3] William G. McLoughlin, Isaac Backus and the American Piestic Tradition (Boston: Little, Brown and Company, 1967), p. 140. The entire tract is reproduced in Isaac Backus on Church, State, and Calvinism, Pamphlets, 1754-1789, Edited by William G. McLoughlin (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 1968), pp. 345-365.

[4] Ibid., 141.

[5] Ibid., p. 142.

[6] Ibid., pp. 142-144.

[7] Ibid., pp. 142-144.

[8] Again, the Constitution is the greatest governing document ever conceived by a nation, but the Biblical principle of “leaven”—bad doctrine always corrupts the good—has proven again, by the national experience, to be true. To understand and address a problem, one must be willing to face all the facts head on.

[9] Backus, A History of New England…, Volume 2, fn. 2, pp. 229-230.

[10] McLoughlin, Isaac Backus and the American Piestic Tradition, pp. 148-149.

[11] Ibid., pp. 149-150.

(1) Introduction: Distinct Differences between Church and State Render Them Mutually Exclusive

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Jerald Finney
Copyright © February
11, 2018


This series of lessons will examine Bible teaching which makes clear that state (civil government) and church are so distinct that they are mutually exclusive—that God ordained each for particular purposes and that He desires that both operate under Him but that neither work with, over, or under the other. The Old Testament develops the doctrine of civil government. There we learn that God ordained civil government to directly control evil since the restraint of conscience was insufficient to control the sinful man. God added the restraint of civil government as a further direct, worldly control over man. The Old Testament deals with Gentile civil government and the theocracy and Israel, their purposes and authorities under God, their history, and prophecies concerning, among other things, concerning their fate. The New Testament announces something new, the church, a spiritual organism made up of spiritual beings.

Combining church and state has had dire consequences, as history shows.[i] Catholic and Protestant theology historically justified (and continue to justify) the union of church and state by examining Scripture not literally, but allegorically or spiritually, when and where convenient to support a desired conclusion (such as union of church and state). Those religious organizations interpret Scripture in such a way as to apply the principles for Israel and Judaism to Gentile nations. Just as religion and state were combined in the Jewish theocracy, this spiritualized and allegorized theology, when implemented, unites church and state in Gentile nations.

JamesMadisonOnC&SMany of America’s founding fathers—most especially James Madison and Thomas Jefferson (see [ii], a copy of Virginia Bill for Religious Liberty drafted by Thomas Jefferson)—and other leaders understood that church and state should be separate. From a worldly common sense point of view Madison and Jefferson and others arrived at their understanding by studying the consequences of such unions both historically and also contemporaneously. From a Bible or spiritual perspective, Roger Williams, Isaac Backus, John Leland and other Baptists understood both the problems created by combining church and state and the true reasons for those problems. Backus wrote:

  • “Christians must be careful not to apply God’s principles for the Jewish religion and the nation Israel to church and state. The principles for the two are so distinct that they are mutually exclusive. The government of the Church of Christ is as distinct from all worldly governments, as heaven is from earth.”[iii]

Indeed, union of church and state is contrary to biblical principles; and, therefore, the consequences of church-state union have always been dire and will be so until the return of Christ and the establishment of the Kingdom.

God gave both church and state certain powers. God gave the state earthly and temporal power within jurisdictional boundaries which He set out. The power given a church was meant to provide a spiritual and eternal good.

The purpose of the Gentile civil government is fleshly or earthly.[iv] Gentile civil government, according to God, was ordained by God to deal with those temporal earthly matters assigned it by God. God gave man certain authority over man. He gave man the responsibility to rule over man under His rules. Gentile civil government has authority to punish those who commit certain crimes against their fellow man and to reward those who do good. The purpose of the Gentile civil government is to control evil men thereby maintaining some degree of peace in this present world. A civil government, as defined by God, is made up of men under God ruling over man in earthly matters.

Much of God’s spiritual word deals with actions of individuals, families, churches, and nations here upon the earth. Civil governments are not given jurisdiction over many areas of life which are governed by the Word of God. A civil government which ignores God and His Word is setting itself up for judgment.

God ordained a church under God, not a business under civil government, an entity that is to work hand in hand with or perhaps over the state to bring in the kingdom of God, or an entity that is to work under state rules. Admittedly, the ultimate God-given purpose of both a church and a civil government is to glorify God, each acting under God, but neither acting with or under the other. However, the underlying purposes of a church and the state are significantly different: the underlying purpose of a church is heavenly or spiritual; the underlying purpose of a civil government is earthly. God gave neither a church nor the state authority to rule over or with the other. Civil government does not have the authority or the ability (the knowledge, understanding and wisdom) to rule over God’s churches. For reasons already looked at in these lessons, a church is not to join with the civil government in any way.

Christians are told to obey civil government as regards certain earthly matters and civil government has authority over all citizens as to some temporal earthly matters. Individuals, families, and churches are not to be under the civil government with regard to spiritual matters, which include many activities and actions as shown in the Bible.


Endnotes

[i] See the historical section of this study of this abridged course for more on this. See, for a more advanced study, (1) Section 4 of God Betrayed/Separation of Church and State: The Biblical Principles and the American Application which is available free in both PDF and online form or may be ordered in softback and Kindle by going to “Order information for books by Jerald Finney which also has links to the free PDF and Online Form of the book; (2) the section on the history of the First Amendment; and/or (3) An Abridged History of the First Amendment.).

[ii] Virginia Bill for Religious Freedom drafted by Thomas Jefferson:Virginia Bill for Religious Liberty drafted by Thomas Jefferson in 1779 and enacted in 1786.

[iii]  Isaac Backus, A History of New England With Particular Reference to the Denomination of Christians called Baptists, Volume 2 (Eugene, Oregon: Wipf & Stock Publishers, Previously published by Backus Historical Society, 1871), p. 561.

[iv] See Section I.A., The Biblical Doctrine of Government of this short course for more on government. For a more advanced analysis, “The biblical doctrine of government” for more on the jurisdiction and purposes of the various God-ordained governments including civil government.

Is Separation of Church and State Found in the Constitution?

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Jerald Finney © February, 2014

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Knowing the correct answer to the question, “Is ‘Separation of Church and State found in the Constitution” is vital in the success of the spiritual warfare of the believer in America. Does the First Amendment to the United States Constitution establish a wall which is to keep church out of state and state out of church; or does it set up a one way wall: that is, does it forbid state to stay out of church matters, but allow church to enter into state matters? If the latter, since “churches” vary in belief so dramatically, which church is to control in the affairs of state? Most Christians assert that the phrase “One nation under God” on our currency and in our Pledge of Allegiance make clear that the Constitution forbids separation of church and state. They state that the phrase “separation of church and state” is not found in the Constitution; that the Constitution through the First Amendment does not separate church and state. Are they correct in their understanding? [For a thorough analysis of the source of the misunderstandings-revisionist history-set alongside the easily verifiable history with complete citations, see information page on The Trail of Blood of the Martyrs of Jesus by clicking here.]

cropped-separationofchurchandstate_3.jpgI begin with an actual encounter with a “Christian” political activist over this matter of the meaning of separation of church and state. Then I:

1)     briefly explain my position with reference particularly to the beliefs of Thomas Jefferson and James Madison (with links to more extensive and in depth studies);

2)     briefly reveal those who are promoting the incorrect version of “separation of church and state” to conservative Americans (and more specifically to “Christians”) today and their motives;

3)     briefly answer the question of whether the Constitution or any other governing document requires the federal government to be guided by God and His principles and explain how a nation can proceed under God without combining church and state;

4)     briefly address biblical teaching on the downfall of a nation;

5)     conclude.

20In 2008, I started a seminar in El Paso, Texas with the diagram at left. A activist Christian lady immediately raised her hand and pointed out that the diagram separated church and state and that she did not agree with this. I had anticipated this question because I had struggled with the issue of separation of church and state for many years. Some years before this seminar I had begun to read in books and articles and to hear on Christian radio and from other Christians that “separation of church and state is not found in the Constitution.” I repeated that sound bite many times myself, but I was always perplexed as to where to go from the simple statement. I had read that the Supreme Court totally misinterpreted Jefferson’s Danbury Letter to mean that the First Amendment created a wall between church and state that was never intended. I had also read that the original intent of the religion clause of the First Amendment was to keep the state out of church affairs but not to keep the church out of state affairs; that the wall only functioned one way. Was this true? I found the answers to these questions after years of historical and legal studies.

This sign gets it wrong: we want Separation of Church and State not Separation of God and State
This sign gets it wrong: we want Separation of Church and State not Separation of God and State

I answered the lady’s concerns by stating that I believed that she and I were on the same page; that I believe that most of our founding fathers never intended to separate God and state, but that they did indeed intend to separate church and state. I mentioned that the writings of James Madison, Thomas Jefferson, and most of our Founding Fathers showed that they understood this. They knew that church-state unions have always, without exception, resulted in the corruption of both church and state as well as individual citizens, horrible persecutions (imprisonments, murder and torture) of those who did not bow down to the established “church” and its theology, and many other undesirable consequences. The history of the First Amendment proves this (See the “History of the First Amendment” which is available online in the PDF of God Betrayed Section IV and in Online form). Madison and Jefferson were eyewitnesses to the persecutions of dissenting Baptists in Virginia and they understood the history of the persecutions of all those who exercised their God-given freedom to choose a theology contrary to that of the church-state unions, the establishment. They were aware that all church-state unions, beginning with the marriage of church and state in the early fourth century, continuing throughout the dark and middle ages, the reformation, and in the American colonies up until the time they lived resulted in horrible persecutions of those who would not bow down to the established beliefs.

4Jefferson’s writings make clear his position on separation of church and state. For example, in 1779 he wrote the Virginia Act for Religious Liberty which was passed in 1786. The act included three factors: church, state, and the individual. It protected the individual from loss at the hands of state incursion into his church affiliation, and implicitly banned church establishment. See En1 to read the entire act and another quote from Jefferson. Jefferson never swerved from his devotion to the complete independence of church and state (See also pp. 264-283 of God Betrayed to read more about Jefferson’s position. Click here to go directly to PDF of God Betrayed.).

Madison also fought for separation of church and state in Virginia. He wrote, in his famous “Memorial and Remonstrance:”

  • 18“… Because experience witnesses that ecclesiastical establishments, instead of maintaining the purity and efficacy of religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the clergy; ignorance and servility in the laity; in both, superstition, bigotry, and persecution. Inquire of the teachers of Christianity for the ages in which it appeared in its greatest luster; those of every sect point to the ages prior to its incorporation with civil policy. Propose a restoration of this primitive state, in which its teachers depended on the voluntary rewards of their flocks, many of them predict its downfall….
  • “Because the establishment in question is not necessary for the support of civil government…. If religion be not within the cognizance of civil government, how can its legal establishment be said to be necessary for civil government? What influences, in fact, have ecclesiastical establishments had on civil society? In some instances, they have been seen to erect a spiritual tyranny on the ruins of the civil authority; in more instances, have they been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the publick liberty, may have found on established clergy convenient auxiliaries. A just government instituted to secure and perpetuate it needs them not. Such a government will be best supported by protecting every citizen in the enjoyment of his religion, with the same equal hand which protects his person and property; by neither invading the equal hand which protects his person and property; by neither invading the equal rights of any sect, nor suffering any sect to invade those of another….”

See pages 278-279 of God Betrayed (Click here to go directly to online PDF of God Betrayed) for more extensive excerpts from “Memorial and Remonstrance.” Click here to go directly to the complete Memorial and Remonstrance online.

Thus, when the First Amendment was introduced and promoted by James Madison, the only question was the exact wording of the Amendment. The representatives at the Constitutional Convention understood that the purpose of the religion clause was (1) to place a two way wall between church and state (This purpose is stated in the establishment clause: “Congress shall make no law respecting an establishment of religion.”) and (2) to provide for freedom of conscious, also known as free will or soul liberty (This purpose is stated in the free exercise clause: “or prohibiting the free exercise thereof.”). These two purposes go hand in hand. The historical established churches, beginning with the spiritual harlot called the Catholic “church” and then her offspring-Protestant “churches”- violently persecuted (hung, burnt at the stake, drowned, buried alive, imprisoned, tortured with unspeakable horror) those who exercised their God-given free will in contradiction to the doctrines of the church-state establishment and were labeled “heretics” by the established church.

19At the seminar, I explained my position in more detail and showed that the same theology that justified union of church and state was initially developed and expanded upon from earlier sources by Augustine, practiced by the Catholic church, and later by Protestant churches (in modified form). Proponents of those same theologies remain at work to achieve the impossible goals of their adherents (peace and unity throughout the earth) in America today. In fact, many adherents of those theologies are very active in, and are leaders in, the contemporary American political warfare. Many believe that they will set up the kingdom of heaven on earth, the millennium, either through the efforts of the church or through a church-state combination and without the intervention our Lord Jesus Christ. Others believe that there is no millennium, and that a worldwide church-state combination will bring peace and unity to the earth. Others, such as myself, are totally convinced that the Bible teaches that Christ Himself will return at Armageddon and set up and reign over the earth for a thousand years by power. See En2 for various explanations of millennialism.

1Along with the question of whether First Amendment separates church and state, another question that needs to be addressed is whether the Constitution or any other governing document requires the federal government to be guided by God and His principles? The Founding Fathers while implementing the biblical principle of separation of church and state in the First Amendment did not understand that a nation should, within her organic governing documents, recognize that the God of the Bible, the only God, that He should be honored and hailed as the ruler of nations, and that His principles should be recognized and applied within the laws of the nation and in the interpretation of those laws.

A nation can proceed under God without combining church and state. How? The constitution of such a nation will:

1)     name the name of Jesus as the Supreme ruler;

2)     make clear that the nation will look to the biblical doctrines of government, church, and separation of church and state in ordering and carrying out its responsibilities under God;

3)     lay out its God-given jurisdiction as explained in the Bible;

The First Amendment to the U.S. Constitution
The First Amendment to the U.S. Constitution

4)     separate church and state. The First Amendment implements the biblical principle of separation of church and state.

5)     provide for religious liberty (also called soul liberty or freedom of conscience). The First Amendment does this.

6)     guarantee freedom of speech, press, assembly and the right to petition the government for a redress of grievances. The First Amendment does this.

See En3 for information on an historical example of governing documents which proved that this can be done.

1The Constitution allows, but does not require, Americans to recognize the God of the Universe, the God of creation, almighty God, and to operate according to His principles and to pray in the name of Jesus even at government functions. This is obvious from a study of history including the multitude of statements made by Presidents, senators, representatives, government officials at all levels of government; and from a reading and study of state constitutions, laws, and federal and state legal cases.

History also shows that almost everyone in America at the time of the adoption of the Constitution reverenced the Bible and the God of the Bible and that prayers were made to Him at official government functions. Of course, the United States Supreme Court has removed the recognition of God (and especially the Lord Jesus Christ) from practically all civil government affairs. See for an explanation of how the Supreme Court has done this: The Supreme Court Reinterprets the First Amendment and Removes God or Section V of God Betrayed.

However, sad to say, neither the Constitution nor any other federal governing document names the name of Jesus and requires that the United States government be guided by God and His principles (being guided by God and His principles is something entirely different from establishing a church). If you disagree, show me one Constitutional provision or federal law which either requires recognition of God (and specifically the Lord Jesus Christ) and/or His principles as laid out in His Word. I submit that there is none.

Unlearned Christians (this author was once in their fold) argue that the implementation of certain biblical principles in the Constitution prove that the Constitution is a “Christian” document. However, they fail to point out the enlightenment principles which pollute the Constitution. I deal more in depth with these matters in God Betrayed.

Unstudied Christians argue, as this author once did, that the Declaration of Independence did recognize God and that Americans march behind the banner of the Declaration. However, the Declaration was written over a decade before the adoption of the Constitution and the First Amendment, and the Declaration is not law despite the rhetoric which says, “We proceed under the banner of the Declaration of Independence.” This author contends that even the Declaration is flawed when biblically analyzed. Even if the contention that it is not flawed were correct,  the Declaration is not controlling law and an examination of the Declaration and the Constitution leaves open the obvious contention that Americans had changed between the time of the writing of the Declaration and the adoption of the Constitution.

1The Bible teaches that a Gentile nation, as well as the nation Israel, that rejects the one true God, the God of the Bible, and His principles will become more and more morally bankrupt, will digress to political tyranny, and ultimately be judged by God. The United States is a moral cesspool and is well into the political tyranny stage. You may go to the following audio teaching for a thorough examination of Scripture on this matter: “The Biblical Doctrine of Government.” That teaching is also available in detailed form in Section I God Betrayed in PDF form or which can be ordered by going to Order Information for Books by Jerald Finney. A thorough analysis is impossible in a short article such as this, but here are a few verses from the Old Testament which substantiate this conclusion:

  • “The LORD is high above all nations, and his glory above the heavens” Psm. 133:4.
  • “Let all the earth fear the LORD: let all the inhabitants of the world stand in awe of him…. “Blessed is the nation whose God is the LORD; and the people whom he hath chosen for his own inheritance…. There is no king saved by the multitude of an host: a mighty man is not delivered by much strength.” (Psm. 33.8, 12, 16; see the whole chapter of Psm. 33). [Bold emphasis mine]
  • “Why do the heathen rage, and the people imagine a vain thing?  The kings of the earth set themselves, and the rulers take counsel together, against the LORD, and against his anointed, saying, Let us break their bands asunder and case their cords from us. He that sitteth in the heavens shall laugh: the LORD shall have them in derision. Then shall he speak unto them in his wrath, and vex them in his sore displeasure.…. Thou [Jesus] shalt break them with a rod of iron; thou shalt dash them in pieces like a potter’s vessel. Be wise now therefore, O ye kings: be instructed, ye judges of the earth. Serve the LORD with fear, and rejoice with trembling. Kiss the Son, lest he be angry, and ye perish from the way, when his wrath is kindled but a little. Blessed are all they that put their trust in him.” Psm. 2:1-5, 9-12 (The 2nd Psalm gives the order of the establishment of the kingdom.).

The Old Testament details God’s principles for nations, both Jew and Gentile, and lays out the complete history and fate of nations from beginning to end. God ordained civil government, and the fact that God desires nations to submit to Him and His principles is undeniable. That no nation ever has or ever will do so before He returns and establishes His Kingdom on earth is clear from a literal interpretation of scripture.

SeparationOfChurchAndState14In spite of the flaws in the Constitution, America, to a great extent, originally honored God. Of course, the First Amendment was not a flaw; the religion clause was a statement of the biblical principle of separation of church and state. With the passing of time, the flaws in the document have made it easier for the natural progression of moral awfulness and political tyranny. This author, like most politically active “Christians”  worked-not according to knowledge, understanding and wisdom-to “bring America back under God.” As a result of those efforts in the Republican Party (1982-beginning of the twenty-first century), I saw that America continued to grow worse in every way and at an accelerated pace in spite of our efforts. By 2002, I realized that America had become a grossly immoral nation. America is now a tyrannical and morally awful nation much worse than it was in 2002.

