Freedom of Religion, Foundations

Freedom of religion is recognized as a fundamental right in both the United States Constitution and international law. Those who oppose religious freedom usually do so because they believe that obedience to religious authority is more important than freedom of conscience or that religious thought is a superstitious belief system that impedes progress and rational thinking. However, by most modern standards fostering a regime of religious freedom generally is deemed to be a desirable aim of government because it provides individuals with the ability to structure their existence around a set of core beliefs that give their lives meaning.

Evaluating what is meant conceptually by religious freedom, or even what constitutes a religion, is a difficult undertaking, however, and raises many serious concerns. Should government have the authority to treat spiritual beliefs in a legal manner, whether favorable or not, that is different from the way it treats other belief systems that are based on philosophical, political, aesthetic, moral, or cultural principles? Does atheism , or disbelief in the supernatural, qualify as falling under the protection of religious freedom? What about Scientology or Falun Gong? Can a state that financially and/or symbolically promotes a specific religious viewpoint, or promotes religion generally, still be said to be religiously free if it otherwise allows individuals to worship as they please?

These thorny questions indicate some of the initial difficulties one encounters when attempting to define what constitutes religious freedom, much less agree on legal standards for its propagation, and this is a difficulty faced even by modern, secular nations. Such a situation is complicated further by the wide disparity that sometimes exists between declarations made by countries that claim to safeguard religious liberty and empirical studies that indicate that the same governments often use a variety of official and unofficial methods to persecute disfavored religious sects .

Article 18 of the Universal Declaration of Human Rights, a document that nearly every nation has signed, asserts that all individuals are entitled to the right to freedom of thought, conscience, and religion and that this condition is required if the dignity and self-determination of each individual are to be preserved and enhanced. It is important to note that this international definition of freedom goes beyond religious thought and embraces nonbelief. Most nations also make some provision in their laws and constitutions to guarantee religious freedom, although, again, such assertions are no guarantee that this freedom will be protected in reality, no matter how generously the right is defined.

history

In the West some of the first major steps forward for religious freedom and tolerance came during the Renaissance, Reformation, and Enlightenment periods. Although Protestant groups that broke away from the Roman Catholic Church often did not extend tolerance to other groups, the view that individuals were responsible for their own salvation, or could interpret the Bible on their own without clerical mediation, was a major departure from the Catholic notion of the church strictly regulating matters of faith.

English philosopher John Locke (1634–1704), in his "A Letter Concerning Toleration" (1689), urged tolerance for all faiths except Catholicism and atheism. He did not attack Catholicism on theological grounds but rather on the basis that a Catholic subject's true political allegiance would be given to a foreign prince (the pope), a concern that resonated centuries later with the candidacy of John F. Kennedy (1917–1963) in the 1960 U.S. presidential election. Atheists also were excluded from similar consideration because it was thought that nonbelievers could not be trusted to be truthful or principled in their words or actions. Beyond these two exceptions Locke felt that a leader should not be concerned, on religious grounds, with belief or the conduct that emanated from it. A leader simply should remain blind to theological matters and regulate religion indirectly only when it violated the peace and good order of the community. Thomas Jefferson and James Madison followed and expanded on these views by indicating that they would extend toleration to Catholics, nonbelievers, skeptics, and other free thinkers, as did Roger Williams (c. 1603–1683) before them, when he established the colony of Rhode Island on the basis of religious tolerance. It should be noted, however, that for Williams tolerance did not mean what it does today—respect for other religions—but simply meant legal forbearance. Williams, a Puritan minister, looked on other religions as heretical but outside his power to regulate.

belief and practice

Even with the best intentions to see it flourish, the concept of religious freedom becomes problematic when it moves beyond the realm of belief and applies to practices and customs that spring from religious thought—especially when such conduct is not necessarily required by the tenets of a religion. Because any behavior potentially can pose a threat to its practitioner or others, governments traditionally have had a free hand in regulating conduct, whether religious or not, with the consequence that religious practices often are burdened. In the United States, for example, there is an long-running debate about whether religious freedom should only protect religious conduct from government attempts to discriminate based on hostility to a group's theological or doctrinal tenets—or whether that freedom should extend to protecting religious groups from the incidental burdens placed on religion by otherwise valid, secular laws.

In the former instance the scope of the freedom would only prohibit efforts by government to regulate the conduct of belief systems because of a theologically based view that a group is heretical or is worshipping incorrectly. (This also would prohibit atheistic government officials from attempting to base legislation on hostility to religion generally and forbid a requirement in religiously diverse states that nonreligious people had to embrace some faith to avoid prejudicial treatment.) At most this interpretation would legally safeguard the practice of innocuous conduct such as religious services, rituals, gestures, or the wearing of distinctive religious apparel. At the very least it would forbid attempts to apply discriminatory classifications against a religious group by forbidding its members from engaging (or requiring them to engage) in certain behavior that other individuals were free (or were not required) to engage in. Otherwise, as long as government could demonstrate a genuine secular purpose for prohibiting or requiring certain behavior, it would not be required to accommodate the burdened religious group by granting it an exemption from compliance with the law. This interpretation of religious freedom would provide complete protection for belief and the communication of belief but would draw the line at conduct that the state would be free to regulate.

