religion/education/taxes/early America

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PART 5

The next and final step in the expansion of the meaning of
establishment would be simply to say that all religious groups should be
given support by the state. This step was almost achieved in the assessment
bill in Virginia in 1784 (see page 59). This is the step which some
religious groups today are urging as the proper relationship of
"co-operation" between church and state. But the people of the late
eighteenth and nineteenth centuries refused to take this step. They even
refused to accept for long the principle of multiple establishment. They
were no better satisfied with multiple establishment than they were with
single establishment. They found that both forms of establishment were
blocks on the road to genuine freedom of religion.
(The American Tradition in Religion and Education, by R. Freeman Butts,
Greenwood Press, Publishers, Westport, Conn. (1974--Originally published by
The Beacon Press. Boston, 1950)
p 36)

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PART 4

TYPICAL ELEMENTS OF A CONGREGATIONALIST ESTABLISHMENT

Thus, when the Puritans came to New England one of their primary
concerns was to establish their own religious orthodoxy as the law of the
land in Massachusetts, Connecticut, and New Hampshire. In many ways they
showed their intent that the state should support the Congregational Church
in accordance with Calvin's outlook. In Massachusetts, suffrage was even
restricted to church mcmbers as well as to property holders in the effort
to be sure that no unorthodox influence should be exerted h. civil affairs.
The principle of "co-operation" between church and state was fully in
operation in the full meaning of the Puritan Congregational establishment.
(1) The state levied taxes for the support of the clergy and
the church.
(2) The state enforced by law the exclusive rights of the
orthodox church to conduct public worship and to compel all persons to
attend church services no matter what their beliefs.
(3) The state used its coercive power to deny equal rights to
unorthodox. Not only were they denied political rights, they were subject
to trial and punishment by the state for heresy, blasphemy, and idolatry,
and, to a lesser extent, even for criticizing the ministers. Roger
Williams, Anne Hutchinson, Presbyterians, Quakers, Anabaptists, and
Catholics all felt the force of the Puritan civil authorities in trials,
fines, banishment, or punishment.
Thus, in summary, to colonial Americans of the seventeenth century
the term "establishment of religion" meant two things in principle and in
practice. It meant positive support of religion by public funds, and it
meant legal enforcement of certain orthodox religious beliefs by granting
to certain churches the exclusive privileges of public worship as well as
by meting out punishment for those who tried to conduct other kinds of
public worship or even to hold privately religious beliefs at variance with
the established religion. This, then, is the original meaning of the second
choice before the American people as described on page 7. Co-operation
without free exercise was the dominant principle and practice brought from
Europe to the Anglican South and to Puritan New England in the seventeenth
century.

(The American Tradition in Religion and Education, by R. Freeman Butts,
Greenwood Press, Publishers, Westport, Conn. (1974--Originally published by
The Beacon Press. Boston, 1950)

pp 19-20)

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PART 11

THE PRINCIPLE OF SEPARATION APPLIED TO EDUCATION

From Establishment From Sectarian Schools to
to Separation Secular Schools

I. "Co-operation" between 1. Sectarian religious public schools
church and state with (public support for the established

no religious freedom religion)
(Single establishment; 2. Dissenters' schools not permitted
no free exercise)

II. "Co-operation" between
church and state with
some religious freedom

A. Single establishment; 1. Sectarian religious public schools
free exercise (public support for the
established religion)
2. Private sectarian religious
schools permitted (private support
for the dissenting religions)
3. Private secular schools
permitted (private support)

B. Multiple establish- 1. Non-sectarian religious public
ment; free exercise schools (public support for the
Protestant religion)
2. Private sectarian religious
schools permitted (private and
public support)
3. Private secular schools permitted
(private and public support)

111. Separation of church I. Secular public school (public
and state (No establishment; funds)
complete religious free- 2. Private sectarian schools per-
dom) mitted (private support but no
public funds)
3. Private secular schools per-
mitted (private support but no
public funds)

