Vail Law: Origins of our religious freedoms
May 31, 2011
The recent odd apocalyptic rantings cum predictions, advanced to his chagrin by the Rev. Harold Camping and his followers, beg the question, “Exactly where and when did we become endowed with the inalienable right to believe in any damn fool thing we pleased?”
The answer lies back in the Middle Ages.
The Middle Ages were a dark and turbulent stretch – famine, pestilence, plague, highwaymen down every alley with bloodied cutlasses, intolerance and war. It was not, to say the least, a good time to be a free thinker. Lasting roughly a millennium, the medieval period is generally considered to date from the fall of the Western Roman Empire in 5th century AD 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 “Ninety-Five Theses” to the door of the All Saints Church in Wittenberg Saxony (presently, part of Germany) on October 31, 1517. The doors served as a sort of pre-Internet chat room for university-related announcements, and the “Theses” were meant to stir debate. That, in fact, they did.
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.
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Instead of just debate, though, the theses rent the church in two and ultimately led to a series of religious wars, culminating in the Thirty Years War from 1618 to 1648. The sine qua non of the Thirty Years War was the conflict between the Catholic House of Hapsburg who, with its allies, fought against the Protestant princes of Germany (at times with the support of Denmark, Sweden and France). The Hapsburgs – rulers of Spain, Austria, much of Italy, the Spanish Netherlands, and parts of Germany – were staunch Catholics and defenders of the One True Faith and the war, if not exclusively, was at least significantly one based on religion. One of the most destructive episodes in European history, at various points the war involved most of the continent and in its wake and 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 perceived moral rectitude 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), the “out-group” from the perspective of 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 divine will.
After more than 25 years of death and destruction, peace was finally sued for and negotiations were begun, culminating, after four years of further bickering, dickering and recrimination, in a series of treaties which have come to be known as the Peace of Westphalia.
The Peace of Westphalia refers to two treaties: the Treaties of Osnabrück and Münster, both signed in 1648. 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, be it Catholicism, Lutheranism or (the new) Calvinism. In Latin, this principal was known as cuius regio, eius religio (literally, “whose realm, his religion”). Secondly, 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 the United States 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.
Thanks to the Treaty of Westphalia, as refined in our own Constitution, you can, in fact, subscribe to any darn fool notion which may appeal to you. So long in doing so, you don’t deny me mine.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECO TV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at firstname.lastname@example.org.