Religious Freedom and the Church-State Relationship in Maryland

Home , Government of Maryland, Religious test

The Catholic Lawyer

Volume 14 Number 1 Volume 14, Winter 1968, Number 1 Article 3

Kenneth L. Lasson

Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl

Part of the Constitutional Law Commons, First Amendment Commons, and the Religion Commons

This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. RELIGIOUS FREEDOM AND THE CHURCH-STATE RELATIONSHIP IN MARYLAND

KENNETH L. LASSON *

M ARYLAND HOLDS the unique and admirable distinction of having been the State whose early history most directly ensured, and whose citizenry was most directly affected by, the first amendment's grant of religious liberty. The Supreme Court's docket is still liberally sprinkled with petitions calling for renewed interpretation of the establishment clause, and Marylanders will soon vote upon a proposed new state constitution with a similar provision-hence, the opportuneness for tracing Maryland's contribution to the cause of toleration and to the principle of church-state separation. The validity of an historical approach has long been acknowledged by both the textwriters and the courts. As early as 1819, the Su- preme Court endorsed the wisdom of looking to the views of the Founding Fathers in interpreting the Constitution., In 1872, the Court noted the importance of observing "the history of the times" surrounding the adoption of constitutional amendments.2 The special propriety of an historical analysis for the first amendment has likewise been evident. The edict that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" has proved to be obscure in meaning; determination of the scope of the first amendment's religion clauses requires a determination of the intent of the first Congress, as well as the intent of the citizens of the states that ratified the amendment.3 In an 1878 decision the Supreme Court observed that the word "religion" was not defined by the Con- stitution and added: "We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the

B.A., M.A., The Johns Hopkins University; LL.B., University of Maryland School of Law; Research Assistant, Constitutional Convention Commission of Maryland (1966); Assistant to the Dean, University of Maryland School of Law. 'McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406 (1819). 2Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 67 (1872). 3 ANTIEAU, DOWNEY & ROBERTS, FREEDOM FROM FEDERAL ESTABLISHMENT at vii (1963). RELIGIOUS FREEDOM history of the times in the midst of which stitution, in particular with respect to re- the provision was adopted." 4 Again, in ligious liberty, general suffrage, an elective a 1947 case involving religion, the Court branch of the legislature and an appoin- concerned itself with the "conditions and tive upper branch, and three independent practices which they [the Founding Fath- departments of government. ers] fervently wished to stamp out in The scope of this article will not extend order to preserve liberty for themselves beyond a sketch of the important events and for their posterity." Mr. Justice concerning the theme of toleration and Black concluded that, "It is not inappro- its development in Maryland; from a priate briefly to review the background background setting of religious persecu- and environment of the period in which tion in the early 1600's to the recent the constitutional language [establish- cases involving church and state. The ment of religion] was fashioned and solution to the underlying question of adopted.",' interpretation-whether the establishment Although the first amendment was a clause requires complete separation of reflection on the situation in most of the church and state, or whether it permits colonies of early America, Maryland's nondiscriminatory government participa- role was of paramount significance. tion-will not be attempted, although a Maryland stood out among all the original conclusion will be offered. states as the real champion of tolerance and liberty.' Similarities have been The Setting in Europe- pointed out between the first colonial George Calvert government of Maryland and the Ameri- The early part of the seventeenth can plan of government under the Con- century was an age of religious persecution in both continental Europe and

• Reynolds v. United States, 98 U.S. 145, 162 Great Britain. The Spanish Inquisition, (1878). aimed chiefly at the Jews, was at the . Everson v. Board of Educ., 330 U.S. 1, 8 height of its activity. Germany was in (1947); Horace Mann League v. Board of the midst of the Thirty Years' War, a Pub. Works, 242 Md. 645, 220 A.2d 51, 55- 60, cert. denied, 385 U.S. 97 (1966). bloody conflict born of theocratic ani- " Truman, Maryland and Tolerance, 40 MD. mosities, religious affiliations, public poli- HIST. MAG. 85, 86 (1945). Mr. Truman, in cies and national politics were so inter- an address before the Maryland Historical So- twined with the governments of state and ciety, noted that "Truly all history is but an introduction into the future. The greatest church that they could not be separated. tragedies in history have been made by people Austria was bound up in the same strug- who did not read and analyze history." gle. France alone was a haven for tol- Of the two original havens for the religiously persecuted, Rhode Island and Maryland, the eration, the only country in Europe latter seems to have stood for a truer concept where Protestants and Catholics alike of toleration. See RILEY, MARYLAND-THE enjoyed their own form of religion. But PIONEER OF RELIGIOUS LIBERTY 34 (1917); IVES, THE ARK AND THE DOVE 242 (1936); and, particularly, RUSSELL, MARYLAND: THE LAND OF SANCTUARY 279-87 (1907). 7 LONG, GENESIS OF THE CONSTITUTION 96. 14 CATHOLIC LAWYER, WINTER 1968

France, too, was the scene of more than have reserved their highest praise for the one theological skirmish, especially those self-made statesman-philosopher. One involving Papal acknowledgment of the ranked him among the wisest and most French king's selection of Church offi- benevolent statesmen of all ages, saying cers.8 that Calvert Catholics in Ireland were made to was the first in the history of the Chris- suffer under the established Church of tian world to seek for religious security England; they were taxed for the support and peace by the practise of justice and of the Church, and they were fined for not by the exercise of power; to plan not attending Sunday morning services of the establishment of popular institutions the Church. When the Irish rebelled, with the environment of liberty and conscience. . . . The asylum of Papists was they were massacred-3,000 in one day the spot where in a remote corner of on the Island Magee. Scottish Presby- the world, on the banks of rivers which terians were forced by James I, King of as yet had hardly been explored, the England, to accept his five articles of mild forbearance of a proprietary, adopt- religion, and Scotland, too, was aroused ed religious freedom as the basis of the 1 to rebellion. Wales was hopelessly state. caught in between.9 Calvert was chosen Secretary of State of And in England itself, the established England by King James I, who knew of Church was becoming more and more his tolerant views on religion and rec- dictatorial. Roman Catholics could ognized him as "a man of great sense, neither vote nor hold office. Conformity but not obstinate in his sentiments, taking of worship was enforced by fines and as great pleasure in hearing others' opin- imprisonment. Priests were tortured, '12 ions as in delivering his own. prisons were crowded with "Papists," and Shortly after the death of his first wife, people were burned at the stake for deny- George Calvert converted to Catholicism, ing the Trinity.'0 and, true to character, publicly announced This was the age in which George his change of religion. 13 When British Calvert lived, first Lord Baltimore, persecution of Catholics became severe, founder of Maryland. the first Lord Baltimore bowed out of Calvert has been uniformly hailed as a office. Again he affirmed his faith and man of great political insight, patient claimed that the duties of office were understanding and moral fibre. Distin- no longer compatible with his religion. guished historians of the United States Historians frequently praise Calvert's loyalty to his faith, but seldom note the s For a discussion of Spain, France and Aus- significance which his conversion to Ca- tria during this period, see RILEY, supra note 6, at 13-25. 91d. at 10-13. 10For a more detailed background, see id. at ll 1 BANCROFT, HISTORY OF THE UNITED 7-9; IVES, supra note 6, at 13-20; and RUSSELL, STATES 244. MARYLAND: THE LAND OF SANCTUARY chs. 1-2 12IVES, supra note 6, at 31-32. (1907). .Id. at 36. RELIGIOUS FREEDOM tholicism may have had upon his philos- undercurrent of low-key animosity and ophy of government. Although retired tension, perhaps engendered by the still from public office, he was nevertheless still rather close control exercised by the a king's man. He had not changed his mother country or perhaps only carried political party, yet church and state were over by a hard core of the settlers, was 4 still clearly separated in his mind.1 ever-present. The flame was not to be Calvert's ill-fated attempts to colonize lit until the Protestant Revolution of in Newfoundland 15 seemed to do little 1688, but the combustible elements were more than increase his fervent desire to there. And when Establishment did take establish a haven for the persecuted. He its place, there was as much intolerance was liked and respected by the King, and persecution in Maryland as in any and his request for a charter to set up of the other colonies. a colony on the shores of the Chesapeake But the foundation built by the Cal- was granted, without too much difficulty, verts, however frayed from the outside, in 1632.16 But before the charter re- rested on strong underpinnings and received its seal, the first Lord Baltimore mains important and valuable in any died, never to set foot upon his promised meaningful interpretation of the first land. amendment. The theory upon which Maryland was The Ark and the Dove to the Act founded, that of a state whose govern- of Toleration-1634-1650 ment was truly tolerant and whose citi- Maryland was born as the "Free State" zens enjoyed equal rights for all, did not but it did not earn that title, unless it be originate with George Calvert. Indeed true that nothing is earned except that the idea was prevalent among many po- which is suffered for. To be sure, in- litical philosophers of the era. Thomas cidents of religious friction under the More's Utopia spoke of a law made Calverts, during the first fifty years of that every man might be of what religion the colony, were isolated ones; but an he pleased, and might endeavor to draw others to it by the force of argument and by amicable and modest ways, but without bitterness against those of other opinions; but that he ought to use no 14 JOHNSON, THE MARYLAND ACT OF RELI- other force than that of persuasion, and Gious TOLERATION 5 (1949). was neither to mix it with reproaches 15 IVES, supra note 1 7 6, at 45-46. nor violence. 16 Some writers have suggested that Calvert's first consideration in asking for the new char- It remained for Cecil Calvert, upon the ter was to offset the financial loss occasioned by the failure of colonization in Newfound- death of his father, to forge the ideal land, and that the wish to establish a refuge into a reality. Fortunately, the second for Catholics was but secondary. See SKIRVEN, THE FIRST PARISHES OF THE PROVINCE OF MARYLAND 3 (1923); ALLEN, MARYLAND TOL- ERATION 18 (1855). But this theory has not 1 Quoted in ANDREWS, SEPARATION OF CHURCH been popular among other historians. AND STATE IN MARYLAND at 170 (1934). 14 CATHOLIC LAWYER, WINTER 1968

Lord Baltimore was of much the same the oath required of the governor and 2 4 mold as the first. He too was determined other high officers. to "provide a refuge for English Catholics, At a considerable expense of time, and . . . create a fair domain for himself effort and money, Cecil Calvert outfitted and his posterity. . . . [He] realized two ships, the Ark and the Dove, to that in the age of suspicion and distrust carry the first settlers of Maryland to in which his venture had its inception their new home. Of primary interest in the Catholics alone would never be per- discerning the motives of the Calverts is mitted . . . to build a successful col- the carefully drafted letter of instructions ony." Is Accordingly, he recognized the from Cecil to Leonard, "the first declara- necessity for Protestants working hand tion of religious liberty to come to

in hand with Catholics, and to prevent America." 2' The first instruction reads: discord between the factions, he sought His Lord required his said governor and to do away with all factions through a commissioners that in their voyage 19 to strict policy of religious liberty. Maryland that they be very careful to Most of the early settlers of Maryland preserve unity and peace amongst all the were Protestant,", and Cecil Calvert re- passengers on shipboard and that they suffer no scandal alized that only the fairest treatment of nor any offense to be given to any of the Protestants whereby the colonists upon their arrival in the any just complaint may hereafter be made new land would keep the province in his by them in Virginia or in England and hands.2" Religious tolerance was main- that for that end they cause all acts of tained vigorously, 2 both Cecil and his the Roman Catholic religion to be done brother Leonard (who was to become the privately as may be and they instruct all the Roman Catholiques to colony's first governor while the Pro- be silent upon all occasions of discourse con- prietor remained in England) went far cerning matters of religion and that the beyond what they had to do to save said Governor and Commissioners treat their charter or preserve their rights, in order to protect the religiously oppressed. 2 This is clearly evidenced by 21 The oath reads: I will not by myself or any other, directly s Wroth, The First Sixty Years of the Church or indirectly trouble, molest or discounte- of England in Maryland, 1632-1692, 11 MD. nance any person professing to believe in HIST. MAG. 6-7. Jesus Christ for or in respect to religion. I 1 INVENTORY OF THE CHURCH ARCHIVES OF will make no difference of persons in con- MARYLAND-PROTESTANT EPISCOPAL: DIOCESE ferring offices, favors or rewards for or in OF MARYLAND 7 (1940). See also PETRIE, respect of religion, but merely as they shall CHURCH AND STATE IN EARLY MARYLAND 12 be found faithful and well deserving and (1892); BROWNE, GEORGE AND CECILIUS CAL- endued with moral virtues and abilities; my VERT 98 (1890). aim shall be public unity and if any person 20 ALLEN, supra note 16, at 18-19. or officer shall molest any person professing 21 SKIRVEN, supra note 16, at 7. to believe in Jesus Christ, on account of his 22 PETRIE, supra note 19, at 15. See also I religion, I will protect the person and pun- SCHARF, HISTORY OF MARYLAND 151-82 ish the offender. Id. (1879). 2Id. at 106. See also BROWNE, supra note 19, 23 IVES, supra note 6, at 146. at 46; RILEY, supra note 6, at 45. RELIGIOUS FREEDOM