(The American Tradition in Religion and Education, by R. Freeman Butts,
Greenwood Press, Publishers, Westport, Conn. (1974--Originally published by
The Beacon Press. Boston, 1950)

p 113)

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PART 1

The "separatist" Protestant sects like the Quakers, Baptists, and
Methodists often joined with radical deists to break the hold of
Congregationalists upon the New England governments or the hold of
Anglicans upon southern governments, but the struggle to disestablish the
entrenched churches was long and bitter. Efforts were made in several of
the new states to prevent complete disestablishment by offering the
benefits of state authority to several or to all Protestant churches so
that they could compel support for their clergy by taxing their own
memberships. This was the principle of general assessment, with the option
not of exemption from the religious tax but simply of indicating to which
church the taxes should go. I have called this a "multiple" establishment
of religion.' It was this principle that James Madison was eventually able
to defeat in Virginia by his support of Thomas Jefferson's Bill for
Religious Freedom, but it took seven years of bitter political fighting to
achieve the bill's passage in 1786.
In general, in the decade following 1776, the legal bonds between
the established churches and the new states were broken or severely
weakened. By the time of the adoption of the Bill of Rights in 1791, nine
of the original 13 states had formally declared for religious freedom and
separation of church and state. Four continued legally to affirm freedom of
religious conscience.
(Public Education in the United States, From Revolution to reform. R.
Freeman Butts. Holt, Rinehart and Winston, N Y, (1978) p 7)

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PART 2

(2) "Co-operation" between church and state with no religious
freedom (single establishment; no free exercise of religion). We could try
to depart from both meanings of separation and return to an establishment
of religion and at the same time destroy free exercise of religion. This
would return us to something like the systems represented by the
non-Christian state religions of Imperial Rome, or the Holy Roman Empire in
medieval times, or the Church of England in Reformation England and
colonial Virginia, or the Puritan theocracy of colonial New England.
In these systems the force of law was used to promote
"co-operation" of the state with a single church by giving it protection
and support while at the same time outlawing and penalizing all other
religious beliefs and practices. These were the standing orders established
in certain American colonies in the seventeenth century (see Chapter 2) .
Few serious proposals are being made today by responsible groups in America
to achieve this end. Democracy could not permit the establishment of a
single state religion, any more than it could destroy free exercise of
religion and still live within the framework or spirit of the First
Amendment of the United States Constitution and of the state constitutions.
(3) "Co-operation" between church and state with some freedom
of religion. A third alternative would be to reestablish religion by law
but at the same time try to maintain free exercise of religion. This was
the compromise that was tried in America in the eighteenth century as the
dissenting sects began to demand religious freedom for themselves in the
face of the established churches. This compromise took two forms:
(a) Single establishment with free exercise. The attempt was
made to maintain one church as the established religion of the state but to
tolerate and permit public worship by other religious groups. This was more
or less reluctantly granted by the established orders during the eighteenth
century (see Chapter 2) . Some groups may view this as an ultimate ideal to
be achieved in America, but few would proclaim it to be possible of
achievement in the near future.
(b) Multiple establishment with free exercise. As the
dissenting groups became ever stronger in the later eighteenth century, a
second stage of compromise was tried whereby several or many religious
groups were admitted to the privileges of aid and support by the state. In
this phase of compromise it was hoped that the older establishments could
be saved from complete separation by having the state support many or all
religions equally or impartially. This objective is now being seriously
proposed by different religious groups as the proper relationship of
"co-operation" between church and state in America.
This is being described as the authentic American tradition and
thus not contrary to the First Amendment. Actually, however, as will be
shown in Chapters 3 and 4, it is this very system which was prohibited by
the national and state constitutions of the American people in the late
eighteenth and early nineteenth centuries as they moved to create a new
society on this continent. They came to believe that genuine religious
freedom could not be achieved while maintaining any legal connection
between the state and any one or any number of churches.
(4) Separation of church and state (no single or multiple
establishment; complete freedom of religion). Upon realizing that choices
two and three both included some form of establishment, Americans moved to
a fourth solution, namely, religious freedom with no single or multiple
establishment of religion by law. This is the principle of separation of
church and state as developed in the late eighteenth and early nineteenth
centuries (see Chapters 3 and 4). This alternative has been enacted in the
Constitution of the United States and in the constitutions of the several
states.
The main point at issue for most conscientious Americans is whether
"co-operation" or "separation" embodies the most desirable American
tradition of the relations between church and state. The vast majority of
Americans are agreed on maintaining free exercise of religion, and they are
agreed in opposing establishment of a single religion. The genuine issue,
therefore, for most Americans narrows down to a choice between (3b) or (4),
to a choice between "co-operation" of the state with many churches or full

