The Rise and Fall of Religious Liberty in America
By C. M. S.
State Constitutions and Freedom of Conscience (Continued)
The first State to respond to the invitation of the Continental Congress in the matter of adopting a constitution was New Hampshire. The date of this, the first of the State constitutions, was Jan. 5, 1776, antedating the Declaration of Independence by five months. This constitution, however, said nothing in reference to freedom of conscience. It remained the supreme law of the State until June 2, 1784, when a new constitution was adopted. Articles II and III of this constitution speak of the natural rights of man. Article IV deals with one of these natural rights as follows:— Among the natural rights, some are in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the rights of conscience. Articles V and VI deal with the matter of religious liberty, and read as follows:— 5. Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience and reason; and no subject shall be hurt, molested, or restrained in his person, liberty, or estate for worshiping God, in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession; provided he doth not disturb the public peace, or disturb others in their religious worship. 6. As morality and piety, rightly grounded on evangelical principles, will give the best and greatest security to government, and will lay in the hearts of men the strongest obligations to due subjection; and as the knowledge of these is most likely to be propagated through a society by the institution of the public worship of the Deity, and of public instruction in morality and religion; therefore to promote those important purposes, the people of this State have a right to empower, and do hereby fully empower, the legislature to authorize from time to time the several towns, parishes, bodies-corporate, or religious societies within this State, to make adequate provision at their own expense for the support and maintenance of public Protestant teachers of piety, religion, and morality. . . . No subordination of any one sect or denomination to another shall ever be established by law. The above-quoted articles were an attempt to establish religious equality; but they did it for a portion of the people only—those of the Protestant persuasion. Article VI, while declaring that no denomination shall be subordinated to another, does specifically, in its own provision, subordinate the Catholic to the Protestant. More than that, the constitution declares, in so many words, that no man will be eligible to the presidency (governorship) of that State “unless he shall be of the Protestant religion.” Another constitution was adopted in 1792 (September 5), which embodied all the foregoing provisions, and added another which reads:— SECTION 29. Provided, nevertheless, That no person shall be capable of being elected a senator who is not of the Protestant religion, and seized of a freehold estate, etc. It is thus evident that it was the purpose of the framers of both constitutions that Protestant Christianity should be the dominant form of religion in New Hampshire, notwithstanding the declaration of that same constitution that no sect or denomination should be subordinate to another. In order of date the next constitution adopted was that of New Jersey,—July 2, 1776. While this constitution, by Article XVIII, seems to grant the utmost freedom of conscience, it is plainly shown by Article XIX that the freedom of conscience there guaranteed is the freedom of Protestant conscience only. The two articles read as follows:— 18. That no person shall ever, within this colony, be deprived of the inestimable privilege of worshiping Almighty God in a manner agreeable to the dictates of his own conscience; nor, under any pretense whatever, be compelled to attend any place of worship, contrary to his own faith and judgment; nor shall any person, within this colony, ever be obliged to pay tithes, taxes, or any other rates, for the purpose of building or repairing any other church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right, or has deliberately or voluntarily engaged himself to perform. 19. That there shall be no establishment of any one religious sect in this province, in preference to another; and that no Protestant inhabitant of this colony shall be denied the enjoyment of any civil right, merely on account of his religious principles; but that all persons professing a belief in the faith of any Protestant sect, who shall demean themselves peaceably under the government, as hereby established, shall be capable of being elected into any office of profit or trust, or being a member of either branch of the legislature, and shall fully and freely enjoy every privilege and immunity enjoyed by others their fellow subjects. This constitution remained in force until 1844, when a new constitution was adopted. By the time this new constitution was adopted, the people seemed to see the inconsistency of Article XIX of the previous constitution; and while Article XVIII of the older document became Article III of the new one, Article XIX was changed to read thus:— 4. There shall be no establishment of one religious sect in preference to another; no religious test shall be required as a qualification for any office or public trust; and no person shall be denied the enjoyment of any civil right merely on account of his religious principles. Thus altered, the constitution of New Jersey is consistent with itself, and stands upon the broad principles of true religious liberty. The Virginia constitution followed New Jersey in point of date. The Bill of Rights adopted on June 12, 1776, became a part of Virginia’s constitution, although the Virginia constitution proper was adopted seventeen days later, June 29. That Bill of Rights contained this declaration:— SECTION 16. