The Background to the First Amendment
The “free exercise” of religion protected by the First Amendment, together with prohibition of national establishment, reflects a long debate at the colonial and provincial levels in 150 years preceding the amendment’s ratification. Changes in both law and religious belief altered the shape of toleration and liberty in the American colonies. This debate took place in the context of a much older conversation about religion’s role in the formation of good rulers, good citizens, and a good polity. Ecclesiastical and civil authority long contended with one another in the Christian world, beginning with statements by Jesus and the Apostles that one’s conscience may stand against civil authority (e.g., Matthew 22:21, John 19:11, Acts 5:29, Hebrews 11:23). Furthermore, Protestant rejection of papal authority in the sixteenth century was perceived to necessitate increased civil authority over religion.
Religious toleration and liberty in Britain and America did not reflect a declining interest in religion so much as an intense but more diverse interest in religion. While colonists desired to protect private and public piety, they increasingly disagreed about what true piety meant. Greater diversity of religious interests and ideas, introduced by both immigration and proliferating Protestant theologies, forced Americans to accept the idea of a civil sphere operating despite theological disagreement. In states with an established religious tradition, such as Massachusetts or Virginia, toleration enabled worship by dissenters (albeit with varying degrees of restrictions) who still provided financial support for the established denomination. Over time, however, dissenters and nonconformists enjoyed religious liberty—worship or ordination free of imposition and without taxes to support a denomination to which they did not belong.
Though many influential defenses of toleration or liberty were published on both sides of the Atlantic by 1670, toleration officially flowered for Protestant nonconformists or dissenters in the 1690s. This lag suggests that tolerationist arguments did not compel much immediate progress. By the 1690s, no new arguments for toleration were being published, but changing political dynamics and expediencies, combined with demographic realities, forced real change for Protestant minorities. Debates about toleration or liberty usually turned more on particular rights and liberties in law and the British constitution rather than on philosophical or theological arguments.
Precedent: Church and State in the Old World
The dominant legal and theological paradigm for colonies in North America was the existing church-state relations in Britain and on the continent. “Magisterial Protestant” traditions considered an autonomous church contemptuous if not treasonous. Unlike later sects within Protestantism (e.g., Baptists or Quakers), early Protestant reformers on the continent and Britain desired to partner with civil magistrates in advancing piety: hence the appellation of “magisterial Protestants.” Churches expected legal and financial support from the civil magistrate, including prosecution of religious dissenters. Even after toleration and liberty advanced, and state support waned, blasphemy or working on the Sabbath might be punished even in relatively tolerant provinces, for example, as civil rather than doctrinal disruptions.
It was Reformed Protestantism, both Anglican and Puritan, that influenced the earliest colonial approaches to religious toleration. (Lutheranism in colonial America was confined to disconnected congregations and hampered by the absence of a seminary.) Political theology in Britain (and then America) was seeded by continental theologians John Calvin, Theodore Beza, Henry Bullinger, Peter Martyr Vermigli, and Martin Bucer through their own example and through personal correspondence, popular publications, and at teaching posts in England. Under continental influence, Anglicans (including Puritans) distanced themselves from those they viewed as “radical reformers” who rejected Christendom. “Anabaptist,” like “Papist,” became an epithet to use against one’s opponents.
Three Models of Church-State Relations
Anglican supremacy in the Atlantic was reflected in the Clarendon Code (1661–1665). Aided further by the Act of Toleration (1689) and the Act of Union (1707), the Church of England enjoyed significant legal advantages in America thanks to its partnership with the monarch, bishops, and Parliament. Establishment meant state provision for Anglican ministers’ salaries, compulsory attendance at Anglican worship, and privileged status for Anglicans desiring to hold office or vote. Ministers were forbidden to preach without episcopal ordination in England, and marriages and funerals could not be performed except according to Archbishop Cranmer’s Book of Common Prayer. Those who did not conform to the practices of the Church of England (including Puritans, Baptists, and Quakers) risked expulsion. Unlike the New England Puritans who followed Calvin in establishing some small distance between church and state, Church of England establishments sought (though rarely achieved) greater unity between civil and ecclesiastical authority. Despite privileged status in the law, however, the Church of England’s legal prerogative was often hampered by circumstantial opposition.
