Establishment and Disestablishment at the Founding, Part I: Establishment of Religion
2003; Routledge; Volume: 44; Issue: 5 Linguagem: Inglês
ISSN
0043-5589
Autores Tópico(s)American Constitutional Law and Politics
ResumoINTRODUCTION I. THE LAWS CONSTITUTING AN ESTABLISHMENT A. Establishment in England B. Establishment in American Colonies 1. Virginia 2. New England 3. Other Southern Colonies 4. New York C. Elements of Establishment 1. Governmental Control Over Doctrines, Structure, and Personnel of State Church a. Doctrines and Liturgy b. Appointment of Bishops and Clergy 2. Mandatory Attendance at Religious Worship Services in State Church 3. Public Financial Support a. Land Grants b. Religious Taxes 4. Prohibition of Religious Worship in Other Dominations 5. Use of State Church for Civil Functions a. Social Welfare b. Education c. Marriages and Public Records d. Prosecution of Moral Offenses 6. Limitation of Political Participation to Members of State Church II. RATIONALES FOR THE ESTABLISHMENT A. Distinguishing Theological from Political Rationales B. Theoretical Justifications for English Establishment C. Post-Independence Justifications for American Establishments III. REFLECTIONS INTRODUCTION It has been so long--about 170 years--since any state in United States has had an established church that we have almost forgotten what it is. When words Congress shall make no law respecting an establishment of (1) were added to Constitution, virtually every American--and certainly every educated lawyer or statesman--knew from experience what those words meant. The Church of England was established by law in Great Britain, (2) nine of thirteen colonies had established churches on eve of Revolution, (3) and about half states continued to have some form of official religious establishment when First Amendment was adopted. (4) Other Americans had first-hand experience of establishment of religion on Continent--of Lutheran establishments of Germany and Scandinavia, Reformed establishment of Holland, or Gallican Catholic establishment of France. Establishment of religion was a familiar institution, and its pros and cons were hotly debated from Georgia to Maine. When Supreme Court began to decide cases involving claims about an establishment of religion in 1940s, (5) however, Justices made no serious attempt to canvass legal history of establishment--either in Europe, in American colonies, or in early American States--or to distinguish between First Amendment and various conflicts over establishment at state level. The Justices focused instead on one event in one State rejection of Patrick Henry's Assessment Bill in Virginia in 1785 and adoption of Thomas Jefferson's Bill for Establishing Religious Liberty--on assumption that the provisions of First Amendment ... had same objective and were intended to provide same protection against governmental intrusion on religious liberty as Virginia statute. (6) This truncated view of history made establishment question seem too easy. In Justices' account, a large proportion of early settlers of this country came here from Europe to escape bondage of laws that compelled them to support and attend government-favored churches, (7) and transplantation of established churches to these shores became so commonplace as to shock into a feeling of abhorrence, (8) leading directly to First Amendment. One would never know from Justices' careless description of history that no small number of freedom-loving colonials considered official sanction for religion natural and essential, that movement toward disestablishment was hotly contested by many patriotic and republican leaders, and that there were serious arguments--not mere feelings of abhorrence--on both sides of issue. …
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