the Protestants with as much mildness viewed not so much in terms of union and favor as justice will permit. And and separation, but as two sovereignties;" this to be observed at land as well as the instructions for self-government aboard sea.2 , the Ark and the Dove and in the new land itself were enforced in a spirit of Although the religious tone of the complete fairness from 1634 to 1649.2 early province was Roman Catholic Several religious disputes of a relatively ("Protestants were a minority in terms minor nature occurred during the early of influence, if not in numbers"), 27 never- years of the settlement. In 1638 William theless each sect tended to mind its own Lewis, a Catholic, was found guilty of affairs and there was a minimum of overt proselytizing by force of his authority ill - will. From the founding of the over his Protestant servants. In 1641 province in 1634 until establishment of Thomas Gerard, also a Catholic, was the Anglican Church in 1692, all churches charged and convicted of interfering with and ministers were supported by volun- Protestant church services. Both Lewis tary contributions. 2 The principle of and Gerard were fined 500 pounds of religious toleration had not only been tobacco. And there was a prolonged implied by charter 29 but had been also dispute during the late 1630's and after vigorously enforced by the courts. En- between Lord Baltimore II and the Jesuit forcement was by edict of the Lord Order."2 Thomas Copley, a Jesuit, insti- Proprietary, and the people showed their tuted in 1637 a deliberate attempt to rid approval by active cooperation. "While the colony of numerous "heretics" with they had enjoyed the blessing of tolera- which it was "infested," and backed a tion, of their own free will they had rigid program to exclude Anglicans from neither debated it nor voted upon it in political office. 4 the Assembly." 30 Church and state were A few historians have pointed to an obscure ordinance enacted in 1639 as 2'-"IvEs, supra note 6, at 106. Instruction #15 the first piece of religious tolerance legis- required that "settlers be very careful to do lation in Maryland and possibly in the justice to every man without partiality." United States. Known variously as the BROWNE, supra note 19, at 56. The original manuscript is in the possession of the Mary- "Ordinance of 1639" or the "Act for land Historical Society. Church Liberties," 25 it was passed by the 27 JOHNSON, supra note 14, at 84. One author reasons that, although the numerical majority of those who came over on the Ark and "1HANLEY, THEIR RIGHTS AND LIBERTIES 121 Doi'e were Anglicans, the principal adien- (1959). urers were Roman Catholics. SKIRVEN, supra :12JOHNSON, supra note 14, at 6. For a de- note 16, at 6. cidedly anti-Catholic view of Roman Catholic 28 BROWNE, supra note 19, at 124. enforcement, see BROWN, EARLY RELIGIOUS 29 However, the charter probably requires that HISTORY OF MARYLAND (1876). ifchurches be erected it must be according to 3%JOHNSON, supra note 14, at 2. the ecclesiastical laws of England. The Church 24 SMITH, RELIGION UNDER THE BARONS o of England was not to be prejudiced. PETRIE, BALTIMORE 204-12 (1899). Mr. Smith calls supra note 19, at 11. Mr. Copley "Maryland's evil genius." 30 JOHNSON, supra note 14, at 7. 35ALLEN, supra note 16, at 42. 14 CATHOLIC LAWYER, WINTER 1968 annual assembly to distinguish church fallen out to be of dangerous conse- from state. Both the church and the quence in those commonwealths where it hath been practised, and for the more colonists were to have religious "rights quiet and peaceable government of this and privileges." 36 There is ample evi- Province and the better to preserve dence that the tradition which underlay mutual love and amity amongst the the 1639 ordinance persisted, at least Inhabitants thereof; Be it therefore also among Maryland Catholics, up to the by the Lord Proprietary, with the advice time of the constitutional conventions of and consent of the Assembly, ordered the 1780's. 37 and enacted (except as in this present act is before declared and set forth) Much has been written and a great that no person or persons whatsoever deal said about the famous "Toleration within this Province, or the islands, ports, Act of 1649," more correctly entitled harbors, creeks, or havens thereunto be- "An Act Concerning Religion." It has longing, professing to believe in Jesus been alternately labeled as "one of the Christ shall from henceforth be anyways proudest memorials of our colonial his- troubled, molested, or discountenanced for, or in respect to, his or her religion '3 8 and "really a most disgraceful tory nor in the free exercise thereof within piece of intolerance." 3 The divergence this province, or the islands thereunto of opinion may be readily understood belonging, nor in any way compelled to when one examines the construction and the belief or exercise any other religion content of the Act. It contained five against his or her consent, so as they sections. The first provided for punish- be not unfaithful to the Lord Proprietary or molest or conspire against the civil ment by death and confiscation of prop- government. 40 erty of any person who should deny the divine nature of the Trinity or utter The intolerations of the Toleration Act, reproachful words concerning it. Under with its heavy penalties for blasphemy the second and third sections those who and its requirement that one's Christian- blasphemed Catholics were subject to ity, indeed one's religion, had to be fine, whipping and imprisonment. The Trinitarian, are said to have been tem- same punishment was decreed by the pered by the character of the above- fourth clause against profaners of the quoted paragraph and the actual situa- Sabbath Day. But the fifth section was tion in the colonies. The necessity for a of an entirely different tone, providing belief in Christianity discriminated against in part: the Jews, and the order for submission Whereas, the enforcing of the conscience to a civil government, against the Quak- in matters of religion hath frequently ers; but there were few Jews in Maryland at that time and the Quakers' chief difficulty seems to have been in the oath re- 36 1 ARCHIVES OF MARYLAND 82-83 [hereinafter quirements, which were relaxed in 1688 cited as ARCHIVES]. 37 HANLEY, supra note 31, at 123. See also HALL, THE LoRDs BALTIMORE AND THE MARY- LAND PALATINATE 67 (1902). 3 HALL, supra note 37, at 66. 3 SMITH, supra note 34, at 319. 40 1 ARCHIVES 244. RELIGIOUS FREEDOM

and abolished in 1702.41 Still the law Cromwell and the Puritans was narrow and strict, the freedom it 1651-1658 granted more negative than positive. After several decades of persecution in The historical significance of the "Act Virginia, the Puritans were invited by Concerning Religion" has probably been Lord Baltimore II to come to Maryland, overemphasized-it was far less liberal under a promise of absolute freedom of than the policy advocated by the Lords worship. At first only a small number Baltimore ever since the Ark and the accepted the opportunity, but when in 42 Dove. Religious freedom had been the 1649 the Virginia assembly declared that common law of Maryland from its the beheading of the King was an inde- 4 foundation in 1634, 1 as is clearly evi- fensible act of treason, under penalty of denced by the instructions given Leonard death, the number of Puritans in Mary- Calvert, the oath required of the govern- land increased to more than one or, the ordinance of 1639 and the record thousand. in the courts of a strong enforcement of Apparently the Puritans were neither the principle of toleration. But the chang- satisfied with the tolerant society into ing character and growth of Puritanism in which they fled, nor content to live peace- England and the existence of a Protes- fully with those of different theological tant majority in the legislative assembly views. Reports filtered to England that by 1648 44 had its effect on the young the Puritans were not being fairly treated Maryland settlement. It seems safe to by the Maryland government. They per- say that the "Act Concerning Religion" suaded the Crown to send over Parlia- was in reality a compromise between the mentary commissioners. Governor Stone liberal practices of the colonists and of Maryland immediately acknowledged founders prior to its passage and the in- the new Commonwealth of England but tolerance of the element about to seize refused to issue warrants and writs in the control during the impending interregnum 5 name of the "Keepers of the Liberty of of Oliver Cromwell. 4 England" instead of under Lord Balti- more. On this basis, Stone was removed 41 PETRIE, supra note 19, at 37. 42 For a concurring view, see IVES, supra note from office and a provisional government 6, at 228. established. 43 RILEY, supra note 6, at 49. A unanimously Protestant assembly 44 INVENTORY OF THE CHURCH ARCHIVES OF was installed and in 1654, the "Act Con- MARYLAND, supra note 19, at 11. "As the political complexion of the mother country cerning Religion" was repealed and "popery" changed, the complexion of Maryland changed outlawed. Cromwell himself with it." MARNELL, THE FIRST AMENDMENT was by no means satisfied when he heard 139 (1964). 45 ANDREWS, SEPARATION OF CHURCH AND of these developments. He ruled that Cecil STATE IN MARYLAND 167 (1934); BROWNE, Calvert's charter was valid and intact, and supra note 19, at 137. It has been suggested ordered Stone to resume leadership of that one purpose of the Act was to attract the colony. Stone evidently felt that he more Catholics to the colony. See GAMBRALL, EARLY MARYLAND: CIVIL, SOCIAL, ECCLESIAS- had to retake the reigns of government TICAL 109ff. (1893). by force, and the Puritans were not 14 CATHOLIC LAWYER, WINTER 1968

averse to an open conflict. The battle of persuade, have proclaimed open wars the Severn was fought in March of 1655, irrevocably against each other, contrary- and Stone was soundly defeated. Crom- wise concur in an unanimous parallel of friendship and inseparable love well, too busy with affairs at home to unto one another; all inquisition, martyrdom and recognize the victors' insubordination, banishments are not so much as named merely ordered them to cease all perse- but unexpressibly abhorred by each other. cution of Catholics and fully restore Bal- • . .And I really believe this land or 40 timore's province to him. government of Maryland may boast that she Once again under the second Lord enjoys as much quietness from the disturbance of rebellious opinions as most Baltimore, policies of toleration were re- states or kingdoms do in the world, for established. At once Cecil Calvert grant- here every man lives quietly and follows ed immunity to all offenders in the Puri- his labor and employment desiredly. 49 tan rebellion, and permitted them to The Toleration either keep their lands or leave the Act was published in England, and colony, whichever course they wished to it had its due effect on migration to follow. Even the right to hold office was the Province. Maryland now attracted men of character and wealth.50 not denied. Calvert displayed a charac- The colony teristic magnanimity as a reaction to the flourished. Puritan uprising, termed by one writer In 1666 and 1671, motions were put "the basest act of ingratitude and intol- before the assembly which, respectively, erance in the annals of American his- would settle ministers in every county of tory." 47 the province and would establish a sectarian school. Neither motion passed. 1 A Peaceful Reign Cecil Calvert died in 1675. Like his 1659-1688 father, he had never had the pleasure of "History has little to record of the seeing his American colony. "The ad- daily life of the colonists in times of ministration of Maryland was marked by peace and quiet." 48 When Lord Balti- conciliation and humanity. To foster more was able to administer the affairs union, to cherish religious peace, these of Maryland without hindrance, Protest- were the honest purposes of Lord Balti- ants and Catholics lived together in ad- more during his long supremacy. '52 The mirable harmony, unique among the sev- outstanding achievement of Calvert's eral colonies. An indentured Maryland career was "the fact that he was the servant, writing home to London in 1666, first man in history to establish a form of had this to say about his adopted colony: government where all religious sects were absolutely equal before the Here the Roman Catholic and the Pro- law. For this testant Episcopal, whom the world would