In 2005 God focused my efforts on His doctrine of the church, which is where they should have been in the first place. If Christians cannot get the doctrine of the church right in understanding and practice, how in the world do they think they can get civil government right? Even though many “believers” still seek to honor God in the political arena, they are not proceeding according to knowledge, wisdom, and understanding in either their government or their church efforts. God makes clear that when His people do not act according to knowledge (among other things), they will fall (See, e.g., 2 Pe. 1.2-10; Ho. 4).

For more in depth studies of the First Amendment, one can go to the following resources:

The History of the First Amendment
An Abridged History of the First Amendment

Endnotes

En1. Jefferson wrote: “Is uniformity attainable? Millions of innocent men, women, and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advanced one inch towards uniformity. What has been the effect of coercion? To make one half the world fools, and the other half hypocrites. To support roguery and error all over the earth.” Jefferson understood that establishment of a church (a church working with, over, or under civil government) always brings the worst of persecution of those who do not bow down to the church-state or state-church union.”

Virginia Bill for Religious Liberty drafted by Thomas Jefferson in 1779 and enacted in 1786.
Virginia Bill for Religious Liberty drafted by Thomas Jefferson in 1779 and enacted in 1786.

The Virginia Bill for Religious Liberty written by Jefferson and passed in 1786 stated:

“I. Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the Holy Author of our religion, who being Lord of both body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do;

that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such, endeavoring to impose them on others hath established and maintained false religions over the greatest part of the world and through all time;

that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, … that our civil rights have no dependence on our religious opinions any more than [on] our opinions in physics or geometry;

that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right; …

that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with, or differ from his own;

that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt [open, or public] acts against peace and good order;

and, finally, that truth is great and will prevail if left to herself, that she is proper and sufficient antagonist to error and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors [cease] to be dangerous when it is permitted freely to contradict them.

“II. Be it enacted by the General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.

“III. And though we well know that this assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with powers equal to her own, and that therefore to declare this act irrevocable would be of no effect in law, yet, as we are free to declare, and do declare,  that the rights hereby asserted are of the natural right of mankind, and that if any act shall hereafter be passed to repeal the present or to narrow its operation, such act will be an infringement of natural rights.”

En2. The word millennium means “1000 years” and comes from Re. 20. 4-6 where it says that certain people “came to life, and reigned with Christ a thousand years. There are three major views on the time and nature of the millennium.

Amillennialism takes the position that this is a period during which Satan’s influence has been greatly reduced so that the gospel can be preached throughout the world. Christ does not bodily reign during this period, and there is no future millennium yet to come. Amillennialists believe that the term “thousand years” is a figure of speech for a long period of time in which God’s will will be accomplished. Christ will return at the end of this period, believers and unbelievers will be resurrected, unbelievers will be eternally condemned and believers reunited with their spirits, judged, and will enjoy heaven forever.

According to postmillennialism, Christ will return after the millennium. The church and state, operating during the period in which we now live, will establish peace and righteousness and a millennial age will occur when this occurs. At the end of that thousand years, Christ will return to earth, believers and unbelievers will be raised, the final judgment will occur, a new heaven and a new earth will be established, and we will enter into the eternal state.

Premillennialism teaches that Christ  will return before the millennium, believers who have died will be raised from the dead, their bodies reunited with their spirits, will reign with Christ 1000 years.  During this 1000 years, Satan will be bound. At the end of that period, he will be loosed and will lead the unbelievers of the millennium in rebellion against Christ. Satan and his followers will be defeated, Christ will raise the dead and they will be judged. Those whose names are not found written in the book of life will be cast, as was Satan, into the lake of fire. At the final judgment, believers will enter into the eternal state.

There are two main premillennial positions. Classic premillennialism says Christ will return after the great tribulation, rapture believers, and that believes will reign with Christ on earth for 1000 years. Pretribulational premillennialism teaches that Christ will return part way to earth before the tribulation, call believers to Himself, , and return to heaven with those believers. This will be followed by a seven year period of great tribulation. At the end of that time, Christ will return, crush all the Gentile armies which have come against Israel, and set up His millennial reign. See, e.g., Wayne Gruden, Systematic Theology (Grand Rapids, Michigan: Zondervan, 2000), pp. 1109-1113.

En3. The first government in history with complete religious freedom was the government of the colony or Rhode Island (See the online version, “The Baptists in Rhode Island” or go to Section IV, Chapter 6 of God Betrayed available in PDF form – for ordering information go to the following link: Order information for Books by Jerald Finney.).

The first government in history that was to have complete freedom of conscience and religious liberty also declared that the government was to be under the Lord Jesus Christ. Signed on March 7, 1638, the Portsmouth Compact read:

“We whose names are underwritten do swear solemnly, in the presence of Jehovah, to incorporate ourselves into a body politic, and as he shall help us, will submit our persons, lives and estates, unto our Lord Jesus Christ, the King of kings, and Lord of lords, and to all those most perfect and absolute laws of his, given us in his holy word of truth, to be guided and judged thereby.” 38 [19 signatures followed: Thomas Savage, William Dyre, William Freeborne, Philip Sherman, John Walker, Richard Carder, William Baulstone, Edward Hutchinson, Sen., Henry Bull, Randal Holden, William Coddington, John Clarke, William Hutchinson, John Coggshall, William Aspinwall, Samuel Wilbore, John Porter, Edward Hutchinson, Jun., and John Sanford.].

Three passages were marked in support of the compact: Exodus 24.3, 4; II Chronicles

2.3; and II Kings 11.17.

In August of 1638, the people of Providence approved the first public document establishing government without interference in religious matters, the Providence Compact:

“We whose names are here underwritten being desirous to inhabit in the town of Providence, do promise to submit ourselves in active or passive obedience to all such orders or agreement as shall be made for public good to the body in an orderly way, by the major consent of the present inhabitants, masters of families, incorporated together into a township, and such others whom they shall admit into the same, only in civil things.” [Signed by Stukely Westcoat, William Arnold, Thomas James, Robert Cole, John Greene, John Throckmorton, William Harris, William Carpenter, Thomas Olney, Francis Weston, Richard Watearman, and Ezekiel Holliman.]

As James R. Beller proclaims, the document was “the first of a series of American political documents promulgating government by the consent of the governed and liberty of conscience” (James R. Beller, America in Crimson Red: The Baptist History of America (Arnold, Missouri: Prairie Fire Press, 2004), p. 13). Thus, liberty of conscience was the basis for legislation in Rhode Island, and its annals have remained to this day [when Underhill wrote this] unsullied by the blot of persecution. (Roger Williams and Edward Bean Underhill, 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)), p. xxviii).

Jury Nullification: Article, Brief, and Requested Jury Instruction

Jerald Finney
Copyright © July 21, 2013

Jury nullification has been an issue near and dear to my heart since the time in the 1980s when the Lord was dealing with me about going to law school. After attending the University of Texas School of Law and getting my license to practice law in 1993, I attended a Fully Informed Jury Association seminar and pursued the issue in selected cases. I drafted a brief to present to the court and a Requested Jury Instruction on the issue. The judges became very antagonistic when presented with the brief and the instruction. I will not bore you with the entire battle, but present this article to you so that, by reading the brief and requested instruction you may gain some understanding of the issue. Since I have not been allowed to argue nullification in any of my Texas cases where I attempted to do so, I have come up with a few tactics devised to try to get the jury to apply their right to nullify. Visit the Fully Informed Jury Association by clicking the blue colored link. Following the brief below is a copy of the requested instruction. Note: This website will not allow me to correctly format the headings to the brief and requested instruction (some of the entries in the headings are not centered).

No. ______________

 STATE OF TEXAS               §              IN [Name of Court]
§
     VS.                       §              OF              
§
                     [NAME OF DEFENDANT]            §                [Name of county] COUNTY, TEXAS                

BRIEF IN SUPPORT OF ALLOWING DEFENDANT, THROUGH HIS ATTORNEY, TO ARGUE JURY NULLIFICATION, AND ASKING THE COURT TO INCLUDE A JURY NULLIFICATION INSTRUCTION IN THE CHARGE

Defendant, by and through his attorney, respectfully shows the court as follows:

Jury nullification is a positive force in a civilized society. Only the jury is in a position to balance compassion against the letter of the law and assure justice in a proper case.  [T]he jury stands as a bulwark against laws which it deems unjust or excessively harsh.”  Mouton v. State, 923 S.W.2d 219, 222 (Tex. App.–Houston [14th Dist.] 1996, no pet. history).  It is undisputed that a jury has the power of nullification.” Id. at 221.  “[J]ury nullification is a recognized aspect of our jury system.” Id.   The court in United States v. Burkhart, 501 F2d 993, 997 (6th Cir. 1974) noted that the law of jury nullification “allows a defense attorney “some leeway in persuading the jury to acquit out of considerations of mercy or obedience to a higher law.” Mouton at 221-22.

The majority in Sparf et al. v. United States, 156 U.S. 51 (1895), which was cited in Mouton, “suggested no way of eliminating the power of juries, sua sponte, to nullify the law. CLAY S. CONRAD, JURY NULLIFICATION 106 (Carolina Academic Press 1998).  “The case determined only that federal judges were not obligated to inform jurors of their power to bring in a verdict based on the juror’s own judgment of the law.” Id.  “The case did not hold that federal judges could not give jurors [a nullification] instruction, or that they must disingenuously inform jurors that they were bound to follow the courts instructions.” Id. (emphasis mine).  “The case determined only that federal judges were not obligated to inform jurors of their power to bring in a verdict based on the juror’s own judgment of the law.” Id. “The case did not hold that federal judges could not give jurors such [a jury nullification] instruction.” Id. at 108.

The criminal justice system which allows the defense attorney to argue jury nullification and the judge to tell the jury that it has the right to nullify the law is a better system. And there are good reasons for a jury to be told that they have the right to nullify the law.  Jurors may not be aware of their power to render a verdict according to conscience, or that they are immune from prosecution if they do so–particularly if they are under the impression that their oath binds them to enforcing the law as given in the court’s instructions. JURY NULLIFICATION at 126.  “Counting on jurors to come to  Court aware of their hidden powers runs counter to what little empirical evidence exists.” Id. at 133.  “Furthermore, psychological studies indicate that a juror may be willing to convict and impose a cruel sentence if the legal system supports and applauds his actions, because judicial instructions have deprived him of any personal moral responsibility for his verdict.” Id.

Judge Jack B. Weinstein believes that “[n]ullification is but one legitimate result in an appropriate constitutional process safeguarded by judges and the judicial system. When juries refuse to convict on the basis of what they think are unjust laws, they are performing their duty as jurors.” Id. at 145-146 citing HON. Jack B. Weinstein, Considering Jury “Nullification”: When May and Should a Jury Reject the Law to do Justice?, 30 AM. CRIM. L. REV. 239, 240 (1993).  He wrote:

“When jurors return with a “nullification” verdict, then, they have not in reality “nullified” anything: they have done their job. . . Juries are charged not with the task of blindly and mechanically applying the law, but of doing justice in light of the law, the evidence presented at trial, and their own knowledge of society and the world.  To decide some outcomes are just and some are not is not possible without drawing upon personal views.” Id. at

District Court Judge Thomas Wiseman, in the Middle District of Tennessee, wrote:

 “Argument against allowing the jury to hear information that might lead to nullification evinces a fear that the jury might actually serve its primary purpose, that is, it evinces a fear that the community might in fact think a law unjust.  The government, whose duty it is to seek justice and not merely conviction, should not shy away from having a jury know the full facts and law of a case.  Argument equating jury nullification with anarchy misses the point that in our criminal justice system the law as stated by the judge is secondary to the justice as meted out by a jury of the defendant’s peers.  We have established the jury as the final arbiter of truth and justice in our criminal justice system…” United States v. Datcher, 830 F.Supp. 411, 412 (M.D. Tenn. 1993), discussed in Kristen K. Sauer, Informed Conviction: Instructing the Jury About Mandatory Sentencing Consequences, 95 COL. L.REV. (1995) and cited in JURY NULLICICATION at 146-147.

 A Brief History of “Jury Nullification”

History demonstrates that the advent and practice of jury nullification has been a positive and compassionate force in the development and operation of our criminal justice system. “Although the use of the jury in criminal trials in England was encouraged by the Assize of Clarendon in 1166, it was not until 1215 that juries were routinely used in the trial of criminal cases.”  JURY NULLIFICATION at 17 citing SIR PATRICK DEVLIN, TRIAL BY JURY, 9 (3d ed. 1966)(Reprinted 1988).  This was the result two events: the Pope’s condemnation of the entire system of trials by ordeal and his prohibition of clerics from participating in them and the Magna Charta.  JURY NULLIFICATION at 17.

“Although originally juries which returned ‘incorrect verdicts’ were treated very harshly, the power of juries to correct oppressive or unjust laws was beginning to be recognized by the mid-seventeenth century.  Id. at 23-28.  Bushell’s Case in 1670 ushered in what has been called the heroic age of the English jury.”  Id. at 24-28.

“In Bushell’s Case, jurors acquitted the Quakers William Penn and William Mead of the capital offenses of unlawful and tumultuous assembly, disturbance of the peace and riot.  They were charged because they preached to their congregation in the street after the police locked them out of their church because the Quaker religion was illegal.  After the evidence, the court told the jurors to convict.  They did not.  They were threatened with starvation, they were held three days without food, drink, or toilet facilities, but acquitted anyway.  They were all fined a considerable sum.  Eight paid the fine, but four were imprisoned for refusing to pay.  One of those made out what was called a writ of Habeas Corpus ad Subjiciendum, which was decided 2 1/2 months later in their favor.  The opinion in  Bushell’s Case held no more than that a juror could never be punished for his verdict unless he delivered it in bad faith.” Id.

As a result, courts began to use “special verdicts.”  Id. at 28.  Nonetheless, juries insisted on returning general verdicts, especially in seditious libel cases where the law said that the fact of publication was the only element of a libel prosecution that concerned the jury.  Id. at 29.  Many pamphlets were published and distributed informing jurors of their right to judge the law. Id.  More conventional academic and legal treatise writers also began to accept and promulgate the doctrine of jury independence.  Id. at 30.

Alexander Hamilton argued “jury nullification” in Rex v. Zenger, How. St. Tr. 17:675 (1731). Id. at 32-35.  John Peter Zenger was accused of seditious libel in New York. Id. The jury acquitted Zinger after only brief deliberations. Id. at 36.  The reverberations of Hamilton’s arguments continued both in England and America for many years and prosecutions for seditious libel began to falter with increasing consistency. Id. at 36-38.  As a result, the English Parliament in 1791 passed Fox’s Libel Act which re-established the right of juries to render a general verdict in libel cases as in all other criminal cases. Id. at 41-43.  “Juries, by exercising the power implicit in the delivery of the general verdict, had demanded and received official recognition of their right to judge whether an alleged libel was in fact false, malicious and intentional.” Id. at 44.

“The founders of this country were in agreement as to the value of the trial by jury as an essential means of preventing oppression by the government. Their primary concern was more with the radical true law-finding power of the jury than with the jury’s power of amelioration.” Id. at 47-48.  Many prominent founders such as Theophilus Parsons, a member of the Massachusetts Constitutional Convention and Chief Justice of the Massachusetts Supreme Court, John Adams, Thomas Jefferson, and Alexander Hamilton argued for the rights of jurors to judge the law.  “The right of early American jurors to deliver a general verdict according to conscience was not a controversial issue during the early years of this country.” Id. at 52. Chief Justice John Jay, in a rare jury trial in front of the Supreme Court, instructed the jurors of their right to judge the law in the instructions he gave to the jury in Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794).  Id. at 52-53.  Other cases from the same period expressed the same conception of the role of the jury. Id. at 53.

That federal law continued to recognize the right of jury nullification is shown in Justice Van Ness’ instruction to the jury in United States v. Poyllon, 27 F.Cas. 608, 611 (D.C.D.N.Y. 1812), and by Chief Justice John Marshall’s instructions to the jury in United States v. Hastings, 26 F.Cas. 440, 442 (C.C.D.Vir. 1812): “That the jury in a capital case were judges, as well of the law as the fact, and were bound to acquit where either was doubtful.” Id. at 60-61.  For almost five decades following the adoption of the Bill of Rights, the right of jurors to judge both law and fact was uncontroversially accepted.  Id. at 60-63.

By the mid-nineteenth century, for several reasons, the prevalence of jury instructions charging jurors with the responsibility for reviewing both law and fact began to give way to increasingly constrained instructions.  Id. at 65.  For one thing, reducing the power of the jury to determine the law gave trial judges greater control in determining case outcome. Id.  Another factor was reduced perception of a need for jury independence. Id. Americans no longer had unjust laws foisted on them by a foreign power across the sea. Id.  Furthermore, most Americans were aware of their power to judge the law. Id.  Jury independence was rarely used “and most Americans thought it should only be used to curtail gross excrescences of the criminal sanction.” Id. at 66-67.

“The laws establishing and protecting the institution of slavery and punishing those who aided fugitive slaves struck many Americans–including substantial numbers of Southerners–as cruel, unjust and fundamentally un-American.” Id. at 75.  Juries in Massachusetts began ending slavery by finding in favor of slaves who sued for freedom. Id. at 75. In one case, the fate of Quock Walker, a “runaway slave,” was debated in a series of civil jury trials, culminating in a decision that “The said Quock Walker is a free man and not the property slave of the defendant,” and Mr. Walker was awarded damages for injuries suffered when his former master, Nathaniel Jennison caught and beat him. Id. at 75-76.  Then, Jennison was found guilty of assaulting Mr. Walker and fined forty shillings in the case of Commonwealth v. JennisonId. at 76.

Chief Justice William Cushing, in his charge to the jury, instructed them that:

“As to the doctrine of slavery and the right of Christians to hold Africans in perpetual servitude, and sell and treat them as we do our horses and cattle, that (it is true) has been heretofore countenanced by the Province Laws formerly, but nowhere is it expressly enacted or established…  But whatever sentiments have formerly prevailed in this particular or slid in upon us by the example of others, a different idea had taken place with the people of America, more favorable to the natural rights of mankind, and to that natural innate desire of Liberty, with which Heaven (without regard to color, complexion, or shape of noses–features) has inspired all the human race. And upon this ground our Constitution of Government, by which the people of this Commonwealth have solemnly bound themselves, sets out with declaring that all men are born free and equal–and that every subject is entitled to liberty, and to have it guarded by the laws, as well as life and property–and in short is totally repugnant to the idea of being born slaves.  This being the case, I think the idea of slavery is inconsistent with our conduct and Constitution; and there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract…” Id. at 76 citing ALBERT P. BLAUSTEIN & ROBERT L. ZANGRANDO, CIVIL RIGHTS AND AFRICAN AMERICANS, 45-46 (1991).  “The jury of white male landowners freely chose to convict, heralding the end of slavery in Massachusetts and delivering a fatal blow to the institution throughout the Northeast.” Id. at 77.

