Establishments of religion
or The ecumenical Constitution
It is certainly true that many of the first English-speaking colonists to arrive in the New World came fleeing religious persecution at the hands of the established Anglican Church of England. Nevertheless these religious refugees were not known as the “Puritans” because of their ecumenicalism. They did not so much seek to found a new enlightened society of religious pluralism as to rigorously impose their own dogma free from interfering Anglicans, as Alan Taylor writes:
The Puritans felt a compelling duty to employ government to punish sinners, lest the colonists provoke God by tolerating sin in their midst. Drawing upon the Old Testament as well as the English common law, the Puritan colonies criminalized immorality, including breaking the Sabbath, worshipping idols, blaspheming the name of God, and practicing magic. … the Puritans emigrated to New England to realize their own ideal of a uniform society - and certainly not to champion religious toleration and pluralism.
Meanwhile, back in England, Parliament had emerged victorious from the English Civil War and was eager to bolster the Anglican Establishment. Under pressure from imperial authorities, Virginia, the Carolinas, and Maryland established Anglicanism as their official religions. Even those colonies that did not establish a specific church adopted laws that we would consider religious in nature today, such as limiting citizenship to Christians.
Pennsylvania and Rhode Island were outliers, where the free exercise of religion by religious minorities enjoyed some official protection. The founder of Rhode Island, Roger Williams, had been expelled from Massachusetts colony for his heterodox religious views and founded his new colony on land granted to him by the Narragansett tribe with the explicit stipulation that “God requireth not an uniformity of Religion to be inacted and enforced in any civill state."1
In any event, the huge and remote geography of the colonial hinterland, the diversity of religious sects, and the centrifugal forces of doctrinal disputation meant that colonial regimes of religious orthodoxy were in practice honored in the breach as often as not. On balance, colonial governments tolerated a greater diversity of religious practice and maintained a stricter separation of civil authorities from religious institutions than was known in the mother country. The “pattern of establishments in religion,” writes Bernard Bailyn, “like that of so many other areas of life in the colonies, was the result of unsystematic, incomplete, pragmatic modifications of a traditional model.”
In 1776, the thirteen colonies decided to ditch the British Empire and hang together as the United States of America. But how could thirteen different republics, with such divergent approaches to established religion, possibly get along in a single political Union? This conundrum directs us to the likely original purpose of the Establishment Clause
The original Establishment Clause
At the time the Constitution was ratified, at least six states had established religions. More importantly, they did not all establish the same religion. Indeed, some states allowed local political subdivisions within those states to establish their own official community churches. At the other end of the spectrum, some states had disestablished religion altogether by the 1790s.
If the federal government were able to designate a national religion, it could wipe out local establishments or at least prejudice those states not adhering to the federal church. A bare majority of co-religionist states could inflict their beliefs through federal legislation on the minority that adhered to different creeds or that had disestablished religion. As Professor Esbeck argues:
If the Constitution had granted to the federal government power over religion in any plenary sense, that could easily have prevented agreement in Philadelphia, and it certainly would have stirred enough trouble to prevent ratification of the Constitution by the designated minimum of nine states.
Other than prohibiting religious tests for federal officers, the original Constitution did not address religion one way or another. From the point of view of the Federalist proponents of ratification of the Constitution, that sufficed to address the question. Congress would be a legislature of only enumerated powers and no power to establish a church was enumerated. Problem dodged.
As I have written, the Anti-Federalist opponents of the Constitution were not impressed with this explanation. Some clever Congresscritters could surely gin up a reason why adopting an official federal religion would be “necessary and proper” to carry out an enumerated power of Congress. In the end, the requisite number of states only signed onto the Constitution with the explicit assurances of the Federalists that a bill of rights clarifying the limits of congressional power would be the first order of business once the document was ratified.
True to their word, the Federalist-dominated First Congress set to work immediately on the amendments that we call the Bill of Rights today. I have pointed out previously, our modern understanding of the bill of rights as a charter of fundamental liberties is quite different from what Congress understood itself to be doing in 1789 by proposing the first constitutional amendments. Esbeck explains:
[F]rom the very start, the defined task was made politically feasible because the effort was not to agree on a comprehensive list of unalienable human rights. Rather, the undertaking was the more modest task of agreeing on what powers were not vested (Federalists would have said, “were never vested”) in the national government by the 1787 Constitution.