'9 Reprinted by the Maryland Historical So- 4' See RILEY, supra note 6, at 51-55; BROWNE, ciety. Quoted id. at 240-41. supra note 19, at 147-55. r3OSKIRVEN, supra note 16, at 11. 47 IVES, supra note 6, at 234. See generally 51 WERLINE, PROBLEMS OF CHURCH AND STATE id. at 233-39. IN MARYLAND 14-15 (1948). 4s Id. at 240. 52 1 BANCROFT, supra note 11, at 437 (1882). RELIGIOUS FREEDOM

5 3 alone he is entitled to immortal fame." in Maryland, 9 and received considerable Despite the noble policies espoused by support. the Calverts and their subordinate gov- King James II was forced to abdicate ernors, and the glowing pictures painted in 1687 and William of Orange ascended by optimistic poets of the age, an under- to his throne. This signalled the begin- current of hostility persisted. Protection ning of the Protestant Revolution. rather than toleration was the keynote of The Protestant Revolution and its the Maryland refuge. Catholics, Puritans Aftermath-1689-1700 and Anglicans were three parties living been advanced as side by side and with equal privileges; Several reasons have to the causes of the revolution of 1689, but while they respected one another's beyond the obvious one that a growing rights, they did not admire one another's had to, sooner or later, come into faith.5" The seeds of Protestant dissent unrest Because of the death of a were evidenced by a 1676 plea for "a the open. new maintenance of a Protestant ministry." 65 messenger sent to proclaim the heads of state of England, Maryland re- Charles Calvert, the third Lord Balti- mained silent while the other colonies more, answered by way of a "Paper set- were pledging their allegiance to William ting forth the Present State of Religion in 0 Maryland."56 This document firmly stated and Mary. This, combined with the from his that the colonists would not want to be absence of the Proprietor made to support the ministers of another province and the false rumor of an im- religion. But there was further demand pending joint uprising of Catholics and which for a Protestant establishment in a Indians, nurtured an air of disquiet facilitated the rebellion. John Coode, "Complaint from Heaven with a Hue Protestant, and crye and a petition out of Virginia who was once Catholic, once and Maryland. '5 7 By 1676, there were once a clergyman and then, as an atheist, three Protestants for every Catholic in authored the rumor of conspiracy and the colony; the Catholics, for whom some became leader of the Protestant malcon- say the colony was established, never tents, forming an "Association in Arms formed the majority of its inhabitants.5 8 for the Defense of the Protestant Religion In 1685, the wife of the sheriff of Cal- and assisting the rights of King William vert County petitioned English church- and Queen Mary." men for help in establishing Protestantism Catholics and any others refusing to support Coode were jailed. An assembly was called from which Catholics were excluded. Coode and his followers sum- " IVES, supra note 6, at 247. marily seized power, and held it until 5' ALLEN, supra note 16, at 64. King William appointed Sir Lionel Copley 55 5 ARCHIVES 130-32. 5 5 ARCHIVES 133-34. as governor in 1691. The next year the 57 5 ARCHIVES 134-49. See also PETRIE, supra note 19, at 37. 5s GAMBRALL, supra note 45, at 108-09. See . Wroth, supra note 18, at 23-24. supra note 45. 60 IVEs, THE ARK AND THE DovE 253 (1936). 14 CATHOLIC LAWYER, WINTER 1968

Assembly thanked the King and Queen approval and therefore became ineffec- 7 "for redeeming us from the arbitrary will tive. The Act of 1702 finally made and pleasure of a tyranical popish gov- official the establishment of the Church ernment under Which we have so long of England as the Church of Maryland, groaned." 1 (The "groaners" but eight a status that was to continue until the years earlier had passed an "Act of Ap- Revolution. preciation" to Lord Baltimore as an The period 1704 to 1709, under the acknowledgment of "his great love and administration of Governor Seymour, was affection" for them.) 62 In 1693 the King especially notable for its spirit of intoler- instructed Governor Nicholson "to per- ance. Catholics were no longer permitted mit liberty of conscience to all" 63 but to practice their religion, and an open apparently this did not mean the freedom bid for children to rebel against Catholic to worship as one pleased. parents was made in the Act of 1704,68 6 4 Establishment had taken a firm hold. yet another statute "to prevent the growth of popery within this province." The Struggle to Regain Religious In that same year a determined legisla- Liberty-1701-1775 tive effort was made to discourage Catho- Ftom the moment of Establishment lic immigrants to Maryland by use of a 6 9 until the Declaration of Independence, system of heavy duties. Thus the feel- Marylanders suffered as much if not ing arises that "in the land which Catho- more religious persecution and intolerance lics had opened to Protestants, the Catho- than any of the American colonists. Dis- lic inhabitant was the sole victim of An- crimination was not selective, but was glican intolerance." 70 levied against any, faith other than the Maryland was returned to the Balti- Church of England. However, because mores in 1715 in the person of 16-year- of the colony's early and continuing rela- old Charles Calvert, the fifth Lord Balti- tionships with Catholics and because more. But his father had publicly con- Catholics were 'probably the largest mi- verted to the Anglican Church two years nority group in Maryland, they seemed to earlier and Charles, proclaiming himself bear the brunt of harsh legislation. In Protestant, was not to follow the noble 1699 a test oath requirement had ex- traditions of his lineage. The Assembly cluded Catholics from all official govern- adopted a resolution expressive of its ment positions.- In 1701 and 1702 other "deep . . . gratitude that the administra- laws of discrimination were passed in the Assembly, 6 but failed to win royal 67 Id. at 255. See generally GAMBRALL, supra note 45, at 23ff; INVENTORY OF THE CHURCH 618 ARCHIVES 315. ARCHIVES OF MARYLAND, supra note 19, at 62 7 ARCHIVES 505. 16ff. 61 26 ARCHIVES 340-41. 61 23 ARCHIVES 542. 69 ld. at 289ff. 64 See generally IVES, supra note 60, at 248-58; 70 3 BANCROFT, HISTORY OF THE UNITED STATES 1 SCHARF, supra note 22, at 302-41. 65 25 ARCHIVES 68. at 32. See generally RUSSELL, MARYLAND: 66 24 ARCHIVES 91ff. THE LAND OF SANCTUARY 370-88 (1907). RELIGIOUS FREEDOM tion of the province had been finally put crime resulted in being branded on the upon a wholly Protestant establishment, forehead with a "B" or fined 40 pounds, and expressing the hope that further tol- or imprisoned for 12 months; and a third eration might not be granted to Catho- instance was punishable by death with- ' 71 76 lics." And indeed it was not. Unwor- out benefit of clergy. thy Protestant clergymen insulted Catho- Maryland now had a state church lics regularly and subjected them to base whose members alone were eligible to indignities. A law was passed which de- vote, hold office and practice a profes- prived a Protestant widow marrying a sion. The test oaths accomplished their Catholic from the custody of her purpose; to possess what we consider to- 72 children, and another act declared that day basic rights of every citizen, in the any Protestant officeholder who joined eighteenth century one had to be Pro- 77 the Catholic Church would forfeit his testant. 73 office. In 1718, another act to prevent Maryland now had a state church will- popery was passed, this one depriving ing to force dissenters from the 74 common- Catholics of their franchise. wealth. A law was on the books which It must be pointed out that with the forbade Catholics to bear arms-"a cir- exception of those laws noted above cumstance likely to discourage life on the [which were enacted under the governor- frontier." 78 In 1729 another statute ship of John Hart (1715-1720)], none penalizing intermarriage was enacted. 9 expressly intolerant of Catholicism was And Maryland now had a state church passed after the proprietorship was re- which alone could hold public worship stored to the Calverts, who were too pre- and evangelize, and which alone could occupied with political quarrels to deal perform valid marriages and burials. By with religion. 75 But neither were any re- 1749 Catholic worship was placed pealed, although the Calverts remained in strictly on a sufferance basis, and to cele- control until the Revolution. brate the Mass publicly was forbidden s Maryland now had a state church which compelled orthodoxy under penalty 7 of fine and imprisonment. The Blas- GLaws of Maryland, ch. 1, §§ 13, 16 (1623). See phemy Act of 1723, as its counterpart in ANTIEAU, DOWNEY & ROBERTS, FREEDOM FROM FEDERAL ESTABLISHMENT 17 (1963); 1692, provided that offenders be bored GAMBRALL, supra note 45, at 112-13. through their tongues, fined 20 pounds, ,7However, by 1724 Maryland Quakers were or imprisoned six months for a first permitted to make an affirmation. COBB, THE offense; a second conviction RISE OF RELIGIOUS LIBERTY IN AMERICA 397 of the same (1902). 78ANTIEAU, DOWNEY & ROBERTS, supra note 76, at 18. 7 9 71RUSSELL, supra note 70, at 396. Charles Bacon's Laws, ch. 24, §XII (1729). Calvert (fifth Lord Baltimore) then became 80 COBB, supra note 77, at 36-77. In 1700, the first of his family to live in Maryland. the Book of Common Prayers had been made 72 Bacon's Laws, ch. 39, §X (1715). standard in the English Church, and the Act 73 Bacon's Laws, ch. 39, §X (1716). of 1704 had permitted Mass to be held only 74 RUSSELL, supra note 70, at 400-02. within a private family setting. Id. at 388-89, 751 d. at 410; MARNELL, supra note 44, at 69. 397. 16 14 CATHOLIC LAWYER, WINTER 1968