In the latter, broader interpretation of religious freedom a religious group would not have to demonstrate that a government action is based on a hostile intent in order to receive relief from the burden placed on its religious conduct. Accommodation also would extend to instances in which a generally applicable, religiously neutral law inadvertently burdened a religious group. On such occasions government would be constitutionally required to exempt religious groups from otherwise valid laws that encumber them even while all others would continue to comply with those laws, with the caveat that truly objectionable behavior such as human sacrifices would not be accommodated.

In its first controversy touching on this matter, U.S. v. Reynolds (1879), a case involving polygamous marriages, the U.S. Supreme Court upheld a federal law outlawing the practice. Interpreting the Free Exercise Clause of the First Amendment narrowly, the Court held that religious freedom did not mean that individuals could become "a law onto themselves" if their religious beliefs and practices happened to conflict with positive law. In Sherbert v. Verner (1964) and a line of similar cases dealing with government entitlements the Court seemed to move toward a more robust interpretation of religious freedom by requiring that government provide unemployment benefits to Sabbatarians whose religious beliefs forbade them from working on Saturday. This broader interpretation found its fullest articulation in Wisconsin v. Yoder (1973), a case that mandated the excusing of Amish children from otherwise required attendance at school, although the Court as a general rule never has directly advanced the principle that religious people, as a constitutional norm, automatically receive an exemption from obeying the same laws obeyed by the rest of society.

Interestingly, the opposing viewpoint that religious persons should never receive voluntary exemptions at the discretion of legislative or executive bodies because such exemptions would constitute improper favoritism over secular belief systems has never been considered seriously. Accommodation of religion in the United States, although not constitutionally required by the Free Exercise Clause, is not forbidden by the Establishment Clause. In 1990 the Reynolds' view was reiterated with more force in Employment Division v. Smith, a case that examined whether the Free Exercise Clause required the state of Oregon to exempt Native Americans from its general laws prohibiting all use of the hallucinogenic substance peyote. The Supreme Court ultimately held that the state was under no obligation to exempt the drug for ceremonial use in Indian rituals and that the clause had been intended only to prevent government from singling out religious groups for special disability. However, because of some ambiguities in the majority opinion, there is still the possibility that a broader interpretation of free exercise may prevail in future cases, such as claims for unemployment benefits made by religious persons.

As a matter of principle, the Smith/Reynolds approach still could be questioned on the basis of need and not evenhandedness. The fact that government treats everyone alike does not mean that government is treating all people the way they ought to be treated. Many believe that religious people should receive special consideration above others seeking accommodation in secular circumstances because, it is claimed, the Establishment Clause places special impediments on the dissemination of religious thought in the public sphere.

Another difficulty in distinguishing between these two approaches to religious freedom is that both U.S. laws and other nations' laws ultimately are based on the dominant religious tradition(s) of a nation, even when a secular rationale can be offered to justify a law. Again, to use Reynolds as an example, the question of whether a polygamist Mormon was being discriminated against because of hostility to his religion is debatable. One might see laws restricting marriage to monogamous relationships as ultimately driven by a religious (mainstream Christian) justification even though a secular argument could be made that monogamy is a more manageable system of marital relations in a well-ordered society.

Even if agreement existed that religious freedom ends with direct attempts by government to curtail practices because of hostility to the underlying theological tenets of a religion, it still is difficult sometimes to determine whether government actions are genuinely guided by legitimate secular motives. Though the incidence of concealed government hostility toward religion is probably not substantial in contemporary America, this is certainly not true in assessing the status and well-being of religious freedom on a global scale.

international religious freedom

Globally, the incidence of religious freedom runs the gamut from theocratic states that allow very little—who ruthlessly use government institutions and other social instruments to mandate that religious beliefs, speech, and conduct conform to a particular orthodoxy—to the promotion of extensive liberty by some nations, which frequently make vigorous, proactive legal efforts to accommodate religious minorities whenever an otherwise valid law interferes with the practice(s) of a faith.

As far as human rights are concerned, the worst type of religious oppression is an inquisitional approach that attempts to probe people's minds to ensure that their thoughts are in line with a dominant ideology , with harsh punishments meted out to those who do not embrace certain articles of faith or dogma. This kind of oppression can be found in rigid communist nations such as North Korea and theocratically inclined states such as Iran and Saudi Arabia. Although persecution by religious fundamentalists is most prevalent today in Islamic nations, the same oppression prevailed and still exists to some degree in predominantly Christian and other non-Islamic nations.

