Few documents in the history of American religious freedom are as famous as Virginia’s “[A]ct for establishing religious freedom” – also known as Virginia’s Statute for Religious Freedom or (more colloquially) as Jefferson’s Statute. A quick glance at Jefferson’s text (carefully edited by the Virginia General Assembly) shows us why. Few other documents are such a clear and powerful exposition on the need for freedom of conscience.[1] The text has also aged well and appeals both sides of our modern church-state conflicts. On one hand the Statute suggests that religious freedom is a gift from god, for the “Almighty God hath created the mind free,” and on the other argues that religious beliefs are no different from “our opinions in physics or geometry.” In the Statute what the twenty-first century reader would think of as distinct “religious” and “secular” discourses are melded with spiritual coercion denounced as both “sinful and tyrannical.”[2] Who can disagree with that? It is no wonder why, then, that Jefferson had his role in drafting Virginia’s Statute for Religious Freedom engraved on his tombstone.
Jefferson’s Statute presents, however, a problem of memory and interpretation–one which plagues our general understanding of the history of freedom of conscience. Our general picture of the history of religious liberty in America resembles that of a person hopping stone by stone across a dangerous and rushing river. On the starting bank is dark, Popish, intolerant early modern Europe and on the other lies our sunny, pluralist present. Each stone across the river is a major moment in the history of religious liberty–from the Pilgrims, to Roger Williams’ Rhode Island, Jefferson’s Statute, the First Amendment, Everson, and more. The stones may be slippery but the path is clear and straight–from European darkness to American brightness. This teleological narrative is, as David Sehat has suggested, “ingrained into American consciousness,” as the recent PBS series “First Freedom” ably highlights.[3]
This narrative causes all kinds of problems in how we interpret Jefferson’s Statute. Commentators, be they historians, legal scholars, or others, tend to pillage the history and text of the Statute for insights into First Amendment, the next “stone” on the path of American religious liberty. It is common to see Virginia’s Statute for Religious Freedom as an ending–towards the move among states toward a “general assessment” (general tax support for Christian churches) in the early republic and as “marking the end of the government Establishment” in the Old Dominion.[4] The Statute, however, was less an ending and more of a beginning.
The passage of the Virginia Statute for Religious Freedom marked the beginning of a very unstable period in the history of religious practice in the Old Dominion. The strong commitment to freedom of conscience found in the Statute called into question the very nature of what it meant to be an organized religion in Virginia. The previous year the General Assembly had disestablished the remnants of the colonial Anglican Church and allowed the incorporation of independent religious bodies – which were legally vested to hold property, hire a minster, and govern themselves. The Episcopal Church was the first denomination to seek this legal protection but the incorporation law left the door open to others. The strong reading of Jefferson’s Statute by many political active evangelicals called this incorporation act into question, however.[5] Controversy over these questions would plague Virginia politics for the rest of the eighteenth century and well into the nineteenth century. The incorporation act would be repealed, the properties of the old establishment sold, and religious organizations left on insecure legal footing. This would create financial, legal, and institutional problems into the twentieth century – mucking with attempts at church construction, ministerial retirement funds, and religious reform efforts.[6] Religious organizations would be legally (and eventually constitutionally) prohibited from incorporating in the Old Dominion until 2002 when Jerry Falwell brought the issue before the Virginia Supreme Court.[7]
The instability of this era’s religious politics is embodied within the final text of Statute itself. Article Three states that: “this assembly elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with powers equal to our own, and that therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act will be an infringement of natural right.”[8] Freedom of conscience was a natural right to Jefferson and the framers of Virginia’s Statute for Religious Freedom but they knew that its status as a legal right was very much up in the air, even after they won their great legislative victory.
This complex and contested history is often overlooked or overshadowed in our memory and interpretations of Jefferson’s Statute. We just skip by it as we leap to the next “stone” in our journey from the shore of religious intolerance to our modern haven of religious freedom and pluralism. Yet this teleological story obscures much and tells us little about how we got to our modern day deeply contested religious landscape and church-state settlement. Religious freedom in the United States may not be a “myth,” as David Sehat as recently argued, but it is (and was) certainly an incomplete project.
[1] For the document’s official text, as accepted by the Virginia General Assembly, see: William Waller Hening, Statutes at Large; Being a Collection of All the Laws of Virginia from the First Session of the Legislature, in the Year 1619, 13 vols. (Richmond, Va.: George Cochran, 1823), 12:84-86. The Statute, like Jefferson’s other famous public document, benefited from good editing. For a recent comparison of Jefferson’s draft to that passed by the Assembly see: John A. Ragosta, Religious Freedom: Jefferson’s Legacy, America’s Creed (Charlottesville: University of Virginia Press, 2013), 223-224. Ragosta relies on version in the second volume of Julian Boyd’s edition of Jefferson’s collected papers.
[2] Qtd. in Hening, Statutes at Large, 12: 84-85.
[3] Qtd. in David Sehat, The Myth of American Religious Freedom (New York: Oxford University Press, 2011), 2.
[4] Jon Butler, for example, sees Virginia and Jefferson’s Statute as being “the center of this post-revolutionary transformation” from general assessment to complete freedom of conscience. See: Jon Butler, Awash in a Sea of Faith: The Christianization of the American People (Cambridge: Harvard University Press, 1990), 261-265; quotation on 261. For the Ragosta quotation, see Ragosta, Religious Freedom, 99.In his recent book Ragosta makes a common error about the Virginia Statute for Religious Freedom. While the Statute did enshrine in Virginia law freedom of conscience it did not end the “government Establishment.” That work was done the previous year with the passage of “An act for incorporating the Protestant Episcopal Church” which officially disestablished and legal incorporated the former Anglican Church into the Episcopal Church. For the text of that act, See Hening, Statutes at Large, 11:532-537.
