Church and State
From Religious Tolerance to Religious Equality
- During American Revolution, broad ideas of liberty spread to religion
- Many Americans began to oppose established religion entirely
- Still, most Americans believed that religion was of central importance to well-ordered society
- At the time the First Amendment was ratified, there was no consensus understanding of "religious freedom" in America
- Idea of "wall of separation" between church and state developed after passage of First Amendment
- First Amendment restrictions on religion originally applied only to federal government, not to the states
During the American Revolution, a new idea grew among the dissenting sects: their acceptance of religious toleration gave way to a demand for religious equality. In particular, they objected to the taxes they were forced to pay to support the established church in their colonies. This now seemed a violation of the liberty of conscience that, in the past, they had defined more narrowly. Liberty—rather, "full" liberty—now meant the freedom not only to worship unmolested, but also the right to be excused from paying taxes that supported a church with which they did not agree.
In the years immediately following the Revolution, policymakers in several states tried to work out a new formula that would maintain religious peace. Believing that social order depended on government support for religion, but also that social peace depended on maintaining a policy of toleration and conciliation toward dissenting sects, lawmakers introduced a new concept: general assessments. These were taxes collected by the state to be distributed to different churches identified by individual taxpayers. Virginia introduced the idea in 1776, but never turned it into actual law. Georgia, however, did pass a general assessment law in 1785, and several other states played with the idea during these years, as well.
But this new approach to religious taxation was not received well. Dissenting sects objected to these as the opening wedge in an attempt to create or strengthen an official church. The Revolutionary philosophy that had encouraged Americans to be suspicious of government actions and vigilant on behalf of their freedoms, created an unreceptive environment for this piece of experimentation.
As the Constitutional Convention convened, therefore, the meaning of religious freedom was in flux. An older belief in toleration was being challenged by a new belief in religious equality; an older acceptance among dissenters of various restrictions, so long as they could attend the churches of their choice, was giving way to a growing unwillingness to accept the inconveniences—and taxes—that they encountered as dissenters from the established church. But a certain part of the old consensus remained. Virtually everyone agreed that religion was good for society—that it inspired good citizenship and good behavior. And consequently, virtually everyone agreed that government had some responsibility to support religion. Even the dissenting sects that opposed religious taxes believed that Sabbath laws should be enforced and that religion should be taught in school; they accepted without question the role of government to enforce laws aimed at ensuring moral behavior and they grew positively apoplectic at the suggestion that non-Protestants should be allowed to hold office. Some of the denominations most fearful of an official church being established, in fact, were just as upset by the Constitution's explicit rejection of test oaths. Baptists, in particular, warned that without requiring office holders to swear to a set of Christian basics, America’s government would be inundated by "pagans, deists, and Mahometans."12
So, philosophically speaking, what did religious freedom mean in 1791? Different things to different people. To some, it meant that states could establish an official church and collect taxes for its support, so long as they allowed dissenters to attend their own churches. To others, it meant that all churches should enjoy the same quasi-established status, and they should all receive public support through the collection of a general assessment. Still others believed that religious freedom meant that religious taxes should be eliminated completely because they opened the door to the creation of a state church.
Perhaps it is easier to identify what the religious freedom did not mean. It did not mean that government had absolutely no role to play in supporting religion, nor did it mean that there should be an impermeable wall of separation between church and state. In fact, that phrase does not appear in the Constitution, nor does it show up in the discussions of the period. Thomas Jefferson used it first in 1802, and in using it, he carefully limited his remarks to the relationship between churches and the federal government. While celebrating the fact that "the whole American people" had declared that "their legislature" should maintain "a wall of separation between church and state," he deferred to the general consensus that the states retained the authority to sort out their own rules on religion.
If we return to the question of the precise meaning of the First Amendment, Jefferson’s careful reminder that it applied only to the federal government is where we must begin. What Jefferson acknowledged in 1802 was what Madison and company also emphasized in 1789: the restrictions placed upon government by the Bill of Rights were restrictions against the federal government. The language of the amendment was carefully crafted in order to reassure states with established churches that they would remain free to collect taxes, impose test oaths, and bar sectarians from public office—which many of them did for the next several decades.
But even this qualification does not get to the heart of the matter, because Jefferson's language does not really reflect the shifting, but still traditional, understandings that dominated the Constitutional Convention and congressional debates over the Bill of Rights. Jefferson cannot be faulted for misrepresenting the more complex ideas of those who drafted the First Amendment—he was in France at the time and did not participate in those debates. But the clarity he found a decade later, and the structural rigidity of his metaphor, poorly represents the more fluid, nuanced, and shifting beliefs of those who did participate. Most of those men would have rejected so rigid a formulation, and they would not have agreed that they were simply passing the matter on to the states. Most still believed that the federal government retained some sort of responsibility in religious affairs. While they agreed that there would be no established or official national church, most still felt that the government could and should provide some sort of vaguely defined "friendly aids." They had guaranteed that people could freely exercise the religion of their choice, but this did not mean that the government could not set limits on religious behavior, nor that individual religious freedom was synonymous with governmental religious indifference.
Much has changed since Madison proposed his amendments in 1789. In 1940, the United States Supreme Court decided that like most of the other amendments of the Bill of Rights, the First Amendment's clauses on religion applied to the state governments as well as the federal government. Subsequently, the Supreme Court built a web of judicial precedent to flesh out the meaning of the First Amendment left so vague by the founders. Some believe that the Court has done a decent job; others claim that it has deferred more to Jefferson than the intent of the amendments actual founders. If the latter is true, it would be hard to blame them. In contrast to Jefferson’s clarity, Madison, the ratifying conventions, and the general beliefs of the time provide a confusing and divergent roadmap. And perhaps that is exactly what the founders really intended.