That Mitt Romney is now all but guaranteed the Republican presidential nomination surprises no one, but the primaries did produce two surprises that have important implications for the future: the emergence of religious freedom as a serious issue, and of Rick Santorum as a serious candidate. Neither will go away anytime soon.
Over the next several months, climaxing in events planned for July 4, Catholic bishops intend to press hard on their claim that healthcare regulations they oppose infringe upon religious liberty. This new activism by the Catholic Church echoes that of those who insist that limits on religious expression in such settings as schools also infringes on their religious freedom. Rhetoric during the primaries reflected those views: nearly every Republican candidate attacked Obama on religion. In a February debate, for example, Romney declared, “I don’t think we’ve seen in the history of this country the kind of attack on religious conscience, religious freedom, religious tolerance that we’ve seen under Barack Obama.” Even Ron Paul has a long history of nonlibertarian views on the question; he has said “the elitist, secular…collectivist left hates religion.”
Given the recent rhetoric and the continued activism on the issue, Romney, despite his desire to focus on the economy, may be unable to mute the issue for the general election. If he wins, the Christian right will certainly demand new policies that threaten current interpretations of the First Amendment, while if Obama wins, conservative Christians will see Santorum as a vehicle and try to make him an instant front-runner for 2016. He has already taken them closer to the nomination than such predecessors as Pat Robertson and Mike Huckabee. So whatever the November outcome, the next few years will likely mean new rhetorical and legal assaults on how courts have interpreted the First Amendment for half a century.
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Those who want to reverse court rulings such as the longstanding prohibition on school prayer and who claim the United States was founded as a Christian nation argue that the historical record supports them; they insist that, as Ron Paul has said, “the notion of a rigid separation between church and state has no basis in either the text of the Constitution or the writings of our Founding Fathers.”
They are right about one thing: the history of the idea of separating church and state is crucial to understanding the First Amendment. For that amendment did not come from mere intellectual exercise; it emerged in response to historic events. That history also demonstrates that it was no accident that the freedoms of religion, of speech, of the press, of assembly and of expressing grievances against the government were linked in the same amendment. Together they represent the essentials of liberty—the right to think as one chooses and to express that thought.
The first person to define these freedoms in a modern sense was Roger Williams, who demanded for “all men in all Nations” freedom for “the most Paganish, Jewish, Turkish, or Antichristian consciences and worships.” Best known for founding Providence, Rhode Island, Williams created there the first government in the Western world to grant full religious liberty.
Yet Williams was no atheist, or even a secularist. He was a devout Puritan minister considered so “godly” that immediately upon his arrival in Massachusetts in 1631, Boston Puritans asked him to be the minister of their church, the most important such post in America. He declined—because he considered their church insufficiently pure.
Williams became more than the first great champion of religious freedom. He was America’s first rebel, America’s first contradictor of authority. He lived at a time when nearly universal belief held that the authority of a government came from God. Williams rejected that position and insisted that government was entirely secular. He reasoned, therefore, that people were not subject to their government; the government was subject to them.
Williams thus split open two fault lines that have riven America ever since: the line between, first, church and state and, second, free individuals and the state. On both issues he was, in the words of John Quincy Adams, “altogether revolutionary.”
How Williams arrived at his positions is as important as the positions themselves, for he clearly came to see religious freedom as intimately bound up with freedom itself. That linkage is key to grasping the full significance of church-state separation and of the First Amendment.
The intellectual journey began with King James. (If this seems like ancient history, it isn’t: John Yoo borrowed James’s 400-year-old arguments in saying the US Constitution “would not apply”—the italics are Yoo’s—to presidential power.) James smashed limits that custom, common law and Parliament had placed on the English crown for at least four centuries. His apologists justified his actions, arguing that “reason of state”—especially national security—made the king “above the law…and though at his coronation he take an oath not to alter the laws of the land, yet this oath notwithstanding, he may alter or suspend any particular law,” including imprisoning someone without charge, which violated the Magna Carta. The king also headed the Church of England, so religious dissenters became traitors by definition. Indeed, James considered the existing English translation of the Bible subversive because it did not, in his view, adequately teach submission to authority, so he ordered a new translation, the King James Bible, which taught greater submission.