In Puritan New England, an alternative version of British Christendom was established. Anglicanism’s obstacles there were more than circumstantial. Freedom from “prayer book worship” was arguably the first “freedom” that the Puritans sought in braving the wilds of settlement, and they resisted every imposition on that freedom. Relatively speaking, Puritan New England was progressive compared to British and continental magisterial Protestantism. But Puritans understood liberty not as a positive liberty to do what one wanted, nor was it a negative liberty to be “left alone.” To do whatever one desired tempted what John Winthrop criticized as “natural liberty.” According to this Puritan concept of liberty, to assert an opinion contrary to scripture is to sin against one’s own conscience. While the primary responsibility of the civil magistrate encompassed secular matters such as “disposing of men’s goods or lands, lives, or liberties, tributes, customs, worldly honors, and inheritances,” that authority did not preclude civil authorities addressing religious matters of a “second sort” affecting the civil peace, like “the establishment of pure religion, in doctrine, worship, and government, according to the word of God.” Puritans reasoned that if laws are to protect the public good, and religion is essential to the public good, why would the magistrate and the laws not concern themselves with religion?
There were alternatives to this Puritan-Anglican dichotomy in the colonies. Denominations and sects arose which rejected the “magisterial” tradition altogether. Most prominent among these groups were the Quakers and Baptists who, together with other minority sects, catalyzed legal steps toward transatlantic toleration. While the Act of Toleration (1689), passed in the wake of the Glorious Revolution, eased the crueler persecution of Protestant dissenters and nonconformists on both sides of the Atlantic, toleration and liberty was opposed by the Church of England and conceded largely for expedient motives.
For Roman Catholics, of course, English fear and loathing of “popery” frustrated almost every attempt at toleration, except for a brief time in Maryland and then (inconsistently) in Pennsylvania and Rhode Island. Attempts at enlarged toleration for Catholics largely failed due to Protestant insistence on civil oaths of supremacy and allegiance that Catholics could not abide in good conscience.
Puritan New England
The most famous, and perhaps most misunderstood, tale of religious liberty in America begins in New England. Puritans there could no longer protest the establishment as they had done in England. They were the establishment. Debates over religious toleration in New England prompted some of the seventeenth century’s most articulate and lengthy statements on establishment and dissent.
Motives for religious establishment can be discerned from John Cotton’s Abstract of the Laws of New England, adopted by New Haven, and two founding legal documents of Massachusetts Bay: The Body of Liberties (1641) and the Laws and Liberties of Massachusetts (1648). As in Old Testament Israel, there could be no religious liberty because Puritans believed that divine blessing was conditional on punishing of blasphemy and heresy. Because Cotton drew from the books of Deuteronomy, Exodus, and Leviticus, he believed his code superior to “all the municipal laws and statutes of any of the Gentile nations.”
Roger Williams was unconvinced that political well-being necessitated spiritual conformity. His extended argument with Cotton over religious liberty has made him the most celebrated religious dissenter of colonial America. Williams’ fame has even eclipsed William Penn’s, even though Thomas Jefferson (a great American champion of religious liberty) knew nothing of Williams but called Penn “the greatest lawgiver in the world.”
Though Williams has been lionized as a proto-liberal or a man ahead of his time, he was neither. His prescription for the strict separation of church and state (or, as he cast it, the church and the world) was rooted in a conviction that the world was a lost cause. Whereas Cotton hoped to protect the world in part by protecting the integrity of the church, Williams hoped to protect the integrity of the church by abandoning the world to its moral corruption. Williams would have certainly opposed public school prayer, for example, but not because he feared imposition on tender young consciences. Rather, he considered prayers by unconverted persons to be “forced worship” that is “hypocritical stench” in God’s nostrils. So while Supreme Court Justice Hugo Black opportunistically cited Williams to oppose to school prayer in Engel v. Vitale (1962), Black surely did not share Williams’ conviction that a national church was the “Whore of Babylon” depicted in Revelation 17.
