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GOVT 2305. Religious Liberty - The Establishment and Free Exercise Clauses.
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GOVT 2305 Religious Liberty - The Establishment and Free Exercise Clauses
In this section I want to focus on the subject of religious liberty, not only nationally, but in the state of Texas as well. This requires that we also look at the religious conflicts in Britain around the time of the settlement in the New World.
Like many other nations in Europe, Britain witnessed a great deal of internal religious conflict as a consequence of the Protestant Reformation.This was a successful challenge of what had been 1500 years of dominance by the Catholic Church.
The reformation also had a political aspect since the Catholic Church had political power in most nations in Europe. This was what drove the English Reformation. Aside from allowing him to annul a pesky marriage, the creation of the Church of England, in 1536 allowed for a major expansion in the wealth and power of the Henry VIII and the monarchy. The monarch became head of the church.
What followed was about 150 years of bloody conflict between Anglicans and those who wished to restore Catholicism as the official church. The English Civil Wars were partly fought over it. The battle would not be resolved until James II was deposed and the British Bill of Rights was signed.
The Church of England would become the established church of Great Britain with the monarch at its head. As a consequence, a Catholic can not be monarch in Great Britain.
But the fight between the Catholics and Anglicans wasn’t the only battle raging. There were internal battles among Protestants. Puritans – who followed the teachings John Calvin – also battled the Anglicans. They thought they were still too Catholic.
This conflict would be translated to the colonies since Anglicans founded some colonies – notably Virginia – and Puritans other – notably Massachusetts.
Puritans would organize themselves as Congregationalists, meaning that they were organized such that every church congregation was independent. The congregation controlled the church.Anglican churches were hierarchical – similar to the structure of the Catholic Church.
This is an important point because aside from differences regarding doctrine, the difference between these two different types of protestant churches was also a difference in governing. Should government be top-down (hierarchical) or bottom up (democratic)?
It is commonly argued that many people emigrated to the North American Colonies in order to practice their religious beliefs as they choose.This isn’t entirely true – many colonies mandated religious beliefs and practices.
Each colony had its own charter which established its own religious principles. Most colonies had an established religion, and many required church attendance. For a great look at each, click here.
Some readings: - Religion and the Founding of the American Republic- Religion in Early America
Generally religious freedom did not mean the right to not believe in a deity, but to be free to worship in whatever denomination one choose.Religious freedom in these cases generally meant religious neutrality.
The dominant denominations were the Anglican Church and the Congregational Church.
Those that were most protective of religious freedom were: Rhode IslandPennsylvania
Rhode Island was founded by Roger Williams to be a refuge for religious minorities. Williams had been expelled from Massachusetts for advocating Separatism, stating (among other things) that the government has no right to enforce Biblical doctrine. Some argue this was a version of what would later become the principle of the separation of Church and State.
Here’s an essay he wrote on the subject: The Bloudy Tenent of Persecution (1644).Click here for a more contemporary analysis.
"First the faithful labors of many Witnesses of Jesus Christ, extant to the world, abundantly proving, that the Church of the Jews under the Old Testament in the type, and the Church of the Christians under the New Testament in the Antitype, were both separate from the world; and that when they have opened a gap in the hedge or wall of Separation between the Garden of the Church and the Wilderness of the world, God hath ever broke down the wall itself, removed the Candlestick, and made his Garden a Wilderness, as at this day. And that therefore if he will ever please to restore his Garden and Paradise again, it must of necessity be walled in peculiarly unto Himself from the world, and that all that shall be saved out of the world are to be transplanted out of the Wilderness of the world, and added unto His Church or Garden." – Roger Williams
Pennsylvania was founded by William Penn, who had converted to Quakerism as a young man in Britain. Quakers were commonly persecuted in Britain and in the colonies. They were banished from Massachusetts, those who returned were executed.
Read up here on the Boston Martyrs, four Quakers who were hung in Boston in the mid 1600s for being Quakers.
His trial in Britain for illegally preaching Quakerism is one of the more famous trials in history.
Fortunately for him, Charles II owed his father a lot of money and granted him a colony to wipe out the debt. This became Pennsylvania. Sweet, huh?
The colony would allow for complete freedom of religion, as long as people believed in God.
Most colonies required religious belief of some sort, and commonly restricted political participation to those who were members of the established church.
The point is that not all colonies practiced religious freedom. Religious beliefs and practices were imposed in many – but not all. Catholics and Jews were usually restricted from voting.
Examples of Intolerance- Catholic Church in the Thirteen Colonies.- History of Jews in Colonial America.
The point is that each colony had its own religious principles embedded in its charter, and these principles would be retained in their Constitutions once they became states. They tended to be protective of these principlesThe US Constitution had to be written in a way that was neutral to the religious interests of each state.
A nationally established religion would inevitably favor one denomination over others.It could also rule on the religious practices of other denominations.
This helps explain why the First Amendment begins by stating that Congress cannot pass laws on either the establishment or the free exercise of religion.
Note that this only restricts the ability of the national government to establish a church. Some states continued to have established churches, and would continue to have them for decades.
Connecticut had a state sponsored church until 1818Massachusetts had one until 1833.
As with other aspects of the Bill of Rights, the states would not be prevented from having established churches until the 14th Amendment was ratified. The freedom people had from national power over religion also applied to states.
By then most states had stopped having tax payer funded, established churches.
Prior to the addition of the Bill of Rights, the US Constitution contained brief language related to religious freedom.These are contained in the No Religious Test Clause.
Article 6, Clause 3The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
The most obvious component of this is that people do not have to be a member of a specific religious denomination in order to hold public office.There also a very subtle statement in the clause. Office holders shall “be bound by Oath or Affirmation, to support this Constitution.”
An oath has a religious connotation. Usually it is a promise that is considered sacred and made before God or a deity of some sort.An affirmation tends to not have religious meaning.
The most famous oath is the one the President takes when is sworn into office.
Article 2, Section 1, Clause 8Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Note that there is no requirement that oath be taken on a Bible or that the oath should conclude with “so help me God.”There’s ongoing dispute about whether George Washington used the phrase. There is no record of President’s doing so until Lincoln in 1865. Hoover did not use the phrase, but every President since has.
In 2009, the DC Court of Appeals dismissed a lawsuit claiming that “so help me God” – among other religious phrases and practices in governmental institutions violates the establishment clause.
George Washington did swear on a Bible however. Not all Presidents have however. John Quincy Adams took the oath on book of law. Franklin Pierce was the only President to affirm the oath.
In the previous section we looked at the US Bill of Rights. These are the two parts which establish religious freedom: The Establishment ClauseThe Free Exercise
Here they are in context: 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.
This is where the bulk of controversy associated with religious liberty stems from.What in fact does “establishment” and “free exercise” mean? Are there no restrictions that can be placed on either?
The Establishment Clause is meant to ensure that a national religion will not be created by Congress and that no preference will be given to one religious denomination over the others.
The Free Exercise Clause is intended to protect the rights of people to practice their religious beliefs as they see fit.
