With the Supreme Court’s release of its opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission religious liberty and the First Amendment are once again dominating the news and social media. Particularly among my fellow evangelical Christians religious liberty has been a hot topic for the past decade or so. Actions of the Obama administration and several state governments against Christian entrepreneurs have led many evangelicals and other conservative Protestants to believe that a new age of persecution of Christians has begun. If there were a way to track the rate at which Christians quote different passage of the Bible I suspect that you would see an explosion in the use of John 15:18-21 where Jesus discusses the world’s hatred and persecution of his disciples.
As a result, evangelicals are increasingly invoking the First Amendment’s protection of religious liberty in the face of unwanted government action. My fellow evangelicals seem to be genuinely perplexed at the level of hostility from the political left and are increasingly fearful of what the future may hold. I think that they would do well, however, to familiarize themselves with the role that conservative Protestants have played throughout the history of the First Amendment and religious liberty in America. The sad truth is that we are not the heroes in this story. Nor are with the victims. In this story we are the villains.
Even though many of the early colonists to arrive on the east coast had been victims of religious persecution themselves, this did not mean that they valued religious liberty for others. The Puritans settlers of New England are probably the clearest example: they fled England not to form a religiously free society, but to form a perfect religious society. Those who held unorthodox Protestant views faced persecution in most colonies, and the rights Catholics were threatened everywhere. Although Maryland was founded by Lord Baltimore as a refuge for oppressed British Catholics, in 1692 Protestants overthrew the government, repealed the Toleration Act, and outlawed the Catholic Church.
The Protestant majority’s dominance over American politics, and its hostility towards Catholics, continued well into the 20th century. Protestant mobs were known to attack Catholic individuals and Church property. Nativist groups during the 19th century, such as the Know-Nothings and the American Party viewed the US as a Protestant nation and saw mass Catholic immigration into the US as an existential threat. Opposition to immigration and opposition to Catholicism were one and the same.
The public schools of the time, all of which taught a form of non-denominational Protestantism, were utilized to “properly” educate and assimilate Catholic children into the Protestant society. Catholic parents were understandably upset by this, so the Catholic Church established parochial schools across the country to educate Catholic children. The majority of states enacted so-called “Blaine Amendments” to their state constitutions, which prohibited public support for Catholic and other “sectarian” schools. The public schools, however, would continue to use public funds to promote Protestant Christianity.
This was not enough for some Protestants, however, who insisted that all private education should be forbidden and all children should be forced to attend the same Protestant-leaning public schools. In a 1922 ballot initiative the people of Oregon adopted a compulsory education law that aimed to destroy the influence of Catholic schools by forbidding all private schools. Thankfully, this attempt to utilize the public school system to promote Protestant orthodoxy was struck down by the Supreme Court in Pierce v. Society of Sisters, which held that parents, not the state, had the right to direct the education of their children.
Nor were Catholics the only victims of they Protestant majority’s oppression. When Joseph Smith published the Book of Mormon in 1830 and founded what would become known as the Church of Jesus Christ of Latter-day Saints he was met with immediate hostility from conservative Protestants due to his numerous departures from Protestant orthodoxy. As the movement grew so did Protestant hostility. In 1838 the governor of Missouri ordered the state militia to violently expel the Mormons from the state. After several years of escalating tension in Illinois, a mob murdered Joseph Smith in 1844, which prompted the majority of Mormons to move west to the isolated territory of Utah.
Tension with the Protestant majority continued, however, especially over the issue of polygamy. Monogamy was well established within Protestant orthodoxy, and they insisted that any civilized and Christian society would outlaw polygamy, as every state in the Union had. The Mormons, however, believed that polygamy was religiously acceptable, even though a large majority of Mormon families were still monogamous. In 1862 President Lincoln signed a law banning polygamy in all federal territories, but it was largely unenforced until after the Civil War ended.
Polygamist Mormons insisted that this federal ban was an affront to their religious liberty and was prohibited by the Free Exercise Clause of the First Amendment. In 1878 the Supreme Court ruled in Reynolds v. United States that while the government “cannot interfere with mere religious belief and opinions” it could prohibit practices such as polygamy. It held that allowing religious exemptions to laws would “make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself.” This argument, that the First Amendment only protected beliefs, not actions, continues to be promoted by some to this day.
Yet the Protestant majority was not content with simply punishing acts of polygamy, it insisted that Mormons must change their beliefs. Congress enacted a series of increasingly draconian laws designed to force a change in Church doctrine. Not only were actual polygamists stripped of their right to vote, hold office, or serve on a jury, the same punishment was inflicted on anyone who argued in favor of polygamy and anyone who belonged to an organization that promoted polygamy.
