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The Free Exercise of Religion in America pp 53–94Cite as

Palgrave Macmillan

The Meaning of Religious Liberty in Virginia

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Abstract

After 1776, the early American understanding of the free exercise of religion as a constitutional right developed in each of the states separately, but not in insolation, as they adopted, interpreted, and applied constitutional guarantees of that right. Virginia led the way by including a guarantee of the free exercise of religion in its 1776 Declaration of Rights, but it was not understood by all as eliminating its long-standing establishment of the Anglican Church. This issue was not settled until 1785 when a bill requiring all persons to be taxed to support the church of their choice was decisively defeated by petitions from dissenters and James Madison, who argued that the free exercise of religion prohibits all laws characteristic of religious establishments.

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Notes

  1. 1.

    According to Supreme Court Justice, Sandra O’Connor, the state guarantees of religious liberty “are perhaps the best evidence of the original understanding of the Constitution’s protection of religious liberty.” City of Boerne v. Flores, 521 U.S. 507, 553 (1997) (J. O’Connor, dissenting). Agreeing are Michael W. McConnell, “The Origins and Historical Understanding of Free Exercise of Religion,” Harvard Law Review, 103 (May 1990): 1410, 1456; Gerard V. Bradley, Church-state Relationships in America (Westport, CT: Greenwood Press, 1987), 70, 73; John K. Wilson, “Religion Under the State Constitutions, 1776–1800,” Journal of Church and State, 32 (Autumn 1990): 753–54; and Thomas J. Curry, Farewell to Christendom: The Future of Church and State in America (N.Y.: Oxford Univ. Press, 2001), 17.

  2. 2.

    In 1795, the president of Rhode Island College contended that Rhode Island had “never assumed the authority of regulating ecclesiastical concerns. Religion here stands, as it ought to, on its own basis, disconnected with all political considerations.” Jonathan Maxcy, An Oration (Providence, RI: Carter & Wilkinson, 1795), 17. From 1719 to 1783, however, a Rhode Island law prohibited Catholics from holding public office, but serious doubts have been raised about its ever being enforced. Robert A. Rutland, The Birth of the Bill of Rights, 1776–1791 (N.Y.: Collier Books, 1962), 27. For a concise but helpful account of Connecticut’s continuing religious establishment, see William R. Casto, “Oliver Ellsworth’s Calvinist Vision of Church and State in the Early Republic,” in The Forgotten Founders on Religion and Public Life, ed. Daniel L. Dreisbach et al. (Notre Dame, IN: Univ. of Notre Dame Press, 2009), 68–7. Also, see Joseph F. Thorning, Religious Liberty in Transition: A Study of the Removal of Constitutional Limitations on Religious Liberty (Washington, DC: Catholic Univ. of America, 1931), 95–100, 138–42.

  3. 3.

    According to Chris Beneke, Virginia’s constitutional provision was “especially influential,” and “[o] ver the ensuing years, state after state moved in the same direction [as Virginia did].” “‘Not by Force or Violence’: Religious Violence, Anti-Catholicism, and Rights of Conscience in the Early National United States,” Journal of Church and State, 54 (Winter 2012): 6. Agreeing are Anson P. Stokes & Leo Pfeffer, Church and State in the United States (N.Y.: Harper & Row, 1964), 65.

  4. 4.

    “Constitution of Virginia, Bill of Rights, Article XVI” (June 12, 1776), in Richard L. Perry, ed., Sources of Our Liberties: Documentary Origins of Individual Liberties in the United States Constitution and Bill of Rights [cited hereafter as SOL] (Chicago: American Bar Foundation, 1959), 312.

  5. 5.

    See, e.g., Lance Banning, “James Madison, the Statute for Religious Freedom, and the Crisis of Republican Convictions,” in The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History, ed. Merrill D. Peterson & Robert C. Vaughan (N.Y.: Cambridge Univ. Press, 1988), 112, and Irving Brant, James Madison: The Virginia Revolutionist (Indianapolis, IN: Bobbs-Merrill, 1941), 249.

  6. 6.

    “First Draft of the Virginia Declaration of Rights” (1776), in The Papers of George Mason, 1725–1792, ed. Robert A. Rutland (Chapel Hill, NC: Univ. of North Carolina Press, 1970), 1:278, and “Committee’s Proposed Article on Religion,” in The Papers of James Madison [cited hereafter as PJM], ed. William T. Hutchinson & William M. E. Rachal (Chicago: Univ. of Chicago Press, 1962), 1:173.

  7. 7.

    Ralph Ketcham, “James Madison, Thomas Jefferson, and the Meaning of “Establishment of Religion’ in Eighteenth-Century Virginia,” in No Establishment of Religion: America’s Original Contribution to Religious Liberty, ed. T. Jeremy Gunn & John Witte, Jr. (N.Y.: Oxford Univ. Press, 2012), 161, and Elwyn A. Smith, Religious Liberty in the United States: The Development of Church-State Thought Since the Revolutionary Era (Philadelphia, PA: Fortress Press, 1972), 36.

  8. 8.

    “Madison’s Amendments to the Declaration of Rights,” in PJM, 1:174 (emphasis added).

  9. 9.

    “Editorial Note,” in PJM, 1:171, 177, and Vincent P. Munoz, “James Madison’s Principle of Religious Liberty,” American Political Science Review, 97 (Feb. 2003): 25.

  10. 10.

    Smith, Religious Liberty, 36–37. Agreeing with Smith are Daniel L. Dreisbach, “Church-State Debate in the Virginia Legislature: From the Declaration of Rights to the Statute for Establishing Religious Freedom,” in Religion and Political Culture in Jefferson’s Virginia, ed. Garrett W. Sheldon & Daniel L. Dreisbach (Lanham, MD: Rowman & Littlefield, 2000), 138–39, and Banning, “James Madison,” 112.

