Friday January 16th is National Religious Freedom Day. All of us should be observing this event, because the Right is warping religious freedom to create "a right" to impose religious convictions upon others. I submit that the six Jewish soldiers who risked their lives to defend Fort McHenry on September 12 to 14, 1814 - one of whom was wounded - would not have understood Mr. Alito's ideas of religious freedom - a "freedom" of the owners of for-profit companies to impose their religion upon their employees, but I suspect that Mr. Alito really doesn't understand why these Jewish young men risked their lives 200 years ago. This diary is their story.
In 1800 there were between 2,000 to 2,500 Jews in the United States and by the end of the War of 1812 this number had risen to 3,000. This is 3,000 Jews out of a total United States population per the 1810 census of 7.2 million, of whom 1.2 million were black slaves. Charleston was the largest Jewish city with 650 Jews, followed by New York with 550 and Philadelphia with 450, less than 200 in Richmond and less than 100 in Savannah. In the 1810’s Baltimore had less than 100 Jews.
The reason why Baltimore had less than 100 Jews was because Maryland’s constitution, adopted in 1776, required that “No other test or qualification ought to be required on admission to any office of trust or profit than such oath of support and fidelity to the State . . . and a declaration of belief in the Christian religion.” In other words, if you were elected to public office, you had to swear your belief in the Christian religion. If you wanted to work as a state or county employee, you had to swear your belief in the Christian religion. If you wanted to serve in the Maryland militia, you had to swear your belief in the Christian religion. These provisions dated back to the so-called Act of Religious Toleration of 1649, which provided full rights to all who professed a belief in the trinity and was intended back in 1649 to protect Catholics from discrimination – as there were no Jews in Maryland in 1649. But by 1812 this provision discriminated against the fewer than 100 Jews that made Baltimore their home and discouraged other Jews from settling in Maryland.
You might be thinking, didn’t the Maryland Constitution violate the First Amendment? The answer is that before the 14th Amendment was adopted at the end of the Civil War, the Bill of Rights applied only to the Federal Government and not to the states – a unanimous Supreme Court opinion, Barron v. Mayor and the City Council of Baltimore, would so hold in 1833. Thus states were free to trample on the rights of the people. In 1801 one of Baltimore’s Jewish residents, Reuben Etting, wrote to President Thomas Jefferson complaining about the Maryland Constitution and Jefferson replied to Etting by appointing Reuben Etting U.S. Marshal for Maryland, the first Jew to hold a federal post. But although a Jew in Maryland could and did hold federal office, a Jew could not hold state office.
The town of Baltimore was founded in 1729 and by the 1760’s Baltimore had 1,200 residents. It was in the 1760’s that Baltimore acquired its first permanent Jewish resident, a German immigrant Jacob Hart who opened a clothing store and who supplied uniforms to Washington’s army in the Revolution. In 1780 the widow Shinah Etting, with her 8 children, moved to Baltimore and a few years later some of the Gratz family of Philadelphia moved here and in 1791 the two families became joined when Solomon Etting married Rebecca Gratz. Solomon Etting opened up a hardware store on Calvert Street and became the city’s first shochet - kosher butcher. In 1807 the widow Judith Cohen moved to Baltimore with her 8 children. Two of her sons, Philip and Mendes, and Solomon Etting’s son Samuel would serve at Fort McHenry during the Battle of Baltimore, there were three other young Jews defending the fort, and the shochet Solomon Etting would supply the six Jewish soldiers with kosher meat to eat during the bombardment. By the beginning of the War of 1812, these 100 or so Jews were gathering together in their homes for Shabbat and holiday services, but they held off forming a congregation. Why? They were waiting for Maryland to recognize them as equal citizens.
In 1797 Solomon Etting and his father-in-law, Bernard Gratz, petitioned the Maryland legislature to remove the restriction in the Declaration of Rights that forbade Jews from holding state office or employment, but the legislature ignored them. In 1802 and in 1804 they petitioned again, in 1804 they finally got a vote but the bill for Jewish emancipation was defeated in the House of Delegates 39 to 24.
When the British threatened Washington in August of 1814, three of the widow Judith Cohen's sons, Mendes age 21, Philip age 17 and Jacob, the eldest, joined the militia, specifically Nicholson’s Artillery Fencibles under the command of Captain Joseph Nicholson, chief judge of Baltimore county. Because the Fencibles were attached to a U.S. Army Artillery unit, volunteers were exempted from taking the oath that they were Christians. The brothers were in a unit that tried to make it to the Battle of Bladensburg to defend Washington D.C., but they didn’t make it because the Washington militias ran off right after the British starting firing. But the Cohen family, and in fact all of Baltimore, could see the flames of Washington DC in the distant sky, and they knew that Baltimore was next.
Jacob missed the Battle of Baltimore because he was in Philadelphia tending to a sick relative, but Philip and Mendes did not. Both were at Fort McHenry. When the alarm sounded that the British fleet had entered the mouth of the Patapsco, Philip hurried to Fort McHenry leaving his brother Mendes sound asleep in bed. Mendes finally awoke and ran to the fort as fast as he could. On his way he paused at Federal Hill, which still towers over the south side of Baltimore's Inner Harbor, he could see the entire British fleet from the height.
At 2 pm on the day of the bombardment, September 13, 1814, a British shell landed on the southwest bastion of the fort, creating a terrible explosion. If you visit the fort and climb up to the southwest bastion, you’ll read a park service sign that states that two men, Lieutenant Levi Claggett and Sergeant John Clemm, were killed instantly. What the park service marker does not state was that there was a third soldier standing on the southwest bastion, and that soldier was Philip Cohen. He was talking to Clemm, not even two feet away, when the bomb exploded, but Philip Cohen was unharmed.
