Slavery and the Myth of Religious Liberty

Authors

• Audra Lyn Savage

Abstract

This is a story about two ships. One is semi-mythical. The other is half-forgotten but brutally real. The first ship is the story of early settlers who sailed from Europe to escape religious persecution and—through hard work, perseverance, and righteous rebellion—built a nation upon the fundamental freedom of religious liberty for all. The second ship represents the painful history of America, with its millions of Africans stolen from their homeland, placed in unimaginable conditions, and stripped of their language, heritage, and most significantly, their beliefs. Current religious liberty jurisprudence centers around the historical understanding of the creation and ratification of the First Amendment of the United States Constitution, which encapsulates the mythology of the first ship. This jurisprudence, however, seemingly ignores the second ship and the Black experience with law and religion in the country’s early history. This reveals a gap in the myth of religious liberty that has influenced the Supreme Court’s adjudication of constitutional claims related to the First Amendment Religion Clauses.

This Article provides the missing gap in the Court’s religious liberty story by exploring the historical role played by law and religion in the development of slavery in America. It describes the legal and religious understandings of Africans in early colonial history, including the justification for marking Africans for enslavement. It ends with insight into the countervailing forces of establishing slavery while disestablishing religion at the time the new nation was created. By providing this missing gap in the religious liberty story, the Article ensures that the first ship is less mythical and more real, while also ensuring that the second ship is not forgotten and takes its rightful place in church-state history.

Rights

2026 Brigham Young University Law Review

Recommended Citation

Audra Lyn Savage, Slavery and the Myth of Religious Liberty, 51 BYU L. Rev. 1363 (2026).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol51/iss5/8