  11. 11.

    “Editorial Note,” in PJM, 1:171.

  12. 12.

    “Madison’s Amendments to the Declaration of Rights,” in PJM, 1:174–75.

  13. 13.

    Michael McConnell even says that the clause makes sense “only if free exercise [of religion] envisions religiously compelled exemptions from at least some generally applicable laws.” “Origins,” 1462–63 (emphasis added).

  14. 14.

    Id., 1463.

  15. 15.

    “Constitution of Virginia, Bill of Rights, Art. XVI” (June 12, 1776), in SOL, 312.

  16. 16.

    Neither Virginia’s Declaration of Rights nor its Constitution of 1776 contained a provision exempting Quakers and other conscientious objectors from having to serve in the militia. In 1775, however, Virginia had affirmed a 1766 law that granted Quakers such exemptions on condition that when the militia was called into service, they would hire substitutes or pay fines sufficient for that purpose. When it was affirmed, however, the law was referred to as one “made for their relief and indulgence.” There was no reference to Quakers’ having a right to such exemptions. Revolutionary Virginia: The Road to Independence, ed. Brent Tarter (Charlottesville, VA: Univ. Press of Virginia, 1983), 7:552, fn. 1.

  17. 17.

    Philip A. Hamburger, “A Constitutional Right of Religious Exemption: An Historical Perspective,” George Washington Law Review, 60 (April 1992): 918–21. Rhys Isaac contends that some Virginians were concerned that dissenters would use religious liberty in a way that would threaten the institution of slavery. “‘The Rage of Malice of the Old Serpent Devil’: The Dissenters and the Making and Remaking of the Virginia Statute for Religious Freedom,” in Virginia Statute for Religious Freedom, 143–45, 162–63. Also see Paul K. Conkin, “Freedom: Past Meanings and Present Prospects,” in Freedom in America: A 200-Year Perspective, ed. N. A. Graebner (University Park, PA: Pennsylvania State Univ. Press, 1977), 208–09, and Beneke, “‘Not by Force’,” 17.

  18. 18.

    Madison knew, for example, that many Baptist preachers had been imprisoned on the grounds that their preaching had “disturbed the peace.” Steven Waldman, Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America (N.Y.: Random House, 2008), 114, and Banning, “James Madison,” 132, fn. 12. In fact, the following year one anonymous Virginian wrote that Christian sects that “quarrel” with one another “ought to be punished, not as professors of religion, but as disorderly members of the Commonwealth.” The Freeman’s Remonstrance against an Ecclesiastical Establishment (Williamsburg, VA: Dixon & Hunter, 1777), 5.

  19. 19.

    Michael J. Malbin suggests that it was the latter. Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, DC: American Enterprise Institute, 1978), 22.

  20. 20.

    One important exception was the Rev. James Madison, Madison’s second cousin, who in 1786 was to become the first bishop of the Episcopal Church of Virginia. As early as 1772 he had publicly made the case against any and all establishments of religion. See Spencer W. McBride, Pulpit and Nation: Clergymen and the Politics of Revolutionary America (Charlottesville, VA: Univ. of Virginia Press, 2016), 80–85. For articles and petitions in defense of the Anglican establishment, see Thomas E. Buckley, Church and State in Revolutionary Virginia, 1776–1787 (Charlottesville, VA: Univ. Press of Virginia, 1977), 23–25, 27–29.

  21. 21.

    Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (N.Y.: Oxford Univ. Press, 1986), 135, and John Ragosta, Religious Freedom: Jefferson’s Legacy, America’s Creed (Charlottesville, VA: Univ. of Virginia Press, 2013), 61.

  22. 22.

    Buckley, Church and State, 18, 22–23; Ragosta, Religious Freedom, 62–64; and Dreisbach, “Church-State Debate,” 141. One of the petitions, from the General Association of Baptists, was five feet long and signed by ten thousand persons. Ragosta, Religious Freedom, 62.

  23. 23.

    Petition from dissenters in Prince Edward County, 10/11/1776, Early Virginia Religious Petitions, Library of Congress, www.memory.loc.gov/ammem/collections/petitions [hereafter cited as EVRP].

  24. 24.

    Freeman’s Remonstrance, 3.

  25. 25.

    Petition from dissenters in Prince Edward County, 10/11/1776, in EVRP.

  26. 26.

    Freeman’s Remonstrance, 5.

  27. 27.

    “Memorial of the Hanover Presbytery” (10/24/1776), in William H. Foote, Sketches of Virginia, Historical and Biographical (Philadelphia, PA: William S. Martien, 1850), 323–24 (emphasis added to last phrase).

  28. 28.

    Petition from Dunmore County Committee, 10/16/1776, in EVRP.

  29. 29.

    “Memorial of the Hanover Presbytery” (10/24/1776), in Foote, Sketches, 323–24, and Denise A. Spellberg, Thomas Jefferson’s Qur’an: Islam and the Founders (N.Y.: Alfred A. Knopf, 2013), 101.

  30. 30.

    Quoted in James H. Hutson, Church and State in America: The First Two Centuries (N.Y.: Cambridge Univ. Press, 2008), 116. Also, see Ragosta, Religious Freedom, 64–65, and Curry, First Freedoms, 136.

  31. 31.

    Buckley, Church and State, 33–36, 66–67; Ragosta, Religious Freedom, 65, 69, 75; and Dreisbach, “Church-State Debate,” 142–46.

  32. 32.

    Quoted in Ketcham, “James Madison,” 164. Also see Buckley, Church and State, 46.

  33. 33.

    They were No. 83, A Bill for Saving the Property of the Church Heretofore by Law Established; No. 84, A Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers; No. 85, A Bill for Appointing Days of Public Fasting and Thanksgiving; and No. 86, A Bill Annulling Marriages Prohibited by the Levitical Law, and Appointing the Mode of Solemnizing Lawful Marriage. For their texts, see “Revisal of the Laws 1776–1786,” in The Papers of Thomas Jefferson [hereafter cited as PTJ], ed. Julian P. Boyd et al. (Princeton, NJ: Princeton Univ. Press, 1950), 2:553–58. Of these, only No. 84 was ever approved by the legislature, in 1786. It is discussed below at pp. 89–90.

  34. 34.

    PTJ, 2:546.

  35. 35.

    Notes on the State of Virginia, in The Works of Thomas Jefferson, ed. Paul L. Ford (N.Y.: G. P. Putnam’s Sons, 1904–05), 4:76–77.

  36. 36.

    Catharine Cookson, Regulating Religion: The Courts and the Free Exercise Clause (N.Y.: Oxford Univ. Press, 2001), 82–83; Vincent P. Munoz, God and the Founders: Madison, Washington, and Jefferson (N.Y.: Cambridge Univ. Press, 2009), 83–91; and Beneke, “‘Not by Force’,” 24.

  37. 37.

    “Bill,” PTJ, 2:546.

  38. 38.

    Most notably his Notes on the State of Virginia (Query 17), 5:79–80.

  39. 39.

    See, e.g., Sanford Kessler, “Locke’s Influence on Jefferson’s ‘Bill for Establishing Religious Freedom’,” 237–52; McConnell, “Origins,” 1451, 1459; and Cookson, Regulating, 82.

  40. 40.

    See Jefferson’s “Notes on Locke and Shaftesbury,” in PTJ, 1:547–48, and a letter to Madison in which he wrote, “The declaration that religious faith shall be unpunished, does not give impunity to criminal acts dictated by religious error.” “Letter to James Madison” (7/31/1788), in PTJ, 13:442–43. Scholars who agree include Walter Berns, The First Amendment and the Future of American Democracy (N.Y.: Basic Books, 1976), 36; Kessler, “Locke’s Influence,” 242; Malbin, Religion, 28; and Munoz, God, 180–81.

  41. 41.

    “Bill,” in PTJ, 2:545–46. The closest Jefferson’s Bill came to saying that the free exercise of religion can be violated even by laws that do not involve coercion was when it said that “the opinions of men are not the object of civil government, nor under its jurisdiction,” but it then added “that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency . . . destroys all religious liberty”—thereby implying that only restraint could violate religious liberty. Id., 2:546 (emphasis added).

  42. 42.

    An argument made by Michael W. McConnell, “Coercion: The Lost Element of Establishment,” William and Mary Law Review, 27 (1986): 938; Daniel L. Dreisbach, “Religion and Legal Reforms in Revolutionary Virginia: A Reexamination of Jefferson’s Views on Religious Freedom and Church-State Separation,” in Religion and Political Culture in Jefferson’s Virginia, 2000), 195; and Banning, “James Madison,” 131–32, fn. 12.

  43. 43.

    Quoted in Ragosta, Religious Freedom, 66. Also see Buckley, Church and State, 30–32. And later in his life, Jefferson clearly stated his opposition to all laws dealing with religion. McConnell, “Origins,” 1451.

  44. 44.

    For the Baptists’ statement of approval, see Garnett Ryland, The Baptists of Virginia, 1699–1926 (Richmond, VA: Virginia Baptist Board of Missions and Education, 1955), 105.

  45. 45.

    Ragosta, Religious Freedom, 69–70.

  46. 46.

    Buckley, Church and State, 35, 38, and Curry, First Freedoms, 138–39. For the wording of the bill, see H. J. Eckenrode, Separation of Church and State in Virginia: A Study in the Development of the Revolution (N.Y.: Da Capo Press, 1971), 58–61.

  47. 47.

    “Declaration of the Virginia Association of Baptists” (12/25/1776), in PTJ, 1:660–61.

  48. 48.

    “Petition from Hanover Presbytery” (6/3/1777), in Foote, Sketches, 326–27.

  49. 49.

    Buckley, Church and State, 40–45, 56–61, 72–74, 79, 81, 85–87, 90, 95–96, 98–99; Ragosta, Religious Freedom, 74–78; and Curry, First Freedoms, 139–40.

  50. 50.

    See “A Bill ‘Establishing a Provision for Teachers of the Christian Religion,’ 1784, in Buckley, Church and State, 188–89, and Waldman, Founding Faith, 115.

  51. 51.

    “Bill ‘Establishing a Provision’,” 188. For a summary of an eloquently written newspaper article defending the assessment bill and entitled, “On the IMPORTANCE and NECESSITY of RELIGION to CIVIL SOCIETY,” see Buckley, Church and State, 141–42.

  52. 52.

    Quoted in McLoughlin, “Role,” 220, 221, fn. 33. Persons like Lee favored Henry’s bill primarily because the Episcopalian Church was in desperate need of funds and ministers. Ragosta, Religious Freedom, 76–77, and Buckley, Church and State, 128–29.

  53. 53.

    “Memorial of the Presbytery of Hanover to the General Assembly of Virginia” (11/12/1784), in Foote, Sketches, 336–38. Also, see Buckley, Church and State, 92–96. The petition’s reference to “religion” and not just “Christianity” suggests that the Presbyterians would not have objected to the public funding of other religions besides Christianity.

  54. 54.

