NEW YORK UNIVERSITY LAW REVIEW VOLUME 80 DECEMBER 2005 NUMBER 6 ARTICLE RELIGIOUS LIBERTY IN THE THIRTEENTH COLONY: CHURCH-STATE RELATIONS IN COLONIAL AND EARLY NATIONAL GEORGIA JOEL A. NICHOLS* At the time of America's constitutional origins, there was not a singular under- standingof the proper relationshipbetween the government and religion, but rather multiple understandings. Those multiple understandings are best understood through a close investigation of the experiences in each of the original states. This Article seeks to add the experience in Georgia-thethirteenth colony-to the larger discussion regarding the status of religious liberty in the various colonies and states in the eighteenth century. From its founding in 1732 throughout the eighteenth century, Georgia was a place of both religious tolerance and religious pluralism. Georgia's Royal Charterpro- vided for liberty of conscience for all, and for the free exercise of religion by all except Roman Catholics. The Charter did not establish the Church of England or any other church. (Although the Church of England would later be established by law in 1758, it was, in practice, a weak establishment with little real ecclesiastical presence.) Between the Revolution and 1800, the new State of Georgia had three constitutions (1777, 1789, and 1798), each of which explicitly addressed religion and provided for varying levels of free exercise (including liberty of conscience) and disestablishment. These principles of religious liberty that were reified and realized in the governing documents stemmed from the necessity of recognizing a variety of religious beliefs, * Copyright © 2005 by Joel A. Nichols, Assistant Professor of Law, Pepperdine University. J.D., M.Div., Emory University; B.A., Abilene Christian University. I would especially like to thank John Witte, Jr. for his very useful critiques of an early draft of this Article. I am also grateful to Carl Esbeck and Frank Ravitch for insightful comments, and to Megan Conniff, Gabriel Egli and Rob Peck for their assistance in finalizing this Article for publication. This project was funded, in part, by a research grant from Pepperdine University. 1693 Imaged with Permission from N.Y.U. Law Review NEW YORK UNIVERSITY LAW REVIEW [Vol. 80:1693 for from early times the colony contained adherents of a number of religiousfaiths. These included Jews, Anglicans, Lutherans, Presbyterians, and others-who formed, according to one author, "a rich generation of religious ferment in the colony." This admixture of religious adherents was welcomed-indeed, invited-to the new territory. And the various worshipers were not asked to conform to, nor required to support, the Church of England, but instead received governmental funding and support for their own endeavors (including land grants, salaries for ministers, and some control over church and civil governance). By analyzing Georgia's law and experience, this Article seeks to unearth and illu- minate those principles of religious liberty valued in early Georgia. This Article reveals that early Georgians cherished liberty of conscience, free exercise, direct (but non-preferential)governmental support for religion, respect for religious plu- ralism, and non-discriminationon the basis of religion. Further, while Georgians gradually moved toward recognizing the value of disestablishment, there was never an intellectual adherence to a strict Jeffersonian ideal of "separationof church and state." By adding Georgia's experience in church-state relations to the larger con- versation about religiousliberty in the early Republic, this Article opens the conver- sation to a fuller discussion of the multiple understandings of religious liberty present from the beginning. INTRODUCTION ................................................. 1695 I. CHURCH-STATE RELATIONS AT LAW IN EIGHTEENTH- CENTURY GEORGIA: A TREND TOWARD INCREASINGLY "MODERN" CONCEPTIONS ............... 1702 A. Georgia's Colonial Period (1732-1776) ............. 1703 1. Beginnings: A Haven for Dissenting Groups ... 1703 2. Royal Colony Status: Retaining "Space" for D issenters ....................................... 1709 3. A "Soft" Establishment of the Church of England ........................................ 1712 B. Three Constitutions: Revolution and Beyond (1777-1798) ......................................... 1722 1. A Short Term Solution (Soon Coupled with General Government Support for Religion) ..... 1722 2. A New Constitution with Few Significant Changes Regarding Religion .................... 1728 3. Disestablishment, Rights of Conscience, Non- Preferential Treatment, and More ............... 1731 II. THE OVERLAY OF GEORGIA'S DIVERSE RELIGIOUS H ISTORY ................................................ 