Although slavery continued in the South, The Unconstitutionality of Slavery, by Lysander Spooner, which argued the illegality and unconstitutionality of slavery, was widely disseminated both in print and by orators such as Frederick Douglass and lead to one of the most thorough jury revolts in history. Id. at 77-78.  The Fugitive Slave Act which was passed in 1850, one of the most infamous pieces of legislation ever passed by any United States legislature provided that a person accused of being a fugitive slave could, without due process of law, be brought before a quasi-judicial commissioner for a summary hearing without a jury. Id. at 79. The commissioner, if convinced of the claimant’s veracity, could return the slave to bondage. Id. The commissioner was paid ten dollars if the slave were returned, but only five dollars if the claim was rejected. Id.  The Fugitive Slave Act also provided imprisonment of up to six months and a fine of up to one thousand dollars for anyone convicted of interfering with the recovery of fugitive slaves, or who rescued or harbored fugitives. Id.  Any person with black skin could be seized as an escaped slave wholly on ex  parte testimony. Id.  The Act deprived those arrested under its auspices of the writ of Habeas Corpus. Id.

It is clear that, for whatever reason, jurors frequently refused to convict those who harbored or assisted fugitive slaves. Id. at 80.  In one case, twenty-four men helped a captured slave named Fredrick Jenkins (alias Shadrack) escape. Id. at 81. Prosecution of the participants in Shadrack’s rescue was dropped by the government after two acquittals and several hung juries. Id.  The second defendant, a black lawyer named Robert Morris, a descendant of slaves, was acquitted by a jury of twelve white men of assisting in the escape of a fugitive slave. Id. at 81-82.  According to one authority, “[h]is lawyer told the jury that they should judge the law as well as the facts, and that if any of them conscientiously believed that the Fugitive Slave Law was unconstitutional, they should disregard any instructions by the judge to the contrary.” Id. at 81.

Other evidence that jurors were freely granted the power to deliver an independent verdict during the nineteenth century include jury independence provisions inserted into several state constitutions and state statutes granting jurors the power to judge the law. Id. at 88.  Some of those survive until this day in one form or another, but in some states, courts restricted the role of jurors during the latter half of the nineteenth century, “often striking down or limiting earlier precedents and statutes.” Id. at 88-92.

In a sense, the United States Supreme Court rejected jury independence in Sparf et al. v. United States, 156 U.S. 51 (1895).  Id. at 99-108.  But the majority in Sparf “suggested no way of eliminating the power of juries, sua sponte, to nullify the law. Id. The case determined only that federal judges were not obligated to inform jurors of their power to bring in a verdict based on the juror’s own judgment of the law. Id. The case did not hold that federal judges could not give jurors such an instruction.” Id. at 108.

In spite of Sparf, during the closing decade of the nineteenth century, the prosecution found it increasingly difficult to prevail in labor cases. Id. at 106-108.

“Jury independence is a snapshot in the law, appropriately flaring up when the criminal law exceeds the limits of social consensus, dying away when the law has been reformed, only to flare up anew when the legislative ambition [and now judicial ambition] again overtakes its legitimate bounds.”  Id. at 108.  It is not debated that the laws which prohibited alcohol manufacture, sale, and consumption were routinely rejected by independent American juries. Id. at 108-115.  In some areas of the country as many as sixty percent of alcohol-related prosecutions ended in acquittals. Id. at 109.  “Prohibition has been described as a ‘crime category in which the jury was totally at war with the law.’” Id.  “Jury independence . . . was still a strong aspect of American culture and many jurors were aware of their powers and willing to exercise them when appropriate.” Id.  “Where juries did convict, they often delivered ‘compromise verdicts’ which resulted in reduced sentences for the accused.’” Id. at 111.

“During prohibition, John Henry Wigmore defended trial by jury on several grounds: that it prevented unpopular distrust of official justice, provided necessary flexibility in legal rules, educated the citizens of the country about the administration of the laws and improved verdicts by requiring that, even after the decision in Sparf et al., juries were deciding cases based both on judicial instructions and their own views of equity:

“Law and justice are from time to time in conflict.  That is because law is a general rule (even the stated exceptions to the rules are general exceptions); while justice is the fairness of this precise case under all its circumstances.  And as a rule of law only takes account of broadly typical conditions, and is aimed on average results, law and justice every so often do not coincide. * * *

“The jury, in the privacy of its retirement, adjusts the general rule of law to the  justice of the particular case.  Thus the odium of inflexible rules of law is avoided, and popular satisfaction is preserved.

“That is what the jury trial does.  It supplies that flexibility of legal rules which is essential to justice and popular contentment.”

Id. at 112 citing John H. Wigmore, A Program for the Trial of Jury Trial, 12 J. AM. JUD. SOC. 166, 169-171 (1929).

Clarence Darrow, America’s most famous criminal defense lawyer of the period and a great opponent of Prohibition and supporter of jury nullification, stated, “Since men began making laws, the favorite form of repeal is by non-observance.  It was in this way that Christianity conquered the Roman Empire.  If Christians had obeyed the laws of Rome their religion would have died at its birth.” Id. at 114 citing DARROW, THE STORY OF MY LIFE, 293, 294 (1931).

“By the early twentieth century, it seemed that jury independence had become a doctrine of the past, anachronistically surviving in a few isolated jurisdictions and watered down and disparaged where it remained.  Rejected by the federal courts and most state courts, it served as interesting fodder for an occasional law review article.  Jury independence was not advocated openly, nor had it been a particularly lively topic of discussion since the demise of slavery and the repeal of the Fugitive Slave Act in 1850.  The political nature of jury independence allowed the doctrine largely to hibernate until the 1960s when the Vietnam war cases brought it to the forefront as a tool of social protest.

“However, as the last quarter of the twentieth century approached, the rapidly increasing number of academic law journals required an increasing number of articles, in order to fill the equally increasing number of pages.  Articles on jury independence found their way onto many of those pages.  For the first time in 88 years of history, the doctrine of jury independence had established a life of its own, apart from any particular issue or policy.” Id. at 140-141.

Juries are still nullifying the law. Id. at 143-153 (examples given: e.g., defendant found not guilty of two counts of marijuana cultivation where he admitted to growing more than 40 plants in his home and his sole defense was that smoking and eating marijuana alleviated the nausea and weight loss associated with AIDS; a Michigan jury refused to punish Dr. Kevorkian for his role in helping Thomas Hyde commit suicide; a Colorado jury refused to convict a man for assisting his mother who requested his help because her suffering got to be too much in committing suicide; cases where juries refuse to convict women who have killed their batterers, not in self-defense, after years of abuse).  Others categories of cases in which independent juries are likely to nullify the law include abortion protest cases, gun owner cases, and, should Roe v. Wade, 410 U.S. 113 (1973) ever be overturned, it is unlikely that independent juries would enforce laws criminalizing abortion.  Id. at 152.  In fact, against all reason, it seems to the attorney for defendant that the average “Pro-Choice” person is far more likely to nullify the law in the appropriate case than the average so-called “Pro-Lifer” many of whom have bought the liberal lie that “I am Pro-Life and would never have an abortion, but I don’t think the government should legislate morals.  It ought to be up to the pregnant woman.”  That reasoning would require the abolition of all our criminal laws.  I represented an abortion clinic sidewalk counselor in Austin.  At trial, the jury would have nullified the law and convicted had not the judge granted defendant’s motion for a directed verdict.  After talking with the jurors after trial, it was apparent that the jurors had lied during voir dire so that they could get onto the jury.  It was also apparent that they were angry because the judge followed the law and granted defendant’s motion for directed verdict after the close of the state’s evidence.

Conclusion

At times, jury nullification is necessary to assure that justice is done.  A judge can allow the defense lawyer to argue jury nullification.  A judge can, but is not required to instruct the jury of its power of nullification.  To deny the jury the right to be fully informed – by either the defense lawyer or the judge or both – of its power of nullification in an attempt to prevent it from exercising the full extent of its proper function will likely result in an injustice in a case where the letter of the law and justice conflict.  Sometimes, as history demonstrates, law and justice do not coincide.

Respectfully submitted,

____________________________________

Jerald C. Finney
P.O. Box 1346
Austin TX  78767
Tel. & FAX: (512)385-0761
State Bar No.:  00787466
ATTORNEY FOR DEFENDANT

VERIFICATION

STATE OF TEXAS                      §

§

COUNTY OF TRAVIS                 §

BEFORE ME, the undersigned authority, on this day personally appeared Jerald Finney who, upon being duly sworn, upon oath did acknowledge and state to me as follows:

“My name is Jerald Finney.  I have read the above and foregoing statements and they are to my personal knowledge, true and correct.”

SIGNED this ____ day of _______________, 200___.

______________________________

Jerald Finney

SUBSCRIBED AND SWORN before me on this ______ day of _______________, 201__.

______________________________

Notary Public, State of Texas

______________________________

Printed Name of Notary

My Commission Expires:_________

No. ______________

 STATE OF TEXAS               §              IN [Name of Court]
§
VS.                §                OF
§
[NAME OF DEFENDANT]          §               [Name of county] COUNTY, TEXAS

DEFENDANT’S REQUESTED INSTRUCTION NO. ___

TO THE HONORABLE JUDGE OF SAID COURT:

                                             , defendant in this action, before the Court has presented the charge to the jury and in the time and manner required by law, requests that the Court include in the charge to be submitted to the jury the following instruction.

INSTRUCTION NO. ___:

It is presumed that juries are the best judges of fact.  Accordingly, you are the sole judges of the true facts in this case.

I think it requires no explanation, however, that judges are presumed to be the best judges of the law.  Accordingly, you must accept my instructions as being correct statements of the legal principles that generally apply in a case of the type you have heard.

The order in which the instructions are given is no indication of their relative importance.  You should not single out certain instructions and disregard others but should construe each one in the light of and in harmony with the others.

These principles are intended to help you in reaching a fair result in this case.  You should give them due respect.  Moreover, justice will ordinarily be done by applying them as a whole to the facts which you find have been proven.  You should do just that if, by doing so, you can do justice in this case.

Even so, it is difficult to draft legal statements that are so exact that they are right for all conceivable circumstances.  Accordingly, you are entitled to act upon your conscientious feeling about what is a fair result in this case, and acquit the defendant if you believe that justice requires such a result.

Exercise your judgment without passion or prejudice, but with honesty and understanding.  Give respectful regard to my statements of the law for what help they may be in arriving at conscientious determination of justice in this case.  That is your highest duty as a public body and as officers of this court.

Respectfully submitted,

____________________________________

Jerald C. Finney
P.O. Box 1346
Austin TX  78767
Tel. & FAX: (512)385-0761
State Bar No.:  00787466
ATTORNEY FOR DEFENDANT

This requested instruction, having been duly and timely requested, is hereby ________________ and exception allowed.  [State modification, if any]:

SIGNED this ________ day of _____________________________, 201__.

___________________________________
JUDGE PRESIDING

The 19th Century Supreme Court Interpretation of “Separation of Church and State”

Jerald Finney
Copyright © January 14, 2012


Click here to go to links to all Chapters in Section V.


Note. This is a modified edition of Section V, Chapter 2 of God Betrayed. The author makes some controversial statements regarding not only civil court jurisprudence but also some biblical principles. An honest study of the Word of God brought him to his conclusions. He invites anyone to show him where he is wrong as to his biblical pronouncements. If anyone can do so, then he will publicly repent and recant. Likewise, if anyone finds that their presuppositions were wrong, he invites them to repent and recant. How can anyone ever hope to get his individual, family, church, and state government correct without being willing to embrace and promote new light when it comes his way?


The 19th Century Supreme Court Interpretation of “Separation of Church and State”

The religion clause of the First Amendment to the United States Constitution states, “Congress shall make no law respecting an establishment of religion, or preventing the free exercise thereof.” What did the authors of this clause of the First Amendment to the Constitution of the United States mean? What was meant by “religion” and “the free exercise of religion” or “freedom of religion?” Was the First Amendment intended to create “separation of church and state?” If so, what was meant by “separation of church and state?” Many Christians have addressed this issue, and most of their debating points have been off base, as have the arguments of secularists. This author traced the history of the First Amendment in Section IV of God Betrayed which is reproduced on this website. Historically, the purpose of the First Amendment was to separate church and state (keep the federal government out of church and churches out of civil government—i.e., the meaning was that the church was not to work under, hand and hand with, or over the federal government.).

The Supreme Court, in the nineteenth century, started out reasonably – not historically or biblically – well on this issue; but in the mid-twentieth century, although not yet removing the original meaning of the First Amendment separation of church and state, the Court moved into another area adding a completely perverted twist to the meaning of “separation of church and state,” thereby turning the First Amendment religious clause into a tool that would be used to remove God from any state activity.

The nineteenth Century Court could have done much better had it gone directly to a complete and non-revised history of relevant facts and to the Bible and not to the views of the “Christian” world for its guidelines. In the nineteenth century, the Supreme Court defined “religion,” “the free exercise of religion,” “freedom of religion,” and “separation of church and state” much differently than does our modern Supreme Court. In 1879, the Court wrote in its opinion in Reynolds v. United States:

“The word ‘religion’ is not defined in the constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the [First Amendment to the United States Constitution] was adopted. The precise point of inquiry is, what is the religious freedom which has been guaranteed” (Reynolds v. United States, 98 U.S. 145, 162 (1879))? (Bracketed material added by author.].

According to the Court, “religion” meant “Christianity” and “freedom of religion” meant freedom to practice the one true religion, “Christianity,” or any imposter of the true religion as long as such practice did not violate or conflict with the moral or social laws of Christianity.

The Reynolds Court referred, as did the mid-twentieth century Court (See Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711, 1947 U.S. LEXIS 2959; 168 A.L.R. 1392 (1947)), to an obscure letter written by Thomas Jefferson. Regarding the First Amendment religion clause:

“Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say: ‘Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,—I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and state. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.’ Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order” (Reynolds, 98 U.S. at 164).

According to Jefferson, the laws of government could reach actions, but not opinions. What actions could government reach? He desired that those laws should not reach, but rather should restore, the natural rights of man. And “[man] has no natural right in opposition to his social duties” (Ibid.)?

What is the origin of man’s “natural rights” and his “social duties” which cannot oppose one another? Jefferson signed the Declaration of Independence which stated, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness…. We, therefore, [appeal] to the Supreme Judge of the world for the rectitude of our intentions” (The Declaration of Independence para. 2, 32 (U.S. 1776)).  The Declaration referred to “the separate but equal station to which the Laws of Nature and of Nature’s God entitles them” (Ibid., para. 1).  Thus, according to Jefferson and the other signers of the Declaration of Independence, man’s “natural rights” come from God.

What defined man’s social duties? What was to tell us the meaning of good order? What actions violated social duties and subverted good order? From Reynolds one can certainly conclude that the Mormon religion, the ways of the Asiatic people, and the ways of the African people were not to be the guide America (98 U.S. at 164). Instead, social duties and good order were to be defined by looking at the laws of the northern and western nations of Europe, especially England (Ibid., pp. 164-65). In England the ecclesiastical (church) courts punished polygamy, and presided over testamentary causes and the settlement of the estates of deceased persons (Ibid., p. 165). Marriage was declared to be a “sacred obligation,” and a “civil contract … regulated by law” (Ibid. This last statement of the Court concerning marriage was flawed. Contract law is based upon enlightenment, not biblical, principles. Marriage as defined in the Bible is a covenant between God, man, and woman. Marriage, according to Enlightenment thought, is a contract between two equal people and the state; the state, not God, is alleged to be the controlling party to marriage. The contract clause—Article 1, Section 10 of the United States Constitution—was ultimately used to reconstruct marital law, family law, criminal law, and other areas of the law including relationship of church and state according to enlightenment principles of contract law. See Section VI of God Betrayed which is published in this blog in edited form.).

What did Jefferson mean by “separation between church and state?” The Reynolds Court stated:

“’[T]o suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty. [I]t is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.’ In these two sentences is found the true distinction between what belongs to the church and what to the state” (Ibid., p. 163). [Emphasis mine.]

The Court did not correctly articulate what belongs to a church and what to the state. Sections I through IV of God Betrayed explain the jurisdictions of church and state according to the Word of God. Nonetheless, the court is correct in asserting that church and state have different jurisdictions.

The Court went on to further clarify the intended meaning of the phrase by explaining that “the scope and effect of the [First Amendment religion clause] was to deprive Congress of all legislative power over mere opinion, while leaving Congress free to reach actions which were in violation of social duties or subversive of good order” (Ibid., p. 164). The Court referred to Thomas Jefferson’s letter to the Danbury Baptist Association as quoted above. They could have reinforced this with the Virginia Act for Religious Liberty, drafted by Jefferson and made law in Virginia in 1786 (quoted on pages 281-282 of God Betrayed which is reproduced on this website in the chapter entitled “To Virginia”), with James Madison’s famous “Memorial and Remonstrance” (quoted on pages 278-279 of God Betrayed and reproduced on this website in the chapter entitled “To Virginia”), and with other historical facts.

Reynolds held that laws criminalizing polygamy did not violate the First Amendment even though the offender practiced polygamy because of his religious beliefs (Ibid.).  The Court said that the act of polygamy violated social duties and subverted good order (Ibid., pp. 164-167). True enough, but still not proper authority to criminalize polygamy, since the Bible made clear that God intends marriage to be under Him only, not under the state.

