In 1801, a group of Connecticut Baptists wrote the newly-elected President Thomas Jefferson hoping that he would affirm their religious liberty and oppose the Congregationalist church establishment in their state. These leaders of the Danbury Baptist Association asserted to Jefferson that “Our Sentiments are uniformly on the side of Religious Liberty… That no man ought to suffer in Name, person or effects on account of his religious Opinions.” Jefferson saw in the letter an opportunity to score political points, so he and his cabinet carefully crafted a reply. The result was his Letter to the Danbury Baptists, where Jefferson famously stated:
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State…
More than just affirming existing conceptions of religious liberty, Jefferson defined a “wall of separation” that would divide the operations of the Church and the State much more fully than American society had previously accepted.
For thinking about—and even adjudicating—the First Amendment, Jefferson’s letter has assumed outsized importance. In the mid-twentieth century, Jefferson’s phrase “wall of separation” became the dominant theory for understanding church-state issues. Jefferson’s wall became the controlling metaphor in Everson v. Board of Education (1947). In discussing the “establishment of religion,” the Court declared, “Neither a state nor the Federal Government… can pass laws which aid one religion, aid all religions, or prefer one religion over another.” After quoting Jefferson’s words, Justice Hugo Black asserted, “That wall must be kept high and impregnable. We could not approve the slightest breach.” This approach was reiterated in subsequent Supreme Court cases, such as McCollum v. Board of Education (1948), and laid the groundwork for contemporary Supreme Court jurisprudence on matters of church and state.
Should Jefferson’s metaphor carry such weight? A much more diverse set of interpretations of the First Amendment can be found in the history of the nineteenth century, which mark the need to appreciate a wider field for understanding the First Amendment than Jefferson’s “wall” metaphor allows.
Before proceeding, one caveat is in order. There was actually little discussion of the First Amendment by the Supreme Court in the nineteenth century. Not until 1845 were the Religion Clauses addressed in a Supreme Court decision (in Permoli, discussed below), but there the result was to assert that the First Amendment did not apply to the states. Ten more cases with religious themes occurred through the nineteenth century before significant application of the First Amendment to federal cases began. But, if religious liberty was not being adjudicated by the Supreme Court, that didn’t mean those issues were insignificant. These were debated at the state level. Thus, before the First Amendment came into play, the states themselves deserve significant attention. In state constitutions and legal practice, Americans worked for the end of preferences for specific denominations and instead for equal access among groups. On this topic, the recently-released volume Disestablishment and Religious Dissent: Church-State Relations in the New American States serves as an excellent guide.
Practicing Politics without a “Wall”
The outlooks of early Americans across the political spectrum differed strikingly from Jefferson’s proposed vision of a “wall of separation.” In a telling way, the early Baptists, Jefferson’s political allies, refused to endorse Jefferson’s view. Although the Danbury Baptists received Jefferson’s reply, they made no formal acknowledgment of it—a silence that suggests less than full agreement with Jefferson’s claims. The general Baptist outlook—as exemplified by John Leland—was to advocate for religious liberty—meaning no state establishment—while still desiring a great deal of Christian influence in the government and Christian recognition by the government.
If religious Democratic-Republicans refused to see a division between religious beliefs and political actions, there was even less of a perceived divide among Jefferson’s opponents, the Federalists. The Federalists claimed leaders with sterling revolutionary credentials such as John Adams, John Jay, Charles Cotesworth Pinckney, and Gouverneur Morris, men who possessed a justified sense of what the Constitution intended. As an integral part of their political culture, the Federalists advanced a vision of public religiosity, whereby the federal government was not indifferent to religious claims but could actively encourage religious practice among the citizens. In these endeavors, Federalists worked closely with ministers—like Timothy Dwight of Connecticut—who articulated the public good of religion. The Federalists and their allies believed that Christianity in particular helped to create the virtue needed for republican citizens. They therefore saw the First Amendment as legitimating non-sectarian religious activity by the federal government.
