“The First Fair Trial”: The Genealogy of the Separation of Church and State

NOTE: This article first appeared in the May 2017 edition of Ad Fontes.

Triumphalism is a perennial danger to Christian communities, and it shows up in a wide variety of places, sometimes in the most curious ways. For Protestant traditions, one particularly ironic location of triumphalism is in the claim to the development of liberty, particularly religious liberty. An obvious example is the 2003 film Luther, an otherwise fine movie which strangely concludes with a claim that the peace of Augsburg led to the 1st Amendment.[1] The Calvinist scratches his head at this, however, since he was very much excluded from that peace.

But Calvinists are guilty of this, as well. The famous, and often praiseworthy, Francis Schaeffer once made the claim that John Locke was influenced by and continuing the doctrine of Christian liberty as advocated by Samuel Rutherford.[2] From this, John Whitehead could create a non-profit called “The Rutherford Institute” which describes itself as “one of the nation’s leading advocates of free speech, religious freedom and civil liberties.” But the historical Samuel Rutherford opposed religious liberty, writing a book called A Free Disputation Against Pretended Liberty of Conscience Tending To Resolve Doubts moved by Mr. John Goodwin, John Baptist, Dr. Jer. Taylor, the Belgic Arminians, Socinians, and other Authors Contending for Lawless Liberty or Licentious Toleration of Sects and Heresies. This intolerance extended to other Reformed Protestants, and it earned Rutherford an infamous place in John Milton’s poem “On the New Forcers of Conscience Under the Long Parliament.”[3] Is it really this Rutherford to whom 20th century Americans wish to credit their modern civil liberties?

This desire to trace a consistent genealogy from Reformation figures to the American founding also shows up in more sophisticated works. Douglas Kelly’s The Emergence of Liberty in the Modern World gives the credit for 17th and 18th century liberalism to John Calvin, and even David VanDrunen’s Natural Law and the Two Kingdoms, largely a criticism of triumphalistic “Christian America” theories, nevertheless does draw something of a connecting line between John Calvin, Samuel Rutherford, and then American pastors and statesmen like John Witherspoon and John Henry Thornwell.[4] VanDrunen draws special attention to Pastor Stuart Robinson, who claims that the “Virginia model” which helped to produce the Declaration of Independence and Bill of Rights was a part of the inheritance from the Scottish Reformation.[5] Thus again, we have claims that men who rejected, sometimes vehemently, religious liberty and the toleration of differing sects, nevertheless significantly influenced the American notion of separation of church and state.

What are we to make of these genealogies? Should we accept the more progressive-Enlightenment narrative that our modern establishment is wholly the product of the Unitarians and Deists? Or should we perhaps quit the endeavor altogether, content to believe that history cannot be “explained” so much as observed?

A slightly different approach to the genealogy of religious liberty is taken by Robert L. Dabney. Dabney, a nearly toxic reference in most circles today, was a man of great faults but also of keen insight. He opposed many things. He opposed theological liberalism, and he also opposed social and political liberalism. Indeed, he opposed emancipation, he opposed female suffrage, and he even opposed dancing.  Yet for all of these illiberal ideals of his own, he could also be surprisingly progressive in important ways, and this shows up in his view of the history of the American religious landscape.

When it comes to the question of religious liberty and the separation of church and state, Dabney is strikingly open about the discontinuity between the American settlement and earlier, even Reformed, precedents.[6] He criticizes Calvin’s position as “theocratic” and even faults the established churches of Scotland and England for this error as well.[7] Dabney contrasts the American ideal against proximate notions of religious liberty held by Emer de Vattel, William Gladstone, and Thomas Chalmers. Dabney can even say:

The separation and independence of Church and State was not only not the doctrine of the Reformation. No Christian nation holds it to this day, except ours. In 17th and 18th centuries some Independents and others in England, and Seceders in Scotland, advocated such separation, but were branded as outrageous radicals. All the Reformation Churches, Lutheran and Reformed, held it as an axiom, that the State had, under God, the supreme care of religion. “Cujus Regio, ejus Religio.” Dissenters of England now usually hold our views (as well as Seceders in Scotland), called there voluntaryism. The Free Church, at the head of whom was Dr. Chalmers, held to establishments. Ours is the first fair trial.[8]

What Dabney sees as unique to the American experiment is that it has a full separation of church and state. No denomination or sect is favored with government force, and none is given public financial support. Coercion is out of the question. Heresies are not treated as crimes, and the civil magistrate understands its ends as limited to “time and earth.”[9]

Dabney explains this in more detail:

In the state, the good of the governed being the object, (in temporal interests) the governed are the earthly sources of sovereignty. Rulers have only a delegated power, and are the agents of the community, who depute to them, for the general good, so much of power as is necessary. [10]


The only means that can be used to produce religious belief are moral. No man is to be visited with any civil penalty for his belief, as long as he does not directly infringe upon the purpose of the government, which is the protection of the temporal rights of his fellow-citizens. The State is bound to see that every man enjoys his religious freedom untouched, because the right to this religious freedom is a secular, or political right.[11]

This is indeed quite different from the view of Calvin, and it should be noted that Calvin did not merely make a theocratic argument as claimed by Dabney. Calvin did often take ancient Israel as a model polity, but he did not assume that later polities should follow it exactly, nor did he make his argument for statecraft merely from assumptions about special revelation. He appealed to natural law, and defined the duties of civil magistrates by appealing to the writings of Cicero and Plato.[12] Thus Dabney’s arguments are not unassailable. Still, our interest is in the fact that he indeed notes the contrast and argues a more modern view. He, a Calvinist, offers Calvin no quarter on this point.

