Give Me That Old-Time Toleration

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 Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.