Like the First Amendment’s Free Speech Clause, there was very little debate or discussion in Congress or the ratifying states regarding the intended scope or meaning of the Establishment Clause. But the clause’s text, when considered in light of the historical circumstances, provides some important clues. First, the amendment begins by explicitly singling out Congress. There is no textual argument that the prohibition on establishments of religion applies to states.
Next, I have noted how the First Amendment deploys three different verbs when describing its principle limitations on congressional power:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press[.]
Fundamental principles of constitutional interpretation require us to give meaning to the drafters’ choice of distinct words in this provision. With regard to “respecting,” it is generally accepted that the First Amendment prohibits not just federal laws recognizing an official religion but any law relating to or concerning establishments of religion whatsoever. The import of this insight, it would seem, is that the clause also prohibited the federal government from disestablishing the established religions that existed in the several states at that time, since disestablishmentation would obviously “respect,” in the sense of “relate to,” establishments of religion.
Finally, we should ask what exactly did the phrase “an establishment of religion” mean to the founding generation. Of course, it would have immediately invoked for them the Church of England. But the established Anglican Church involved more than merely an official stamp of governmental approval, it implicated a whole network of interconnected laws, practices, and institutions between state and church.
Official records of births, marriages, and funerals were issued and housed by the established church. Taxes were collected and spent directly by the church. Religious orthodoxy meanwhile was vetted and approved by governmental authorities. Allegiance to the officially sanctioned creed was a prerequisite for voting in elections or serving in government. And so on. This all pervasive governmental-religious complex was the “establishment” of religion of which the Founders were so wary.2
The federalist First Amendment
In Everson v. Board of Education, the Supreme Court incorporated the Establishment Clause against the states without much analysis or guidance about how or why this provision would apply to states. As a result, opponents of incorporation have challenged whether the clause should apply to states in the same way that it applies to the federal government, or indeed whether incorporation of this part of the Bill of Rights makes any sense at all.
The Establishment Clause, the argument goes, is a uniquely structural, states’ rights provision not intended to protect individuals directly, unlike most other provisions of the Bill of Rights.3 As a result, it’s logically incoherent to apply a provision originally intended to protect the rights of states to establish religion against the states themselves.
Given the paucity of contemporaneous discussion of the Establishment Clause, Esbeck calls the evidence that the First Congress intended this clause to be a federalism provision “thin.” Nevertheless, as we have seen, the “mere fact that the plain text uses the word ‘respecting’ means that the Establishment Clause as passed—whether intended or not—has a federalism feature.”
But the clause’s focus on “establishments” of religion implies that federalism was more than just a feature, it was the central point. The First Congress could have targeted federal laws respecting religion generally. But it didn’t. It focused on laws respecting establishments of religion specifically. The Establishment Clause does not prohibit all federal laws about religion, then, it prohibits federal laws that interfere with state religious establishments or that establish a federal church, because a federal church would also interfere with state establishments.
And for those who advocate strict adherence to the Constitution’s original meaning, the perversity is maddening. A provision written to prevent federal interference in state religion is now wielded by federal authorities to disestablished them.
But was unalloyed love of the prerogatives of the several states in matters of religion really the whole story of the Establishment Clause? After all, at least some people of that era thought that “God requireth not a uniformity of Religion to be inacted and enforced in any civill state."
When I looked at Establishment’s sister clause, Free Speech, I found that what initially appeared to be a carte blanche license for states to prosecute seditious libel actually contained the seeds of the eventual incorporation against the states of robust protection for subversive advocacy that we know today. Perhaps we will find the same is true with regard to the Establishment Clause, for as it turns out, the contested metaphor of a “wall of separation” between church and state comes from none other than Thomas Jefferson himself.
But even Rhode Island prohibited Catholics from voting or holding public office from 1719 to 1783 and Jews until 1798.
I don’t mean to argue here that only a full blown Church of the United States would violate the Establishment Clause. Any federal law favoring a particular sect or denomination would fall afoul of the Constitution. I merely mean to evoke the paradigmatic evil against which the Establishment Clause was aimed.
Individuals are not left high and dry though. Nestled right next to the Establishment Clause is the Free Exercise Clause, protecting the rights of individuals to follow their own consciences in matters of faith.