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The leader of those resisting the crown was Sir Edward Coke, chief justice of England and the greatest jurist in English history. Precedents Coke set included prohibiting double jeopardy and judicial review of legislative acts, but his highest priority was defending the “antient rights and liberties” of England. He pioneered the use of writs of habeas corpus to prevent the crown from imprisoning people without charge and issued “writs of prohibition” to stop church courts from imprisoning lay dissenters—even ruling that a layman who killed church officers sent to arrest him could not be charged with murder. Coke’s views were summed up in his ruling, “The house of every one is as his castle,” explicitly extending to the lowest commoner liberties enjoyed by great lords, making all equal before the law. For all these views, James dismissed him from the bench and—without any charge—imprisoned him in the Tower of London, where Coke remained defiant, saying, “If the king desires my head, he knows whereby he may have it.”
Eventually released but uncowed, in 1628 Coke wrote—and Parliament passed unanimously—the Petition of Right, which Winston Churchill called “the main foundation of English freedom, the charter of every self-respecting man in any nation.” Every American lawyer in the generation of the founding fathers read Coke, and the Third, Fifth, Sixth and Seventh Amendments of our Bill of Rights came from this document, as did the habeas corpus clause of the Constitution.
Coke’s amanuensis was the young Roger Williams. As a teenager he accompanied Coke everywhere—to the Star Chamber, the Privy Council, Parliament and Coke’s personal confrontations with the king. They became close enough that Coke sometimes referred to him as his son, and Williams clearly viewed him as a father figure. Coke gave Williams a deep understanding of the law and of the realities of power, along with a deep reverence for individual liberty. All this was reflected in Williams’s call for absolute religious liberty, without reservation. But there were three other important influences on him.
One was Sir Francis Bacon. Ironically, Bacon was chancellor of England, a royal favorite and apologist, and Coke’s great antagonist. Williams rejected Bacon’s politics but absorbed his groundbreaking views on the scientific method, on testing hypotheses against evidence. Williams examined through that prism the common belief that God blessed in worldly ways religious nations and punished ungodly ones. He found it wanting. He wrote that “all reason and experience” taught that calamity and success “come alike to all and are no argument of God’s love or hatred.” He concluded that “if successe be the measure,” just as religion was irrelevant to an individual’s ability as a ship captain, merchant or any other civil profession, then a Christian was “no more” likely to govern well than a man “of any other Conscience or Religion.” Few politicians running for office today would dare such an assertion.
Scripture also influenced Williams. A scholar who read the Bible in many languages, he concluded that reconciling contradictory passages was so difficult that no person could possibly interpret all of Scripture without error. Therefore, he believed it “monstrous” for anyone to compel others to worship in a way contrary to their own conscience.
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Finally, Williams’s experience in Massachusetts—in John Winthrop’s “citty upon a hill”—affected him. There is no question that Winthrop and other founders of the Massachusetts colony intended to build a Christian nation obeying God’s law and that America was to be a new Israel and Americans a new Chosen People. Much of the idea of American exceptionalism has been informed by their vision. Many of those who today declare the country to be a Christian nation have a vision virtually identical to Winthrop’s. Santorum, for example, has said, “Our founders understood liberty is not what you want to do, but what you ought to do. That’s what liberty really is about,” and, “Our founders said we have the right…[to] life, liberty and the pursuit of happiness. Happiness as defined at the time of our founders…isn’t doing what you want to do, it isn’t doing things that please you…. Happiness was at the time of our founders…to do the morally right thing…. doing God’s will in your life.”
Those statements echo Winthrop, who denounced “Natural” liberty, liberty to do what humans want, “a Libertye to evill as well as to good” but embraced the “Libertye I call…morall, in reference to the covenant between God and man…. It is a liberty to do only that which is good…. This liberty is maintained and exercised in a way of subjection to authority.” So, Massachusetts had an Old Testament view of a conjoined church and state, one that based laws on Scripture—as today’s Christian Reconstructionists want, although they haven’t endorsed the death sentences imposed by colonial Massachusetts law for such things as blasphemy and adultery.
It was also then almost universally believed—and some Christian activists still believe—that government must play “nursing father” to the church. Williams disagreed. His New Testament view of a separated church and state was reinforced by his recognition that for government to help the church, a human had to judge what was in its interest—in effect, to judge God. This was blasphemous, he believed, and inevitably fallible humans would err in that judgment and corrupt the church. Everything in his experience had taught him that when one mixes religion and politics, one gets politics. Although Williams shared the identical Calvinist theology of Massachusetts’ leaders, he believed government should in no way insert itself between humans and God. Massachusetts banished him. Return risked execution.
After his banishment, Williams founded Providence. The founding document of every other New World colony, whether English, French, Spanish or Portuguese, claimed the colony’s purpose was to advance God’s glory. Providence’s founding document made no such claim. In a draft, Williams did ask for God’s blessing, but he deleted even that from the final compact. Providence’s government would be strictly secular and offer absolute religious freedom—what Williams called “soul liberty.”
