No Establishment of Religion: America’s Original Contribution to Religious Liberty
T. Jeremy Gunn and John Witte Jr., editors
Oxford University Press 2012
The First Amendment guarantee that “Congress shall make no law respecting an establishment of religion” rejected the millennium-old Western policy of supporting one form of Christianity in each nation and subjugating all other faiths. The exact meaning and application of this American innovation, however, has always proved elusive. Individual states found it difficult to remove traditional laws that controlled religious doctrine, liturgy, and church life, and that discriminated against unpopular religions. They found it even harder to decide more subtle legal questions that continue to divide Americans today: Did the constitution prohibit governmental support for religion altogether, or just preferential support for some religions over others? Did it require that government remove Sabbath, blasphemy, and oath-taking laws, or could they now be justified on other grounds? Did it mean the removal of religious texts, symbols, and ceremonies from public documents and government lands, or could a democratic government represent these in ever more inclusive ways? These twelve essays stake out strong and sometimes competing positions on what “no establishment of religion” meant to the American founders and to subsequent generations of Americans, and what it might mean today.
“As the outstanding and wide-ranging essays in this volume illustrate, Americans have often disagreed about the meaning and application of the Establishment Clause of the Constitution, and have sometimes confused it with an anti-religious or secularizing policy of marginalizing or privatizing religion. The project of securing the human right to religious liberty by disentangling political and religious authority is ongoing and-as national and world events remind us every day-pressing. This book offers both a helpful introduction to and an insightful debate about the history and future of this project.”—Richard W. Garnett, Professor of Law and Associate Dean, Notre Dame Law School
About the Authors
T. Jeremy Gunn teaches international relations at Al Akhawayn University in Morocco and is Senior Fellow of the Center for the Study of Law and Religion at Emory University. His numerous publications include A Standard for Repair: The Establishment Clause, Equality, and Natural Rights and Spiritual Weapons: The Cold War and the Forging of an American National Religion.
John Witte, Jr. is Jonas Robitscher Professor of Law, Alonzo L. McDonald Distinguished Professor and Director of the Center for the Study of Law and Religion Center at Emory University. He has published 200 articles and 26 books, including Religion and the American Constitutional Experiment and Religion and Human Rights: An Introduction.
TABLE OF CONTENTS
List of Contributors
Introduction – John Witte, Jr.
1. The Separation of Church versus Religion in the Public Square: The Contested History of the Establishment Clause – T. Jeremy Gunn
2. Establishment at the Founding – Michael W. McConnell
3. Disestablishing Religion and Protecting Religious Liberty in State Laws and Constitutions (1776-1833) – Mark D. McGarvie
4. Roger Williams and the Puritan Background of the Establishment Clause – David Little
5. Toleration and Diversity in New Netherland and the Duke’s Colony: The Roots of America’s First Disestablishment – Paul A. Finkelman
6. James Madison, Thomas Jefferson, and the Meaning of ”Establishment of Religion” in Eighteenth-Century Virginia – Ralph Ketcham
7. The Continental Congress and Emerging Ideas of Church-State Separation – Derek Davis
8. The First Federal Congress and the Formation of the Establishment Clause of the First Amendment – Carl H. Esbeck
9. Defining and Testing the Prohibition on Religious Establishments in the Early Republic – Daniel L. Dreisbach
10. The Second Disestablishment: The Evolution of Nineteenth-Century Understandings of Separation of Church and State – Steven K. Green
11. Disestablishment from Blaine to Everson: Federalism, School Wars, and the Emerging Modern State – Thomas C. Berg
12. Some Reflections on Fundamental Questions About the Original Understanding of the Establishment Clause – Kent Greenawalt
13. Getting Beyond the ”Myth of Christian America” – Martin E. Marty