May 12, 2020

History of the First Amendment and Religious Liberty in America

By Greg Martin

“No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” —Article VI, Section III of the U.S. Constitution

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” —Amendment I of the Bill of Rights

“Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” —President John Adams

The United States of America is unique among the nations of history for many reasons, but chiefly for its religious freedom stated in the U.S. Constitution, ratified in 1788, and the Bill of Rights, ratified in 1791. Even today you could say religious freedom is still a unique American value. Eighty percent of the world doesn’t acknowledge, tolerate, or champion this freedom like our country does. 

So, Why Is Religious Freedom So Important? And Why Is It in Our Constitution?

The answer to this important question goes back more than 500 years to the Protestant Reformation that began with Martin Luther on October 31, 1517. Without his 95 grievances and the beginning of the reformation of what he saw as a corrupt church, there probably would never be a republican form of government that we have and our founders established 250 years after Martin Luther. The Reformation was the lynch pen for bringing our world out of the Dark Ages and into the Age of Enlightenment. It was the lynch pen for religious freedom.

Our nation was the first nation to be founded separate from a church or sectarian religion. The mother country our founders left had the Church of England. That came about as a result of the Protestant Reformation and the Pope not annulling the marriage of King Henry VIII. At our founding, England had the Church of England. France had the Catholic Church. Russia had the Orthodox Church. Many Middle Eastern nations had Islam, as in the Islamic Republic of Iran. But our nation was founded with a pluralistic view of religion in general and Christianity in particular.

Our nation is the only government founded without the structure of a church, and yet religion in general and the Christian religion in particular imbued our founding. There were many sects of Christianity and even Judaism at our founding. Many have forgotten that colonies were founded with “state churches” like the Puritans in Massachusetts, the Quakers in Pennsylvania, the Congregationalists in Connecticut, and the Anglicans in Virginia and the Carolinas. But when the United States was formed with the ratification of the Constitution in 1788, there was to be no state church for the federal government. 

State churches were not officially off-limits until the 14th Amendment. The great separation of church and state that we talk about in America today doesn’t belong with Thomas Jefferson as much as it does with Abraham Lincoln and the clause that says no state law can supersede the U.S. Constitution. This was something that James Madison originally wanted in the Constitution but was overridden in 1787. Its absence explains why the state of Georgia was able to imprison Christian missionaries like Samuel Worcester in the 1830s for no other reason than living and ministering to the Cherokee people of Georgia.

States Were Not for Religious Freedom

Many are not aware that while some of the early settlers were seeking a greater expression of their religious freedom in the colonies, they were not originally for true religious freedom for all of those with whom they disagreed. Many of the early settlers were not for the Church of England or the Catholic Church, but they would nevertheless not tolerate a different view than their own.

The Puritans of Massachusetts hung from the trees in the Boston Commons the Quakers who did not conform.

Then there is Roger Williams, who was persecuted in the Massachusetts Bay Colony and was run out of the community for his Separatist Baptist views. He started the colony of Rhode Island and the First Baptist Church of America in 1638 on the basis of freedom of conscience. He advocated for the separation of the church from the government. He saw the conversion of Constantine to Christianity, and all of the Roman Empire being forced to convert, as a horrible thing for the purity of the Gospel. 

If you ever wonder why Providence, Rhode Island, is on the south side of the Woonasquatucket River, it’s because the religious Puritans in Massachusetts had the authority to chase and kill Roger Williams. But they were only given authority to the northern border of the river. The state of Massachusetts did not officially relieve itself of a “state church” until 1833.

The FBC of Charleston, South Carolina, was formed when the whole church left Kittery, Maine, to avoid persecution. Can you imagine a whole church moving hundreds of miles to get away from persecution in America?

Another example of our not-so-tolerant forefathers comes from Virginia. In 1705, it was against the law to be anything but an Anglican if one hoped to have any status in the colony. Virginia made it a crime to not have children baptized in the Anglican Church. There was a law that said if a person brought up in the Christian religion denied the existence of God, the Holy Trinity, disbelieved the divine authority of the Scriptures, or asserted there was more than one God or that Christianity was untrue, then that person was prohibited from holding office, including in the military. A second offense meant the stripping of the rights of guardianship to a child and three years in prison without bail.  

From 1760 to 1778, there were over 150 documented attacks on evangelical Christians. Rev. John Waller of Caroline County Virginia had an Anglican minister come up to him while he was preaching in his pulpit and jam the butt end of a horse whip in his mouth. He was then dragged out of the church where the local sheriff beat him bloody. He spent 113 days in jail for the crime of being a Baptist preacher. 

