By Samuel Damren
This is the second commentary on Liberty of Conscience, the right of the individual to choose one's religious, ethical, and moral system of beliefs. The first commentary discussed the contribution of Roger Williams and the fledgling colony of Rhode Island to establish individual religious choice in the American Constitution.
This commentary focuses on a preceding period of history in Europe and England where the selection of one's religion was not a matter of individual choice. It is a history of how the forcible imposition of church doctrines over centuries came to scar the Old World with unending persecution, violence, and religious wars.
At a time when our Supreme Court and many state legislators and executives are bent on injecting more and more religious doctrine into government policy and laws, the lessons of Old World religious conflict are well worth re-visiting.
In 1096, Pope Urban II launched the First Crusade, stirring Western Christians to embark on a series of crusades to purify the Holy Land from Muslim control. However, beginning with the Albigensian Crusade in 1209, a later successor to the Holy See, Pope Innocent III, pivoted from the persecution of non-Christians outside of Europe to mounting crusades against fellow Christians inside Europe.
This was the first step in formulating the persecuting societies that would come to dominate the political and religious landscape of the Old World for over half a millennium.
In the Albigensian Crusade, Pope Innocent III charged loyal Catholics in northern France to wage religious war against a dissident Cathar sect in the south. The Cathars were a reform movement, branded as heretical by the Pope, that rejected the wanton materialism and scandalous lifestyles of many Catholic clergy. The crusade extended 20 years, resorted to mass atrocities and concluded in 1229 with the extermination of the Cathars. Conquered Cather lands were seized by the victorious crusaders.
Pope Innocent III died in 1216. However, in the fourth Lateran Council of 1215, he conceived of an additional form of religious persecution that would later become another hallmark of the era.
The Lateran Council required Jews, Saracens and Christians to dress in distinctive garments so that non-Christians could be easily identified. Jews were forbidden to hold public office and denied access to membership in guilds or work in trade or farming. They were only permitted to engage in occupations viewed as sinful if engaged in by Christians, such as money lending where interest was charged.
On the Iberian Peninsula, this form of religious persecution would later culminate with the outright banishment of Jews and Muslims from Spain in 1492.
As Catholic religious control over the Old World became more and more consolidated in the 13th, 14th and 15th centuries, the church also became more corrupt and cruel. The period of the Inquisitions, originally designed to root out the remnants of the Cathar sect, began in 1229. The cruel tortures later spread throughout Europe and England in various iterations to became another hallmark of Old World religious persecution.
Jan Hus, a Bohemian priest, spoke out against the corruption of the church in the early 1400s. His list of complaints bore remarkable similarity to Martin Luther's 95 Theses 100 years later in 1517. However, Hus was little known outside of Bohemia and different fates awaited the two men.
In 1414, Hus was given safe passage to the Council of Constance where Catholic leaders offered to discuss his complaints. When he arrived, safe passage was revoked and Hus was burned to death. Luther braced himself for death in 1521 when summoned by the church to Worms. But the times and politics were different.
The Catholic church's increasing taxes and demands on what later became Germany had by then provoked the enmity of many local nobles as well as the peasant population. And thanks to the invention of the Guttenberg printing press, Luther's criticism of indulgences and other church excesses were widely circulated and enjoyed popular support.
When Luther broke with the church, central Europe splintered along religious lines into fractious realms where, if a well-known supporter of one group were to stray into the lands controlled by an adversary, he would face grisly torture. Luther went into hiding under the protection of sympathetic nobles, but could not be silenced.
Conflicts over faith, power, politics and corruption are examined in Michael Massing's exhaustive 2018 work, "Fatal Discord." Massing places the personal histories of Luther and Erasmus, the famous humanist, on alternating tracks to chronical the era. The work demonstrates that however genuine and well-reasoned their differing views on Christian faith could be formulated, dispassionate religious debate in the Old World was impossible by the 1500s.
If you want a single sample of how vitriolic the words of religious conflict then became and can become, take the time to read Luther's 1545 pamphlet titled, "Against the Roman Papacy, The Institution of the Devil" complete with debasing illustrations of the Pope designed by Luther.
The violence of the Reformation led to the violence of the Counter-Reformation which led to the Thirty Years War (1618-48) and the greatest loss of human life until the industrialized warfare of World War I. The conflict did not cease with the Peace of Westphalia. It merely resulted in re-drawn boundaries of religious hatred and political factions re-setting opportunities.
One lesson from this previous era is that rulers of neighboring realms blind to the concept of Liberty of Conscience who demand their subjects accept differing and contradictory versions of the "one true faith" inevitably visit religious tyranny on everyone and render their realms incompatible with the community of free societies. Half a millennium of history backs up the teaching underlying this lesson.
The next topic in this series is whether a similar certitude by some Supreme Court justices in the illusory theory of "originalism" as the "one true interpretation" of the Constitution is open to like criticism. The theory is not a "nothing" but it is also not a productive "something" to direct a changed and ever-changing America.
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Samuel Damren is a retired Detroit lawyer and author of "What Justice Looks Like."