Just a few minutes later, a British shell crashed through the magazine where all the kegs of gunpowder were stored. Inside the magazine, the fuse laid there, sputtering. If the magazine exploded, the entire fort would have blown up killing most of the defenders. In rushed a brave soldier, whose identity today is unknown, who dowsed water on the fuse. Major Armistead, commander of Fort McHenry, then asked volunteers to go into the magazine, remove the kegs of powder, and scatter the kegs along the landside wall of the fort. One of those volunteers who rolled the kegs of powder out of the magazine was Mendes Cohen. Samuel Etting, age 18 and son of Solomon Etting, also served at Fort McHenry and was wounded during the bombardment, but would recover. The other three Jewish young men who fought at Fort McHenry were Levi Collmus, Jacob Moses and Samuel Cohen, and, as I mentioned earlier, they all ate kosher food supplied by Baltimore’s shochet, Solomon Etting. I don’t have the names of the two Jews who fought at Hempstead Hill- which is today Patterson Park just east of downtown Baltimore.
These Jews risked their lives for a state that refused to recognize them as full citizens, who legally could not even have served in the state militia to defend their home city if federal law hadn’t applied to one of the militia units. But when Admiral Cochburn and the British fleet set sail out of the Patapsco and out of the Chesapeake Bay, bound for another defeat at New Orleans, Solomon Etting, joined this time by Mendes Cohen’s eldest brother Jacob, decided to try again. Between 1816 and 1826 they submitted petitions every year to the state legislature. At first their petitions were all but ignored, but after a few years they found a champion in Thomas Kennedy, who represented Washington County and Hagerstown - in western Maryland - in the state senate. Kennedy told Solomon Etting and Jacob Cohen that until then he had never met a Jew in his life, and he had no Jewish constituents, but this religious discrimination was wrong, especially considering how Solomon Etting’s son Samuel shed his blood for the defense of Maryland, and how Jacob’s two brothers risked their lives as well. The important newspapers of the United States picked up the issue – and every newspaper editorial on the subject denounced Maryland for its religious intolerance and urged repeal. Kennedy, however, would lose his bid for reelection in 1823 to Benjamin Galloway, who denounced Kennedy as a Jew-lover and who proclaimed himself as the Christian candidate. But in 1825, Kennedy ran again and this time defeated the bigoted Galloway.
In 1822 the constitutional amendment passed both houses of the legislature, but the 1776 constitution required that all constitutional amendments pass two consecutive sessions of the legislature. In 1823 the amendment again passed the Senate, but went down to defeat in the House of Delegates. So in 1824 they had to start over again, from scratch. In 1824 the amendment was again adopted, in the House of Delegates it was only by a vote of 26 to 25 with 29 abstaining. In the next session of 1825, the amendment passed again in both houses, and Jews were finally allowed to hold state and county office, to work as state and county employees, and to volunteer for the state militia.
Two events that took place in 1826, right after my native state officially recognized we Jews as full and equal citizens. First, both Solomon Etting and Jacob Cohen ran for and were elected to the Baltimore City Council – holding positions that until that time were forbidden to be held by any Jew. And, second, in 1826, daily minyans (Jewish religious services) began to be held in a rented room upstairs from a grocery store at Bond and Fleet Street in Fells Point in East Baltimore. In January 1830, these Jews obtained a corporate charter from the State of Maryland, naming themselves Baltimore Hebrew Congregation, the first chartered Jewish congregation in Maryland. For the next 15 years Baltimore Hebrew Congregation continued to meet upstairs from the grocery store at Bond and Fleet Street – that building, with the street level storefront now empty, is still standing – when the congregation moved into its new building on Lloyd Street – the building that today is part of the Jewish Museum of Maryland. The founding of Baltimore Hebrew Congregation right after the legislature voted to make us Jews equal citizens was not a coincidence. And after 188 years Baltimore Hebrew Congregation, since 1951 in its 4th location, is still going strong, the first of many Jewish Congregations that Jewish Marylanders have formed since 1826.
One final postcript, and we need to fast forward to 1959. The governor of Maryland appointed Roy Torcaso, an atheist, as a notary public for Montgomery County, Maryland. Maryland's oath of office had not changed since 1825, and while Solomon Etting and Jacob Cohen were only too happy to answer "So Help Me God" when they were sworn in as Baltimore City Council members, Torcaso refused to take the required oath and was denied the right to serve as a notary public. He challenged the constitutionality of the oath, lost at the Circuit Court for Montgomery County, lost at the Maryland Court of Appeals (Maryland's highest court), but then appealed to SCOTUS. In a decision written for a unanimous court by Justice Hugo Black (a giant compared to the five who control the court today) Justice Black wrote:
We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion." Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs. . . . This Maryland religious test for public office unconstitutionally invades the appellant's freedom of belief and religion and therefore cannot be enforced against him.
Although the oath became a "dead letter" with the 1961 SCOTUS decision, the legislature would not delete the requirement for all incoming office holders and state employees to declare their belief in God until 2014 (effective October 1, 2014), and the requirement for such an oath is still found in
Maryland's Declaration of Rights, articles 36, 37 and 39, part of the Maryland Constitution, unchanged since 1825 after Solomon Etting and Jacob Cohen and Thomas Kennedy had struggled, and six Jewish soldiers had risked their lives and one had shed his blood at Fort McHenry, so that all believers in the Almighty would be equal citizens of the state of Maryland. Articles 36, 37, and 39 have been a "dead letter" since
Torcaso was decided in 1961, but it remains a symbol that the struggle for true and complete religious freedom is not complete.