1734 A. England's Preferred Religion-Anglicanism ......... 1735 B. The Dissenting Groups ............................. 1738 1. Jew s ............................................ 1738 2. Salzburgers ..................................... 1739 3. M oravians ...................................... 1740 4. Presbyterians.................................... 1741 5. Congregationalists............................... 1743 Imaged with Permission from N.Y.U. Law Review December 2005] RELIGIOUS LIBERTY IN THE 13TH COLONY 1695 6. Q uakers ........................................ 1744 7. B aptists ......................................... 1745 8. Methodists ...................................... 1747 9. Catholics ........................................ 1748 C. Sum m ary ........................................... 1750 III. THE INTERSECTION OF LAW AND RELIGION ............ 1751 A. Direct Governmental Support for Religion .......... 1752 1. The Church of England ......................... 1752 2. Other Religious Groups ......................... 1754 B. The Salzburgers' Problems with Land Grants ....... 1756 C. Required Payments to the Established Church ....... 1758 1. Death: Burial and Bell-Ringing ................. 1758 2. M arriage Licenses .............................. 1763 D. Persecution of Minority Religious Groups: Itinerant Preachers ........................................... 1765 E. Education: George Whitefield's Proposed College .............................................. 1766 CONCLUSION ..................................................... 1770 INTRODUCTION [T]he Province of Georgia was intended by His Majesty for an Asylum for all sorts of Protestants to enjoy full Liberty of Con- science Prefferable to any other American Colonies in order to Invite Numbers of Oppressed or persecuted People to Strengthen this Barrier Colony by their coming over .... 1 From its founding in 1732 until the end of the eighteenth century, Georgia was a place of both religious tolerance and religious plu- ralism. Early Georgians valued liberty of conscience and free exercise of religion,2 direct (but nonpreferential) governmental support for religion, and nondiscrimination on the basis of religion. The initial 1 13 THE COLONIAL RECORDS OF THE STATE OF GEORGIA 257-58 (Allen D. Candler ed., 1907) [hereinafter C.R. GA.] (quoting Rev. Johann Martin Bolzius, pastor of Georgia's Salzburger German Lutheran community). 2 In historical terms, the basic distinction between "liberty of conscience" and "free exercise" was that "liberty of conscience" was the right to believe what one wanted and "free exercise" was the right to act upon one's religious beliefs. See, e.g., JOHN WITTE, JR., RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT 45 (2d ed. 2005). Accord- ingly to John Witte, Jr.: Liberty of conscience was the right to be left alone to choose, to entertain, and to change one's religious beliefs. Free exercise of religion was the right to act publicly on the choices of conscience once made-up to the limits of encroaching on the rights of others or the general peace of the community. Id. at 41-48,108-10; Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409, 1488-500 (1990) [hereinafter McConnell, Free Exercise] (discussing distinction between two phrases and reasons for pos- Imaged with Permission from N.Y.U. Law Review 1696 NEW YORK UNIVERSITY LAW REVIEW [Vol. 80:1693 colonial charter provided for liberty of conscience for all, and for the free exercise of religion by all except Roman Catholics. 3 And from the beginning, the Trustees of Georgia did not restrict the granting of glebe land4 only to the Church of England, but allowed glebes to minority religious groups also.5 Further, there was a gradual-and at times arguably halting-movement toward recognizing the value of disestablishment of religion. For example, there was not an estab- lished church from Georgia's founding in 1732 until 1758, at which time the Church of England became the "official" religion of the colony until the Revolution. But even then, the legal establishment in Georgia was, in practice, a weak (or "soft") establishment with little real ecclesiastical presence. 6 In any event, there was certainly no intellectual adherence to a strict Jeffersonian ideal of "separation of church and state" among early Georgians. 7 These multiple principles of religious liberty 8 that were ensconced and realized in the governing legal documents stemmed sible substitution of clause "free exercise" instead of "liberty of conscience" in final text of First Amendment). 3 2 C.R. GA., supra note 1, at 773; see also McConnell, Free Exercise, supra note 2, at 1489-90 (discussing distinction in Georgia's charter). 4 Glebe lands are defined as: