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Amdt1.2.2.1 Introduction to the Historical Background on the Religion Clauses

First Amendment:

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.

As the Supreme Court has recognized, many colonists left Europe and settled in America “to escape the bondage of laws which compelled them to support and attend government-favored churches.” 1 Scholars have described the modern concepts of “religious liberty” and “separation of church and state” as originating with the development of the United States.2 The Framers of the Religion Clauses built upon almost two centuries of historical developments that shaped this American model of religious freedom after the arrival of the earliest colonists. During these formative years—and even after the First Amendment’s ratification—the concept of freedom of religion lacked a fixed meaning.3 The concept evolved significantly over the colonial period in tandem with political and social movements. Accordingly, while the Supreme Court has often suggested that colonial and Revolutionary history is important in determining the meaning of the Religion Clauses,4 jurists and historians have disagreed about which history appropriately informs the clauses, given the complexity and variability of that history.5

The colonists left a European society in which church and state were closely interconnected.6 Historically, political leaders throughout the world believed that a government could not legislate to preserve public morals or maintain civil order unless the state based its rule in a religion that was followed by the populace.7 The features of historic state-sponsored religions, known as religious “establishments,” included a government-recognized state church; laws outlining religious orthodoxy or church governance; compulsory church attendance; state financial support for the church; proscriptions on religious dissent; the limitation of political participation to the state church’s members; and the use of churches for civil functions such as education or marriage.8

Even in colonial times, there were debates about what types of state support for religion created a religious “establishment,” and what level of state support was appropriate. Although some of the colonists may have fled religious persecution in England and other European countries, many New World colonies initially mandated the practice of a specific religion and persecuted those who did not comply.9 Some of the colonies that did not designate a single official religion still limited citizenship to Christians and adopted other hallmarks of an established state religion.10

During the colonial period and Revolution, however, some colonies began to recognize broader conceptions of religious liberty and embrace greater separation between church and state.11 Delegates to the Continental Congress expressed diverse views on the issue in debates leading up to the adoption of the First Amendment’s Religion Clauses.12 Although the Religion Clauses immediately constrained the federal government, some states continued to support religious establishments even after the First Amendment’s ratification.13 Nonetheless, all states had disestablished religion decades before the Supreme Court held that states were legally obligated to comply with the Religion Clauses through the Fourteenth Amendment, reflecting continued debates and shifting attitudes towards religious liberty.14

Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947). back
See, e.g., Robert T. Miller, Religious Conscience in Colonial New England, 50 J. Church & State 661, 661 (2008); Leo Pfeffer, Church State and Freedom 727 (rev. ed. 1967); Sanford Hoadley Cobb, The Rise of Religious Liberty in America vii (Johnson Reprint Corp. 1970) (1902). back
See, e.g., Thomas J. Curry, Church and State in Seventeenth and Eighteenth Century America, 7 J. L. & Religion 261, 271–73 (1989). back
E.g., Reynolds v. United States, 98 U.S. 145, 162 (1878). back
See generally, e.g., Steven K. Green, The Supreme Court’s Ahistorical Religion Clause Historicism, 73 Baylor L. Rev. 505 (2021). back
John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 1 (4th ed. 2016). back
See, e.g., Pfeffer, supra note 2, at 4; Richard Hooker, Of the Laws of Ecclesiastical Polity (1590s), reprinted in The Sacred Rights of Conscience 30–33 (Daniel L. Dreisbach & Mark David Hall eds., 2009); John Locke, A Letter on Toleration (1689), in The Sacred Rights of Conscience, supra, at 50. back
See Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2131 (2003); Chester James Antieau et al., Freedom from Federal Establishment 1–2 (1964). back
See, e.g., Everson, 330 U.S. at 9–10. See Amdt1.2.2.3 State-Established Religion in the Colonies. back
See Amdt1.2.2.3 State-Established Religion in the Colonies; Amdt1.2.2.4 Colonial Concepts of Religious Liberty. back
See Amdt1.2.2.5 Virginia’s Movement Towards Religious Freedom. back
See Amdt1.2.2.5 Virginia’s Movement Towards Religious Freedom; Amdt1.2.2.6 Continental Congresses and Religious Freedom. back
See Amdt1.2.2.8 Early Interpretations of the Religion Clauses. back
See Amdt1.2.2.8 Early Interpretations of the Religion Clauses. The process of disestablishment was gradual in many states, with various elements of the religious establishments being repealed at different times. back