separation of church and state.

Those who favor multiple "co-operation" say that "no establishment
of religion" means simply that no single church may be established but that
the state is free to encourage and "co-operate" with all churches just so
long as it treats them all impartially and fairly. This co-operative
relationship is also referred to as "functional interaction" or "mutual
support and aid" or "harmony."
Those who favor "separation" say that "no establishment of
religion" means that there shall be no legal connection between the state
and any one or all churches and, further, that this does not mean state
hostility toward religion but is the basic condition of genuine religious
freedom. Adherents of this view argue that "co-operation" as defined above
is really an "entanglement" and will lead in the future, as in the past, to
"an establishment of religion." The meaning of "establishment of religion"
thus becomes critical for any sound decision involving the relation of
church and state in American education (see Chapters 5 and 6) .

(The American Tradition in Religion and Education, by R. Freeman Butts,
Greenwood Press, Publishers, Westport, Conn. (1974--Originally published by
The Beacon Press. Boston, 1950)

p 7-9)

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PART 3

TYPICAL ELEMENTS OF A CHURCH OF ENGLAND ESTABLISHMENT

This system of establishment was carried in substance to Virginia
where the commercial company in charge was authorized by the royal charter
of 1606 to give financial support to ministers, require church attendance
of all settlers, and levy penalties upon any who spoke blasphemy or heresy.
Virginia thus followed in essence the pattern from the homeland. When the
commercial company's charter was taken away and Virginia was made into a
royal province in 1624, a full-fledged Anglican establishment was soon put
into effect by acts of the Virginia Assembly beginning in 1629.
Without attempting to describe details, it may be said that
"establishment" in Virginia clearly meant the following things:
(1) It meant that the state enforced financial support for the
established church. The state levied taxes in the form of tithes upon all
persons without regard to their religious beliefs, and these taxes or
tithes were enforced by law for the support of the parish clergymen. Church
buildings were often built with the aid of tax funds and public lands. In
addition, certain lands (called the glebes) were set aside for the clergy
who were entitled to such lands by law as a means for their support either
for income or for actual residence.
(2) Establishment also meant that the state gave legal and
moral support to the doctrines and public worship of the established
church. The state prohibited the free exercise of religion and legislated
against equal rights of conscience. No religious beliefs except the legally
approved religion could be stated publicly or taught publicly without
danger of legal punishment by the state. The laws required all clergymen to
conform to the doctrines and methods of worship of the Church of England.
Clergymen who failed to conform were banished by state action, and certain
non-conformists were singled out for special legal action, including
Puritans, Quakers, Baptists, and Catholics who were subject to fines,
imprisonment, or expulsion. Not only was the free exercise of worship by
non-conformists prohibited by law, but also all persons regardless of
religious belief were required by law to attend the services of the Church
of England with fines and penalties for failure to do so. In the local
parishes the church officials (wardens and vestrymen) undertook such civil
tasks as enforcing the laws respecting parish taxes, apprenticeship of
orphans, and administration of poor relief.'
In brief, establishment meant that the Church of England not only
received legal privileges of public worship and faith which were accorded
to no other belief, but also the compulsive and legal force of the state
was used to enforce these privileges and to support the clergy and property
of the established church by aid of lands and taxes. To give effect to
these principles the legislature passed many laws "respecting an
establishment of religion" as well as "prohibiting the free exercise
thereof." Somewhat similar forms of Anglican establishment were enacted in
the Carolinas and eventually in Maryland and Georgia. This form of single
establishment was one kind of "co-operation" between church and state which
the American people sought to prevent when they began the long struggle
toward separation of church and state in the eighteenth century.

