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.
Even after the First Amendment was ratified and the Founders almost universally embraced the general principle of liberty of conscience, significant disagreement remained as to the scope of the prohibition on establishment and the protections of free exercise.1
At the time of the Revolution, the majority of the states retained at least some elements of religious establishments, including requiring church attendance, collecting tithes, and burdening the rights of religious dissenters.2 States did not become subject to the First Amendment when it was adopted in 1791, and accordingly had more leeway to regulate on the subject of religion, but the movement to disestablish official state religions nonetheless continued to gain support as views changed about the appropriate role of church and state.3 In 1791, one prominent minister, arguing against state-established religions, noted that by that time, most states had “no legal force used about religion, in directing its course, or supporting its preachers.” 4 Seven disestablishments of state sanctioned religions occurred after the First Amendment’s adoption, with the last, Massachusetts’s, occurring in 1833.5 This gradual disestablishment was accompanied in many cases by civil regulation of the corporate forms and property rights of the churches,6 eventually leading to questions about whether such regulation was contrary to constitutional guarantees of religious liberty.7
Maryland’s experience serves as one example of this trend. The state’s 1776 constitution extended legal toleration to all Christian sects but required officeholders to declare Christian belief and authorized the state legislature to impose a general “tax for the support of the Christian religion.” 8 Maryland had thus abandoned its Church of England establishment but continued to generally support Christianity and adopted laws regulating the Anglican church.9 However, a 1784 bill that would have levied a tax for the support of ministers was defeated.10 The bill’s opponents argued that it would have preferred certain sects, impermissibly set up the legislature as the judge of acceptable worship, and set up a confrontation with sects such as Quakers that would refuse to pay.11 In 1810, Maryland amended its constitution by providing that it would no longer be lawful to tax citizens to support religion.12 However, the state’s constitution continued to require officeholders to declare a general belief in existence of God until 1961, when the provision was ruled unconstitutional by the Supreme Court.13
These diverse and shifting views over religion were also reflected at the federal level. For example, early Congresses employed chaplains and supported proclamations for national days of thanksgiving.14 By the 1800s, however, James Madison and Thomas Jefferson had seemingly changed their mind on the propriety of government prayer.15 Toward the end of his presidency, Jefferson explained that he would not recommend a day of prayer because even voluntary language suggested an authority over religion that, in his view, the government did not possess.16 James Madison eventually concluded that establishing a congressional chaplain was a “palpable violation” of the Constitution.17 Further, although as President, he had issued proclamations for national days of prayer and thanksgiving, Madison believed these religious proclamations were similarly problematic.18 Madison stated that he had issued the proclamations only at Congress’s request, and had used language intended “to deaden as much as possible any claim of political right to enjoin religious observances” by referring to “the voluntary compliance of individuals.” 19
Another example of the debate over the separation of church and state involved an 1811 bill that would have incorporated the Protestant Episcopal Church in the District of Columbia.20 Then-President Madison vetoed the bill, stating that it violated the Establishment Clause by enacting rules for the church’s “organization and polity,” giving a “legal force and sanction” to certain articles of church administration and actions.21 The House of Representatives failed to override the veto.22 In the debate preceding that vote, some proponents of the bill argued that it did not violate the Establishment Clause because it did not establish a National Church such as the Church of England.23 Another Member argued that if the debated bill infringed the Constitution, then Congress had similarly violated the Constitution by appointing and paying chaplains.24
Other debates during this period focused on whether the United States could be considered a Christian nation.25 In the 1797 Treaty of Tripoli, the government assured the Muslim state of Tripoli that because “the United States of America is not in any sense founded on the Christian Religion, . . . no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.” 26 Beginning in the nineteenth century, Congress failed to adopt a variety of proposals that would have amended the Constitution to describe the United States as a Christian nation, or the federal government as a Christian one.27
- See, e.g., John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 41 (4th ed. 2016).
- Id. at 57–58.
- See id.
- John Leland, The Rights of Conscience Inalienable (1791), reprinted in The Sacred Rights of Conscience 338 (Daniel L. Dreisbach & Mark David Hall eds., 2009).
- Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, 2011 Utah L. Rev. 489, 492–93.
- See, e.g., Sarah Barringer Gordon, The First Disestablishment: Limits on Church Power and Property Before the Civil War, 162 U. Pa. L. Rev. 307, 311–12 (2014).
- See, e.g., Amdt18.104.22.168 Doctrinal Basis.
- Kenneth Lasson, Free Exercise in the Free State: Maryland’s Role in the Development of First Amendment Jurisprudence, 31 J. Church & St. 419, 440–41 (1989).
- Thomas J. Curry, Church and State in Seventeenth and Eighteenth Century America, 7 J. L. & Religion 261, 153–55 (1989).
- Id. at 155–56.
- 380 Archives of Maryland, Amendments to the Maryland Constitutions 19, ch. CLXVII (1810), https://msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/000001/000380/html/am380-19.html.
- Torcaso v. Watkins, 367 U.S. 488, 489 (1961).
- See, e.g., Marsh v. Chambers, 463 U.S. 783, 787–88 & n.9 (1983); Witte & Nichols, supra note 1, at 89.
- Thomas J. Curry, The First Freedoms 218–19 (1986).
- Letter from Thomas Jefferson to Samuel Miller (Jan. 23, 1808), https://founders.archives.gov/documents/Jefferson/99-01-02-7257.
- James Madison, Detached Memoranda [1817–1832], reprinted in Jefferson & Madison on Separation of Church and State 264 (Lenni Brenner ed., 2004).
- Id. at 265.
- Id. at 266.
- James Madison, Veto Message to the House of Representatives of the United States (Feb. 21, 1811), in Jefferson & Madison on Separation of Church and State, supra note 17, at 198.
- Id. at 198–99.
- 22 Annals of Cong. 998 (1811).
- Id. at 984.
- Cf. Church of the Holy Trinity v. United States, 143 U.S. 457, 471 (1892) (noting a variety of “unofficial declarations” and “organic utterances” in legal documents suggesting “that this is a Christian nation” ). In Vidal v. Girard’s Executors, the Supreme Court described America as “a Christian country” but also relied on the country’s “variety of religious sects” and state guarantees of religious freedom in its opinion interpreting a will. 43 U.S. (2 How.) 127, 198–99 (1844).
- Treaty of Peace and Friendship between the United States of America and the Bey and Subjects of Tripoli, of Barbary (1797), reprinted in The Sacred Rights of Conscience, supra note 4, at 476.
- See Richard Albert, Constitutional Amendment and Dismemberment, 43 Yale J. Int’l L. 1, 40 (2018).