Religious Liberty under Eighteenth-Century State Constitutions

The religion clauses of the eighteenth-century state constitutions reveal a ferment of activity lying barely beneath the surface of the U.S. Constitution’s First Amendment. Although most of these constitutions progressed far along the path toward disestablishment, some still enshrined protections for the Protestant religion, allowed taxes to be levied in support of clergy, or imposed religious tests upon those assuming office. At the same time, many included provisions ensuring the equality of free exercise and requiring that individuals’ privileges and immunities not be enlarged or contracted on the basis of religion. During the dormancy of the First Amendment’s free exercise and Establishment Clauses, which were not substantially litigated until the nineteenth century, and not applied to the states until the twentieth century, the state constitutions thus supplied a basis for claims of religious equality and the freedom of religious practice while only gradually leading toward the separation of church and state.

Disestablishment and Separation

Despite Thomas Jefferson’s renowned reference to the First Amendment as ‘‘building a wall of separation between church and state’’ (Letter to the Danbury Baptist Association), legal historians have emphasized that the state constitutions ratified around the time of the founding effected a measured disestablishment rather than a complete separation. Indeed, according to Philip Hamburger’s Separation of Church and State, the twentieth-century focus on separation distorted the nature of eighteenth-century religious liberty debates, in which separation ‘‘first appeared ... not as a demand but as an accusation.’’ The employment of one metaphor rather than the other may not be determinative; Kent Greenawalt contends, for instance, that Hamburger overemphasized the difference between disestablishment and separation, and, likewise, maintains that each idea is sufficiently broad in its historical development to encompass the vast majority of the concepts that the other comprehends.

At the same time, however, the notion of disestablishment better suits the nature of the trajectories from colonial contexts to state constitutions. Rhode Island’s refusal of an official state religion under the influence of founder Roger Williams, who maintained that the purity of the true church would be tainted through association with civil government, remained the exception rather than the rule. In several states, inhabitants were obliged to support religious ministers, although usually of their own denomination, even after ratification of the U.S. Constitution, and some constitutions required office holders to take oaths attesting to specific religious beliefs. The Maryland Constitution of 1776, for example, allowed the legislature to levy ‘‘a general and equal tax for the support of the Christian religion’’ but left ‘‘to each individual the power of appointing the payment over of the money, collected from him, to the support of any particular place or worship or minister’’ (Maryland Constitution, Article 33). Delaware abandoned its religious test for entry into office soon after the constitution was ratified; the 1792 constitution abolished an earlier requirement that members of either house of the legislature, as a condition of entering into office, swear or affirm that ‘‘I, A.B., do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration’’ (Delaware Constitution of 1776, Article 22).

The expansion of religious liberty in South Carolina, described in detail by James Lowell Underwood’s article ‘‘The Dawn of Religious Freedom in South Carolina,’’ furnishes a particularly apt example of the path away from establishment. While the seeds of freedom had been sown by the Carolina Charters and the Fundamental Constitutions of Carolina, composed in part by John Locke, it was not until the Constitution of 1790 that disestablishment was officially completed. During the colonial period, the Church of England, the favored denomination, received funds out of the public fisc; likewise, religious tests were, at various points, imposed upon candidates for office and even upon voters, and laws were enacted requiring Sunday worship. The Constitution of 1778 equalized the treatment of all Protestant sects, but refrained from entirely abandoning establishment (South Carolina Constitution of 1778, Article 38). Instead, it specified criteria by which any Protestant group commanding fifteen or more adherents could achieve official recognition and support, and it announced that ‘‘all denominations of Christian Protestants in this State, demeaning themselves peaceably and faithfully, shall enjoy equal religious and civil privileges’’ (South Carolina Constitution of 1778, Article 38). Under this schema, non-Protestants, including Catholics and Jews, remained marginalized. The Constitution of 1790, adopted shortly after the federal First Amendment, rectified the situation by eliminating the Protestant establishment (South Carolina Constitution of 1790). Even this constitution did not, however, result in the complete separation of the political sphere from the Christian church.

Statutory relics of establishment remained in several states into the nineteenth century. These included laws criminalizing blasphemy and prohibiting commerce on Sundays. Scattered judicial opinions also invoked the notion that Christianity remained part of the common law, but, as Stuart Banner has shown, this mantra lacked substantive underpinnings.

