R E V . E L I Z A B E T H P U T N A M

WH AT D O T H E B AS I C T E R MS ME AN ?

FIRST
AMENDMENT
The Establishment
Clause:
Basis for determining legality and boundaries of Religious practice in
America
Amendment I:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

TERMS FROM AMERICAN
CONSTITUTION
Freedom of Exercise:
Right to choose how one expresses religious practices in ones daily life or in worship, either alone or in a religious community
(Freedom of
Expression)
Establishment:
The Government or
State determines that a specific religious group is the official religion of the country/state/region, laws may be based on that religion, taxes may support religious institutions

Religious Toleration:
Whether different religious groups are allowed to exist, worship freely or practice key elements of religion in daily life
State Interests:
Used in American jurisprudence, a governmental interest in general welfare for good of the whole state

H O W D I D WE G E T H E R E ?

State Power merged with Religious Power
Some limited freedom of expression within the central religion
No Religious Toleration
• Other groups must be conquered, killed or intermarry with conversion

State and Local power still merged
Empire controls religious leaders
Imperial control exerted in different ways
Still limited religious expression within central religion
Still no religious toleration within a region of the
Empire

Rome begins with state/religion merged
When Rome becomes an Empire,
Emperor becomes a
God
Emperor added to the pantheon of conquered groups
Exception for
Israelites
Each group within
Empire had selfexpression within
Imperial limits
Imperial control of the religious leaders of sub-groups within
Empire

EMPIRE AND ESTABLISHMENT OF
CHRISTIAN CHURCH
Rome initially attacks early
Christian groups
Early Church has no central authority under
Roman control
Church develops central authority through Imperial
Action
Christianity becomes official
State Religion
Persecution of non-official doctrines

UNITARIAN AND UNIVERSALIST
THOUGHT
Arian: Different
Stuff
Aetius:
Completely
Different Stuff
Origen:
Universal
Restoration
Possible

Tribal groups without central authority
Each tribal group has own gods
Tribes can co-exist: kinship bonds
Alliances
Within tribe, religious expression limited to tribal practice
Mecca is site of truce: built around site holy to all tribes

State and religious law are merged
Caliph final arbiter of law
Range of legal interpretation exists
Religious
Tolerance:
People of the
Book
Religious
Toleration includes toleration of alternate laws
Range of religious expression within
Islam: limitations

State gets authority from God
Laws technically separate from church laws
Tension between church and state authority
Religious Toleration:
Jews only tolerated group
Religious Expression:
Range within established church or laws

Head of State chooses
Established church
Arrests and execution of dissenters
Wars between states from different churches
Religious
Tolerance:
Limited to Jews
Religious Expression confined to established church

UNITARIAN AND UNIVERSALIST
THOUGHT IN REFORMATION ERA

King John
Sigismund of
Transylvania
Diet at Torda:
1568
Churches allowed to hear preacher they preferred
Advisor:
Frances David
Unitarian
First act of religious toleration in
Europe
First Unitarian
Churches
Possible

F R O M C O L O N I ES T O C O UN T R Y

Colonial Power determined religious toleration
British Colonies mixed
French and
Spanish colonies
Catholic
Rhode Island allowed most religious toleration
Some French
Huguenots in
British Colonies
Maryland example of change in charter

MASSACHUSETTS AND
ESTABLISHMENT
Congregationalism the established church of the colony of
Massachusetts
Tax money from town supported
Congregational church: most town not allowed to be members
Blue Laws were laws written to enforce behavior based on religious beliefs of
Congregationalists
Limited Religious
Toleration:
Church of England
Execution or exile of
Quakers:
Mary Dyer 1660

Universalists not tolerated in Church of England
John Relly
Universalism in
Church of England congregations: King’s
Chapel Boston
Universalism in colonies with some religious toleration:
Pennsylvania, New
Jersey, New York
First Universalist churches possible in the colonial period

JEFFERSON AND SEPARATION OF
CHURCH AND STATE
Thomas Jefferson drafts Virginia colony act of religious freedom
Drafted 1777, enacted 1786
No Religious Test for public office allowed
Disestablished
Church of
England
Full religious toleration and freedom of expression

• “Because religious belief, or non-belief, is such an important part of every person’s life, freedom of religion affects every individual. Religious institutions that use government power in support of themselves and force their views on persons of other faiths, or of no faith, undermine all our civil rights. Moreover, state support of an established religion tends to make the clergy unresponsive to their own people, and leads to corruption within religion itself. Erecting the “wall of separation between church and state,” therefore, is absolutely essential in a free society.”
• “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”

DISESTABLISHMENT IN
MASSACHUSETTS
First Amendment did not change all states immediately
1780-1824: Town
Vote determined church for whole town
1819: Canning’s
Spikes Ordination
Sermon
Legal battles across state as churches decide to be
Congregationalist or
Unitarian
Full Disestablishment in 1834

T H E R E C E N T D E C I SI O NS T H AT C H AN G ED T H E R UL E S

Religious bodies groups given special legal status
Freedom of
Religious
Expression
Limited by: State
Interests
Businesses excluded:
Public
Accommodation
Religious
Tolerance
Sherbert v.
Verner, (1963);
Wisconsin v.
Yoder, (1972))

Nativity Public
Display
County of
Allegheny v.
ACLU (1989)
Lynch v.
Donnelly (1984)
Endorsement vs.
Establishment
Solo Crèche not allowed, combined display allowed

The Change of Standard
Employment Division v.
Smith, (1990)
Standard changed to
Intent rather than effect
Federal RFRA in Response
1993
“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”
Supreme Court rules only in effect at Federal Level in 1997

After 1997, States begin to pass RFRA laws
Primarily tried to prevent unintended infringement of religious freedom

DO BUSINESSES HAVE RELIGIOUS
LIBERTY?
Businesses had always been excluded
Non-clergy had always been excluded in professional capacity
Laws of Conscience for Doctors and
Pharmacists
Sibelius vs. Hobby
Lobby (2014)
Court also says cannot adjudicate sincerity of stated belief or accuracy of belief.

Hobby Lobby charged ACA violated their religious liberty
Claimed certain birth control forms were abortifacients.
Most forms previously covered by
Hobby Lobby.
Hobby Lobby asserted religious freedom as a business entity.
Court gives some businesses religious freedom.

Religious freedom being claimed by businesses to limit options for employees and customers
Businesses asserting right to deny service based on religious beliefs.
Pharmacists may refuse to dispense medication:
Recent miscarriage case
Doctors now claiming right to refuse to discuss or refer to another provider
Businesses claiming to be churches to escape legal requirements:
Florida Party churches
Florida Holiday display battles:
Satanists and
Pastafarians

How do we stand for religious freedom in this time?
How do we stand for religious toleration in this time?
How do stand against denial of service?
How do we stand against business claim of religious liberty?
How do we join this debate?