Mr. Justice Field, who was appointed to the Supreme Court by President Abraham Lincoln in 1863, more clearly explained why, according to the Court, bigamy and polygamy are actions which violate social duties and subvert good order and why laws against bigamy and polygamy are constitutional:

“Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman and to debase man. Few crimes are more pernicious to the best interests of society and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise and counsel their practice is to aid in their commission, and such teaching and counseling are themselves criminal and proper subjects of punishment, as aiding and abetting crime are in all other cases.
     “The term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. The first amendment to the Constitution, in declaring that Congress shall make no law respecting the establishment of religion, or forbidding the free exercise thereof, was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. The oppressive measures adopted, and the cruelties and punishments inflicted by the governments of Europe for many ages, to compel parties to conform, in their religious beliefs and modes of worship, to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to the adoption of the amendment in question (The Court failed to point out that the spiritual atrocities were continued in the colonies, in the conflict between the established churches and the dissenters.)It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society. With man’s relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by  him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with. However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation. There have been sects which denied as a part of their religious tenets that there should be any marriage tie, and advocated promiscuous intercourse of the sexes as prompted by the passions of its members. And history discloses the fact that the necessity of human sacrifices, on special occasions, has been a tenet of many sects. Should a sect of either of these kinds ever find its way into this country, swift punishment would follow the carrying into effect of its doctrines, and no heed would be given to the pretense that, as religious beliefs, their supporters could be protected in their exercise by the Constitution of the United States. Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended in order that the tenets of a religious sect encouraging crime may be carried out without hindrance…” (Davis v. Beason, 133 U.S. 333, 341-43, 345 (1890). In Davis, a man was convicted of a crime under Idaho law and filed a writ of habeas corpus claiming that the law under which he was convicted violated the First Amendment “free exercise of religion” clause. The law prohibited one who belonged to a church organization that holds or teaches bigamy and polygamy as a doctrine of the church from voting or holding office.). [Emphasis mine].
“Marriage, while from its very nature a sacred obligation, is, nevertheless, in most civilized nations a civil contract [The Court was wrong in pronouncing that marriage is a civil contract. Section VI of God Betrayed deals with the fallacy that marriage is a civil contract. Although polygamy is contrary to the will of God, where does the Bible teach that polygamy should be subject to criminal sanctions?], and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal” (Ibid., pp. 343-344. Although one can argue as to whether the Bible prescribes a criminal penalty for bigamy, it is certain that God’s Word commands one husband with only one wife.).
“Whilst legislation for the establishment of religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so called can be tolerated. Crime is not the less odious because sanctioned by what any particular sect may designate as religion” (Ibid., p. 345).
     “Certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement” (Ibid., citing Murphy v. Ramsey, 114 U.S. 15, 45. The court is right that marriage and family are important to the well-being of a nation. But, as has been pointed out, the God-given goal of a nation should be the glory of God. If the glory of God is the goal, correct marital and familial principles will follow. Nowhere in Scripture can one infer that the civil government has the authority to legislate and enforce laws dealing with marriage and familial relationships. A civil government does have the God-given authority to criminalize sexual sins which include sodomy, fornication, and adultery.).

To summarize what the Court said, the First Amendment religion clause gave us freedom of religion, freedom of conscience (Ibid., p. 342).  It separated church and state. However, when an act violated the criminal laws of the nation, the perpetrator was to be punished even if the act were in conformity with the beliefs of his sect (Ibid., pp. 341-347).  The Court declared that the criminal laws of this nation were founded on alleged “Christian” (not biblical) principles. In other words, the Court incorrectly stated that the United States looked to God for its principles (Ibid.). The Court made this clear although it did not use these exact words. For example, on page 343 of the opinion the Court said, “Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended in order that the tenets of a religious sect encouraging crime may be carried out without hindrance.” Notice that the Court went to the views of the “Christian” world, not to the Word of God to determine the issues addressed. In other words, the Court got its principles from rules made by church-state combinations, not from the Bible. The sect which the Court referred to was the Mormon “church” and the crime designated as a practice of a sect or “religion” was polygamy and bigamy (Ibid., pp. 334-335).  Thus, according to the Court, the First Amendment gave the Mormon “church” the right to exist in America (Ibid., p. 342);  the First Amendment gave those who belonged to the Mormon “church” the right to practice what was designated by their “church” as “religion” (Ibid.); but the First Amendment did not give those who belonged to the Mormon “church” the right to put into practice the duties imposed by their sect when those duties were recognized by the general consent of the Christian world as proper matters for prohibitory legislation (Ibid., p. 343).

The Court spoke ofMaker,” of “acts recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation,” and of “morals of a [nation’s people]” (Ibid. pp. 342-343). As correctly declared by the Court, the United States of America got its guidelines for what was criminal and for what is moral and what is immoral from looking at the “Christian world,” not by looking at the Bible. Thus, although the jurisprudence purported to be Christian, it was polluted to a degree (Ibid. pp. 341-345), since the rules the Court looked at were made by “churches” working with, over, or under the state. As is stated in these teachings, when the holy is combined with the unholy, the unholy always corrupts the holy (the holy never purifies the unholy). Bigamy was practiced by men in Israel as recorded in the Old Testament. However, no law under God in the theocracy of Israel was ever passed to criminalize bigamy. Of course the Bible teaches one man and one wife under God; but nowhere (Old and New Testament) does the Bible teach that either bigamy or polygamy, although sin in God’s eyes, should be criminalized. All crimes are also sins, but not all sins are to be criminalized according to the Word of God.

In Rector, Etc., of Holy Trinity Church: v. United States in 1892, the court stated a somewhat flawed history of Christianity within the United States:

“[The … charters of the original colonies, the Mayflower Compact, governing documents of early colonies, the Declaration of Independence, the constitutions of the various states, and the Constitution of the United States] are not individual sayings, declarations of private persons. They are organic utterances. They speak the voice of the entire people. [They declare that this is a Christian nation]. While because of a general recognition of this truth the question has seldom been presented to the courts, yet we find that in Updegraph v. Com. 11 Serg & R 394, 400, ‘It was decided that, Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania; … not Christianity with an established church and tithes and spiritual courts, but Christianity with liberty of conscience to all men.’ [The Court was not entirely accurate in its historical assessment.] And in People v. Ruggles, 8 Johns 290, 294, 295, Chancellor Kent, the great commentator on American law, speaking as chief justice of the Supreme Court of New York, said: ‘The people of this state, in common with the people of this country, profess the general doctrines of Christianity as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but even in respect to the obligations due to society, is a gross violation of decency and good order…. The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community is an abuse of that right. Nor are we bound by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those impostors.’ And in the famous case of Vidal v. Girard’s Ex’rs, 2 How. 127, 198, this court, while sustaining the will of Mr. Girard, with its provision for the creation of a college into which no minister should be permitted to enter, observed: ‘It is also said, and truly, that the Christian religion is a part of the common law of Pennsylvania.’
“If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and society, we find everywhere a clear recognition of the same truth. [The laws, business, customs, and society of America, including the Constitution, were not entirely Christian but a blend of Christian and other thought.] Among other matters note the following: The form of oath universally prevailing, concluding with an appeal to the almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, ‘In the name of God, amen;’ the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing everywhere under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation” (Rector, Etc., of Holy Trinity Church v. United States, 143 U.S. 457 at 471-472, 12 S. Ct. 511 at 516 (1892)). [Emphasis mine. Bracketed sentence added by this author. Christopher Columbus was a Catholic, and regardless of his declarations that his journey to the New World was inspired by God, Catholicism in the part of the New World dominated by that religion has produced entirely different and substantially inferior consequences than those seen in America prior to the denunciation of God by the American government.]

The majority of the justices at that time were Christians or at least men who respected Christianity. However, they obviously were weak spiritually since they relied upon man’s reasoning instead of the Word of God. They handed down opinions which attempted to honor God. Even though the Church of the Holy Trinity, the plaintiff in the case, was a corporation and therefore out of the perfect will of God, the Court still recognized some biblical principles in its decision. Obviously, they did not know and understand the true history of the First Amendment. They were influenced more by the theology of churches which had historically taught and practiced union of church and state than they were by historic Baptist (biblical) theology which had inspired men to stand against church-state establishments in both the Old World and in the American colonies; and consequently to be persecuted for (including being burned at the stake, drowned, drawn and quartered, drowned, buried alive, etc.) for their stand which included a stand for separation of church and state. Sadly, neither no justices (including Supreme Court Justices), nor the lawyers who argued to them, ever expressed the facts about the true foundation of the First Amendment.

The suit in Holy Trinity Church arose because the church, a corporation, hired an Englishman to serve as pastor. A federal law made it unlawful for “any person, company, partnership, or corporation” to bring in an immigrant into the United States “under contract or agreement” “to perform labor or service of any kind in the United States, its Territories, or the District of Columbia” (Ibid., p. 458, 12 S. Ct. at 511).

The Court noted that “a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers” and that “[t]he reason of the law in such cases should prevail over its letter” (Ibid., p. 459, 461, 12 S. Ct. at 512). The Court then stated, in examining the intent of the legislature in making the law:

“Obviously the thought expressed in this reaches only to the work of the manual laborer, as distinguished from that of the professional man. No one reading such a title would suppose that Congress had in its mind any purpose of staying the coming into this country of ministers of the gospel, or, indeed, of any class whose toil is that of the brain. The common understanding of the terms labor and laborers does not include preaching and preachers; and it is to be assumed that words and phrases are used in their ordinary meaning. So whatever of light is thrown upon the statute by the language of the title indicates an exclusion from its penal provisions of all contracts for the employment of ministers, rectors and pastors” (Ibid., p. 463, 12 S. Ct. at 513).

The Court further examined the intent of the statute, then stated:

“But beyond all these matters no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is historically true” (Ibid., p. 465, 12 S. Ct. at 514).

From there, the Court proceeded to give a flawed history of the nation concluding that this is a Christian nation.

Many of the quotations in Holy Trinity Church use the word “religion” in referring to Christianity. The opinion traces the Christian heritage of America, although the Court failed to point out the theological conflict that resulted in the First Amendment (Ibid., pp. 465-470, 12 S. Ct. at 514-516).  Christianity and religion were synonymous to the majority of Americans, including the majority on the Supreme Court. This had been so universally accepted as truth that the courts had seldom addressed it (Ibid., p. 470, 12 S. Ct. at 516)!

From God’s perspective as reflected in His Word, the reasoning in even these nineteenth century opinions was flawed. For example, the Court referred to Jefferson’s obscure letter to the Danbury Baptists. In that letter, Jefferson used deistic terms and enlightenment reasoning. He referred to “restoring man to all his natural rights, convinced that he has no natural rights in opposition to his social duties.” The Court referred to “the laws of all civilized and Christian countries” and not to the Bible or to God and His principles. The history given was definitely modified and revised to a degree. Although the reasoning was far better overall than that of the Court in the mid-twentieth century and thereafter—which would successfully attempt to remove God from all public affairs—it was still a compromise in God’s eyes. The holy had been mixed with the unholy, and the holy was thereby corrupted and on its way out.

A time would come during the twentieth and twenty-first centuries when the majority on the Court, and the majority of Americans, were not born-again Christians. When that happened, the failure of the Constitution to declare the sovereignty of God and the proper goal for the nation–the glory of God—and the inclusion of enlightenment principles in the Constitution (and the Declaration of Independence) would make the undermining of Christian values and the removal of the nation from “under God” much easier.

Introduction to “Religion Clause Jurisprudence”


Jerald Finney
Copyright © January 13, 2012


Click here to go to links to all Chapters in Section V.


Introduction to
Section V of God Betrayed
“Religion Clause Jurisprudence”

Pr.29.2“When the righteous are in authority, the people rejoice: but when the wicked beareth rule, the people mourn” (Pr. 29.2). “Evil men understand not judgment: but they that seek the LORD understand all things” (Pr. 28.5). “The wicked shall be turned into hell, and all the nations that forget God” (Ps. 9.17).

“The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach” (Everson v. Board of Education, 330 U.S. 1 at 18, 91 L. Ed. 711, 67 S. Ct. 504, 168 A.L.R. 1392 (1947), reh’g denied 330 U.S. 855, 91 L. Ed. 1297, 67 S. Ct. 962, p. 18).

The First Amendment to the U.S. Constitution
The First Amendment to the U.S. Constitution

With Everson, “establishment of religionbecame something entirely different from what it had been to that point. Eventually, the new rationale of the Court in Everson, all taken together, while honoring the historical First Amendment and biblical principle of separation of church and state, would lead to the removal, or the attempt to remove, any vestige of God from civil government affairs. Even when the Court would allow the mention of God, it was with the understanding that God was only historical and of no significance. God, the Ruler of the universe, the Ultimate Lawmaker, and the Judge of the Supreme Court of the universe, gave United States Supreme Court Justices freedom to rebel, albeit not without grave consequences.


Chapter 1
Introduction to “Religion Clause Jurisprudence”

Because of failure to understand, believe, and apply God’s principles, the “religious” jurisprudence in the United States has been on a slippery downhill slope of confusion and destruction since the ratification of the Constitution and the Bill of Rights. At first the slope was nonexistent or slight, but starting in the mid-twentieth century the grade increased. The United States Supreme Court added new meaning to “separation of church and state,” meaning which was used to remove all vestiges of God from public life and public view.

8While upholding the original meaning of the First Amendment religion clause, the Supreme Court has supplemented the original meaning of that clause. The original meaning of the religion clause was to protect the church from state regulation and the state from church regulation.

“The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship…. On the other hand, it safeguards the free exercise of the chosen form of religion…. The interrelation of the ‘establishment’ and ‘free exercise’ clauses [according to the United States Supreme Court] has been well summarized as follows: ‘The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority’” (Donald T. Kramer, J.D. Annotation: Supreme Court Cases Involving Establishment and Freedom of Religion Clauses of Federal Constitution, 37 L. Ed. 2d 1147 § 2 citing Everson).

A biblical and historical Baptist principle is that God desires separation of church and state, not separation of God and church or separation of God and state. Study Jerald Finney's writings and/or audio teachings to discover the truth about and how to apply the principle. Finney's teachings prove that the revisionist view of Separation of Church and State accepted without examination by most American
A biblical and historical Baptist principle is that God desires separation of church and state, not separation of God and church or separation of God and state. Study Jerald Finney’s writings and/or audio teachings to discover the truth about and how to apply the principle. Finney’s teachings prove that the revisionist view of Separation of Church and State accepted without examination by most American “Christians” is false and has done great damage to the cause of Christ and to America.

The First Amendment was meant to prevent “the establishment of a religion” and to “protect the  free exercise thereof.” In other words,  religion, including churches, according to the First Amendment religion clause, are to work under, hand and hand with, or over the state. The Court still upholds the “high and impregnable” wall between church and state. A wall separates two sides each from the other. This concept of separation of church and state is the principle God established for Gentile nations.

However, the twentieth century Court has added an additional aspect to the First Amendment religion clause. The Supreme Court, while proclaiming that the First Amendment guarantee of biblical separation of church and state is still in effect, also supplemented the religion clause to require separation of God and state.

History is clear about the fact that the God of the Bible was honored by the people, and especially the great majority of leaders, of America at the time of the founding of the nation and for sometime thereafter (See, e.g., Jerald Finney, God Betrayed/Separation of Church and State: The Biblical Principles and the American Application (Austin, TX: Kerygma Publishing Co., 2008), Section V and the many books cited therein). The people of America knew that the God of the Bible was the only true God.

The nineteenth century Supreme Court held a different view from the modern Court. The nineteenth century Court looked to historical facts to support its contention that this was a Christian nation. Although the Constitution established a nation upon a blend of enligntenment and biblical principles, the nineteenth century court selected partial facts without understanding and incorrectly contended that America was a “Christian” nation (Rector, Etc., of Holy Trinity Church v. United States, 143 U.S. 457, 12 S. Ct. 511 (1892)). When the unregenerate dominated the Court in the twentieth and twenty-first centuries, the Court looked to an incomplete version of historical facts and to a new twist on the First Amendment to remove God from all public affairs and to effectively declare that this is not a Christian nation. At the same time, the Court proclaimed that the original meaning of the First Amendment religion clause is still in effect.

14thAm.The Supreme Court did two things which ultimately resulted in the assurance that God and His principles would not in any way be over the United States or any state therein. First, it gradually deconstructed the intent of the Fourteenth Amendment to the point where the Court began to apply the First Amendment to state, county, and city governments.

Second, the Supreme Court redefined separation of church and state in such a way that allowed the Court to begin to separate God and state on the national, state, county, and city government levels. The twentieth century Court operated in a nation where the state got into areas where it had no God-given and/or Constitutional jurisdiction—education of children, welfare, retirement (social security), childcare, income taxation, etc. In this new environment, the Court redefined “separation of church and state” in such a way that God and state were separated, thereby ensuring the degradation of the nation into gross immorality on a national scale and the ultimate judgment of God upon the nation. God was excluded from the public life of the nation and a pluralistic nation resulted. For the Supreme Court, the term “religion” became a way to categorize spiritual matters in any way connected to “church,” to “God,” or to “a god.” Even should the Court permit a vestige of God to remain, such permission was granted in a pejorative manner which dishonored God. An example is recent Ten Commandments jurisprudence which is discussed in the articles which follow in this section.

1According to the modern Supreme Court, the civil government is to remain neutral as to “religion.” “The First Amendment reflects the philosophy that church and state should be separated. Yet it neither says nor requires that in every conceivable respect there must be a total separation of church and state. Thus, while laws giving direct aid to religion are not permitted, laws which incidentally benefit religion are not, for that reason alone, invalid…. All that is required is that the government stand neutral between one religion and another, and between religion and nonbelief, and not become excessively entangled in the affairs of religion…” (Kramer, § 2).

This neutrality toward “religion,” as defined and applied by the Court, was interpreted to be not only neutrality toward religion, but also hostility toward God. God, His authority, and His principles were deemed inapplicable to the affairs of the civil government. The Court made the decision for the nation: “God, you are out. You are at best equal to nonbelief and to the gods of all other ‘religions.’” Too bad for the nation that the nation is not the sovereign. God is the Sovereign who has allowed the nation to make its temporary and self-destructive choice.

At the same time, the original meaning of the religion clause is generally upheld by the Supreme Court. The Supreme Court still declares that the original meaning of the First Amendment, forbidding the state to interfere in the affairs of a church and vice-versa, is still in effect. The Court still declares the “wall of separation between church and state” to be “high and impregnable.” The original intent of the First Amendment establishment clause—that the state not be over the church nor the church over the state and that people be free to exercise their religious beliefs (as long as those beliefs do not run afoul of criminal law)—has consistently been proclaimed by the Supreme Court. See, The History of the First Amendment.

1As is explained in Section VI of God Betrayed, the position of the Supreme Court which has upheld the separation of church and state has been skirted by the legislative and executive branches through laws which have lured most churches to place themselves under the civil government through legal entity status such as incorporation and 501(c)(3) and by presidential “faith based initiatives.” As far as the author has been able to ascertain, the courts have never been asked to rule on the constitutionality of such legislation and presidential actions.