Others were put in jail and their congregants would come to hear them preach through the window of the jail. Often the jailers would urinate on these preachers as they tried to proclaim their message through the windows of the jail. One story is that jailers built a wall so preachers couldn’t see the congregants through the window. And yet an aspiring congregant raised a handkerchief over the wall to let the minister know they were ready to hear God’s message from their imprisoned preacher.

By the time you come to 1776, many of the revolutionary forefathers were skeptical of a state being too tied to a church. Yet they saw America as the “New Israel” of their time. Even Thomas Paine wrote of America with this analogy.  

People often think that “separation of church and state” is in one of the founding documents — the Declaration of Independence, the Articles of Confederation, the Constitution, or the Bill of Rights. It is in none of them. It was a phrase used in a letter by President Jefferson sent to the Danbury Baptists Association that was fearful he would harm their free exercise of religion in Connecticut soon after he was elected president. Jefferson was not known for his Christian faith. John Adams campaigned against Jefferson in the election of 1800 stating that the Virginian was an atheist. Jefferson assured the Baptists that he would leave them and all faiths to their conscience.

President George Washington gave similar assurances to the Jewish Synagogue of Rhode Island. Interestingly, Washington was the first head of state to recognize the Jews as a people whose freedoms were worth protecting. 

Washington said:

I rejoice in the opportunity of assuring you that I shall always retain a grateful remembrance of the cordial welcome I experienced in my visit to Newport, from all classes of Citizens. 

The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support. 

May the children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while everyone shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid. May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy.

Background of Religious Freedom

Religious freedom doesn’t come about without the foundation of influential people and events in Colonial America.

One of the first is the Great Awakening. Primarily this was led by men like George Whitefield, who was the most well known and traveled man of the 18th century. Over 80% of people in the colonies could recognize the cross-eyed preacher who traveled up and down the Atlantic seaboard from 1737 to 1770. He was the first celebrity in America. He spoke to 10 million people through his 18,000 sermons in Europe and America. 

Whitefield helped lay the cornerstone for the American cause by turning the establishment of religion upside down. He attacked the Church of England for its failure to emphasize that only God’s mercy kept a person from eternal damnation. He taught a sinful man must be “born again.” He emphasized personal responsibility before God. This was contrary to the teachings of the Church of England in the southern colonies and the Congregational churches in the northern colonies. As a result, Whitefield was often banned from the pulpits. 

In 1739, he preached in America’s largest city, Philadelphia, from the courthouse steps. Benjamin Franklin, sensing a great story, published numerous articles about the American celebrity. 

Franklin published Whitefield’s journals and sermons in his Pennsylvania Gazette. He enlisted 11 printers throughout the colonies to make them best sellers. Franklin also charged five times more than what he did for his own Poor Richard’s Almanac. The result was Whitefield became famous and Franklin became wealthy.

So powerful was Whitefield in America that even after his death in 1770, he was still inspiring his followers through his journals, sermons, and legacy. In 1775, General Benedict Arnold was preparing to lead his troops to Quebec to either enlist them in the colonial cause or simply conquer them. His chaplain was Samuel Spring. Rev. Spring suggested the troops go to Newburyport, Massachusetts, and visit the grave of the preacher George Whitefield before they headed north to Canada. They dug up his casket, broke it open, and removed from the skeleton Whitefield’s clerical collar and wristbands. Rev. Spring cut them up and distributed them to the troops for inspiration. This was only fitting in their minds since George Whitefield was so influential in laying the groundwork for the American cause and the triumph of religious liberty.

The legacy of George Whitefield is often forgotten by people today. But he laid the groundwork for going against the Church of England. This ultimately made it not too strange for the next generation to go against the state government. Whitefield inspired the common men, or “rabble,” as they were known, to respond to God and government in ways that were dictated by their conscience and not creeds. He died before 1776 and the Declaration of Independence. But our national freedom does not happen without the foundation laid by men like George Whitefield.

Perhaps no Christian founder of our nation influenced the politics of our nation more than Rev. Dr. John Witherspoon, a Presbyterian minister and president of Princeton. He was the only minister to sign the Declaration of Independence, but he had a tremendous influence on many of our nation’s earliest leaders — including the author of the Constitution and our fourth president, James Madison. Among his other students came 37 judges (three of whom became justices of the U.S. Supreme Court); 10 Cabinet officers; 12 members of the Continental Congress; 28 U.S. senators; and 49 U.S. congressmen.

