How did religious freedom develop in America? It didn’t happen the way most of us were taught in school—whether in elementary school or law school. In fact, notes legal scholar Richard Garnett, the “standard story” about religious freedom in Early America is profoundly misleading:
In my experience, this “standard story” is familiar to most Americans, whether or not they are historians or constitutional lawyers, though lawyers have probably been more exposed to and influenced by it than most. In this account, our sophisticated and “enlightened” Founding Fathers—with far-seeing Virginians like Thomas Jefferson and James Madison in the lead—took special care to write and design a “godless” constitution so as to spare our new political community and experiment from the superstition and strife that, they knew all too well, had ravaged and torn Europe in the preceding centuries. In this story, the First Amendment was crafted and constitutionalized so as to entrench a principle—a “wall”—of church-state separation and ensure a secular “public” sphere, with religion protected, but confined within, the “private” realm.
This story is not true. In fact, America’s revolution and constitution were shaped not only by the Enlightenment but also by the Great Awakening, by preachers as well as pamphleteers. And, as John Witte describes in Religion and the American Constitutional Experiment, the Founding-era arguments about religious freedom under law included not just “Enlightenment thinkers” but also “congregational Puritans,” “Free Church Evangelicals,” and “Civic Republicans.” It would not have been difficult to identify a consensus in favor of the liberty of religious conscience and a distinction between religious and political authority and office, but this consensus obtained at a high level of generality and allowed for variation and disagreement with respect to many—indeed most—questions and applications. And, it seems very unlikely that the First Amendment was widely seen as embodying, let alone entrenching, much beyond an aversion to a nationally established church, backed and propped up by legal coercion, of the kind they knew existed elsewhere. Hardly anyone, if anyone, thought that the ratification of the First Amendment meant that something called “religion” was now legally barred from the “public” or that, as a result of that provision, the constitutional validity of laws and policies was contingent on a judicial determination that they did not rest on “religious” beliefs or motives.