How does Dabney trace the development of religious liberty then? He presents a complex history:

The first treatise taking the true ground, as far as I know, was written by Brown (founder of sect [sic] of Brownists). Dr. Jno. Owen [sic] wrote for the same cause. Dr. Jeremy Taylor wrote his plea for liberty of prophesying. Milton and Locke are well known. Roger Williams, of Rhode Island, perhaps deserves the credit of being the first Ruler in the world, who granted absolute freedom to all sects, having power to do otherwise.[13]

This list is very interesting, as it crosses denominational lines. The names all come from the 17th century, but some are radicals while others are establishment figures. Some are fringe, while others are giants of Western culture. Certain absences are also notable. We do not see the names of Luther, Calvin, or Rutherford. Indeed, we would expect not to, given what else Dabney has said on this subject. But we also do not see Voltaire or Rousseau. All of the names listed are Christians of one sort or another, though Locke’s status is certainly up for debate. In fact, all of the names are British Protestants, with only Williams being wholly outside the Church of England’s sphere of influence.

The “Brown” named by Dabney is Robert Browne, a separatist from the Church of England who, as Dabney mentions, founded a sect that came to be known as the Brownists. The next name is John Owen. Though the abbreviation may appear corrupted in this place, a parallel passage in Dabney’s The Practical Philosophy also names Owen as a key originator of the doctrine of religious liberty.[14] Owen was distinguished among English Puritans by his great learning, but also by his support for independency, which seems to be Dabney’s interest in naming him. Then comes Jeremy Taylor, a minister in the Church of England who, nevertheless, published a work in defense of religious toleration in 1646, about forty years prior Locke’s more famous works on the topic.[15] Taylor’s name, we should note, actually appears in the subtitle of Rutherford’s polemic against liberty of conscience. Also present in that subtitle is John Goodwin, associate of John Milton, the same Milton who is next in Dabney’s historical list. The last two, John Locke and Roger Williams, are more commonly cited in this sort of history.

This list of Christian thinkers would seem to suggest that the view of religious liberty favored by Dabney owes its inspiration to intra-British struggles between competing varieties of Protestantism. Indeed, at the time of the American founding English Protestantism, having become Anglo-American Protestantism, was certainly the religious center of gravity, and the major divisions were largely between a latitudinarian Anglicanism and the various descendents of Puritanism, to include heretical offshoots like Unitarianism and Quakerism. It would be interesting to see Dabney’s comments on those less-Orthodox groups, but he does not include representatives from their movements in his genealogy.

What we can also see from Dabney’s perspective is that, while America was a unique and even progressive political experiment, it was not a secular experiment, at least not if that word secular means “non-Christian” or “anti-Christian.” Indeed, Dabney had said “No Christian nation holds it [separation of church and state] to this day, except ours.”[16] America, though possessing this true separation of church and state, was still a “Christian nation.”
Dabney felt that this was true in fact as well as name, as he also wrote:

The fact is, that this day, notwithstanding our heterogeneous people, and immense growth, we have more gospel, in proportion to our wants, than any except Scotland. …Our success is the grand argument against State Churches.[17]

In an essay on civic ethics in his The Practical Philosophy, Dabney compares his favored position, what he takes to be the actual American situation, with the version of religious toleration alongside establishment promoted by Thomas Chalmers, Lord Macaulay, and (interestingly enough) Patrick Henry. Dabney cites three points of agreement between the two positions with a final disagreement. The first three positions are as follows:

First, but by reason that [the State] is entitled to exist, it is entitled to use all means essential to its existence and the fulfillment of its natural ends. This is granted. Second, they proceed to say, that popular morality is essential to its existence and the fulfillment of its natural ends. Third, there is no adequate basis for popular morality except the prevalence of some form or forms of reasonably orthodox, evangelical Christianity.[18]

Of these claims Dabney says, “No experienced man contest either of the first three propositions.” It is only the fourth which Dabney rejects, and which he claims America has rejected. This fourth point is “State aid,” which includes both the use of coercive force and the spending of public finances to favor one religion or even “some one or more denominations of Christians, reasonably orthodox, evangelical and pure.”[19]

Dabney gives several reasons for rejecting this mild form of religious establishment, but one of the main ones is that he believes that it will not actually achieve the stated goal of preserving true religion and morality. Instead, he believes “voluntaryism” is the true way to preserve spirituality in a society. He writes:

Experience shows that free and voluntary effort of the denominations, all wisely and equitably protected by the government, but left independent, will come nearer evangelizing the whole society than any one endowed. The United States is the best example. For when we consider the rapid growth of its population, we see that the voluntary efforts of the denominations have done relatively more than any churches enjoying State aid in other lands.[20]

We could simplify this point by saying that, for Dabney, the separation of church and state is the most effective way of securing “popular morality” which is “essential” to the existence of the state and “the fulfillment of its natural ends.”

