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Vail Law: How did we separate church and state?

Rohn Robbins
Vail, CO, Colorado

The Middle Ages were a rough stretch for our species: famine, pestilence, plague, highwaymen around every corner with bloodied cutlasses at the ready, intolerance and war. Lasting roughly a millennium, the medieval period is generally considered to date from the fall of the Western Roman Empire in the 5th century to the beginning of the Protestant Reformation in 1517.

Just as humanity crept slowly out of these dark times, the Reformation itself gave rise to a host of other issues and, as seems to be the natural human predilection, to conflict.

The Reformation began as an attempt to reform the Catholic Church. Most scholars deem the Reformation to have begun with Martin Luther posting his “95 Theses” to the door of the All Saints Church in Wittenberg, Germany on Oct. 31, 1517. The doors served as a sort of bulletin board for university-related announcements and the “theses” were meant to stir debate. Preeminent among Luther’s complaints were the practice of selling of indulgences (essentially, the selling of forgiveness for sin), the practice of “simony” (selling church positions), and the Church’s policy on purgatory.



Instead of debate, Luther’s work split the Church and ultimately led to a series of religious wars, culminating in the Thirty Years War from 1618 to 1648.

Ravaging a continent



One of the most destructive episodes in European history, at various points the war involved most of the continent and in its wake, left much of the continent ravaged and depleted for generations. The male population of the German states was reduced by as much as half, to say nothing of the widespread physical and economic destruction.

Church and state were, needless to say, deeply intertwined and not-so-subtle elements of the conflict involved the rightness of one religious interpretation over another. The wars were a classic of the “my God is bigger than yours” attitude that has scarred so much of human history and sparked both war and suffering.

Not for the first time (nor sadly, the last), those on each of the warring sides were labeled heretics or unbelievers and the death and destruction that was rained down upon the continent for a generation-and-a-half was cloaked in religious dogma and ideals. Simply, the heretics must be brought to God even if so doing meant their utter and complete annihilation and the state was the instrument of God’s will.



After more than 25 years of death and destruction, peace negotiations began, culminating, after four years of further bickering and dickering, in a series of treaties which have come to be known as the Peace of Westphalia.

Separating church, state

The peace resulted from something new in human history. It was the product of the first diplomatic congress and gave rise for the first time to the concept of state sovereignty. The Peace of Westphalia ended religious despotism by accepting that one nation could not impose its faith on another by force. In so doing, it helped usher in the modern era of separation of church and state.

The main tenets of the accord were that all parties would recognize the Peace of Augsburg (1555), which provided that each prince would have the right to determine the religion of his own state. This principal was known, in English, as “whose realm, his religion.”

Second, Christians living in principalities where their denomination was not the established church were guaranteed the right to practice their faith unmolested. This was an enormous leap forward in religious tolerance and, for the first time, virtually eliminated religious conformity. The death grip between church and state at last was broken. Protestants and Catholics were redefined as equal before the law and Calvinism was given legal recognition.

From the Peace of Westphalia, passing through the pen of the English philosopher, John Locke, to the flight of Roger Williams from Massachusetts to Rhode Island, and ultimately distilled in the person of Thomas Jefferson, arose our own constitutional guarantees of freedom of religion and the separation of church and state.

Under out constitution, the treatment of religion by government is divided into two clauses of the First Amendment, the “establishment” and “free exercise” clauses.

The first provides that “Congress shall make no law respecting an establishment of religion…” or, as provided in the second, “…prohibiting the free exercise thereof.”

Our freedoms of religious worship, practice and belief, which, in an open democracy are all but taken for granted, were earned in blood and hardship half a century ago on the battlefields of Europe. And the leap of religious tolerance and acceptance which were established in Westphalia echo in our Constitution, our courts and, ultimately, in our daily lives.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. His practice areas include: business and commercial transactions, real estate and development, homeowner’s associations, family law and divorce and civil litigation. He may be heard on Wednesday nights at 7:00 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 970-926.4461 or at robbins@colorado.net.


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