The founding and settling of the Ohio Country after the Revolutionary War was done through an act of Congress in 1787 before the Constitution and the Bill of Rights were ever adopted or George Washington was ever elected as our first president. The Northwest Ordinance was adopted after the nation’s first lobbyist, Rev. Manasseh Cutler, lobbied for Congress to allow the land of five million acres to be settled for a price of $3.5 million to help pay the young nation’s war debt. The Northwest Ordinance allowed for freedom of religion, the necessity of public education, and the abolition of slavery in the new territory. The Northwest Ordinance stated: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

No discussion of how our country came to include the First Amendment is complete without being reminded of the most transformative congressional race in our nation’s history. It was the Virginia 5 race in 1789 between James Madison and James Monroe. It is the only congressional race that produced two future presidents. Both served in the Virginia House of Delegates. Monroe was a soldier in Washington’s army, having been wounded at Trenton. He was six feet tall and muscular. Madison still holds the record for the smallest president. He spent his time at Princeton in New Jersey around the time of the war. He was too sickly for the tidewater of Virginia.  

Monroe did not see the need for the Constitution and the power of the central government to tax. He suggested selling land in the West to pay the war debt. Taxation was unnecessary. Madison’s issue was to introduce the Bill of Rights and religious freedom. Who better to get it through the 1st Congress than the man who wrote the Constitution? He reminded the people that he shepherded the Virginia Statute for Religious Freedom through the House of Delegates in 1786.

Gov. Patrick Henry had the eight-county district “gerrymandered” against Madison in retaliation for Madison supporting the U.S. Constitution that did not include a bill of rights with religious freedom, among other rights. The popular governor supported Monroe because he too voted against ratifying the Constitution (the only resident to vote against it). The two candidates were civil and even traveled together to debate the issue of promoting a bill of rights in the 1st Congress. If Madison did not win, there probably would not have been a Bill of Rights adopted, and who knows if the country would have survived its infancy. Madison won by just 333 votes. Madison got the help from Baptist preacher like Elijah Craig, who is more famously known for his bourbon today than for his preaching. Elijah Craig and other dissenting Baptists had more influence on the First Amendment and religious freedom than we might presume.

To understand religious freedom in 1788, you have to examine at least two documents that laid this unique foundation. Both documents are from Virginia, the largest state at our nation’s founding. Virginia is the state that produced four of the nations first five presidents.

Virginia Documents

The first is the Virginia Statute for Religious Freedom. In 1777, Thomas Jefferson drafted it for the Virginia House of Delegates. It would not become law until 1786, when James Madison shepherded its passage. Interestingly, today when you visit the grave of Jefferson at Monticello, the headstone doesn’t mention the Louisiana Purchase or being president of the United States. It commemorates the Virginia Statute of Religious Freedom, his authorship of the Declaration of Independence, and the founding of UVA. 

The second document worth looking at is James Madison’s Memorial and Remonstrance Against Religious Assessments from 1785. Madison anonymously penned this essay, which helped galvanize opposition to the popular Gov. Patrick Henry’s bill for Christian education. This document is one of Madison’s most important contributions to the foundation of religious freedom. He opposed the bill and defeated it for several reasons.

Our founders were basically all religious and knew the value of religion. They just did not want forced religion or thought. I wonder what they would think of political correctness that we see today in society.

They saw the danger of an ecclesiastical order coupled with a state government. Jefferson went so far as to suggest that no minister could serve in public office. His view lost out on the national level and even in Virginia. But he praised the Tennessee Constitution because it forbade ministers from serving in public office. The was later challenged in the Supreme Court by Rev. Dr. Paul McDaniel.

Why is a discussion on the First Amendment and religious liberty important in America today?

Is there really a concern that religious liberty is being eroded in our society? Haven’t we survived with this freedom for 230 years? Surely there is no one who wants to impede people from expressing their religious beliefs in our country. Maybe that is the case in Indonesia, China, or Iran, but not in America.

There are at least four reasons a discussion on the First Amendment is critical today.

1.) We have repealed other amendments and sections of the U.S. Constitution. It could happen again. Did you know that we repealed the 18th Amendment with the 21st Amendment? Perhaps court rulings, laws, or even an amendment will be offered to limit religious liberty in our lifetime. Many people in the faith community believe that their freedom is under attack in America as never before. Many believe that this will be the issue over the next 25 to 50 years in our Republic.