Likewise, it was absurd to assert, as Supreme Court Justice Thomas Clark did in the majority opinion in Abington School District v. Schempp (1963), that Williams, along with James Madison and Thomas Jefferson, influenced not only on the Federal Constitution but also the constitutions of the states. If Americans remembered Williams at all in the decades after his death, it was scornfully. If not for Baptist minister Isaac Backus, a champion for toleration who pressed Williams’ ideas into service beginning in 1773, Williams would likely have been forgotten. William G. McLoughlin, an eminent historian of Baptist attempts to gain toleration, spoke to Williams’ dubious legacy when he wrote, “Those who fought hardest for religious freedom in Massachusetts, Connecticut, Vermont, and New Hampshire considered Rhode Island [the colony Williams helped to establish] an embarrassment rather than an asset to their cause.”
Williams’s ideas, articulated best in a long polemical debate with John Cotton, reflected two important arguments. Williams asserted that religious establishment relied on a typological or interpretive error: Persecution confused the sword of the magistrate in Israel (used before Christ) with the sword of the Word (to be used after Christ). Second, the power of persecution potentially invested all civil rulers (even pagan or heathen nations) with control over religion. This power would not only disturb the civil peace (regardless of who was persecuted) but also (in the case of persecuted Christians) invite the judgment of God.
Williams’ alternative to the idea of the New Israel was a polity rooted only in “civil and moral duties.” Pagans were capable of constructing a perfectly adequate civil order, Williams argued, wherein bodies and goods (rather than souls) are protected. After Christ’s first coming, the church alone had spiritual responsibility; polities were purely civil with no interest in religion. Williams’s ideas were instrumental to the toleration granted in Rhode Island, whose patent made no mention of religion. The colony first became a refuge for dissenters from Massachusetts Bay, then Quakers, Baptists, Jews, and Roman Catholics (though their civil rights may have been limited). However, Rhode Island also attracted malcontents and subversives. Other colonies ignored Rhode Island or held it in contempt. Dutch minister Johannes Megapolensis summed up the opinions of many when he referred to Rhode Island as the “latrine” of New England.
Beginning in the 1640s and 1650s, the original four New England colonies began to contend with Quakers and Baptists. Quakers eschewed trained ministers, creeds, confessions and even scripture as a final authority. When they began making evangelistic inroads in New England and elsewhere against traditional denominations, Quakers were whipped and imprisoned, and their writings burned. When banished Quakers returned to Massachusetts Bay, leaders drew on the example of Solomon executing Shimei and threatened Quakers with the death penalty; four recalcitrant returning Quakers were hanged in 1660. Quakers persevered and eventually won the right to establish “meeting houses” by the 1680s. Baptists fought similar prejudice. Baptists at this time were essentially Congregationalists who came to reject infant baptism. Unlike some Quakers, Baptist protests and petitions were generally winsome and respectful. However, the Baptists’ refusal to baptize infants enabled comparison to the aforementioned Anabaptists of the sixteenth century. Indeed, many in North America referred to Baptists as “Anabaptists,” a confusion born of both malice and ignorance.
When New England clergy were unable to halt toleration forced from across the Atlantic, they not only fell in line but also changed their own narrative about religious freedom. Sermons celebrated English rights and liberties while insisting that their old vision of a shining city on a hill had not been lost. Ministers increasingly retreated from doctrinal orthodoxy and toward virtue as proof of their faithfulness to their founders. By 1747, it was remarked that Boston – once the great stronghold of Puritan Congregationalism – had, in addition to its eleven Congregational congregations (ten likely in fellowship with one another, one not), three “pretty large” Anglican congregations: two Baptist congregations, one Huguenot congregation, and one Quaker congregation. The observer of this new landscape remarked that even Papists “may be many,” but they were “too conceal’d” for an accurate accounting.”
Anglican Establishment in Virginia
Though Anglicans were hard-pressed in New England, they enjoyed establishment in most other colonies. Articles, Laws, and Orders, Divine, Politic, and Martial (1610), a document drawn up by military officers and imposed by the governor empowered by the Virginia Company of London, was a body of laws (though neither legislated nor enforced by a court) used to administer the colony of Jamestown and was as severe and Hebraic as anything established in New England. But unlike Cotton’s Abstract, for example, Articles, Laws, and Orders did not make comparable provision for English rights or liberties.
Quakers first arrived in Virginia in 1656 and were vigorously persecuted until 1663. Quaker meetings were banned, shipmasters were penalized for bringing Quakers to the colony, and Quakers were arrested or jailed on any number of pretenses. As in New England, authorities banished Quakers and threatened them with death if they insisted on returning a third time. As Quakers proved themselves harmless and even salutary, and more elites embraced their theology, they were increasingly accepted – provided that they paid their parish levies to support the Church of England.
