The Catholic Thing
Give Me That Old-Time Toleration Print E-mail
By Hadley Arkes   
Wednesday, 29 April 2009

In my course on The American Founding, we had come to that matter so widely misunderstood: the place of religion in the laws under the new constitution. The question came in one night by e-mail from one of my students: James Wilson, in his first lecture on jurisprudence (1790), praises this country as the site of a religious liberty quite rare in the world, and he cites as a point of evidence the Maryland Toleration Act of 1649. My student was baffled: how could he cite such a retrograde act, so deeply illiberal that it surely belied its title of proclaiming tolerance in the land? For what was taken as “toleration” at the time was a policy that showily allowed – and at times, compelled – people to attend the Protestant church of their choice. But none of that offered any recognition or rights to papists, to say nothing of the Jews.

In our own time, “tolerance” and “multiculturalism” begin by receding from the casting of judgments. The New Tolerance disclaims any monopoly on truth, moral or religious, and in fact it disclaims any ground of knowing anything reliably about the things that are right and wrong. But the grand act of toleration in Maryland began by affirming its orthodoxy: Anyone who denies “our Saviour Jesus Christ to bee the sonne of God” or the Holy Trinity “or the Godhead of any of the said Three persons of the Trinity or the Unity of the Godhead”—anyone who denied that would be punished “with death and confiscation or forfeiture of all his lands and goods.”

The act went on then to announce stiff monetary penalties for those who would act “in a reproachful manner” to “call or denominate” any person living or working in the province with those names understood as names of insult: “heritick, Scismatick, Idolator, puritan, Independant, Prespiterian, popish prest, Jesuite, Jesuited papist, Lutheran, Calvenist, Anabaptist ….” In other words, it was a species of what we would call today a law banning “hate speech.” The act in Maryland showed its liberality by protecting people of all of these religious sects and churches from gestures of assault and denigration.

But that small gesture might have planted a premise, which could produce over time a larger effect. The British historian Macaulay would later comment on the Toleration Act of 1689 in England, an act that would not remove any of the disabilities affecting Catholics and Jews, and Protestant sects not “conforming” to the Church of England. Macaulay admitted the flaws in the act and said that it could not be measured “by any principle, sound or unsound.” But what could be said about it was this: that it “removed a vast mass of evil without shocking a vast mass of prejudice.”

The principle was planted that “theological error” would not be punished by a civil magistrate.

I raised the question with my students as to what might be said in giving the most plausible and defensible account, for the lawgivers of that time, in explaining what they were doing. For one thing, they took as profoundly serious the way in which the understanding of morality was firmed up by the awareness of that Author of the moral law, the law that would be there even when governments broke down. And for Catholics there was always the question of whether they would take their bearings on things moral and divine from local politicians, or from centers of authority more distant and compelling.

What is engaged then is the question of the moral ground that we share as a political community, and the kinds of people we admit to a share of power over our lives, as we make laws together. But then I posed the question: Do we not acknowledge the same logic today, and have we not seen some comparable abuses of that same logic quite near to us? Let’s look about: Catholic adoption services in Massachusetts have come to a virtual end, because they will not agree to place babies with gay or lesbian couples. The press has been on, in Massachusetts and California, to compel Catholic hospitals to perform abortions or lose public funds and contracts. With same-sex marriage now part of the laws in Massachusetts, those churches that will not recant their moral objections to the homosexual life are churches “not in accord with public policy.” They are candidates for the withdrawal of tax exemptions, or any other privileges they may receive from the hand of the law.

The note has already been sounded in legislative hearings: anyone who argues in public against the rightness of same-sex marriage could only be animated by homophobia or hatred, and he is engaged then in “hate speech.” In Canada and Ireland, there have been charges against ministers or priests simply for restating in the pulpit the teachings of their own church on marriage and the homosexual life. Anyone with eyes to see could not be under the illusion that none of this could happen here.

And so: 1649 in Maryland, 2009 in Massachusetts and America. The underlying logic and rationale oftToleration remain the same. The favored orthodoxies have changed, along with the penalties and devices of punishment. But one target has remained the same. Those papists again. They are truly the one part of this universe that endures.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College.

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Comments (9)Add Comment
Associate Professor
written by Patrick Deneen, April 29, 2009
A fine essay. Dare one ask further whether what you describe here may be a logical development within Protestantism itself (not to impugn many Protestants who are very fine people). That is, when the authority of interpretation of God's word - and ultimately the religion itself - is vested in the individual, then the expected outcome is the retreat into private judgment and the claim that there can be no authoritative public judgment. Everyone can do as they list - except judge.
written by Bruce Roeder, April 29, 2009
While this is clearly a Protestant legacy, Catholics are just the largest, not the only religous group targeted. Mormons and other sects are also out.
retired teacher
written by Joseph Puglielli, April 29, 2009
Was it G.K.Chesterton who said that "tolerance is the last bastion of the truly intolerant"?
LCDR, USN [ret]
written by Keith Töpfer, April 29, 2009
Methinks it is a good time to be a Catholic. We already have many opportunities to do His work, and if present cultural trends continue, the number of opportunities may well be increasing.

Pax et bonum.
written by Achilles, April 29, 2009
Thanks for an excellent essay! Good comments PD. Joseph de Maistre speaks beautifully of Protestantism in its real sense in an essay against the French Revolution. Tolerance today so poorly misunderstood because, as JPII explains of freedom disconnected from Truth, tolerance disconnected from truth destroys itself. There is pleny of evidence of this in today's relativistic society.
Assistant Professor Of Humanities and Tr
written by Thaddeus Kozinski, April 30, 2009
Isn't the inexorability of public condemnation and coercion of religiously pertinent actions and words--even in the regime whose very explicit raison d'etre is absolute religious tolerance--reveal that politics must, according to some ineradicable natural law, be based upon some indisputable sacred center, some particular religious establishment, some intolerant "comprehensive doctrine" (Rawls' term)? I think it does. If so, then Catholicism should be that sacred center, not religious pluralism.
written by Thomas Gillespie, April 30, 2009
"The New Tolerance disclaims any monopoly on truth, moral or religious, and in fact it disclaims any ground of knowing anything reliably about the things that are right and wrong." - This is an extraordinary, even bizarre, claim of moral agnosticism for the NT. How does this square with "I am the way, the truth, and the life, no man comes to the Father but through me"? Or Jesus' instruction to the rich young man to follow the commandments to achieve perfection? Or the Sermon on the Mount?
on Roger Williams
written by Dan Biezad, May 01, 2009
No discussion of religious tolerance in 1650 should exclude Roger Williams, the founder of Rhode Island on principles of religious freedom. Independent farmers of that time would never submit to a single religious yoke, and through their fortitude (and expansive lands for escape) our religious freedom grew. Catholics seeking freedom need never play the victim, neither then nor now. In Williams words: "God is too big to be put under one roof." His is our legacy; not one of intolerance.
written by Coemgenus Mahwahvensis, May 02, 2009
"But one target has remained the same. Those papists again. They are truly the one part of this universe that endures."

I'm surprised, Prof. Arkes, that you should see this as a uniquely Romanist trait. There is another group--a group with which I believe you have some association--that seems to have been ordained to be present and to be opposed in every age.

Of course the church claims to be an adopted daughter of Israel, but sometimes the parallels are hard to ignore.

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