Today there is talk of abandoning the Electoral College that our Constitution gave us. This effort could and is gaining ground. I think many progressives see the Electoral College like the progressives of the 20th Century did the 17th Amendment. The 17th Amendment replaced the provision of the Constitution that provided the U.S. Senate to be elected by the state legislators with a direct election of the people. 

I can see the Electoral College being swept out of favor one day. There has been talk of it with Tiden/Hayes, Nixon/Humphrey/Wallace, Bush/Gore, and Trump/Clinton elections, wherein the candidate with the popular vote lost to the candidate with the most electoral votes. If the Electoral College can be replaced, then why not the First Amendment? It could happen.

Recently, Beto O'Rourke was asked in a presidential debate: “Do you think religious institutions, like colleges, churches, charities — should they lose their tax-exempt status if they oppose same-sex marriage?” His answer was, “Yes! There can be no reward, no benefit, no tax break for anyone or any institution, any organization in America that denies the full human rights and full civil rights of every single one of us. And so as president, we’re going to make that a priority and we are going to stop those who are infringing upon the human rights of our fellow Americans.”

During the confirmation hearing of Judge Brett Kavanaugh, two senators questioned the judge’s fitness for the Supreme Court because of his membership in the Knight of Columbus, a long-established Catholic fraternal organization and charity. Is this going to be the new standard? Are we going to forbid a Christian, Jewish, or Muslim charity or school from receiving assistance because they follow a teaching that marriage is only between a man and woman or abortion is abhorrent to their historical theology? Are we going to shame those in the workplace or government that privately belong to a charity that holds a different view than the government’s? Are we going to allow the state to be the only purveyor of right and wrong in society? 

This could happen to the First Amendment. I believe it could be the struggle of the next generation.

2.) There is a ramification for nonprofits and churches if the First Amendment is tampered with in any way. Historically, they have been viewed like a foreign embassy or an Indian Reservation in our country. They have not been taxed because of their status in a free country.

For the most part, churches and nonprofits do good in society. If they had to pay property taxes and/or no longer allowed their donors to get exemptions for gifts, many nonprofits and churches would vanish. This is the goal of many who want to adjust the First Amendment. The end result will be that the state can provide those services and make people even more dependent on the government instead of free citizens. 

Think about how different our community would be without the massive amount of nonprofits. Think about how different our community would be if churches closed because the government saw a “revenue stream” from their offerings or merely their buildings and the property taxes they could bring into government coffers.

3.) There is a ramification for the individual whose conscience can’t approve what the state is requiring. I think of the nurse or doctor who can’t participate in an abortion in a public hospital. I think of a baker who can’t provide a cake for a gay wedding.

I fear for our First Amendment rights in the future. Not long ago the mayor of Houston subpoenaed the sermons of many local ministers because they spoke out against her ordinance surrounding homosexuality. When did it become okay for the government to have any say on what a minister says from a pulpit or anywhere else for that matter? I fear many sermons could be labeled “hate speech” by the government. 

Our great country was founded on the belief that in a pluralistic society people can have their religion or lack of religion based on the “dictates of their own conscience.” The very clause “freedom of religion” suggests various views and not one government-approved way of viewing issues. Government can’t and shouldn’t take up real estate in any American’s mind, thoughts, or words.

4.) Our Republic was built on religion and morals, yet we are more non-religious today than ever before. Seventy years ago, only 5% in America were not religious. Now it is 26%, up from 17% just 10 years ago. During our founding, only 1% were considered non-religious. Our founders were mainly Christian, Diest, or Universalist. They were at the very least moral and religious — hence President Adam’s famous quote that “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” How can our Constitution and Republic survive with a growing base of people who have no need for the First Amendment? If you are non-religious, why do you even care about the First Amendment? If you see religious people as people on the wrong side of history with same-sex marriage, transgender issues, and abortion, why would you not be for adjusting it as some have suggested?

But we must preserve our Constitution and our liberties. They are liberties given not by government or even the governed. They are our natural rights and liberties as the Declaration of Independence proclaimed.

Rev. William Smith spoke a prophetic word on June 23, 1775, in Philadelphia, the day General George Washington left to take command of the Continental Army. Reverend Smith said, “Religion and liberty must flourish or fall together in America. We pray that both may be perpetual." 

