Dissent and Disestablishment: The Church-State Settlement in the Early American Republic

Brigham Young University Law Review, Feb 6/Feb 7, 2004 by Esbeck, Carl H

In 1555, the Treaty of Augsburg ended, for a time, the fighting between Catholics and Lutherans in Germany.43 This religious settlement-expedient, if crude-was cuius regio, eius religio ("whose rule, his religion"). While church and state were separate, the treaty ensured dominance of the state over the church by vesting in the prince the power to choose the faith of his realm. Elsewhere, the reformer John Calvin (1509-1564), working out of the city-state of Geneva, taught a church-state model composed of two entities with distinct responsibilities, neither of which could claim supremacy.44 While Calvin's model resulted in less large-scale disruption than that of Augsburg, the state still enforced religious conformity; good standing in the established church remained a qualification for voting, citizenship, and political office. Yet another model, the Edict of Nantes in 1598,45 gave the Huguenots (French Calvinists) freedom within Catholic France to worship in and control their immediate territory. The edict came after a stalemate in the fighting, which had gone on from 1562 to 1598. But this arrangement merely created a precarious religious pluralism, one in which the peace was only as good as the king's willingness to honor the edict. Sixty years later, King Louis XIV withdrew the toleration, scattering Huguenots as far as the American wilderness.46

In 1648, the Treaty of Westphalia ended the Thirty Years' War and culminated the series of wars first set in motion by the Reformation.47 Catholics were left established in the south of Europe, while Lutherans and Calvinists were in control of the north. For many Europeans (in both the north and south), the carnage and destruction brought about by the wars discredited the churches, if not Christianity itself, and strengthened the hand of the secular rulers. This was especially true of Protestants, who were divided on religious questions and needed the military protection of the prince. The Westphalian settlement resulted in sovereign nation-states of growing importance and power, a unified Catholic establishment spanning the south, various Protestant national churches in the north, and religious dissenters in all these states.

Anabaptists alone contemplated a more extensive separation of church and state; for their efforts, civil and religious authorities hounded and often exiled them.48 In 1527, a synod of Anabaptists had set down their beliefs in the Schleitheim Confession, which included argument for a more complete separation of church and state. The Confession professed the true church to be a free association of believers, faith to be a free gift of God, and that civil authorities exceed their rightful authority when they champion the word of God (or their version of it) by use of force.49 Anabaptists were thus the first Christians since before the time of Constantine I to profess a systematic faith without state support and without state superintendence.

C. Reformation in England

1. Catholic England