2. Principle Responsibility of
Religious Rights
For the first 150 years of the republic, principal
responsibility for the American experiment in
religious rights and liberties lay with the states.
Eleven of the original thirteen states had state
constitutions in place by 1784.
Congress repeatedly tried but failed to pass
constitutional amendments and national laws
on religious liberty applicable to the states and
enforceable in the federal courts.
3. Liberty of Conscience and Free
Exercise
Forty-two of the forty-eight state constitutions
in effect before 1947 had a general clause
explicitly protecting the liberty and/or rights of
conscience.
Four of the six states lacking an express liberty
or rights of conscience clause did, however,
expressly outlaw compulsory participation in,
or support of, religion.
4. Religious Pluralism and Equality
Religious pluralism, in the founders’ view,
served as a natural check on both the
monopolistic inclination of any church and the
establishment tendencies of any state.
For states, more important than creating
pluralism was maintaining equality among
existing plural groups.
5. Separation of Church and State
Historically the principle of separation of
church and state was considered more
dispensable than it is today.
Although they did not use the language of
separation of church and state, a number of
state constitutions adopted some measure of
this principle in the context of education and
state funding.
6. No Establishment of Religion
In the eighteenth century, the guarantee of no
establishment of religion was broad and
multilayered.
At its core, this principle prohibited
government from defining by law the religious
doctrines, liturgies, texts, and traditions of a
community.
7. Faith, Freedom, and the Frontier
The dominant pattern of religious rights in the
nineteenth century was that states sought to
balance the general freedom of all private
religions with the general patronage of one
common public religion.
State
and local governments granted basic
freedoms of conscience, exercise, and equality to
most religious groups and religious practices.
State and local governments patronized a “public”
religion that was generally Christian.
8. Faith, Freedom, and the Frontier
The right, and sometimes the duty, to emigrate
was a basic assumption of the American
experiment in religious liberty.
Escape to the frontier provided the release valve
for the common state system of balancing
freedom for all private religions with patronage of
one public religion.
However, the combination of increasing religious
pluralism and the increasing population of the
American frontier rendered this system harder to
maintain.
9. Fundamental Religious Liberty and
Incorporation
In the nineteenth-century the Supreme Court
heard appeals from state cases raising issues
of religious property and polity, Sabbath day
observance, and oath swearing.
Beginning in the 1920s and 1930s, the
Supreme Court began to review state and
local laws touching religion under an emerging
standard of “fundamental liberty” and then
“fundamental religious liberty.”
10. “Fundamental Liberty”
Meyer v. Nebraska (1923)
Pierce v. Society of Sisters (1925)
Hamilton v. Regents of the University of
California (1934)
Palko v. Connecticut (1937)
Lovell v. City of Griffin (1938)
Schneider v. Town of Irvington (1939)
Cantwell v. Connecticut (1940)
Everson v. Board of Education (1947)