RELIGION AND THE

AMERICAN

CONSTITUTIONAL

EXPERIMENT Chapter 3

The Essential Rights and Liberties of Religion

Founders

Four groups of founders: Puritans, Evangelicals, Republicans, Enlightenment exponents.

These groups held up the four corners of a wide and swaying canopy of opinion on religious liberty in eighteenth-century America.

Beneath this canopy were the “essential rights and liberties” of religion.

“Essential Rights and Liberties” of

Religion

1. Liberty of conscience

2. Free exercise of religion

3. Religious pluralism

4. Religious equality

5. Separation of church and state

6. Disestablishment, at least of a national

religion

Liberty of Conscience

The principle of liberty of conscience was almost universally embraced in the young republic.

Voluntarism – the unalienable right of private judgment in matters of religion.

The principle of liberty of conscience informed some of the federal constitutional debates on religion.

Liberty of Conscience

1. Protected voluntarism

2. Prohibited religiously based discrimination against individuals

3. Guaranteed “freedom and exemption from human impositions, and legal restraints, in matters of religion and conscience.”

These three aspects of liberty of conscience were embodied in early state constitutional laws.

Free Exercise of Religion

Freedom of conscience was closely tied to

free exercise of religion for many founders.

Free exercise of religion was the right to act

publicly on the choices of conscience once

made.

Every early state constitution guarantee “free

exercise” rights of some sort.

Free Exercise of Religion

Free exercise rights generally connoted

freedom to engage in a variety of public

religious actions informed by the dictates of

conscience:

Religious worship

Religious speech

Religious assembly

Religious publication

Religious education

Religious Pluralism

The founders regarded “multiplicity,” “diversity,” or “pluralism” as an important and independent principle of religious liberty.

In one sense, religious pluralism was not a principle but rather a cause, condition, and consequence of giving freedom of conscience and free exercise rights to all, with the assurance of equality before the law.

In another sense, religious pluralism was just a sociological fact.

Pluralism

The founders distinguished two kinds of pluralism pertinent to religion.

Confessional pluralism – the maintenance and accommodation of a plurality of forms of religious expression and organization in the community.

Structural or social pluralism – proponents encouraged each community to maintain and accommodate a variety of social units to foster religion.

Religious Equality

The efficacy of the principles of liberty of conscience, free exercise of religion, and religious pluralism depended on a guarantee of equality of all peaceable religions before the law.

The founders’ arguments for religious equality became particularly pointed in their debates over religious test oaths as a condition for holding federal political office.

Religious Equality

Religious equality was persuasive in outlawing religious test oaths entirely – first at the federal level and eventually in many states as well.

Most founders extended the principle of equality before the law to all peaceable theistic religions, including Jews, Muslims, and Hindus.

The principle of equality found its place in early drafts of the First Amendment religion clauses.

Separation of Church and State

The principle of separation of church and state

is often regarded as a distinctly modern

American invention but it is in reality an

ancient Western teaching.

The principle also had solid grounding in

political sources that appealed to American

Enlightenment and Republican writers.

Separation of Church and State

A range of theological and political sources

formed the background for the American

founders.

The founders sifted through European and

colonial legacy of church-state separation to

distill five major themes.

Church-State Separation Themes

1. To protect the church from the state.

2. To protect the state from the church.

3. To protect the individual’s liberty of conscience from the intrusions of both church and state.

4. To protect individual states from interference by the federal government in governing local religious affairs.

5. To protect society and its members from unwelcome participation in and support for religion and its morals in positive law.

Disestablishment of Religion

Some eighteenth-century founders saw no

inconsistency between having one established

religion in a state yet guaranteeing liberty of

conscience, free exercise, religious equality of

a plurality of faiths, and a separation of church

and state to all others.

Religious Establishments

Seven of the original thirteen states still had religious establishments when the First Amendment was being drafted in 1789.

Though local practices varied in these establishment states, their governments still exercised some control over religious doctrine, governance, clergy, and other personnel.

Despite these state establishments, disestablishment movements were gaining support.

Establishment of Religion

Establishment of religion was an ambiguous

phrase in the eighteenth century – “to establish”

mean “to settle firmly,” “to make firm,” “to ordain,”

or “to enact.”

Disestablishment of religion, under this

understanding, protected the principle of liberty of

conscience by foreclosing government from

coercively prescribing mandatory forms of

religious belief, doctrine, and practice.

Disestablishment of Religion

It further protected the principles of equality

and pluralism by preventing government from

singling out certain religious beliefs and bodies

for preferential treatment.

It also served to protect the basic principles of

separation of church and state.

Interdependence of Principles

For all the diversity of opinion that pervades the constitutional convention debates, most influential writers embraced this role of “essential rights and liberties of religion.”

Eighteenth-century writers designed these principles to work together to prevent repressive religious establishments while simultaneously being mutually supportive and subservient to the highest goal of guaranteeing “the essential rights and liberties of religion” for all.