Building the American wall between church and state

By Thomas Penfield Jackson

As we celebrate this, the 233rd anniversary of the events that brought about the union of England’s 13 North American colonies to form the nation now called the United States of America, we Marylanders especially also commemorate the 375th anniversary of the founding of the first of those colonies to vouchsafe civil liberty of conscience to its citizens. Would that the rest of country would give us our due!

In the year 1534, Henry VIII, a 43-year-old monarch who had been king of England for 25 years, wrested control of the English national church from the See of Rome. Exactly 100 years later, 28-year-old Cecil Calvert, who had been the second Lord Baltimore for only two years, attempted to do much the same thing in his tiny proprietary colony of Maryland. Without fully knowing the significance of what he was doing, he sought to separate control of civil government from the grasp of religion altogether. The notion was, to the minds of most Englishmen at the time, both heresy and treason. The English believed that religious conformity and the safety of the nation were indispensable to one another.

Cecil Calvert was not the first Englishman to conceive of the idea of church-state separation. His father, George Calvert, the first Lord Baltimore, originated it but died before he could put it into practice. True men of their times, George and Cecil Calvert witnessed throughout their lives, even if they did not personally experience it, the misery inflicted by English religious persecution; first, in the name of the security of the realm, and later for the salvation of misguided souls. Both were convinced that neither reason was valid, and for almost a half century Cecil Calvert repulsed multiple efforts to take his colony from him and force him to concede his error. But when Cecil Calvert died in 1675 at the age of 69, Maryland had been prosperous and finally at peace for the last 15 years under the secular government he had designed for it at the beginning.

Baltimore’s “Maryland Designe” was a plan of governance that called for his colony to be officially non-religious. The governing elite happened to be Catholics, but derived no benefit from it. No public worship of any kind was permitted. No religious structures could be erected. No faith received governmental support or preference. No tithes were collected. Clergy and laity were indistinguishable from one another, and no proselytizing (except for Indians) was allowed. The only oath required to vote or hold office was an oath of fealty to the Lord Proprietor.

By the beginning of the 18th century, however, Maryland had been confiscated from Cecil Calvert’s son and successor, Charles. Maryland was governed by an Anglican royal governor. The right to hold public office and to vote required an oath of allegiance to the Church of England which had been firmly established as the official and only sanctioned religion of Maryland. Baltimore’s own faith was once more an object of persecution. Catholics were forbidden to purchase or inherit land. Catholic worship was proscribed by law, and Catholic priests could be imprisoned for life. The Jesuits’ beautiful chapel at St. Mary’s had been dismantled. The law even commanded that children of deceased Protestant fathers be taken from surviving Catholic mothers. As one historian has derisively put it: “So ended Maryland’s experiment in religious toleration.”

Scientists tell us that experiments that disprove a hypothesis can be as important, and as valuable, as those that confirm one. Historians and political scientists may have pronounced Cecil Calvert’s experiment in secular civil government a failure, but in fact it proved the opposite. Baltimore’s “Maryland Designe” simply could not survive in the midst of England’s own bitter strife over the nation’s religious identity. In England one could not be politically correct without being religiously correct as well. Which religion was the correct one was an issue that had divided and bloodied the country since the time of Henry VIII. Anglicans and Catholics, Puritans and Presbyterians, Quakers and Baptists, had fought with one another for over a century for political dominion. Cecil Calvert had tried to prove the quarrel unnecessary, but he was ahead of his time. Too few heeded the lesson he offered. Maryland succumbed to the Anglican tide that had overwhelmed a monarch who had favored the wrong religion.

Throughout most of the 18th century Maryland remained officially Anglican. Marylanders paid tithes to the government to support the Anglican clergy. They attended Anglican services, were cited by Anglican church wardens for moral transgressions, were tried by Anglican vestries, and punished by Anglican magistrates if they failed to amend their conduct. Even Protestants of other sects could not vote or hold public office.

And so it was until almost the eve of the American Revolution. Maryland, along with Virginia, was the most Anglican of the original North American colonies. Ironically, the English government never sought to subject the others to the national church to a similar extent. New England continued to be ruled by Congregationalists and Pennsylvania by Quakers. Rhode Island was allowed to go her own way, much as Baltimore had intended for Maryland.