    For the Presbyterians’ arguments against the bill, see the petition from Hanover Presbytery (11/2/1785), in Foote, Sketches, 342–44. Also see McLoughlin, “Role,” 233, and Ragosta, Religious Freedom, 82–84. Although Madison voted for the incorporation act, he probably did so not because he approved of it, but because he knew it would be both popular among Episcopalians and decrease their desire for a general assessment bill and unpopular among dissenters and increase their opposition to such a bill. Ragosta, Religious Freedom, 82–83, and Buckley, Church and State, 107, 138–39.

  55. 55.

    Quoted in Ragosta, Religious Freedom, 84–85. Also see Buckley, Church and State, 99–101.

  56. 56.

    See, e.g., articles by “Vigilarius,” Virginia Journal and Alexandria Advertiser, 2 (3/31/1785), 1–2, and (4/7/1785), 1–2.

  57. 57.

    Scholars do not agree on how many petitions were submitted. Thomas Buckley writes that there were 101—90 against and 11 for the bill, Church and State, 145—whereas John Ragosta writes that there were 79 against and 20 in favor of the bill. Religious Freedom, 97.

  58. 58.

    Buckley, Church and State, 152. One of the most influential Episcopal clergymen, the Rev. James Madison, was opposed to the bill and may have played a crucial role in getting the Convention to take a neutral position on it. McBride, Pulpit, 84–85.

  59. 59.

    Church and State, 147–52.

  60. 60.

    Petition, hereafter cited as “M&R,” from “inhabitants” of Albemarle (received on 10/28), Amherst (10/28), Louisa (10/29), Culpepper (11/2), Goochland (11/2), Fairfax (11/3), Orange (11/3), Fairfax, again (11/14), Loudoun (12/1), Stafford (12/1), Frederick (12/10) Counties, and from miscellaneous persons (11/15), in EVRP. The paginated version of “M&R” cited hereafter is in PJM, 8:298–304. Although Madison’s petition was more philosophical and inclusive than were the other petitions, with a couple of exceptions, its points were no different from those made in many of the other petitions, including those submitted as early as 1776. This is not to deny the influence and importance of Madison’s petition, only its originality: Madison’s ideas on government and religion were widely held among Virginians. Banning, “James Madison,” 118.

  61. 61.

    Petitions from Hanover Presbytery (adopted on 8/13 & received on 11/2) and supported by nine brief petitions (received on 11/12, 11/15, & 11/18); from a meeting of Quakers (received on 11/1) and resubmitted by two other groups (11/14); from several Baptist associations meeting in Powhatan County (adopted on 8/13 & received on 11/3); and from several Baptist Churches meeting in Orange County (adopted on 9/17 & received on 11/17), all in EVRP.

  62. 62.

    Petition from “inhabitants” of the counties of Cumberland (received on 10/26), Surry (10/26), Buckingham (10/27), Charlotte (10/27), Henry (10/27), Isle of Wight (10/28), Goochland (11/2), Prince Edward (11/2), Brunswick (11/9), Princess Anne (11/17), Amelia (11/18), Dinwiddie (11/28), Powhatan (11/28), Prince George (11/28), Southampton (11/28), Henrico (12/1), and Lunenburg (12/1). A slightly different version of the same petition was submitted by “inhabitants” of Caroline (10/27), Hanover (11/17), and Henrico (11/28) Counties. A third version of same was submitted by “inhabitants” of Westmoreland (11/2), Northumberland (11/28), and Richmond (11/28) Counties, all in EVRP. Although nothing in the petitions themselves supports his claim, Ragosta writes that most of these petitions were submitted by congregations of Baptists, Religious Freedom, 86; Buckley says that they “may well have been the work of the Baptists.” Church and State, 149, fn. 12.

  63. 63.

    Petitions from “inhabitants” of the counties of Bedford (10/27), Nansemond (10/27), Richmond (10/27), Accomack (10/28), Essex (11/2), Rockbridge (11/2), King & Queen (11/5), Pittsylvania (11/7), Pittsylvania (11/7), Amelia (11/9), Middlesex (11/10), Chesterfield (11/14), Montgomery (11/15), Brunswick (11/28), Fauquier (11/29), Spotsylvania (11/29), Botetourt (11/29), Amelia (11/?), Fairfax, Prince William, Fauquier, Loudoun (11/?), Amherst (12/10), & Washington (12/10), all in EVRP.

  64. 64.

    Ragosta, Religious Freedom, 85–89, 97.

  65. 65.

    Religious Freedom, 96 (emphasis added). In a letter to Jefferson, Madison viewed the petitions similarly: “The table was loaded with petitions & remonstrances from all parts against the interposition of the Legislature in matters of Religion.” Quoted in Ragosta, Religious Freedom, 90 (emphasis added).

  66. 66.

    Petitions from “inhabitants” of Westmoreland (11/2), Rockbridge (11/2), Northumberland (11/28), Richmond (11/28) Counties, all in EVRP.

  67. 67.

    “M&R,” 8:299, 301, and petition from “inhabitants” of Amherst County (12/10), in EVRP. Also see “Vigilarius,” (3/31/1785): 2. According to Vincent Munoz, “[t]he ‘Memorial’s’ fundamental teaching . . . is jurisdictional—namely, that states lack jurisdiction to enact a law that takes cognizance of religion.” God, 28, fn. 48.

  68. 68.

    Petition from “inhabitants” of Botetourt County (11/29), in EVRP.

  69. 69.

    Petition from “inhabitants” of Chesterfield County (11/14), in EVRP.

  70. 70.

