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Church and State in Seventeenth and Eighteenth Century America

Published online by Cambridge University Press:  24 April 2015

Thomas J. Curry
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Extract

The history of Church-State relations in seventeenth and eighteenth century America is the account of the process by which the arguments of those who asked for exemptions from contemporary Church-State practices became the accepted norms for society at large.

There is an essential distinction, however, between the demand for exemptions in that period and modern claims for exemptions on account of religion. In our time, religious people ask for exemptions from laws that society generally sees as inherently secular; and they generally ask for exemptions for themselves or their group, but do not specifically attack the laws and usually have little difficulty with others being bound by them. In the seventeenth and eighteenth centuries, laws such as proclamations of days of prayer and fasting, or laws for the financial support of clergy, were essentially religious in nature but were passed for the secular purpose of bolstering the moral fabric of society. Moreover, although those opposing them were often willing to settle for exemptions only for themselves, they usually attacked the legislation as bad for society, as a violation of religious liberty.

Type
Georgetown Symposium on Church and State and Society and Law Colloquium
Information
Journal of Law and Religion , Volume 7 , Issue 2 , 1989 , pp. 261 - 273
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1989

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References

1. Other items, such as sabbath legislation or conscientious objection to fighting wars, became on occasion a hazard for some individuals and groups. However, these subjects never became the subject of widespread dissent or discussion on Church-State matters, nor did they contribute to the clarification of what Americans meant by religious freedom. See, for instance, Rogers, J., An Answer to a Book Entitled, the Lords Day (Boston 1721)Google Scholar; Bolles, J. and Williams, A., The Rogerines (1904)Google Scholar; McLoughlin, W., 1 New England Dissent 1630-1833, 249–52 (1972)Google Scholar; Stokes, A. Phelps, 1 Church and State in the United States 757 (1950)Google Scholar.

2. Williams, R., The Complete Works, 1:108, 4:169 (1963)Google Scholar.

3. Cotton, J., The Bloody Tenent Washed, 51, 69 (London 1647)Google Scholar.

4. 1 The Debates and Proceedings of the Congress of the United States [Annals of Congress]) 914–15 (Gales, J., ed., Washington, D.C. 1834)Google Scholar 1 Documents of American History, 131 (Commager, H., ed., 9th ed., 1973)Google Scholar.

5. The first Flag Salute Case offers an echo of the problem Cotton posed for Williams. In 1940, Justice Felix Frankfurter wrote the decision for the Supreme Court refusing school children the right to be exempt from the requirement to salute the flag in public schools. Far more than three centuries separated the thinking of John Cotton and Felix Frankfurter, but in arguing that to grant an exception to a law whose only purpose was the inculcation of attitude and belief would be to open the possibility of dissolving the bonds of society, Frankfurter was translating into secular terms Cotton's argument that if government could not promote the symbolic religious values of the First Table, neither could it sustain the more tangible moral values of the Second Table. Minersville School District v. Gobitis, 310 U.S. 586 (1940)Google Scholar.

6. An Act Exempting their Majesty's Protestant Subjects, dissenting from the Church of England from the Penalties of Certain Laws, 1 William & Mary Coll. 8Google Scholar. 6 Statutes of the Realm 74–77 (London 1810–1828)Google Scholar.

7. For examples of dissent against the broadening of religious freedom, see Curry, T., The First Freedoms: Church and State in America to the Passage of the First Amendment 195–96 (1986)Google Scholar.

8. 1 Records of the Colony of Rhode Island and Providence Plantations in New England 1632-1792, 287 (Bartlett, J., ed., Providence 1856–1865)Google Scholar; Winthrop, J., 1 The History of New England from 1630-1649, 144, 288 (Savage, J., ed., Boston, 1825; reprint, 1972)Google Scholar; W. McLoughlin, 1 New England Dissent, supra note 1, at 116-19.

9. Thorpe, F., 5 The Federal and State Constitutions 3036–44 (1909)Google Scholar.

10. W. McLoughlin, 1 New England Dissent, supra note 1, is the most comprehensive account of the growth of the Separate Baptists, although his focus is the New England states. Bushman, R., From Puritan To Yankee: Character and the Social Order in Connecticut, 1690-1765 (1967)Google Scholar also provides an excellent account of developments in Connecticut; Religious Petitions Presented to the General Assembly of Virginia, 1774–1802 (Virginia State Library: Microfilm, 2 vols.)Google Scholar.

11. W. McLoughlin, 1 New England Dissent, supra note 1, at 603.

12. James, C., Documentary History of the Struggle for Religious Liberty in Virginia 229–31 (1900; reprint 1971)Google Scholar, for attitude of Virginia Presbyterians; On Maryland, see T. Curry, First Freedoms, supra note 7, at 156-57.

13. 1 Annals of Congress, supra note 4, at 914-15

14. Leland, J., The Writings of John Leland 19–29 (Greene, L., ed., New York, 1845; reprint, 1969), 19–29Google Scholar.

15. W. McLoughlin, 2 New England Dissent, supra note 7, at 717; Backus, I., The Liberal Support of Gospel Ministers (Boston, 1790)Google Scholar; Backus, I., 2 A History of New England with Particular Reference to the Baptists 346 (Weston, D., ed., (1871; reprint 1969)Google Scholar.

16. 330 U.S. 1 (1947).

17. T. Curry, First Freedoms, supra note 7, at 208-10.

18. 330 U.S. 1, 28 (1947) (Rutledge, J., dissenting).

19. 472 U.S. 38, 91 (1985) (Rehnquist, J., dissenting).

20. Levy, L., No Establishment of Religion: The Original Understanding, in Judgments: Essays on American Constitutional History 173 (1972)Google Scholar, and Levy, , The Original Meaning of the Establishment Clause, in Religion and the State. Essays In Honor of Leo Pfeffer (Wood, J. Jr., ed. 1985)Google Scholar, provide the best historical overview in support of the Everson interpretation. Antieau, C., A. Downey, and E. Roberts, Freedom from Federal Establishment. Formation and Early History of the First Amendment Religion Clauses (1964)Google Scholar, provides the most comprehensive collection of the evidence used to critique the decision. Levy, L., The Establishment Clause: Religion and the First Amendment, (1986)Google Scholar, Cord, R., Separation of Church and State (1982)Google Scholar, and Bradley, G., Church-State Relationships in America (1987)Google Scholar are examples of continuing historical controversy.

21. Neuhaus, R., The Naked Public Square: Religion and Democracy in America (1984)Google Scholar.