It is important for Americans today, in the face of the looming threat of Christian theocracy and the concomitant loss of our religious freedoms, to understand what is at stake. We are most of us familiar with the benefits of the European Enlightenment even if we do not think about it; they are all around us thanks to the actions of the Founding Fathers. But few people are aware of what the European Enlightenment destroyed: the last vestiges of a repressive fifth-century law code, the name of which is largely forgotten.
The Theodosian Code (Codex Theodosianus) was a collection of laws passed by the emperor Theodosius II and his successors which, in the words of historian Ramsey MacMullen, “was presented to the empire as a Christmas present in 438.”
“In it, decrees from Constantine forward were gathered in rational categories, including a book given to religion, and a section therein of twenty-five titles all concerning “Pagans, sacrifices, and temples.”
Theodosius’ father had used the ancient form of an executive order by issuing “De fide Catholica” (27 Feb., 380) made Christianity the official religion of the Roman Empire and presaging the attitudes of our own Christofascists called non-Christians “loathsome, heretics, stupid and blind.”
If that was not bad enough, before Pearl Harbor there was a first day of infamy, December 7, 416 when Pagans were excluded from the army, administration and judiciary of the empire they had built – they had been marginalized since the reign of Constantine; now they were disenfranchised. Rather reminiscent of the state of affairs that has so long surrounded the LGBT community, and before them, blacks and women in this country, and the move afoot to ensure our own judiciary are Christians. Non-Christians in our armed forces occupy a similarly tenuous position at the moment; we are not far from another December 7th of our own.
Few people appreciate the significance of the Theodosian Code because they haven’t been living with its effects. But they can be, and they will be, if the Religious Right has its way. Think about it for a moment. This legal code contains a collection of laws institutionalizing intolerance and repression, of brutal suppression of not only Pagans, but Jews and even other Christians, homosexuals, heretics and others, whose beliefs or actions did not match the stringent requirements of post-Nicene Christianity.
Emperor Theodosius II, who ordered the compilation of the code which bears his name, argued that the role of the emperor was that of mediator between the human and the divine. In that role, the emperor was guardian of “the best interests of the state as well as by ensuring that the people live in a pious Christian manner. He thus acted accordingly to maintain the religious peace and to see that the conduct and works of the clergy were beyond reproach.” The Code would “show everyone what things are to be done, and what are to be avoided.” It would “undertake the regulation of life.”
Does that sound familiar to you? It should. This was something quite new in the Roman Empire, which was part of an ancient tradition which had always upheld free speech as a right, and it made the Christian empire a theocracy in all but name. God ruled; the emperor was his vicar, his intermediary, occupying the same role of the Jewish high priests in the Second Temple Period (Jesus’ lifetime). This situation should sound familiar too; it is largely the position taken by George W. Bush and the forces of the Religious Right which supported him.
If the purpose and methodology of the Theodosian Code can be summed up in two pronouncements, it is these, from Book 16, Christianity’s Final Solution:
CTh 16.1.2: Orders “Christians to follow the faith of St. Peter, and [threatens] recalcitrants with imperial punishments and celestial vengeance.”
CTh 16.10.2: “Superstition shall cease; the madness of sacrifices shall be abolished.”
Sabine MacCormack observes a chilling development: “In the Theodosian Code…we can document the incorporation of sins into the purview of the criminal code; and as a result, the range of actions surveyed by the law and changed and expanded.” In other words, Book 16 “articulates for the first time in a Roman law code, what religion and what religious practices ‘are to be done and what are to be avoided'; and what was ‘the True Religion.'” This too, we are seeing today, with the Bush administration’s reluctance to admit to the need for Wiccan headstones for veterans, or move to ban Sharia Law, and to demote Islam itself from religion to cult.
If the first enactment ordered all Christians to be Catholics the second enactment demanded pagans stop being pagans. In ancient parlance it was nonsensical and would have been nonsensical to Pagans, who knew very well that superstition was an unreasonable fear of the divine (and that therefore it was Christianity itself which qualified, along with soothsaying, sorcery, or witchcraft).
Being faced with such pronouncements on an almost daily basis, they must have thought the world had gone mad – and indeed it had. At the same time that the traditional cults were being legislated out of existence, orthodox Christianity was being legislated into existence. These were the dual effects and purposes of the Code. And capital punishment was the hammer.
