Church and State in the U.S. Legal History: The Disestablishment Period (1776-1834)

Matthew Mullaney & Howard Bromberg. New Catholic Encyclopedia Supplement 2010. Editor: Robert L Fastiggi. Volume 1. Detroit: Gale, 2010.

By the time the American Revolution began in 1775, physical persecution of religious dissenters had ended, and a measure of toleration existed. Yet ten of the original thirteen colonies—the exceptions were Rhode Island, Pennsylvania, and Delaware—continued to prefer and support one religion over all others. The church that by law enjoyed that status was called the established church, or establishment, of that state. The erosion of the preferential position of the established church is traced from the Revolution to the mid-nineteenth century when, for the first time in world history, church and state were completely divorced.

No Federal Establishment


There has never been a federally established church in America. In the Articles of Confederation(ratified in 1781), there is only one reference to religion. Each state is guaranteed the assistance of its sister states if attacked “on account of religion.” The articles only maintained the status quo.

When the Constitutional Convention met in Philadelphia in 1787, the practical needs of the situation as much as the political and philosophical theories of the day demanded that only timid reference, if any, be made to religion. By 1789, the states were on their way to religious freedom. To interfere with this current by establishing a federal church would have jeopardized the new Union. The New England colonies generally supported a Congregational Church, while the Middle Atlantic and southern colonies maintained Episcopal establishments. Even if the founding fathers had not believed in separation of church and state, which church was to be established? The only way Episcopal and congregational churches could federate with Presbyterians, Baptists, and smaller groups was on a basis of church-state separation. Article 6 of the U.S. Constitution (ratified in 1788), proscribing a religious test of office, was the offspring of this innocuous neutralism. European political states traditionally required their officers to follow the state religion. The American colonies were no exceptions. Almost all of them enacted some religious prerequisite to holding public office. Even though the new states had not yet effected disestablishment at home, they included Article 6 in the proposed Constitution. It read: “No religious test shall ever be required as a qualification to any office or public trust under the United States.”

In the state conventions called to ratify the Constitution, a desire for even stronger guarantees of religious liberty was voiced by the delegates. Whether a state still retained its own establishment or not, its delegates announced the tenor of the times: the federal government, if only to preclude encroachment on the privileges of the state establishment, should not establish a federal religion. The federal government was not to be antagonistic to religion, but was rather to remain impartial in that matter and to attend to its civil business.

Responding to this public sentiment, the First Congress drafted a Bill of Rights, ratified by the states in 1791, which in part declared negatively that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Both Article 6 and the religious guarantees of the First Amendment applied only to the federal government (Barron v. Mayor of Baltimore, 7 Peters 243 [1833]). It was easier to breach centuries of history and bar a federal religion where none yet existed than to dislodge existing establishments in the states. Thus the states of the Union that had not already done so were to spend the next half-century attaining this federal standard of church-state relationship.

Reasons for Disestablishment


The states granted religious freedom of their own volition, since the federal government was without jurisdiction over a state’s internal affairs (Permoli v. New Orleans, 3 How. 589 [1845]). The disestablishment of state churches was the result of several factors: (1) The argument voiced by establishment proponents that religion and ultimately the state would die out without the continued support of the government was rebutted dramatically by the growth of religion in the free soil of Rhode Island and Pennsylvania; (2) with the ease resulting from their wealth and legally secured position, the established churches had become stagnant and stilted, had obtained few converts, and lacked a fervent congregation that would energetically oppose disestablishment; (3) as immigration to the New World increased and the dissenting churches gained more converts, the established groups became the political minority; and (4) the Bill of Rights, even though legally inapplicable to the states, added impetus to the disestablishment process by emphasizing individual liberties. Catholic agitation during this period, while unequivocal, should not be overemphasized. At the time of the Constitutional Convention, less than 2 percent of the churches in the United States were Catholic.

New England States


With the exception of Rhode Island, the New England states supported the Congregational Church and were more reluctant to disestablish than the states to the south.

Connecticut. Connecticut operated for more than forty years after the Revolution under the royal charter of 1662, which designated the state church as the Congregational Church. Disestablishment was not achieved until 1818, after a long and bitter politico-religious struggle. Here, as in Massachusetts, the established Congregational ministry had retained tremendous political, social, and economic influence long after the federal Constitution was ratified. With the Toleration Act of 1784, the first glimpse of disestablishment was visible. The act removed many disabilities, and established a “certificate” scheme whereby a dissenter was excused from contributing to the established church if he executed a paper declaring that he regularly attended a dissenting church. The dissenter might then pay his tax to his own church, but he was still required to support a religion.

The political agitation was intense. Congregational members had always aligned themselves with the Federalist Party. The dissenters joined the liberal Jeffersonian Republican Party. As in all the New England states, the Baptists, both for reasons of religious belief and practical advantage, pressed the cause of separation. In 1816 compulsory church attendance was repealed. In 1817 Oliver Wolcott Jr. (1760-1833), a liberal coalition candidate, won the gubernatorial election, ending a Congregational monopoly of that post. A constitutional convention was called for the following year. After recognizing the individual’s freedom to enjoy religious profession and worship, the new constitution declared that “no person shall be compelled to join or support, nor by law be classed with or associated to any congregation, church or religious association.” The Methodists secured a charter for Wesleyan University in 1831, and the disestablishment was completed.

