More or Less Bunk: The Establishment Clause Answers That History Doesn't Provide

Brigham Young University Law Review, Feb 6/Feb 7, 2004 by Gey, Steven G

I. THE THEMES OF RELIGION IN AMERICAN HISTORY

Professor Esbeck's rendition of the history of religion in America provides a good example of the difficulties posed by attempts to define present doctrine by reference to past practices. In short, there is no one history of religion in America. There are actually multiple histories, each of which would support a somewhat different interpretation of the proper constitutional relationship between religion and government. Ascribing a current meaning to the Constitution's religion clauses requires choosing among the various alternative (and often conflicting) historical models of church-state relations.

Consider just two of the conflicting currents of history in the evidence assembled by Professor Esbeck. First, consider the very different ways in which the original states dealt with the problem of religious establishments. As Professor Esbeck notes, it is common practice to cluster the original states into three groups: the New England states, whose political regimes based on Puritan establishments lasted well into the nineteenth century in states like Massachusetts; the middle states, which tended to have weak religious establishments or none at all; and the southern states, which started out with Anglican establishments but soon pursued disestablishment to accommodate both the surge of Protestant dissenters and the hostility toward an Anglican church that was closely associated with the former colonial ruler.10 What is one to make of this history? A consistent theme is hard to derive, except insofar as it is clear that the trend throughout the country was away from religious establishments.11 Even Massachusetts abandoned its Puritan establishment before the new country had existed more than a few decades.12 But it is unquestionably true that the different sectors of the country exhibited very different attitudes toward institutional religion and its direct influence over public policy.

The second set of conflicting currents running through American religious history reinforces the first. This is the tendency of religious fervor to rise and fall during different historical periods. Professor Esbeck details how the First and Second Great Awakenings were split by a period of relatively muted religious feelings in the period leading up to the American Revolution.13 The American Revolution occurred during this interregnum. At the time of the Revolution, religious feelings were not the primary concern of the American political or social culture. It is true that during the Awakenings religion came more to the fore, but even then religious Americans were often indifferent. As Professor Esbeck points out, "few Americans formally joined a church (though they still attended regularly), and fewer still took part in the sacrament of communion."14 When the often lackadaisical religious allegiance of much of the population is coupled with the influence of rationalists like Ethan Allen and Thomas Paine, and Deists like James Madison and Thomas Jefferson, the religious picture of the United States at its founding appears much more complicated than that of an overwhelmingly devout polity concerned with preserving the cultural influence of religion in general and religious organizations in particular. This more complicated atmosphere casts doubt on Professor Esbeck's argument that principles requiring "a socially or juridically enforced separation of religious values from public affairs . . . [have] no antecedent in the early American republic."15