This evil is in our own future, but it was in the present of our Founding Fathers. It may (or may not) come as a shock to some, but Colonial America had laws near as draconian as those of the Theodosian Code thirteen centuries earlier, as Thomas Jefferson illustrates in speaking of the Virginia Code of 1705:
“By our own act of Assembly of 1705, c. 30, if a person brought up in the Christian religion denies the being of God, or the Trinity, or asserts there are more gods than one, or denies the Christian religion to be true, or the Scriptures to be of divine authority, he is punishable on the first offense by incapacity to hold any office or employment, ecclesiastical, civil, or military; on the second, by disability to sue, to take any gift or legacy, to be guardian, executor, or administrator, and by three years’ imprisonment without bail. A fathers right to the custody of his own children being founded in law on his right of guardianship, this being taken away, they may of course be severed from him, and put by the authority of the court, into more orthodox hands. This is a summary view of that religious slavery under which a people have been willing to remain, who have lavished their lives and fortunes for the establishment of civil freedom.” (Notes on Virginia, 234-237).
Is it any surprise then that Thomas Jefferson felt that of all his accomplishments in life, the Virginia Act for Establishing Religious Freedom was one of the most important? Though drafted in 1779, three years after the Declaration of Independence, the act was not passed until 1786. Almost simultaneously, James Madison, the Father of the Constitution, another proponent of religious freedom and of a wall of separation, wrote the Memorial and Remonstrance Against Religious Assessments (1785), just months before the Virginia General Assembly passed Jefferson’s bill.
It was the European Enlightenment that began the process which finally, after thirteen centuries of terror, banished the Theodosian Code into the darkness, but the final nail was the American Constitution and the Virginia Act. It is those which freed us to remain ignorant of the Theodosian Code and from religious-inspired superstition and terror.
It is important to think on these things, and the consequences of our own failure in the face of that darkness, which has returned- as it ever will – to torment humankind. The Theodosian Code was utterly evil, and it destroyed lives for thirteen centuries; it can destroy lives for thirteen more, and it will if we fail in our trust, because the Theodosian Code is what is waiting for us.
For a full accounting of the Theodosian Code and other laws against non-Christians in the Later Roman Empire, see the list maintained at mosmiaorum.org here.
 Ramsay MacMullen, Christianity & Paganism in the Fourth to Eighth Centuries (Yale University Press, 1997), 20.
 Michele Renee Salzman, “The Evidence for the Conversion of the Roman Empire to Christianity in Book 16 of the ‘Theodosian Code’,” Historia: Zeitscrift für die Geschichte 42 (1993), 362. CTh 1.1.5 429.
 MacCormack, (1997), 654. This law dates to 380 with the obvious aim of converting the Empire not only to Christianity but to a specific brand of Christianity, namely that of the orthodox party. The legal system was used not only to legitimize this type of Christianity but to delegitimize others, such as Donatists, Caelicolists, Gnostics, Arians, and others with the wording, “We authorize the followers of this law to assume the title Catholic Christians; but as for the others, since in out judgment they are foolish madmen, we decree that the shall be branded with the ignominious name of heretics, and shall not presume to give their conventicles the name of churches. They will suffer in the first place the chastisement of divine condemnation an the second the punishment of out authority, in accordance with the will of heaven shall decide to inflict.” See Henry Bettenson, ed., Documents of the Christian Church, (London: Oxford University Press, 1943), 31.
 The gods are re-classified as “evil spirits.”(C. Th. 16.10.12).
 Sabine MacCormack, “Sin, Citizenship, and the Salvation of Souls: The Impact of Christian Priorities on Late-Roman and Post-Roman Society,” Comparative Studies in Society and History 39 (1997), 362.
 Michele Renee Salzman (1993), 362.
 Michele R. Salzman, “‘Superstition’in the ‘Codex Theodosianus’ and the Persecution of Pagans,” Vigiliae Christianae 41 (1987), 174. Marcus Aurelius defined it thus, as did Ulpian in his Digest 28.7.8. Christianity, of course, redefined superstition as both something other than Christianity and something therefore morally wrong. Superstition was first used in a Roman law code according to the Christian sense by Constantine in 323. As late as 297 it was used in the old sense in a code of Diocletian and Maximian dated to 297 (repeated in a Constantinian law of 319/20.
 For more on dominion theology see TheocracyWatch, http://www.theocracywatch.org/