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Michael McConnell Is Confirmed as Judge in 10^th Circuit Court of Appeals on the Same Day He Speaks in Louisville on Religious Freedom 

(History of Established Religion Closely Parallels the History of Government-controlled Schools)

By Theresa Fritz Camoriano

Louisville, KY

Nov. 15, 2002

Michael McConnell was confirmed by the U.S. Senate to the lifetime position as Judge in the 10^th Circuit Court of Appeals today.  However, McConnell gave no hint of his substantial new powers as he proceeded in a scholarly manner to talk about the history of religious liberty and the American founding.  McConnell is originally from Louisville, and he introduced his mother to the audience before beginning his talk.  Since, by chance, I happened to be sitting next to her, I had the opportunity to speak with her briefly when his talk was over and mentioned that she must be very proud of her son and his accomplishments.  She said she couldn’t take much credit – that he was pretty much born the way he is.  I found the humble approach of  both McConnell and his mother to be very refreshing and encouraging in a world in which arrogance and pomposity are so prevalent, especially among the powerful.

As McConnell described the history of the “establishment” and “disestablishment” of religion both in England and in America, I was struck by the parallels between the government’s establishment of government-supported and regulated religion in America’s early history and its more recent establishment of government-controlled schools.  While McConnell did not draw those parallels during his speech, in the question-and-answer period after the speech, I asked him whether he would be willing to comment on what appeared to me to be very close parallels between the government-established religion and the government-established schools.  He said that, indeed there were very strong parallels, with the common schools having taken over the job of indoctrinating the people in the “civic virtues” and of carrying on the anti-Catholic crusade after the disestablishment of government-sponsored religion.  In fact, he noted it probably was not a mere coincidence that Massachusetts established government schools one year after it disestablished religion in 1833. 

The Church of England was the established church in the southern states from Maryland to Georgia.  In Massachusetts, Connecticut, New Hampshire, and Vermont, the establishment of religion was more localized, with each town voting for its own established church.  In Pennsylvania, Delaware, New Jersey, and upstate New York, there was no established religion. 

There were several aspects to the establishment of religion. 

1.                There were mandatory attendance laws.  (Similar to current mandatory attendance laws requiring children to attend school.)  McConnell stressed that these laws were taken very seriously and included fines for missing church.  In many Virginia counties, this was the most common indicted offense.

2.                The government financially supported the official church by land grants and taxes. (Similar to land grant and tax-supported schools.)

3.                There were laws prohibiting the practice of other religions.  In England and Virginia, there were laws preventing Presbyterians, Catholics, and others from practicing their religions.  Some states were less prohibitive.  For example, Georgia did not prohibit other religions, and even had a flourishing Jewish community, except it did prohibit Catholics.  The punitive laws against Catholics actually became even tougher in America while prohibitions against other religions loosened.  Catholics were not allowed to inherit property, to bear arms, and so forth.  (The impetus behind state-controlled schools also was largely intended to punish Catholics, forcing them to financially support schools that taught the proper Protestant virtues.)

4.                The government exercised control over the established church.  In some places, there was a top-down control, and in others it was a more republican, dispersed control.  For example, in Virginia, each parish elected a vestry made up of the gentry who also controlled the government, and the vestry then perpetuated itself.  In general, these gentry wanted to keep taxes low and essentially starved the church.  For that reason, the clergy who were willing to serve tended to be the dregs.  (Government currently exercises control over the government schools, selecting the textbooks, the subjects taught, the level of funding, etc.)

5.                The state church was used for public functions, such as keeping official birth and death records, performing marriages, and so forth.  Since the state church had control over marriage, it had a lot of power over people, because they did not want their children to be illegitimate.  Typically, the minister also educated children for a fee and provided free education to poor children.  McConnell noted that many of the gentry who controlled the churches were not particularly religious, and he told of an instance in which the gentry selected a minister for his ability to teach children rather than for his religious aspects.  (Here we see that the established church also served as the established education system.)

6.                There were many religious tests for office.  Laws required people to adhere to the state church in order to hold government office, to be part of the military, to be a lawyer, and so forth.  The religious tests for office lasted into the 1800’s at the state level. 

McConnell noted that these aspects of government control over religion fall into three categories:  1.  Establishment of the official state church; 2.  Prohibition of free exercise of other religions; and 3.  Religious tests for office.  He noted that the U.S. Constitution included separate clauses prohibiting the national government from exercising each of these three aspects of control.  He also noted that these clauses were applied only to restrict the federal government – not the states – until after the 14^th Amendment was passed.  The disestablishment of state religion took place state by state rather than by enacting the Constitution.

What were the reasons for having an established religion?

The reasons could be divided into theological reasons and political reasons, with the political reasons being the most important.  The theological reasons were to promote the church, save souls, and glorify God.  The political reason was primarily for the government to have a way to shape public opinion and character in a way favorable to the regime.  Since there was no television or radio, the church was the primary way to disseminate opinions.  This made control of religion similar to control of the press.  In England, the clergy were required to teach the divine right of kings at least four times a year.  In America, there was widespread acceptance of the need for a state church to inculcate virtue and religious morality in people.  (This is very similar to the reasons that were given for establishing government schools – to mold children’s character to make them good citizens.  We see many examples of the views of the dominant political force being indoctrinated into children in government schools today.)

What were the reasons for disestablishing religion?

Again, there were both political and religious reasons, but, in this case, the religious reasons were more important.  The political reason was that politics should be based on rational thought, not on religious beliefs.  The religious reasons were twofold.  First, it was thought that salvation and grace are things of the heart and cannot be forced.  The conviction of truth should be brought about by the Holy Spirit, not by the coercive force of government.  Second, government control was considered to be bad for the church.  Jonathan Edwards spoke often of the importance of the independence and autonomy of the church.  The purpose of disestablishment, then, was to advance religion.  Tocqueville attributed the strength of the U.S. church to its freedom.  (Similarly, freeing the education of our children from government control would promote competition and freedom and would result in substantial improvement in the education of children.)

McConnell noted it is ironic that the U.S. Supreme Court now considers any government action that advances religion to be an unconstitutional “establishment of religion”, so that the states’ disestablishing of a state church, which had the effect of strengthening the church, might today be considered an “establishment of religion”.

With the state-controlled schools of today having largely taken the place of the state-controlled church of America’s early history, we can only wonder whether the future may bring a disestablishment of the official government schools in order to strengthen the education of our children, just as the disestablishment of the official church strengthened religion.

McConnell has recently published a text entitled Religion and the Constitution, which he recommended to the audience.  No doubt anyone arguing a religion case before the 10^th Circuit will be studying his book very carefully. 

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