The Assembly repeatedly denied incor- colonies in the struggle to be free from poration rights to dissenting churches, taxes for the support of a particular re- despite the well-known difficulties of the ligion to which the taxpayer did not be- trustee system."1 long; the struggle to be free from laws In 1746 Governor Bladin ordered a compelling dissenters to attend services proclamation imprisoning any priest of the Established Church; and the strug- found converting Catholics. 82 So keen gle for equal economic opportunities for was the persecution in Maryland that, six dissenters and an end to all preferences years later, the Catholic community au- held by members of the dominant faith. thorized Charles Carroll, father of the By its Declaration of Rights (1776) signer of the Declaration of Independ- Maryland became the first of the original ence, to apply for a tract of land in Loui- 13 colonies to extend legal toleration to 7 siana.8 In 1756 a double tax was levied all Christian sects." In short, no person upon Catholics for the support of the was to be compelled to frequent any par- 4 8 colony's militia. ticular place of worship. This was but Said the Reverend Thomas Bacon, a step; after almost a century of Protes- "Religion among us seems to wear the tant domination, change could not be 8 face of the country; part moderately cul- overly abrupt. The first constitution still tivated, the greater part wild and sav- empowered the legislature to "lay a gen- 8 age."s, eral and equal tax, for the support of the Christian religion." 90 It still gave freedom Independence to the First Amendment only to "those professing the Christian in Maryland-1776-1791 belief" 81 and all public officials had to A leading historian of Maryland sug- be Christian. gests that one of the major causes be- Catholics were unanimously apprecia- hind this State's participation in the tive. One priest wrote, "The toleration American Revolution was the proprie- here granted by the Bill of Rights has tary's intolerance toward Catholics and 8 other dissenters. " This theory is un- of Carrollton, who spearheaded Maryland's doubtedly valid. Maryland led her sister fight for religious freedom and entry into the united Revolution. 2 SCHARF, HISTORY OF MARYLAND 125ff. (1879). 81 DIGNAN, HISTORY OF THE LEGAL INCORPORA- 87WERLINE, supra note 51, at 196. TION OF CATHOLIC CHURCH PROPERTY IN THE 88 Article XXXIII of first Maryland Constitu- UNITED STATES 1784-1932, at 27-28 and 38-39 tion. (1935). 89 See NILES, MARYLAND CONSTITUTIONAL LAW 82 Maryland Gazette, July 22, 1746. 54-56 (1915). (Articles XXXVI, XXXVII, 8 RUSSELL, supra note 70, at 414. XXXVIII). 84 1 ARCHIVES 419 (1883). 90 Article XXXIII. 85 Quoted in RUSSELL, supra note 70, at 458. 91 1d. Of the first thirteen state constitutions, 86When in 1763 a tax for the support of the only two (Virginia and Rhode Island) granted Established Church was revived, "a war of full religious freedom. Maryland was one of essays, as fierce as the war of words that pre- two (the other, Delaware) to insist on Chris- ceded it," began in the press. It ultimately tianity and one of three (the others, New York sparked the debate between Daniel Dulaney, and South Carolina) to exclude ministers from the provincial secretary, and Charles Carroll public office. COBB, supra note 77, at 501. RELIGIOUS FREEDOM put all on the same footing and has been as intended to finance the Episcopal a great service to us." Bishop John Car- Church alone. Although there was no roll said, "If we have the wisdom and general aid to religion in Maryland dur- temper to preserve [freedom of religion], ing the immediate post-Revolutionary America may come to exhibit a proof to period, the State did finance isolated 97 the world, that general and equal tolera- churches and church-related schools. tion, by giving a free circulation to fair (During the 1776-1789 period many states argument, is the most effectual method thought it proper to aid the cause of re- to bring all denomination of Christians ligion and religious education by authori- to a unity of faith." 92 zing churches to conduct lotteries; But Quakers, Dunkers and Mennonites since this practice was not available to were denied the right to appear as wit- citizens, such legislative favor also con- nesses in capital criminal cases, 93 and not stituted a form of government aid to re- 98 until 1826 would Jews be permitted to ligion and church-related education.) hold public office.94 Certain influential Even Charles Carroll of Carrollton, clergymen of the day viewed requests to one of the signers of the Declaration of the legislature to enact laws aiding Chris- Independence, voted in favor of a general tian teachers as the first steps to a return tax to support religion. 9 At this point of Establishment.99 The danger of de something should be said about the family facto establishment was expressed strong- Carroll, which in large measure took over ly by Reverend Patrick Allison, the first the traditions left by the early Calverts. pastor of the First Presbyterian Church The Carrolls were Catholics, and as such in Baltimore, who stated, "All possible descriptions of Christians are equally entitled to the countenance and favour of government." The legislature could not ,71d. at 67-68. Thus in 1784 the State gave confer on one church "the smallest prefer- Washington College-an Episcopal institution- £1250 and other financial aid, and in 1788 the ence or distinction, which was withheld Legislature appropriated £742 for the building from, or denied to, any of the rest." 96 of a church in Annapolis. There is further evidence of grants to other institutions of But Reverend Allison was an out- learning which had strongly religious orienta- spoken opponent of legislation for public tions, if not denominationally controlled. Id. support-of-religion laws, which he viewed at 68. And in 1791 the Legislature advanced £200 for a church building in St. Anne's Par- ish in Annapolis. JOURNAL OF THE HOUSE, Dec. 27, 1791. See also MARNELL, supra note 92 Quoted in ANTIEAU, DOWNEY & ROBERTS, 95, at 110. For the most recent case dealing supra note 76, at 58-59. with the church-state problem and summariz- 93 WERLINE, supra note 51, at 157. ing the differing views, see Horace Mann 94 ANDREWS, HISTORY OF MARYLAND 450 League v. Board of Pub. Works, 242 Md. (1926). 645, 220 A.2d 51, cert. denied, 385 U.S. 97 95 ANTIEAU, DOWNEY & ROBERTS, supra note (1966), in which the Court of Appeals of 76, at 173. See MARNELL, THE FIRST AMEND- Maryland held that state grants to three of MENT 139-41 (1964). four local colleges were unconstitutional. 9 6 ANTEAU, DOWNEY & ROBERTS, supra note 8 MARNELL, supra note 95, at 74. 76, at 36. 991d. at 67; WERLINE, supra note 51, at 151. 14 CATHOLIC LAWYER, WINTER 1968 were persecuted in England; it could well we forgive" won public sentiment for re- have been the family motto, "Wherever ligious as well as civil liberty. Under with liberty," which prompted them to Carroll's leadership, the Provincial Con- come to Maryland. The first Charles Car- vention of 1775 extended the franchise roll arrived in the midst of Coode's re- to all free men having an estate of 40 bellion (1688 ff.) and quickly became pounds, without any regard to religious the champion of oppressed Catholics and affiliation. This marked the first time non-conforming Protestants. His son, since the Catholic Lords Baltimore that Charles Carroll of Doughoregan, was edu- both Protestant and Catholic could go to cated among Jesuits and spent much of the polls together. Some believe Carroll his career campaigning against laws "to to be the first American patriot to have prevent popery." He was influential in expressed himself in favor of independ- the legislative defeat of a drastic anti- ence, and to have had absolute faith in Catholic statute and violently-though the ultimate freedom of the colonies. 101 unsuccessfully-opposed a bill which On the eve of the Revolution, Charles levied double taxation on Catholics. The Carroll of Carrollton had stated, "I am passage of this bill so discouraged him as averse to having religion crammed 10 2 that he hesitated to encourage his son- down my throat as to a proclamation.' Charles Carroll of Carrollton, then being In a mission to win over French Canadi- educated in France-to come home to ans to the American cause, he promised: Maryland. But the son was as high that we hold sacred the rights of con- spirited as the father used to be. He science and may promise to the whole chose for himself, and returned to Mary- people . . . the free and undisturbed land at the dawn of the American Revolu- exercise of their religion; . . . that all ... tion.100 Christians be equally entitled to hold At first, the intention of Carroll of offices and enjoy civil privileges and . . . be totally exempt from Carrollton was to avoid politics, but the payment of any tithes or taxes for the support of events 0 of the day quickly forced him into any religion.1 3 the arena. Less than six weeks after his arrival at Annapolis, the Stamp Act was As much if not more a champion of passed by Parliament. Carroll recom- tolerance and liberty was Carroll of Car- mended and spearheaded a boycott of rollton's close friend and cousin, Arch- British goods and when Daniel Dulaney, bishop John Carroll, together with whom a Tory sympathizer, attacked him on the he had studied in Europe and won over basis of his religion, the young statesman Canada. 0 4 It was John Carroll who laid emerged with an overwhelmingly popular victory. His magnanimous reply to 101 d. at 300-16. Dulaney, "we [Catholics] remember yet 102 NEVINS, THE AMERICAN STATES DURING AND AFTER THE REVOLUTION 1775-1789, at 430 (1924). lol IVES, supra note 60, at 324-25. 100 For short but relevant biographies, see IvEs, 104 3 SHEA, HISTORY OF THE CATHOLIC CHURCH supra note 60, at 260-96. IN AMERICA 421 (1886). RELIGIOUS FREEDOM the foundations of religious freedom and state ratifying conventions for alteration equality in the principles that gave birth of the Constitution they had accepted. The to the new republic, who wrote "the senators and representatives were un- strongest appeal for recognition of the doubtedly responsive to opinions prevail- spirit of religious liberty that was made ing in their states, and the delegates from in his day." 1 5 He frequently stressed Maryland of course were no exceptions. that there should be no preference to any Some of the opposition to Maryland's be- one sect and that all religions should be coming the seventh to ratify the Consti- equal before the law.106 Americans dur- tution emanated from the failure to adopt ing the Revolution, wrote John Carroll, a bill of rights. The amendments submit- had "associated into one great national ted by William Paca to the ratifying con- Union, under the express condition of vention contained one guaranteeing re- 10 7 not being shackled by religious tests.' ligious liberty to all and opposing nation- Daniel Carroll, elder brother of John, al establishment, but the majority was was elected to the Constitutional Con- satisfied to leave such protection to the 10 vention in 1787, fought for ratification of individual states. Although the con- the first Constitution, and made the vention adjourned without agreeing to the strongest recorded plea for the adoption proposed amendment, a large number of of the first amendment. 0 s The combined delegates endorsed the policy "that there efforts of Charles Carroll of Carrollton, be no National. Religion established by Bishop John Carroll, and Daniel Carroll, law; but that all persons be equally en- unquestionably in the spirit and under the titled to protection in their religious influence of their antecedents, contributed liberty." 111 more than any other single factor to the When the proposed measure was provisions for religious liberty in the finally introduced before the First Conh- United States Constitution. "Largely gress, Daniel Carroll, supported by through their efforts the spirit of Old James Madison, led the plea for its Maryland became the spirit of New adoption. 112 Bishop John Carroll was America." 109 also an eloquent and respected advocate. During the course of debate on the He wrote: present Bill of Rights, the First Congress The constitutions of 'some of our states attempted to satisfy the demands of the continue still to entrench on the sacred

110 WERLINE, PROBLEMS OF CHURCH AND STATE IN MARYLAND 203 (1948). 100 IVES, supra note 60, at 389. See Gazette of 111 2 THE DEBATES IN THE SEVERAL STATE the United States, June 10, 1789. CONVENTIONS ON THE ADOPTION OF THE FED- 106 BRENT, BIOGRAPHICAL SKETCH OF THE MOST ERAL CONSTITUTION 553 (Elliot ed. z1859). See REVEREND JOHN CARROLL 142 (1843). also ANTIEAU, DOWNEY & ROBERTS, supra note 107 ANTIEAU, DOWNEY & ROBERTS, supra note 76, at 132. 76, at 45. 112The original phraseology was: "No religion 108 IVES, 'supra note 60, at 372, 381, 394. shall be established by law nor shall the equal 109 Id. at 403; see also HANLEY, THEIR RIGHTS rights of conscience be infringed." IVES, THE AND LIBERTIES 117ff. (1959). ARK AND THE DOVE 393 '(1936). 14 CATHOLIC LAWYER, WINTER 1968