Some states go to great lengths to promote a particular religious world-view even if they are not directly engaged in the persecution of disfavored sects. Some Latin American and European nations that are mainly Roman Catholic in character often attempt to blend religious institutions with the structure of the government, and this leads to laws that reflect theological positions, such as codes that prohibit practices like divorce, homosexuality, and abortion.

Occasionally an attempt to accommodate several religions as corporate entities within the structure of the state has the paradoxical effect of impinging on the religious freedom of the individuals who belong to those faiths. For example, in Israel this may occur because the legal system gives the orthodox clergy of various religious communities quasi-governmental authority to regulate social functions such as performing marriages and granting divorces.

In addition, atheistic communistic or postcommunistic regimes often go to great lengths to persecute particular religious/cultural groups, such as China's persecution of Tibetan Buddhism. China, North Korea, and Vietnam are cited frequently for human rights violations because they oppress religion and religious practices generally, especially proselytizing efforts led by foreign missionaries, even though these regimes often claim to respect the right of conscience.

Nor is religious oppression limited to atheistic or theocratic states. In many modern secular democracies, such as France and Turkey, there is a sustained effort by government to inculcate the populace with secular principles, and this sometimes extends to banning the wearing of religious icons or apparel in schools and other public spaces. Rather than functioning as a theocracy or officially sponsoring atheism, some governments attempt to discourage religion in public and to relegate it to the private sphere.

Although the U.S. judicial system probably would view such aggressive attempts at secularization as a violation of freedom of belief, many of these nations justify such actions as necessary because they claim to be struggling against fanatical religious minorities who are using extra-legal means to impose their beliefs and conduct socially on their own people (such as forcing women to wear scarves or veils), which runs counter to general legal norms protecting individual choice.

Somewhere closer to the middle of the spectrum are nations such as Norway that give financial and symbolic support to an established church but otherwise make no effort to impede others from worshipping or not worshipping as they please. England goes a step further by making heresy or ridicule of the Anglican Church an actionable offense, and this seems not to comport with liberal principles of free speech that allow such criticism.

Many nations, such as Belgium, Germany, and Holland, have even devised a system of largesse by which government funds go to religious groups—including systems predicated on disbelief such as humanism —and calculate such subsidization proportionally on the basis of the number of adherents of these groups. This attempt to be evenhanded would be considered unacceptable by men like Jefferson or Madison, who believed that even taxation to support one's own mode of worship violated the principles of religious liberty. This line separating acceptable accommodation of religion from what might be deemed its improper promotion has remained a contested point, resulting in many different standards for assessing government neutrality.

In many ways the U.S. government's relationship with religion is unique. This was the first government to formulate a constitutional principle prohibiting establishment of religion and one promoting its free exercise. The irony here is that although the United States is officially a nation without an establishment, it has a higher level of religious fervor than does "post-Christian" Europe, often leading to undue religious influences on legal and governmental practices. For example, some might consider the motto "In God We Trust" on the nation's currency or the inclusion of "under God" in the Pledge of Allegiance to be violations of the nonestablishment rule, whereas others would view these words as harmless ceremonial deism.

conclusions

In the early twenty-first century the debate continues as to what constitutes religious freedom, although for most secular democratic states a large degree of acceptance on broad principles exists. Although the United Nations continues to push for some of the most inclusive and expansive views of freedom of conscience, there are still many areas of the world where harsh religious persecution persists. In many states secularist doctrines such as separation of religion and government do not constitute the governing norms of those in authority, and it appears that such liberal principles will have difficulty taking root in these territories in the foreseeable future.

See also: Freedom of Assembly and Association; Freedom of Expression; Freedom of Religion and the State.

bibliography

Drinan, Robert A. Can God and Caesar Coexist? Balancing Religious Freedom and International Law. New Haven, CT: Yale University Press, 2004.

Employment Division v. Smith, 494 U.S. 872 (1990).

First Amendment Center. Religious Liberty in Public Life.<http://www.firstamendmentcenter.org/rel_liberty/free_exercise/index.aspx>.

"Free Exercise of Religion." University of Missouri–Kansas City. <http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/freeexercise.htm>.

Locke, John. Two Treatises of Government and a Letter Concerning Toleration, ed. by Ian Shapiro. New Haven, CT: Yale University Press, 2003.

Madison, James. "Memorial and Remonstrance Against Religious Assessment." In Basic Documents Relating to the Religious Clauses of the First Amendment. Washington, DC: Americans United for the Separation of Church and State, 1965.

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Sherbert v. Verner, 374 U.S. 398 (1963).

United Nations Universal Declaration of Human Rights. <http://www.un.org/Overview/rights.html>.

United States v. Reynolds, 345 U.S. 1 (1953).

U.S. State Department, Office of International Religious Freedom. <http://www.state.gov/g/drl/irf/>.

Wisconsin v. Yoder, 406 U.S. 205 (1972).

Timothy Gordinier