The Home School Court Report
No. 1

In This Issue


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by Michael P. Farris
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Toleration vs. Liberty

It took over three years to research and write my new book From Tyndale to Madison: How the Death of an English Martyr Led to the American Bill of Rights. It is a history of religious liberty that seeks to prove that religious liberty came not from the forces of the Enlightenment, as the secular left claims, nor from the channels of the various established churches, as others claim, but from a band of faithful Christian dissenters who were chiefly characterized by their ordinariness. God used the common people of the world to shame the wise on the subject of religious liberty—as He has done so many times on so many issues.

HSLDA/Kimberlee Bloom
Michael P. Farris, Chairman of the Board, Home School Legal Defense Association

But there was a particular issue that arose in the context of my research that I believe is even closer to the hearts of homeschoolers—even though understanding the general subject of religious liberty should be high in all of our philosophical priorities.

I learned that there is a huge gap between the concepts of religious toleration and religious liberty.

The idea of religious toleration got its foothold in 1689 by an act of Parliament passed during the reign of William and Mary. The Toleration Act was designed to provide a legal alternative to the existing compulsory church attendance law that was in place in England and in the American colonies-particularly in Virginia.

At this time, every person in England was compelled by law to attend services in the official government church—the Church of England. All people were also required to pay taxes to the church. In Virginia, failure to attend church was originally punished by deprivation of daily food rations. This was replaced by a fine of 50 pounds of tobacco a few years later.

The Toleration Act did not excuse subjects of the crown from compulsory attendance; rather, it allowed alternative religious congregations to conduct services that would satisfy the compulsory attendance requirement.

It is important to note that alternative congregations were not allowed to use the name church. As was common for all established churches, only the “true” (i.e., official) church was allowed to be recognized as a church. Thus, alternative congregations had to be called “chapels,” “meeting houses,” or the like.

In order to be recognized as an alternative congregation, a dissenting assembly had to go through a review and approval process conducted by the government church. The Church of England had 39 articles of faith. The dissenting assemblies were required to agree to all of these except five specific articles in which some pre-approved differences were tolerated. If the congregation’s doctrine was approved, and the pastor was approved on the same basis, and the building for meeting was approved, then—and only then—would attendance at such an assembly satisfy the compulsory attendance requirement.

Even though an alternative church would necessarily need financial support, those who attended such assemblies were not relieved from their burden of paying taxes to the Church of England. The subjects had to pay twice—once for the official church and once for the alternative church.

In 1776, George Mason introduced the first draft of Article 16 of the Virginia Declaration of Rights calling for religious toleration. James Madison, who was only 25 years old, quietly intervened. Working initially with Patrick Henry, Madison put forward substitute language getting rid of the idea of religious toleration and replacing it with “the free exercise of religion.”

The great Harvard historian from the early 20th century, W. K. Jordan, in his four-volume set The Development of Religious Toleration in England, says:

In its legal application the word toleration signifies simply a refraining from persecution. It suggests at least a latent disapproval of the belief or practice which is tolerated, and refers to a somewhat limited and conditioned freedom. It involves, as well, a volitional action or state of mind on the part of the dominant party towards a weaker party. . . . In its very nature, however, it disapproves, if it does not disallow, the point of view which is to be tolerated. Toleration, therefore, falls considerably short of religious liberty. It presumes an authority which has been and which again may become coercive; an authority which for subjective reasons is not brought to bear upon the dissenting group. It implies, shall we say, voluntary inaction on the part of the dominant group.1

In a more recent book, Conscience and Community: Revisiting Toleration and Religious Dissent in Early Modern England and America, author Andrew Murphy says:

“[T]oleration” seems to carry an inherent note of condescension or indulgence, a grudging grant from the state that contains a hint of disapproval. On this reading, the terms “liberty of conscience” or “religious liberty” represent more expansive notions than toleration and theoretically involve a claim of (natural or other) right as opposed to the mere “permission” associated with toleration.2

Perhaps Thomas Paine said it most plainly:

Toleration is not the opposite of intoleration, but is the counterfeit of it. Both are despotisms. The one assumes to itself the right of withholding liberty of conscience, and the other of granting it.3

The nature of religious toleration has a familiar ring to many homeschooling families. For many years, homeschoolers have had to face the same kind of gauntlet posed by the Toleration Act of 1689. Compulsory attendance was required then for church, and now for school. The pastor had to be approved by the Act of 1689; homeschoolers have faced many teacher approval statutes. Religious doctrine was reviewed then.

Curriculum is reviewed now. Deviations were allowed, but not just anything was permitted. And taxes are still required for the state schools just as they were for state churches.

I was able to use this historical research and argument in a recent appearance before the United States Court of Appeals for the Third Circuit. (In this ongoing case, Home School Legal Defense Association is representing six homeschooling families who are seeking a religious exemption from Pennsylvania’s harsh homeschooling law.) It was my contention that the Pennsylvania homeschooling law, which requires the discretionary approval of the local school officials, is inconsistent with liberty. Rather, it is nothing more than a homeschool toleration act.

If we are honest, homeschooling freedom has a long way to go. But this is true of parental and religious liberty in general. We live in a world that is becoming more and more enamored with the doctrine of toleration. But when you look closely, toleration means what it has always meant throughout history. It means that if you agree with the forces of “tolerance” then you are unmolested, but if you disagree with them, you will suffer persecution.

If anyone doubts this proposition, try going on a major university campus and proclaiming that homosexual acts are sinful. You will be persecuted by the forces of “tolerance.”

Tolerance continues to be the counterfeit of intolerance. The goal of this nation should be liberty, not tolerance. To be sure, it should be liberty for all—not just for Christians, but for all people of all faiths.

Liberty means the ability to disagree with the forces that run the universities and other government institutions and face no persecution. Liberty also means that government should never be in the business of approving or disapproving the exercise of one’s religious or parental rights. If we abuse our rights, we can be properly punished. But when the government demands advanced approval, it is playing the old role of the censor who wants to exercise the power of prior restraint.

Homeschoolers today are playing the role of many brave dissenters who have gone before us. They insisted that tolerance was not a proper standard. Liberty is the goal—and not just liberty for those with whom we agree, but for all.

We wait to see if the Third Circuit understands liberty and will help us take the next step in the right direction.

It is a battle that can take generations. We need to know our history to have the courage to face our future and to believe that, in God, we can win the victory for Christ and for liberty.


1 W. K. Jordan, The Development of Religious Toleration in England, vol. 1, From the Beginning of the English Reformation to the Death of Queen Elizabeth (Cambridge, MA: Harvard University Press, 1932), 17.

2 2 Andrew R. Murphy, Conscience and Community: Revisiting Toleration and Religious Dissent in Early Modern England and America (University Park, PA: Pennsylvania State University Press, 2001), x.

3 Thomas Paine, Rights of Man, Part 1, in Thomas Paine: Collected Writings (New York: Literary Classics of the United States, 1995), 482.