Notwithstanding its monopoly on political power, however, it cannot be said that the Church of England thrived in 18th century Maryland. We must remember that the 18th century was the Age of Enlightenment. All religions were being subjected to rational inquiry. To an ever-increasing extent learned people were becoming convinced that one must reason his or her way to a personal religious faith. If reason did not comport with dogma, it did not support religious belief, and reason did not support many articles of Anglican faith, such as the divinity of Christ or the concept of the Holy Trinity. By the time of the Revolution many nominal Anglicans paid lip service to such matters, but no longer accepted them on faith.

Moreover, the Church of England did not always persuade dissenters to abandon their own beliefs. They supported the Church financially and obeyed its stricture because the government made them do so, but Catholics remained Catholics and Quakers remained Quakers in their hearts and minds, and resented the officious dominion of the Anglicans.

Finally, the fourth Baron of Baltimore, Benedict Leonard Calvert, who spent his entire life in England and never set foot in Maryland, converted to the Church of England in 1715. His reward was a restoration of some of his prerogatives as Lord Proprietor under the original charter of 1632, one of which was the appointment of Anglican clergy to benefices in the colony, a perquisite never used by any of his predecessors. He and his successors did so more as a matter of patronage rather than merit, and the quality of the Anglican priests sent to serve in the parishes of Maryland reflected the fact. Most were worthy men, but some did no credit to the Church of England. For political reasons the Bishop of London retained oversight over the Anglican clergy in Maryland. Maryland never got a resident presiding bishop, and clerical discipline suffered accordingly.

Nevertheless as the Revolution drew nigh, religion, and particularly its diversity throughout the colonies, was much on the minds of the leaders of all the colonies who would take them to war with England and, if successful, meld them into a new nation. Religion was still very much a part of the fabric of national life on both sides of the Atlantic.

In 1689, having been unable to settle upon which was the One True Religion through civil war and alternating tyrannies for 150 years, England had enacted its own grudging Act of Toleration. Non-conforming Protestants who took the Oaths of Allegiance and Supremacy could worship as they chose. Non-Trinitarians, Catholics and Quakers did not qualify—less generous, to be sure, than Baltimore’s Maryland Act Concerning Religion of 40 years earlier, but progress nonetheless.

Moreover, the concept of “toleration” of disparate religious beliefs had been rising in esteem in both North America and England since 1689, and was evolving into a widely-acknowledged fundamental human right of “free exercise.” Non-conforming religious practices were no longer regarded as a matter of privilege, to be permitted or prohibited at the whim of government. To follow the “dictates of conscience, unrestrained and unpunished by the magistrate,” as John Locke put it, was achieving recognition as an inalienable “natural and absolute right,” a component of the liberty the Founding Fathers expected to follow upon independence. As the Continental Congress met in Philadelphia in the summer of 1776, religious freedom was being written into the Virginia Declaration of Rights by George Mason and James Madison. By November Maryland had adopted its own version. The Marylanders who drafted it were all practicing Anglicans but one, who was a Catholic.

After the War, as the Constitutional Convention met again in Philadelphia in the summer of 1787, religion was once more a subject of debate. The consensus they reached was to confer no powers at all concerning religion upon the new federal government. Regulation and support of religion, if needed, would be left to the state governments. Thus, the only mention of religion to be found anywhere in the original draft Constitution as it emanated from Philadelphia is Article VI, clause 3, which provides that no religious test shall ever be required to hold any office or public trust under the authority of the United States.

Some new states ratified the Constitution as written. Others insisted a Bill of Rights was needed, and when it appeared that ratification might fail unless amendments were added, the newly created Congress of the United States drafted the Bill of Rights as we know it today—the first ten amendments. Because the original Constitution set forth expressly what the federal government could do, but was silent on what it could not do, proponents of a bill of rights sought to make explicit those subjects that should be forbidden for all time to the new central government. First and foremost, as we know, was the establishment of a national church and interference with the free exercise of religion throughout the land.

None of the Founding Fathers was hostile to religion. They were all men of faith, believed in a Supreme Being, and in an afterlife in Heaven. But they had come to a realization that religion and civil government, like oil and water, did not mix. Ben Franklin said it best. “When a religion is good, I conceive it will support itself, and when it does not support itself, and God does not take care to support it, so that its professors are obliged to call for help of the civil powers, ‘tis a sign, I apprehend, of its being a bad one.”

