The Religious Origins of Disestablishment Principles
Marci A. Hamilton
Cardozo Law School
Notre Dame Law Review, Vol. 81, No. 5, 2006
Cardozo Legal Studies Research Paper No. 171
Some have argued that Establishment Clause jurisprudence is the enemy of religion, and, in particular, Christianity. This Article reaches an opposing conclusion: Core principles behind current Establishment Clause jurisprudence were derived from Christian denominations at the time of the founding.
The United States did not begin as a unified Christian culture, but rather as a pluralistic collection of religious believers, some living in tension with other believers and some more tolerant. While it is true that the vast majority of denominations were Christian, the sense of difference among them was profound. There were Anglicans, Congregationalists, Methodists, Deists, Dutch Reformed, Baptists, Presbyterians, Quakers, and Catholics, as well as Jews. Protestants, taken as a whole, extended a strong influence, but the category, "Protestant," hides a wide array of religious beliefs and institutions - none of which ever held sole power over all of the colonies or states. The diversity of faith meant that there were numerous religious perspectives available to influence governing structures and theories. Conversely, it also means that no one religious tradition can claim sole responsibility for the structures that have been chosen.
There are numerous distinctive influences that led to basic establishment principles recognized today, including (1) the functional separation of church and state in the society; (2) a prohibition on government preferring one religion over another; (3) a right against government coercion of belief; (4) government tolerance of all religious belief (even if not all religious conduct); and (5) the necessity of embracing the principles of democratic republican governance even as one is a member of a church that employs very different governing principles.
This Article is an intellectual, religious history of the Establishment Clause. Today's Establishment Clause jurisprudence is illuminated when one learns how individual Christian denominations contributed to many of its basic principles.
Number of Pages in PDF File: 45
Keywords: religion, establishment clause, first amendmentAccepted Paper Series
Date posted: November 1, 2006
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