Do States’ Rights Include the Right to a State Religion?

By Ed Buckner | 23 June 2023
Letters to a Free Country


About the Friday Freethought Perennials (FFPs) in general: This subset of my Letters is to answer questions, nearly always already answered by me and by many others but posed again and again—over many years and in many places—on freethought, atheism, secular humanism, secularism/church-state/ “This is a Christian Nation,” and similar topics. These answers are mostly not intended to be original analyses, breaths of fresh air, so much as just putting a whole series of things on the record (I’d say “forever,” except I know better). One source for many of these answers is the 2012 Prometheus Books book by me and my son (Michael E. Buckner), In Freedom We Trust: An Atheist Guide to Religious Liberty (abbreviation: IFWT). It’s available in many libraries and pretty readily in the used book after-market. I’ll cite writings of others that answer these things in more depth if I’m aware of them when I post these.

Can States Have Their Own Preferred Religion?

Are U.S. States allowed to have their own preferred religion? Yes—and then later, emphatically, No!

Can U.S. States require a citizen to be a Christian to hold office? Yes—and then later, emphatically, No!

Can U.S. States permit some of their citizens to “own” other people? Yes—and then later, emphatically, No!

The last of these, permitting slavery, was the biggie, of course. And despite all manner of Lost Cause bull to the contrary, it was THE “State’s right” that led to the most horrific American war—the U.S. Civil War, involving Americans killing Americans—imaginable.

The way American history unfolded is often not well understood. The colonies fought a bloody war against the British and won independence as the thirteen original States. These States formed an alliance under the Articles of Confederation, with each State largely holding on to its separate identity.

Under the Articles—which governed what later became the constitutional republic known as the United States of America until 1789—the thirteen States were in some ways more like independent nations in a loose alliance, and each State settled matters like the rights of individual citizens and whether the government could establish and support a religion separately from the others.

Virginia, in some ways the most British of the colonies, had as its established (State-supported) church, the Church of England. Ties with that ended as part of the fruits of the Revolutionary War, ending completely in 1786 when the Virginia General assembly passed the Statute for Religious Liberty (written earlier by Thomas Jefferson; shepherded to passage by Jefferson protege James Madison.) Madison, nominally a local leader of the Church of England, had been appalled at the colonial government’s treatment of religious dissenters—including jailing Baptist preachers for telling people to read the Bible for themselves. Madison famously wrote to a friend, in 1774, about treating preachers this way, that

Religious bondage shackles and debilitates the mind and unfits it for every noble enterprise, every expanded prospect.

And there are Baptist churches in Georgia today that trace their origins to preachers fleeing from persecution by the colonial government of Virginia. So this was not merely an academic, philosophical dispute.

Interestingly, Georgia’s first state constitution, in 1777, not only didn’t establish a church—it even forbade clergymen from holding legislative office (this was apparently never enforced).

Even after the U.S. Constitution and the Bill of Rights were passed in the late 1780s and early 1790s, States still had considerable separate and independent “rights”—including those cited at the start of this Letter. These States Rights were a matter of considerable dispute and, by mid-19th century, led to war, mostly over slavery.

States like Connecticut had an established church—the Congregational Church, supported by law and with tax dollars from Connecticut citizens. That establishment was voted out in 1818 and former President Thomas Jefferson congratulated former President John Adams of Massachusetts on this New England disestablishment—

He [Jefferson] rejoiced with John Adams when the Congregational church was finally disestablished in Connecticut in 1818;  welcoming “the resurrection of Connecticut to light and liberty,” Jefferson congratulated Adams “that this den of priesthood is at length broken up, and that a protestant popedom is no longer to disgrace American history and character.”  —Edwin S. Gaustad, Faith of Our Fathers: Religion and the New Nation, 1987.

Jefferson may have been tweaking Adams a bit on this, as the Congregational Church remained established in Massachusetts until 1833, when the citizens of Adams’ home State voted it out by an overwhelming margin. That was the last American State to have such an establishment of religion, though the language of establishment persisted in State Constitutions long after that.

One State where the remnants of established theism/Christianity persisted until 27 May 1997 was in South Carolina. My friend Herb Silverman ran first for Governor (losing as utterly as he predicted he would) and then engaging in a protracted battle to become a notary public. The South Carolina(!) Supreme Court decreed on that May day in 1997 that South Carolina’s established preference for theism was no longer a States Right they could claim. It’s a long and delightful—funny as well as pointed—story, but it’s Herb’s story and he tells it quite well, in place like his books,

And maybe I’ll persuade him to retell it in a guest essay in Letters. He’ll need to include his explanation of why he valued his certificate as a notary public more, in some ways, than his doctorate in mathematics.

The history that most often gets lost came in the years and constitutional amendments that followed the Civil War. The Thirteenth Amendment (adopted 1865) made slavery unconstitutional; the Fourteenth Amendment (1868) effectively destroyed most States Rights—and made being a citizen of the U.S. more important than being a citizen of Georgia or Virginia, etc.; and the Fifteenth Amendment (1870) declared that

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.

It was the Fourteenth that ended forever (short of a Constitutional Amendment) the power of a State to have its own religion or to prefer Christianity or theism over non-Christianity. The primary purpose of the Amendment was, to be sure, to protect the rights of U.S. Citizens who were Black from the depredations of States, especially Southern States. But the language of the Amendment makes quite clear that all U.S. citizens are covered by the U.S. Constitution and the First Amendment and protected from having any State impose religion, slavery, or anything else on such citizens because they happened to live in Alabama or Georgia. Judge Roy Moore of Alabama was completely sure that the Fourteenth didn’t offer such protections—but Judge Moore was completely wrong. Here’s the language from the Fourteenth that matters:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This means that Georgians who are Catholic or Baptist cannot be required to accept the State government’s ideas of the correct religious belief—and the same goes for atheists or Jews or Muslims, etc., and for every other State.

The full history of the transformation of the U.S. after the Civil War is told quite clearly and effectively by historian Eric Foner. Especially in his 2019 book—

Foner’s powerful analysis of the three key post Civil War Constitutional Amendments describes, sums up, and explains our Second Founding well.

Ed Buckner is an American atheist activist who served as president of the organization American Atheists from 2008 to 2010. He served as executive director for the Council for Secular Humanism from 2001 to 2003 and was once the Council’s southern director. He is the author (with Michael E. Buckner) of In Freedom We Trust: An Atheist Guide to Religious Liberty (Prometheus Books, 2012).

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