Certainly many “Christian” and all secular authors have no knowledge or understanding of the Word of God. Therefore, their arguments are foolish. Many Christians and secularists correctly point out that the terms “separation of church and state,” “church,” “state,” and “separation” do not appear in the Constitution (See Leo Pfeffer, Church, State, and Freedom (Boston: The Beacon Press, 1953), p. 118 citing Edwin S. Corwin, Constitution of Powers in a Secular State, (Charlottesville, Virginia: Michie Co., 1951), p. 98). Christians use that fact to argue that church and state should work together, or that the church should be involved with the state. Admittedly, individual Christians, not churches, should, if God so directs, become involved in the civil government; and both New Testament churches and Christians should communicate their political beliefs including who to vote for based upon biblical standards applied to the beliefs of the candidates. Nonetheless, this is a poor argument for 2Christians to use because God wants separation of church and state in Gentile nations (See The Biblical Doctrine of Separation of Church and State) and because the Constitution provided for separation of church and state. The correct argument for the Christian is that the people and the leaders should place the Sovereign, that is, God over the state in the manner already explained in these studies and that God desires that every man have the religious liberty as guaranteed by the First Amendment which separates church and state.

Secularist arguments in support of a complete removal of God from all civil governmental affairs are equally invalid. For example, Leo Pfeffer, a constitutional scholar, asserted that “it was inevitable that some convenient term [‘separation of church and state’] should come into existence to verbalize a principle so clearly and widely held by the American people.” I question whether the overwhelming majority of Americans clearly and widely can or could intelligently discuss the subject now or when Pfeffer wrote. In support of this argument, he asked, “Who would deny that ‘religious liberty’ is a constitutional principle [even though] that phrase is not in the Constitution” (Pfeffer, p. 119)? His writings and advocacy as a lawyer, including his advocacy before the Supreme Court, make clear that his idea of religious liberty—to remove God from state affairs—was entirely different from the biblical principle. He had absolutely no spiritual understanding. He was used by the god of this world to advocate for a “Godless” civil government.

1Thus, one reason for America’s rapid slide downhill has been the lack of knowledge and understanding of biblical principles—this can be related to the fact that the Constitution itself was a blend of biblical and enlightenment principles. Even though some biblical principles were inherent in the structure of the Constitution and the First Amendment provided for religious liberty and separation of church and state, the Constitution did not declare that the goal of the nation was the glory of God. The Constitution did not declare that God, and specifically the Lord Jesus Christ, was Sovereign over the nation. The nation was not, according to its highest statement of law, required to turn to the principles of the Bible in deciding its questions of law, to recognize God in its official prayers and organic utterances, or to point out that the God of the Bible, the Lord Jesus Christ, was the Sovereign over all institutions including individual, family, nation, and church. Since the body of the Constitution made no mention of God, and since certain enlightenment principles were embodied into the Constitution, the document itself is of little help to those who support biblical principles and argue that this nation as founded was a “Christian” nation, or a nation under God. This can be discerned from numerous Supreme Court opinions as exemplified infra in this section.

The Constitution, while separating church and state, also failed to declare that God was to be over the state. In the early history of the new nation, many referred to the need for  religion, or even “God” to be  involved in the state. The New York Methodist church in 1808 promoted the spread of the Gospel over the entire earth, and fought humanism with Scriptural truth and holy living. Christians used their vote to elect Christians who would uphold their Christian ideas.

“The Rev. John Mason preached that ‘the principles of the gospel are to regulate [people’s] political as well as their other conduct.’ He scoffed at the idea that ‘religion has nothing to do with politics!’ asking rhetorically, ‘Where did you learn this maxim?’ To the contrary, he offered, ‘the Bible is full of directions for your behavior as citizens,’ citing in example Col. 3:17 ‘And whatsoever ye do in word or deed, to do all in the name of the Lord Jesus.’ Other New York ministers expressed similar sentiments to their congregations, representing civil government as a ‘subsidiary’ to God’s grand design of preparing saints for the future and ‘the civil magistrate as God’s officer.’ …
2“[Thomas Jefferson stated ‘The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbors to say there are twenty gods or no god. It neither picks my pockets, nor breaks my leg.’]. Mason wrote: ‘This is nothing less than representing civil society as founded in Atheism. For there can be no religion without God. And if it does me or my neighbor no injury, to subvert the very foundation of religion, by denying the being of God, then religion is not one of the constituent principles of society, and consequently society is perfect without it’” (Mark Douglas McGarvie, One Nation Under Law: America’s Early National Struggles to Separate Church and State (DeKalb, Illinois: Northern Illinois University Press, 2005), pp. 124-125).

It is disputed whether Jefferson advocated public abstention in matters of religion, but many clergymen felt that he was atheistic.

  • “Public abstention amounted to the denial of a single religious truth; and once a government rejects the idea of one religious truth, it is rendered unable to act upon any religious doctrine in constricting the laws, values, and policy aims of that society. But the idea that any God could himself, or herself or itself, be relativistic is absurd—how can any true living God accept all suggestions of his, her, or its own existence as merely speculative or one of many unprovable theories? If God could not accept religious relativism, how could America? The advocacy of religious relativism is logically inconsistent with the acceptance of any true, living God. Accordingly, the ministers insisted that when a government assumed such a position, it rejected the existence of God as well as God’s role in governing” (Ibid.).

21Generally speaking, the people of the United States, against an increasing current of liberalism, have determined the course of the nation. As long as the nation had a predominantly Christian population, God was honored to a degree in the public life of the nation, although Christian values, even in the early life of the new nation, were gradually being undermined by non-Christian principles in the legal arena. America, with all its faults, to an extent proceeded “under God” for over a hundred and fifty years even though the nation’s highest law, the Constitution, had, on its face, been about “the happiness of man” and not the “glory of God” from the beginning—this fact is apparent from a facial reading of the document as well as from a study of history before, during, and after ratification.

Great revivals occurred at the time the Constitution was ratified and for some time thereafter, and multitudes were saved. As a result, the nation was saturated with Christians, and the integrity of the nation was thereby preserved to an extent. On the other hand, the legal system began to apply enlightenment principles to redefine marriage, the family, the church, criminal law, and the law in general. Although an examination of this movement is beyond the scope of this book, it is important to have at least a rudimentary understanding of the context in which future First Amendment jurisprudence unfolded.

Because the population was predominantly Christian, or at least honored the Bible and God to an extent, American civil government, to a great degree, initially operated under God. Many Supreme Court justices and the majority of Americans in the nineteenth century were either Christian or at least had a reverence for the Bible and Christianity. In 1892, the Court declared that this nation would go by the principles of Christianity, not by the principles of other religions which the Court called imposters of the true religion (Rector, Etc., of Holy Trinity Church v. United States).  God was honored by some, if not most, civil government organizations and officials in their official public proclamations, speeches, and prayers. Official prayers were given in Jesus’ name. God was recognized by leaders and judges who acknowledged that only the God of the Bible could bring blessings and curses to the nation. Among the myriad examples is the Thanksgiving Day Proclamation of President George Washington:

  • 1“Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will to be grateful for his benefits, and humbly implore his protection and favor, and Whereas both Houses of Congress have by their joint Committee requested me to ‘recommend to the People of the United States a day of public thanks-giving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.
  • “Now, therefore, I do recommend and assign Thursday, the 26th day of November, next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then unite in rendering unto Him our sincere and humble thanks for His [many blessings before becoming a nation, during the late war, etc.]….
  • “And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions…” (Norman Cousins, In God We Trust (Kingsport, Tennessee: Kingsport Press, Inc., 1958), pp. 71-72; quoted only in part. Notice that even President Washington included the purpose of the nation as being the “safety and happiness” of the people.). [Emphasis mine to show enlightenment influence.]

Things have changed. Although the First Amendment to the Constitution states that “Congress shall make no law regarding an establishment of religion or preventing the free exercise thereof,” the civil government, contrary to the mandate of that amendment, through laws passed by Congress and approved by the President, controls and even defines the corporate 501(c)(3) religious organization and undermines such organizations with the promotion and support of most and participation by some “Christians.”

6The Supreme Court has not had to attack the churches to subjugate them to the civil government. Most churches have taken themselves from under the jurisdiction of God and placed themselves under the civil government through incorporation and Internal Revenue Code (“IRC”) § 501(c)(3) status. Churches have done this even though the federal government acknowledges that churches are different from “religious organizations” and that the civil government has no requirement for a church to be under the state—a church can only voluntarily place itself under the state. Satan would much prefer that churches come to him willingly. Regrettably, most Christians are members of a corporate 501(c)(3) church (This aspect of civil government control of churches is covered in Section VI of God Betrayed which is reproduced on this blog.). Many Christians in incorporated 501(c)(3) religious organizations are discovering the truth, but have no knowledge about how to disentangle their churches from the state; others simply ignore the issue and continue in their polluted state.

Why have some “Christians,” as well as the Supreme Court and other branches of government, not recognized that a church is to be entirely under God and that the civil government has limited jurisdiction under God? The answers to these questions are very simple: Some “Christians” and Supreme Court justices and other civil government leaders and officials have no understanding of biblical principles or of the history of their nation concerning government (which includes the all-powerful government of God, self-government, family government, civil government, and church government), church, separation of church and state, and the proper relationship between God and state and God and His churches. They simply do not understand that God is the Sovereign over all, that God gives all civil governments the choice of whether to recognize His sovereignty and operate under His rules, and the consequences of the choices made. They have been deceived by false secular and “Christian” teaching in those areas. As a result, even “Christians” advance secular principles and arguments rather than God-honoring biblical principles and arguments.

1Co.2.14Since man does not gravitate towards God’s principles, but rather toward Satan’s principles, the Christian population of the nation decreased steadily and is now a very small remnant. A Christian population honored God individually and as a nation, to a degree, regardless of the wording of the Constitution. A Christian population applied a more biblical interpretation and understanding of the First Amendment. A non-Christian population seeks the lowest level. America is rapidly sinking to that level and is now near rock bottom.

Much of the writing concerning the First Amendment is confusing and certainly untrue since the understanding of the history of the amendment has been revised by both secular and Christian writers. Generally, either nothing is said about, or lies and revisions are dissiminated about, the power of God, His principles, and the warfare between those principles and the false versions of those principles in the theologies of many “churches” and denominations and in the revised histories of colonial America and the United States. When God and His principles are left out, revised, and/or lied about in the discussion of anything (as is almost always the case), the path is only downward toward judgment. “The fear of the LORD is the beginning of wisdom: and the knowledge of the holy is understanding” (Pr. 9.10). “[T]he foolishness of God is wiser than men; and the weakness of God is stronger than men” (1 Co. 1.25). “But the natural man receiveth not the things of the Spirit of God: for they are foolishness unto him: neither can he know them, because they are spiritually discerned” (1 Co. 2.14). “For the wisdom of this world is foolishness with God. For it is written, He taketh the wise in their own craftiness. And again, The Lord knoweth the thoughts of the wise, that they are vain” (1 Co. 3.19-20).

To Virginia


Jerald Finney
Copyright © December 31, 2012


Click here to go to the entire history of religious liberty in America.


Note. This is a modified version of Section IV, Chapter 9 of God Betrayed: Separation of Church and State/The Biblical Principles and the American Application. Audio Teachings on the History of the First Amendment has links to the audio teaching of Jerald Finney on the history of the First Amendment.


To Virginia

Contents:

I. Introduction: the dissenters, mainly Baptists, led the fight for religious liberty.
II.
Virginia colonial government controlled by religion (Episcopal church) and law (covering both Tables), Presbyterians First Amendment.
III.
Presbyterians settle in Virginia, some were licensed, kept their promises and oaths under the Act of Toleration.
IV.
Regular Baptists applied for license and took oaths; Separate Baptists stood for religious freedom, had success because of the power of God and the immorality of the established clergy; Separate Baptists grew in number and power; the ministry of Samuel Harris.
V.
Severe persecution of Baptists from 1768-1774.
VI.
Baptists petitioned Virginia House of Burgesses for relief, Presbyterians petitioned for favors; James Madison writes on the persecutions, establishment which leads to pride, ignorance, knavery, and corruption, freedom of conscience, etc.
VII.
Intolerance and persecution were ended because of the Revolution; the Baptists push for religious freedom and the end of the establishment; Virginia became the second colony to recognize religious liberty in a new Constitution in 1776 (Patrick Henry proposed tolerance, but James Madison pushed religious liberty-which he learned from the Baptists-and explained the difference).
VIII.
1776-1786 the battle for soul liberty was on;1776 compromise bill sounded the death knell of Anglicanism; 1776-1779 assembly daily contests between the “contending factions” with a flood of undeviating and uncompromising Baptist petitions as well as watered down Presbyterian and Methodist petitions; Jefferson introduced his Bill for Religious Liberty; a ‘bill establishing provision for teachers of the Christian religion,’ sponsored by Patrick Henry, opposed by Madison who prepared his famous “Memorial and Remonstrance” (quoted below) in opposition; legislature passed a bill incorporating the Episcopal church in 1785; January 16, 1786, the Virginia Act for Religious Liberty, drafted by Thomas Jefferson, passed.
IX.
The Baptists continued the struggle to remove all vestiges of the establishment until the glebes were sold and all religious societies were placed on an equal footing.


I. Introduction: the dissenters, mainly Baptists, led the fight for religious liberty

Although the final expression of religious freedom that would be incorporated into the Constitution came from Virginia, the final motivation came as a result of the convictions of the dissenters, mainly the Baptists, and the thrust for their growth and influence came from the Great Awakening.

“[T]he early Baptists of Virginia, … while they could not boast of great wealth, or culture, or refinement, they possessed some things of more real value, and which the Commonwealth greatly needed. In the first place they had religion—genuine religion; not a sham, nor an empty form, but the old time religion of the heart. Then they had a personal worth or character, that character which always follows from having genuine religion. And then, again, those early Baptists had an unquenchable love of liberty. The truth of the New Testament makes men free indeed, and it inspires them with a love of freedom, not for themselves only, but for all men. And it was because they possessed these traits that they resisted the temptations of the General Incorporation and General Assessment, and stood their ground amid the general desertion. They resolved to continue to fight” (Charles F. James, Documentary History of the Struggle for Religious Liberty in Virginia (Harrisonburg, VA.: Sprinkle Publications, 2007; First Published Lynchburg, VA.: J. P. Bell Company, 1900), Appendix A, pp. 207-208).

The conflict in Virginia originally involved the Anglicans and Presbyterians, neither of which originally believed in either religious freedom or separation of church and state. Religious freedom and separation are owed mainly to the Baptists who believed in both. What Jefferson and Madison wrote about and did for religious freedom[, although leavened with enlightenment principles,] resulted from their observance of the conflict among “Christians” and is not to be found in the pages of philosophers of the enlightenment (See, e.g., William H. Marnell, The First Amendment: Religious Freedom in America from Colonial Days to the School Prayer Controversy (Garden City, New York: Doubleday & Company, Inc., 1964), pp. 89-90.).

“The Presbyterians [in Virginia] won religious liberty for themselves against the opposition of the Episcopalians. Next the Baptists won religious liberty for themselves against the opposition of the Episcopalians and the Presbyterians. By 1775 about three quarters of the people of Virginia were outside the Church of England, but many of the most influential Virginians were inside. When the war started, there were ninety-five Anglican parishes in Virginia. The war killed off at least a quarter of them. Nowhere in the colonies was Tory sentiment stronger than among the Anglican clergy of Virginia, and they found themselves at the gravest of odds with their flocks” (Ibid., p. 93).


II. Virginia colonial government controlled by religion (Episcopal church) and law (covering both Tables), Presbyterians First Amendment

The Episcopal church, the Church of England, in Virginia was established from the founding of Jamestown in 1607:

“It was known, also, as the ‘Established Church,’ because it was made, by legal enactment, the church of the State and was supported by taxation. Not only so, but it was designed to be the established church, to the exclusion of all others. Rigid laws, with severe penalties affixed, were passed, having for their object the exclusion of all Dissenters from the colony, and the compelling of conformity to the established, or State, religion. Even after the Revolution of 1688, which placed William and Mary upon the throne of England and secured the passage of the ‘Act of Toleration’ the following year, the ‘General Court of the Colony’ of Virginia construed that act to suit themselves, and withheld its benefits from Dissenters … until they were compelled to yield to the force of circumstances” (James, pp. 10-11).

The Church of England was stronger in Virginia than in any colony.

In Virginia, the established Anglican church was controlled by the state, unlike in New England where the established church controlled the state. From the beginning of the colony, the “company knew not how to control the members composing the colony but by religion and law” (Ibid., p. 17). The original “Lawes Divine, Moral and Martial” which were decreed in 1612, were severe. Speaking impiously of the Trinity or of God the Father, Son, or Holy Spirit, blaspheming God, incorrigibly cursing, a third failure to attend religious services, and a third “Sabbath-breaking,” were punishable by death. Other spiritual offenses were punished by whipping and other penalties (See Leo Pfeffer, Church, State, and Freedom (Boston: The Beacon Press, 1953), p. 69 for the text of this law.).

These laws were repealed upon appeal to England, and the laws enacted in support of the Anglican establishment were less severe. Still, the Anglican church was established (and this establishment continued until the revolution with one short interruption), nonattendance at church services was the subject of fines, the payment of tithes were mandatory, every parson was entitled to the glebe—a piece of land—parish churches were built by taxes, and ministers were required to “conform themselves in all things according to the canons of the Church of England.”

“Puritan clergy were banished for failing to conform to Anglican services; Quakers [and Baptists] were fined, imprisoned, and banished. Catholics were disqualified for public office, and any priest who ventured to enter the colony was subject to instant expulsion. Penalties were imposed on those who having scruples against infant baptism, neglected to present their children for that purpose” (Ibid.; see also, James, pp. 17-20 for a more comprehensive overview of the laws of Virginia which provided for religious persecution and the established church.).

A 1643 law forbade anyone to teach or preach religion, publicly or privately, who was not a minister of the Church of England, and instructed governor and council to expel all nonconformists from the colony (William L. Lumpkin, Baptist Foundations in the South (Eugene, Oregon: Wipf & Stock Publishers, 2006), p. 105). In 1643, three Congregationalist ministers from Boston were forced to leave the colony. Also in 1643, “Sir William Berkeley, Royal Governor of Virginia, strove, by whippings and brandings, to make the inhabitants of that colony conform to the Established church, and thus drove out the Baptists and Quakers, who found a refuge in … North Carolina.” Quakers first came to Virginia in “1659-60, and … the utmost degree of persecution was exercised towards them.” “During the period of the Commonwealth in England, there had been a kind of interregnum as to both Church and State in Virginia; but in 1661, the supremacy of the Church of England was again fully established.” Only ministers of the Church of England were permitted to preach, and only ministers of that church could “celebrate the rites of matrimony,” and only “according to the ceremony prescribed in the Book of Common Prayer” (James, pp. 17-20).


III. Presbyterians settle in Virginia, some were licensed, kept their promises and oaths under the Act of Toleration

Although some Presbyterians settled in Virginia from 1670 to 1680, the number & influence of Presbyterians in Virginia was small until the mid-1700s. In the mid-1700s an influential body of Presbyterians settled in Hanover County as a result of a 1738 agreement between the Presbyterian Synod of Philadelphia and Virginia governor William Gooch which allowed “emigrants to occupy the frontier portions of Virginia and enjoy the benefits of the Act of Toleration” (Ibid., pp. 11-12).

