The Origins of Our First Amendment & The Servetus Affair

The Servetus Affair helps us understand our First Amendment. In fact, that episode with Servetus, was an event mentioned many times by the first drafter of the First Amendment, Thomas Jefferson. It indubitably explains what he meant by the rationale for the First Amendment as creating a separation of church and state.

What a history lesson teaches is that the modern practice of distinct boundaries -- the church having domain over conscience and the state over true crimes -- was the real objective behind the doctrine of separation of church and state as reflected in the First Amendment. (Reynolds v. U.S. (1879) (that metaphor "may be accepted almost as an authoritative declaration of the scope and effect of the amendment.") Thankfully, the First Amendment has largely succeeded in its original purpose.

However, because many modern jurists have forgotten the Servetus Affair, they are also slowly losing grip on the true meaning of and purpose of the First Amendment. As a result, the law is slipping backwards as the explosion of hate-crime legislation proves.

Indeed, the concept of ` separation of church and state' by Jefferson in his famous letter of 1802 was meant to reflect the lessons learned from the Servetus Affair. Jefferson was very familiar with the Servetus case, having written elsewhere that modern-day Calvinists were accusing a Dr. Cooper of "Unitarianism...as if it were a crime, and one for which, like Servetus, he should be burned...." 1 Jefferson also bemoaned modern day Calvinists who rely upon "their oracle Calvin who consumed the poor Servetus." 2 Jefferson spoke again of "the fire and faggots [i.e., burning logs] of Calvin and his victim Servetus." 3 In another allusion to the Servetus' case, Jefferson said "the Trinitarian idea triumphed not by reason but by the word of the fanatic Athanasius, and grew in the blood of thousands and thousands of martyrs." 4

Only with that context can one truly understand Jefferson's famous letter of 1802 in which he explains the rationale to the First Amendment. He says it was created to form "a wall of separation between church and state." But this did not mean a wall at the public courthouse prohibiting entry of an emblem of the Ten Commandments. That is a childish application of the literal words about `separation.' Rather, the First Amendment had to do with the countours of punishment over conscience. Jefferson explained in this same letter to the Danbury Baptist Association (Jan. 1, 1802) what he meant. It matches precisely the lessons learned from the Servetus Affair:

All attempts to influence [the mind] by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who being both Lord of body and mind, yet chose not to propagate it by coercions on either, as was his Almighty power to do. 5

Thus, Jefferson meant that the state had no role any longer in imposing on the liberty of conscience (i.e., our First Amendment, transgressed by "meanness" in the Servetus Affair). Conscience was the domain of the church or private belief. At the same time, the church had no right to inflict in matters of conscience the punishments that belonged to the state, such as deportation, confinement or death (i.e., transgressed by Calvin's use of the criminal courts to punish heresy). Hence, the powers of the state were kept apart from the church, and the powers of the state was kept apart from issues of conscience which belonged to the kingdom of God. Hence, a wall. Luther's theory of two kingdoms was a precursor of this view. 6

This is why Jefferson had no problem supporting the federal government giving money to build a Catholic church for an Indian tribe, or supporting Congress giving missionary money to preach the gospel to the `heathen.' 7 What was on his mind was the same concern when Jefferson wrote the religious liberty provision into the Virginia Constitution in 1776. It expressly put an end to any punishment for not attending church. 8 Hene, the wall of which Jefferson spoke was not to separate the church from the state's support and encouragement. (That may be a wise position anyway, but it was not on the mind of Jefferson or the founders.) Rather, what was on the mind of the founders was the Servetus Affair, and the need to put a wall separating the church from any longer using the state's power to punish the conscience. If you failed to believe, or failed to attend church, the punishment for that no longer belonged to the state.

Thus, reviewing the Servetus Affair helps remind us that separation of church and state did not originate to remove symbols of religion on public land or buildings. It did not mean to end support of the state for religion, whether a good idea or not as we might debate today. To think that was its purpose is to lose sight of the far more important message that the state should not impose its terrifying penalties for wrong belief.