Disestablishment of the Church of England, however, had begun in the colonies even before the Revolution. For Anglican priests the Declaration of Independence presented a unique problem. They had sworn an oath of allegiance to the English monarch and his national church, something that no other denomination required. Not only did disestablishment deprive them of their public support, they were now required to break the oath under which they had been ordained. It is reported that only 16 of the 54 Anglican priests in Maryland were willing to do so. The others evaded in various ways—by retirement or a return to England—and by 1780 only 15 remained in the state. Fewer than half of the parishes had incumbent rectors, and it fell to the vestries in each parish to provide support for their priests.

In November 1780 the Anglican clergy and laymen of Maryland convened at Chestertown, Maryland, the first such convention to be held in what would in a few years become the United States of America. It formally adopted the name of the Protestant Episcopal Church for what had been the Church of England. Conventions followed in the other states to the same effect, and the Protestant Episcopal Church of the United States was born.

The most troublesome issue for Americans over the years since Independence has not been the proliferation of sects as a threat to national allegiance, as had been the case in England before the Revolution. Most Americans could be counted as loyal citizens, whatever church they attended. The problem, committed by the First Amendment to the several states to solve, was identifying a surrogate source of the moral and practical education necessary to good citizenship. If there were no public support for the churches, how were young people to learn to be honest, law-abiding citizens?

The answer for many years was for the state government to support those religious entities that had for centuries been looked to for the primary education of the young. The clergy of all faiths were the teachers of children as well as ministers of the Gospel. Along with reading and writing and arithmetic, children were expected to learn the Golden Rule and all that went with it.

The wisest of the Founding Fathers, however, saw the implications of using government money to finance the education of the young through public support of the churches—any church. Which faiths would be deemed worthy of support? What would prevent the insidious growth of a favored church into an official religion? A consensus slowly emerged that the best answer, as we know, is universal public education without religious involvement. Public education sans religious instruction is now offered throughout the United States, although sectarian educational institutions still carry some of the burden, ostensibly without governmental support.

Not until adoption of the 14th Amendment following the Civil War, however, were the worst of iniquities allowed to the states but denied to the national government by the Constitution prohibited to the states as well. And it was not until 1947 that the Supreme Court was to hold that the 14th Amendment took away the powers of the states to support or regulate religion to the same extent as it had been withheld from Congress, in a case, not surprisingly, involving public support for parochial schools Progress in divorcing church and state has been exceedingly slow.

Yet for such progress as we may have made since Lord Baltimore’s experiment, we have not yet been able to find the precise proper location at which to place our Wall between Church and State, and we probably never will. Politics and theology remain commingled in numerous contexts today. We cannot agree on matters of abortion, or gay marriage, or stem cell research. We cannot even agree on what our children should be taught about how the world began, or how the human race came to be. Yet we must concede that such issues have a predominantly religious dimension to them. Proponents and opponents alike on all sides—intelligent and well-meaning people—clamor for civil governments to use their powers to aid their side; quite simply, to enact their religious convictions into the law of the land.

The lesson Baltimore’s experiment imperfectly tried to teach us nearly 400 years ago, however, remains largely unlearned in much of the rest of the world. In recent memory we have seen a Balkan nation torn apart by religious-driven warfare over the right to rule it. Iraq has been unable to form a functional civil government as religious factions contend for political dominion. In Iran today a proud and progressive citizenry is tyrannized, and the rest of us terrified, by a theocratic dictatorship determined to arm itself with the weapons of Armageddon and to exterminate another despised religion.

We do not have to go back to the beginning, to Cecil Calvert’s time, but perhaps we would all do well to remember the first principle of all religions everywhere, and nowhere better expressed than in the words of that earliest and greatest of all the great figures of 17th century England. As William Shakespeare has Hamlet say to his friend Horatio, “There’s a Divinity that shapes our ends, rough-hew them how we will.” In other words, God will have the final say in how well we live (or have lived) our lives, no matter how we—Christians, Muslims, and Jews— order our earthly civic affairs.


Thomas Penfield Jackson was a United States District Court Judge for the District of Columbia. A former president of the District of Columbia Bar Association, he is currently an attorney with the law firm of Jackson and Campbell, P.C. He preached this sermon last month at the Church of the Ascension in Lexington Park, Md.

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