    Petition from Baptists meeting in Powhatan County (11/3). Also see petitions from Hanover Presbytery (11/2) (“it would be an unwarrantable stretch of [government’s] Prerogative . . . to make laws concerning it [religion];” from “inhabitants” of Bedford (10/27) (Religion should “stand on its own Basis without the Interposition of the Legislature”), Westmoreland (11/2), Northumberland (11/28), Richmond (11/28)(Legislature should not “step into the Field of Religion”), Montgomery (11/15) (“We wish our civil & religious regulations to be kept forever distinct”), Amherst (12/10) (Christianity “has no Necessary Dependence on or Connexion with the Institutions of Civil Society”), and Washington (12/10) (Christianity is “superior to and independent upon all civil laws”) Counties; and from Baptists meeting in Orange County (11/17), all in EVRP.

  71. 71.

    “M&R,” 8:301, and petitions from Hanover Presbytery (11/2), Baptists meeting in Powhatan County (11/3) and “inhabitants” of Caroline (10/27), Accomack (10/28), Amelia (11/9), Rockbridge (11/2), Westmoreland (11/2), Chesterfield (11/14), Hanover (11/17), Henrico (11/28), Northumberland (11/28), Richmond (11/28), and Spotsylvania (11/29) Counties, all in EVRP. Also, see “Vigilarius,” (3/31/1785): 1–2.

  72. 72.

    Philip Hamburger, “Equality and Diversity: The Eighteenth-Century Debate about Equal Protection and Equal Civil Rights,” in The Supreme Court Review 1992 (Chicago: Univ. of Chicago Press, 1993): 347–52.

  73. 73.

    Petition from “inhabitants” of Bedford County (10/27), in EVRP. Also see petitions from “inhabitants” of Bedford (10/27) and Montgomery (11/15) Counties, which stated that if the legislature were to legislate in matters of religion, it would “violate” or be “inconsistent” with Art. 16’s guarantee of “the free Exercise of Religion.” In EVRP. Other petitions implied that they agreed with this point when they said that Art. 16 was infringed specifically by the assessment bill. See the petitions from the Hanover Presbytery (11/2) and from “Inhabitants” of Rockbridge (11/2) and Botetourt (11/29) Counties, in EVRP. This claim had been made in a newspaper article published earlier in 1785. Buckley, Church and State, 115.

  74. 74.

    Quoted in Robert B. Semple, A History of the Rise and Progress of the Baptists in Virginia (Richmond, VA: John Lynch, 1810), 71. For other petitions that equated being “intirely free in all Matters of Religion” with the absence of laws on matters of religion, see those from “inhabitants” of Richmond (10/27), Essex (11/2), King & Queen (11/5), and Middlesex (11/10) Counties, in EVRP.

  75. 75.

    Petition from “inhabitants” of Pittsylvania County (11/7) (emphasis added). Also see petition from “inhabitants” of Botetourt County (11/29)—both in EVRP. The petition from the Hanover Presbytery (11/2) stated that a law that “makes invidious distinctions, on account of Religious Opinions” is “dangerous to our liberties.” In EVRP.

  76. 76.

    Petition from “inhabitants” of Rockbridge County (11/2) (emphasis added), in EVRP.

  77. 77.

    Paul J. Weber, “James Madison and Religious Equality: The Perfect Separation,” Review of Politics, 44 (April 1982): 184.

  78. 78.

    Petitions from “inhabitants” of Bedford (10/27), Nansemond (10/27), Westmoreland (11/2), Northumberland (11/28), Richmond (11/28), and Amherst (12/10) Counties, in EVRP.

  79. 79.

    Petitions from “inhabitants” of Nansemond (10/27) and Brunswick (11/28) Counties, in EVRP.

  80. 80.

    Petition from Hanover Presbytery (11/2) and “inhabitants” of Amherst (12/10), Rockbridge (11/2), Westmoreland (11/2), Chesterfield (11/14), Montgomery (11/15), Northumberland (11/28), Richmond (11/28), and Botetourt (11/29) Counties, in EVRP.

  81. 81.

    Petitions from Baptists meeting in Powhatan County (11/3). Also see petitions from “inhabitants” of Chesterfield (11/14), Montgomery (11/15), and Amherst (12/10) Counties, in EVRP. Also, see Buckley, Church and State, 140, 181.

  82. 82.

    Petitions from “inhabitants” of Botetourt County (11/29 and from Baptists meeting in Powhatan County (11/3), in EVRP.

  83. 83.

    “Memorial of the Presbytery of Hanover to the General Assembly of Virginia” (October 1784), in American State Papers Bearing on Sunday Legislation, ed. W. A. Blakely (Washington, DC: Religious Liberty Association, 1911, rev. ed.), 110–11. Also see Buckley, Church and State, 150.

  84. 84.

    Petition from “inhabitants” of Montgomery County (11/15) (emphasis added), in EVRP, and “M&R,” 8:299.

  85. 85.

    “M&R,” 8:299.

  86. 86.

    “M&R,” 8:301; the “formula” petitions, cited in fn. 66; petitions from Baptists meeting in Powhatan County (11/3) and in Orange County (11/17), Quakers (11/14), and from Hanover Presbytery (11/2); and from “inhabitants” of Nansemond (10/27), Accomack (10/28), Amelia (11/9), Montgomery (11/15), Amelia (11/9), Botetourt (11/29), Fauquier (11/29), Amherst (12/10), and Washington (12/10) Counties, in EVRP. Also, see “Vigilarius,” (3/31/1785): 2.

  87. 87.

    See the “formula” petitions, cited in fn. 66, and petitions from Hanover Presbytery (11/2) and from “inhabitants” of Westmoreland (11/2), Amelia (11/9), and Montgomery (11/15) Counties, in EVRP.

  88. 88.

