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Religious Liberty

RELIGIOUS LIBERTY

RELIGIOUS LIBERTY. The United States adopted a policy of religious liberty partly because influential people, including Thomas Jefferson and James Madison, advocated it, but partly because the sheer number of competing religious groups in eighteenth-century America made the possibility of religious uniformity remote. The nation's subsequent success in upholding the principle undermined the old European idea that an established church and a political state reinforced each other and that neither could thrive alone. In place of Europeans' attribution of divine right to their monarchs, Americans developed a civil religion, granting quasi-religious status to the Constitution, the flag, and the founders, but leaving plenty of room for citizens to practice their diverse particular religions.

Colonial Period

Colonial-era origins of American religious liberty are not hard to find. Separatist Puritans journeyed to the New World to escape religious persecution and in the expectation of finding a religious haven. Roger Williams, for whom the church was a purely spiritual phenomenon, detached religion from politics in early Rhode Island to prevent its political contamination. The Catholic founders of Maryland introduced a toleration law in 1649 for Christians of all types. William Penn's colony, Pennsylvania (1681), specified religious liberty not only for its original Quaker inhabitants but for all other settlers, and early became a shelter for Mennonites, Moravians, Baptists, and other dissenters from England and Germany.

These were no more than auguries, however, and it would be easy to overstate the degree of religious liberty in colonial America. The Church of England was established in Virginia and the Carolinas while the Congregationalist Church was established in most of New England. These establishments could be intolerant, as Massachusetts showed in executing four Quakers in 1659 and in hanging Salem's suspected witches in 1692–1693. Even after the Revolution, as the possibility of an Establishment disappeared, the widespread notion that America was a Protestant nation led to bursts of intense anti-Catholicism, in politics (the Know-Nothing Party) and in riots and the burning of Catholic churches and convents. Many churches, moreover, regarded religious liberty as a necessary evil rather than a positive good and looked forward to an era in which they would have spread their own particular brand of religious truth nationwide. Catholics themselves, despite recurrent persecution, sheltered under the American umbrella of religious liberty but aspired to a condition of Catholic unity, until Dignitatis Humanae, a document of the Second Vatican Council (1962– 1965) finally recognized religious liberty as a positive good.

No denomination did more to promote religious liberty than the Baptists, whose growth in the eighteenth century spread opposition to the idea of an establishment. Flourishing among the less-well-educated population and in the colonial backcountry, some Baptists challenged the legitimacy of the coastal Anglican elite and substituted a democratic model of divinely chosen preachers for the establishment's staid, seminary-educated clergymen.

The growth of Baptist influence in the backcountry coincided with the spread of Enlightenment ideals among colonial elites. Thomas Jefferson, like many leaders in the Revolutionary generation, feared the imposition of a more rigorous establishment after 1770 and the threatened arrival of Anglican bishops. Eager to see the republic proclaimed on rational grounds, he traced the natural law to a Deist "Creator" in his draft of the Declaration of Independence but avoided doctrinal or denominational language. In 1786 he wrote the "Act for Establishing Religious Freedom." James Madison, his friend and principal drafter of the Constitution, understood that it was going to be difficult to win ratification from all the states and that the best approach to religious issues was to leave them alone completely. This approach succeeded and was codified in the First Amendment (1791), which precluded Congress from passing laws pertaining to the free exercise or the establishment of religion. Several states retained established churches but support for them weakened in an atmosphere supportive of religious liberty. The last of them, in Massachusetts, was abolished in 1833.

The constitutional separation of church and state and the promotion of religious liberty, however, did not imply a lack of interest in, or respect for, religion. An overwhelming majority of the revolutionary generation thought of themselves as Christians, and they saw no contradiction in describing America as a Christian nation or in holding Christian services in Congress.

Nineteenth Century

Early-nineteenth-century developments strengthened this belief in a Christian America but also strengthened the principle of religious liberty. The democratic revivalism of the Second Great Awakening placed a new emphasis on individual religious choice. In earlier Calvinist theology, the anxious soul had had to prepare in hope for the infusion of God's grace. In the teaching of Francis Asbury, Charles Finney, and other revivalists, by contrast, the individual was free to choose to turn towards God and to decide to embrace salvation rather than waiting on God. This change in theological emphasis gave additional support to the principle of religious liberty; the unsaved individual needed a setting in which his or her choice for God was in fact free.

