Religious Rights in the Founding Era

43 Pages Posted: 23 Jan 2004  

John Witte Jr.

Emory University School of Law

Date Written: November 2003

Abstract

The eighteenth-century American founders distinguished six principles of religious liberty - liberty of conscience, freedom of exercise, equality of faiths, plurality of confessions, disestablishment of religion, and separation of church and state. They "incorporated" these six principles into the original state constitutions, though with different emphases and applications. They also "incorporated" these six principles into the First Amendment religion clauses. The free exercise clause outlawed government proscriptions of religion-actions that unduly burdened the conscience, restricted religious expression, discriminated against religion, or invaded the autonomy of churches and other religious bodies. The disestablishment clause outlawed government prescriptions of religion-actions that coerced the conscience, mandated forms of religious expression, discriminated in favor of religion, or improperly allied the state with churches or other religious bodies. Both the free exercise and the disestablishment clauses thereby provided complementary protections to the first principles of the American experiment in religious liberty.

Suggested Citation

Witte, John, Religious Rights in the Founding Era (November 2003). Emory Public Law Research Paper No. 03-22. Available at SSRN: https://ssrn.com/abstract=480164 or http://dx.doi.org/10.2139/ssrn.480164

John Witte Jr. (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-727-6980 (Phone)
404-712-8605 (Fax)

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