CHAPTER X

RELIGIOUS PROVISIONS OF THE STATE CONSTITUTIONS

THE principle of religious liberty is one of the most striking features of American democracy. Foreign students of our institutions regularly manifest deep surprise at the practical workings of the theory of the separation of church and state. Chapter CVI for instance of Bryce's American Commonwealth illustrates this attitude of mind. The national constitution took advanced ground when it forbade congress to establish religion or to prohibit its free exercise, and recognized no religious test as a qualification for office or public trust.1 Some of the states even yet have not advanced so far. There are still survivals in the constitutions of that earlier, more intolerant spirit which now seems so strangely out of place. The religious provisions of the state constitutions may roughly be divided into two classes: (1) those aiming to establish religious freedom; and (2) those involving some recognition of religion. A statement of each of these in turn may present some interesting features.

RELIGIOUS FREEDOM

All forty-eight constitutions in plain terms provide for freedom of worship but vary considerably in methods of expression. Michigan, for example, states that “Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled

1 Amendment I and last clause of Article VI.

to attend, or, against his consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes or other rates for the support of any minister of the gospel or teacher of religion." North Dakota, by contrast, provides that "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall be forever guaranteed in this state." Utah, after a similar provision, adds, emphatically, "There shall be no union of church and state, nor shall any church dominate the state or interfere with its functions." Other constitutions again, like those of Massachusetts, Rhode Island, and New Hampshire, have lengthy provisions, the last named state employing two hundred and seventy-three words for Article VI of its Bill of Rights. The additional matter as a rule amplifies the principle in detail by specifying that no preference shall be given by law to religious societies; that no person shall be compelled against his will to contribute toward their support, nor to attend services; that every person shall be free to profess and maintain by argument his religious beliefs; and that every religious denomination shall be protected in the peaceable enjoyment of its own mode of worship. Rhode Island has an eighty word whereas, as preface to its provision, and states therein its historic argument for religious liberty. Twenty constitutions however, are careful to say in varying phraseology that liberty of conscience shall not be construed so as to excuse acts of licentiousness, nor justify practices inconsistent with the peace and safety of the state. Many provide that liberty of conscience shall not be construed to dispense with oaths or affirmations, and Idaho, Montana, Utah, Oklahoma, Arizona and New Mexico 1 expressly

1 The last four were instructed to insert this clause by the congressional enabling act.

except polygamous marriage from a guaranty of religious freedom.

The constitutions generally provide that no limitations shall be placed on an individual's rights because of his religious beliefs. Seven states for example prohibit the denial on such grounds of civil rights; ten other states put it “No civil or political rights shall be denied;" and twenty-two states declare that no religious test shall be required as a qualification for any office or public trust. Four states 1 specify that no religious test shall ever be required as a qualification for voting. In judicial matters nine states forbid any religious test as a qualification for jurors, and twenty-one states safeguard witnesses in the same way. Oregon and Washington add to these provisions, "nor be questioned in any court of justice touching his religious belief, to affect the weight of his testimony." On the other hand two constitutions insert a provision inherited from the political theories of Cromwell's time: 2 Maryland bluntly provides that "No minister or preacher of the gospel, or of any religious creed or denomination, shall be eligible as senator or delegate." Tennessee is far more courteous in its similar provision. "Whereas, ministers of the gospel are, by their profession, dedicated to God and the care of souls, and ought not to be diverted from the great duties of their functions; therefore, no minister of the gospel or priest of any denomination whatever, shall be eligible to a seat in either house of the legislature."

Freedom of conscience is also safeguarded by exempting from military duty those who are conscientiously opposed to war. Twenty-three states have provisions of this sort, varying from the quaint phraseology of Maine, "Persons of 1 Kansas, Minnesota, Utah, West Virginia. 2 For example, Harrington's Oceana.

the denominations of Quakers and Shakers, and ministers of the gospel may be exempted from military duty," to the businesslike statement of Washington. "No person or persons having conscientious scruples against bearing arms shall be compelled to do military duty in time of peace: Provided, such person or persons shall pay an equivalent for such exemption."

Some of our states by experience have found out that religious sects can be indirectly supported from public funds by grants to religious philanthropic institutions, especially hospitals and orphan asylums. Twenty-four states recognize the danger of this policy and forbid in more or less vigorous terms such grants. A typical provision of this sort (Michigan) reads: "No money shall be appropriiated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary, nor shall property belonging to the state be appropriated for any such purpose." Montana has a still stronger prohibition; "No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association." Lengthy provisions of a similar nature, but with certain provisos, may be found in California, Article IV, sections 22 and 30; Louisiana, Article 53, and Virginia, section 67. A kindred provision forbidding aid to sectarian educational institutions may be found in thirty-two constitutions.1 Article 253 of the Louisiana constitution contains this provision in simple form, "No funds raised for the support of the public schools of the state shall be appropriated to or used for the support of any private or sectarian schools." A safer and far more

1 Due in most cases to congressional instructions in enabling acts.

emphatic form may be seen in Utah's constitution, Article X, section 13: "Neither the legislature nor any county, city, town, school district or other public corporation, shall make any appropriation to aid in the support of any school, seminary, academy, college, university, or other institution, controlled in whole, or in part by any church, sect, or denomination whatever." This provision is in nine constitutions enlarged by an injunction against the teaching of sectarian doctrines: Wyoming says, "nor shall any sectarian tenets or doctrines be taught or favored in any public school or institution that may be established under this constitution;" Wisconsin expressly forbids sectarian instruction in its university, and California also desires its university to be kept "entirely independent of all sectarian influence." Nebraska and South Dakota unite in a provision which in the constitution of the last named state reads as follows: "Nor shall the state, or any county or municipality within the state, accept any grant, conveyance, gift or bequest of lands, money or other property to be used for sectarian purposes." Seven of the mining states,1 curiously enough substantially agree in providing that, “No religious test or qualification shall ever be required of any person as a condition of admission into any public educational institution of this state, either as teacher or student; and no teacher or student of any such institution shall ever be required to attend, or participate in, any religious service whatever." (Colorado, IX, 8.). Kentucky has it in the form, "nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed." Mississippi however, in providing for religious liberty expressly says that, "The rights hereby secured shall not be construed to exclude the Holy Bible from use in any public school of this

1 Colorado, Idaho, Montana, Wyoming, Utah, Arizona, New Mexico.