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity toward each other. In 1830 another constitution was adopted, in which it was expressly declared that the “declaration of rights” made on June 12, 1776, should bear the same relation to that constitution as it had to the previous constitution. In the year 1850 a new constitution was adopted, and of this also the “declaration of rights” was made a part, with Section 16 intact. In the Virginia constitution5of 1864 the “declaration of rights” appears just as it did in the constitution of 1830. In the constitution adopted in 1870 the bill of rights was amended by inserting two additional sections, the old Section 16, dealing with religion, now appearing as Section 18, but without changing it in any particular. Virginia, unlike some of the other States required no religious test for her governors or senators. The long struggle of her oppressed peoples seem to have taught her legislators the importance of keeping the church and the state separate. The constitution of Delaware was proclaimed Sept. 21, 1776. It says nothing about governments’ deriving their just powers from the consent of the governed, about the equality of man, or about freedom of conscience. On the contrary, Article XXII contains the following provision, which is entirely subversive of the principle of religious liberty:— Article XXII. Every person who shall be chosen a member of either house, or appointed to any office or place of trust, before taking his seat, or entering upon the execution of his office shall . . . make and subscribe the following declaration, to wit: “I, A B, do profess faith in God the Father, and in Jesus Christ, his only Son and in the Holy Ghost, one God, blessed forevermore; and I do acknowledge the Holy Scriptures of the Old and New Testament to be given by divine inspiration.” Article XXIX of this constitution declares:— There shall be no establishment of any one religious sect in this State in preference to another; and no clergyman or preacher of the gospel, of any denomination, shall be capable of holding any civil office in this State, or of being a member of either of the branches of the legislature, while they continue in the exercise of the pastoral function. The framers of the last clause doubtless feared that some denomination might succeed in getting enough of its ministers into the legislature to enact legislation favorable to that denomination, and antagonistic to other sects. Other States had a similar provision. In the year 1792 Delaware adopted a new constitution, and the first two sections of Article I of this constitution read as follows:— SECTION 1. Although it is the duty of all men frequently to assemble together for the public worship of the Author of the universe, and piety and morality, on which the prosperity of communities depends, are thereby promoted; yet no man shall or ought to be compelled to attend any religious worship, to contribute to the erection or support of any place of worship, or to the maintenance of any ministry, against his own free will and consent; and no power shall or ought to be vested in or assumed by any magistrate that shall in any case interfere with, or in any manner control, the rights of conscience, in the free exercise of religious worship, nor a preference be given by law to any religious societies, denominations, or modes of worship. SECTION 2. No religious test shall be required as a qualification to any office, or public trust, under this State. There seems to have come about a complete revulsion of sentiment since the adoption of the previous constitution, which required the strongest kind of religious test for the holding of public offices. The constitution adopted by Delaware in 1831 re-enacts the two sections above quoted practically word for word. On Sept. 28, 1776, Pennsylvania adopted its State constitution. Article I of that constitution declares the equality of men. Article II is very explicit in the matter of freedom of conscience, so explicit, in fact, as to deny, in effect, what it pretends to grant; while Section 10 of the “Frame of Government” practically nullifies whatever of Article II is not already nullified by its own provisions. Article II reads:— That all men have a natural and undeniable right to worship Almighty God according to the dictates of their own consciences and understanding; and that no man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to or against his own free will and consent: nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship. The latter portion of Section 10, above referred to, reads:— And each member [of the house of representatives], before he takes his seat, shall make and subscribe the following declaration: viz.:— “I do believe in one God, the Creator and governor of the universe, the rewarder of the good and the punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by divine inspiration.” And no further or other religious test shall ever hereafter be required of any civil officer or magistrate in this State. When the constitution of 1790 was adopted, Article II of the constitution of 1776 was divided, and a clause was added to the first portion in the seeming endeavor to make freedom of conscience more secure. The amended article appears as Sections 3 and 4 of Article IX in the constitution of 1790, and reads:— SECTION 3. That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; that no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any ministry, against his consent; that no human authority can, in any case whatever, control or interfere with the rights of conscience; and that no preference shall ever be given, by law, to any religious establishments or modes of worship. SECTION 4. That no person who acknowledges the being of a God and a future state of rewards and punishments, shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this commonwealth. The clause concerning “no further or other religious test” does not appear in this constitution. It is evident from the two sections that a religious test is made, and that it is the rights of the Christian only that are guaranteed by this constitution. The constitutions of 1838 and of 1873 are identical with the above in these particulars.