Separation of Church and State

The early years of the American colonies, the concept of religious freedom did not include separation of church and state. Instead, it meant that each locality was free to practice religion as it saw fit, without conforming to the doctrines and practices of the Church of England. Within each community, however, there was often only one "approved" form of the Protestant religion (Catholicism being scarcely represented), and in Massachusetts Bay, the voting franchise was limited to members of the Congregationalist Church until William III issued a new charter that ended the restriction.

When Virginia adopted its Declaration of Rights in 1776, it followed this pattern, but declaring religious freedom to be an essential right but not disestablishing the Anglican Church until 1779. In that year, Thomas Jefferson wrote a proposed act to establish religious freedom in Virginia, but it was not immediately adopted.

During the 1784-1785 session of the Virginia General Assembly, an attempt was made to provide legal support for "teachers of the Christian religion." Patrick Henry was one of the supporters. James Madison was called upon by his friends, including George Mason, to . This was written and published, with the desired effect. It read in part:

The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator.

Finally in 1786, the Virginia Act for Establishing Religious Freedom, based on Jefferson`s 1779 draft, was passed by the General Assembly. It took the final step of forbidding the use of taxes to support any church, a position which was accepted for the entire United States by the adoption of the First Amendment in the Bill of Rights a few years later.

During the debate over ratification of the constitution, Oliver Ellsworth of Connecticut wrote an article that was printed in December 1787, in which he defended the decision to forbid religious tests for public office:

Some very worthy persons, who have not had great advantages for information, have objected against that clause in the constitution which provides, that no religious test shall ever be required as a qualification to any office or public trust under the United States. They have been afraid that this clause is unfavorable to religion. But my countrymen, the sole purpose and effect of it is to exclude persecution, and to secure to you the important right of religious liberty. We are almost the only people in the world, who have a full enjoyment of this important right of human nature. In our country every man has a right to worship God in that way which is most agreeable to his conscience.

John Leland was a largely self-educated clergyman, born in Massachusetts in 1754. He ministered in Virginia as a young man before returning to Massachusetts in 1791. He was in Virginia during the ratification debate, which he opposed without the inclusion of a Bill of Rights. During a long career, he consistently argued against established churches, and lived to see the Congregational Church disestablished in Massachusetts in 1823.

In 1791, Leland wrote a piece on why the government should not be involved in religion:

Every man must give an account of himself to God, and therefore every man ought to be at liberty to serve God in that way that he can best reconcile it to his conscience. If government can answer for individuals at the day of judgment, let men be controlled by it in religious matters; otherwise let men be free.

In 1809, Jacob Henry was elected to the North Carolina House of Commons in 1808. Being Jewish, he was unable to take the oath prescribed by law to take office when the house met in 1809. Despite the First Amendment, the North Carolina constitution at that time required that elected officials accept the truth of the Protestant religion. Another representative moved that he be refused his seat. Henry gave a stirring defense of his rights, which persuaded the North Carolina house to seat him.

The intent when the Bill of Rights was ratified was to interpret protection for freedom of speech according to the common law inherited from Britain. That body of law held that speech was not protected if it caused harm to the public welfare. In the early nineteenth century, an example of such harm would be a book that called into question the precepts of religion.

One such book, in the eyes of censors, was a book in French entitled, Sur la Creation du monde, un system d`organisation primitive, which concerned the origin of the world. In Philadelphia in 1814, the book was banned and criminal proceedings brought.

When Thomas Jefferson^ learned of this, he wrote a letter to N.G. Dufief, the bookseller in Philadelphia, in which he asked:

Is this then our freedom of religion? and are we to have a censor whose imprimatur shall say what books may be sold, and what we may buy? And who is thus to dogmatize religious opinions for our citizens? Whose foot is to be the measure to which ours are all to be cut or stretched? Is a priest to be our inquisitor, or shall a layman, simple as ourselves, set up his reason as the rule for what we are to read, and what we must believe? It is an insult to our citizens ...

Christian religious denominations became better organized and used their collective strength to lobby for the idea that the United States was both historically and constitutionally Christian. In support of that position, they demanded that all government services be suspended on the Sunday, the Christian sabbath. At the request of the Senate, Richard M. Johnson of Kentucky delivered a report in which, in support of the separation of church and state, he voiced the opinion that the Constitution did not give Congress the power to determine "what part of time, or whether any, has been set apart by the Almighty for religious exercises."

