By Marci Hamilton | 14 September 2015
The National Constitution Center
Never before have Americans needed to be reminded more of where American religious liberty started.
This country was never a country of one faith, but rather always a growing collection of believers with a wide array of beliefs. Numerous Protestant sects, Catholics, and Jews arrived early, while hundreds of other sects followed in the 19th century to the point that today there are over 100,000 religious sects in the United States.
The miracle of the United States constitutional experiment is that this ever-increasing proliferation of believers has not been accompanied by religious civil wars. From the beginning we have had to acknowledge difference and the need for mutual toleration.
The oppressed believers escaping from the theocracies in Europe landed on these shores to escape tyranny but did not yet have a recipe for peaceful coexistence. As a country, we struggled in the beginning with the difficult balance between liberty and order.
Benjamin Franklin pointed to a historical tendency among Christians to persecution:
If we look back into history for the character of the present sects in Christianity, we shall find few that have not in their turns been persecutors, and complainers of persecution. The primitive Christians thought persecution extremely wrong in the Pagans, but practiced it on one another. The first Protestants of the Church of England blamed persecution in the Romish Church, but practiced it upon the Puritans. These found it wrong in the Bishops, but fell into the same practice themselves both here [England] and in New England.
For example, in Massachusetts, the Congregationalist establishment enforced taxation for its benefit on all believers and expelled or even put to death those who would not accede to its beliefs. As a result, Massachusetts’ Baptist clergy became the first in the United States to advocate for a separation of church and state and an absolute right to believe what one chooses.
Baptist pastor John Leland, an eloquent and forceful proponent of the freedom of conscience, as well as the separation of church and state, was the only man to oppose establishments in Massachusetts, Virginia, and Connecticut. For him, America was not a “Christian nation,” but rather should recognize the equality of all believers, whether “Jews, Turks, Pagans [or] Christians.” For him, “government should protect every man in thinking and speaking freely, and see that one does not abuse another.”
Leland proposed an amendment to the Massachusetts Constitution in 1794 that would have ended even nonpreferentialism, because of the “evils … occasioned in the world by religious establishments, and to keep up the proper distinction between religion and politics.” The Massachusetts establishment by Congregationalists and the taxation to their benefit did not formally end until 1833.
I make these points not to castigate any faith or believer, but rather to show that we found a way out of theocracy into a new universe of peaceful coexistence. That way was the First Amendment, which requires the free exercise of religion and its disestablishment—in other words, freedom and restriction. No religion can be the government or run the government. Rather, these two most authoritative forces in human existence have been warned to co-exist without either taking over the other.
In the culture wars today—and particularly the Religious Freedom Protection Acts, where those making demands for “religious liberty” often ignore or minimize the harm that is too often done in the name of religion—it is easy to lose sight of what the framing generation, with its fresh experience of theocracy, understood: there is such a thing as too much liberty. They called it “licentiousness,” and early state constitutions set limits on the free exercise of religion, including “peace or safety.”
Kentucky clerk Kim Davis is asking for too much liberty when she demands a “right” to not issue marriage licenses to same-sex couples because it offends her faith for them to marry. That is not religious liberty. It’s theocracy, and we have the history to prove it.
Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law and a Senior Fellow in the Fox Leadership Program at the University of Pennsylvania. She is also the Academic Curator of the Center’s feature exhibition, Religious Liberty and the Founding of America.
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