Front Royal, Virginia — America has a strong tradition of religious liberty. It also has a history of persecution that is less well known.

In general, Judge Kavanaugh seems to be a friend of religious liberty, although some of his statements may disclose hints of positivist jurisprudence.

The confirmation of Judge Brett Kavanaugh to the Supreme Court could assure us that we are championing liberty for the next generation. We have frequently been disappointed by justices who appeared to be greater champions of life, liberty, and property when nominated than they proved to be once they were on the Court. Some of this is due to the decline in American jurisprudence over the past century, some is due to the unpredictability of the future decisions of justices, and some is due to the poor selections of nominees. In general, Judge Kavanaugh seems to be a friend of religious liberty, although some of his statements may disclose hints of positivist jurisprudence.

Contrary to popular belief, there was little religious liberty in colonial America.

Contrary to popular belief, there was little religious liberty in colonial America. There was a fair amount of freedom of religion under the last two Stuart kings, Charles II and James II, up to 1688. The colony of Pennsylvania was tolerant of religious differences to some extent; it was the only colony with a legal Catholic Church from about 1670 to 1775. Colonial Maryland treated all Trinitarian Christians fairly in two distinct periods: from its founding until the English Civil War and from the Restoration until 1688. Rhode Island was relatively tolerant of Protestant denominations. By and large, however, the colonies were intolerant.

By and large, however, the colonies were intolerant (of religious liberty). Massachusetts was the most egregious in this respect. It hanged several Quakers; it cut off the ears or cut out the tongues of other Quakers.

Massachusetts was the most egregious in this respect. It hanged several Quakers; it cut off the ears or cut out the tongues of other Quakers. John Calvin had expounded a doctrine that Adam and Eve were created under a covenant of works; when they broke this covenant by their disobedience, it was replaced by a covenant of grace. An arcane dispute about how to apply this new covenant resulted in a Massachusetts synod holding that “Christ and his benefits may be offered and exhibited to a man under a Covenant of Works, but not in or by a Covenant of Works.” The Massachusetts General Court banished people from the colony for denying this. One of those banished, Anne Hutchinson, was placed in the custody of a man other than her husband until the weather was good enough for her to leave the colony. The Massachusetts General Court banished the first President of Harvard from the colony because he was Unitarian.

The War between the States and Reconstruction resulted in significant setbacks for freedom of religion. Once again, intolerance came from the North. In 1862, Ulysses S. Grant signed a general order banishing all Jews from an area along the Ohio River known as the Military Department of Tennessee.

Connecticut fired the entire faculty of Yale University for Episcopalianism. Episcopalians were not allowed to teach college in Connecticut until the 1830s. The colony persecuted a branch of the established Connecticut Church called the New Lights.

After independence, the new nation decided not to have a national church. Gradually, over two generations, the Founders got rid of all state-established churches and moved definitively toward complete religious liberty.

The War between the States and Reconstruction resulted in significant setbacks for freedom of religion. Once again, intolerance came from the North. In 1862, Ulysses S. Grant signed a general order banishing all Jews from an area along the Ohio River known as the Military Department of Tennessee.

Examples of restrictions imposed by the Supreme Court:

— banning prayer from public schools and other public events

— extending conscientious objection status to atheists

— gutting virtually all prohibitions of pornography

During the War, Missouri banished, imprisoned, and murdered ministers who belonged to the southern — and not the northern — branches of the Baptist, Methodist, and Presbyterian churches. Later, Missouri adopted a constitutional provision requiring all clergymen to take a loyalty oath. The oath was so outrageous that at least one Catholic bishop forbade his priests to take it. One of these priests, after his conviction for acting as a priest without taking it, appealed all the way to the Supreme Court, which eliminated the oath.

When the War was over, General Wager T. Swane, the Northern general in charge of a two-state area including Alabama, closed all the Episcopal churches in Alabama.

Other examples of restrictions imposed by the Supreme Court:

— jailing a woman for refusing on religious grounds to sign a marriage license or certificate for a homosexual union

— requiring the exclusive teaching of Darwin’s explanation of evolution

— extending constitutional protection for sodomy, contraception, and abortion

More recently, restrictions have been imposed and are more popular in the North than the South. These include the following:
• banning prayer from public schools and other public events
• extending conscientious objection status to atheists
• gutting virtually all prohibitions of pornography
• jailing a woman for refusing on religious grounds to sign a marriage license or certificate for a homosexual union
• requiring the exclusive teaching of Darwin’s explanation of evolution
• extending constitutional protection for sodomy, contraception, and abortion.

The next session of the Supreme Court starting in October may face many religious questions. Freedom of religion is guaranteed by the Constitution, but the Supreme Court has never said that it is as broad as freedom of speech and freedom of the press. In the past term, the Supreme Court upheld the right of a baker not to decorate a homosexual wedding cake but left unclear how broad the ruling was. The Court also sent back a case to a lower court in which a woman had been convicted for refusing to arrange flowers for a homosexual wedding, but its guidance to the lower court was not very precise. The Court will probably take up a lower court order to destroy an American Legion monument to Maryland’s World War I dead. It may have to consider whether cross-shaped monuments are allowed in Arlington National Cemetery. It may also have to deal with some uncertainty as to the extent of the power of religious schools to control their employment practices. It may have to consider the constitutionality of laws punishing bigamy and polygamy. It may have to rule on a public prayer question.

Freedom of religion is guaranteed by the Constitution, but the Supreme Court has never said that it is as broad as freedom of speech and freedom of the press.

The confirmation of Judge Kavanaugh would give a clear majority on the Supreme Court to justices who are generally friendly to the free exercise of religion, and who do not believe that the “establishment of religion” means something vastly broader than the drafters of the Constitution would have been willing to even imagine. We might even return to the intention of the Framers that the two religion clauses of the First Amendment complement — rather than contradict — each other.

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Copyright © 2018 by the Fitzgerald Griffin Foundation. All rights reserved. This article may be reprinted if credit is given to Charles G. Mills and fgfBooks.com.

Charles G. Mills, author of The Confederate Lawyer, is the Judge Advocate Emeritus (general counsel) for the New York State American Legion. As a New York lawyer, he has been arguing cases for fifty years in federal courts and in all levels of the New York courts.

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