1871
Treatise on the Constitutional Limitations Which Rest upon the Legislative Powers of the States of the American Union
Chapter XIII
Of Religious Liberty
Those things which are not lawful under any of the American constitutions may be stated thus:---

1. Any law respecting an establishment of religion. The legislatures have not been left liberty to effect a union of Church and State, or to establish preferences by law in favor of any one religions persuasions or mode of worship. There is not complete religious liberty where any one sect is favored by the state and given an advantage by law over other sects. Whatever establishes a distinction against one clam or sect is, to the extent to which the distinction operates unfavorably, a persecution; and if based on religious grounds, a religious persecution. It is not mere toleration which is established in our system, but religions equality.

2. Compulsory support, by taxation or otherwise, of religions instruction. Not only is no one denomination to be favored at the expense of the rest, but all support of religious instruction must be entirely voluntary. It is not within the sphere of government to coerce it.

3. Compulsory attendance upon religions worship. Whoever is not led by choice or a sense of duty to attend upon the ordinances of religion is not to be compelled to do so by the State. It is the province of the State to enforce, so far as it may be found practicable, the obligations and duties which the citizen may be under or map owe to his fellow citizen or to society; but those which spring from the relations between himself and his maker are to be enforced by the admonitions of the conscience, and not by the penalties of human laws. Indeed, as all real worship must essentially and necessarily consist in the free-will offering of adoration and gratitude by the creature to the Creator, human laws me obviously inadequate to incite or compel those internal and voluntary emotions which shall induce it, and human penalties at most could only enforce the observance of idle ceremonies; which, when unwillingly performed, are alike valueless to the participants and devoid of all the elements of true worship.

4. Restraints upon the free exercise of religion according to the dictates of the conscience. No external authority is to place itself between the finite being and the Infinite when the former is seeking to render the homage that is due, and a mode which commends itself to his conscience and judgment as being suitable for him to render and acceptable to its object.

5. Restraints upon the expression of religious belief. An earnest believer usually regards it as his duty to propagate his opinions, and to bring others to his views. To deprive him of this right is to take from him the power to perform what he considers a most sacred obligation.

These are the prohibitions which in some form of words are to be found in the American Constitutions, and which secure freedom of conscience and of religious worship. No man in religious matters is to be subjected to the censorship of the State or of any public authority; and the State is not to inquire into or take notice of religious belief, when the citizen performs his duty to the State and to his fellows, and is guilty of no breach of public morals or public decorum.

Source of Information:

Treatise on the Constitutional Limitations Which Rest upon the Legislative Powers of the States of the American Union, By Thomas M. Cooley, LL.D., Second Edition, Little, Brown, and Company 1871, pp (467-478)



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