By Steven K. Green
Steven K. Green is Fred H. Paulus Professor of Law and Affiliated Professor of History and Religious Studies at Willamette University in Oregon, where he teaches courses in Constitutional Law, First Amendment, Legal History, Jurisprudence, Education Law and Criminal Law in the College of Law, and Legal History and American Religious History. He also directs the interdisciplinary Center for Religion, Law and Democracy, one of Willamette’s Centers of Excellence.
From 1992-2001, Green served as legal director at Americans United. He is the author of several books on church-state relations. Church & State is pleased to print this except from his latest book, Separating Church and State: A History. The book is available through book stores, online sellers and through Cornell University Press’ website: www.cornellpress.cornell.edu/.
Reprinted from Separating Church and State: A History, by Steven K. Green. Copyright (c) 2022 by Cornell University. Used by permission of the publisher, Cornell University Press.
In 1779, two proposed bills reignited a debate over disestablishment in the Virginia Assembly. First, Thomas Jefferson introduced his Bill for Establishing Religious Freedom, which provided that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever,” then adding that “no one shall be enforced, restrained, molested, or burdened in his body of goods, nor shall otherwise suffer on account of his religious opinions of belief.” This language would have made support of religion completely voluntary, ending Virginia’s religious establishment and preventing even a nonpreferential system.
Because a battle over disestablishment would have divided Virginians at a time of war, Jefferson’s bill was tabled, leading him to remark later that despite his effort to make “protection of opinion … universal,” the bill “still met with opposition.”
Later that year, supporters of the Anglican Church introduced an Act Concerning Religion, based on article 33 of the South Carolina Constitution, declaring that the “Christian Religion shall in all times coming be deemed, and held to be the established Religion of this Commonwealth.” As in South Carolina, the bill would have recognized only those denominations that followed five articles of faith and obtained an incorporation. But unlike South Carolina’s paper establishment, the bill included an assessment to pay for Christian (Protestant) ministers. Even though this latter bill had greater support, it, too, was tabled for the remainder of the war.
At the conclusion of the Revolution, people petitioned the assembly to clarify the status of Virginia’s religious establishment, with some proposing a “general and equal contribution for the support of the clergy.” Anglican clergy – having reorganized their church into the Protestant Episcopal Church – were desperate for financial support and, with their conservative vestry, railed against the decline in public morals since the advent of the war.
In October 1784, Patrick Henry introduced a modified version of the 1779 assessment bill to “pay a moderate tax or contribution annually” for the support of the Christian religion. In order to garner wider support, Henry and his allies had the bill recast as Establishing a Provision for Teachers of the Christian Religion and included a provision to allow taxpayers to designate the Christian denomination to receive their tax or to allocate nondesignated funds to “seminaries of learning.” Henry’s bill also omitted the earlier reference to creating an establishment, likely reflecting discomfort with the term or the belief that a nonexclusive assessment did not constitute a “religious establishment.” (At the same time, supporters of the Episcopal Church secured a law for incorporating the church, thus allowing it to retain title to its property, buildings, and glebe lands.)
Initially, the general assessment bill had widespread support, with Presbyterian leaders reversing their earlier opposition to a religious tax, “seduced by the prospect of state support.” After a preliminary version passed the House by a vote of 47-32, James Madison secured the bill’s postponement so he and other assessment opponents could mount a petition drive. (Madison also supported Henry’s election as governor in order to remove his rival from the assembly.)
During the delay, Madison wrote his famous Memorial and Remonstrance to rally support for the petitions. The Memorial raised fifteen arguments against religious establishments, making three essential points. The first was jurisdictional – a term Madison actually used – affirming that religious and civil entities operated in separate spheres and exercised distinct authority. “[I]n matters of religion,” Madison wrote, “no man’s right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance.” Henry’s bill falsely implied that “the Civil Magistrate is a competent Judge of Religious Truth, or that he may employ Religion as an engine of Civil policy.” The first proposition, Madison insisted, was “an arrogant pretension,” while the second was “an unhallowed perversion of the means of salvation.” “If Religion be not within the cognizance of the Civil Government,” he asked rhetorically, “how can its legal establishment be necessary to Civil Government?”
The second point was that religious establishments violated notions of religious equality and a society based on “equal conditions.” Here Madison did not distinguish between exclusive and multiple establishments; all forms of religious assessments violated rights of conscience and constituted a religious establishment: “Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion to all other Sects?”
Madison’s third essential point was that religious establishments, rather than advancing Christian piety, harmed religion: they were “adverse to the diffusion of the light of Christianity.” Indeed, the “fruits” of legal establishments historically had led to “pride and indolence in the Clergy, ignorance and servility in the laity, [and] in both, superstition, bigotry and persecution.”
Although Madison did not call for separation of church and state in the Memorial, in his discussion about distinct realms of civil and religious authority, he analogized to the idea of separation of governmental powers, remarking that the “preservation of a free Government requires … that the metes and bounds which separate each department or power be invariably maintained.” Both matters – civil and religious authority – called for creating a “great Barrier which defends the rights of the people.” Maintaining a separation between the authority and functions of religion and civil government is a unifying theme in the Memorial; in the words of historian Donald Drakeman, the Memorial was “an eloquent call for strict separation between church and state.”
Madison’s Memorial was not the only memorial submitted against the assessment bill, but it helped turn public opinion against it. Opponents sent fifteen hundred petitions to the assembly, many signed by evangelicals – including Virginia Presbyterians who changed their position again – and the legislature permanently tabled Henry’s bill. Madison then took advantage of the bill’s demise to introduce Jefferson’s Bill for Establishing Religious Freedom, which passed overwhelmingly. So, in a period of ten years, Virginia went from maintaining the most entrenched religious establishment in the colonies to instituting full disestablishment, pausing only briefly to consider a nonexclusive establishment.
Editor’s Note: Most scholars agree that Madison’s experience in Virginia greatly influenced him as he fought for separation of church and state and religious freedom on the national stage. The two principles of Virginia’s religious freedom law – no establishment of religion and freedom of religion for all – are reflected in the first 16 words of the First Amendment: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof” – words that Madison played a key role in drafting.