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(1) No magistrate may prohibit any activity merely because of an animosity toward the religious opinion reflected by that action. Actions must be judged in terms of their effect as actions, not in terms of the symbolic importance placed on them either by the believer or by the nonbelieving observers.

(2) This guaranty of nondiscrimination retained all important judgments in the hands of the civil magistrate. The magistrate could not discriminate against an action simply because it was motivated by a disliked religious opinion, but it was up to the civil authorities alone to judge the harmfulness or harmlessness of any particular activity.

What should a religious believer do, however, if the magistrate's judgment conflicts with his sense of religious obligation? What if, for example, the magistrate thinks that public health requires all butchering to be done in specified slaughterhouses, while the believer's religion requires him to sacrifice calves on an altar in his own house of worship? Or, what if the magistrate goes so far as to require the performance of an activity religiously prohibited, such as accepting a vaccination, saluting the flag, or participating in war? According to Locke, the first duty of a person placed in such a position is to follow his own conscience and save his immortal soul, but as a member of civil society he also has an obligation to obey the magistrate. Locke's solution to this conflict was interesting:

What if the magistrate should enjoin anything by his author-
ity that appears unlawful to the conscience of a private per-
son? ... Such a private person is to abstain from the action
that he judges unlawful, and he is to undergo the punishment
which it is not unlawful for him to bear. For the private judg-
ment of any person concerning a law enacted in political mat-
ters, for the public good, does not take away the obligation of

that law, nor deserve a dispensation.29 Thus, as long as the magistrate acts within his proper sphere of authority, the citizen with conscientious scruples should accept the punishment meted out to everyone for disobeying the law. It is important to note that the punishment is considered legitimate, since it does no harm to the natural rights of conscience. Perhaps even more important, as Locke indicated in a passage shortly after the one just quoted, was that the final judgment of the legitimacy of a magistrate's action was not left to the conscience of the troubled individual:

What if the magistrate believes that he has a right to make
such laws and that they are for the public good, and his sub-
jects believe the contrary? Who shall be judge between them?

29Ibid., p. 48.

I answer, God alone. For there is no judge upon earth be

tween the civil magistrate and the people. 30 What did placing the final say in God's hands mean in political terms? It meant, quite simply, that the final determination on this earth was the magistrate's.

So far, this interpretation of Locke's Letter has concentrated on the conflicting obligations placed on a citizen's behavior by religion and politics. As such, the interpretation may have given the impression that Locke analyzed opinions in a radically different way from the way he analyzed overt actions. This impression is not accurate. According to Locke, even though the magistrate is not concerned with the state of human souls as such, some opinions are so intimately connected with behavior affecting life, liberty, and property that they do fall within the proper sphere of a magistrate's concern.

Locke divided all opinions, including religious ones, into two major categories in the Letter-speculative and practical. Speculative opinions were defined as those which terminated in the understanding, while practical ones were those which could influence will and behavior.31 The magistrate should not concern himself with speculative opinions, Locke said, because these_by definition-have nothing to do with the business of the commonwealth. Practical opinions were another matter, however, since overt actions would affect life, liberty, or property. The magistrate may regulate obvious practical opinions about what is right and wrong in politics, since these clearly affect the goods of this world. In addition, Locke listed four kinds of religious opinion which normally might be considered speculative, but which have a sufficient influence on practical action to permit their regulation. These included: (1) opinions contrary to human society, or to those moral rules which are necessary to the preservation of civil society; (2) a belief that one's own sect may have special prerogatives; (3) a loyalty to a foreign prince (for example, the Pope); and (4) belief in atheism.

To summarize: Locke's Letter protected no opinion or action from the civil magistrate as a matter of right, if the opinion or action had an adverse effect on the proper concerns of civil society. As a matter of practicality, the magistrate must have discretion in determining what might have this kind of an adverse effect, and, as a result, a magistrate could, in theory, overstep his rightful authority. If he did, this was a matter for God to judge: on this earth, the final word short of rebellion in disputes between citizens and magistrates must lie with the magistrates.

30[bid.,

P. 49.

3' Ibid., p. 45.

Locke and Jefferson on Religious Opinions

This analysis of Locke's Letter suggests that there were important differences between Locke and Jefferson. Jefferson, unlike Locke, placed great stress on the distinction between opinions and actions. The difference between the two writers on this point may not be as great as appears at first glance, as we shall see, but the emphasis Jefferson places on the protection of opinion was important nonetheless.

We have already looked at Jefferson's treatment of opinions and actions in the Bill for Establishing Religious Freedom. He also distinguished between opinion and action in the famous 1802 letter he wrote to the Danbury Baptist Association while he was President of the United States. Although the letter was brief (almost the whole of it appears below) there are indications that he meant the letter to be given serious attention.32 The letter's key paragraph reads:

Believing with you that religion is a matter which lies solely
between man and his God, that he owes account to none
other for his faith or his worship, that the legislative powers of
government reach actions only, and not opinions, I contemplate
with sovereign reverence that act of the whole American
people which declared that this legislature should "make no
law respecting an establishment of religion, or prohibiting the
free exercise thereof,” thus building a wall of separation be-
tween church and State. Adhering to this expression of the
supreme will of the nation in behalf of the rights of con-
science, I shall see with sincere satisfaction the progress of
those sentiments which tend to restore to man all his natural
rights, convinced he has no natural rights in opposition to his social
duty.