rights of conscience and men who have been laid. At last, after more than a bled and opened their purses as freely century and a half of struggle for a prin- in the cause of liberty and independence ciple, did the policy so vigorously es- as any other citizens are most unjustly poused by the Calverts, the Carrolls and excluded from the advantages which they contributed to establish. But if bigotry their constituencies become firmly em- and narrow prejudices have hitherto pre- bedded in the law of the land-that vented the cure of these evils be it the Congress shall make no law duty of every lover of peace and justice respecting the establishment of 113 to extend no further. religion or prohibiting the free On September 25, 1789, the First exercise thereof. Amendment to the United States Consti- tution was accepted by Congress, and on Subsequent Maryland Constitutions December 15, 1791, it went into effect. 1851/1864/1867 To be sure, this was but a partial step There were four articles in the first on the path to full equality. The tenth (1776) Maryland Constitution that per- amendment reserved non-delegated pow- tained to the freedom of religion and ers to the states and the people; the these four provisions, though modified states had some distance to travel. In through the years, are still present in Maryland, it would not be until 1798 Maryland law. They are the current that Quakers, Mennonites and other con- Articles 36, 37, 38 and 39 of the Declar- scientious objectors to taking oaths be ation of Rights. constitutionally permitted to make an [Although the preamble to the consti- 4 affirmation instead; until 1810 that the tution contains a reference to God, this legislature be forbidden to lay a tax for has no legal force "except so far as it 5 the support of religion;"' until 1819 that recognizes the existence of God and harsh blasphemy laws, carrying penalties thereby implies that the government is a of death and confiscation of property, be Christian, or at least a deistic govern- repealed; 116 until 1826 that Unitarians ment." 119 The Supreme Court has con- and Jews receive full political rights;" 7 stitutionalized that implication.120 See nor until the mid-nineteenth century that APPENDICES - I, VI (note 15) ]. non-Christian sects could claim full re- [Also, the present section 11 of article ligious liberty under the State constitu- III, in the constitution proper, which pre- 118 tion. But the enduring foundation had vents clergymen of any denomination from being senators or delegates, would not seem to offend the First Amendment 113 Id. at 391, 400. See also supra note 105. to the United States Constitution and 114 3 THORPE, THE FEDERAL AND STATE CON- STITUTIONS 1702 (1909). 115 ANTIEAU, DOWNEY & ROBERTS, supra note 76, at 147. 11 NILES, supra note 89 at 12. 116d. at 78-79, 185. 120 See, e.g., Zorach v. Clauson, 343 U.S. 306 117 MARNELL, supra note 95, at 67. (1952), and note 157 and accompanying text, 118WERLINE, supra note 110, at 208. infra. RELIGIOUS FREEDOM hence will not be dealt with at length been recently decided. 122 [See generally here. For the arguments pro and con, APPENDICES - II, VI (notes 3, 4, 10, see P. PEARLMAN, DEBATES OF THE 14)]. MARYLAND CONSTITUTIONAL CONVENTION Article 37 OF 1867, 258-63 (1923). The provision Article 37 (in 1776, XXXV) origin- (which in 1776 was article XXXVII of ally provided that public office holders the constitution proper; 1851, article III, could be subjected to no oath other than section 11; 1864, non-existent; 1867, that prescribed by the legislature, besides article III, section 11) has never been a declaration of belief in Christianity. tested in a Maryland court.] This clearly discriminated against mem- Article 36 bers of the Jewish faith-but it was a Article 36 of the present Declaration of Scotch Presbyterian who led the dramatic, Rights has undergone an interesting evolu- half-century fight to gain full equality for tion. In 1776 it provided for a guaran- all non-Christians seeking state office. tee of religious liberty to "all persons, Thomas Kennedy was a staunch advo- professing the Christian religion." Not cate of religious liberty and equality. In until 1851, when Maryland's second con- 1817 he was elected a delegate to the stitution was drafted, were the words General Assembly and headed a commit- "professing the Christian religion" de- tee (created as the result of a resolution leted. made by him) to place Jewish citizens The original article 36 (then XXXIII) on a footing equal to Christians. In two also enabled the legislature to "lay a gen- weeks Kennedy's committee submitted a eral and equal tax, for the support of proposal for an act that "no religious the Christian religion . . ." (cf. the pre- test, declaration or subscription of opinion 1776 enforced contribution to the as to religion, shall be required from any Church of England). In 1810 any taxa- person of the sect called Jews, as a quali- tion "for the support of any religion" was fication to hold or exercise any office or made unlawful by the General Assem- employment of profit or trust in this bly,121 and the taxation provisions disap- state." The bill was twice defeated by a peared in the 1851 Constitution. more than 2-1 majority. Kennedy was But the 1851 version did add the attacked as "an enemy of Christianity," requirement that witnesses and jurors and called "one half Jew and the other believe "in the existence of God" or half not a Christian." When he came otherwise be disqualified, and this clause up for re-election, his bill was the major has remained in existence to the present issue to the opposition's campaign. Ben- day. That the test for jurors, at least, jamin Galloway, running on a so-called violates the Federal Constitution, has 122Schowgurow v. Maryland, 240 Md. 121, 213 A.2d 475 (1965). The opening clause to 121Act of 1809, ch. 167. NILES, supra note article 36 is apparently no longer tenable under 89, at 379. Only one serious effort to enforce Torcaso v. Watkins, 367 U.S. 488 (1961); a tax was made-and defeated-in 1785. Levitsky v. Levitsky, 231 Md. 388, 397, 190 NEVINS, supra note 102, at 430-31. A.2d 621, 625 (1963). 14 CATHOLIC LAWYER, WINTER 1968

"Christian ticket" and openly disclaiming in line with the third clause of Article VI the support of "Jews, Deists, Mohammad- of the Federal Constitution (prohibiting ans, or Unitarians," won the election. But any religious tests for government offi- Kennedy persisted, ran as an independent cers). Thus, in 1961, in Torcaso v. Wat- 12 5 candidate in the next year's election kins, the Supreme Court found Mary- (1824), and won. His proposal for Jew- land's article 37 to be unconstitutional. ish equality became something of a [See APPENDICES - III, VI (notes 9, national issue, with the press strongly 12)]. aligned behind Kennedy. A bill similar Article 38 to the original proposal was finally enacted Once called the second most important 26 in 1825.123 provision of the Declaration of Rights,' In 1851 the present article 37 (then, article 38 has engendered a great deal article 34) added the clause: of litigation. The article is analogous to the old British mortmain statutes, de- [AInd if the party shall profess to be a signed to prevent the Church from accu- Jew, the declaration shall be of his be- 127 lief in a future state of rewards and mulating property in perpetuity. Every punishments. transfer of property to a clergyman or religious institution was voided unless ex- The 1864 Constitution deleted the lan- pressly sanctioned by the General Assem- guage, "if the party shall profess to be a bly. With the exception of several minor Jew," and the 1867 Constitution erased changes in language, article 38 (in 1776, any distinction between Christian and article XXXIV; in 1851, article 35) re- Jew, the requirement now being only a mained intact until 1948, when it was "belief in the existence of God." The virtually repealed. After having been 1867 Constitution also was the first in twice rejected by the voters (in 1942128

Maryland to deny the legislature the and 1944 129), a proviso clause was in- power to prescribe other tests; it was the serted in 1948 to negate the requirement "Reconstruction Convention" of 1867 of legislative sanction, thereby making which voiced solid opposition to the so- called "loyalty oaths." 124 Article 37, however, was still not fully 125367 U.S. 488 (1961). 126 NILES, supra note 89, at 56-57. Only one other state, Mississippi, has a similar constitutional provision. (Miss. CONST. art. XIV, § 9). 123 STOKES & PFEFFER, CHURCH AND STATE IN 127Vansant v. Roberts, 3 Md. 119, 128 (1852). THE UNITED STATES 245-48 (1964); E. ALT- Foreign religious corporations are not included FELD, THE JEWS' STRUGGLE FOR RELIGIOUS AND within the scope of this article. A gift to a CIVIL LIBERTY IN MARYLAND (1924); NILES, minister as an individual (and not as a cleric) supra note 89, at 383. does not violate the article. Church Extension 124 NILES, supra note 89, at 55. See also Brice v. Smith, 56 Md. 362, 391 (1881). Any deed v. Davidson, 91 Md. 681, 48 A. 52 (1900). of under five acres does not need the legisla- The legislature has prescribed as a form of ture's sanction. Zion Church v. Hilken, 84 oath: "In the presence of Almighty God, I do Md. 170, 35 A. 9 (1896). solemnly promise or declare ...... CODE OF 12s Laws of 1941, ch. 716. 320. MD., art. 1, § 10. 129 Laws of 1943, ch. RELIGIOUS FREEDOM gifts to the church valid. [See APPEN- In McGowan v. Maryland,"' the State's DICES-IV, VI (note 7)]. Sunday closing laws, 1 32 which generally Article 39 prohibit the sale on Sunday of all mer- Article 39 prescribes the manner in chandise other than food, medicine, gaso- which oaths are to be administered. Its line and other necessaries, were attacked language in the present (1867) constitu- as violations of the prohibition against tion is identical to the two immediate pre- establishment of religion, as infringements decessors, the constitutions of 1864 and upon religious liberty, and as denials of 1851 (articles 36). The only difference equal protection of the laws. The between these and the corresponding pro- Supreme Court affirmed the Maryland vision of the 1776 Declaration of Rights Court of Appeals in overruling all three (article XXXVI) is that the latter con- of the above-noted contentions. The tained additional clauses which, first, Sunday laws were held to be, not reli- allowed certain denominations such as the gious, but social welfare legislation, de- Quakers to make a "solemn affirmation" signed to set aside a day for rest, in place of the oath and, second, excluded relaxation, and family togetherness-al- the same sects from acting as witnesses though the original purpose of the in cases involving capital offenses. Vari- statutes was admittedly in preference of ous acts of 1795 and 1798 amended the one religion, said the Court, such is no constitution to remove these disabili- longer the case. Moreover, the Court ties.130 [See APPENDICES - V, VI would not concern itself with questioning (note 13)]. the wisdom of the legislature in enacting While the validity of article 39 under seemingly arbitrary laws, so long as their the Federal Constitution has never been primary purpose was social welfare. (On specifically tested, the recent Supreme the other hand, if the object was to use Court cases (infra) yield a strong impli- the state's coercive power to aid religion, cation of that provision's unconstitution- the establishment clause would be vio- ality. lated.) The Recent Maryland Cases Torcaso involved a notary public, duly A series of cases originating in Mary- appointed by the governor, who was land and involving the interpretation of denied his commission because he refused the religious liberty clauses in both the to declare a "belief in the existence of Federal and State Constitutions have God," as required by Article 37 of the been decided in recent years by the Court Maryland Declaration of Rights, supra. of Appeals of Maryland and by the The Court of Appeals upheld the re- Supreme Court of the United States. A quirement: brief catalogue of the more important [W]e find it difficult to believe that the holdings is presented here. No attempt Supreme Court will hold that a declara- will be made at a comprehensive treatment of the school prayer and bussing 131366 U.S. 420 (1961); see also STOKES & cases. PFEFFER, supra note 123, at 137-41. 130 NILES, supra note 89, at 375. 132 MD. ANN. CODE art. 27, § 521. 14 CATHOLIC LAWYER, WINTER 1968

