The Rise and Fall of Religious Liberty in America
By C. M. S.
State Constitutions and Freedom of Conscience
From the birth of the colonies to the birth of the nation the consciences of men were struggling for freedom from the merciless grasp of a religious system made powerful and oppressive by its unholy wedlock with the secular power. The battle in each colony was waged for the same principle and against the same foe, and yet the result was achieved in a different way in each colony, and that difference manifested itself later in the constitutions of the different States, when statehood had been reached. Some of the men who labored for the recognition of the rights of conscience in the State constitutions carried on the same struggle for its recognition in the federal Constitution. Some of the State constitutions were adopted previous to the federal Constitution and some later. It can not be laid down, as a general proposition, therefore, that the federal Constitution drew its inspiration from the State constitutions or served entirely as their example. All these documents grew out of the same great struggle, which was going on in all the colonies at the same time. Nevertheless, it can not be denied that the Declaration of Independence planted germinant truths which did bloom into constitutions, both State and federal. Concerning this document, Mr. A. T. Innes, in his work entitled “Religious Liberty,” says:— On 4th July, 1776, their representatives met in Congress, and prefixed to their Declaration of Independence a statement of principles such as had hitherto been found only in the works of thinkers, theorists, and men under persecution: “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; and that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”
In all the State constitutions those principles are found differently expressed, but practically identical, and plainly indicative of common origin. The doctrine of the equality of man, if adhered to, was certain to develop into religious liberty; for two men can not be equal if one has a right to dictate the religious obligations and practises of the other, or formulate a declaration of belief to which the other must subscribe. But even with the adoption of that great principle as the guiding star of the new nation, that grander liberty—the liberty of mind and soul—did not receive recognition in the individual State constitutions without individual State struggles. There has always been in this country an element that has stood for the doctrine of civil oversight of things religious and religious control of things civil—a paradox in statement and a Babel in action. That element contended as strongly against the separation of church and state as the Tories ever did against the separation of the colonies from the mother country. The Tories, however, have ceased to be, but that element has never ceased, and continues even to-day to agitate for a return to the principles that antagonized soul liberty in colonial days. Our federal Constitution, drafted in 1787, was declared by Mr. William E. Gladstone to be “the most wonderful work ever struck off at a given time by the brain and purpose of man.” That document, in the matter of the religious rights of mankind, speaks plainly in its declaration that “no religious test shall ever be required as a qualification to any office or public trust under the United States,” and also in its first amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In that first-quoted declaration the national government accepts the principle that every man has the right to choose for himself what religion he will profess, or whether he will profess any religion at all; while in the second the national government recognizes the principle that religion is a field into which human law can enter only to trespass. Against such trespass that amendment is a prohibition upon the national legislature, and must stand as a protest wherever State legislatures attempt the same thing. It can not prohibit them; but if the violation of that principle is iniquitous in the nation, it is equally iniquitous in the component parts of the nation, the individual States. There was much discussion and much diversity of opinion among the national representatives who drew up the federal Constitution; and if we are to judge the state of the public mind upon the question of freedom of conscience by the diversity of sentiments expressed in the State constitutions adopted about that time, it is nothing less than a marvel that the national Constitution should speak so clearly, truly, and unequivocally upon that matter. It is in the constitution of South Carolina, adopted in the year 1778, that we find the greatest divergence from the federal Constitution upon the principles of religious liberty. The constitution adopted by that State in 1776, unlike the others adopted that year, said nothing upon the matter of religion; but the one adopted two years later more than made up for that lack. It did for that State what the federal Constitution prohibited the nation from doing—it established the “Christian Protestant religion” as the religion of that State. Article XXXVIII of the constitution of 1778 reads, in part:— That all persons and religious societies who acknowledge that there is one God, and a future of rewards and punishments, and that God is publicly to be worshiped, shall be freely tolerated. The Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State. That all denominations of Christian Protestants in this State, demeaning themselves peaceably and faithfully, shall enjoy equal religious and civil privileges.
The framers of that constitution considered only Christians—and Christians of the Protestant type—as possessing any rights, civil or religious, within the bounds of that State. It is worthy of note also that this constitution says nothing in reference to the equal rights of man. It was consistent in this silence, if religion were to be established by law in that State; for the equality of man and an established church can not exist in the same territory at the same time. The constitution of 1778 not only established the Christian religion as the religion of South Carolina, but it prescribed a creed which must be signed by every denomination of Christians before those denominations could be considered as legal religions within that State. Following are the five tenets of that creed as they appeared in Article XXXVIII:— 1st. That there is one eternal God, and a future state of rewards and punishments.
2d. That God is publicly to be worshiped.
3d. That the Christian religion is the true religion.
4th. That the Holy Scriptures of the Old and New Testaments are of divine inspiration, and are the rule of faith and practise.
5th. That it is lawful and the duty of every man being thereunto called by those that govern, to bear witness to the truth It is an indication of progress toward the light that in the South Carolina constitution of 1790, Article XXXVIII of the previous constitution is repudiated, and in its place we read:— Article VIII, Section 1. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be5allowed within this State to all mankind: Provided, That the liberty of conscience thereby declared shall not be so construed as to excuse acts of licentiousness, or justify practises inconsistent with the peace or safety of this State.”
The constitution of 1865, Art. IX, Sec. 8, repeats the foregoing declaration. The constitution adopted in 1868 changes the form of expression, but makes it no less emphatic: “No person shall be deprived of the right to worship God according to the dictates of his own conscience.”—Art. I, Sec. 9. Section 10 of Article I seems to take direct issue with Article XXXVIII of the constitution of 1778. Whereas the latter establishes the “Protestant Christian religion” as the religion of that State, Section 10, Article I, of the constitution of 1868 says this:— No form of religion shall be established by law; but it shall be the duty of the general assembly to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of worship.
This was a great advance from the position taken in 1778, establishing one form of the Christian religion as the religion of the State, and outlawing all who professed anything else or nothing; and though this constitution makes no declaration in reference to the equality of men, the recognition of that principle is seen in the instrument itself, and it furnishes a striking illustration of how the doctrine of soul freedom was gaining ground among the people.