The struggle for toleration . . .


THREE hundred fifty-nine years ago today, when the two tin sailing ships Ark and Dove dropped anchor in Maryland, many of the first colonists clambered ashore hopeful they'd found a haven from religious persecution abroad.

Little could they have suspected how difficult the struggle for tolerance would be on the shores of the Chesapeake -- nor how much it would prove that liberty is relative, that it requires eternal vigilance.

Since then no other colony or state has had a more raucous religious history than Maryland, or engendered as much sweeping legislation and landmark case law to further the cause of religious liberty. And nowhere has bigotry been more blatant.

To be sure, good intentions were there from the beginning. When the settlers landed on March 25, 1634, they were instructed to devise the first township at St. Mary's so that the government building was situated as far away as possible from the church. And in 1639 the colonial assembly passed an "Act for Church Liberties," which was quite possibly the first piece of legislation in America to grant lay colonists various religious "rights and privileges."

But 10 years later came another law concerning religion, the famous "Toleration Act of 1649," which by today's standards would be considered a most intolerant piece of legislation indeed. Though aimed at protecting all Christians (Puritan, Protestant or Catholic), it provided for punishment by death and confiscation of property of any person who denied the Trinity.

In February 1658, at the provincial court of St. Mary's, two witnesses charged that Jacob Lumbrozo (the first Jewish doctor in any of the colonies) had uttered his opinion that Christ's resurrection "might be done by necromancy or sorcery." Although Lumbrozo declared that he had "said not any thing scoffingly, or in derogation by him whom Christians acknowledge for their Messiah," he was found guilty and jailed. (As fate would have it, 10 days later came word of Oliver Cromwell's accession to power in England and of his declaration of a general amnesty. Lumbrozo, almost a victim of the "Toleration Act," was set free.)

Subsequent events both social and legislative likewise reflected the continual tug-of-war between sectarian interests and those who favored complete religious freedom for all. Despite the noble policies espoused by the various Lords Calvert and the glowing pictures painted by optimistic poets of the age, an undercurrent of hostility persisted. Legislative protection, rather than social toleration, had become the reason for refuge.

And scant protection it was. In 1702 the Church of England was officially established as the Church of Maryland, a state of affairs that was to continue until the Revolution three-quarters of a century later. Non-Anglicans were blatantly discriminated against. In order "to prevent the growth of popery within this province," a 1704 act bade children to rebel against Catholic parents, who themselves were later deprived of their right to vote. The Blasphemy Act of 1723 provided alternative punishments to the traditional fines and imprisonment: First offenders could be bored through their tongues; a second conviction might result in a "B" branded on the forehead; and a third offense was punishable by death without benefit of clergy.

In mid-18th century Maryland, only members of the established church were eligible to hold office or practice a profession; only Anglican ministers could conduct public worship services. Priests were imprisoned for converting infidels or celebrating the Mass. All citizens were taxed to support the church; a double tax was levied on Catholics to maintain the colony's militia.

So keen was their persecution that in 1752 Maryland Catholics authorized Charles Carroll (father of the signer of the Declaration of Independence) to apply to the Crown for a tract of land in what is now Louisiana. "Religion among us," concluded a clergyman of the time, "seems to wear the face of the country: part moderately cultivated, the greater part wild and savage."

In this context, it is easy to understand the important part Maryland played in the development of modern American notions of religious liberty. Certain influential statesmen and clergy, including the Carrolls (Charles, John and Daniel) and the Rev. Patrick Allison of the First Presbyterian Church in Baltimore, were particularly outspoken opponents of the established state church. Their counterparts in Virginia were named James Madison and Thomas Jefferson. By its own Declaration of Rights in 1776, Maryland became the first of the original 13 states to extend legal toleration to all Christian sects. Even then, though, Article 36 provided for a guarantee of religious liberty only to "all persons professing the Christian religion" and enabled the legislature to "lay a general and equal tax, for the support of the Christian religion."

Marylanders who may have thought they were protected by the original charter of 1632, or by the state's Declaration of Rights in 1776 (or, for that matter, by the First Amendment itself), have frequently been disappointed.

It would not be until 1826 that Unitarians and Jews received full political rights -- and then only by virtue of the heroic efforts of an Irish Presbyterian member of the general assembly named Thomas Kennedy, who spent virtually his whole political career fighting for the civil liberties of all Marylanders, regardless of their religious beliefs. Not until 1851 were the words "professing the Christian religion" deleted from the Declaration of Rights. And not until more than a century later (in 1965) would the Supreme Court strike down Maryland's requirement that witnesses and jurors believe in a supreme being, and (in 1974) a lower federal court declare invalid the state's constitutional prohibition against clergymen holding public office.

Thus the lesson: Even on this Maryland Day in enlightened 1993, no more than in any of the past celebrations of our founding, should freedom of religion in the Free State be taken for granted.

Kenneth Lasson teaches law at the University of Baltimore.

Copyright © 2019, The Baltimore Sun, a Baltimore Sun Media Group publication | Place an Ad