Academic journal article William and Mary Law Review

Establishment and Disestablishment at the Founding, Part I: Establishment of Religion

Academic journal article William and Mary Law Review

Establishment and Disestablishment at the Founding, Part I: Establishment of Religion

Article excerpt



A. Establishment in England

B. Establishment in the American Colonies

1. Virginia

2. New England

3. Other Southern Colonies

4. New York

C. Elements of the Establishment

1. Governmental Control Over the Doctrines, Structure, and Personnel of the State Church

a. Doctrines and Liturgy

b. Appointment of Bishops and Clergy

2. Mandatory Attendance at Religious Worship Services in the State Church

3. Public Financial Support

a. Land Grants

b. Religious Taxes

4. Prohibition of Religious Worship in

Other Dominations

5. Use of the State Church for Civil Functions

a. Social Welfare

b. Education

c. Marriages and Public Records

d. Prosecution of Moral Offenses

6. Limitation of Political Participation to Members of the State Church


A. Distinguishing Theological from Political Rationales

B. Theoretical Justifications for the English Establishment

C. Post-Independence Justifications for American Establishments



It has been so long--about 170 years--since any state in the United States has had an established church that we have almost forgotten what it is. When the words "Congress shall make no law respecting an establishment of religion" (1) were added to the Constitution, virtually every American--and certainly every educated lawyer or statesman--knew from experience what those words meant. The Church of England was established by law in Great Britain, (2) nine of the thirteen colonies had established churches on the eve of the Revolution, (3) and about half the states continued to have some form of official religious establishment when the First Amendment was adopted. (4) Other Americans had first-hand experience of establishment of religion on the Continent--of the Lutheran establishments of Germany and Scandinavia, the Reformed establishment of Holland, or the Gallican Catholic establishment of France. Establishment of religion was a familiar institution, and its pros and cons were hotly debated from Georgia to Maine.

When the Supreme Court began to decide cases involving claims about an establishment of religion in the 1940s, (5) however, the Justices made no serious attempt to canvass the legal history of establishment--either in Europe, in the American colonies, or in the early American States--or to distinguish between the First Amendment and the various conflicts over establishment at the state level. The Justices focused instead on one event in one State the rejection of Patrick Henry's Assessment Bill in Virginia in 1785 and the adoption of Thomas Jefferson's Bill for Establishing Religious Liberty--on the assumption that "the provisions of the First Amendment ... had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute." (6)

This truncated view of history made the establishment question seem too easy. In the Justices' account, a "large proportion of the early settlers of this country came here from Europe to escape the bondage of laws that compelled them to support and attend government-favored churches," (7) and transplantation of established churches to these shores "became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence," (8) leading directly to the First Amendment. One would never know from the Justices' careless description of history that no small number of the "freedom-loving colonials" considered official sanction for religion natural and essential, that the movement toward disestablishment was hotly contested by many patriotic and republican leaders, and that there were serious arguments--not mere "feelings of abhorrence"--on both sides of the issue. …

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