Systematic Theology – The State

Religious Liberty

Professor: Dr. R.J. Rushdoony

Subject: Systematic Theology

Lesson: Government

Genre: Speech

Track: 18

Dictation Name: 18 Religious Liberty

Year: 1970’s

Now we go on to another subject, that of Religious Liberty. Our first session we dealt with the Edict of Milan, and now we go to Religious Liberty.

Too often in the history of the church, historians have seen religious toleration as a beneficent goal and a desirable end, and so we are told it was a great day when various Catholic states stopped persecuting Protestants and Protestant states stopped persecuting Catholics, but toleration simply seceded intolerance, and tolerance waned came into being because Christianity waned. It was a sign of indifference, not of freedom. There is a difference between religious freedom and religious toleration, because toleration is something that the state gives to a church, or to a religion, and says “It is our power to tolerate you,” or “not to tolerate you,” but the meaning of religious liberty is that the state recognizes it has no power in a domain that belongs to God. We do not believe in religious toleration, or intolerance. We believe, as Christians, in religious liberty, that what belongs to the Lord Jesus Christ cannot be governed by Caesar, and as a result, we must resist the growing measures of control whereby the state says, or the federal government says, “We will tolerate these practices and we will not tolerate those.” The First Amendment is, to all practical intent, dead. What we have today is religious toleration, and the toleration is growing less and less as the state seeks to control more and more of the church. In fact, religious toleration leads to religious establishment, because with toleration, the state says, “We say what can be permitted and therefore, we establish certain things, certain practices, and we establish certain churches.”

As for example, in England with Henry VIII, the Church of England was established, and what the seceding monarchs did was to say what could be tolerated and what could not. While the establishment tolerated the Church of England, it did not permit a convocation. In other words, the crown said, “We don’t want the bishops and the deans, and the pastors coming together and governing the church. We will govern it.” There were periods when, for as much as seventy years, there was no convocation. Everything was governed from the crown. So that not only was the Church of England the only church that was tolerated (this is establishment) but what the Church of England could do was to limit it, so that the toleration for even the established church was very limited. This is true to this very day to a degree, in that Parliament has the say-so about changes in the Book of Common Prayer, and other things as well.

In the American Colonies there were quasi establishments, strictly speaking, while the Congregational church was established in Massachusetts, for example. In Connecticut, the Church of England was the legal church for England, and for all the Colonies. So, they were quasi establishments, not fully so.

Carl Bridenbaugh in his book, Mitre and Scepter says that one of the great causes for the War of Independence was the fact that the crown was considering forcing bishops on all the Colonies, and requiring every one of the American Colonies to become Anglican, and Bridenbaugh, who is not a Christian, says only the humanistic, or secular, perspective of other historians has kept them from writing this story. His book is a very important one, but with that, of course, men began to rethink the issue here in this country. The man who did the great work in this area was Isaac Backus. Isaac Backus was a Baptist leader whose pamphlets and preachings on the subject of religious liberty are the great classics in this area. They have, in the past few years, been reprinted by Yale University Press, and Isaac Backus’s work did much to further the doctrine of religious freedom, because of course, Isaac Backus had to face the Congregational establishment in Massachusetts and Connecticut, and their hostility, as well as recognizing the problem in England. His pamphlets, tracts, and books on the subject are most eloquent.

Thus, a major consequence of this was the First Amendment to the Constitution, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble or to petition the government for a redress of grievances. The clergy of the Colonies strongly favored this Amendment, and Rutland{?}, in his book on the Bill of Rights, mentioned in passing that, to get the approval of the clergy and their readiness to work for the Constitution and its ratification, it was necessary for the men who framed the Constitution to promise that a bill of rights, and in particular, the First Amendment, would be passed. Because what these men came to realize, as led by Backus, is that an established church is a subservient church. It is under the thumb of the state. It is also a silent church. It will not speak out concerning the sins of the state, and it is very readily and easily a corrupt church.

The First Amendment, thus, was very popular with the churches. The two central aspects of the First Amendment are first, there is to be no establishment, that is, of a church or a pattern of doctrine. Of course, now we have a religious establishment in this church, because you’re not a church unless the Internal Revenue Service establishes you and says you are a church. That’s establishment. It’s a very clear-cut violation of the First Amendment, but since 1952, the IRS, for thirty years now, has been establishing churches, and you’re not a church unless they say so.

