First Amendment:

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.

Virginia, which initially established the Church of England as the church of the colony,1 began to provide greater religious liberty in the years leading up to the adoption of the Constitution. Toward the end of the colonial period, some Virginia leaders began to look to Pennsylvania as a model for liberty, expressing distaste for Virginia’s state-sponsored religious establishment.2 By the time Virginia adopted its first state constitution in 1776, it provided that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” 3 Notwithstanding this new constitutional protection for the free exercise of religion, the Church of England remained Virginia’s legally established church.4 There was significant debate over the next decade about whether the state could or should impose a general assessment to support religion, or whether financial support would instead become voluntary.5

In 1779, Jefferson introduced his Virginia Statute for Religious Freedom in the Virginia Assembly.6 Considered by many to be the forerunner of the First Amendment’s Religion Clauses,7 the bill was a sweeping statement for religious freedom and against state establishment of religion.8 Among other provisions, it stated that compelled financial support for churches and religious test oaths infringed individual liberty and corrupted religion.9 It further provided that allowing the civil magistrate “to intrude his powers into the field of opinion . . . at once destroys all religious liberty.” 10 Accordingly, the bill would have prevented Virginia from compelling anyone “to frequent or support any religious worship” or otherwise burdening a person “on account of his religious opinions or belief.” 11 The bill was not adopted in that legislative session.12

By contrast, later in 1779, the Assembly considered—but also rejected—a bill that would have established the “Christian Religion” as the state’s official religion, required recognized churches to subscribe to certain beliefs, and assessed ministerial taxes.13 In 1784, Patrick Henry, who had opposed Jefferson’s Statute for Religious Freedom, introduced A Bill Establishing a Provision for Teachers of the Christian Religion.14 The law proposed a general assessment: taxpayers could direct the funds to the “society of Christians” of their choice, and any nondesignated funds would be used “for the encouragement of seminaries of learning” in the state.15

While the bill creating an assessment for Christian teachers was being considered, James Madison wrote and circulated his Memorial and Remonstrance Against Religious Assessments, which contributed significantly to the bill’s defeat.16 Madison’s Memorial and Remonstrance claimed that the right to free exercise of religion was “unalienable,” and that religion was “wholly exempt” from the “cognizance” of civil society.17 He asserted the bill violated fundamental principles of equality and departed from America’s “generous policy” of religious freedom for the previously “persecuted and oppressed.” 18 Other opponents of the assessment raised concerns about the rights of non-Christians, a position that was still somewhat uncommon in the colonies at that time.19 Following this public opposition to Henry’s bill, Madison reintroduced Jefferson’s bill for establishing religious freedom.20 The Statute for Religious Freedom was enacted in 1786, finally disestablishing religion in the state.21

Although Virginia’s experience does not represent the full picture of the early American experience with religious liberty, it helped set the stage for the adoption of the Religion Clauses.22 While Rhode Island, Pennsylvania, and (eventually) Virginia moved towards greater religious freedom, other states—and some within those states—continued to support state establishments and a more limited view of religious liberty.23

Footnotes

1

For a discussion of the Virginia establishment, see Amdt1.2.2.3 State-Established Religion in the Colonies.

2

See, e.g., Letter from James Madison to William Bradford (Apr. 1, 1774), https://founders.archives.gov/documents/Madison/01-01-02-0031.

3

Va. Const. of 1776, § 16, https://encyclopediavirginia.org/entries/the-constitution-of-virginia-1776.

4

Thomas J. Curry, The First Freedoms 133, 135–36 (1986).

5

Id. at 136.

6

Thomas Jefferson, Draft of the Virginia Statute for Religious Freedom, in Jefferson & Madison on Separation of Church & State 48 (Lenni Brenner, ed., 2004).

7

See, e.g., Reynolds v. United States, 98 U.S. 145, 163–64 (1878).

8

Draft of the Virginia Statute for Religious Freedom, in Jefferson & Madison on Separation of Church and State, supra note 6, at 48–50.

9

Id. at 49.

10

Id. See also id. ( “[I]t is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order . . . .” ).

11

Id. at 49–50.

12

Id. at 48.

13

Curry, supra note 4, at 139.

14

A Bill Establishing a Provision for Teachers of the Christian Religion, Monticello Digital Classroom, https://classroom.monticello.org/media-item/a-bill-establishing-a-provision-for-teachers-of-the-christian-religion/ (last visited June 17, 2022).

15

Everson v. Bd. of Educ., 330 U.S. 1, 73–74 (1947) (supplemental appendix).

16

Curry, supra note 4, at 143.

17

James Madison, Memorial and Remonstrance Against Religious Assessments (June 20, 1785), in Jefferson & Madison on Separation of Church and State, supra note 6, at 68.

18

Id. at 69–71.

19

See Curry, supra note 4, at 145.

20

Letter from James Madison to Thomas Jefferson (Jan. 22, 1786), https://founders.archives.gov/documents/Madison/01-08-02-0249.

21

Id. Jefferson was in Paris at the time, and later that year, told Madison the act had “been received with infinite approbation” by European citizens. Letter from Thomas Jefferson to James Madison (Dec. 16, 1786), https://founders.archives.gov/documents/Madison/01-09-02-0108. In Jefferson’s eyes, it was “honorable” for the Virginia legislature “to have produced the first legislature who has had the courage to declare that the reason of man may be trusted with the formation of his own opinions.” Id.

22

See, e.g., Reynolds v. United States, 98 U.S. 145, 163 (1878). See also Timothy L. Hall, Roger Williams and the Foundations of Religious Liberty., 71 B.U.L. Rev. 455, 458 (1991) (arguing that overreliance on Jefferson and Madison’s writings “has left first amendment jurisprudence theoretically impoverished” ).

23

Amdt1.2.2.2 England and Religious Freedom; Amdt1.2.2.4 Colonial Concepts of Religious Liberty.