Strong religious strains continued in both major political parties throughout the antebellum period. An important part of Whig political culture was to shape both government and society according to Christian moral concerns. Moral reform would come about as Christian citizens used elements of government to shape society. This push was visible in many of the political reform movements of the era, such as opposition to Indian Removal, Sunday mail delivery, and slavery. At the same time, many Democrats continued a moralistic, Christian vision for the laws of society, and this sense appealed to the populist ethos of ordinary believers in the party. Although the denominations that tended to support each party differed—Episcopalians, Presbyterians, and Congregationalists for the Whigs; Baptists and Methodists for the Democrats—their moral visions actually grew closer together. Put together, they formed an unofficial Protestant establishment which channeled religious concerns into politics and which maintained the First Amendment, as long as no individual denomination received special privileges.
The Civil War touched off intense reflections on the nature of the Union and its relationship to Christianity. In the North, the Union was sacralized, as Christians rallied to defend it. Pastors and orators advanced a Christian vision of the Union, which filtered down to ordinary citizens. As the war dragged on, observers came to see it through the lens of forging a stronger Christian nation. With slavery ended and the Union restored, many in the North marched forward believing that Christianity was an integral part of both the American nation and its government.
In a marked contrast to such approaches, however, voices rose to challenge such Protestant nationalism. Some Democrats championed Jefferson’s approach, Freethinkers protested that this public Christianity oppressed their justifiable disbelief, and Mormons insisted that religious freedom accept their practice of plural marriage. The largest group to challenge such norms, however, were American Roman Catholics. Although Catholics had been in America since colonial days, they had largely worked out an accommodation with American republican sensibilities. That arrangement gave way as the numbers of Catholics grew, with the upsurge of immigration in the 1830s and 1840s, when many German and Irish Catholics emigrated to the U.S., and again after the Civil War. Catholic immigrants raised significant issues of church and state, such as whether Catholics could be independent republican citizens or whether the Catholic hierarchy of pope and bishops held such firm control over them that their voting habits would lead to Catholic control of the United States. The Vatican did not help perceptions, especially with the promulgation of the Syllabus of Errors by Pope Pius IX.
The distinctiveness of Catholics living in the republic was felt in battles over schooling. Protestant advocates of the public school movement (inspired by figures such as Horace Mann) asserted a universal respect for religious expression, but they did so in ways that were indifferent or actively hostile to Roman Catholic identity—preferring the King James Version of the Bible to the Roman Catholic Douay-Rheims translation, for example. Such an approach prompted American Catholic bishops to lead the way in forming their own “parochial” schools. The price for fostering such schools intended to maintain a separate identity was the loss of public support for them.
Debates about the place of Catholics within American political institutions and state funding grew after the Civil War. Popular concerns about Catholics inspired James G. Blaine of Maine to position himself for a run to the presidency with anti-Catholic legislation. Representative Blaine in 1875 proposed a constitutional amendment that would have applied the First Amendment to the states. It was clearly intended to prohibit Catholic institutions from receiving public funds. Blaine’s measure failed on a national level, but the idea was adopted by a number of states, leading to state “Blaine amendments.”
Constitutional disputes over Catholicism’s standing led to important court cases. In the years before the Civil War, Bernard Permoli served as a Catholic priest in New Orleans. Although New Orleans had passed a law prohibiting the public presentation of bodies for Catholic funeral services during an epidemic, Permoli nevertheless conducted a public funeral service. When fined, he took the case first to the Louisiana state courts and then to the Supreme Court, in Permoli v Municipality No. 1 of City of New Orleans (1845). In arguing against the ordinance, Permoli’s attorney argued that the law singled out significant Catholic religious observation and so should be overturned on the basis of religious liberty. “[I]f there be aught essentially characteristic of religious liberty, it is the exemption of ecclesiastical discipline… from secular control,” he argued. Just as faith and doctrine were beyond the power of government, so church discipline, which flowed from doctrine, should be protected. In the end, the Court dismissed the case because it related to state considerations of religion. The Court claimed to have no jurisdiction, as the First Amendment applied only to the federal government, leaving religious matters to the states.