Exemptions for other dissenting groups were eventually given, but exemptions were few and far between. French Huguenots were exempted from ministerial taxes in 1700, and German Lutherans were granted the same exemption in 1730. No one else was technically exempted until 1776. Virginia’s regime was so hard on dissenters that it discouraged their migration to the colony. Presbyterians and especially Baptists struggled hard against the regime of licensing. Disestablishment came only because of negotiation forced by the American Revolution. Unlike the loquacious Puritans, Virginian authorities did not write extensive treatises to explain their views concerning church and state. Neither were Virginian authorities forced to defend themselves in print against a verbose Roger Williams. Like good Anglicans, they took their cues from their superiors.
Establishment did not, however, do much to increase the number of Anglican ministers (and, by implication, Anglicans) in Virginia elsewhere. In 1671, there were only 30 Anglican ministers between in Virginia and Maryland, another colony with Anglican establishment. By 1700, the Church of England had managed only to double that number, with just twenty clerics operating outside of Maryland or Virginia. Nevertheless, Virginia enjoyed a degree of religious uniformity in the 1730s comparable perhaps only to England under Henry VIII or to Reformation-era Geneva or Zurich. Given this fact, it is remarkable that New England’s persecution of dissenters is so much more well-known than Virginia’s.
Ironically, Virginia’s legacy became not its actual vigorous persecution of dissenters but the landmark work of James Madison and Thomas Jefferson for religious liberty. The reason that Madison and Jefferson pushed so vigorously for religious freedom in their home state was because Virginia was so intolerant of those dissenting from the Church of England. Indeed, Jefferson himself considered Virginia equal to New England in its poor treatment of dissenters. He wrote in Notes on the State of Virginia that whatever prevented Virginia’s leaders from executing dissenters, it was only due to “historical circumstances which have not been handed down to us.”
Conclusion: Free Exercise and Establishment
By modern standards, “free exercise” for many believers in colonial America was quite limited. All but four colonies (Pennsylvania, Delaware, New Jersey, and Rhode Island) had an established church that was either Anglican or Congregational – though many Anglican establishments were admittedly not that robust. Even in the wake of the 1689 Act of Toleration, many ministers and congregants were obliged to oaths of allegiance or supremacy, subscription to some variation of doctrinal confession, registration of meeting houses, conducting services without privacy, or securing licenses or permits. Such was the lot of the nonconformist or dissenter under an established church. Those not part of established churches came to enjoy only liberty to be left alone.
Though dissenters failed to repeal the Test and Corporation Acts in the 1730s, they still enjoyed what the era defined as liberty of conscience: unimpeded public worship. Such liberty in no way meant a “separation of church and state” suggested first by Williams, then Jefferson, then made a legal principle by Justice Black in Everson v. Board of Education (1947). No one at the time thought or spoke in such terms. Even the various “walls” prescribed by Williams, Jefferson, and Black are not the same.
While it has been rightly said that Protestantism defined America, it can also be said that the experience of America defined its Protestants. Confessions and doctrinal statements of early Protestant Christendom did not shape America as much as America shaped them. The Thirty-Nine Articles adopted by the American Episcopal Church in 1801 rejected the Erastianism of its 1571 predecessor. Chapter 23 of the Westminster Confession of 1646 was modified for American churches in 1788. The new version removed the confession’s previous charge to the magistrate to suppress blasphemies, heresies, corruptions, or abuses, and the magistrate was instead to give no “preference to any denomination of Christians above the rest.” Confessional traditions were no longer compelling assertions about divine truths; they became instead voluntary professions of one’s own belief.
Glenn Moots is Professor of Political Science and Philosophy at Northwood University. He is co-editor of Justifying Revolution: Law, Virtue, and Violence in the American War of Independence and author of Politics Reformed: The Anglo-American Legacy of Covenant Theology in addition to various journal articles, book reviews, and occasional essays. This essay is an adaptation of “Religious Exercise and Establishment in Early America,” first published in The Cambridge Companion to the First Amendment and Religious Liberty, edited by Michael D. Breidenbach and Owen Anderson, Copyright © 2020 Cambridge University Press.