As we have seen, the arrival of a large Catholic population tested the limits of American Protestants' commitment to religious freedom; anti-Catholic writers like Samuel Morse (inventor of the electric telegraph and Morse code) feared that Catholics' allegiance to the pope, whom they depicted as a foreign absolute monarch, made them incapable of true loyalty to the republic. Catholic leaders like Cardinal James Gibbons of Baltimore and Archbishop John Ireland of St. Paul reacted by emphasizing Catholics' absolute loyalty to the church in matters of religion and absolute loyalty to the republic as citizens. The arrival of a large Jewish population in the mid-and late-nineteenth century, from Germany, Russia, Poland, and the Austro-Hungarian Empire, tested the principle further still.

Twentieth Century

Despite widespread Protestant suspicion of Catholics and Jews, however, and frequent polemics, permanent divisions along religious lines never disfigured the republic; neither did any religious group suffer legislatively enforced persecution. Jewish success and upward social mobility in America, along with widespread revulsion against the Nazi Holocaust, contributed to the rapid decline of American anti-Semitism after 1945. By European standards it had never been intense. The idea of America as a "Judeo-Christian" nation replaced, for many observers, the older claim that America was a Christian nation. The American confrontation with the officially atheist Soviet Union during the Cold War stimulated the spread of "Judeo-Christian" rhetoric. When Congress added the words "under God" to the pledge of allegiance in the 1950s, it was in recognition that America was on the side of religion and that America's religious liberty stood in sharp contrast to Soviet anti-religious persecution. The God in question, however, was not attached to any particular church.

The Immigration and Naturalization Reform Act of 1965 led, in the later decades of the twentieth century, to a new wave of immigration and a further diversification of the American religious landscape. Large numbers of Hindus and Buddhists entered America for the first time, and the Islamic population grew rapidly, partly through immigration and partly through the adherence of African Americans to the Nation of Islam. Here again, the principle of religious liberty operated to ensure that these groups were free to worship as they wished, that their religious organizations were insulated from the state, and that they, like all other religious groups, enjoyed tax exemption. Court cases, such as Sherbert v. Verner (1963), adjudicated nettlesome issues to accommodate students' and employees' religious needs and observation of holy days. Recurrent frictions, especially when neighbors' religions were dissimilar, were offset by a widespread belief in religious civility.

There have been occasions throughout American history when the right to religious liberty appeared to threaten other rights, or when activities undertaken in the name of religion violated social or legal convention. In such cases, the limits of the liberty were tested. In the nineteenth century, for example, the Oneida Community's practice of "complex marriage" and the Mormons' practice of polygamy brought down persecution on their heads. Neighbors of the Oneida Community were horrified by complex marriage, regarding it as no better than sexual promiscuity. Their pressure, along with declining fervor in the community's second generation, prompted John Humphrey Noyes, the founder, to emigrate and the community to dissolve. Early Mormon communities in Missouri and Illinois faced recurrent attacks with the connivance of the local authorities, which culminated in the murder of their leader Joseph Smith.

In the 1970s Americans wrestled with the issue of "brain washing" by cults. The counterculture of that decade gave rise to numerous religious organizations whose members lived in communes, often handing over their belongings to charismatic leaders. Were these cults—Jesus Freaks, Rajneeshis, Hare Krishnas, Moonies, and others—abusing the principle of religious liberty or were their unusual ways of life signs of its flexibility and continuing vitality? In the most notorious of these groups, the People's Temple, parents of young members claimed that their children had been brain washed into parting with their property and were, in effect, prisoners rather than devotees. People's Temple leader Jim Jones, denying these allegations, led his community out of the United States to Guyana (just as Brigham Young had led his people out of the United States and into what was then Mexican territory 130 years before). When Congressman Leo Ryan of California went to Guyana to investigate parents' claims in 1978, Jones told his security guards to assassinate Ryan at the Jonestown airstrip, then ordered the entire community (about 900 people) to commit suicide by drinking poisoned Kool-Aid. All but a handful, who escaped into the jungle, followed his suicide order. The ensuing scandal led some states to consider anticult legislation but found themselves unable to define the difference between denomination, sect, cult, and church. The principle of religious liberty prevailed against legislative intrusion, even though the principle was clearly liable to abuse in extreme cases.

BIBLIOGRAPHY

Butler, Jon. A wash in a Sea of Faith: Christianizing the American People. Cambridge, Mass.: Harvard University Press, 1990.

Eastland, Terry, ed. Religious Liberty in the Supreme Court: The Cases That Define the Debate over Church and State. Grand Rapids, Mich.: Eerdman's, 1995.