The first non-Anglican minister to receive a license under the Act of Toleration passed by the British Parliament in 1689, which instructed liberty of conscience for all but Papists, was Francis Makemie, a Presbyterian minister in Accomac County. By 1725, no more than five conventicles, “three small meetings of Quakers and two of Presbyterians,” were licensed, and these in poorer counties who were unable to pay the established minister enough to stay. In 1725, a similar license was granted to “certain parties (doubtless Presbyterians)” in Richmond County (Ibid., pp. 20-22).

Presbyterian families from Pennsylvania and Maryland began to move to remote parts of Virginia on the western frontier in 1738. The Presbyterian Synod of Pennsylvania wrote Governor Gooch of Virginia asking for religious freedom for those Presbyterians. Governor Gooch, knowing these people “to be firm, enterprising, hardy, brave, good citizens and soldiers,” and desiring “to form a complete line of defense against the savage inroads,” welcomed them. “At so great a distance from the older settlements, he anticipated no danger to the established church.” The conditions of settlement were that they “were not only to settle in the frontier counties as a buffer between the Churchmen and the Indians, but they had to swear allegiance to ‘His Magesty’s person and government,’” pay the taxes levied in support of the Established Church, and never by word or deed seek to injure the said church…. “Houses for public worship could not be occupied without permission from the civil authorities, and each application for a house of worship was heard on its own merits.” “[Those early Presbyterians] did not break their promise nor violate their oaths.”  Up to the Revolution, “they never demanded anything more than their rights under the Act of Toleration, and … not until the Revolution was accomplished, and Virginia had thrown off allegiance to Great Britain, did they (the Presbyterians) strike hands with the Baptists in the effort to pull down the Establishments.” However, with the fury of the French and Indian War which broke out in 1755, Presbyterians east of the Blue Ridge occupied houses of worship without license or molestation (Ibid., pp. 22-25, citing Foote, “Sketches of Virginia,” pp. 99, 160-162, 307, 308).


IV. Regular Baptists applied for license and took oaths; Separate Baptists stood for religious freedom, had success because of the power of God and the immorality of the established clergy; Separate Baptists grew in number and power; the ministry of Samuel Harris

Different bodies of Baptists came to Virginia during the colonial period. The “Regular Baptists,” like the Presbyterians, “applied for license and took the prescribed oaths.” As for the “Separate Baptists,” the “body spread so rapidly throughout the State from 1755 to the … Revolution,” and “did not recognize the right of any civil power to regulate preaching or places of meeting.” They were the “most active in evangelizing Virginia and most severely persecuted, and … had the largest share of the work of pulling down the ‘Establishment’ and securing religious liberty for all.” “While yielding a ready obedience to the civil authorities in all civil affairs, in matters of religion they recognized no lord but Christ. They were truly apostolic in refusing to obey man rather than God” (Ibid., pp. 12-14, 26).

Conditions were favorable for the rapid growth of Baptist principles. “First, the distress of the colonists, consequent upon the French and Indian wars, inclined them towards religion.” Secondly, the distressed people could find no solace or comfort in the immoral established clergy.

“The great success and rapid increase of the Baptists in Virginia must be ascribed primarily to the power of God working with them. Yet it cannot be denied but that there were subordinate and cooperating causes; one of which, and the main one, was the loose and immoral deportment of the Established clergy, by which the people were left almost destitute of even the shadow of true religion. ‘Tis true, they had some outward forms of worship, but the essential principles of Christianity were not only not understood among them, but by many never heard of. Some of the cardinal precepts of morality were discarded, and actions plainly forbidden by the New Testament were often proclaimed by the clergy as harmless and innocent, or, at worst, foibles of but little account. Having no discipline, every man followed the bent of his own inclination. It was not uncommon for the rectors of parishes to be men of the lowest morals. The Baptist preachers were, in almost every respect, the reverse of the Established clergy’” (Ibid., pp. 26-27, citing Robert B. Semple, “History of the Baptists of Virginia,” 1810, p. 25).

The bad character and actions of the established clergy are proven by their own authorities. Many of that clergy came to Virginia “to retrieve either lost fortune or lost character….” “Many of them had been addicted to the race-field, the card-table, the theatre—nay, more, to drunken revel, etc….” “They could babble in a pulpit, roar in a tavern, exact from their parishioners, and rather by their dissoluteness destroy than feed the flock” (Ibid., pp. 27-28, citing Foote, p. 38 quoting from the Bishop of London; Bishop Meade, “Old Parishes and Families of Virginia” (Vol. I, 118, 385, etc.; Dr. Hawks, “History of the Protestant Episcopal Church of Virginia,” p. 65.)).

The Baptists grew stronger and more numerous in Virginia. The first Baptist church in Virginia was established in 1714 by Robert Nordin who arrived from England. By 1755, there were six Baptist churches in Virginia (James R. Beller, America in Crimson Red: The Baptist History of America (Arnold, Missouri: Prairie Fire Press, 2004), pp. 140-142). 1758 to 1769 was a period of slow but persistent growth in the face of a determined popular hostility. The early opposition to the Baptists came from the lower classes and was based upon prejudice.

The Virginia expansion was intimately tied up with the ministry of Colonel Samuel Harris. Harris who served at various times as church warden, sheriff, justice of the peace, colonel of the county, and captain and commissary of Fort Mayo and its military garrison, was the first person of prominence to join the Separates in Virginia and was just one of many examples of the power of this movement. He was saved at a house meeting after hearing a sermon preached by a Separate Baptist from North Carolina. He resigned from his official positions and narrowed his business interests almost to the vanishing point in order to preach. He began to preach throughout Virginia, and many were converted as a result of his ministry (Lumpkin, pp. 48-49).

Harris was a fearless preacher. “The excellence of his preaching lay chiefly in ‘addressing the heart,’ and Semple holds that ‘perhaps even Whitefield did not surpass him in this’” (Ibid., p. 90, citing A. B. Semple, A History of the Rise and Progress of the Baptists of Virginia (Richmond: Pitt & Dickinson, 1894), p. 380). He had the assistance of several North Carolina itinerant evangelists planting the earliest Separate churches in south central Virginia. The Dan River Church was started in 1760 by Daniel Marshall and Philip Mulkey with seventy-four charter members, eleven of whom were Negroes. Other churches were soon constituted from the Dan River Church (Ibid., pp. 90-98).

Wherever the Baptist itinerants preached, great crowds came to hear them. Many were converted in Virginia, and many Baptist churches were started. In 1770, there were only two Separate churches north of the James River, four south of it. The General Association of Separate Baptists of Virginia was held in May, 1771 in Orange County with twelve churches represented, and three not represented.

By 1772 the Separate Churches outnumbered those of the Regular churches. In that year, as many as forty thousand Virginians may have heard the gospel. By 1773 thirty-four churches were represented at the General Association meeting, and they reported a combined membership of 3,195. By May, 1774, when Baptist expansion and Baptist persecution were at high tide, the Southern District in Virginia had twenty-seven churches with 2,033 members and the Northern District had twenty-four churches with 1,921 members. By the end of 1774, there was at least one Separate Baptist church in twenty-eight of the sixty counties of Virginia. During the Revolution, Baptist growth continued, but at a much slower pace (Ibid., pp. 90-103).


V. Severe persecution of Baptists from 1768-1774

From 1768 through 1774, the Baptists were persecuted severely. “Baptist preachers were whipped, arrested, fined, imprisoned on bread and water, although the authorities sanctimoniously denied that punishment was for ‘preaching’; the crime they said, was ‘breach of the peace’ (Pfeffer, p. 95. citing Edward F. Humphrey, Nationalism and Religion in America (Boston: Chipman Law Publishing Co., 1924), p.370).”  The first instance of actual imprisonment was on June 4, 1768 when John Waller, Lewis Craig, James Childs, James Reed, and William Marsh were arrested at Craig’s meetinghouse in Spotsylvania and charged with disturbing the peace. The magistrates offered to release them if they would promise to preach no more for a year and a day. They refused and were jailed. Many more were jailed and otherwise persecuted until 1774 (James, pp. 29-30. Included is a listing of some of those jailed and otherwise persecuted. See also, Beller, America in Crimson Red, pp. 230-250; Lumpkin, pp. 105-120; Dr. William P. Grady, What Hath God Wrought: A Biblical Interpretation of American History (Knoxville, Tennessee: Grady Publications, Inc., 1999), Appendix A, pp. 593-598 citing Lewis Peyton Little, Imprisoned Preachers and Religious Liberty in Virginia, (Galatin, Tenn.: Church History Research and Archives, 1987), pp. 516-520 (lists many Baptists and the persecutions they endured in Virginia; persecutions such as being jailed for preaching, civil suit, being annoyed by men drinking and playing cards, being jerked off stage and head beaten against the ground, hands being slashed, beaten with bludgeons, being shot with a shotgun, ousted as a justice for preaching, being brutally beaten by a mob, severely beaten with a stick, etc.)).

  •  “[The persecutors] seemed sometimes to strive to treat the Baptists and their worship with as much rudeness and indecency as was possible. They often insulted the preacher in time of service, and would ride into the water and make sport when they administered baptism. They frequently fabricated and spread the most groundless reports, which were injurious to the characters of the Baptists. When any Baptist fell into any improper conduct, it was always exaggerated to the utmost extent” (James, p. 30, citing Semple, p. 19).
  • “The enemy, not contented with ridicule and defamation, manifested their abhorrence to the Baptists in another way. By a law then in force in Virginia, all were under obligation to go to church several times a year; the failure subjected them to fine. [Little action against members of the Established church was taken under this law, but] as soon as the ‘New Lights’ were absent, they were presented by grand jury, and fined…. [Others were imprisoned for preaching without a license.] ‘When persecutors found religion could not be stopped … by ridicule, defamation, and abusive language, the resolution was to take a different step and see what they could do; and the preachers in different places were apprehended by magisterial authority, some of whom were imprisoned and some escaped. Before this step was taken, the parson of the parish was consulted [and he advised that] the ‘New Lights’ ought to be taken up and imprisoned, as necessary for the peace and harmony of the old church…’” (Ibid., pp. 30-31, citing William Fristoe, “History of the Ketocton Baptist Association,” p. 69).
  • “[An Episcopalian wrote,] No dissenters in Virginia experienced, for a time, harsher treatment than did the Baptists. They were beaten and imprisoned, and cruelty taxed its ingenuity to devise new modes of punishment and annoyance” (Ibid., citing Dr. Hawks, “History of the Protestant Episcopal Church of Virginia,” p. 121).

VI. Baptists petitioned Virginia House of Burgesses for relief, Presbyterians petitioned for favors; James Madison writes on the persecutions, establishment which leads to pride, ignorance, knavery, and corruption, freedom of conscience, etc.

As a result of the persecutions and oppressions, Baptists began to petition the House of Burgesses for relief. Their first petition in 1770 requesting that Baptist ministers “not be compelled to bear arms or attend musters” was rejected. Other petitions from Baptists in several counties were submitted in 1772 requesting that they “be treated with the same indulgence, in religious matters, as Quakers, Presbyterians, and other Protestant dissenters enjoy.” The petitions continued until 1775 (Ibid., pp. 31-35). The Presbyterians petitioned also, but for the right to incorporate so that they could receive and hold gifts of land and slaves for the support of their ministers. One of the Presbyterian petitions was improperly hailed as proof “that the Presbyterians anticipated the Baptists in their memorials asking for religious liberty.” An examination of that petition reveals that it “contemplate[d] nothing more than securing for Presbyterians and others in Virginia the same privileges and liberties which they enjoyed in England under the Act of Toleration,” and contained no “attack upon the Establishment, or any sign of hostility to it” (Ibid., pp. 42-47).

During this time, James Madison wrote to his old college friend, Bradford of Philadelphia in a letter dated January 24, 1774. He expressed his belief that if

  • “uninterrupted harmony had prevailed throughout the continent [in matters of established religion as practiced in Virginia] it is clear to me that slavery and subjection might and would have been gradually insinuated among us. Union of religious sentiments begets a surprising confidence, and ecclesiastical establishments tend to great ignorance and corruption, all of which facilitates the execution of mischievous projects…. Poverty and luxury prevail among all sorts; pride, ignorance, and knavery among the priesthood, and vice and wickedness among the laity. This is bad enough; but it is not the worst I have to tell you. That diabolical, hell-conceived principle of persecution rages among some, and to their eternal infamy, the clergy can furnish their quota of imps for such purposes. There are at this time in the adjacent country not less than five or six well-meaning men in close jail for publishing their religious sentiments, which in the main are very orthodox. I have neither patience to hear, talk, or think of anything relative to this matter; for I have squabbled and scolded, abused and ridiculed, so long about it to little purpose, that I am without common patience…. So I must beg you to pity me, and pray for liberty of conscience to all” (Ibid., p. 36).
  • [In another letter to Bradford dated April 1, 1774, Madison wrote that he doubted that anything would be done to help the dissenters in the Assembly meeting beginning May 1, 1774.] He spoke of “the incredible and extravagant stories [which were] told in the House of the monstrous effects of the enthusiasm prevalent among the sectaries, and so greedily swallowed by their enemies…. And the bad name they still have with those who pretend too much contempt to examine into their principles and conduct, and are too much devoted to ecclesiastical establishment to hear of the toleration of the dissentients…. The liberal, catholic, and equitable way of thinking, as to the rights of conscience, which is one of the characteristics of a free people, and so strongly marks the people of your province, is little known among the zealous adherents to our hierarchy…. [Although we have some persons of generous principles in the legislature] the clergy are a numerous and powerful body, have great influence at home by reason of their connection with and dependence on the bishops and crown, and will naturally employ all their arts and interest to depress their rising adversaries; for such they must consider dissentients, who rob them of the good will of the people, and may in time endanger their livings and security.
  • “… Religious bondage shackles and debilitates the mind, and unfits if for every enterprise, every expanded prospect” (Ibid., pp. 35-38, citing Rives Life and Times of Madison, Vol. I, pp. 43, 53; Norman Cousins, In God We Trust (Kingsport, Tennessee: Kingsport Press, Inc., 1958), pp. 299-301).

VII. Intolerance and persecution were ended because of the Revolution; the Baptists push for religious freedom and the end of the establishment; Virginia became the second colony to recognize religious liberty in a new Constitution in 1776 (Patrick Henry proposed tolerance, but James Madison pushed religious liberty-which he learned from the Baptists-and explained the difference)

1775 closed the period of “Intolerance, Toleration, and Persecution.”

“The colony is involved in trouble with the mother country. Virginia has denounced the ‘Boston Port Bill,’ and made common cause with Massachusetts. The First Continental Congress has already met in Philadelphia. Patrick Henry has electrified the country by his memorable speech in the popular Convention which met March, 1775…. The Battles of Lexington and Concord have been fought (April 19), and Virginia has taken steps to enroll companies of volunteers in every county. The war of the Revolution is on, and the times call for union and harmony among all classes. Hence, there is no more persecution of Baptists. There are no more imprisonments in 1775, and that obnoxious Toleration Bill is indefinitely postponed. The same ruling class that admitted the Presbyterians to Virginia and to the benefits of the Act of Toleration, on condition that they occupied the frontier counties, and thus protected them against Indian raids, are now inclined to tolerate, not only the Presbyterians, but the Baptists also, with all their ‘pernicious doctrines,’ if only they will help in the struggle with Great Britain. The Baptists will help, and not a Tory will be found among them. But they will strike for something more and something dearer to them than civil liberty—for freedom of conscience, for ‘just and true liberty, equal and impartial liberty’” (James, pp. 47-48).

The Baptists were ready to push for religious freedom and abolition of the establishment. In their Association meeting on the fourth Saturday of May, 1775, “they were to a man favorable to any revolution by which they could obtain freedom of religion. They had known from experience that mere toleration was not a sufficient check, having been imprisoned at a time when that law was considered by many as being in force.” They decided to circulate petitions throughout the state calling for abolition of the church establishment and freedom of religion, and also to appoint commissioners to present their address for military resistance to British oppression and “offering the services of their young men as soldiers and asking only that, so far as the army was concerned, their ministers might enjoy like privileges with the clergy of the Established church” to the State Convention which was the House of Burgess under a new name and in a different character. The Convention, still controlled by “the same class that had, a few years before made concessions to the … Presbyterians on condition that they settle on the western counties forming a line of defense against the Indians, resolved to allow those dissenters in the military who so desired to attend divine worship administered by dissenting preachers. This first step towards placing all Virginia clergy on an equal footing, came as a result of the need for the numerical strength of the Baptists in what was considered by the establishment in 1775 a “struggle for their rights ‘in the union’ [with England].” The Convention maintained their “faith and true allegiance to His Majesty, George the Third, [their] only lawful and rightful King.” “It would have been very impolitic, even if their petitions had been ready, to have sprung the question of disestablishment upon [the Convention] before they had committed themselves to the cause of independence” (Ibid., pp. 49-57).

Virginia adopted a new constitution in 1776. The Convention of 1776 was, by its act, made the “House of Delegates” of the first General Assembly under the new constitution. There were twenty-nine new members in this meeting that were not in the 1775 Convention. “[W]hen there was anything near a division among the other inhabitants in a county, the Baptists, together with their influence, gave a caste to the scale, by which means many a worthy and useful member was lodged in the House of Assembly and answered a valuable purpose there” (Ibid., p. 58). Among those favorable to Baptist causes was James Madison. On May 12, the Congress met in Philadelphia “and instructed the colonies to organize independent governments of their own. The war was on.” On May 15, the Convention resolved to declare the “colonies free and independent states” and that a committee be appointed to prepare Declaration of Rights and a plan of government which would “maintain peace and order” and “secure substantial and equal liberty to the people” (Ibid., pp. 58-62).

Other than Rhode Island, Virginia was the first colony to recognize religious liberty “in her organic law, and this she did in Article XVI. of her Bill of Rights, which was adopted on the 12th day of June, 1776” (Ibid p. 10.). In 1776 the Virginia state convention was beset by petitions from all over Virginia seeking religious freedom and freedom of conscience. Patrick Henry proposed the provision to section sixteen of the Virginia Bill of Rights which granted religious tolerance (Marnell, pp. 94-95; James, pp. 62-65). On June 12 the House adopted a Declaration of Rights. The 16th Article provided for religious tolerance. However, [o]n motion on the floor by James Madison, the article was amended to provide for religious liberty. In committee, Madison opposed toleration because toleration “belonged to a system where there was an established church, and where it was a thing granted, not of right, but of grace. He feared the power, in the hands of a dominant religion, to construe what ‘may disturb the peace, the happiness, or the safety of society,’ and he ventured to propose a substitute, which was finally adopted” (James, pp. 62-65). He probably moved to change the amendment before the whole house in order to demonstrate his position to the Baptists who were viewing the proceedings. The proposed amendment read:

“That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other” (Ibid., pp. 62-64; Pfeffer, p. 96).