    See the “formula” petitions, cited in fn. 66, and petitions from Baptists meeting in Powhatan County (11/3) and in Orange County (11/17), and from Hanover Presbytery (11/2), and from “inhabitants” of Nansemond (10/27), Rockbridge (11/2), Pittsylvania (11/7), Amelia (11/9), Botetourt (11/29), Fauquier (11/29), Amherst (12/10), and Washington (12/10) Counties, in EVRP.

  89. 89.

    Petition from Hanover Presbytery (11/2).

  90. 90.

    “M&R,” 8:301, 303, and petitions from “inhabitants” of Botetourt (11/29) and Amherst (12/10) Counties. Also, see “Vigilarius,” (3/31/1785): 2.

  91. 91.

    “M&R,” 8:302 (emphasis added) and Weber, “James Madison,” 171, 185.

  92. 92.

    “M&R,” 8:301–302; “formula” petitions cited in fn. 66; and petitions from “inhabitants” of Westmoreland (11/2), Chesterfield (11/14), Montgomery (11/15), Botetourt (11/29), and Fauquier (11/29) Counties, in EVRP. This argument had been popularized by Jefferson when he published his Notes on Virginia in 1782. See Works of Thomas Jefferson, 4:80–81.

  93. 93.

    “M&R,” 8:302, and petition from Baptists meeting in Powhatan County (11/3), in EVRP.

  94. 94.

    “M&R,” 8:302, and petition from Hanover Presbytery (11/2), in EVRP.

  95. 95.

    “M&R,” 8:303, and petitions from “inhabitants” of Richmond (10/27), Essex (11/2), Westmoreland (11/2), King and Queen (11/5), Pittsylvania (11/7), Middlesex (11/10), Northumberland (11/28), Richmond (11/28), Washington (12/10) Counties, and from Hanover Presbytery (11/2) and Baptists meeting in Powhatan County (11/3) and Orange County (11/17), all in EVRP.

  96. 96.

    “M&R,” 8:302, and petitions from Hanover Presbytery (11/2) and the “inhabitants” of Chesterfield (11/14), Botetourt (11/29), Amherst (12/10), and Washington (12/10) Counties, in EVRP.

  97. 97.

    Discriminations on the basis of religion were called “invidious distinctions” and “distinctions of prominence.” Petitions from Hanover Presbytery (11/2) and “inhabitants” of Accomack (10/28) and Amelia (11/9) Counties, in EVRP.

  98. 98.

    “M&R,” 8:300, and “formula” petitions cited above in fn. 66, and petitions from Hanover Presbytery (11/2) and from “inhabitants” of Pittsylvania (11/7), Chesterfield (11/14), Amherst (12/10), and Washington (12/10) Counties, in EVRP. Curry, The First Freedoms, at 145, says that a majority of the petitions made this argument.

  99. 99.

    Petitions from “inhabitants” of Chesterfield (11/14), Montgomery (11/15), Botetourt (11/29), and Amherst (12/10) Counties, in EVRP.

  100. 100.

    “M&R,” 8:300, and petitions from Hanover Presbytery (11/2), Baptists meeting in Orange County (11/17), and “inhabitants” of Amherst County (12/10), in EVRP.

  101. 101.

    For this reason, George Washington wrote that he was not “so much alarmed at the thoughts of making People pay towards the support of that which they profess, . . . if of the denominations of Christians; or declare themselves Jews, Mahomitans or otherwise, & thereby obtain proper relief,” but he was not a defender of the assessment bill, because he thought its enactment would be “impolitic . . . it will rankle, & perhaps convulse the State.” Quoted in Ragosta, Religious Freedom, 79.

  102. 102.

    Some petitioners were also unconvinced that the bill would not have forced non-Christians to support Christianity, perhaps because they knew that most, if not all, of the teachers in such “seminaries” would be Christian ministers and/or would promote Christianity. Ragosta, Religious Freedom, 94. See petitions from Hanover Presbytery (11/2) and from “inhabitants” of Botetourt (11/29) and Amherst (12/10) Counties, in EVRP.

  103. 103.

    “M&R,” 8:300–01, and petitions from Hanover Presbytery (11/2) and Baptists meeting in Orange County (11/17), in EVRP.

  104. 104.

    The Quakers/Mennonites were free to spend their funds for whatever “they shall think best calculated to promote their own particular mode of worship,” whereas all other Christians could spend theirs only for ministers’ salaries or church buildings, but “Vigilarius” labeled this difference an “invidious distinction.” (4/7/1785): 1.

  105. 105.

    “Memorial of the Presbytery of Hanover to the General Assembly of Virginia” (May 1784), in American State Papers, 100–01 (emphasis added).

  106. 106.

    “M&R,” 8:300. Also see petition from “inhabitants” of Botetourt County (11/29), in EVRP. A few years later, Madison repeated his belief that Sec. XVI’s guarantee of “the rights of Conscience” precluded “a religious establishment.” “Letter to Thomas Jefferson” (10/17/1788), in PJM, 2:297. Also, see Rodney Smith, “Getting Off on the Wrong Foot and Back on Again,” Wake Forest Law Review, 20 (1984): 595; Michael J. Paulsen, “Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication,” Notre Dame Law Review, 61 (1986): 326–27; and Weber, “Madison,” generally.

  107. 107.

    The “formula” petitions cited above in fn. 66 and petitions from Baptists meeting in Orange County (11/17) and from “inhabitants” of Chesterfield (11/14) County, in EVRP. Also see Hamburger, “Equality,” 346–47.

  108. 108.

    The Transformation of Virginia, 1740–1790 (Chapel Hill, NC: Univ. of Carolina Press, 1982), 292. Agreeing is Curry, Farewell, 39–40.