tion of belief in the existence of God, violated the establishment and free exer- required by Article 37 . . . is discrimina- cise clauses of the first amendment. The tory and invalid. . . . As Mr. Justice suit was brought by an avowed atheist. Douglas, speaking for a majority of the Maryland's Court of Appeals, in revers- Court in Zorach v. Clauson, 343 U.S. 306, 313, said: 'We are a religious people ing the trial court, found that bible read- whose institutions presuppose a Supreme ing did not violate the Constitution, in Being.' 133 view of the fact that the amount of time and public funds expended was negligible, However great the disbelief of the Court and that any student who did not wish to of Appeals, the Supreme Court did find participate could be excused upon pre- the test to be an unconstitutional viola- sentation of a written note from his tion of the first and fourteenth amend- parents. ments, and reversed. ' 4 Said the high The Supreme Court again disagreed, Court: and reversed: Nothing decided or written in Zorach The conclusion follows that . . . the laws lends support to the idea that the Court require religious exercises and such ex- there intended to open up the way for ercises are being conducted in direct government, state or federal, to restore violation of the rights of the . . . peti- the historically and constitutionally dis- tioners. Nor are these required exercises credited policy of probing religious beliefs mitigated by the fact that individual stu- by test oaths or limiting public offices dents may absent themselves upon pa- to persons who have, or perhaps more rental request, for that fact furnishes no properly profess to have, a belief in some defense to a claim of unconstitutionality particular kind of religious concept. 135 under the Establishment Clause. . . Further, it is no defense to urge that Torcaso's denial of the constitutionality the religious practices here may be rela- of the requirement that an office-seeker tively minor encroachments on the First declare his belief in a deity would like- Amendment. The breach of neutrality wise seem to invalidate article 39's use that is today a trickling stream may all of the language, "attestation of the too soon become a raging torrent and, in the words of Madison, 'it is proper Divine Being." to take alarm at the first experiment on ' 137 The issue before the courts in Murray our liberties. v. Curlett 136 was whether daily bible reading pursuant to a rule of Baltimore At the same time, however, the Court City's Board of School Commissioners said that "the State may not establish a 'religion of secularism' in the sense of affirmatively opposing or showing hostility to religion, thus 'preferring those who 1'-"Torcaso v. Watkins, 223 Md. 49, 58, 162 A.2d 438, 443 (1960). 4 13 Torcaso v. Watkins, 367 U.S. 488 (1961). 135 Id. at 494. See also KURLAND, RELIGION .3Abington School Dist. v. Schempp, 374 U.S. AND THE LAW 107-08 (1961). 203, 225 (1963) (decided together with Mur- 136228 Md. 239, 179 A.2d 698 (1962). ray v. Curlett). RELIGIOUS FREEDOM believe in no religion over those who do Thus, the court held unconstitutional the believe.' " 138 article 36 exclusion from jury duty of In 1964 the General Assembly passed atheists, agnostics and such religious a law allowing for a period of silent groups (e.g., Buddhists) whose members meditation in the opening exercises on do not believe in a Supreme Being. each morning of a school day.139 The Mrs. Murray again challenged Mary- statute was immediately challenged, but land's law when she brought suit to before the case could be decided the com- attack state tax exemptions for religious plainant (Mrs. Murray) left the state. organizations. 143 It was urged that the The cause remains on the docket of the exemption violated, among other provi- United States District Court in Baltimore. sions, Article 36 of the Declaration of An independent survey has indicated that Rights and the first amendment. The more than one Maryland county has ig- Court of Appeals upheld the validity of nored the Murray v. Curlett decision, and the exemption, pointing out that such a 40 permitted school prayer. policy toward property dedicated to re- In Schowgurow v. Maryland,14 1 a Bud- ligious uses has long been regarded as dhist convicted of homicide attacked the reasonable and for a public purpose (and requirement in Article 36 of the Declara- hence valid). The exemption was uni- tion of Rights that jurors profess a belief form and nondiscriminatory (property of in the existence of God. Largely on the atheistic organizations is also immune basis of Torcaso, the Court of Appeals from the tax, the court said) and there reversed: were sufficient secular justifications for its constitutionality. Certiorari was denied If, as was held by the Supreme Court by the Supreme Court,' but the exemp- in Torcaso, a notary public cannot con- tion continues stitutionally be required to demonstrate to be challenged by sev- his belief in God as a condition to taking eral cases pending in the Supreme Court. office, it follows inevitably that the re- The most recent case to struggle with quirement is invalid as to grand and the church-state relationship problem was petit jurors, whose responsibilities to the public and to the persons with whom that of Horace Mann League v. Board of 142 45 they deal are far greater. Public Works of Maryland. The State enacted statutes providing outright match- ing grants for the construction of build- 138 Id. A constitutional amendment to permit school prayer would take the policy determination from the purview of the Supreme Court. Such an amendment has been proposed. See Morning Sun, August 10, 1966, at 1. 143 Murray v. Comptroller, 241 Md. 383, 216 139 MD. ANN. CODE art. 77, § 98A (1965). A.2d 897 (1966). 140 Survey conducted by Robert Dugan, third- 144385 U.S. 816 (1966). See Kauper, Tax Ex- year student at the University of Maryland emptions for Religious Activities, THE WALL School of Law, as part of a project for a semi- BETWEEN CHURCH AND STATE 115 (D. Oaks nar on Constitutional Law. ed. 1963). See also M. HOWE, THE GARDEN 141240 Md. 121, 213 A.2d 475 (1965). See AND THE WILDERNESS 152 (1965). Note, 17 S.C. L. REV. 778 (1965). 145245 Md. 645, 220 A.2d 51, cert. denied, 142 240 Md. at ... , 213 A.2d at 479. 385 U.S. 97 (1966). 14 CATHOLiC LAWYER, WINTER 1968 ings to four private colleges (Hood, to these colleges were held unconstitu- Western Maryland, Notre Dame and St. tional. Joseph). The grants were attacked prin- On the other hand, the Court found cipally on the grounds that they violated that none of the grants violated Article the First Amendment of the Federal 36 of the Maryland Declaration of Rights. Constitution and Article 36 of the Mary- ("[N]or ought any person to be com- land Declaration of Rights. pelled to frequent, or maintain, or con- The lower court dismissed the com- tribute, unless on contract, to maintain, plaint. The Court of Appeals of Mary- any place of worship, or any minis- land, in a 4-3 decision, found that the try. . ."). Cited were a large number grant to Hood College was valid but that of cases to the effect that "grants to those to the remaining three institutions educational institutions at a level where were unconstitutional. Each case, said the state has not attempted to provide the Court, must be decided on its own universal educational facilities for its facts. Every religious observance by a citizens have never, in Maryland, been college does not sectarianize it; "the ques- held to be impermissible under article 36, tion of sectarianization depends upon a even though the institutions may be under consideration of the observances, them- the control of a religious order." 148 selves, and the mode, zeal, and frequency In a vigorous dissent, Judge Hammond with which they are made." 146 If the and two other members of the Court of institutions are in fact sectarian, "no tax, Appeals argued that the grants of state in any amount, large or small, can be aid served a sufficiently secular purpose levied to support [the institutions], to withdraw them from first amendment whatever they may be called or whatever prohibition. Both sides appealed the form they may adopt to teach or practice majority decision to the Supreme Court, 1 47 religions. The Court found that, al- which denied certiorari. 14 9 though Hood College was affiliated with a Protestant sect, that sect contributed A Conclusion, Gratis only 2.2 percent of the school's operating The question most directly involved in budget, and there were no sectarian re- interpreting the establishment clause of quirements for teachers or students; upon the first amendment is whether the these facts the college was not sectarian Founding Fathers intended a complete the first amend- in the legal sense under separation of church and state or would, ment. The other schools, however, were rather, permit government participation if denominationally oriented; their governing boards were controlled by religious" orders, and their faculties were either 148 Id. at 76. committed to a Christian 'philosophy or 149Horace Mann League v. Board of Pub. were predominantly of one sect. Grants Works, 385 U.S. 97 (1966). For other recent Maryland cases touching upon the freedom of religion, see Levitsky v. Levitsky, 231 Md. 388, 4 l;Id.at 65. 190 A.2d 621 (1963); Craig v. State, 220 Md. 147 Id. at 64. 590, 155 A.2d 684 (1959). RELIGIOUS FREEDOM such were non-discriminatory. A com- 1784 act of the Maryland General As- prehensive analysis will not be attempted sembly, "earnestly desiring to promote here but, on the basis of the historical every pious and charitable design for sketch offered above, some arguments the relief and assistance of the widow- 150 will be suggested.' less and fatherless, and especially those "It is revealing to note that in every of the respectable and useful body of state constitution in force between 1776 clergy of all denominations." 155 An 1811 and 1789 where 'establishment' was men- issue of the Baltimore Gazette asked: tioned, it was equated or used in con- What was the meaning of the Consti- 1 51 junction with 'preference'." A logical tution in providing against a religious inference might be drawn that Congress establishment? Does any man but Mr. did not intend to forbid non-preferential Madison imagine it was to prevent the treatment of religion. Or perhaps the District of Columbia from engaging legal church regulations, and from exercising major concern revolved around the pro- corporate rights in their congregations? tection of "free exercise" rather than Does the Legislature of Maryland believe 152 complete denial of government aid. Un- it is creating a religious establishment doubtedly, some of the Founders, in when it is occupied in granting charters particular Madison and Thomas Jefferson, to the churches of the different sects of favored full severance of church and Christians as often as they apply? Where all are equally protected and accommo- state.153 But that feeling was hardly dated, where each sect . . . has its own unanimous. Charles Carrollton had voted establishment . . . the best security exists in favor of a state tax to support reli- against 'a religious establishment' that is gion.15 Daniel Carroll had endorsed a to say, one preeminent establishment which is preferred and set up over the rest against which alone the constitutional safeguard was created. 156 15o For more complete treatments, see KEMP- NER, THE SUPREME COURT AND THE ESTAB- Recent courts seem to have taken LISHMENT AND FREE EXERCISE OF RELIGIoN 87- similar views. Said Mr. Justice Douglas, 99 (1958), and STOKES & PFEFFER, CHURCH AND STATE IN THE UNITED STATES (1964). in an often quoted passage from Zorach 151ANTIEAU, DOWNEY & ROBERTS, FREEDOM v. Clauson: FROM FEDERAL ESTABLISHMENT 132 (1963). 121d. at 137-38. We are a religious people whose institu- 153See TORPEY, JUDICIAL DOCTRINES OF RE- tions presuppose a Supreme Being. We LIGIOUS RIGHrs IN AMERICA 13ff. (1948), and guarantee the freedom to worship as one De Marr, The Regulation of Religious Corpora- chooses. . . . We sponsor an attitude on tions in the State of Maryland 72 (Md. Hist. the part of government that shows no Soc.). partiality to any one group and lets Madison himself indicated that whenever it was necessary to go beyond the words of the Constitution to ascertain its meaning, the Con- gress and courts should look for it in the State Conventions, which accepted and ratified 15 GEIGER, DANIEL CARROLL, FRAMER OF THE the Constitution. ANTIEAU, DOWNEY & ROB- CONSTITUTION 83 (1943). ERTS, supra note 151, at ix. 156 Baltimore Federal Republican & Commer- 154 WERLINE, supra note 110, at 151. cial Gazette, February 26, 1811 (editorial). 14 CATHOLIC LAWYER, WINTER 1968

each flourish according to the zeal of land Court was reversed by the Supreme its adherents and the appeal of its dogma. Court, 16° but Justice Clark, speaking for When the state encourages religious in- the majority, was careful to warn against structions or cooperates with religious a "religion of secularism." 161 The state authorities by adjusting the schedule of public events to sectarian needs, it fol- may not advance religion, but neither lows the best of our traditions. For it may it inhibit it. then respects the religious nature of our Mr. Justice Brennan, concurring in people and accommodates the public ser- Murray v. Curlett, tried to show that vice of our spiritual needs. To hold that certain practices are to it may not would be to find in the Con- be considered stitution a requirement that the govern- constitutional: among them, churches and ment show a callous indifference to reli- chaplains at military bases; "In God We gious groups. That would be preferring Trust" on currency; tax exemptions for those who believe in no religion over churches; draft exemptions for seminary those who do believe. 157 students; and "one nation, under God" in the pledge of allegiance. 16 2 (But, A 1956 Tennessee case pointed out that again, other members of the Court have the doctrine of separation of church and voiced opposing statements. 163 ) That state "should not be tortured into a nothing more than a firmly bipartisan meaning that was never intended by the relationship of state to church was in- Founders of this Republic." 158 And the tended by the Founding Fathers, when highest court of Maryland recently took viewed in the light of history, seems a an expressly favorable view of bible read- well-grounded conclusion. As one coming in the public schools, claiming that mentator has pointed out: "neither the 1st nor the 14th amendment was intended to stifle all rapport between The separation of government from religion represents a definite departure religion and government." 159 The Mary- from the intent of the Founding Fathers, who never intended to purge public life in 157 343 U.S. 306, 313 (1952). See supra America entirely of religion. They never note 133. intended to establish irreligion, nor was 15sCarden v. Bland, 288 S.W.2d 718, 724 that the purpose of the First Amendment. (Tenn. 1956). Those who founded our nation did not 159 Murray v. Curlett, 228 Md. 239, 179 A.2d hesitate to declare their dependence upon 698, 701 (1962), rev'd sub noma, Abington God, to mention Him in public utterance, School Dist. v. Schempp, 374 U.S. 203 (1963). See BOLES, THE BIBLE, RELIGION, AND THE PUBLIC SCHOOLS 99ff. (1965). Even the dissenters in the Murray case did so because they felt that the required saying of the Lord's See also Horace Mann League v. Tawes Prayer and Bible reading plainly favored "one (Daily Record, April 8, 1965), appellate court religion and did so against other religions and decision cited supra note 97. against non-believers in any religion." 179 16°Abington School Dist. v. Schempp, 374 A.2d 698, 708. They still do not deny that U.S. 203 (1963). the first amendment could involve nondis- 161 See supra note 138 and accompanying text. criminatory laws without being a violation of 162374 U.S. 203, 295-304 (1963). See also the freedom of religion; they still do not insist Kauper, supra note 144, at 115. 6 3 upon strict separation of church and state. 1 See Note, 17 S.C.L. REV. 778, 780 (1965). RELIGIOUS FREEDOM

to open Congress with prayer, to set up only real argument offered here is that, chaplaincies, and to ask the President to when the time comes for decision, gov- call a day of prayer and thanksgiving ernment's nondiscriminatory participation that this was to God. They did not feel in matters of religion is an entirely de- inconsistent with the principle of 'a free Church in a free State.' As a matter fensible policy. of fact, they knew that the very concept of religious and civil liberty was founded Maryland's Proposed 64 upon Christian principles and teachings.1 New Constitution The church-state problem is a difficult the argument that On the other hand, one, and there are no easy solutions to an inviolable the Framers intended that the continuing questions such as wall of separation be erected between whether the federal government can give 165 church and state is not without merit. financial aid, directly or indirectly, to Of course, since the Constitution is a parochial education. "Anyone suggesting be interpreted living instrument and must that the answer, as a matter of constitu- in the light of contemporary standards tional law, is clear one way or the other and policies, it may be (and has been) is either deluding or deluded." 167 validly argued that the intent of the However, the path to follow in re- Framers is not necessarily relevant. Under considering the pertinent provisions of this view advocates of strict separation Maryland's century-old constitution is voice strong arguments and convincing more clear-cut, if not patently obvious. logic.',6 Article 36 of the Declaration of Rights The only real conclusion reached here has in large measure been declared un- is that, as of now, the questions have constitutional by Torcaso and Schowgu- not been conclusively decided; and the row. Torcaso has expressly voided article 37. Article 38 is self-cancelling, in that every post-1948 transfer of prop- 1 64 J. KIK, CHURCH & STATE 130 (1963). erty to a religious organization or repre- [Al regard for the separation principle sentative is valid. Article 39, while never should not obscure the fundamental consideration that there is a necessary interde- specifically challenged in the courts, is pendence of religion and government, that not likely to withstand the wind of religion and the churches have a role to play Torcaso as long as it refers to a Divine with respect to the public order and the common life, that government has a role to Being. perform in the protection and advancement Thus, the only four provisions in the government and of religious liberty, and that Maryland Declaration of Rights which the churches share some overlapping con- cerns and functions. KAUPER, RELIGION AND directly relate to church and state are THE CONSTITUTION 118 (1964). See also either inoperable (article 38) or violative KATZ, RELIGION AND AMERICAN CONSTITU- TIONs 30 (1963). 16,5See supra note 163 and accompanying text.