Hanson, Charles P. Necessary Virtue: The Pragmatic Origins of Religious Liberty in New England. Charlottesville: University Press of Virginia, 1998.

Hatch, Nathan O. The Democratization of American Christianity. New Haven, Conn.: Yale University Press, 1989.

Hunter, James Davison, and Os Guinness, eds. Articles of Faith, Articles of Peace: The Religious Liberty Clauses and the American Public Philosophy. Washington D.C.: Brookings Institution, 1990.

Lee, Francis Graham, ed. All Imaginable Liberty: The Religious Liberty Clauses of the First Amendment. Lanham, Md.: University Press of America, 1995.

Patrick N.Allitt

See alsoDiscrimination: Religion ; andvol. 9:An Act Concerning Religion .

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religion, freedom of

freedom of religion: see Constitution of the United States.

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Freedom of Religion

FREEDOM OF RELIGION

FREEDOM OF RELIGION. SeeFirst Amendment .

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Freedom of Religion

FREEDOM OF RELIGION

The most authoritative statement of Catholic teaching on religious freedom is the Declaratio de Libertate Religiosa of vatican council ii. It solemnly proclaims that all men, and all religious communities, have a strict right to religious freedom: a right that is based on the dignity of the human person. It praises contemporary legal systems that recognize and uphold this right, and deplores the fact that in many countries it is infringed. The present article is concerned with the main arguments and considerations that have formed Catholic thinking about religious freedom, and the main positions represented at the Council. For the broader historical background of the Council's Declaration, see church and state.

Religious Freedom at the Time of Vatican Council II. A glance at the state of religious freedom in the world during the 1960s may help to explain why the question received conciliar treatment. No previous ecumenical council had dealt with the topic. Two considerations in particular seem to have urged attention to it.

Violations under Communist Regimes. First, consideration was prompted by the persecution of religion under Communist regimes, which, as Pope Pius XII said, "in the end reject and deny the rights, the dignity, and the freedom of the human person." Forty years after the Russian revolution of 1917, at least 186 bishops of the Roman Catholic Church alone had been executed or imprisoned, and at least 67 million Catholics were undergoing religious persecution to a greater or less degree. In terms of the number of souls affected, this was estimated to be the greatest religious persecution in history. Temporary alleviations of it were dictated by political considerations rather than by recognition of the right to religious freedom, and overtures for the easing of pressures were hindered by the danger that religious leaders would appear to condone antireligious regimes and thus confuse or demoralize the faithful.

A Soviet directive of 1934 made explicit the permanent object of the campaign:

Instruction in any type of religious ceremony as well as the performance of any type of religious ceremony or rite and any other type of religious influencing of the younger generation is forbidden and is punishable by law.

Elementary and secondary schools are to insure the antireligious indoctrination of the pupils. Education and training are to be evaluated as foundations for the active battle against religion and its influence on students and adults. [RSFSR Statute on Secondary Schools (1934) text 263.]

Modern educational techniques enable practical hostility to religion to be exercised most effectively by antireligious education, systematically conducted. The primary criterion for testing the sincerity of alleged concessions to, and in general the real acknowledgment of, the right to religious freedom is not to be sought in the release or nonimprisonment of bishops and priests, or in the diplomatic honors or other privileges accorded to them, but in the freedom of religious educationreal, sustained, and peaceful freedom, without penalties of any kind, for parents to provide their children with formation in their own religious traditions.

A general account of Communist policies can be summarized under three headings. (1) In the Soviet Union the main target of attack was the Orthodox Church. At first persecution was direct; then, after a generation of antireligious education, every effort was made to convert the reduced Orthodox Church into an instrument of the state. It was in the Ukraine and in Lithuania, Latvia, and Estonia that the Catholic Church suffered direct and violent persecutionin 1946 more than 500 priests of the Diocese of Lvov alone were in prisonand pressure was applied to absorb Eastern Rite Catholics into the Orthodox Church. (2) In China, Christianity was attacked chiefly on the pretext that it was an instrument of European and Catholic imperialism; Taoism was attacked as "counter-revolutionary." Within the first decade after 1949, all but five of 2,500 Chinese Catholic priests had been executed or imprisoned, and systematic antireligious education had attained a perfection and effectiveness not previously known. (3) In Eastern Europe the position remained more complex. Christianity is part of several national traditions; and the forces of antireligion were connected with the Soviet Union. Indirect persecution, e.g., by the imposition of crippling taxes on churches and religious schools, had therefore become more common. In 1965, East German customs officials seized copies of the New Testament as imperialist propaganda. Parish meetings, religious processions, children's recitals at the Christmas crib, the traditional blessings of the fieldsthese and many other activities often were stopped. Frequently, antireligious measures were even more direct. Catholic bishops such as Cardinals mindszenty, stepinac, Beran, and slipyj, and Protestant leaders such as Bishops Dibelius, Ordass, and Radvansky underwent "trials" and suffered maltreatment, imprisonment, deportation, or isolation from clergy and people; they must rank with the heroes of any period of Christianity. Many Catholic bishops of Communist-dominated countries were prevented from attending Vatican Council II, and Pope Paul VI, in opening the second session, pointed to their vacant benches as a symbol of "a wound inflicted upon the Council itself." Religious freedom, he said, is a fundamental human right violated in many modern countries by principles and methods of intolerance.