  109. 109.

    At one point in its drafting, the bill had been worded so as to extend its benefits to all “who profess the public worship of the Deity.” According to Madison that wording was changed (from “Religious” to “christian”) as a result of the “pathetic zeal” of Benjamin Harrison. Quoted in Dreisbach, “Church-State Debate,” 151.

  110. 110.

    See, e.g., Robert L. Cord, Separation of Church and State : Historic Fact and Current Fiction (N.Y.: Lambeth Press, 1982), 19–21; Rosenberger v. University of Virginia, 515 U.S. 819, 854 (1995) (Thomas, concurring); and Wallace v. Jaffee, 472 U.S. 38, 91–114 (1985)(Rehnquist, dissenting).

  111. 111.

    Leonard W. Levy, Origins of the Bill of Rights (New Haven, CT: Yale Univ. Press, 1999), 85 (“. . . [N]o one for or against the bill thought that its extension to Hinduism, Islam, Judaism, and other religions would remedy any [of its] defects,”) and Ragosta, Religious Freedom, 95 (“There is no indication that those opposed to the assessment would have supported it had it benefited all religions rather than just Christianity”).

  112. 112.

    Eric R. Schlereth, An Age of Infidels: The Politics of Religious Controversy in the Early United States (Philadelphia, PA: Univ. of Pennsylvania Press, 2013), 5. This was true of Jefferson. Malbin, Religion, 35, fn. 36.

  113. 113.

    Ragosta, Religious Freedom, 94–96.

  114. 114.

    For examples, see Buckley, Church and State, 50–51, 60.

  115. 115.

    Petitions from the Hanover Presbytery (11/2), from Baptists meeting in Powhatan (11/3) and Orange (11/17) Counties, and from “inhabitants” of Accomack (10/28), Amelia (11/9), Pittsylvania (11/7), and Amherst (12/10) Counties, in EVRP.

  116. 116.

    “M&R,” 8:300 (emphasis added).

  117. 117.

    Petitions from “inhabitants” of Accomack (10/28) and Amelia (11/9) Counties, from Hanover Presbytery (11/2), and from Pittsylvania County (11/7), in EVRP. Also see Buckley, Church and State, 151.

  118. 118.

    Petitions from Baptists meeting in Powhatan County (11/3) and from “inhabitants” of Caroline (10/27), Rockbridge (11/2), Amelia (11/9), Hanover (11/17), Brunswick (11/28), Henrico (11/28), Botetourt (11/29), and Amherst (12/10) Counties, in EVRP.

  119. 119.

    There is simply no basis for William McLoughlin’s claim that “the deciding factor against the general-assessment plan . . . was not so much a principled commitment to voluntary-ism as a combined fear of Anglican preeminence and an unwillingness to accept additional taxation even for such a desirable goal.” “Role,” 222. Compare his claim with that of Rhys Isaac, “No doubt, a vigorous tax revolt was a very important part of the commotions . . . but our documents tell little of that, and we can only speculate on its proportional contribution to the antiassessment campaign.” “‘Rage’,” 147.

  120. 120.

    Buckley, Church and State, 176–79, and Ragosta, Religious Freedom, 96–97. McLoughlin gives a very misleading account of what happened. He refers to “Madison’s desperate fight against this bill” and says that “Presbyterians and other dissenters seemed willing to acquiesce in the plan.” He then suggests that most Americans believed that “a declaration of rights guaranteeing the free exercise of religion in no way prohibited the general establishment of Christianity,” even though the letter (by Richard Henry Lee) on the basis of which he makes that claim explicitly refers to “the support of religion in general.” Finally, ignoring the petitions submitted by the dissenters in Virginia, he says that “it was Jefferson and Madison’s position that was eccentric at this time.” “Role of Religion,” 220–22.

  121. 121.

    See petitions from Hanover Presbytery (11/2) (In return for “preserving our Religion free from the Shackles of Human Authority, . . . we are zealously disposed to support the Government . . . & to maintain a due Submission to the Lawful Exercise of its Authority”) and from “inhabitants” of Montgomery County (11/15) (“. . . [I]f a Man discharges his Duty towards the state, he cannot . . . owe an account to any one, whether, or in what manner he discharges his Duty to his Creator”) and Botetourt County (11/29) (So long as Sec. 16 is upheld, “we are willing to make every necessary sacrifice of our liberty for the good of society”), in EVRP.

  122. 122.

    David Thomas, “The humble Petition of a Country Poet,” in A General History of the Baptist Denomination in America, ed. David Benedict (Boston, MA: Lincoln & Edmans, 1813), 2:479.

  123. 123.

    “M&R,” 8:299.

  124. 124.

    “Origins,” 1453.

  125. 125.

    McConnell concedes that Madison’s comment about the exemptions given to Quakers and Mennonites “provides some support for the no-exemptions view, since it describes the ‘peculiar exemptions’ in the bill as ‘extraordinary privileges’ that violate the principle of religious equality.” “Origins,” 1454.

  126. 126.

    See Vincent P. Munoz, “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion,” American Political Science Review, 110 (May 2016): 373. McConnell unintentionally admits the validity of this argument when he cites as evidence that Jefferson did not believe that religious liberty entails a right to religion-based exemptions the fact that he also said that “man . . . has no natural right in opposition to his social duties.” “Origins,” 1451, quoting Jefferson’s “Letter to a Committee of the Danbury Baptist Association” (Jan. 1, 1802). Obviously, if Jefferson’s believing that religious liberty does not conflict with civil or social duties means that he opposed religion-based exemptions from valid, civil laws, then Madison’s believing the same thing means that he too opposed such exemptions.

