England and Religious Freedom

prev | next

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Religious freedom has played a central role in the mythos of the United States’ Founding.1 Accordingly, the Supreme Court has sometimes looked to state sponsorship of religion prior to the Founding to determine what the drafters of the First Amendment’s Religion Clauses intended to reject.2 While a unified church and state was once the dominant governance model worldwide,3 the Church of England provides one particularly salient example of a state religion that was familiar to the Founders.4

King Henry VIII established the Church of England through the Act of Supremacy in 1534,5 and Queen Elizabeth reestablished the Church in 1559 after a period of political and religious turbulence.6 The Church of England’s establishment placed the country’s ecclesiastical courts under domestic control rather than under the control of the Pope.7 These ecclesiastical courts, which operated in parallel with England’s civil courts, had jurisdiction over purely religious matters such as spiritual nonconformity; so-called moral offenses such as drunkenness or adultery; and disputes over marriages, tithes, wills, and defamation.8

Following the end of the English Civil War in 1651, four acts collectively known as the Clarendon Code reentrenched the church.9 One of these laws, the Act of Uniformity of 1662, prescribed a common form of worship and required ministers to follow this form of worship to hold religious office.10 Other laws limited officeholding to Anglicans and restricted non-Anglican worship.11 The ecclesiastical courts were also restored in 1661 with largely unchanged jurisdiction, although use of the courts declined significantly over the ensuing decades.12

Thus, English laws preferred members of the established Church of England, excluded dissenters, and commingled ecclesiastical and civil functions.13 The government dictated official modes of worship, claimed jurisdiction over areas such as education and marriage that had previously been governed by the Roman Catholic Church, required membership in the established church to be considered a legal citizen, and criminalized religious dissent.14 Nonetheless, the government did not view the Act of Uniformity as violating freedom of conscience: in England’s view, while it dictated public observance of religion and prevented dissenters from undermining the established church, it did not dictate private beliefs.15

The Toleration Act of 1689 lifted criminal penalties for nonconformists’ public worship if the dissenters took certain oaths or declared their loyalty to the crown and professed their Christian belief.16 However, the law did not extend the right of public worship to Roman Catholics or other non-Protestant dissenters, and all non-Anglicans continued to be barred from holding public office.17 Furthermore, the Church of England retained its special status. England considered the Toleration Act to apply directly to the colonies.18 As discussed in subsequent essays, this Act granted more religious liberty than some of the colonies did at the time and influenced those colonies to move toward further religious freedom.19

1: See, e.g., Samuel Adams, The Rights of the Colonists, A List of Violations of Rights and a Letter of Correspondence (1772), reprinted in The Sacred Rights of Conscience 202–04 (Daniel L. Dreisbach & Mark David Hall eds., 2009); IV. The Declaration as Adopted by Congress, Nat’l Archives, Founders Online (July 6, 1775), https://founders.archives.gov/documents/Jefferson/01-01-02-0113-0005. Cf., e.g., Robert T. Miller, Religious Conscience in Colonial New England, 50 J. Church & State 661, 662 (2008) (stating that English colonization of North America was motivated by a variety of factors, including not only religious motives but also “imperialism, economic and social pressures, humanitarianism, and the spirit of adventure” ).
2: See, e.g., Engel v. Vitale, 370 U.S. 421, 425–26 (1962).
3: See, e.g., Leo Pfeffer, Church State and Freedom 3 (1967).
4: See, e.g., Frank Lambert, The Founding Fathers and the Place of Religion in America 184–94 (2003) (discussing the influence of English dissenters on the Founders).
5: John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 16 (4th ed. 2016).
6: Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2112–13, 2113 n.30 (2003). See also Lambert, supra note 4, at 37–40 (discussing political and religious developments in this period).
7: R.B. Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500–1860, at 15 (J.H. Baker ed., 2006). See also id. (noting arguments that the break with Rome led to the decline of these courts); id. at 68–77 (discussing these arguments as well as contemporaneous criticisms of the courts).
8: Id. at 5–7.
9: Clarendon Code, Encyclopedia Britannica, https://www.britannica.com/event/Clarendon-Code (last visited June 1, 2022).
10: Id.
11: See id.
12: Outhwaite, supra note 7, at 79, 95.
13: Chester James Antieau et al., Freedom from Federal Establishment 3 (1964).
14: Witte & Nichols, supra note 5, at 16–17.
15: Lambert, supra note 4, at 40. Cf., e.g., Douglas Laycock, Continuity and Change in the Threat to Religious Liberty: The Reformation Era and the Late Twentieth Century, 80 Minn. L. Rev. 1047, 1064 (1996) (discussing English imprisonment of Quakers and execution of Catholics).
16: Toleration Act, Encylopedia Britannica, https://www.britannica.com/event/Toleration-Act-Great-Britain-1689 (last visited June 1, 2022).
17: Toleration Act, 1689, The Jacobite Heritage(Oct. 26, 2003), http://www.jacobite.ca/documents/1689toleration.htm.
18: The application was debated by the colonies, but in 1752, a Presbyterian minister seeking licenses to preach in Virginia obtained an opinion from the British attorney general saying that the Toleration Act did apply in the colonies and the minister should receive his licenses. George William Pilcher, Samuel Davies and Religious Toleration in Virginia, 28 The Historian 48, 62–63 (1965).
19: See Amdt1.2.2.2 England and Religious Freedom; see also, e.g., Pfeffer, supra note 3, at 93.