(The American Tradition in Religion and Education, by R. Freeman Butts,
Greenwood Press, Publishers, Westport, Conn. (1974--Originally published by
The Beacon Press. Boston, 1950)

p 15-17)

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PART 6

The other move of the conservatives was to revive the idea of
multiple establishment which had been put forward in the religious bill of
1779. In 1784 Patrick Henry vigorously supported multiple establishment as
embodied in the Bill Establishing a Provision for Teachers of the Christian
Religion. The purpose of the assessment bill of 1784 was in Patrick Henry's
words clearly to require all persons

. . . to pay a moderate tax or contribution annually for the support of the
Christian religion, or of some Christian church, denomination or communion
of Christians, or for some form of Christian worship.

This meant, of course, that the conservatives were trying to
maintain the privileges of the old single establishment by including all
other Christian groups within a new multiple establishment on a basis of
equality and impartiality. The preamble to the assessment bill asserts that
the intention of the Virginia Declaration of Rights of 1776 could "be
preserved by abolishing all distinctions of pre-eminence amongst the
different societies or communities of Christians."
Thus, the conservatives were trying to argue that the intention of
Madison's article on religion in the Virginia Declaration of Rights where
he said "all men are equally entitled to the free exercise of religion,
according to the dictates of conscience" would be fulfilled so long as the
state treated and supported all Christian churches equally. They argued
that free exercise was preserved even if the state co-operated with all
religions, just so it gave no preferences. The bill then went on to propose
a levy on all persons to be collected by the sheriff who was to make up and
post publicly a list of all taxpayers along with the religious society to
which each taxpayer wished his taxes to go "for the inspection of all
concerned." The sheriff then was to pay the minister or teacher so
designated his share of the tax funds. If any taxpayer did not indicate a
choice among the churches, his money was to be given to "seminaries of
learning" within the respective counties. All money was to be used for
paying clergymen or religious teachers or providing places of divine
worship, except that Quakers and Mennonites could use it for any purpose
they desired.
Thus, the base of the establishment was now to be still broader
than that of the bill of 1779 which had set up definite and elaborate
stipulations defining a church eligible to receive funds and which had
effectively limited such churches to the major Protestant denominations.
Now, however, the assessment bill of 1784 did not lay down such
restrictions and apparently included all Christians, the small radical
sects as well as Catholics, but no non-Christians as yet. Indeed, the
Assembly almost took the final step of multiple establishment to include
all religious groups equally and impartially. In the debates on the
assessment bill on December 22 and 23, 1784 the Assembly in committee of
the whole voted by a small majority to substitute the word "religious" for
"Christian." This would have levied an assessment "for the support of
religious teachers," but in report to the house the conservatives were able
to reverse the decision and re-insert "Christian," thus ruling out the
non-Christian religious groups. But for this close decision, the assessment
bill would have arrived at exactly the proposals now being made for the
state to support all religions equally and impartially (see the third
alternative, 3b, multiple establishment, p. 8 above). As it was, the bill
as actually framed is substantially the same in principle, involving
co-operation between the state and all major churches in order to promote
religious instruction.
Madison saw these implications of the assessment bill and exerted
all his efforts to defeat it. He made a notable speech in opposition to
Patrick Henry's defense of the assessment bill. This speech of Madison's is
not preserved in full but his notes for it clearly reveal that he
considered the assessment bill a proposal for "an establishment of
religion."" He uses the very word "establishment" throughout, and his main
intent was to point out that the issue was not whether religion was
necessary but whether religious establishments were necessary for religion.
He, of course, insisted that they were not. He asserted that the true cause
of the decline of morality was not a lessening of religion but the results
of the war, unjust laws, corrupt court practices, and the transition period
from war to peace. He insisted that the true remedies for the decline in
morality were not to establish religion but to improve the laws, create a
better administration of justice, engage in voluntary associations for
religion through personal effort, and educate youth.
It is clear that Madison did not mean the education of youth by
religious teachers. because that was the exact intent of the assessment
bill which he was opposing so bitterly. The "seminaries of learning"
mentioned in the assessment bill were taught by the clergy and housed in
the churches or in the plebe houses and supported by tuition. Indeed, one
of the reasons for promoting the assessment bill was doubtless to bolster
the declining income of religious teachers by gaining a share of public
funds for religious education. At least so Madison believed." The parallels
between the struggle over assessment in Virginia and the recent struggles
described in Chapter 6 are so striking that all Americans should be well
aware of the issues involved and should be prepared to accept the
responsibility for returning to the conservative assessment proposals of
165 years ago if they should so decide. The essence of these proposals is
to use public tax funds for promoting religious instruction.
The assessment bill stirred up enormous public feeling throughout
Virginia and divided the state as few issues ever did. Petitions and
memorials came to the legislature by the dozens. A thorough study of these
petitions and their supporting arguments'-. shows clearly the agitated
state of mind of hundreds of citizens. Up to the end of December, 1784 the
weight of opinion as expressed in the petitions favored assessment as well
as the incorporation bill. In fact, Madison decided not to oppose the
incorporation bill for fear that stubborn resistance would enable the
conservatives to drive through the assessment bill too. So, viewing the
assessment bill as the greater evil, he voted for the incorporation bill
which was passed on December 22, 1784. Then, marshalling his forces against
the assessment bill, he was able to persuade the Assembly to postpone the
final reading of the assessment bill until the next session of the Assembly
in November, 1735, nearly a year later. Thereupon, the Assembly voted to
have the assessment bill engrossed and distributed throughout the state
with a request to the people to register their opinion of it by the next
session. Madison was willing and anxious to rest his case with the will of
the people of the whole state.