Free Exercise, Equal Protection, and Equal Privileges and Immunities

On the side of the individual believer, Locke’s seventeenth- century Letter Concerning Toleration had distinguished between the liberty of conscience he espoused and freedom of religious practice by depicting religious belief as ‘‘an inward perswasion of the Mind,’’ placed under the sole jurisdiction of sacred authority, in peaceful coexistence with the proper sphere of the civil magistrate. Although a few of the eighteenth-century state constitutions partially revisited this division by assuring the rather limited right of all to ‘‘worship ... God according to the dictates of their own consciences’’ (North Carolina Constitution of 1776, Article 19), most, including the 1776 Virginia Declaration of Rights and the Georgia Constitution of 1777, provided more expansively for religious practice through ensuring the free exercise of religion. Many likewise insisted that each person’s religious liberty should be equally protected and that no citizen’s civil rights or privileges and immunities should be enlarged or reduced on account of religion. According to one differentiation between the respective meanings of ‘‘equal protection’’ and equal civil rights or privileges and immunities in the eighteenth century, according to Hamburger, ‘‘equal protection of the laws was a lesser degree of equality—an equality only of the protection provided by civil law for natural liberty,’’ whereas ‘‘equal civil rights was a standard so rigorous it prevented civil laws from allocating either protection or privileges on the basis of religious differences.’’ Both degrees of equality were, however, available—with certain important limitations— under the state constitutions.

The Virginia Declaration of Rights announced that ‘‘all men are equally entitled to the free exercise of religion, according to the dictates of conscience’’ (Virginia Declaration of Rights of 1776, Article 16). Employing the rhetoric of equal protection, the Maryland Constitution insisted that, ‘‘as it is the duty of every man to worship God in such manner as he thinks most acceptable to him; all persons, professing the Christian religion, are equally entitled to protection in their religious liberty; wherefore no person ought by any law to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice....’’ (Maryland Constitution of 1776, Article 33). Focusing instead on civil rights and privileges and immunities, the Pennsylvania Constitution forbade ‘‘any man, who acknowledges the being of a God’’ from being ‘‘deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship’’ (Pennsylvania Constitution of 1776, Declaration of Rights, Article 2); the New Jersey Constitution likewise stated that ‘‘no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles, [and all members of Protestant sects] shall fully and freely enjoy every privilege and immunity, enjoyed by their fellow subjects’’ (New Jersey Constitution of 1776, Article 19). New Jersey and Maryland were not alone in restricting their protection to all Protestants, or all Christians, rather than extending them to worshippers of all faiths. Such limitations were, indeed, far from infrequent.

Questions involving the equal protection of religious liberty were adjudicated less often than those concerning the privileges and immunities and civil rights of religious adherents. This latter issue arose most frequently in the context of assessing witnesses’ qualifications to testify; under the common law, only Christians had been permitted to serve as sworn witnesses, but some judicial decisions under the state constitutions insisted that this requirement impermissibly reduced individuals’ civil capacities on the basis of religion. A decision of the Virginia General Court, construing the 1776 Bill of Rights, which the first article of the Virginia Constitution of 1830 incorporated, explained that even an individual who refused to acknowledge a future state of rewards and punishments should be considered competent as a witness; to refuse to allow him to testify would diminish his civil capacity on the basis of religion (Perry v. Commonwealth [1846]).

Scholars have also debated whether the state constitutions’ vision of religious equality was formal or substantive—that is, whether they deemed any unequal burden placed upon different religious denominations discriminatory or considered unequal only those laws specifically aimed at discouraging a particular religious practice. According to one interpretation, comprehensively articulated by Michael McConnell in his article, ‘‘The Origins and Historical Understanding of Free Exercise of Religion,’’ the state constitutions allowed religious adherents exemptions from general laws. These included not only religiously based exceptions to oath requirements for, among others, Quakers, Mennonites, and Jews, but also exemptions from military service and, in states with an established church, from religious assessments.

It was not, however, unheard of, for state courts to deem the legislature’s promulgation of a religiously based exemption for one group a violation of the state constitutional provision for equality among religious denominations. A later Louisiana case, adjudicated under the 1868 Bill of Rights, which was adopted during reconstruction, provides a dramatic example of such reasoning. In City of Shreveport v. Levy (1874), the Louisiana Supreme Court invalidated a Sunday law providing an exemption for Saturday Sabbatarians, insisting that ‘‘[b]efore the constitution Jews and Gentiles are equal; by the law they must be treated alike, and the ordinance of a City Council which gives to one sect a privilege which it denies to another, violates both the constitution and the law, and is therefore null and void.’’

The liberty of religious practice that the state constitutions protected was not, in any case, unlimited. Rather, each placed certain restrictions on free exercise. The most common included prohibitions against infringing on the rights of others (Maryland Constitution of 1776, Article 33), disturbing the peace of the State (Massachusetts Constitution of 1780, part I, Article 2), or pursuing treason and sedition (North Carolina Constitution of 1776, Article 34). A few incorporated more expansive language, maintaining that freedom of conscience could not ‘‘excuse acts of licentiousness’’ (New York Constitution of 1777, Article 28). Contemporary controversy has focused on whether the notion of disturbing the state’s peace was isomorphic with that of violating general laws, and therefore supports a formal rather than substantive interpretation of religious equality under the state constitutions. Whereas some commentators, including McConnell—and Justices of the Supreme Court—contend that the clauses referring to the state’s peace ‘‘support[ ] the view that impositions on religious conscience may be enforced only if they serve the fundamental interests of the state,’’ others insist, and Justice Scalia did in City of Boerne v. Flores (1997), that they signify only that ‘‘religious exercise shall be permitted so long as it does not violate general laws governing conduct.’’ Several of the cases discussing these limitations, like Lindenmuller v. People (1861) in New York and Commonwealth v. Kneeland (1838) in Massachusetts, suggest that protecting the peace and the equal rights of others constituted something different than simply requiring that religious adherents follow the law, although what the ‘‘equal rights of others’’ consisted in remained subject to debate in the early republic.

