Religious Freedom

Much of the immigration to British Colonial America was composed of Englishmen and continental peoples seeking escape from religious persecution in their homeland. Yet, being almost if not entirely the captives of their age, toleration was a concept largely unknown to them. The stories of Roger Williams and of Anne Hutchinson, expelled from their colonies, and of Quakers and Baptists tied to carts and dragged through colonial towns to be lashed by the populace, is testimony that the majority of the colonists were as insistent upon a special brand of religion as had been their own oppressors. But ultimately, perhaps because of the very diversity of sects and the inescapable necessity of living and working together, the tolerance of religious freedom preached by Williams and practiced in Rhode Island was generally recognized as desirable--so much so that an express safeguard for religious freedom was demanded and secured in the First Amendment.

Under that safeguard the right to hold whatever opinion on religion that one may wish has hardly been challenged. But when opinion turns to practice state authority may prevail. Jefferson, in his "Act Establishing Religious Freedom" in the state of Virginia discusses the distinction. He wrote, in part:

. . . to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy, which at once destroys all religious liberty. . . . it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order. . . .

As noted earlier, most of the few Supreme Court decisions on religion in the nineteenth century were in support of the above principle. Such cases could come before the Court only from territories subject to Congress, or from contests wherein a determination of state or federal function was required. Not until the Court interpreted the Fourteenth Amendment's "due process of law" clause as constituting a safeguard against invasions of religious liberty by states were many religious cases likely. The decisions bearing on religion during the last fifteen years have been more numerous and probably more productive of important case law than were all the preceding cases involving religion.