(The American Tradition in Religion and Education, by R. Freeman Butts,
Greenwood Press, Publishers, Westport, Conn. (1974--Originally published by
The Beacon Press. Boston, 1950)

p 58-61)

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PART 7

In order to carry his case to the people Madison wrote his famous
Memorial and Remonstrance Against Religious A ssessmenu" which was widely
distributed during the summer of 1785. The Remonstrance is Madison's most
complete statement of what he understood the conservatives to mean by "an
establishment of religion." It is unequivocally clear that he identified
the assessment proposal to aid all religious groups equally, as "an
establishment of religion," as did the proponents of the bill, no less in
1785 than in 1779. It reveals clearly that he opposed any kind of
connection between church and state, that he opposed multiple support for
all churches as vigorously as he opposed the establishment of a single
church. Some of his major arguments against the assessment bill are as
follows:
He quoted from his article on religion in the Virginia Declaration
of Rights and then insisted that this meant that every man has an
inalienable right to the freedom of his individual conscience. This right
cannot be subjected to the authority of civil society nor to the
legislature of the state.

The Religion then of every man must be left to the conviction and
conscience of every man; and it is the right of every man to exercise it as
these may dictate. This right is in its nature an unalienable right . . . .
We maintain therefore that in matters of Religion, no man's right is
abridged by the institution of Civil Society, and that Religion is wholly
exempt from its cognizance.

Free exercise of religion must rest upon this natural right and not
upon the pleasure of the state.

