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

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William & Mary Law Review Volume 44 (2002-2003) Issue 5 Article 4 April 2003 Establishment and Disestablishment at the Founding, Part I: Establishment of Religion Michael W. McConnell Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Constitutional Law Commons Repository Citation Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105 (2003), https://scholarship.law.wm.edu/ wmlr/vol44/iss5/4 Copyright c 2003 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr ESTABLISHMENT AND DISESTABLISHMENT AT THE FOUNDING, PART I: ESTABLISHMENT OF RELIGION MICHAEL W. MCCONNELL* TABLE OF CONTENTS INTRODUCTION . ................................... 2107 I. THE LAWS CONSTITUTING AN ESTABLISHMENT .......... 2110 A. Establishmentin England ...................... 2112 B. Establishmentin the American Colonies ........... 2115 1. Virginia ................................... 2116 2. New England ................................ 2121 3. Other Southern Colonies ...................... 2126 4. New York .................................. 2129 C. Elements of the Establishment ................... 2131 1. Governmental Control Over the Doctrines, Structure, and Personnel of the State Church ...... 2131 a. Doctrines and Liturgy ...................... 2132 b. Appointment of Bishops and Clergy ........... 2136 2. Mandatory Attendance at °Religious Worship Services in the State Church ............ 2144 3. Public FinancialSupport ..................... 2146 a. Land Grants .............................. 2148 b. Religious Taxes ........................... 2152 4. Prohibitionof Religious Worship in Other Dominations ........................... 2159 * Circuit Judge, United States Court of Appeals for the Tenth Circuit, and Presidential Professor, S.J. Quinney College of Law, University of Utah. Support for this research was provided by the University of Utah College of Law Research Fund. The Author wishes to thank James Clayton, John Garvey, Philip Hamburger, Douglas Laycock, Mary McConnell, and John Witte for helpful comments on an earlier draft, and Charles Wentworth for research assistance. 2105 2106 WILLIAM AND MARY LAW REVIEW [Vol. 44:2105 5. Use of the State Church for Civil Functions ...... 2169 a. Social Welfare ........................... 2170 b. Education ............................... 2171 c. Marriagesand Public Records ............... 2175 d. Prosecution of Moral Offenses ............... 2176 6. Limitation of PoliticalParticipation to Members of the State Church ......................... 2176 II. RATIONALES FOR THE ESTABLISHMENT .............. 2181 A. DistinguishingTheological from PoliticalRationales 2181 B. Theoretical Justificationsfor the English Establishment ......................... 2189 C. Post-IndependenceJustifications for American Establishments ...................... 2193 III. REFLECTIONS ................................. 2205 20031 ESTABLISHMENT OF RELIGION 2107 INTRODUCTION 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"' were added to the Constitution, virtually every American-and certainly every edu- cated 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,' 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 1. U.S. CONST. amend. I. 2. See Act ofUniformity, 1662, 14 Car. 2, c. 4 (Eng.), reprintedin 1 SOURCES OF ENGLISH CONSTITUTIONAL HISTORY 543-46 (Carl Stephenson & Frederick Marcham eds. & trans., 1937). 3. See LEONARD W. LEVY, THE ESTABLISHMENT CLAUSE: RELIGION AND THE FIRST AMENDMENT 5, 11 (1994). 4. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 32-33 (1998). 5. See McCollum v. Bd. of Educ., 333 U.S. 203 (1948); Everson v. Bd. of Educ., 330 U.S. 1 (1947). 2108 WILLIAM AND MARY LAW REVIEW [Vol. 44:2105 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,"' 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. The Justices never analyzed any of the books, essays, sermons, speeches, or judicial opinions setting forth the philosophical and political arguments in favor of an establishment of religion, and relied on only one, perhaps unrepresentative, example from among the hundreds of arguments made against the establishment.9 To be sure, the Virginia Assessment Controversy of 1784-1786 was an important and illuminating event. But it was only one step in a series of legal developments moving from a formal, exclusive, and coercive state establishment to a system of free and equal religious freedom. It addressed only one of many issues raised by the establishment of religion. It took place in only one of many states that went through such a process; and it was not so much a debate about establishment as a debate about which of several possible arrangements should replace the "church by law estab- lished" in Virginia prior to the Revolution. To understand what an "establishment of religion" was and what disestablishment entailed, 6. Everson, 330 U.S. at 13. 7. Id. at 8. 8. Id. at 11. 9. See id. at 1; McCollum, 333 U.S. at 203. 2003] ESTABLISHMENT OF RELIGION 2109 it is necessary to broaden our sights. It is difficult to know what the Framers of the First Amendment opposed if we do not know what those who favored establishment supported. We cannot understand the depth of the argument for disestablishment without under- standing why reasonable men and women might have thought that establishment was necessary to republican government. Nor did the Court give serious attention to the process of disestablishment: whether to the gradual dismantling of existing church establishments in the states or to the debates about the Establishment Clause at the federal level. Contrary to popular myth, the First Amendment did not disestablish anything. It prevented the newly formed federal government from establishing religion or from interfering in the religious establishments of the states.l" The First Amendment thus preserved the status quo. Even at the state level, where disestablishment actually occurred, it was not a simple, binary decision. The founding generation had to figure out what changes to make and what would take the place of the establishment. There were many plausible alternatives. Would they combine broad toleration with mild and noncoercive govern- mental support for religion, on the model still common in Western Europe?1' Would they create a secular public culture-a "republic of reason"-along the lines later followed in France? 2 Would they introduce a pluralistic religious free-for-all? What would be the public function of religion, if any, in this new republic? Unlike many modern Americans, most members of the founding generation believed deeply that some type of religious conviction was necessary for public virtue, and hence for republican government. 3 What institutional forms would disestablished religion take, and how would this affect education, poor relief, public decorum, republi- canism, and the inculcation of virtue? 10. See AMAR, supra note 4, at 32-41; Kurt T. Lash, The Second Adoption of the EstablishmentClause: The Rise of the Nonestablishment Principle, 27 ARIZ. ST. L.J. 1085, 1089-99
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