Massachusetts. Though not as slow as Connecticut in adopting a state constitution, Massachusetts was slower in bringing about a financial disestablishment of the Congregational Church. The state constitution of 1780 contained an important and inclusive Declaration of Rights (Moehlman 1938, p. 40). But an abrupt and absolute break with the past was not conceivable, so the constitution went on to provide for the support of the Protestant ministry and for compulsory religious instruction. The proposed constitutional amendment of 1820 to overturn these vestiges of the establishment was defeated by nearly two to one. The end of the establishment did not come until 1833, when a comprehensive amendment to the constitution was ratified by an overwhelming vote (Moehlman 1938, p. 67).

New Hampshire. New Hampshire’s colonial attitude was akin to that of Massachusetts, since New Hampshire was a part of Massachusetts until 1679. The Bill of Rights of 1784 acknowledged the right of conscience, but permitted the towns of the state “to make adequate provision at their own expense, for the support and maintenance of public Protestant teachers of piety, religion, and morality.” Protection of the law was extended only to Christians (Moehlman 1938, p. 50). Legal status was granted to Baptists in 1804, to Universalists the following year, and to Methodists in 1807. The Toleration Act of 1819 retained the requisite that public teachers and public officials be Protestant, but it did abolish mandatory support for the establishment, thereby mollifying the dissenters. An amendment of 1877 decreed that “no person is disqualified to hold office by reason of his religious opinion.”

Rhode Island. From the beginning, Rhode Island guaranteed religious freedom to all its citizens. The success of Roger Williams' “Lively Experiment” was a constant rebuke to proponents of a union of church and state who argued that one would collapse without the other. For a time, a slight “blemish” appeared on Rhode Island’s record of religious freedom. In some printed editions of its charter, Roman Catholics were excluded from the “liberty to choose and be chosen officers in the Colony.” This restriction was foreign to the spirit of the colony, and both Joseph Thorning (1931) and Anson Stokes (1950) argue that it was inserted without legislative authorization, possibly as a result of a clerical error. It remained in the laws of Rhode Island until 1783. The constitution of 1842 guaranteed religious and civil liberties to all citizens (Moehlman 1938, p. 72).

Middle Atlantic States


Unlike New England, there was never a firmly entrenched establishment in any of the Middle Atlantic states, though New York and New Jersey did favor the Church of England.

New York. In the years preceding the Revolution, the general policy of the New York government was to favor the established Church of England as much as possible without severely alienating dissenters. By the first state constitution, enacted in 1777, the Act of Establishment of 1683 was repealed (Moehlman 1938, p. 48). “Religious profession and worship, without discrimination,” were assured to all citizens. No religious test was prescribed for any state officer, with the exception that ministers of the Gospel were denied the right to hold public office. Quakers were allowed to affirm an oath rather than swear to it, and they were permitted to substitute a money payment for military service. The first constitutional revision in 1821 did little to change the clauses regarding religion. The disability of public office was removed from the ministry in the amendment of 1846. In New York, the disestablished church was guaranteed at all times continuous possession of lands granted during the establishment period, a reversal of the Virginia precedent.

New Jersey. Close political ties with liberal New York, plus the mild and tolerant spirit of the Quakers in the state legislature, leavened the whole course of New Jersey’s attainment of religious freedom. The state’s first constitution, adopted two days before the Declaration of Independence was announced in 1776, exempted all persons from mandatory attendance at religious services and the obligation of maintaining a church or ministry. Only Protestants, however, “were capable of being elected into any office of profit or trust, or being a member of either branch of the Legislature” (Moehlman 1938, p. 48). This situation continued until 1844, when a new constitution was enacted, granting civil liberties equally to all the citizenry (Moehlman 1938, p. 72).

Pennsylvania. Under the enlightened William PENN, Pennsylvania grew without an establishment. His Charter of Liberties and Privileges, granted in 1701, guaranteed freedom of worship to all theists and the right to hold office to all Christians. This liberal bent was continued in the Pennsylvania constitution of 1776, but the religious test of office found in the charter was retained. Before being seated, each member of the house of representatives was required to attest, “I do believe in one God, the creator and governor of the universe, the rewarder of the good and punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be by Divine inspiration.” This admitted Roman Catholics to full rights and was in this respect more liberal than contemporaneous constitutions of Pennsylvania’s sister states. The reference to the New Testament was, of course, distasteful to the Jewish community in Philadelphia, and in 1783 they petitioned that it be dropped. This was done in 1790, but the test of belief in God was retained.

Delaware. Delaware gained independence from Pennsylvania in 1701, and taking its lead from its parent state, it never had an established church. Religious freedom, therefore, was always the rule; complete civil freedom was not so immediate. In its constitution of 1776, Delaware, like Pennsylvania, required an oath of all elected officials to provide that the state should be governed by orthodox Christians (Moehlman 1938, p. 52). Unlike Pennsylvania, however, Delaware abolished any religious test of office in 1792, completely separating the state from religion.