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 of all other Sects? That the
same authority which can force a citizen to contribute three pence only of
his property for the support of any one establishment, may force him to
conform to any other establishment in all cases whatsoever?2°

It is not the amount of assessment that matters, it is the
principle of establishment that is wrong. Public taxation for the Christian
religion in general is as wrong as public taxation for a single preferred
sect.

The next major point is that equality before the law is an
essential civil right, of which religious conscience is the primary civil
right. Free exercise of religion must be based upon equal rights of
conscience, both of which the assessment bill violates by subjecting some
to peculiar burdens and others to peculiar exemptions.

If "all men are by nature equally free and independent," [Virginia
Declaration of Rights, Article I J all men are to be considered as entering
into Society on equal conditions; as relinquishing no more, and therefore
retaining no less, one than another, of their natural rights. Above all
they are to be considered as retaining an "equal title to the free exercise
of Religion according to the dictates of conscience." [Article 161 Whilst
we assert for ourselves a freedom to embrace, to profess, and to observe
the Religion which we believe to be of divine origin, we cannot deny an
equal freedom to those whose minds have not yet yielded to the evidence
which has convinced us.

Here, in these ringing statements, Madison rests his case for
religious freedom upon the basic American doctrines of freedom and equality
as inalienable civil rights. Madison's last sentence may well include the
right of any individual not to believe in any particular religious doctrine
or in any religious doctrine at all.
In the next point he echoes Roger Williams' inevitable conclusion
that the state has no right to define what is or what is not an appropriate
religious belief for anyone:

. . . the bill implies either that the Civil Magistrate is a competent
Judge of Religious truth; or that he may employ Religion as an engine of
Civil policy.22

This is the predicament any society creates when the state tries to
"co-operate" with any one church or with all churches impartially, for the
state will inevitably have to make distinctions among religious beliefs if
it sets out to encourage or support any or all of them.
Madison goes on to make several historical arguments to give
further weight to his arguments on principle: ". . . the establishment
proposed by the Bill is not requisite for the support of the Christian
Religion" and "the establishment in question is not necessary for the
support of Civil Government." Religion has flourished more freely where
there have been no establishments, and civil rights have been more secure
where there have been no religious establishments. Such an establishment
will warn immigrants away from what they thought was a haven for the
religiously persecuted, and it will drive present good citizens away from
the state. The bill for establishment will fan the flames of religious
intolerance and divide the community along religious lines, whereas
complete religious freedom enables everyone to live in civil harmony.
Finally, if the legislature can infringe this most fundamental of the civil
rights, it may with impunity go on to control the freedom of the press,
abolish trial by jury, or even take away the very rights of suffrage. All
rights secured by the Virginia Constitution will be in jeopardy, and thus
the legislature has no constitutional right to pass the assessment bill.
This is Madison's definitive statement of the arguments against
establishment of religion as he interpreted the assessment bill directly in
the light of the meaning of the Virginia Declaration of Rights and
Constitution. The continuity of Madison's thinking is incontestable when
one studies the speeches he made in the first Congress of 1789 when he
introduced his proposals for a bill of rights as amendments to the
Constitution of the United States (see pages 78-85) . These were the basic
arguments and principles that shaped his thinking as he guided the First
Amendment and the other amendments through the congressional debates.
Jefferson heartily approved Madison's arguments."
With the Remonstrance as the common underlying principle for action
the people of Virginia during the summer and fall of 1785 flooded the
legislature with petitions and memorials opposing assessment. The response
was so overwhelming that the assessment bill was never brought to a vote.
It also had such effect in the elections to the new session of the
legislature that Madison and the liberals were in so great a majority that
they had no trouble in bringing up Jefferson's Bill for Religious Freedom
of 1779 and passing it by the overwhelming majority of 74 to 20 in January
1786. This then became the historic Virginia Statute of Religious Freedom
(see page 52). The next year the liberals turned their attention to the
incorporation bill and easily repealed it in January of 1787. On the eve of
the Constitutional Convention the separation of church and state had been
completed in Virginia."

