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  <title>The Origins of Our First Amendment &amp; The Servetus Affair</title>
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The Origins of Our First Amendment &amp; The Servetus Affair</h1>

<p class="BodyAfterHead">
<a name="pgfId=924045">
 </a>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.</p>

<p class="BodyAfterHead">
<a name="pgfId=924073">
 </a>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 <a name="marker=923791">
 </a>
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. </p>

<p class="BodyAfterHead">
<a name="pgfId=931260">
 </a>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.</p>

<p class="BodyAfterHead">
<a name="pgfId=924059">
 </a>
Indeed, the concept of `<a name="marker=924056">
 </a>
separation of <a name="marker=924057">
 </a>
church and state' by <a name="marker=924058">
 </a>
Jefferson in his famous letter of 1802 was meant to reflect the lessons learned from the Servetus Affair.  <a name="marker=924060">
 </a>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...."<a href="#pgfId=924079" class="footnote">
1</a>
 Jefferson also bemoaned modern day Calvinists who rely upon "their oracle Calvin who consumed the poor Servetus."<a href="#pgfId=924153" class="footnote">
2</a>
 Jefferson spoke again of "the fire and faggots [i.e., burning logs] of Calvin and his victim Servetus."<a href="#pgfId=924191" class="footnote">
3</a>
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."<a href="#pgfId=924097" class="footnote">
4</a>
 </p>

<p class="BodyAfterHead">
<a name="pgfId=924054">
 </a>
Only with that context can one truly understand Jefferson's famous letter of 1802 in which he explains the rationale to the <a name="marker=924062">
 </a>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: </p>

<p class="Quote">
<a name="pgfId=924116">
 </a>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.<a href="#pgfId=924123" class="footnote">
5</a>
 </p>

<p class="BodyAfterHead">
<a name="pgfId=924115">
 </a>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 <a name="marker=924063">
 </a>
two kingdoms was a precursor of this view.<a href="#pgfId=924250" class="footnote">
6</a>
</p>

<p class="BodyAfterHead">
<a name="pgfId=924294">
 </a>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.'<a href="#pgfId=924310" class="footnote">
7</a>
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.<a href="#pgfId=924370" class="footnote">
8</a>
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.</p>

<p class="BodyAfterHead">
<a name="pgfId=923929">
 </a>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. </p>

<p class="BodyAfterHead">
<a name="pgfId=924393">
 </a>
This is why modern  <a name="marker=923836">
 </a>
hate crime legislation,<a href="#pgfId=923810" class="footnote">
9</a>
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.,<a href="#pgfId=923863" class="footnote">
10</a>
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.<a href="#pgfId=923820" class="footnote">
11</a>
 </p>

<p class="BodyAfterHead">
<a name="pgfId=924284">
 </a>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. </p>

<p class="BodyAfterHead">
<a name="pgfId=924397">
 </a>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.</p>

</div>

<hr>
<div class="footnotes">
<div class="footnote">
<p class="Footnote">
<span class="footnoteNumber">
1.</span>
<a name="pgfId=924079">
 </a>
<a name="18701">
 </a>
May 1820, quoted in The Jeffersonian Cyclopedia (1900) at 207. </p>

</div>

<div class="footnote">
<p class="Footnote">
<span class="footnoteNumber">
2.</span>
<a name="pgfId=924153">
 </a>
Edwin Scott Gaustad, Sworn on the Altar of God: A Religious Biography of Thomas Jefferson (Wm. B. Eerdmans, 1996) at 177.</p>

</div>

<div class="footnote">
<p class="Footnote">
<span class="footnoteNumber">
3.</span>
<a name="pgfId=924191">
 </a>Thomas Jefferson, Memoir, Correspondence,
and Miscellanies: From the Papers of Thomas Jefferson (F. Carr &amp;
Co., 1829) at 45-46.</p>

</div>

<div class="footnote">
<p class="Footnote">
<span class="footnoteNumber">
4.</span>
<a name="pgfId=924097">
 </a>
Charles B. Sanford, The religious life of Jefferson (1984) at 90.</p>

</div>

<div class="footnote">
<p class="Footnote">
<span class="footnoteNumber">
5.</span>
<a name="pgfId=924123">
 </a>Social and Political Philosophy (John
Sommerville &amp; 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.</p>

</div>

<div class="footnote">
<p class="Footnote">
<span class="footnoteNumber">
6.</span>
<a name="pgfId=924250">
 </a>
Justo L. Gonz&aacute;lez, The Story of Christianity (Harper Collins, 1984) at 36.</p>

</div>

<div class="footnote">
<p class="Footnote">
<span class="footnoteNumber">
7.</span>
<a name="pgfId=924310">
 </a>David E. Guinn, Faith on Trial:
Communities of Faith, the First Amendment, and the Theory of Deep
Diversity (Lexington Books, 2006) at 31. </p>

</div>

<div class="footnote">
<p class="Footnote">
<span class="footnoteNumber">
8.</span>
<a name="pgfId=924370">
 </a>
Marion Levy, Leonard W. Levy, Seasoned Judgments: The American Constitution, Rights (Transaction Publishers, 1997) at 100.</p>

</div>

<div class="footnote">
<p class="Footnote">
<span class="footnoteNumber">
9.</span>
<a name="pgfId=923810">
 </a>
Once authorized by the Supreme Court in 1993, <a name="marker=924188">
 </a>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. </p>

</div>

<div class="footnote">
<p class="Footnote">
<span class="footnoteNumber">
10.</span>
<a name="pgfId=923863">
 </a>
In approving <a name="marker=923977">
 </a>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." <a name="marker=923979">
 </a>
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 <a name="marker=923978">
 </a>
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.</p>

</div>

<div class="footnote">
<p class="Footnote">
<span class="footnoteNumber">
11.</span>
<a name="pgfId=923820">
 </a>"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." <a name="marker=924189">
 </a>
Virginia v. Black, 538 U.S. 343, 363 (U.S. 2003)(held without such limitation, it was unconstitutional).</p>

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