166 See, e.g., W. DOUGLAS, THE BIBLE AND THE RELIGION AND THE LAW 111 SCHOOLS (1966), and ANTIEAU, DOWNEY & 167 p. KURLAND, ROBERTS, supra note 151, at 132-42. (1961). 14 CATHOLIC LAWYER, WINTER 1968 of the Federal Constitution. Since prob- pretive policy rules handed down by the lems surrounding freedom of religion are Supreme Court will automatically apply handled by the Supreme Court's inter- to the state-no further analysis of var- pretations of the first amendment, which iant state constitutional provisions on in turn are applicable to the states by religious liberty would be necessary. way of the fourteenth amendment, a new In the end, adoption of first amend- Maryland constitution cannot attempt to ment language would be an appropriate limit the scope of the establishment or reflection of the valuable contributions free exercise clauses. To do so would be Maryland has made to the law of the only to anticipate the Supreme Court, land, and the effect her past struggles and success in that venture, especially in have had upon the declaration of religious view of the still developing clarification freedom. Because, for that basic liberty of policy by the Court, is highly im- America must remain largely indebted to probable. Maryland, where "at no time in her On the other end of the spectrum, a history did the 'temperament which per- broadening or more absolute statement secutes'. . . find an abiding place."171 of religious liberty would not offend the first amendment. It is difficult, however, to formulate a more concise and unfettered declaration than that found in the United APPENDIX - I States Constitution. The National Mu- MARYLAND CONSTITUTIONS nicipal League, after exhaustive scholarly research and dialogue, emerged with The Preamble identical language-"no law shall be en- The Present Constitution acted respecting an establishment of reli- We, the People of the State of Mary- gion, or prohibiting the free exercise land, grateful to Almighty God for our thereof." 168 Although all states guarantee civil and religious liberty, and taking into the freedom of religion, with forty-seven our serious consideration the best means providing against the establishment of of establishing a good Constitution in 169 religion, few constitutions protect citi- this State for the sure foundation and 170 zens with such simplicity. The added more permanent security thereof, declare: advantage of using the first amendment language, of course, is that the inter- 1867 Constitution Basically the same as the present, with minor differences in capitalization.

168 MODEL STATE CONSTITUTION, NATIONAL 1864 Constitution MUNICIPAL LEAGUE § 1.01 (1963). 169 Id. at 29. Basically the same as the present, with 110 SALIENT ISSUES OF CONSTITUTIONAL REVI- minor differences in capitalization. SION, NATIONAL MUNICIPAL LEAGUE PUBLICA- TION 12 (J. Wheeler ed. 1961). See generally Paulsen, State Constitutions, State Courts, and First Amendment Freedoms, 4 VAND. L. REV. 171 HALL, THE LORDS BALTIMORE AND THE 620, 635-42 (1951). MARYLAND PALATINATE 98 (1902). RELIGIOUS FREEDOM

1851 Constitution count of his religious persuasion, or Basically the same as the present, with profession, or for his religious practice, minor differences in capitalization. unless, under the color of religion, he 1776 Constitution shall disturb the good order, peace or The parliament of Great Britain, by a safety of the State, or shall infringe the declaratory act, having assumed a right laws of morality, or injure others in their to make laws to bind the Colonies in all natural, civil or religious rights; nor cases whatsoever, and, in pursuance of ought any person to be compelled to fre- such claim, endeavoured by force of arms, quent, or maintain, or contribute, unless to subjugate the United Colonies to an on contract, to maintain, any place of unconditional submission to their will and worship, or any ministry; nor shall any power, and having at length constrained person, otherwise competent, be deemed on them to declare themselves independent incompetent as a witness, or juror, provided, States, and to assume government under account of his religious belief; in the existence of God, and the authority of the people;--Therefore, he believes We, the Delegates of Maryland, in free that under His dispensation such person will be held morally accountable for his and full Convention assembled, taking into our most serious consideration the acts, and be rewarded or punished there- for either in this world or in the world best means of establishing a good Con- to come. stitution in this State, for the sure foun- 1867 Constitution dation and more permanent security there- Basically the same as the present, with of, Declare. minor changes in punctuation (comma SOURCE: NILES, MARYLAND CONSTITU- after "ought" in line 6; no comma after TIONAL LAW. "persuasion" in line 8; no comma after SEE APPENDIX-VI, NOTE 15 "maintain" in line 16; no comma after "worship" in line 17).

APPENDIX - II 1864 Constitution MARYLAND CONSTITUTIONS - Basically the same as the present, with Declaration of Freedom of Religion; the same minor changes noted above (ex- Proviso of Belief in a Deity cept that, as in the present Constitution, (Article 36 in present, 1867 and 1864 there is no comma after "ought" in line Constitutions; Article 33 in 1851 and 6). 1776 Constitutions) 1851 Constitution The Present Constitution (Article 33); basically the same as the changes Art. 36. That as it is the duty of present, with the same minor every man to worship God in such man- noted above (except that there is a com- ner as he thinks most acceptable to Him, ma after "ought" in line 6). all persons are equally entitled to pro- 1776 Constitution tection in their religious liberty; where- XXXIII. That, as it is the duty of fore, no person ought by any law to be every man to worship God in such man- molested in his person or estate, on ac- ner as he thinks most acceptable to Him, 14 CATHOLIC LAWYER, WINTER 1968 all persons, professing the' Christian re- to receive the provision and support ligion, are equally entitled to protection established by the act, entitled, 'An act in their religious liberty; wherefore .no for the support of the clergy of the person ought by any law to be molested church of England, in this Province,' till in his person or estate on account of his the November court of this present year, religious persuasion or profession, or for to be held for the county in which his his religious practice; unless under colour parish shall lie, or partly lie, or for such of religion, any man shall disturb the time as he hath remained in his parish, good order, peace or safety of the State, and performed his duty. or shall infringe the laws of morality, SOURCE: NILES, MARYLAND CONSTITU- or injure others, in their natural, civil, or TIONAL LAW. religious rights; nor ought any person to SEE APPENDIX - VI, NOTES 3, 4, 10, 16 be compelled to frequent or maintain, or contribute, unless on contract, to maintain APPENDIX - III any particular place of worship, or any MARYLAND CONSTITUTIONS- particular ministry; yet the Legislature Religious Tests may, in their discretion, lay a general (Article 37 in present, 1867 and 1864 and equal tax, for the support of the Constitutions; Article 34 in 1851 Consti- Christian religion; leaving to each indi- tution; Article 35 in 1776 Constitution) vidual the power of appointing the pay- The Present Constitution ment over of the money, collected from Art. 37. That no religious test ought him, to the support of any particular ever to be required as a qualification place of worship or minister, or for the for any office of profit or trust in this benefit of the poor of his own denomina- State, other than a declaration of belief tion, or the poor in general of any par- in the existence of God; nor shall the ticular county; but the churches, chapels, Legislature prescribe any other oath of glebes, and all other property now be- office than the oath prescribed by this longing to the church of England, ought Constitution. to remain to the Church of England for- 1867 Constitution ever. And all acts of Assembly, lately Same as present. passed, for collecting monies for building 1864 Constitution or repairing particular' churches or Art. 37. That no other test or quali- chapels of ease, shall continue in force, fication ought to be required on admis- and be executed, unless the Legislature sion to any office of trust or profit, than shall, by act, supersede or repeal the such oath of allegiance and fidelity to same; but no county court shall assess this State and the United States as may any quantity of tobacco, or sum of be prescribed by this constitution, and money, hereafter, on the application of such oath of office and qualification as any vestrymen or church wardens; and may be prescribed by this constitution, every encumbent of the church of Eng- or by the laws of the State, and a dec- land, who hath remained in his parish, laration of belief in the Christian relig- and performed his duty, shall be entitled ion, or in the existence of God and in RELIGIOUS FREEDOM

a future state of rewards and punish- Sect, Order or Denomination; and every ments. gift or sale of goods, or chattels to go 1851 Constitution in succession, or to take place after the Art. 34. That no other test or quali- death of the Seller or Donor, to or for fication ought to be required, on admis- such support, use or benefit; and also sion to any office of trust or profit, than every devise of goods or chattels to or such oath of office as may be prescribed for the support, use or benefit of any by this constitution, or by the laws of Minister, Public Teacher, or Preacher of the State, and a declaration of belief in the Gospel, as such, or any Religious the Christian religion; and if the party Sect, Order or Denomination, without shall profess to be a Jew, the declaration the prior or subsequent sanction of the shall be of his belief in a future state of Legislature, shall be void; except always, rewards and punishments. any sale, gift, lease or devise of any 1776 Constitution quantity of land, not exceeding five XXXV. That no other test or quali- acres, for a church, meeting-house, or fication ought to be required, on admis- other house of worship, or parsonage, sion to any office of trust or profit, than or for a burying ground, which shall be such oath of support and fidelity to this improved, enjoyed or used only for such State, and such oath of office, as shall be purpose; or such sale, gift, lease or de- directed by this Convention, or the Leg- vise shall be void. Provided, however, islature of this State, and a declaration that except in so far as the General As- of a belief in the Christian religion. sembly shall hereafter by law otherwise SOURCE: NILES, MARYLAND CONSTITU- enact, the consent of the Legislature TIONAL LAW. shall not be required to any gift, grant, SEE APPENDIX - VI, NOTES, 9, 12 deed, or conveyance executed after the 2nd day of November, 1948, or to any APPENDIX - IV devise or bequest contained in the will MARYLAND CONSTITUTIONS- of any person dying after said 2nd day Avoidance of Property Transfer to of November, 1948, for any of the pur- Church or Church Representative poses hereinabove in this Article men- (Article 38 in present, 1867 and 1864 tioned. Constitutions; Article 35 in 1851 Con- [Thus amended by Chapter 623, Acts stitution; Article 34 in 1776 Constitution) of 1947, ratified November 2, 1948.] The Present Constitution 1867 Constitution Art. 38. That every gift, sale or de- Art. 38. That every gift, sale or devise of land to any Minister, Public vise of land to any Minister, Public Teacher, or Preacher of the Gospel, as Teacher or Preacher of the Gospel, as such, or to any Religious Sect, Order or such, or to any Religious Sect, Order or Denomination, or to, or for the support, Denomination, or to, or for the support, use or benefit of, or in trust for, any use or benefit of, or in trust for, any Minister, Public Teacher, or Preacher Minister, Public Teacher or Preacher of of the Gospel, as such, or any Religious the Gospel, as such, or any Religious 14 CATHOLIC LAWYER, WINTER 1968