(The American Tradition in Religion and Education, by R. Freeman Butts,
Greenwood Press, Publishers, Westport, Conn. (1974--Originally published by
The Beacon Press. Boston, 1950)

p 61-65)

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PART 8

One final word on the struggle in Virginia. Such an overwhelming
victory could not have been won without the support of many members of the
Episcopal Church as well as of the dissenting groups. Perhaps the best
example of the attitude of many adherents of the old establishment was
George Washington, himself for long a vestryman of the Church of England.
In a letter to George Mason who had sent him a copy of Madison's
Remonstrance, Washington revealed his sentiments as follows:

Altho, no man's sentiments are more opposed to any Ain,] of restraint upon
religious principles than mine are; yet I must confess, that I am not
amongst the number of those who are so much alarmed at the thoughts of
making people pay towards the support of that which they profess, if of the
denomination of Christians; or declare themselves Jews, Mahomitans or
otherwise, and thereby obtain proper relief. As the matter now stands, I
wish an assessment had never been agitated, and as it has gone so far, that
the Bill could die an easy death; because I think it will be productive of
more quiet to the State, than by enacting it into a Law; which, in my
opinion, would be impolitic, admitting there is a decided majority for it,
to the disquiet of a respectable minority. In the first case the matter
will soon subside; in the latter, it will rankle and perhaps convulse, the
State.

Here it is plain that Washington saw no particular objection to
assessment on religious grounds, but his loyalty to complete religious
freedom as a protection for the common welfare of the State led him to
oppose the assessment bill. No one was more outspoken in his belief in the
importance of religion as a fundamental human good, but if any form of
establishment were to divide the community or "convulse the state" then the
common welfare must come first and establishment must go. To set up the
public welfare of the community as the test for such a moral judgment is a
basically secular test. In view of his deep religious convictions
concerning the value of religious freedom, Washington came to agree with
Madison and Jefferson that the value of religious establishments must be
subjected to the secular test of the public welfare as well as to the
religious test of equality of conscience. More and more conservatives as
well as liberals, reluctantly or willingly, came to the same conclusion.
Upon such common agreements the principle of separation of church and state
firmly rested among most of the states in the early National period.
Although the struggle for separation of church and state was
perhaps more spectacular and thoroughgoing in Virginia than elsewhere, the
trend was so evident between 1776 and 1791 that disestablishment was
definitely the will of a large majority of states by the time the First
Amendment was framed and adopted. By 1791 it is clear that virtual
separation had already been achieved in the constitutions of nine of the
original thirteen states. Despite differences of wording in these nine
constitutions '21 several show unmistakable similarity in wording and all
show a basic similarity in purpose and meaning, namely, the protection of
free exercise of worship, prohibition of preference to any one or several
religious groups, and prohibition of support for any religious worship or
instruction.
In only four states after 1791 did the constitutions still permit
the constitutions of these states until 1810 in Maryland, 1818 in
Connecticut, and 1833 in Massachusetts.'
The situation in New Hampshire remained ambiguous, for the
Constitution of 1784 authorized, on one hand, the towns to provide support
for "public protestant teachers of piety, religion, and morality," but on
the other hand, provided that "no portion of any one particular religious
sect or denomination, shall ever be compelled to pay towards the support of
the teacher or teachers of another persuasion, sect or denomination." New
Hampshire destroyed its multiple establishment by statute rather than by
constitutional amendment when the legislature passed a law in 1819
depriving the towns of the power to levy taxes for the support of religion.
New Hampshire's Constitution had permitted the legislature to authorize the
towns to support religion and had not required the legislature to do so, as
in Massachusetts. This permissive provision still remains in the New
Hampshire Constitution, but separation was achieved by statute as in
Virginia.
Vermont's situation was also ambiguous. Vermont's constitutions of
1777 and 1786, before admission to the Union, had ruled out compulsory
support for religion. The constitution of 1793, after admission in 1791,
contained similar provisions, but in 1783 Vermont had passed a law
permitting towns to vote to establish a minister or ministers. This
permissive law was abrogated by a law of 1807 which deprived the towns of
the power to support ministers or build meetinghouses by levying taxes.
Vermont's laws were thus brought into conformity with the state
constitution.
Despite the delay in modifying the constitutions of these states
the fact is that at the time of the framing of the First Amendment the
majority outlook in America was definitely in favor of the essential
principles of separation of church and state, as defined so clearly in