This was upheld in the 1890 case of Davis v. Beason. The Supreme Court held that “[t]o call their advocacy [of polygamy] a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise, and counsel their practice is to aid in their commission, and such teaching and counseling are themselves criminal, and proper subjects of punishment as aiding and abetting crime are in all other cases.” In essence, the Court ruled that the Latter-day Saints were not actually a religion, but simply one large criminal conspiracy to commit polygamy.
The coup de grâce came with the Edmunds-Tucker Act, where Congress disincorporated the Church, dissolving its legal existence, and ordered the seizure and forfeiture of the Church’s assets. In Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States, the Supreme Court argued that “since the Church of Jesus Christ of Latter-Day Saints has persistently used, and claimed the right to use” its assets “for the purpose of promoting and propagating the unlawful practice as an integral part of their religious usages” the Edmunds-Tucker Act did not violate the First Amendment. In the face of such coercion, the Church leadership capitulated and announced a formal change in doctrine prohibiting polygamy.
While there are few today, Mormons included, who would like to see polygamy practiced, anyone who claims to support religious liberty should be horrified by this treatment of 19th centrury Mormons. In order to defend Protestant orthodoxy regarding marriage from a heretical offshoot, the government stripped the heretics of their civil rights without due process, dissolved their church, and seized its assets. I know of no other instance where the Supreme Court so whole heartedly endorsed the legal, systematic oppression of a disfavored religious group.
Following the Mormon abandonment of polygamy, Jehovah’s Witnesses became the new whipping boy of Protestant America. While mob violence and legal harassment were always common, Jehovah’s Witnesses were particularly despised during times of war and national emergency, because they would not serve in the military, salute the flag, or pledge allegiance.
Take the case of Chaplinsky v. New Hampshire. Chaplinsky was preaching on the public sidewalk in 1940 when he was surrounded by an angry mob that mocked Jehovah’s Witnesses, demanded that he salute the flag, and assaulted him in full view of law enforcement officers. The police refused to protect his right to preach and instead took him into custody, at which point Chaplinsky called the cop a “damned fascist” and a “damned racketeer.” For this he was charged with publicly calling someone “an offensive or derisive name.” The Supreme Court upheld his conviction on the ground that these were “fighting words.”
Whatever you may think of their theology, the Jehovah’s Witnesses have done more to advance the First Amendment’s protection of the freedom of religion, conscience, and speech than any other group in American history. Between 1938 and 1946 alone the Supreme Court heard twenty–three First Amendment cases involving Jehovah’s Witnesses. This is a testament to both the resolve of the Jehovah’s Witnesses, as well as the determination of the Protestant majority to oppress this relatively tiny religious sect. Among the First Amendment rights secured by Jehovah’s Witnesses at the Supreme Court are the right of school children to refuse to salute the flag, the right to preach or hold a service in a public park, and the right to evangelize door-to-door.
The historic desire of conservative Protestants to use government power to punish unorthodox belief is mirrored in their desire to use government power to promote orthodox belief. It doesn’t matter if it is public school prayer (Engel v. Vitale; Lee v. Weisman; Santa Fe Independent School District v. Doe), Bible readings (School Dist. of Abington Tp. v. Schempp), creationism v. evolution (Edwards v. Aguillard), nativity scenes on public property (Lynch v. Donnelly), “under God” in the Pledge of Allegiance (Elk Grove Unified School District v. Newdow), the Ten Commandments in courthouses (Van Orden v. Perry), “In God We Trust” on money (Doe v. Congress). Without fail, conservative Protestant denominations and thought leaders came out in favor of the government promoting their religious opinion.
My point in this post is not to say how the First Amendment should be applied to any particular case or fact pattern, or to say what religious practices should or should not receive protection. My point is that my fellow evangelical Protestants should keep this history in mind when we insist, sometimes hysterically, that we are the victims of secular progressive oppression. Perhaps the reason that progressives seem so unsympathetic to the cries of “religious liberty” from Christian bakers and hobby titans is that we have spent more than 300 years trying to deny religious liberty to those of other religions. Perhaps it is fair for progressives to think that it is acceptable to force feed us a spoonful of our own medicine. Perhaps if we showed even the slightest hint of regret we might receive more sympathy. While the Constitution should provide equal protection to hypocrites, “Religious liberty for me, but not for thee!” will never be an inspiring rallying cry.