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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Continental Congresses of 1784–1789 addressed a number of issues relating to religion.1 In some instances, the Congresses’ work reflected the ongoing debates and shifting norms relating to church and state.
One of the grievances that the First Continental Congress identified in its 1774 “Declaration and Resolves” addressed to Great Britain was the Quebec Act.2 The congressional resolution described this Act as “establishing the Roman Catholic religion” in Quebec, a province which was expanded to include parts of the modern Midwest.3 On its face, the Quebec Act did not establish a religion in the sense of requiring adherence or compelling support.4 Instead, it stated that Roman Catholic citizens in the province “may have, hold, and enjoy, the free Exercise of the Religion of the Church of Rome, subject to the King’s Supremacy.” 5 The colonists saw this parliamentary sanction for the Catholic Church in the expanded territory, albeit limited, as a threat.6 Nevertheless, only about two weeks after adopting the Declaration and Resolves, the Continental Congress wrote a letter “to the Inhabitants of the Province of Quebec,” arguing that Great Britain had violated their rights by altering the province’s government and making religious liberty for Catholics a matter of the King’s grace.7 The letter stated that the Quebec Act’s guarantee of “liberty of conscience in . . . religion” was a poor substitute for the God-given rights the province had been denied, for the English version of the right was a “precarious” one subject to “arbitrary alterations.” 8 These somewhat contradictory stances likely reflected political considerations.
Members of the First Continental Congress also faced appeals for freedom of conscience from within their own territory. Notably, a group of Massachusetts Baptists complained of persecution to delegates of the Continental Congress in 1774.9 John Adams, in his diary, wrote that he was “indignant . . . at seeing [his] State and her Delegates thus summoned before a self created Trybunal.” 10 According to Adams’s account, one Pennsylvanian asserted that New England’s stance on “Liberty of Conscience” was standing in the way of forming “a Union of the Colonies.” 11 The dissenters’ primary grievances seemed to be taxes for the support of the established churches.12 The Baptists objected to the tax on grounds of conscience.13 In response, John and Samuel Adams apparently argued that Massachusetts had “the most mild and equitable Establishment of Religion” 14 -but in resisting any commitment to further change, John Adams reportedly said that the objectors “might as well expect a change in the solar system, as to expect [Massachusetts] would give up their establishment.” 15
In other matters, the Continental Congress recognized and seemed to support religion. As the Supreme Court has noted, “the Continental Congress, beginning in 1774, adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain.” 16 According to a contemporaneous account from John Adams, there was some opposition to the first motion to open a session with prayer given the religious diversity of the representatives, until Samuel Adams “said he was no Bigot, and could hear a Prayer” from someone of another faith.17 The Continental Congress also, for example, occasionally declared days of fasting and thanksgiving,18 and voted to import Bibles for distribution,19 although it never appropriated the funds for this latter activity.20
In contrast, the Second Continental Congress recognized and attempted to accommodate pacifists during the Revolutionary War, stating that Congress intended “no violence to their consciences” and asking pacifists to contribute by doing only what they could “consistently with their religious principles.” 21 The Northwest Ordinance, adopted by the Confederation Congress in 1787, provided that no person in the territory could “be molested on account of his mode of worship or religious sentiments” so long as he was acting “in a peaceable and orderly manner.” 22 Furthermore, in 1785, the Confederation Congress rejected a proposal that would have set aside lots in the western territory for the support of religion,23 with James Madison saying the provision “smell[ed] . . . of an antiquated Bigotry.” 24
Overall, the roots of both the Establishment Clause and the Free Exercise Clause and the tension between them are evident in the period immediately prior to ratification of the Constitution. While there was some movement towards greater religious liberty and separation of church and state, continued support for religious activity was seen as a basic part of the fabric of society.25 Even in protecting modes of worship in the territories, the Northwest Ordinance provided that “religion, morality, and knowledge” were “necessary to good government” and should “be encouraged.” 26
- See, e.g., John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 65–69 (4th ed. 2016).
- Declaration and Resolves of the First Continental Congress, Avalon Project, Yale L. Sch. (Oct. 14, 1774), https://avalon.law.yale.edu/18th_century/resolves.asp (last visited June 1, 2022).
- See Great Britain: Parliament—The Quebec Act: October 7, 1774, Avalon Project, Yale L. Sch., https://avalon.law.yale.edu/18th_century/quebec_act_1774.asp (last visited June 1, 2022).
- Id. Among other provisions, the Act also required any “Ordinance touching Religion” to “receive his Majesty’s Approbation” before going into effect. Id.
- Frank Lambert, The Founding Fathers and the Place of Religion in America 209, 213 (2003).
- Continental Congress to the Inhabitants of the Province of Quebec (Oct. 26, 1744), reprinted in 5 The Founder’s Constitution 61 (Philip B. Kurland & Ralph Lerner eds., 1987).
- Id. at 63 (internal quotation marks and emphasis omitted).
- See Isaac Backus, A History of New England 1774–75, reprinted in The Founder’s Constitution, supra note 7, at 65.
- Diary of John Adams, In Congress, September-October 1774, https://founders.archives.gov/documents/Adams/01-03-02-0016-0022.
- Thomas J. Curry, The First Freedoms 131 (1986).
- Backus, supra note 9, at 65.
- Diary of John Adams, In Congress, September-October 1774, https://founders.archives.gov/documents/Adams/01-03-02-0016-0022; cf. Backus, supra note 9, at 65 (saying both John and Samuel Adams described the Massachusetts establishment as “a very slender one, hardly to be called an establishment” ).
- Backus, supra note 9, at 65.
- Marsh v. Chambers, 463 U.S. 783, 787 (1983).
- Letter from John Adams to Abigail Adams (Sept. 16, 1774), https://founders.archives.gov/documents/Adams/04-01-02-0101.
- See, e.g., Religion and the Founding of the American Republic, Libr. of Cong., https://www.loc.gov/exhibits/religion/rel04.html#obj107 (last visited June 21, 2022).
- 8 Journals of the Continental Congress 734–35 (Worthington Chauncy Ford ed., 1907).
- Witte & Nichols, supra note 1, at 68.
- 8 Journals of the Continental Congress 189 (Worthington Chauncy Ford ed., 1905).
- Northwest Ordinance § 14, art. 1, (July 13, 1787), https://www.archives.gov/milestone-documents/northwest-ordinance (last reviewed May 10, 2022).
- 28 Journals of the Continental Congress 293–94 (John C. Fitzpatrick ed., 1933).
- Letter from James Madison to John Monroe (May 29, 1785), https://founders.archives.gov/documents/Madison/01-08-02-0156.
- Curry, supra note 12, at 218.
- Northwest Ordinance (1787), supra note 22, § 14, art. 3.