  127. 127.

    “Madison’s Principle,” 31.

  128. 128.

    For an extended account of its passage, see Buckley, Church and State, 155–64.

  129. 129.

    “Bill for Establishing Religious Freedom,” in PTJ, 2:545–46, 552–53, fn’s 1, 4, 9.

  130. 130.

    See Buckley, Church and State, 158, fn. 45. After all, it is clear that by “our religion” Jefferson was referring to Christianity. If, moreover, arguments in favor of protecting non-Christians are undercut or nullified if they are based on Christian theology, then that would mean that Madison’s own arguments for doing so in his “Memorial and Remonstrance” are problematic because he explicitly appeals to the teachings of the “Christian Religion” and claims that “the bill is adverse to the diffusion of the light of Christianity.” “M&R,” 8:301, 303.

  131. 131.

    Quoted in Buckley, Church and State, 157–58, fn. 45.

  132. 132.

    See Ragosta, Religious Freedom, 91, and McLoughlin, “Role,” 213, fn. 20.

  133. 133.

    Malbin, Religion, 28 (“Madison . . . probably would have wanted more had he had his first choice.”) A close comparison of Jefferson’s bill with Madison’s “Memorial and Remonstrance” shows that the latter expressed a more radical position on the kind of laws on religion that should be prohibited and also used more theological arguments than the former did. The beliefs in which Madison’s main argument was grounded were “not merely theistic but Christian, and not merely Christian but Protestant, and not merely Protestant but reflective of a sort of nonstatist voluntarist Protestantism akin to that of the Baptists . . . .” Steven D. Smith, Getting over Equality: A Critical Diagnosis of Religious Freedom in America (N.Y.: New York Univ. Press, 2001), 16.

  134. 134.

    Buckley, Church and State, 164.

  135. 135.

    Quoted in Id. Years later, Madison wrote that Jefferson’s statute denied government jurisdiction over religion. Elizabeth Fleet, ed., “Madison’s ‘Detached Memoranda’,” William and Mary Quarterly, third series, 3 (October 1946): 554–55.

  136. 136.

    E.g., Thomas Curry writes, “Never had any government [referring to Jefferson’s statute] so clearly embraced the conviction of Roger Williams that government had no power whatsoever in religious matters.” “Church and State in Seventeenth and Eighteenth Century America,” Journal of Law & Religion, 7 (1989): 268. Also see Frank Lambert, The Founding Fathers and the Place of Religion in America (Princeton, NJ: Princeton Univ. Press, 2003), 225–26; Spellberg, Thomas Jefferson’s Qur’an, 115–17; Beneke, “‘Not by Force’,” 20–23, 27–28; and Isaac, “‘Rage’,” 146.

  137. 137.

    See above, p. 65.

  138. 138.

    “A Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers,” in PTJ, 2:555.

  139. 139.

    See above, pp. 76, 78.

  140. 140.

    Curry, First Freedoms, 148.

  141. 141.

    “A Petition Relating to Church Establishment” (1786), in Church and State in American History, ed. John F. Wilson & Donald L. Drakeman (Boulder, CO: Westview Press, 3rd ed., 2003), 69 (emphasis added).

  142. 142.

    Buckley, Church and State, 165–72.

  143. 143.

    Banning, “James Madison,” 135, fn. 46; Buckley. Church and State, 175; and Curry, Farewell, 33, fn. 21. In his essay attacking the assessment bill, “Vigilarius” claimed that the ideas about religious liberty summarized in this chapter were “the prevailing sentiments of the citizens of this State.” (3/31/1785): 2.

  144. 144.

    Banning, “James Madison,” 118 (“Madison’s ‘Memorial’ was more eclectic than inventive, an effort reminiscent of Jefferson’s attempt, when drafting the Declaration of Independence, to set forth the general understandings of the age.”), and Isaac, “‘Rage’,” 149–50. For the argument and evidence that Jefferson was less protective of religious liberty than was Madison, see Munoz, God, 82–116, 208–12.

  145. 145.

    It is significant and even remarkable that none of the petitions against the general assessment bill condemned it on the grounds that Catholic churches could benefit from it. McLoughlin, “Role,” 214, fn. 21.

  146. 146.

    See “Bill for Establishing Religious Freedom,” in PTJ, 2:546, and “Notes on Locke and Shaftesbury,” in PTJ, 1:548, 551 n. 2.

  147. 147.

    Malbin, Religion, 37 (“At no time did anyone in Virginia other than Madison [and as explained above, Malbin should not have excluded Madison] suggest that the overt activities of religious people should be judged by standards different from those used to judge the overt actions of irreligious people.”).

  148. 148.

    Isaac, “‘Rage’,” 161–62.

  149. 149.

    Daniel L. Dreisbach, “Virginia’s Contributions to the Enduring Themes of Religious Liberty in America,” in From Jamestown to Jefferson: The Evolution of Religious Freedom in Virginia, ed. Paul Rasor & Richard E. Bond (Charlottesville, VA: Univ. of Virginia Press, 2011), 186, and 175–86.

  150. 150.

    “Letter to William B. Sprague” (July 22, 1828), in The Papers of John Marshall, ed. Herbert A. Johnson et al. (Chapel Hill, NC: Univ. of North Carolina Press, 1974–), 11:168, and Dreisbach, “Virginia’s Contributions,” 186. Agreeing is Chris Beneke, Beyond Toleration: The Religious Origins of American Pluralism (N.Y.: Oxford Univ. Press, 2006), 166.

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    Ellis M. West

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West, E.M. (2019). The Meaning of Religious Liberty in Virginia. In: The Free Exercise of Religion in America. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-06052-7_4

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