A more strident defense of the separation of church and state was given by Zelotes Fuller in a "Washington`s Birthday" address in 1830, actually delivered on February 28.

Remember that the civil and religious liberty which ye enjoy, and which ye hold to be the birthright of every man, was purchased with toil, and blood, and suffering. Dear was the price which it cost - precious the lives that were sacrificed. Never, O never, suffer yourselves to be robbed of such an invaluable heritage, nor quietly submit to any infringement of the rights and privileges which it confers.

In 1829, New York revised its statutes to permit the employment of chaplains for the legislature. A public outcry arose and the matter was considered by a special committee. In 1832, it recommended against the use of chaplains and prayers in public assemblies. Legislation in the next session banned payment for chaplains without determining whether the institution itself was constitutional.

When New York State first decided to fund public education, it did not require that the schools themselves be publicly controlled. For many years, state tax money went into religiously based schools in New York City. Catholics felt they were being discriminated against in the distribution and protested. Not until 1842 was the nonsectarian public school system founded in the city.

Sunday closing laws represented another area of conflict. That Sunday is the Christian sabbath and not a holy day to any other religion suggests that regulations specific to Sunday verge on preference for a particular religion. A case came before the California Supreme Court in 1858, regarding a Jewish merchant who had sold clothes on Sunday. The court ruled in favor of the merchant.

Chief Justice David Smith Terry wrote in his opinion that it was difficult not to see the religious intent of the law, since it it was entitled, "An act for the better observance of the Sabbath." He pointed out that a law must be interpreted according to the intent of those who formed it, and the intent in this case was clear.

In dissent, Justice Stephen J. Field argued that the choice of words was for convenience, and that Sunday could have been designated by an equivalent non-religious term. He also asserted that the universally accepted belief that men should take one day a week off from work gave the legislature the power to choose one.

---- Selected Quotes ----

Quotes regarding Separation of Church and State.

By Thomas Jefferson
On the faces of the obelisk the following inscription, and not a word more, "Here was buried Thomas Jefferson, author of the Declaration of American Independence, of the statute of Virginia for religious freedom, and father of the University of Virginia," because by these, as testimonials that I have lived, I wish most to be remembered.
Instructions for his epitaph
By Thomas Paine
All national institutions of churches, whether Jewish, Christian or Turkish, appear to me no other than human inventions, set up to terrify and enslave mankind, and monopolize power and profit.
By Andrew Jackson
While I concur with the Synod in the efficacy of prayer, and in the hope that our country may be preserved from the attacks of pestilence "and that the judgments now abroad in the earth may be sanctified to the nations," I am constrained to decline the designation of any period or mode as proper for the public manifestation of this reliance. I could not do otherwise without transcending the limits prescribed by the Constitution for the President and without feeling that I might in some degree disturb the security which religion nowadays enjoys in this country in its complete separation from the political concerns of the General Government.
Response to request from a church organization of New York, on refusing to proclaim a national day of fasting and prayer, in relation to an outbreak of cholera.
By Ulysses S. Grant
Leave the matter of religion to the family altar, the church, and the private school, supported entirely by private contributions. Keep the church and the State forever separate.
Speech at Des Moines, Iowa, 1875
By James Madison
The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.
Against a bill to pay for teachers of the Christian religion
By Roger Williams
Enforced uniformity confounds civil and religious liberty and denies the principles of Christianity and civility. No man shall be required to worship or maintain a worship against his will.
By Rutherford B. Hayes
We all agree that neither the Government nor political parties ought to interfere with religious sects. It is equally true that religious sects ought not to interfere with the Government or with political parties. We believe that the cause of good government and the cause of religion both suffer by all such interference.
Speech, Marion OH, 1875
By Sandra Day O'Connor
It is difficult to discern a serious threat to religious liberty from a room of silent, thoughtful schoolchildren.
Regarding the constitutionality of a moment of silent prayer
By Thomas Paine
Mingling religion with politics may be disavowed and reprobated by every inhabitant of America.
"Common Sense"

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