[5] Particularly article two which states: “That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.” See Hening, Statutes at Large, 12:86. Baptists and other political and denominational rivals of Episcopalians argued that this article prevented the incorporation of any church in the Old Dominion.
[6] For the repeal of the incorporation act see: Ibid., 266-267. By understanding of these issues is drawn from my general reading on questions of religious practice and law in post-Revolutionary Virginia. I have previously discussed this literature here on the blog, see, in particular, 3n.
[7] I must thank several colleagues at the recent FSU Graduate Symposium on Religion who brought Falwell’s role in all this to my attention.
[8] Ibid., 86.
The Junto 
Arguably, the establishment did not end until the 1784 incorporation act was repealed in 1786 (since the incorporation act involved the state too intimately in church governance — one of the key reasons the evangelicals were opposed to it). All if this, though, is a bit pedantic: The Statute fairly “mark[ed] the end” of the Virginia establishment.
John, thank you so much for commenting. I apologize that I was unable to respond for a few days. I was traveling for much of the week and I wanted to give your comment a full response.
First things first: I want to say how useful I have found your books, both your first (“Wellspring of Liberty” and your newest (“Religious Freedom”) as I begin work on my dissertation. While I believe that we have some significant interpretive differences, I very much admire your work. I particularly found the parts of your latest book on the incorporation of the First Amendment useful in answering student questions this semester while discussing the development of religious freedom.
To the core of things: while it is certainly fair to argue that Jefferson’s Statute was the death of the Virginia establishment (this is the traditional interpretation) I would strongly argue that this is the wrong tack to take. Looking at the incorporation act we see in article ten “[t]hat all former acts relating to the elections, qualifications, powers, and duties of vestrymen and church wardens, all former acts for the support of the clergy, all former acts relating to the appointment or qualifications or duties of ministers, all acts enjoining the observance of any particular liturgy or form of worship, the use of any particular catechism or mode of faith, and the observance of fasts and festivals, and all former acts imposing penalties on clergymen for neglecting to keep registers, or neglecting to give notice of any observance, or publishing any law, and every other act or clauses of acts within the purview of this act, are hereby repealed” (Hening, “Statutes at Large,” 11:536). The act also dissolved the pre-existing Anglican-cum-Episcopalian vestries.
It seems to me that this is disestablishment. All previous laws regarding the old established church are repealed and the newly incorporated Protestant Episcopal Church lacks all of the old governmental powers of the colonial Anglican Church. Combined with the 1776 Bill of Rights’ guarantee of freedom of conscience, the incorporation act creates full freedom of religion in the Old Dominion. All denominations could seek incorporation under similar terms to the 1784 act or could choose otherwise. There was no penalty to Baptists for staying unincorporated – their church governance remains unaffected by the 1784 act.
This is a perfectly acceptable religious settlement within the cultural world of eighteenth century Virginia and the new United States. It still puts Virginia on the cutting edge of religious freedom in the early republic. Of the states with full-borne colonial establishments only Maryland had a similar framework in place. Religious liberty and freedom of conscience remained much more constrained in South Carolina, Massachusetts and Connecticut at this time.
Now, it is possible to view the incorporation act as interfering too much with church organization. (It certainly violates my 21st century sense of the proper relationship between church and state) That was certainly the contemporary Baptist position (as you note in your reply and I discuss above) and one embraced by historians since the nineteenth century. I would argue that this position is misguided, however.
The history of church and state in Virginia after Jefferson’s Statute, as I discuss above, is not one of the state moving further and further away from meddling in religious practice and church governance. One could argue, considering that the state and county governments begin seizing Episcopal property in the early nineteenth century, that the state actually interferes *more* after passage of the Statute than it did with the incorporation act. The refusal of the General Assembly (until the 21st century!) to incorporate churches under different terms than the 1784 act caused all kind of problems for evangelicals denominations (such as the Presbyterians and Methodists) as the gained institutional depth throughout the nineteenth century. This gets to the core of what I was trying to discuss in my post – that our memory and interpretations of Jefferson’s Statute and its legacy obscures this troubled history.
All of this, and our interpretative differences, may be pedantic. My research (so far) argues otherwise. It my dissertation I hope to show persuasively that, despite the moves towards religious liberty in the early republic, the state remained *the* defining force of religious practice in the new United States. The experience of Virginians is, I believe, crucial to that story.
Again, John, thank you so much for your comment. I am very much looking forward to further discussion!
To add to the discussion, may I note that Sarah Barringer Gordon, of University of Pennsylvania Law School, will be publishing an important essay this fall, “The Landscape of Faith: Religious Property and Confiscation in the Early Republic,” pp. 13-49 in Daniel J. Hulsebosch and R. B. Bernstein, editors, MAKING LEGAL HISTORY: ESSAYS IN HONOR OF WILLIAM E. NELSON (New York; New York University Press, forthcoming 2013). Prof. Gordon focuses on the experience of legal disputes over glebe lands in Virginia and Vermont.
Thank you so much for the comment.
I heard Gordon present part of that work at SHEAR 2012 and I very much look forward to reading a fuller version of her argument in this volume. It will be very useful in my dissertation work.
Again, thanks for the comment.