Religious Freedom in American Law

Lawyers should shun oversimplified stories and immerse themselves in the complicated history of our country's laws with respect to religious freedom.

By Katie McClendon


Origins matter.

Humanity has always believed this, which is why we have been telling origin stories for millennia. There are three kinds of origin stories: true origin stories, origin stories we believe but do not know to be true, and origin stories we tell that are primarily concerned with something other than truth.

Many stories about America’s origins—America the Christian nation, America the oppressors’ paradise, America the haven from persecution, America the rugged individualist frontier, America the perpetuator of European prejudice and violence—advance an ideology over the truth. These all contain a kernel of truth, but none of them capture the fullness of the complex and multifaceted reality of how America was born.

Lawyers and others who care about law should study the history of America and its laws because doing so helps us to move from the third category of origin stories—those told to advance an ideology or agenda—to the first—true origins that give us insight into a thing. The former kind is not necessarily wicked; many agendas are good, or at least well intentioned, and this kind of origin story often forms the basis for great art. But if we hope to learn from the past, it is better to change our views to fit the truth than to edit the truth to advance our views or ground our art because then we can learn what our blind spots are and change and grow.

Religion is probably the legal realm in which people most frequently refer to history. Constitutional litigators and amici point to history when they argue cases about the Establishment and Free Exercise Clauses to the Supreme Court, law office history abounds in the resulting opinions, and the ensuing debates over the results in those cases are often as much about history as they are about law. Is America a Christian nation with a heritage of legislative chaplains and school prayer and Sabbath-keeping that should be preserved, and whose founders would shudder at the degree to which secularism has taken over? Or was America founded by deists who may have used religion as a tool but who fundamentally rejected Christianity and its supernatural claims, and who sought to keep religion out of government and the public square? Both sides of this controversy point to selective accounts of America’s origins to support their cases, but careful selection of facts is a sure sign of an agenda-driven origin story. To see how the study of American legal history relates to religion might give us insight into where religion fits or should fit into America today, we should start with the full story.

The men and women who settled in colonial America came from countries with religious establishments. France and England both had strong establishments—the Gallican Catholic Church and the Church of England, respectively—that pressured people to conform, sometimes to the pointing of exiling or killing dissenters, but often just by making them second-class citizens. The Netherlands had a softer Calvinist establishment that, somewhat counterintuitively, welcomed Jews and others whose beliefs were far from the established faith, but rejected those whose beliefs were much closer but who rejected certain tenets of Calvinism like predestination.

Contrary to one popular story, not all those who colonized America were harried religious dissenters fleeing Old World establishments and persecution, seeking to set up a haven of privatized faith and freedom for all. Some colonists were certainly motivated to leave their homelands by a desire to practice their dissenting faiths freely, but others came as representatives of the established churches, seeking to expand their reach into the New World in the same way that the king sought to project his reign abroad. Establishmentarians and religious liberty seekers lived side by side in the American colonies. Indeed, Anglicanism dominated southern colonies like Virginia, just as it did England.

Furthermore, even those who came to the New World to escape oppressive religious establishments and freely practice their own faiths were not placing “coexist” bumpers stickers on their carriages. People really cared about getting religion right, and they wanted everyone to worship the right God in the right way.

For example, Puritans who dissented from the Church of England and founded colonies like Massachusetts Bay did not want religious liberty because they did not care about religion; on the contrary, they cared so much about purity of doctrine and practice that, when they got the chance, they established their own form of faith. Far from setting the stage for a secular state with privatized religious practice and a live and let live attitude, most of the early American colonies were places where people took religion very seriously, strived to get it right, and tried to convince others of their position, often resorting to establishing it in law to varying degrees. The American colonies had more religious liberty overall than the Old World countries, but they retained things like religious tests for public office, moral laws based on the Bible, public calls to prayer and thanksgiving, and more. Even things we would call secular today were religiously motivated for them. Constitutional safeguards like separation of powers and checks and balances were direct results of Christian beliefs about sin. Covenants like the Mayflower Compact were modeled directly on biblical covenants, with oaths made before God.