Sect, Order or Denomination; and ev- APPENDIX - V ery gift or sale of goods, or chattels, to MARYLAND CONSTITUTIONS- go in succession, or to take place after Manner of Administering Oath the death of the Seller or Donor, to or (Article 39 in present, 1867 and 1864 for such support, use or benefit; and Constitutions; Article 36 in 1851 and also every devise of goods or chattels to 1776 Constitutions) or for the support, use or benefit of any The Present Constitution Minister, Public Teacher or Preacher of Art. 39. That the manner of admin- the Gospel, as such, or any Religious istering an oath or affirmation to any Sect, Order or Denomination, without person, ought to be such as those of the the prior or subsequent sanction of the religious persuasion, profession, or de- Legislature, shall be void; except always, nomination, of which he is a member, any sale, gift, lease or devise of any generally esteem the most effectual con- quantity of land, not exceeding five firmation by the attestation of the Divine acres, for a church, meeting-house, or Being. other house of worship, or parsonage, or 1867 Constitution for a burying-ground, which shall be im- Same as present. proved, enjoyed or used only for such 1864 Constitution purpose; or such sale, gift, lease or de- Same as present. vise shall be void. 1851 Constitution 1864 Constitution (Article 36); same as present. Basically the same as 1867 Constitution, 1776 Constitution with minor changes in capitalization XXXVI. That the manner of admin- (there is no capitalization within the istering an oath to any person, ought to body of the Article). be such, as those of the religious per- 1851 Constitution suasion, profession, or denomination, of (Article 34); basically the same as which such person is one, generally es- the 1867 Constitution, (with the same teem the most effectual confirmation, by absence of capitalization noted above). the attestation of the Divine Being. And that the people called Quakers, those 1776 Constitution called Dunkers, and those called Menon- (Article XXXIV); basically the same ists, holding it unlawful to take an oath as the 1867 Constitution, with the same on any occasion, ought to be allowed to absence of capitalization noted above and make their solemn affirmation, in the with language changes consisting of manner that Quakers have been hereto- "leave" instead of "prior or subsequent fore allowed to affirm; and to be of the sanction" in line 14; "two acres" instead same avail as an oath, in all such cases of "five acres" in line 22; and the dele- as the affirmation of Quakers hath been tion of "or parsonage," in line 24. allowed and accepted within this State, SOURCE: NILES, MARYLAND CONSTITU- instead of an oath. And further, on TIONAL LAW. such affirmation, warrants to search for * * * stolen goods, or the apprehension or RELIGIOUS FREEDOM commitment of offenders, ought to be Md. 645, 220 A.2d 51, 76, cert. denied, granted, or security for the peace award- 385 U.S. 97 (1966).] ed, and Quakers, Dunkers or Menonists 2. Three state constitutions specifi- ought also, on their solemn affirmation cally prohibit discrimination against one's as aforesaid, to be admitted as witnesses, religion. in all criminal cases not capital. H. I 4; La. I 4; N.Y. I 11. SOURCE: NILES, MARYLAND CONSTITU- 3. Besides Maryland, many states TIONAL LAW. constitutionally guarantee freedom of SEE APPENDIX-VI, NOTE 13 opinion and of conscience, and prevent denial of civil rights because of one's religious persuasion. Cf. Md. DR. 36.

APPENDIX - VI R.I. I 3; W. Va. III 15; Del. I 1; Wash. I 11; Ark. II 24; Ga. I Sec. COMPARATIVE STUDY OF OTHER STATE I 12; Ind. I 3; Kan. BR. 7; Ky. 5; CONSTITUTIONS Minn. I 16; Mo. I 5; N.C. I 26; Ohio [References are to article and section I 7; Ore. I 3; Pa. I 3; S.D. VI 3; numbers; DR. = Declaration of Rights, Tenn. I 3; Tex. I 6; Wis. I 18; Utah BR. - Bill of Rights, Am. = Amend- I 4; N.H. I 4; Okla. I 2; Vt. I 3; ment] Iowa I 4; Ala. I 3; Mont. III 4; N.M. Con- Source: Index Digest of State II 11; Colo. II 4; Ida. I 4; stitutions (notes 1 to 10, pp. 904-08; Ill. II 3; Mich. II 3; Mass. DR. 2; notes 11 and 12, p. 837; note 13, p. N.H. 1 5; Me. I 3; Ariz. XX 1; Ida. 767; note 14, p. 583; note 15, pp. 777- XXI 19; N.M. XXI 1; N.D. XVI 203; 81). S.D. XXVI; Utah III 1; Wash. XXVI; 1. Twenty-five state constitutions ex- Wyo. XXI 2; Tenn. XI 15; N.J. I 5; pressly forbid appropriations for religi- H. I 4, 7. ous or sectarian purposes. 4. Many constitutions, besides Mary- Miss. IV 66; Ind. I 6; Ore. I 5; Tex. land's, preclude interference with the I 7; Fla. DR. 6; S.D. VI 3; Mich. II free exercise of religious worship. Cf. Md. 3; Pa. III 18; La. IV 8; Mo. I 7; DR. 36. Wyo. I 19, III 36; Wash. I 11, Am. Ala. I 3; Colo. II 4; Del. I 1; Fla. 4; Ariz. IX 10, II 12; Minn. I 16; DR. 5; Ida. I 4; Ill. II 3; Ind. Wis. I 18; Mont. V 35; Colo. V 34; I 2, 4; Iowa I 3; Kan. BR. 7; Ky. Ga. I Sec. I 14; Mont. XI 8; Va. IV 1, 5; Minn. I 16; Mo. I 5, 6; 67; Cal. IV 30; Okla. II 5; Utah I 4; Mont. III 4; Nebr. I 4; N.J. I 3; Nev. XI 10; Mass. Am. XLVI 2; N.M. II 11; Ohio I 7; Pa. I 3; R.I. H. I 3. I 3; S.D. VI 3; Tenn. I 3; Tex. I 6; [But all of the states except Maryland Vt. I 3; W. Va. III 15; Wis. I 18; and Vermont have explicit, if non-con- Okla. I 2; Mass. DR. 2; N.H. I 5; stitutional, statutory provisions against Cal. I 4; Conn. I 3; Me. I 3; N.Y. such appropriations. See Horace Mann I 3; N.D. I 4; Ore. I 2, 3; S.C. League v. Board of Public Works, 242 I 4; Va. 1 16; Wyo. 1 18; Ark. II 24; 14 CATHOLIC LAWYER, WINTER 1968

Ga. I Sec. I 12; La. I 4; Mich. 11 3; Okla. I 2; Ariz. XI 7, XX 7; Colo. Miss. III 18; Nev. I 4 ord. 2; N.H. IX 8; Ida. IX 6; Mont. XI 9; N. M. I 5; N.C. I 26; Utah I 1; Del. (Pre- XII 9; Utah X 12; Wyo. VII 12; W. amble). Va. III 11, 15. See also Ala. Am. XLVI 4; Mass. 10. Thirty-two states, besides Mary- Am. XLVI 1, 4; Alas. I 4. land, constitutionally prohibit the estab- 5. Two states do not accept property lishment of a religion. Cf. Md. DR. 36. to be used for sectarian purposes. Ala. I 3; Alas. I 4; H. I 3; Iowa I 3; Nebr. VII 11; S.D. VIII 16. La. I 4; N.J. I 3, 4; S.C. I 4; Utah 6. Three states constitutionally require 1 4; Ohio I 7; Ark. II 24; Kan. BR. the practice of religious ethics [Mass. 7; Mich. II 3; N.M. II 11; Mont. DR. 2; Del. I 1; Va. I 16] while various III 4; Colo. II 4: Del. I 1; Ida. I 4; others set forth limitations on religious Ill. II 3; Ind. I 4; Ky. 5; Minn. I 16; liberty (such as restrictions on polyg- Mo. I 6; Nebr. 1 4; Pa. I 3; R.I. amy, criminal conduct, etc.). I 3; S.D. VI 3; Tenn. I 3; Tex. I 6; Miss. III 18; Ida. I 4; Mont. Vt. I 3; W. Va. III 15; Wis. I 18; III 4; Ark. II 26; Colo. II 4; N.H. I 16. Ill. II 3; Nebr. I 4; Ohio I 7; Tex. I 5; Ariz. 11 12; Cal. I 4; Conn. I 3; 11. In several states no religious test Fla. DR. 5; Ga. I Sec. I 13; Me. I 3; may be required for holding public office. Minn. I 16; Miss. III 18; Mo. I 5; Ala. I 3; Del. I 2; Ariz. 11 12; Wash. Nev. I 4; N.Y. I 3; N.D. I 4; S.D. 1 11; Ga. I Sec. I 13; Ind. I 5; Ore. VI 3; Wash. I 11; Wyo. I 18. I 4; Iowa I 4; Kan. BR. 7; Me. I 3; 7. The only state constitution besides Minn. 1 17; Wis. 1 19; Mo. I 5; Nebr. that of Maryland to limit the sale or I 4; Ohio I 7; N.J. I 4; N.M. VII gift of land, etc., to a religious body is 3; R.I. I 3; Va. IV 58; W. Va. III 15; that of Mississippi [Miss. XIV 270]. Wyo. I 18; Alas. I 3; H. I 4. Cf. Md. DR. 38. 12. In several other states, including 8. Twenty-nine state constitutions de- Maryland, the only test that may be given clare equality among religions. for holding public office is the determin- Ala. I 3; Ark. II 4; Colo. II 4; Conn. ation of the acknowledgment of a Su- I 4; Del. I 1; Fla. DR. 6; Ida. I 4; preme Being. Cf. Md. DR. 37. Ill. II 3; Ind. I 4; Kan. BR. 7; Ky. Ark. II 26, XIX 1; Mass. DR. 18; 5; La. IV 8; Me. I 3; Minn. I 16; Miss. III 18, XIV 265; N.C. VI 8; Miss. III 18; Mo. I 7; Mont. II 4; Pa. I 4; S.C. XVII 4; Tenn. I 4, N.J. I 4; N.M. 1I 11; Ohio I 7; IX 2; Tex. I 4. S.D. VI 3; Tenn. I 3; Tex. I 6; 13. Several states, besides Maryland, Wis. I 18; N.H. I 6; Mass. Am. require that the administration of an oath XI; Pa. I 3; W. Va. III 15; La. I 4. be consistent with the taker's religious 9. No religious tests whatsoever, for persuasion. Cf. Md. DR. 39. various purposes, are permitted in nine states. Cf. Md. DR. 37. (Continued on page 86) 14 CATHOLIC LAWYER, WINTER 1968 in concert they make significant strides remaining questions posed are whether in the application and clarification of the this right is also applicable to special sixth amendment to the armed forces. As courts-martial, and, if so, is counsel in a result of these cases, at the very least, the sense of a lawyer, as distinguished the accused in the military has the right from an officer familiar with the UCMJ to counsel, either retained or appointed, at and the Manual for Courts-Martial, both the investigatory and trial stage. The required.

CHURCH - STATE nesota, Mississippi, Missouri, Mon- (Continued) tana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Caro- Ariz. I 7; Ind. 1 8; Ore. 1 7; Wash. lina, North Dakota, Ohio, Oklahoma, 1 6; Ky. 232. Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, 14. Unlike Maryland, eleven states Virginia, Washington, West Virginia, provide in their constitutions that reli- Wisconsin and Wyoming. gious tests for jurors are forbidden. Cf. Tennessee has no express reference in Md. DR. 36. the preamble to its constitution, but sub- Ariz. II 12; Cal. I 4; Mo. I 5; N.D. mits various dates in the language, "the I 4; Ore. I 6; Tenn. I 6; Utah I 4; year of our Lord." Wash. I 11; W. Va. III 11; Wyo. No references whatsoever may be I 18; N.M. VII 3. found in the New Hampshire or Oregon 15. The constitutions of forty-six (46) constitutions. of the remaining states in the Union have Vermont's constitution has no pre- reference to a Supreme Being in the amble. preamble: [It is important to note that many of Alabama, Alaska, Arizona, Arkansas, the prohibitions and guarantees mentioned California, Colorado, Connecticut, Del- above, which may not appear in the con- aware, Florida, Georgia, Hawaii, Ida- stitutions of the several states, are in- ho, Illinois, Indiana, Iowa, Kansas, cluded among subsequent legislative Kentucky, Louisiana, Maine, [Mary- enactments. See, e.g., bracketed nota- land], Massachusetts, Michigan, Min- tion to note 1].