Virginia.
(The American Tradition in Religion and Education, by R. Freeman Butts,
Greenwood Press, Publishers, Westport, Conn. (1974--Originally published by
The Beacon Press. Boston, 1950)

p 65-67)

[buc...@exis.net]

PART 9

No clearer statement could be made to show that the principle of
separation of church and state as defined in the Everson case is in direct
line with the historic meaning of the separation of church and state in
America. In general, the process whereby the principle of complete
"co-operation" of church and state has been replaced by the principle of
complete separation of church and state has involved four historical steps:

(1) Revolutionary and Early National Period
In order to protect the civil rights of the citizens of the several
states, the bills of rights of most of the early state constitutions
separated church from state by prohibiting the states from making single or
multiple establishments of religion.

(2) Early National Period
In order to protect the civil rights of the citizen of the United
States, the First Amendment of the Constitution separated church from state
by prohibiting the federal government from making single or multiple
establishments of religion. The states followed suit in their own
constitutions.
(3) Reconstruction Period
In order to protect the civil rights of citizens of the United
States from infringement by the several states, the Fourteenth Amendment
made the First Amendment applicable to the states and thus prohibited the
states from infringing the equal rights of conscience and freedom of
speech, press, assembly, and petition as defined by the First Amendment.
The Supreme Court so interpreted the meaning of the Fourteenth Amendment
when cases began to come to it in the twentieth century.

(4) Late Nineteenth Century to the Present
The Supreme Court gradually brought its decisions of the last fifty
years into line with the intent of Madison and the framers of the First and
Fourteenth Amendments. In order to protect the civil rights of all American
citizens, the federal government has the right to enforce separation of
church and state upon the several states by prohibiting single or multiple
establishments of religion in the states. As indicated throughout this
study, "establishment of religion" has always implied legal and financial
support for religion. State support for one or for many religions, whether
preferentially or impartially, is thus prohibited. Far from being a
perversion of the original meaning of separation, the principle enunciated
in the Everson case is the logical culmination of the authentic historical
tradition of the principle of separation of church and state as it has
developed from 1776 to the present time."
Despite the clarity of the principle of separation of church and
state as expressed in this authentic historical tradition, there have been
many practices continued which are in effect holdovers from the
pre-separation days of the seventeenth and eighteenth centuries. These
practices include religious phraseology in several state constitutions, the
appointment and payment of chaplains for Congress, for the armed forces,
and for certain penal and charitable institutions, tax exemptions for
religious institutions, religious exercises at official ceremonies, and
certain requirements for religious oaths and tests for officeholders of a
few state governments. The weight of evidence indicates that these
practices are exceptions to the principle of separation of church and state
rather than practices which prove the principle of "co-operation" between
church and state. The principle is clearly "separation" and not
"co-operation."

(The American Tradition in Religion and Education, by R. Freeman Butts,
Greenwood Press, Publishers, Westport, Conn. (1974--Originally published by
The Beacon Press. Boston, 1950)

p 107-108)

[buc...@exis.net]

PART 10

In its most general form the principle of separation of church and state
came to embrace these two propositions:

(1) Public funds shall not be granted to religious schools

(2) Sectarian religious instruction shall not be given in public schools.

(The American Tradition in Religion and Education, by R. Freeman Butts,
Greenwood Press, Publishers, Westport, Conn. (1974--Originally published by
The Beacon Press. Boston, 1950)

p 108)