“The adoption of the Bill of Rights marked the beginning of the end of the establishment” (Pfeffer, p. 96).

Where did Madison learn the distinction between religious freedom and religious toleration?

“It had not then begun to be recognized in treatises on religion and morals. He did not learn it from Jeremy Taylor or John Locke, but from his Baptist neighbors, whose wrongs he had witnessed, and who persistently taught that the civil magistrate had nothing to do with matters of religion” (James, p. 63 quoting Dr. John Long).

Madison studied for the ministry at Princeton University, then the College of New Jersey, under John Witherspoon. When he returned to Virginia, he continued his theological interests and developed a strong concern for freedom of worship.

“At the time of Madison’s return from Princeton, several ‘well-meaning men,’ as he described them, were put in prison for their religious views. Baptists were being fined or imprisoned for holding unauthorized meetings. Dissenters were taxed for the support of the State Church. Preachers had to be licensed. Madison saw at first hand the repetition of the main evils of the Old Country. But he also saw a deep dissatisfaction among the people—the kind of dissatisfaction that would grow and that would serve as a mighty battering ram for religious freedom” (Cousins, p. 296).

It appears that the Baptists were the only denomination of Christians that addressed the 1775 and 1776 conventions on the subject of the rights of conscience. Not until the Revolution in Virginia were the Presbyterians free from the agreement with Governor Gooch. When the Assembly met in October 1776, they were “powerful allies of the Baptists and other dissenters in the war against the Establishment” (James, pp. 66-67).


VIII. 1776-1786 the battle for soul liberty was on;1776 compromise bill sounded the death knell of Anglicanism; 1776-1779 assembly daily contests between the “contending factions” with a flood of undeviating and uncompromising Baptist petitions as well as watered down Presbyterian and Methodist petitions; Jefferson introduced his Bill for Religious Liberty; a ‘bill establishing provision for teachers of the Christian religion,’ sponsored by Patrick Henry, opposed by Madison who prepared his famous “Memorial and Remonstrance” (quoted below) in opposition; legislature passed a bill incorporating the Episcopal church in 1785; January 16, 1786, the Virginia Act for Religious Liberty, drafted by Thomas Jefferson, was passed

“From that time down to January 19, 1786, when Jefferson’s ‘Bill for Establishing Religious Freedom,’ became the law of the State, the battle for soul liberty was on” (Ibid., p. 10), and the process of disestablishment gathered momentum. The legislature of 1776 repealed the laws punishing heresy and absence from worship and exempted dissenters from paying taxes for support of the Church. Although this bill was a compromise, it sounded the death knell of the Anglican establishment. A later statute removed the law fixing the salaries of clergymen, and the position of the Established church was limited more and more until the Declaratory Act of 1787 ended establishment in Virginia (Marnell, pp. 94-95; Pfeffer, p. 96).

“From 1776 to 1779 the assembly was engaged almost daily in the desperate contests between the contending factions” (Pfeffer, p. 97). Whereas only one Baptist petition had been presented to the first Convention in 1776, and that after the adoption of the Bill of Rights, the Legislature which assembled on October 7, 1776 was immediately flooded with petitions both for and against establishment. “None of the petitions against establishment were from Baptists as such. However, historians of the times admit that Baptists ‘were not only the first to begin the work, but also the most active in circulating petitions for signatures.’” “Among the signers were some of all denominations of Christians, and many of no denomination. This explains why the Baptist petition or petitions were from dissenters in general, instead of from Baptist dissenters in particular” (James, p. 74. See pp. 68-74 for the petitions against establishment.). The Reverend E. G. Robinson, in his review of Rives’ Life and Times of James Madison, Christian Review of January, 1860, said, “The [Presbyterians] argued their petitions on various grounds, and indeed sought for different degrees of religious freedom, while the [Baptists] were undeviating and uncompromising in their demands for a total exemption from every kind of legal restraint or interference in matters of religion” (Ibid., p. 82).The Methodists and the established church presented petitions for establishment (Ibid., pp. 75-78. The petitions of the Methodists and the established church are quoted and the author comments on the petition of the established church.).

The established church did not give up. Thomas Jefferson gave an account of the struggle through which the Legislature, meeting in late 1776, had just passed:

“The first republican Legislature, which met in 1776, was crowded with petitions to abolish this spiritual tyranny. These brought on the severest contest in which I have ever been engaged…. The petitions were referred to a Committee of the Whole House on the State of the Country; and, after desperate contests in the committee almost daily from the 11th of October to the 5th of December, we prevailed so far only as to repeal the laws which rendered criminal the maintenance of any religious opinions (other than those of the Episcopalians), the forbearance of repairing to the (Episcopal) church, or the exercise of any (other than the Episcopal) mode of worship; and to suspend only until the next session levies on the members of that church for the salaries of its own incumbents. For, although the majority of our citizens were dissenters, as has been observed, a majority of the legislature were churchmen. Among these, however, were some reasonable and liberal men, who enabled
us on some points to obtain feeble majorities. But our opponents carried, in the general resolutions of November the 19th, a declaration that religious assemblies ought to be regulated, and that provision ought to be made for continuing the succession of the clergy and superintending their conduct. And in the bill now passed was inserted an express reservation of the question whether a general assessment should not be established by law on every one to the support of the pastor of his choice; or whether all should be left to voluntary contributions; and on thus question, debated at every session from 1776 to 1779 (some of our dissenting allies, having now secured their particular object, going over to the advocates of a general assessment,) we could only obtain a suspension from session to session until 1779, when the question against a general assessment was finally carried, and the establishment of the Anglican church entirely put down” (Ibid., pp. 80-81; See also, Pfeffer, p. 96).

Legislative meetings from 1776 to December 1779 were presented with memorials both for and against establishment (James, pp. 84-91 quotes those memorials).

When the House met in June 1779, petitions presented to the Assembly showed that the old establishment and its friends were fighting for some sort of compromise on the basis of a general assessment. In 1779, the assembly repealed all laws requiring members of the Episcopal Church to contribute to the support of their own ministry (Pfeffer, p. 97). In December 1779, a bill passed which “cut the purse strings of the Establishment, so that the clergy could no longer look for support to taxation. But they still retained possession of the rich glebes, and enjoyed a monopoly, almost, of marriage fees” (James, p. 95). It took until 1779 to pass a bill taking away tax support for the clergy because the dissenters, with the exception of the Baptists, “having been relieved from a tax which they felt to be both unjust and degrading, had no objection to a general assessment” (Ibid., pp. 96-98).

“Jefferson sought to press the advantage, and introduced his Bill for Establishing Religious Freedom, but Virginia was not quite ready to formalize the separation which had in effect taken place, and the bill was not voted on” (Pfeffer, p. 97). Instead “a bill was introduced which declared that “the Christian Religion shall in all times coming be deemed and held to be the established Religion of this Commonwealth.” This bill required everyone to register with the county clerk stating which church he wished to support (Ibid., citing R. Freeman Butts, The American Tradition in Religion and Education (Boston: Beacon Press, 1950), pp. 53-56).

Although various petitions were presented to the Assembly during the period from 1780 until the end of the Revolution on September 3, 1783, the General Assembly did very little regarding the cause of religious liberty. In 1783 “the project … of incorporating, or establishing as the religion of the State, all the prevailing denominations, and assessing taxes upon the people to support the ministers of all alike, was now warmly advocated by Presbyterians, Episcopalians, and Methodists, and becoming quite popular. To this scheme the Baptists still gave the most determined opposition, and sent up against it the most vigorous remonstrances.” The Baptists also continued to petition for the adoption of the Act to Establish Religious Freedom (James, pp. 112-121 citing Dr. R. B. C. Howell, “Early Baptists of Virginia” for the quotation which is on p. 120).

After the Revolution, numerous petitions and memorials were presented to the House of Delegates in 1784 and 1785 by the above-mentioned denominations in support of their positions (Ibid., pp. 122-133). The Episcopalians sought to recover lost ground. “In the late spring of 1784, a resolution was introduced in the Virginia Assembly seeking official recognition for the Episcopal Church. The resolution was debated for two days, with notable opposition from Baptists and Presbyterians” (Cousins, p. 301). Madison, in a letter to Thomas Jefferson dated July 3, 1784, wrote concerning this resolution:

“The Episcopal clergy introduced a notable project for re-establishing their independence of laity. The foundation of it was that the whole body should be legally incorporated, invested with the present property of the Church, made capable of acquiring indefinitely—empowered to make canons and by-laws not contrary to the laws of the land, and incumbents when once chosen by vestries, to be immovable otherwise than by sentence of the Convocation” (Ibid., p. 302).

The Baptists continued their uncompromising stand against any vestige of union of church and state. They gave their reasons for their position against a general assessment:

  • “First, it was contrary to their principles and avowed sentiments, the making provision for the support of religion by law; that the distinction between civil and ecclesiastical governments ought to be kept up without blending them together; that Christ Jesus hath given laws for the government of his kingdom and direction of his subjects, and gave instruction concerning collections for the various purposes of religion, and therefore needs not legislative interference.
  • “Secondly, should a legislative body undertake to pass laws for the government of the church, for them to say what doctrines shall be believed, in what mode worship shall be performed, and what the sum collected shall be, what a dreadful precedent it would establish; for when such a right is claimed by a legislature, and given up by the people, by the same rule that they decide in one instance they may in every instance. Religion is like the press; if government limits the press, and says this shall be printed and that shall not, in the event it will destroy the freedom of the press; so when legislatures undertake to pass laws about religion, religion loses its form, and Christianity is reduced to a system of worldly policy.
  • “Thirdly, it has been believed by us that that Almighty Power that instituted religion will support his own cause; that in the course of divine Providence events will be overruled, and the influence of grace on the hearts of the Lord’s people will incline them to afford and contribute what is necessary for the support of religion, and therefore there is no need for compulsory measures.
  • “Fourthly, it would give an opportunity to the party that were numerous (and, of course, possessed the ruling power) to use their influence and exercise their art and cunning, and multiply signers to their own favorite party. And last, the most deserving, the faithful preacher, who in a pointed manner reproved sin and bore testimony against every species of vice and dissipation, would in all possibility, have been profited very little by such a law, while men-pleasers, the gay and the fashionable, who can wink at sin and daub his hearers with untempered mortar, saying, ‘Peace, peace,’ when there is no peace, who can lay out his oratory in dealing out smooth things mingled with deception, the wicked, it is clear, would like to have it so; and it follows the irreligious and carnal part of the people would richly reward them for their flattery, and the undeserving go off with the gain” (James, pp. 132-133, citing William Fristoe, “History of the Ketocton Association”).

The Presbyterians took “a sort of middle ground, which caused confusion in their own ranks and compromised them in the estimation of others.” It appears that the Presbyterian clergy advocated a plan of general assessment supporting all denominations who believed in union of church and state, but not those who believed in religious liberty and absolute freedom of conscience. James Madison commented on the position of the Presbyterians:

“The laity of the other sects (other than Episcopalian) are generally unanimous [against the general assessment]. So are all the clergy, except the Presbyterian, who seem as ready to set up an establishment which is to take them in as they were to pull down that which shut them out. I do not know a more shameful contrast than might be found between their memorials on the latter and former occasions. Rives, I., 630” [Quoting a letter to James Monroe, April 12, 1775] (Ibid., p. 130; Cousins, p. 306)

Thus, “[i]n [these] later stages of disestablishment there was a curious alliance formed between the Episcopalian and Presbyterian clergy with an eye to creating a new line of defense” (Marnell, p. 95). “In 1784, the Virginia House of Delegates having under consideration a ‘bill establishing provision for teachers of the Christian religion,’ postponed it until the next session, and directed that the Bill should be published and distributed, and that the people be requested ‘to signify their opinion respecting the adoption of such a bill at the next session of assembly” (Reynolds v. United States, 98 U.S. 145, 163 (1879); see James, p. 129 where the preamble to the bill is quoted.). This last action was a result of a resolution offered by the Baptists and adopted by the Legislature. The Baptists, appearing to be losing ground as the only opponents of a general assessment, the majority of the Legislature being churchmen, the only hope of the opponents of the assessment was an appeal to the people (James, p. 135).

The bill—which was proposed by Patrick Henry and supported by George Washington, Richard Henry Lee, and John Marshall—provided for the establishment a provision for teachers of the Christian religion, in effect providing for the “establishment of Christianity, but without precedence in such an establishment to any particular church” (Marnell, pp. 95, 96). The bill required all persons

“to pay a moderate tax or contribution annually for the support of the Christian religion, or of some Christian church, denomination or communion of Christians, or for some form of Christian worship” (Pfeffer, p. 98, citing N. J. Eckenrode, The Separation of Church and State in Virginia (Richmond, Va.: Virginia State Library, 1910), p. 86. Pfeffer notes in Chapter 4 fn. 102 that the text of the bill is printed as an appendix to Justice Rutledge’s dissent in Everson, 330 U.S. 1.).

Leo Pfeffer noted that:

  • “the bill was predicated on the legislative determination in its preamble that ‘the general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society; which cannot be effected without a competent provision for licensed teachers.’
  • “The preamble is of great significance, because it recognized the widely held belief that religion was not within the competence of civil legislatures. It sought to justify intervention not on any theocratic ground but on what today would be called the ‘police’ or ‘welfare’ power. Government support of religion is required to restrain vice and preserve peace, not to promote God’s kingdom on earth” (Ibid.).

Pfeffer does not understand, nor does the modern Supreme Court, that God has given civil government the choice of whether to honor His principles. The government is to intervene, according to God’s Word, to control and restrain certain crimes. Government does not support religion in order to do its job. Government merely makes a choice of whether to honor God and His principles for the purpose of restraining vice and preserving peace.

James Madison, among others, opposed the bill. Mr. Madison had witnessed and opposed the persecution of the Baptists in his own state.

“Madison wrote to a friend in 1774: ‘That diabolical, hell-conceived principle of persecution rages among some…. This vexes me the worst of anything whatever. There are at this time in the adjacent country not less than five or six well-meaning men in close jail for publishing their religious sentiments, which in the main are very orthodox. I have neither patience to hear, talk, or think of anything relative to this matter; for I have squabbled and scolded, abused and ridiculed, so long about it to little purpose, that I am without common patience. So I must beg you to pity me, and pray for liberty of conscience to all.’ I Writings of James Madison (1900) 18, 21” (Everson, 330 U.S. fn. 9 at 11; 67 S. Ct. at 509).

Mr. Madison prepared his famous “Memorial and Remonstrance,” in which he maintained “that religion, or the duty we owe the Creator,” was not within the cognizance of civil government. The “Memorial” presents fifteen arguments against the assessment bill (Pfeffer, p. 101. Pfeffer, a secularist scholar states that “[i]t is important to note the emphasis the ‘Memorial’ places on ideological factors.” His comments following that quote ignore the references to our “creator,” and the “Governor of the Universe.” A reading of Pfeffer’s writings emphasizes the need for Christians to read and analyze themselves from a biblical perspective the issues of the day and to become involved deeply in those issues.). One historian says of this document, “For elegance of style, strength of reasoning, and purity of principle, it has, perhaps, seldom been equaled, certainly never surpassed, by anything in the English language” (James, p. 135, quoting Semple). “Dr. George B. Taylor says: ‘It may certainly be called a Baptist document this far, that they only, as a people, held its views, and pressed those views without wavering’” (Ibid., p. 135, quoting Dr. George B. Taylor, Memorial Series, No. IV., page 19). Dr. E. G. Robinson wrote of the document:

“In a word, the great idea which he [Madison] put forth was identical with that which had always been devoutly cherished by our Baptist fathers, alike in the old world and the new, and which precisely a century and a half before had been perfectly expressed in the celebrated letter of Roger Williams to the people of his settlement, and by him incorporated into the fundamental law of the colony of Rhode Island. By Mr. Madison it was elaborated with arguments and wrought into the generalizations of statesmanship, but the essential idea is precisely the same with the ‘soul liberty’ so earnestly contended for by the Baptists of every age” (Ibid., p. 135).

One must keep in mind that although the document advocated freedom of conscience, something for which Baptists had long struggled, the tone was that of deistic or humanistic arguments based upon reason and natural law. As pointed out supra,Jefferson and Madison and other deistic separatists “were interested in leaving the mind free to follow its own rational direction.” A trust in man’s reason without consideration of principles in the Word of God is a leaven which eventually totally pollutes. Tragically, the pietistic arguments of Isaac Backus never prevailed in America. America never fully proceeded upon the lessons taught by the Bible, and implemented by Roger Williams, John Clarke, and the other founders of Rhode Island.