Modern Recognition of the Right. A second consideration that urged the topic upon the Council was the demand for religious freedom that had been mounting in modern times. John milton and John locke pleaded for it (except for Catholics and atheists) in the 17th century, voltaire and Jean Jacques rousseau in the 18th. The right to religious freedom for all was recognized by the two great 18th-century revolutions, by the French in theory, and by the American in theory and practice. It has been acknowledged by an increasing number of states through the 19th and 20th centuries and is recognized in various forms in the constitutions of many modern states. This recognition expresses one of the deepest convictions of what may loosely be called "the modern mind." Since many Council fathers believed that the Church's most urgent task was to begin "a dialogue with the modern world," it was natural that they should be anxious for a statement of the Catholic attitude toward religious freedom.

Such a statement could not be formulated by simply observing existing situations. No single description could cover the position in traditionally Catholic countries. In Spain a section of the Fueros de los Espagnoles, requiring that the spiritual unity of the nation be maintained, forbade "ceremonies and external manifestations other than those of the Catholic religion." Spain's 30,000 Protestants felt that this rendered ineffective another section of the fueros that recognized the right of non-Catholics to "nonmolestation in their religious beliefs," and in the early 1960s the Spanish foreign minister (Señor F. M. Castiella) was working for the more practical acknowledgment of this right by the recognition of religious minorities in Spain. In Italy the Catholic faith is the official state religion and, although the right to religious freedom is constitutionally recognized, it was sometimes claimed that, in the first decade or so of the Republic, non-Catholics suffered certain disabilities. In Ireland there is no established church; the constitution (art. 44.2) guarantees freedom of conscience and the free profession and practice of religion to every citizen, and state aid is given to schools without discrimination among the churches that manage the schools.

In the newly independent countries of Asia and Africa the situation confronting the Council fathers was more varied, more complex, and more unpredictable. Freedom in these countries was often conceived as simply freedom from the former colonial powers. Frequently there was no long tradition of pluralism, political or religious, and the existence of any organized "opposition" was often seen as inimical to the state. In some countries no clear distinction was made between state and society; in others the basis of social organization is the tribe. For these and other reasons some of the usual preconditions of religious freedom were lacking, and there were in some places suggestions that an unpleasant modern version of the principle cuius regio, eius religio was in the making; e.g., in (Buddhist) Sri Lanka measures were taken against Catholic schools, and in the (Muslim) Sudan Christian missionaries suffered persecution on the score of their being agents of the former colonial powers. But in many countries religion was free, and Christians were prominent in works of primary, secondary, and technological education and in social and political leadership. The Catholic Church worked rapidly to develop local (i.e., native) hierarchies and bodies of clergy and religious, which seem to be a necessary, though obviously not a sufficient, condition of its freedom.

The Doctrine of St. Thomas Aquinas. Turning to Catholic theology on religious freedom, perhaps the most influential, as well as the most representative account of one strong element in the theology is in the treatise De fide in the Summa Theologiae of St. thomas aquinas, specifically in the treatment of unbelief (Summa tehologiae 2a2ae, 1012). It is important to remember that by infideles (unbelievers) St. Thomas meant non-Catholics of every kind, Christian or otherwise. His views may be summarized in his answers to three questions.

Should Unbelievers Be Forced to Accept the Faith? St. Thomas distinguished between those who had never been Catholics and those who once were Catholics but had lapsed into unbelief. According to his teaching, unbelievers who have never been Catholics must not be forced to embrace the faith. The act of faith is by its nature a free act; without an interior free choice of the will there is no valid act of faith at all. It is therefore wrong in any way to force Jews or pagans to become Christians (Summa theologiae 2a2ae, 10.8); it is an offense against natural justice (3a, 68.10).

