How the Colonies in America Moved from “Tolerance” to “Free Exercise” of Religion

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In his very engaging and accessible book, The Right to Be Wrong: Ending the Culture War Over Religion in America (San Francisco: Encounter Books, 2005), Kevin Seamus Hasson—founder of the Becket Fund for Religious Liberty—has a helpful way to summarize the different approaches to religious toleration among the refuge colonies.

Here are some notes, using his categories. Just keep in mind the history is complex, and to put this into a manageable summary simplifies things a bit.

1. Maryland: How Long Must I Put Up with You?

King Charles of England owed the courtier George Calvert a favor. Calvert had helped to negotiate the marriage arrangements between then-Prince Charles and Henrietta Maria of France. Calvert was rewarded with permission to form a new American colony that would allow for the “free exercise” of their Catholic religion. (The province of Maryland was named for the Blessed Virgin Mary and Henrietta Maria.)

When George died, his son Cecil received the royal charter and in 1632 proposed a general theology of “toleration” that “all sorts who process Christianity . . . might be at Liberty to worship God in such manner as [is] most agreeable with their respective Judgments and Consciences.”

But in the mid–1640s, Protestants seized control of Maryland and sent the Catholics back to England.

In 1649, the Maryland Assembly passed its Act of Toleration, prohibiting that anyone should be bothered “for, or in respect of his or her religion nor in the free exercise therefore.” Even within this broad toleration, it only extended to all Christians, and certain forms of heresy were punishable by death.

In 1654, the Protestant majority in the Maryland Assembly repealed the Act of Toleration, and in 1655 Puritan leaders condemned ten Catholics to death, executing four of them.

In 1692, the Church of England was legally established in Maryland. Catholics were prohibited from worshipping publicly, and were an oppressed, disenfranchised minority for the next century.

The lesson:

Tolerance based solely on the government’s benevolence lasts only as long, and as far, as the benevolence does. Don’t blink; you might miss it.

2. Pennsylvania: I Don’t Know Why I Put Up with You

William Penn received his charter for Pennsylvania in 1681 and the following year drafted his Frame of Government. Penn, an English Quaker, welcomed any theist who obeyed the law, promising that they would “in no ways be molested or prejudiced for their religious Persuasion or Practice.”

But in 1705, English pressure came to bear on the colonial assembly andPennsylvania barred Jews and Catholics from holding public office.

Since their version of tolerance was just a political act, it would be politically undone at any moment—as the Quakers themselves discovered. They deserted the colonial assembly in 1756, and Revolutionary Pennsylvania required test oaths that excluded all but Christians from the legislature.

The lesson:

Penn’s heart was very much in the right place. But in practice, his “I-know-it-when-I-see-it” theory of freedom still doesn’t get us there. It offers a nice basis for those willing to accept his central assertions about God, and it provides us with the pragmatic observation that religious persecution breeds stalwarts, not converts. It is a basis to end persecution, but not to recognize inalienable rights—as the people of Pennsylvania learned the hard way.

3. Rhode Island: I’m Putting Up with You Only Because God Told Me To

Both Maryland and Pennsylvania failed to tie down tolerance publicly; they bound it only to their founder’s authority and goodwill. When that was gone, tolerance floated away with it. Rhode Island, in contrast, conducted an imaginative experiment, tying tolerance not to a human founder but to the Founder Himself: God.

Roger Williams founded Providence Plantations in 1636, and he obtained a royal charter in 1663 calling for a “lively experiment . . . with a full liberty in religious concernments.”

Williams himself, a flaky but principled genius, separated from so many churches that he eventually ended up worshipping alone with his wife in his house. But he believed that “Forced worship stinks in God’s nostrils” — “it is the will and command of God” for “permission of the most paganish, Jewish, Turkish, or antichristian consciences and worships, [to] be granted to all men in all nations and countries.”

In other words, Williams based his theory of tolerance on his understanding of theology.

The lesson:

Williams’ answer . . . that it was “the command of God” that consciences not be coerced . . . [was] a magnificent insight, but . . . convinces only those who share the insight itself. It’s positively hopeless against . . . people who have no doubt that God’s will is something completely different. . . . In fact, it did have a short shelf life: successor governments of Rhode Island, which did not share in Williams’ revelation, felt free to cut back on the religious liberty he recognized.

4. Carolina: I’ll Put Up with Yours If You Put Up with Mine

The Constitution of Carolina (there was not yet a North and South) was drafted in 1669 by none other than John Locke. He stressed the need to tolerate all faiths, as long as they acknowledged that God should be worshiped publicly and could attest to the truthfulness of their testimony. But over Locke’s objections, the constitution also stipulated that the Church of England was the established church of the land and could receive funds.

By 1704, South Carolina (now separate) passed a law to ensure an all-Anglican assembly. Only Anglicans could perform marriages. Catholics were barred from bearing arms, incorporating churches, and voting.

By 1776, all denominations of Christians Protestants were established in South Carolina, while Catholics and Jews were tolerated but not allowed to legally incorporate.

Locke himself believed in toleration, but excluded atheists (who didn’t have the prospects of eternal damnation motivating them to keep their contracts or oaths) and Catholics (who swore allegiance to a foreign prince, the Pope).

The lesson:

Religious liberty still wasn’t a right that people possessed merely because of who they were. Even in enlightened theory it was something that the government could and sometimes should withhold from entire categories of people. And once the government withheld some, it was all too easy to withhold more and more.

5. Virginia: I’ll Put Up with You Because of Who You Are as a Human Being

In the spring of 1776, 25-year-old James Madison was appointment to Virginia legislature’s committee that was preparing a declaration of rights for the commonwealth.

George Mason had drafted a key line: “all Men should enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience.” Madison amended it to read: “all men are equally entitled to the full and free exercise of [religion], according to the dictates of Conscience.”

In other words, the “free exercise” of religion was an entitlement for all, not a gift from governmental benevolence.

Madison went a step further, adding that this required disestablishing the official church.

This move—from “tolerance” to “free exercise”—set off a back-and-forth that lasted over a decade. Formal disestablishment came in 1786, with the adoption of the Jefferson-authored Bill for Establishing Religious Freedom.

Madison’s breakthrough was the insight that since the human mind and consciences only works properly when they are uncoerced, it is therefore inherently wrong to coerce them. One should not revoke or restrict religious liberty because it is based on human reason and conscience, which cannot be revoked or restricted.

In other words, the shape of freedom follows from the shape of human nature, not from the largesse of a human government.

Madison’s most systematic exposition of this came through his “Memorial and Remonstrance Against Religious Assessments,” where he argued that it was a universal, inalienable right for everyone to embrace what seems to be true, to profess those truths and to try to convince others to do the same, and then to observe those beliefs in practice.

Madison’s legacy:

Madison insisted that from fundamental facts of human nature we derive rights that no government, even one acting through elected representatives, may justly transgress. Largely as a result, it is now a settled part of our national ethos that religious liberty is such a right.

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