Amdt1.2.2.3 State-Established Religion in the Colonies

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.

At least initially, the colonies largely continued the historical practice of having state-established religion in America; although not every colony had one officially designated state religion, every colonial government had some elements of a religious “establishment,” as defined in an earlier essay.1 Nonetheless, even the colonies that did designate and support an official religion viewed their own governments as quite different from the English system.2

The first English colony, Virginia, illustrates the evolving approach to government and religion. Virginia established the Church of England as the colony’s official church.3 Early governors adopted martial laws requiring daily worship and prohibiting blasphemy, among other provisions prescribing religious order.4 The government supported and required conformity to the established church, and church vestries exercised semi-civil political functions.5 As England reetrenched the established church after the English Civil War, Virginia followed the crown’s instructions by supporting the church.6 Among other provisions, Virginia laws adopted in 1661 and 1662 required colonists to erect churches and support ministers at public expense, prescribed proper forms of worship, and punished those who publicly worshipped outside the established church.7 However, in contrast to England, the civil government rather than church authorities assumed jurisdiction over marriages, wills, and the appointment of ministers8 -although such functions were, by law, carried out in accordance with the Church of England’s doctrines.9 The Church of England was also established in the Carolinas, but those colonies tolerated a greater diversity of religious views than Virginia.10

The New England colonies of Plymouth, Massachusetts, Connecticut, and New Haven were established by Puritans who similarly provided for colonial government sponsorship of that religion. These colonies sought to establish a unified community operating according to a “pure” religious doctrine11 that followed “the first Plantation of the Primitive Church” rather than the established Church of England.12 In Massachusetts Bay, Puritans mandated the construction and financial support of Congregational churches.13 A public confession of faith was necessary to become a citizen of the colony.14 Dissenters in these colonies were punished harshly with imprisonment or expulsion, and Massachusetts executed four Quakers between 1658–1661.15 Nonetheless, Puritan churches were independent associations that lacked a central church authority in the manner of the Church of England.16

Although New England Puritans operated their colonies according to religious doctrine, they distinguished civil from religious authority, and clergy could exercise authority only over religious affairs.17 Notably, the Puritans did not create ecclesiastical courts,18 which they had protested in England.19 The Puritans’ conception of separate spheres of authority, however, did not preclude the civil government from prosecuting idolatry or blasphemy.20 In the Puritans’ view, liberty of conscience did not encompass the liberty to practice religious error.21 Accordingly, punishing those who deviated from religious doctrine did not violate liberty of conscience, and the government could punish public deviations or errors without improperly invading the church’s authority.22

There is some debate over whether there was an established church in the colony of New York, in the sense of an officially designated state church.23 New York, like the Carolinas, demonstrated the conflict between the unpopular established Church of England and other, more popular religious causes.24 The colony guaranteed free religious exercise to all Christians but required parishes to select ministers and collect taxes to establish and support churches at the local level.25 Following the Toleration Act’s adoption in England, New York excluded Catholics from guarantees of the liberty of conscience and adopted the Ministry Act of 1693, which required “the settling of a ministry.” 26 There was debate over whether this act referred only to Anglican ministers, or whether the language was broad enough to allow towns to select other Protestant ministers.27

Maryland somewhat similarly faced pressure from the Church of England after initially tolerating more religious diversity.28 Early colonial leaders were Catholic and seemed to hope that Catholics and Protestants could live together peacefully in Maryland.29 Lord Baltimore largely ignored his authority from England to build and dedicate Anglican churches, along with requests from Catholics for special government recognition.30 In 1649, Maryland adopted the Act Concerning Religion, which guaranteed that no person “professing to believe in Jesus Christ” could be troubled in the free exercise of religion-but also decreed strict penalties for blasphemy by non-Trinitarians.31 However, following political and religious upheaval in the colony, in the late 1600s and early 1700s, the Maryland government adopted laws depriving Catholics of their previously held civil rights and, ultimately, establishing the Church of England.32

Footnotes
1
Amdt1.2.2.1 Introduction to the Historical Background of the Religion Clauses. back
2
Thomas J. Curry, The First Freedoms 133, 209–13 (1986). back
3
Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2116 (2003) (discussing the first and second Virginia charters); see also Curry, supra note 2, at 29 (discussing early religious legislation, including regulations of the Virginia Company). back
4
Articles, Laws, and Orders, Virginia (1610–11), reprinted in The Sacred Rights of Conscience 84–86 (Daniel L. Dreisbach & Mark David Hall eds., 2009). Later forms of government in the colony continued to intertwine religious and civil authority. See Frank Lambert, The Founding Fathers and the Place of Religion in America 54–56 (2003). back
5
See Sanford Hoadley Cobb, The Rise of Religious Liberty in America 80–81, 87 (Johnson Reprint Corp. 1970) (1902). back
6
Id. at 91–92. back
7
McConnell, supra note 3, at 2118–19. back
8
Curry, supra note 2, at 30. back
9
McConnell, supra note 3, at 2118–19. back
10
See Cobb, supra note 5, at 116–19; Curry, supra note 2, at 56–62. back
11
Curry, supra note 2, at 3–5. Cf. McConnell, supra note 3, at 2121–22 (distinguishing the Pilgrim settlers of Plymouth from other New England Puritans). back
12
John Cotton, Sermon, Gods Promise to His Plantation (1630), https://digitalcommons.unl.edu/etas/22. back
13
Frank Lambert, The Founding Fathers and the Place of Religion in America 76 (2003). back
14
Id. at 78–79. back
15
Curry, supra note 2, at 21–22. back
16
Curry, supra note 2, at 5; Lambert, supra note 13, at 82. back
17
Lambert, supra note 13, at 82. back
18
Curry, supra note 2, at 5. back
19
R.B. Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500–1860, at 72, 76–77 (J.H. Baker ed., 2006). For more discussion of the English ecclesiastical courts, see Amdt1.2.2.1 Introduction to the Historical Background of the Religion Clauses. back
20
Lambert, supra note 13, at 84. back
21
Curry, supra note 2, at 6. See also, e.g., id. at 88–89 (discussing Massachusetts prosecutions of those who criticized Congregationalism or the colony’s treatment of religious dissenters); Lambert, supra note 13, at 90 (describing Puritan thinkers who defined religious liberty “in terms of religious purity” ). back
22
Curry, supra note 2, at 6, 8; see also John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 26–27 (4th ed. 2016) (discussing the cooperation of church and state in Puritan colonies). back
23
See, e.g., Curry, supra note 2, at 71. back
24
Curry, supra note 2, at 76. back
25
Curry, supra note 2, at 62–63; McConnell, supra note 3, at 2130. back
26
Curry, supra note 2, at 64–65. back
27
Curry, supra note 2, at 65–67. back
28
See McConnell, supra note 3, at 2128. back
29
Kenneth Lasson, Free Exercise in the Free State: Maryland’s Role in the Development of First Amendment Jurisprudence, 31 J. Church & St. 419, 422–23 (1989); Curry, supra note 2, at 31–33. back
30
Curry, supra note 2, at 35–36. back
31
Curry, supra note 2, at 38–39; Lasson, supra note 29, at 428–29. back
32
Curry, supra note 2, at 35–48; Lasson, supra note 29, at 435. back