The South


All the southern states established the Church of England. The contrast between the conduct of Virginia and that of South Carolina during the Revolution is notable.

Maryland. The position of Roman Catholics in Maryland at the time of the Revolution was more secure than in the other colonies because of the strong Catholic influence in the early years of the colony and the weak position of the Maryland establishment, the Anglican Church.

The declaration of rights adopted as part of its new constitution of 1776 recognized that “all persons, professing the Christian religion are equally entitled to protection of their religious liberty.” The Quakers, Dunkers, and Mennonites, opposed to taking judicial oaths, were allowed “to affirm” and were “admitted as witnesses in all criminal cases not capital.” This was extended to capital cases in 1798. Charles Carroll (1737-1832) of Carrollton, the Catholic patriot, was one of those voting in favor of the article authorizing the state legislature to “lay a general and equal tax, for the support of the Christian religion.” Finally, a “declaration of a belief in the Christian religion” was required by the constitution for admission to any office of trust or profit (Moehlman 1938, p. 41). The Jew and the freethinker were still under disabilities. There were only a few Jews in the state, and the legislature did not act to remove the restriction until 1826. The religious test of office, which has since been struck down by the U.S. Supreme Court in Torcaso v. Watkins, 367 U.S. 488 (1961), was then unacceptable only to a small number of agnostics and atheists, since a declaration of belief in the existence of God was still necessary.

Virginia. Thomas Jefferson (1743-1826), James Madison (1751-1836), George Mason (1725-1792), the Baptists, and the Presbyterians united to disestablish the conservative Episcopalian Church of Virginia and to light the path to religious freedom in the United States. Virginia’s Declaration of Rights, passed three weeks before the Declaration of Independence, and the Bill for Establishing Religious Freedom combined to assure members of all faiths complete religious and civil liberties by 1785. This influenced immeasurably the course of the federal and sister states’ governments.

North Carolina. The Carolina Charter of 1663 specially recognized the Church of England, but it provided for a measure of toleration so long as nonconformity did not interfere with the civil authority. North Carolina was second only to Virginia in adopting a constitution guaranteeing complete religious freedom (Moehlman 1938, p. 44). The constitution restricted public office to those acknowledging “the being of God [and] the truth of the Protestant religion [and] the divine authority of the Old and New Testament,” thereby excluding Roman Catholics and Jews. Clergymen were not permitted to hold office.

In 1835 at Raleigh, the word Protestant was changed to Christian in deference to Roman Catholics. In fact, however, the Protestant requirement had not been enforced, for Thomas Burke (c. 1747-1783), who became governor in 1781, and William Gaston (1778-1844), who was appointed to the North Carolina Supreme Court in 1833, were both Catholics. The Jewish disability was enforced, for there was little pressure to remove the bar since most of the Jewish population in the United States was found in the large cities to the north. The constitution of 1868 removed this last restriction to total religious freedom (Moehlman 1938, p. 108).

South Carolina. South Carolina had established the Anglican Church. By the constitution of 1778, all theists were “freely tolerated,” but that document further declared that “the Christian Protestant religion shall be deemed, and is hereby constituted … the established religion of this State.” Despite the existence of a preferred religion, the dissenters’ onerous task of supporting an establishment was removed. Only Protestants could hold public office, but any religious society holding property was permitted to retain it. This law was very beneficial to the Anglican Church, the prior establishment, since it had been the recipient of much official largesse.

The state exercised a Connecticut-like control over religious activities. The election of a pastor or clergyman was prescribed by the constitution to be by majority vote of the congregation. The elected minister was further required to subscribe to a declaration anticipating his official and unofficial conduct during his tenure.

By the constitution of 1790, dissenters, previously only “tolerated,” were guaranteed the “free exercise and enjoyment of religious profession and worship, without discrimination or preference.” Roman Catholics and other non-Protestant groups were enfranchised. The document was a drastic departure from the narrowly Protestant constitution of twelve years earlier (Moehlman 1938, p. 45). By 1868, only those who denied the existence of a supreme being were ineligible to hold public office.

Georgia. The Georgia Charter of 1732, secured by James Oglethorpe (1696-1785), stipulated that all officeholders be Protestant, and “that all … persons, except papists, shall have a free exercise of religion.” The derogatory term papist was deleted in the constitution of 1777, and freedom of worship was extended to all citizens. As was frequently the case, the clergy were unable to hold office. There was no religious test for voting, but the Protestant prerequisite for membership in the state legislature was retained. The 1789 constitution removed all religious restrictions upon service in public office. Thus Georgia from early times was provided with religious freedom.

In conclusion, though the federal government was forbidden to establish a preferred religion, remnants of the state establishments existed well into the nineteenth century. Thereafter, for the first time in history, state and church were independent of each other. The pace of disestablishment is notable, but more notable is the historic result.