There were exceptions to this pattern, which we must consider as we round out this sketch of the beginnings of colonial American religion. Lord Baltimore, a member of the English aristocracy but a Roman Catholic, founded Maryland as an experiment in religious openness, with freedom for all kinds of Christians and toleration even for Jews and Muslims. This experiment ended when the colony was converted to an Anglican establishment, but it is an early example of broad religious toleration in America. New York began as a Dutch colony (New Amsterdam) that was Calvinist but embraced pluralism by theological design, and remained very open until it changed hands and became Anglican under the English. Rhode Island was founded specifically as a haven of religious liberty by the brilliant Roger Williams, who began life in England as an Anglican, then joined the dissenting Puritans, and then broke with them in New England when they were the established religion. Roger Williams’ charter for the Rhode Island colony singled out the formal disestablishment of religion for mention. The Quaker William Penn founded Pennsylvania as another experiment in religious pluralism and toleration, and it remained that way and continually attracted dissenters from all over the Old and New Worlds.

Eventually, most colonies-turned-states embraced religious establishment. As the Constitution was being drafted, including the First Amendment and its religion clauses, most states had established churches or faiths to one degree or another. That was the backdrop against which the framers declared that Congress could make no law respecting an establishment of religion, nor prohibiting the free exercise thereof. Only later, as America began to emphasize democratization and flattened out hierarchies in all areas of law and life, did states disestablish religion, with Massachusetts disestablishing as late as 1833.

When people tell origin stories about American religion, they seem to be trying to answer questions whose answers they think will be instructive as we wrestle with the place of religion in America today. What is the real America? Is America a place that takes religion seriously, that tries to get religion right, that wants to know who God is, and whether and how we should worship? Does America work best when people agree about ultimate things, or when there is a diversity of ideas up for discussion? Is America a place that respects people who are searching for answers, that gives people space to discern the truth for themselves without just going along with the ideas of the majority or the elite? Does America gently urge people toward the moral and religious truth with its laws and practices and institutions? Is America a place where religion takes a backseat to more immediate concerns like business and pleasure? Why do we care so much about religion anyways?

Setting aside oversimplified origin stories, we see that American religion is not an easy thing to untangle. America has embraced both religious establishment and religious freedom, and has taken both religion and genuine searching seriously. What does the true origin of American law and religion mean for us today? We can see a trajectory in American history that bends away from full-fledged religious establishment, but not necessarily away from public expressions of religion. We can see that the earliest Americans represented both the establishment and the dissenting sides of the religious world of the 17th Century, and that religion has continued to be both used as a tool for the powerful and embraced as a refuge for the vulnerable down to our day. We can see that religious conformity sometimes worked to build up communities and bind them together, and that religious pluralism sometimes spurred tolerance and charity among individuals. In short, we can see that religion in America has always been fraught with tension and contradiction and complexity.

This historical complexity has important implications for the modern legal approach to religion in America. Those who proclaim that we must have a robustly Christian government and public square because that is how the founders wanted it ignore the plain facts about the concerns of the colonists and the founding generation as they wrestled with the place of religion in society. Many (though not all) of them were Christians, but they hardly thought the issue was so cut and dry, and they did eventually disestablish religion. This does not of itself mean that calls for more public religion are wrong; it just shows that embracing that agenda is more of a departure from the American tradition than proponents admit.

On the other hand, those who declare that America is at its core a secular land where people should keep their religion to themselves ignore how carefully our forebears worked out their ideas about religion, how public their discussions were, and how thoroughly religion infused their best ideas about government. Religion in a pluralistic society is an incredibly complex issue, and particularly so in America, which has been pluralistic to some degree since its very beginnings and becomes more so every day.

We would do well to study American legal history if only to avoid reducing the subject to platitudes and prejudices. We do not study our origins to become slaves to the past, but we learn from our history to avoid slavish adherence to the present moment. Studying history gives us the context for understanding our present, and exposes our blind spots.

“Every age has its own outlook. It is specially good at seeing certain truths and specially liable to make certain mistakes… We may be sure that the characteristic blindness of [our time]—the blindness about which posterity will ask, ‘But how could they have thought that?’—lies where we have never suspected it.” (C.S. Lewis, Preface to Athanasius’ On the Incarnation).

We can see that our forebears were blind in their treatment of Native Americans, in their perpetuation of slavery, and in much else, but studying the past shows us that we stand in a tradition—one for which we sometimes must apologize, but one which also has much to teach us if we are humble enough to learn.


This article is a part of a March 2017 snapshot of the John Jay Institute's impact on law. Read more articles from the collection here.