It would be interesting to compare Dabney’s optimism about America’s spiritual character with Philip Schaff’s similar optimism.[21] Both men felt that America was exemplary as a Christian nation, and both credited this success to the separation of church and state. Of course, the factors that made this so were historically contingent, and one might rightly question whether they were ever very stable. As the actual character of the people in America changed, so too did their gospel fidelity.

Dabney also bases much of his argument for the separation of church and state on his rejection of “Erastianism.” He uses the term in a rather loose fashion, even calling Calvin’s Geneva “Erastian.”[22] Thus we might also question whether a person who differed with Dabney’s ecclesiology on this point, whether they actually are Erastians or simply more sympathetic to the older ecclesiologies of Luther or Calvin, would find Dabney’s so convincing.

Still, with these questions outstanding, we can conclude a few things about Dabney’s view of the ideological heritage of religious liberty. He admits that it was not present in any mature form in Luther and Calvin’s day, yet he believes that its development was logical, harmonious, and even necessary, and he believes that it did develop, particularly within British Protestantism. As this theological and philosophical conviction began to exert influence over the English and North American thinkers, it was able to find its first political expression in the American experiment, starting with Virginia. This religious liberty created a true and full separation of church and state, but it did not create a godless society. Rather, it created the polity with the largest number of orthodox and evangelical people in the history of the world.

Steven Wedgeworth (M.Div, Reformed Theological Seminary) is the Rector of Christ Church Anglican in South Bend, IN.

[1] This is a simplified presentation of the claim, I admit, but one that captures its intended point.

[2] This argument permeates Schaeffer’s A Christian Manifesto (Wheaton, IL: Crossway Books, 1982) and be seen explicitly on 31-33. A recent work on the Covenanters has exposed the impossibility of Schaeffer’s historical argument. See, Joseph S. Moore, Founding Sins: How a Group of Antislavery Radicals Fought to Put Christ into the Constitution (Oxford: Oxford University Press, 2016), 155-156

[3] Milton wrote: Because you have thrown off your Prelate Lord,/ And with stiff vows renounced his liturgy/ To seize the widowed whore Plurality/ From them whose sin ye envied, not abhorred,/ Dare ye for this adjure the civil sword/ To force our consciences that Christ set free,/ And ride us with a classic hierarchy/ Taught ye by mere A. S. and Rutherford?

[4] Calvin appears throughout VanDrunen’s work, whereas Rutherford is appealed to in the section on “early Reformed resistance theory,” 145-146.

[5] It’s worth pointing out that VanDrunen does put some critical questions to Robinson’s thesis, but mostly by way of promoting more continuity between the “Virginia model” and the “New England model.” He does not seriously challenge the idea that the ideals of the Scottish Reformation influenced the American founding. He admits internal challenges and tensions, but still presents a mostly positive case for Robinson’s claim.

[6] Dabney’s discussion can be found in his Lectures in Systematic Theology (Grand Rapids, MI: Zondervan, 1976), 873-887.

[7] Ibid., 886-887.

[8] Ibid., 880.

[9] Ibid., 879.

[10] Ibid., 875.

[11] Ibid., 879.

[12] Institutes, book 4, chapter 20; see especially sections 9, 14-16.

[13] Lectures in Systematic Theology, 880.

[14] The Practical Philosophy (Harrisonburg, VA: Sprinkle, 1984), 401. Interestingly, in The Practical Philosophy, Dabney distinguishes between a theological doctrine of religious liberty and a political separation of church and state. That political separation, he says was truly founded by Jefferson and Madison. In this same place Dabney writes, “Virginia was the first commonwealth in the world which, having sovereign power to do otherwise, established full religious liberty, instead of toleration, with independence of Church and state….”

[15] This work is entitled A Discourse on the Liberty of Prophesying.

[16] Lectures in Systematic Theology, 880

[17] Ibid., 886.

[18] The Practical Philosophy, 398.

[19] Ibid.

[20] Ibid., 399.

[21] For an overview of Schaff on this point, see my essay “Views from 19th-Century Europe: How the Separation of Church and State was Seen from Abroad,” in For Law and for Liberty: Essays on the Trans-Atlantic Legacy of Protestant Political Thought, ed. W. Bradford Littlejohn (Moscow, ID: Davenant Press, 2016), 85-127.

[22] The Practical Philosophy, 400.


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