33

Jefferson's well-known "wall of separation between church and State" was a barrier delineating the different functions of religion and politics. These different functions lead civil society to be concerned with overt actions only, not with mere opinions. The distinction between actions

32 Jefferson gave a draft of the letter to Levi Lincoln, his attorney general, before sending it. See Leo Pfeffer, “The Case for Separation," in J. Cogley, ed., Religion in America: Original Essays on Religion in a Free Society (New York: Meridian, 1968), p. 74. 33T. Jefferson, "Letter to Messrs. Nehemiah Dodge, Ephraim Robbins and Stephen S. Nelson, A Committee of the Danbury Baptist Association in the State of Connecticut," January 1, 1802, in Complete Jefferson, pp. 518-19. (Emphasis added.)

and opinions seemed clear and absolute, just as it did in the Bill for Establishing Religious Freedom. When we look more closely, however, at Jefferson's statement in his Notes on Virginia of the Lockean foundation for this wall of separation, we can see that the distinction between belief and action must be more equivocal than it appeared to be in the Danbury Baptist letter. The distinction between action and opinion was not self-explanatory, as it turns out, and Jefferson's toleration of expressions of dissenting religious opinion rested upon a more basic principle, as can be seen in the passage quoted below:

Our rulers can have no authority over such natural rights,
only as we have submitted to them. The rights of conscience
we have never submitted, we could not submit. We are an-
swerable for them to our God. The legitimate powers of
government extend to such acts only as are injurious to
others. But it does me no injury for my neighbor to say there
are twenty gods, or no God. It neither picks my pocket nor
breaks my leg. If it be said his testimony cannot be relied on in

courts of justice, reject it then, and let the stigma be on him.34 The major points of similarity between the Jefferson of this passage and Locke—the idea of natural rights, and the conception that the legitimate sphere of government extends only to injurious activity—are similarities which should be obvious to the reader and do not require further comment. Two important points do require amplification, however; Jefferson's views on atheists, and the status of harmful opinions.

A direct comparison of Jefferson's and Locke's views on how civil society should treat atheists points out one of the differences between them very clearly. Locke, we saw, thought that the acceptance of atheism would so undermine the bonds of civil society that the mere utterance of disbelief should occasion punishment. Jefferson did not disagree with Locke as to the utility of religion, but he did not consider the mere public expression of disbelief injurious to anything the government might legitimately protect. Further, the attempt to suppress the expression of atheistic beliefs would create an atmosphere injurious to the development of the true religion, which Jefferson thought to be a form of unitarianism.35

It is important to note, however, that Jefferson's reasons for ex

*OT. Jefferson, "Notes on Virginia, Query XVII: The different religions received into that state," Complete Jefferson, p. 675. 3sFor this point, as well as several others used in this section on Jefferson's view on atheism, see Jeffrey A. Burnam, Religion and American Political Society: The Contemporary Supreme Court and the American Founding (M.A. thesis, University of Chicago, 1964), pp. 62-69.

tending the reigous freedom guaranty to atheists* did not differ in arty fundamer tal way from Locke's reasons for denying tolerance to attests. The principle they both applied was, simply, that opinions about reizion shouid be tolerated by the civil magistrate ifand only is-the opinions did not harm interests the government was supposed to protect. Jefferson thought that no expression of opinion about the existence of God could harm anyone else's life, liberty, or property, and for this reason he included atheist opinion within the spectrum of opinion protected. Locke, on the other hand, did not go this far, because he saw the open, public proclamation of atheist opinion as an immediate threat to civil society.

While the expression of disbelief in the existence of God should be tolerated, according to Jefferson, there were some opinions, which, by their very expression, can pick a man's pocket or break his leg. The expression of these opinions could be punished because picking a pocket or breaking a leg are overt acts within the sphere of legitimate governmental concern. Furthermore, even though the mere expression of disbelief in the existence of a God may not pick pockets or break legs, other opinions stemming from religious belief could conceivably have these effects. What determines whether the expression of these kinds of religious opinions—roughly analogous to Locke's "practical opinions"-should be punished is whether the magistrate decides that their mere expression constitutes overt acts against peace and good order

For example, Jefferson was always willing to let the state governments punish seditious speech, and, in fact, his own two drafts of the Virginia Declaration of Rights carefully distinguished between religious opinion, which was to be protected, and seditious preaching, which was not. ?? Furthermore, we also know that he thought it possible to distinguish between religious and political utterances made from

36 Ibid., p. 58. Burnam argued convincingly that Jefferson intended the Bill for Establishing Religious Freedom to protect atheist opinion. In his Autobiography, Jefferson wrote of the defeat of an amendment offered in the Assembly which would have limited the Religious Freedom Bill's protections to Christians. Jefferson stated that the defeat of the amendment meant that the Assembly accepted his intention to extend the protection to "Jews, Mohammedans, Hindoos and infidels." See Complete Jefferson, p. 1147. Burnam pointed out that Jefferson used the word "infideľ” to cover a wide range of disbelief including, most significantly, the atheism of the French philosophes. For proof, he cited Jefferson's letter to John Adams of April 8, 1816 in The Adams-lefferson Letters, Lester Cappon, ed., 2 vols. (Chapel Hill, N.C.: University of North Carolina Press, 1959), vol. 2, pp. 467-68. 37Leonard W. Levy, Jefferson and Civil Liberties: The Darker Side (Cambridge, Mass.: The Belknap Press, 1963), pp. 43-44, citing The Papers of Thomas Jefferson, Julian P. Boyd, ed.. 17 vols! (Princeton, NJ.: Princeton University Press, 1950–), vol. 1. pp. 344, 353.

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