BERNADETTE MEYLER

References and Further Reading

• Antieau, Chester James, Arthur T. Downey, and Edward C. Roberts. Freedom From Federal Establishment: Formation and Early History of the First Amendment Religion Clauses. Milwaukee: Bruce Publishing Co., 1963.
• Banner, Stuart, When Christianity Was Part of the Common Law, Law and History Review 16 (1998): 1:27–62.
• Borden, Morton, Jews, Turks, and Infidels. Chapel Hill: University of North Carolina Press, 1984.
• Esbeck, Carl, Dissent and Disestablishment: The Church– State Settlement in the Early American Republic, Brigham Young University Law Review 2004 (2004): 4:1385–592.
• Greenawalt, Kent, History as Ideology: Philip Hamburger’s Separation of Church and State, California Law Review 93 (2005): 1: 367.
• Hall, Timothy. Separating Church and State: Roger Williams and Religious Liberty. Urbana: University of Illinois Press, 1998.
• Hamburger, Philip. Separation of Church and State. Cambridge, MA: Harvard University Press, 2002.
• ———, Equality and Diversity: The Eighteenth-Century Debate about Equal Protection and Equal Civil Rights, Supreme Court Review 1992 (1992): 295–393.
• ———, A Constitutional Right of Religious Exemption: An Historical Perspective, George Washington Law Review 60 (1992): 4:915–48. Hamilton, Marci A., Religious Institutions, the No-Harm Doctrine, and the Public Good, Brigham Young University Law Review 2004 (2004): 4:1099–216.
• Jefferson, Thomas. Letter to the Danbury Baptist Association (1802).
• King, Andrew J., Sunday Law in the Nineteenth Century, Albany Law Review 64 (2000): 2:675–772.
• Laycock, Douglas, The Many Meanings of Separation, University of Chicago Law Review 70 (2003): 2:1667.
• Levy, Leonard, ed. Blasphemy in Massachusetts: Freedom of Conscience and the Abner Kneeland Case. New York: Da Capo Press, 1973.
• Locke, John. A Letter Concerning Toleration. Trans. William Popple. Indianapolis: Hackett Press, 1983.
• McConnell, Michael W., Freedom from Persecution or Protection of the Rights of Conscience? A Critique of Justice Scalia’s Historical Arguments in City of Boerne v. Flores, William and Mary Law Review 39 (1998): 3:819–48.
• ———, The Origins and Historical Understanding of Free Exercise of Religion, Harvard Law Review 103 (1990): 7:1409–517.
• Meyler, Bernadette, The Equal Protection of Free Exercise: Two Approaches and Their History, Boston College Law Review 47 (forthcoming 2006).
• Underwood, James Lowell, The Dawn of Religious Freedom in South Carolina: The Journey from Limited Tolerance to Constitutional Right, South Carolina Law Review 54 (2002): 1:111–80.

Cases and Statutes Cited

• City of Boerne v. Flores, 521 U.S. 507, 550 (1997)
• City of Shreveport v. Levy, 26 La. Ann. 671, 1874 WL 7860 (1874)
• Commonwealth v. Kneeland, 37 Mass. (20 Pick.) 206, 220, 1838 WL 2655 (1838)
• Lindenmuller v. People, 21 How. Pr. 156 (1861)
• Perry v. Commonwealth, 44 Va. (3 Gratt.) 632, 1846 WL 2406 (Va. Gen. Ct. 1846)
• Delaware Constitution of 1776, Article 22
• Delaware Constitution of 1792, Article 1, sect. 2 Fundamental Constitutions of Carolina (1669)
• Georgia Constitution of 1777, Article 66
• Maryland Constitution of 1776, Article 33
• Massachusetts Constitution of 1780, Part I, Article 2
• New Jersey Constitution of 1776, Article 19
• New York Constitution of 1777, Article 38
• North Carolina Constitution of 1776, Article 34
• Pennsylvania Constitution of 1776, Declaration of Rights, Article 2
• South Carolina Constitution of 1778, Article 38
• South Carolina Constitution of 1790
• Virginia Declaration of Rights of 1776, Article 16
• Virginia Constitution of 1830, Article 1