When Massachusetts threatened to crush both his colony and his ideas, Williams returned to England to seek Parliament’s protection. By then, King Charles had ignited a civil war by pushing the Church of England closer to Catholicism and imposing it on Scottish Presbyterians; eventually he was beheaded. London became “the world turned upside down,” and in that world of tremendous tumult, in writing and in person, Williams thrived, becoming an enormous influence on such men as John Milton, Oliver Cromwell and, later, John Locke.
In London, 150 years before Jefferson, Williams demanded “a Wall of Separation between the Garden of the Church and the Wilderness of the World.” Then he went further, and became the first in the modern Western world to link political and religious freedom. Considering the state secular, he declared that “the sovereign, original, and foundation of civil power lies in the people,” and that governments “have no more power, nor for longer time, than the civil power or people consenting shall betrust them with…which Power, Might or Authority, is not Religious, Christian &c. but natural, human and civil.” In revolutionary London, Williams’s ideas remained a minority view, but they nonetheless spread.
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Williams’s impact on the founding fathers should not be overstated; it was more indirect, largely through Locke, than direct. But he did inject his ideas into revolutionary London, where they circulated and had great impact not only on Milton and Cromwell but also on more extreme radicals, like the Levellers. And he made Rhode Island the freest society in the world—indeed, it became the first government to outlaw slavery, in 1652. (The next century saw the law ignored.) And, as Williams had in Providence, the founding fathers omitted from the Constitution any mention of God, creating a wholly secular government. The Constitution does ask for a blessing, but not from God—it asks only for “the blessings of liberty.” It also prohibits a religious test for office, and it equates an “affirmation” with an “oath.” Then, in the First Amendment, it establishes absolute religious freedom—the first freedom, the freedom to think—and its corollary, the freedom to express thought. The founding fathers understood that infringing upon that in any way limited not only religious freedom but all freedom. As Justice Robert Jackson wrote in a 1947 Supreme Court decision that explicitly applied the First Amendment to the states, “This freedom was first in the Bill of Rights because it was first in the forefathers’ minds; it was set forth in absolute terms, and its strength is its rigidity.”
All the tortured reasoning by those who say we are a Christian nation—all the quotes they produce testifying to the personal religiosity of the founders—cannot stand before the text of the Constitution. Nor can it stand before an explicit statement made in 1797, only eight years after the adoption of the Constitution, when the Senate unanimously approved a treaty drafted under George Washington and signed by John Adams that stated, “The government of the United States is not in any sense founded on the Christian Religion.”
In two-plus centuries since, politicians have behaved like politicians and have often ignored the First Amendment, but beginning in the 1940s the Supreme Court has generally upheld a strict separation of church and state, culminating in the 1963 decision prohibiting school prayer.
There has been only one serious attempt to alter that. In 1966 the Senate considered a constitutional amendment to overturn that ruling. Senator Sam Ervin of North Carolina, widely respected as a constitutional scholar and also a devout Presbyterian (who went on to fame as chair of the Senate Watergate Committee), had previously criticized courts for taking God out of schools. But after secluding himself and studying the issue, he gave one of the most detailed legal and philosophical analyses of the First Amendment ever presented. Speaking passionately, he sounded much like Roger Williams when he spoke of his ancestors, “run down and murdered upon the crags and moors of Scotland because they dissented from doctrines of the established church,” and when he concluded, “For God’s sake…. Let us preserve for all Americans of all generations the right to bow their knees and lift their voices to their own God in their own way. We can do this by standing by the First Amendment as it has been written and interpreted. I close with a prayer that the Senate will do exactly this and no more.”
Ervin’s speech ended any doubt as to whether the amendment would pass, but the argument now rages with even greater intensity. As recently as January of this year, a court—in Rhode Island, no less—ruled that a public school had to remove a nondenominational prayer posted on a wall. Those who want prayer posted in public venues are now charging anti-religious bigotry on the part of those who support existing legal interpretations. And Santorum has explicitly attacked the idea of separating church and state, saying that John Kennedy’s call for “an America where separation of church and state is absolute” made him want to “throw up.”
It is now almost four centuries since Williams said that “forced worship stinks in God’s nostrils” and compared it to “Spiritual Rape.” Yet his views are as important and relevant today as when he spoke them. The argument over church and state is the oldest in American history. It is past time for those who truly believe in freedom to start listening to Williams, start defending historical truth and start defending freedom.