James Madison, the author of the Bill of Rights and the First Amendment, knew the value of religion in our society even though he was not necessarily a churchman. In 1786, he argued against Gov. Patrick Henry’s proposal to have the state government of Virginia support Christian teachers, but he stated the obvious: "Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe.”

In Washington’s Farewell Address, the first president stated that the nation needed religion and morality for the Republic to survive. This address was read by the nation for generations. It was distributed and memorized, not unlike how some of us memorized the Gettysburg Address of President Lincoln. The first president said, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens …Let us with caution indulge the supposition that morality can be maintained without religion." 

Even Thomas Paine, who was far from being religious or affiliated with a church, knew the value of religious freedom. In Common Sense, Paine wrote that "Europe, and not England, is the parent country of America. This new word hath been the asylum for the persecuted lovers of civil and religious liberty from every part of Europe. Hither they have fled, not from the tender embrace of the mother [England], but from the cruelty of the monster….We claim brotherhood with every European Christian.”

I cannot overstate how powerful and popular, influential and intoxicating Thomas Paine’s Common Sense was for the Patriot cause. His book is still the most read American book in our country per capita. Has there ever been a book written and read by as many as ¼ of our citizens? As George Washington was the sword of the Revolution, Thomas Paine was the pen of the Revolution. Religious freedom was of great importance to all of our nation’s founders.

The First Amendment is first in order and importance. The religious clause of the amendment comes before the freedom of speech, press, peaceful assembly, and petition the government. This too is significant for order and importance.

Perhaps Walter Williams said it best: “We must own up to the fact that laws and regulations alone cannot produce a civilized society. Morality is society’s first line of defense against uncivilized behavior. Religious teachings, one way of inculcating morality, have been under siege in our country for well over a half century.”

The Wrestle of Religion and Politics

Many politicians have struggled with and used religion for their political purposes. Madison questioned the constitutionality of chaplains in the Army. But he determined that the matter was “too low on the wall of separation” to worry about. 

Monroe allocated resources from the government for the Moravian Missionaries in Spring Place, Brainerd Mission, Ohio, and other places to try to convert the Native Indians to Western culture. He and others deemed it okay to use tax dollars in the efforts to deal with the Indians, even if they were being taught the gospel by Christian missionaries.

Andrew Jackson got into trouble with religion in the election of 1832. He was called upon by his opponent, Henry Clay, to call for a National Day of Prayer. Jackson did not see the authority of the Constitution given to him for that purpose and he refused. Clay used it against the sitting president in his campaign.

In 1863, a group of ministers in the North wanted to make the Constitution a more Christian document. They had several meetings in Xenia, Ohio, and Sparta, Illinois. Finally, on February 10, 1864, they met with President Lincoln and offered the following amendment to the constitution: “We, the people of the United States, humbly acknowledging Almighty God as the source of all authority and power in civil government, the Lord Jesus Christ, as the Ruler among the nations, and His revealed will as the supreme authority, in order to constitute a Christian government, and in order to form a more perfect union…” Lincoln was polite, but the matter went nowhere with the House Judiciary Committee. 

One of the things that was driving this conversation was the Constitution of the Confederate States. It stated in the Preamble: “We, the people of the Confederate States, each state acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity — invoking the favor and guidance of Almighty God — do ordain and establish this Constitution for the Confederate States of America.”

There was an effort in 1947 and 1954 to add to the Constitution the phrase “recognize authority of Jesus Christ.” It was defeated both times. The infidel, Robert Ingersoll, asked the right question for Americans: “How can you enforce people to believing in God?" 

Perhaps Presbyterian Minister Rev. Isaac Cornalison said it best when he stated that America was a "state without a church but not without religion.” Christianity is that religion of our history. Although as a nation we have left our first love with regard to religion.

I wouldn’t want to be under a government that did not acknowledge God — like Communism. Nor would I want to be under a government that had the wrong god — like the Islamic State. But we can never have a religion, even a Constantine form of Christianity, that forces some type of confession on our citizens.

It drives some liberals nuts to read in 1829 that the Supreme Court unanimously declared “this is a Christian nation." 

And yet some people of the Christian faith find the Treaty with the Barbary State of the early 1800s disheartening. The document stated that "America is not in any sense founded on the Christian Religion." 

Conclusion:

Religious freedom and liberty must always be protected and promoted in America. Perhaps now more than ever. The right to dissent, to think differently and even wrongly, is an American value worth fighting for. I hope you will join me in always defending those we disagree with, religiously and otherwise. God Bless America, and may we stay strong, free, and prosperous for ages to come.

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