Second, Congress is barred from any interference with the free exercise of religion. Now, the fact is, what the First Amendment did was to say there can be no established church. It did not say we are not a Christian nation, because every state is inescapably religious. As we have seen on previous occasions, all law is simply enacted morality. It says certain things are wrong to do, and all morality is an aspect of religion. So, every time you have a system of laws, you have an establishment of religion, but you do not have an establishment of a church. Now, very early, the court said in this country, after the Constitution, that Christianity was the common law of this land, and that’s why cases were decided right out of the Bible by juries. They did not go to statute law. There was virtually none. They went to the Bible and they said, “In terms of scripture, this is how we settle the case.”

Jefferson saw the danger of the common law, and he saw its transmission from England to America as the transmitting of the seeds of establishment. He fought against it, but he did not prevail. In fact, Justice Joseph Story, the first great, and perhaps some would say the greatest Supreme Court judge, was the right-hand man to Marshall, made it clear that Christianity was a part of the common law, that the laws of this country were established upon the Christian religion, upon the Bible, not as a church system nor as a system of doctrine, but as common law. Now, the interesting fact about this is that Joseph Story was a moderate liberal of his day. He was a Democrat, and he was a leader of the Unitarian churches. In fact, he was, at one time, president of the Association of Unitarian Churches, and yet, Story, as a good judge and lawyer, was emphatic that the system of laws that we have are Christian, that the Bible is the common law of these United States.

He was not alone in this. Other judges were ruling the same way. Chancellor James Kent, in The People vs. Ruggles held that Christianity is a part of the common law and basic to civil order for centuries, and he cited Du Ponceau’s words in his decision, and I’m quoting from Chancellor Kent’s Commentaries on American Law. “We live in the midst of the common law, we inhale it at every breath, imbibe it at every pore; we meet with it when we wake and when we lay down to sleep, when we travel and when we stay at home; and it is interwoven with the very idiom that we speak; and we cannot learn another system of laws without learning, at the same time, another language." This was Chancellor Kent in his famous Commentaries of American Law.

McClelland, in his book on Joseph Story, documents this same fact in one lengthy chapter. Men like Story knew the religious nature of law in society, and therefore, while they defended an institutional separation of church and state, they recognized at the same time in McClelland’s words, “At bottom, church and state are forever united. Their total separation impossible.” Christianity is the foundation of the state and its laws. Sabbath laws and blasphemy laws were on the books and some of them still are, and Story said, “Government cannot long exist without an alliance with religion to some extent, and that religion is indispensible to the true interests and solid foundation of all governments.”

It was after World War 2 that the legal changes came. Cord{?}, in his book on the First Amendment, has cited three other purposes of the First Amendment. First, the limitation placed on the powers of the federal government, denying it the prerogative to establish a national church. Second, the federal government cannot encroach on the freedom of conscience, and third, the church and state relation was left to the individual state. Thus, the First Amendment meant that Christianity was the common law, but that no church could be established, nor any system of doctrine.

In the famous case of Reynolds vs. the United States, 1879, over Mormon polygamy, the Supreme Court ruled that if they allowed polygamy, another group could say our religious liberty is violated because we’re not allowed to practice human sacrifice, or theft, or murder, or what have you. There are cults which have done all these things somewhere in the world, and so they had to hew to a common law of Christianity, and if any other religion departed from that moral standard, they could not practice it.

Religious liberty is thus within the context of a religious and moral faith, a law structure, and the First Amendment says there is freedom of conscience and freedom of religion, provided we do not transgress Christianity as a common law structure, as a system of morality that is binding upon the nation.

Now, of course, we have a battle. Which is going to prevail, a common law Christianity or a common law humanism? Common law humanism says abortion is legal, homosexuality is good. You know, Bob Hope said the other day he didn’t mind them tolerating homosexuality. What he was worried about was maybe they were going to require it one of these day. Well, common law humanism says that all these practices that have been for two centuries, regarded as illegal, are now legal, and the things that Christians have said represent the heart of law and order are now to be cast aside and prohibited, persecuted. The issue is what are we going to have? Common law Christianity or common law humanism?

Are there any questions? We may have time for one or two.

[Audience] One by way of comment. It’s interesting as they are changing from the one base to the other, that we’re finding some very strange bedfellows together to fight the various eddies and currents in this stream, and you find feminists lining up with Christians at points. You find Mormons and Bible-believing Christians together. So one of the arguments that I have used with success in dealing with various peoples down in Berkeley is just the fact that if we go away from common law Christianity, it’s not just the Christians that lose. Everybody loses. Everyone, without exception.

[Rushdoony] Very true. Well, our time is up right now. We’ll take more questions at the end of our third study on the Medieval Struggle. We’ll take a break now for about ten minutes.

End of tape