Some excerpts from Madison’s “Memorial and Remonstrance” follow:

  • “Because we hold it for a fundamental and unalienable truth, ‘that religion, or the duty which we owe to the Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence,’ the religion, then of every man, must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. The right is, in its nature, an unalienable right. It is unalienable, because the opinions of men depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men. It is unalienable, also, because what is here a right towards man, is a duty towards the Creator…. The duty is precedent both in order and time, and in degree of obligation, to the claims of civil society, he must be considered as a subject of the Governor of the Universe…. We maintain, therefore, that in matters of religion, no man’s rights is abridged by the institution of civil society; and that religion is wholly exempt from its cognizance….
  • “Because if religion be exempt from the authority of society at large, still less can it be subject to that of the legislative body. The latter are but the creatures and viceregents of the former. Their jurisdiction is both derivative and limited…. The preservation of a free government requires, not merely that the metes and bounds which separate each department of power, be invariably maintained; but more especially that neither of them be suffered to overleap the great barrier which defends the rights of the people. The rulers, who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are tyrants. The people who submit to it, are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves.
  • “Because it is proper to take alarm at the first experiment on our liberties, we hold this prudent jealousy to be first duty of citizens, and one of the noblest characteristics of the late revolution…. Who does not see that the same authority, which can establish Christianity in exclusion of all other religions, may establish, with the same ease, any particular sect of Christians, in exclusion of all other sects; that the same authority, which can force a citizen to contribute three pence only of his property, for the support of any one establishment, may force him to conform to any other establishment, in all cases whatsoever?
  • “Because the bill violates that equality which ought to be the basis of every law; and which is more indispensable, in proportion as the validity or expediency of any law is more liable to be impeached…. Whilst we assert for ourselves a freedom to embrace, to profess, and observe the religion which we believe to be of divine origin, we cannot deny an equal freedom to those, whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offense against God, not against man. To God, therefore, and not to man, must account of it be rendered….
  • “Because the bill implies, either that the civil magistrate is a competent judge of religious truths, or that he may employ religion as an engine of civil policy. The first is an arrogant pretension, falsified by the extraordinary opinion of rulers, in all ages, and throughout the world; the second, an unhallowed perversion of the means of salvation.
  • “Because the establishment proposed by the bill, is not requisite for the support of the Christian religion itself; for every page of it disavows a dependence on the power of the world; it is a contradiction to fact, for it is known that this religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them; and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence: nay, it is a contradiction in terms; for a religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy: it is, moreover, to weaken in those, who profess this religion, a pious confidence in its innate excellence, and the patronage of its Author; and to foster in those, who still reject it, a suspicion that its friends are too conscious of its faculties, to trust it to its own merits.
  • “Because experience witnesses that ecclesiastical establishments, instead of maintaining the purity and efficacy of religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the clergy; ignorance and servility in the laity; in both, superstition, bigotry, and persecution. Inquire of the teachers of Christianity for the ages in which it appeared in its greatest luster; those of every sect point to the ages prior to its incorporation with civil policy. Propose a restoration of this primitive state, in which its teachers depended on the voluntary rewards of their flocks, many of them predict its downfall….
  • “Because the establishment in question is not necessary for the support of civil government…. If religion be not within the cognizance of civil government, how can its legal establishment be said to be necessary for civil government? What influences, in fact, have ecclesiastical establishments had on civil society? In some instances, they have been seen to erect a spiritual tyranny on the ruins of the civil authority; in more instances, have they been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the publick liberty, may have found on established clergy convenient auxiliaries. A just government instituted to secure and perpetuate it needs them not. Such a government will be best supported by protecting every citizen in the enjoyment of his religion, with the same equal hand which protects his person and property; by neither invading the equal hand which protects his person and property; by neither invading the equal rights of any sect, nor suffering any sect to invade those of another.
  • “Because the proposed establishment is a departure from that generous policy, which, offering an asylum to the persecuted and oppressed of every nation and religion, promised a luster to our country, and an accession to the number of its citizens…. [The proposed bill] is a signal of persecution. It degrades from the equal rank of citizens, all of those whose opinions in religion do not bend to those of the legislative authority. Distant as it may be, in its present form, from the inquisition, it differs from it only in degree; the one is the first step, the other the last, in the career of intolerance….
  • “Because it will have a tendency to banish our citizens…. Torrents of blood have been spilt in the old world, by vain attempts of the secular arm to extinguish religious discord, by proscribing all differences in religious opinion….
    “Because the policy of the bill is adverse to the light of Christianity. The first wish of those, who ought to enjoy this precious gift, ought to be, that it may be imparted to the whole race of mankind. Compare the number of those, who have as yet received it, with the number still remaining under the dominion of false religions, and how small is the former? Does the policy of the bill tend to lessen the disproportion? No; it at once discourages those who are strangers to the light of truth, from coming into the regions of it; and countenances, by example, the nations who continue in darkness, in shutting out those who might convey it to them….
  • “Because, finally, ‘the equal right of every citizen to the free exercise of his religion according to the dictates of his conscience,’ is held by the same tenure with all our other rights…. Either then we must say, that the will of the Legislature is the only measure of their authority; and that in the plentitude of this authority, they may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred: either we must say, that they may control the freedom of the press; may abolish the trial by jury; may swallow up the executive and judiciary powers of the State; nay, that they have no authority our very right of suffrage, and erect themselves into an independent and hereditary assembly; or we must say that they have no authority to enact into a law, the bill under consideration. We the subscribers say, that the General Assembly of this Commonwealth have no such authority; and that no effort may be omitted on our part, against so dangerous an usurpation, we oppose to it this Remonstrance, earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is addressed, may, on the one hand, turn their councils from every act, which would affront his holy prerogative, or violate the trust committed to them; and on the other guide them into every measure which may be worthy of His blessing, may redound to their own praise, and may establish more firmly the liberties, the property, and the happiness of the Commonwealth” (Beller, America in Crimson Red, pp. 512-515; Cousins, pp. 308-314).

Madison, who led the opposition, was able to obtain a postponement of consideration of the bill from December, 1784 to November, 1785. Before adjourning, the legislature passed a bill which incorporated the Protestant Episcopal Church,

  • “deemed necessary in order to regulate the status of that church in view of the severance of its subordination to the Church of England that had resulted from the Revolution. The bill gave the Episcopal ministers title to the churches, glebes, and other property, and prescribed the method of electing vestrymen.
  • “Even Madison voted for the incorporation bill, though reluctantly and only in order to stave off passage of the assessment bill. Nonetheless, the incorporation bill aroused a good deal of opposition” (Pfeffer, p. 99, citing Eckenrode, p. 100).

The people were against the assessment bill, and the Presbyterians reversed their position, opposed the bill, and for the first time, on August 10, 1785, the whole Presbyterian body supported Jefferson’s “Bill for Establishing Religious Freedom,” “although that bill had been before the Legislature since June, 1779.” The Baptists asked all counties which had not yet prepared a petition to do so and agreed to prepare a remonstrance and petition against the assessment. Thus the Presbyterians and Baptists stood together, but for different motives. Mr. Madison’s opinion was that the Presbyterians were “moved by either a fear of their laity or a jealousy of the Episcopalians. The mutual hatred of these sects has been much inflamed by the late act incorporating the latter…. Writings of Madison, I., 175” (James, pp. 134-139. Madison’s quote was from a letter to Mr. Jefferson).

Patrick Henry, the leading proponent of the assessment bill was elected governor, “depriving the bill of its ablest legislative leader.” The Memorial and Remonstrance had received wide distribution. At the next session the General Assembly was flooded with petitions and memorials from all parts of the State, overwhelmingly against the bill. The bill was defeated by three votes.

On January 16, 1786, the Virginia Act for Religious Liberty, drafted by Thomas Jefferson, was passed instead. That bill provided for religious liberty and freedom of conscience. It stated:

  • “I. Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the Holy Author of our religion, who being Lord of both body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do;that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such, endeavoring to impose them on others hath established and maintained false religions over the greatest part of the world and through all time;
  •   that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, … that our civil rights have no dependence on our religious opinions any more than [on] our opinions in physics or geometry;
  • that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right; …
  • that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with, or differ from his own;
  • that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt [open, or public] acts against peace and good order;
  • and, finally, that truth is great and will prevail if left to herself, that she is proper and sufficient antagonist to error and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors [cease] to be dangerous when it is permitted freely to contradict them.
  • “II. Be it enacted by the General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.
  • “III. And though we well know that this assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with powers equal to her own, and that therefore to declare this act irrevocable would be of no effect in law, yet, as we are free to declare, and do declare, that the rights hereby asserted are of the natural right of mankind, and that if any act shall hereafter be passed to repeal the present or to narrow its operation, such act will be an infringement of natural rights” (Cousins, pp. 125-127; see also, for an edited version, Living American Documents, Selected and edited by Isidore Starr, Lewis Paul Todd, and Merle Curti, (New York, Chicago, Atlanta, Dallas, Burlingame: Harcourt, Brace & World, Inc., 1961), pp. 67-69).

The act included three factors: church, state, and individual. It protected the individual from loss at the hands of the state incursion into his church affiliation, and implicitly banned church establishment. “It did not attempt to define the relations between Church and State except in terms of the individual” (Marnell, pp. 96-97).

Thomas Jefferson, the author of the above bill, never swerved from his devotion to the complete independence of church and state. He wrote:

  • “The care of every man’s soul belongs to himself. But what if he neglect the care of it? Well, what if he neglect the care of his health or estate, which more clearly relate to the state. Will the magistrate make a law that he shall not be poor or sick? Laws provide against injury from others; but not from ourselves. God himself will not save men against their wills” (Pfeffer, p. 94, citing Saul K. Padover, The Complete Jefferson (New York: Duell, Sloan & Pearce, 1943), p. 943. Keep in mind that although Pfeffer’s quotes of Jefferson and others often spoke of God and His sovereignty and freedom of conscience, Pfeffer passes over God as though He had not been mentioned.).
  • “But our rulers can have no authority over such natural rights, only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God….
  • “Is uniformity attainable? Millions of innocent men, women, and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advanced one inch towards uniformity. What has been the effect of coercion? To make one half the world fools, and the other half hypocrites. To support roguery and error all over the earth” (Pfeffer, citing Joseph L. Blau, Cornerstones of Religious Freedom in America (Boston: Beacon Press, 1949), pp. 78-79).

According to biblical principles, the bill was right about some things and wrong about others. It was right about its position on freedom of conscience from interference by civil and ecclesiastical governments, about compelling contributions to opinions to which one is opposed, about forcing any contributions to any pastor whatsoever, and about its assertion “that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.”

However, the act was wrong in four ways. First, it was wrong in not recognizing that the Word of God is the source of all ultimate truth. Second, it was wrong in not recognizing that God desires all nations to be under Him, and that judgment is the ultimate fate of all nations which are not under Him. Third, it was wrong in not recognizing that the only way to determine what acts against peace and good order against one’s fellow man is through God-given conscience and the study of the Word of God as led by the Holy Spirit. Fourth, the act was also wrong when it asserted “that truth is great and will prevail if left to herself, that she is proper and sufficient antagonist to error and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, [for] errors [cease] to be dangerous when it is permitted freely to contradict them.” As mankind has proven over and over, truth never prevails. Ultimately, mankind always reverts to satanic principles instead of truth which is of God. Not recognizing this accelerates the ultimate deterioration and judgment of a nation.


IX. The Baptists continued the struggle to remove all vestiges of the establishment until the glebes were sold and all religious societies were placed on an equal footing

The Baptists continued their struggle to remove all vestiges of the establishment until 1802 when the glebes were sold and all religious societies were placed on equal footing before the law. The glebes were tracts of land and buildings built thereon for the accommodation of the minister and his family, all at the expense of the people within the parish. The Baptists fought to have the act incorporating the Episcopal church repealed. Reuben Ford and John Leland attended the first 1787 assembly meeting as agents in behalf of the Baptist General Committee (James, pp. 142-146). On August 10, 1787, the act incorporating the Episcopal church was repealed, and until 2001—when Jerry Falwell and trustees of the Thomas Road Baptist Church, who were joined by the American Civil Liberties Union, challenged the Virginia Constitutional provision forbidding the incorporation of churches in federal district court—no church in Virginia could be incorporated (See Falwell v. Miller, 203 F. Supp. 2d 624 (W.D. Va. 2002)).

“The Baptists continued to memorialize the Legislature … and in 1799 that body passed an act entitled ‘An Act to Repeal Certain Acts, and to Declare the Construction of the Bill of Rights and the Constitution Concerning Religion,’ which act declared that no religious establishment had legally existed since the Commonwealth took the place of the regal government, repealed all laws giving to the Protestant Episcopal church any special privileges, and declared that ‘the act establishing religious freedom’ contains the true construction of the Bill of Rights and of the Constitution; but no order was given for the sale of the glebes” (James, pp. 142-145).

As the Anglican establishment in Virginia yielded to pressure from Baptists [and to a much lesser extent Presbyterians] so that religious liberty was established in that state, “[t]he same pressure, reinforced by the conditions of frontier living, ended the Anglican establishment in the Carolinas and Georgia…. [T]he conditions which made establishment possible never existed in the states admitted after Vermont, nor in the territories with the exception of unique Utah” (Marnell, p. 130).

By the time the Constitutional Convention convened in 1787, “three states, Rhode Island, New York, and Virginia granted full religious freedom. Pennsylvania, Delaware, and Maryland demanded in different degrees adherence to Christianity. New Jersey, North Carolina, South Carolina, and Georgia demanded Protestantism” (Ibid., p. 98).

To the New Nation


Jerald Finney
Copyright © December 31, 2012


Click here to go to the entire history of religious liberty in America.


Note. This is a modified version of Section IV, Chapter 10 of God Betrayed: Separation of Church and State/The Biblical Principles and the American Application. Audio Teachings on the History of the First Amendment has links to the audio teaching of Jerald Finney on the history of the First Amendment.


To the new nation

Summary of Contents: The Constitutional Convention, submission to states for ratification; James Madison persuaded John Leland that he would stand for religious freedom and Leland withdrew as candidate for state ratification convention in favor of Madison, the Constitution was ratified, Madison was elected as Representative and introduced several amendments, including the First Amendment; the First Amendment was adopted on September 25, 1789 and approved by the required number of sstates in 1791.

Leland-Madison Memorial ParkLeland Madison Memorial Park


A convention was called in Philadelphia in 1787 to revise the Articles of Confederation.

“In a little more than a year after the passage of the Virginia Act for Religious Liberty the convention met which prepared the Constitution of the United States. Of this convention Mr. Jefferson was not a member, he being then absent as minister to France…. Five of the states, while adopting the Constitution, proposed amendments. Three—New Hampshire, New York, and Virginia—included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the proposed amendments were acted upon. Accordingly, at the first session of the first Congress the amendment now under consideration [the First Amendment] was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted” (Reynolds v. United States, 98 U.S. 145, 163 at 164 (1879)).

After the drafting of the Constitution, it was submitted to the states for ratification. The Baptists of Virginia were against ratification because the Constitution did not have sufficient provision for religious liberty. Patrick Henry had declined to serve at the Convention and was against it. He posed as the champion of the Baptists in opposition to the Constitution. Of course, Madison was for ratification. However, John Leland, the most popular preacher in Virginia, was chosen by the Baptists as candidate of Orange County to the state ratification convention opposed to ratification, and his opponent was to be James Madison. Mr. Leland likely would have been elected had he not later withdrawn. Mr. Madison, when he returned from Philadelphia, stopped by Mr. Leland’s house and spent half a day communicating to him about “the great matters which were then agitating the people of the state and the Confederacy” and relieving Baptist apprehensions as to the question of religious liberty. As a result of this meeting, Mr. Leland withdrew in favor of Mr. Madison and the Baptists of Orange County were won over to the side of Madison (Charles F. James, Documentary History of the Struggle for Religious Liberty in Virginia (Harrisonburg, VA.: Sprinkle Publications, 2007; First Published Lynchburg, VA.: J. P. Bell Company, 1900), pp. 150-158; Dr. William P. Grady, What Hath God Wrought: A Biblical Interpretation of American History (Knoxville, Tennessee: Grady Publications, Inc., 1999), pp. 166-167).

The Constitution was ratified and election of the officers of government was the next order of business. Patrick Henry, using his influence in the Legislature, prevented Madison from being elected as Senator. In addition, the Legislature drew the lines for Representative district so as to prevent Madison from being elected as Representative. However, he was able to “relieve Baptist apprehensions as to any change in his principles, and assure them of his readiness to aid in securing a proper amendment to the Constitution on the subject of religious liberty.” He was elected.

His first act, after the First Congress was organized, in 1789, was to propose, on June 8, certain amendments, including what is now the First Amendment. His purpose was to “conciliate and to make all reasonable concessions to the doubting and distrustful”—to those, the Baptists, who were concerned about the issue of religious liberty. “Of all the denominations in Virginia, [the Baptists] were the only ones that had expressed any dissatisfaction with the Constitution on that point, or that had taken any action into looking to an amendment.” The Baptists of Virginia had also corresponded with Baptists of other states to “secure cooperation in the matter of obtaining” a religious liberty amendment. No other denomination asked for this change (James, p. 167). A general committee of Baptist churches from Virginia presented an address to President Washington, dated August 8, 1789, expressing concern that “liberty of conscience was not sufficiently secured,” perhaps because “on account of the usage we received in Virginia, under the regal government, when mobs, bonds, fines and prisons, were [their] frequent repast” (Isaac Backus, A History of New England With Particular Reference to the Denomination of Christians called Baptists, Volume 2 (Eugene, Oregon: Wipf & Stock Publishers, Previously published by Backus Historical Society, 1871), p. 340).  President Washington assured them that he would not have signed the Constitution if he had had the slightest apprehension that it “might endanger the religious rights of any ecclesiastical society” (Ibid.).

Some Baptists and others did not see the need for a religious freedom amendment. Indeed, the First Amendment may not have been necessary to guarantee separation of church and state. Isaac Backus was elected as a delegate to the Massachusetts convention of January, 1788, which considered the issue of ratification of the new Constitution. He spoke at the convention.

“On February 4, [Backus] spoke of ‘the great advantage of having religious tests and hereditary nobility excluded from our government.’ These two items in the Constitution seemed to him a guarantee against any establishment of religion and against the formation of any aristocracy. ‘Some serious minds discover a concern lest, if all religious tests should be excluded, the congress would hereafter establish Popery, or some other tyrannical way of worship. But it is most certain that no such way of worship can be established without any religious test.’ He said ‘Popery,’ but he probably feared, as many Baptists did, that some form of Calvinism of the Presbyterian or Consociational variety was more likely. His interpretation of this article helps to explain why the Baptists [of Massachusetts] made no effort to fight for an amendment on freedom of religion along with the others which the convention sent to Congress” (William G. McLoughlin, Isaac Backus and the American Piestic Tradition (Boston: Little, Brown and Company, 1967), pp. 198-199).

Even Madison, who proposed and fought for the First Amendment, did not believe that it was necessary for the security of religion. He wrote in his Journal on June 12, 1788:

“… Is a bill of rights a security for Religion? … If there were a majority of one sect, a bill of rights would be a poor protection for liberty. Happily for the states, they enjoy the utmost freedom of religion. This freedom arises from that multiplicity of sects, which pervades America, and which is the best and only security for religious liberty in any society. For where there is such a variety of sects, there cannot be a majority of any one to oppress and persecute the rest. Fortunately for this commonwealth, a majority of the people are decidedly against any exclusive establishment—I believe it to be so in the other states…. But the United States abound in such a variety of sects, that it is a strong security against religious persecution, and it is sufficient to authorize a conclusion, that no one sect will ever be able to outnumber or depress the rest” (Norman Cousins, In God We Trust (Kingsport, Tennessee: Kingsport Press, Inc., 1958), pp. 314-315).

Others were against a bill of rights. “James Wilson argued that ‘all is reserved in a general government which is not given,’ and that since the power to legislate on religion or speech or press was not given to the Federal government, the government did not possess it, and there was therefore no need for an express prohibition” (Leo Pfeffer, Church, State, and Freedom (Boston: The Beacon Press, 1953), p. 112). “Alexander Hamilton argued that a bill of rights, not only was unnecessary, but would be dangerous, since it might create the inference that a power to deal with the reserved subject was in fact conferred” (Ibid., citing Federalist Papers, Modern Library ed., 1937, p. 559).

The amendment was adopted on September 25, 1789 and was approved by the required number of states in 1791.