In the case of Catholics who have lapsed into unbelief by joining another denomination (haeretici vel schismatici ) or by abandoning Christianity altogether (apostatae ), the teaching of St. Thomas is quite different: they should be compelled, even by physical force, to resume membership in the Church and practice of the faith. The basis for this position is that it is proper that a person be compelled, if necessary by physical force, to honor a promise (here, presumably, the baptismal promises). The Church should seek the return of one who lapses, and always welcome him back to spiritual communion. But if he is obstinate, and there seems to be no hope of his return, she must set the eternal salvation of the many above the mortal life of one man, banish him from the Church by excommunication, and see that the secular power banishes him from the world by death. Only prudential considerations would urge a different policy: if the unbeliever had support of such strength as to threaten schism, he might be left alone; but otherwise there must be no leniency in his punishment (Summa theologiae 2a2ae, 10.8, 11.34).

Should the Children of Jews and Other Unbelievers Be Baptized against Their Parents' Wishes? St. Thomas held without qualification that it is never permissible to baptize a child against the wishes of the parents. For the natural order of things demands that, before a child comes to the age of discretion, he should be cared for by his parents, in matters both of body and soul. It would therefore be a violation of natural justice if he were taken away from his parents or baptized against their wishes (Summa theologiae 2a2ae, 10.12; 3a, 68.10).

Should the Religious Rites of Unbelievers Be Tolerated? Given that unbelievers must not be forced to accept the Catholic religion, may they be permitted to practice their own? St. Thomas answered that tolerance is permissible if it leads to some great good or prevents some great evil. Jews may therefore be permitted to practice their rites, since these prefigured the Christian faith and in a way bear witness to it. The rites of other unbelievers, however, having neither truth nor utility to commend them, should not be tolerated except to prevent some greater evil, e.g., civil unrest, scandal, or the placing of obstacles to the salvation of those who, if left in peace, might gradually be converted to the faith. For these reasons, St. Thomas concluded, the Church has sometimes extended toleration to pagan and heretical worship when unbelievers were in large numbers (Summa theologiae 2a2ae, 10.11).

Modern Developments in Thomism. St. Thomas clearly did not credit the unbeliever with a right to practice and profess his religion. In this and several other points many modern Catholics have followed St. Thomas, though with important modifications and developments. Their main positions may be summarized under two headings.

Opposition to the Use of Force. It has been held consistently, and without St. Thomas' restriction to those who were never Catholics, that no one must ever be forced to accept the Catholic faith. Modern writers have never condoned the use of secular power to enforce an initial acceptance of, or a return to, the Church. Pius XII's statement in mystici corporis is unconditional: "If it were ever to happen that, contrary to the unvarying doctrine of this Apostolic See, a person was compelled against his will to embrace the Catholic Faith, we could not, for the sake of our office and our conscience, withhold our censure" [Acta Apostolicae Sedis 35 (1943) 243]. This has been accepted unreservedly by Catholic writers.

The "Thesis-Hypothesis" Theory. The question remained, should (or may) an unbeliever be permitted to adhere to his own religion, or even to none? The answer was most often given in terms of the curiously titled "thesis-hypothesis" theory. The thesis asserted that the state has the obligation to acknowledge the Catholic Church as the only religious society with a God-given right to public existence and action, and to recognize this by law. In principle, other religions should have no legal right to public existence and action, and ought to be repressed by the state, for error and evil run counter to the rational and moral nature of man, to the common good of society, and to the right of people to be protected from occasions of defecting from the truth. On the hypothesis, however, that such a constitutional arrangement is unfeasible, the Church may forego her right to establishment as the one true religion of the state, and not oppose the legal tolerance of other religions.