At the end of the century, the Catholic Church’s public status via incorporation was challenged but protected in the case Bradfield v. Roberts (1899). Providence Hospital in the District of Columbia had contracted with the District to provide general hospital services while receiving District funds for caring for patients. Since this contract occurred in Washington, D.C., these funds would be federal funds. A Washington resident, Joseph Bradfield, objected because Providence Hospital was owned and operated by the Sisters of Charity, a Catholic religious order. The Court, in its 9-0 ruling, held that, by rules of incorporation, the hospital was not under the direction of the Sisters or of the Catholic Church, but under its own Board of Directors. With these conditions, the Court asserted, “Whether the individuals who compose the corporation under its charter happen to be all Roman Catholics, or all Methodists, or Presbyterians, or Unitarians, or members of any other religious organization, or of no organization at all, is of not the slightest consequence with reference to the laws of its incorporation, nor can the religious beliefs of the various incorporations be inquired into.” Thus, the Catholic Church found its public charters protected and its ability to operate in the United States confirmed.
The End of the Century
In the last decade of the nineteenth century, yet one more case involving the First Amendment came before the Supreme Court. The Church of the Holy Trinity, an Episcopal church in New York, sought to hire as their rector an Anglican priest and British national. The church was fined for violating a recently-passed law, the 1885 Alien Contract Labor Act, which prohibited American corporations for contracting with foreign nationals to come to the United States to perform “labor or service of any kind.” Did the statute apply to the church, seeking to bring in a new pastor? The court admitted that the language of the statute would seem to limit even the importation of Episcopal priests, but it still concluded that the legislative intent never foresaw the effect on ministers. The unanimous Court therefore discounted the letter of the law to apply the spirit of the law, in Church of the Holy Trinity v United States (1892).
In his commentary on the case, Justice Josiah Brewer reflected on the place of religion in the United States. Brewer asserted, “no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is historically true.” The court then launched into its own historical survey, paying attention to the many state constitutions as well as the culture of America to assert the universal endorsement of religious affirmation. These surveys culminated in two significant claims. First, “There is a universal language pervading them all, having one meaning; they affirm and reaffirm that this is a religious nation. …they are organic utterances; they speak the voice of the entire people.” Calling such declarations organic is significant for the way the court viewed the endorsement of religion as rooted in the basic nature of the Constitution. Even more stunning was the final specificity the court applied to this religiosity, when Brewer declared, “this is a Christian nation.” Brewer’s statement thus endorsed, at the end of the century, reading Christianity as integral to the nation.
With Justice Brewer, the United States had come a long way from Jefferson’s proposal for a “wall of separation.” While citizens knew of Jefferson’s metaphor, it was neither endorsed broadly nor practiced as Jefferson intended. At most, Americans desired a one-way wall that protected religious bodies from governmental interference but allowed religious influence for shaping policy and politics. This attitude explains why the religious issues that came up tended to touch on other issues, such as contracts or incorporation.
The nineteenth century suggests that a Jeffersonian “wall of separation” is not sufficient either to describe the First Amendment in the century after its drafting or as an interpreting metaphor for on-going jurisprudence. Instead, the experiences of the century offer alternative possibilities for understanding ways that free exercise can be protected that would not constitute an establishment. It also suggests that the government need not be neutral on the question of the public value of religion or the recognition of the religious motivations of its citizens.
Dr. Jonathan Den Hartog is Professor of History at Samford University in Birmingham, Alabama. He is the author of Patriotism and Piety: Federalist Politics and Religious Struggle in the New American Nation and the co-editor (with Carl Esbeck) of Disestablishment and Religious Dissent: Church-State Relations in the New American States, 1776-1833. This essay is an adaptation of “Church and State in the Nineteenth Century,” 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.