This is why modern hate crime legislation, 9 which exacerbates criminal penalties based on hateful beliefs, is so inimical to the underlying premise of the separation of church and state. The true theory behind that phrase was that matters of private belief, whether religious or otherwise, would no longer be punished with criminal penalties. Once hate crimes were legitimized in the U.S., 10 and now exist in 43 states, it was no surprise that expressive gestures that do no physical harm but which `intimidate' others can now be criminalized, so says the Supreme Court. 11

The better solution is to use wholesome teaching on civic responsibilities, supported by appropriate civil damages and/or injunctions to correct the effects of invidious bias and socially-unacceptable ideas (e.g., false and misleading defamation, civil rights violations, etc.). On the other hand, it should be strongly presumed as wrong to use criminal penalties to change the way people think. Hate-crime legislation should be subjected to the heighest scrutiny, given the original goals of the First Amendment. It was originally intended to correct for the abuse of criminal laws over conscience, as the Servetus Affair was etched into the minds of those who drafted the amendment.

Thus, whenever criminal penalties today are heightened purely on the basis of invidious thoughts, that hits at the core of what the First Amendment sought to eradicate. Having lost the memory of the Servetus Affair has caused the loss of memory of what was the core purpose of the First Amendment. This memory loss has opened the door to approval of hate-crime legislation.

1. May 1820, quoted in The Jeffersonian Cyclopedia (1900) at 207.

2. Edwin Scott Gaustad, Sworn on the Altar of God: A Religious Biography of Thomas Jefferson (Wm. B. Eerdmans, 1996) at 177.

3. Thomas Jefferson, Memoir, Correspondence, and Miscellanies: From the Papers of Thomas Jefferson (F. Carr & Co., 1829) at 45-46.

4. Charles B. Sanford, The religious life of Jefferson (1984) at 90.

5. Social and Political Philosophy (John Sommerville & Ronald E. Santoni, eds.) (1963) at 247. The back-draft negative effect of zealous pursuit of mere heresy was that we lost the ability to prosecute the only religious crime which was ever legitimately also a public crime: blasphemy. But since we are not angels, and do not follow the Bible's requirement of two eye-witnesses, it appears we are far from ready to ever re-invigorate such a crime into modern codes.

6. Justo L. González, The Story of Christianity (Harper Collins, 1984) at 36.

7. David E. Guinn, Faith on Trial: Communities of Faith, the First Amendment, and the Theory of Deep Diversity (Lexington Books, 2006) at 31.

8. Marion Levy, Leonard W. Levy, Seasoned Judgments: The American Constitution, Rights (Transaction Publishers, 1997) at 100.

9. Once authorized by the Supreme Court in 1993, hate-crimes are now used in 43 states. They provide enhanced penalties if a defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity. A hate crime is not a crime where the hateful motive is relevant to proving the elements of crime, contrary to how some explain these law. So far, a hate crime is something already criminal which is punished more severely because the ideology (motive) behind the hate was a societally-rejected bias.

10. In approving hate-crime legislation, the Supreme Court engaged in a euphemism to resolve its contradiction of sound jurisprudence. It first admitted correctly this principle: "But it is equally true that a defendant's abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge." Wisconsin v. Mitchell, 508 U.S. 476, 485 (U.S. 1993). However, then by labelling the enhancement as punishing the evil motive of selecting a victim due to an ideology (there racism), the Supreme Court said this was not punishing thought. Yet, it is indeed punishing thought, albeit a more dangerous thought that may lead to crimes. Dr. Phyllis Gerstenfeld in The Hate Debate and Policy Problems (Sage Publications: 2004) mentions this criticism, and says "I admit to still feeling ambivalent on this matter myself." "I remain firmly on the fence." (Id., at 3, 37.) In other words, she feels queezy about adding penalties to an act that is already criminal solely because of the kind of thoughts held by the perpetrator. Perhaps the biggest problem is that such a statute, in the wrong hands, is an evil weapon, which we saw how it worked in Calvin's hands in 1553. Today, any prosecution of any crime, if a prosecutor wishes to intimidate a defendant, can turn your life upside down. The prosecutor simply starts interviewing all your friends and family to find out any hateful thoughts you ever expressed about a person in the category of your alleged victim. If it is there, the prosecution becomes a vendetta.

11. "The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation." Virginia v. Black, 538 U.S. 343, 363 (U.S. 2003)(held without such limitation, it was unconstitutional).