When is the thesis applicable, and when the hypothesis? A common interpretation was that in nations where the majority of the citizens were Catholic, the thesis applied; in others, it was permissible to accept the hypothesis. This naturally led to the charge that the attitude of Catholics in regard to religious freedom was highly ambiguouswhere they were in a minority, they demanded it; where in a majority, they refused it. The charge was echoed by some Catholic writers. But many others had the courage of their logic and avowed it quite frankly, as did the authors of a widely used American Catholic textbook who wrote: "The fact that the individual may in good faith think that his false religion is true gives no more right to propagate it than the sincerity of the alien anarchist entitles him to advocate his abominable theories in the United States, or than the perverted ethical notions of the dealer in obscene literature confer upon him a right to corrupt the morals of the community" [J. A. Ryan and F. J. Boland Catholic Principles of Politics ]. Nor did these writers fear that such an attitude could be turned against Catholics in countries in which they were in a minority. First, they insisted, Catholic worship and preaching, being true, do not harm the community; second, no non-Catholic state can logically take this attitude, since no non-Catholic sect claims to be infallible. Hence the famous remark of Louis veuillot to non-Catholic liberals, "I demand from you, in the name of your principles, that freedom which I refuse you in the name of my own." Such remarks were widely quoted as a warning to enlightened people against Catholic obscurantism. Ryan and Boland sought to reassure their non-Catholic fellow Americans on the score that a Catholic state in America was too remote in time and probability to disturb a practical man. But clearly the fact remained that such considerations did not demand, or even allow for, universal religious freedom as a matter of principle.

Another group of writers sought to show that interpretations of the thesis-hypothesis theory that failed to demand religious freedom for all were self-defeating. Four levels in the argument can be distinguished. First, at the merely prudential level, there is the danger that if Protestants or Muslims are denied religious freedom in Catholic states, Catholic minorities may (in retaliation) be denied it in Protestant or Muslim states. Second, at a higher level, the Church as a whole forfeits respect, for if she claims for herself a freedom that she denies others, she will be thought insincere and unjust; indeed, some Catholic theologians believed that she would be opportunist and Machiavellian. Third, at a quite different level, a social order that discriminates against groups within it on account of the beliefs that they hold, or which stifles open and rational discussion of important questions, is inimical to the growth of truth in men's hearts. Fourth, at perhaps the highest level, since the act of faith is by its nature a free act, the Church should favor the policy of religious freedom for all as most conducive to a climate in which men can make the act of faith in the most salutary manner that is possible.

The Demand for Religious Freedom in Principle. Policy is not principle. Even the foregoing arguments in favor of freedom would not establish universal religious freedom as required in principle. The positive arguments in favor of religious freedom as a matter of principle have been developed along other lines.

First, it is necessary to recall Catholic principles about the duty to follow conscience. The history of the medieval debates on the issue has been traced by Dom Odon Lottin. Most writers before St. Thomas held that conscience could be binding only insofar as it was in conformity with the law of God. But St. Thomas, from his earliest treatment of the subject, insisted that conscience, whether correct or mistaken, is always binding, in the sense that to act against conscience is always wrong. To evaluate a person's moral performance is to evaluate the performance of his will; the "proper object" of the will is the good, not as it is in itself, but as it is presented by the reason, which is just what is meant by the judgment of conscience. The conclusion is clear: it is always wrong to act against conscience, provided that it has been formed in good faith. So confident was St. Thomas of his conclusion that he applied it absolutely: if a man's conscience judges faith in Christ or abstinence from fornication to be sinful, then such faith or such abstinence would be sinful (Summa theologiae 1a2ae, 19.5, cf. In 2 sent. 39.3.3; De ver. 17.34; De malo 2.2).

St. Thomas did not draw the further conclusion that the act that follows conscience is good. But in the 18th century St. alphonsus liguori (Theologia Moralis 1.6) saw that this was entailed by St. Thomas's principles, and practically every Catholic moralist has followed him since then. Three quotations show the position of Catholic thought on the question:

Whether in theory conscience be correct or mistaken, an action will have in fact whatever evil or goodness conscience attributes to it. [A. Vermeersch, Theologiae Moralis Principia (Rome 1923) 1:293.]

Provided it be certain, an erroneous conscience shows a man what is God's will for him, in exactly the same way as does a correct one. [E. Genicot, Institutiones Theologiae Moralis, ed. A. Gortebecke (Brussels 1951) 1:42.]

If our conscience tells us that we ought to perform a particular act, it is our moral duty to perform it. [F. C. Copleston, Aquinas (London 1955) 220.]

These conclusions are in the minds of the writers who argue for religious freedom as a matter of principle. Their main lines of argument can be sketched under three headings.

The Individual's Right to Follow Conscience. The first argument claims to establish the individual's strict right to follow his conscience in matters of religious choice, profession, and worship. Versions have been proposed by Bernard Olivier, OP, and E. D'Arcy. The form of the argument is: "X has a strict duty to follow his conscience" entails "X has a strict right to follow his conscience." For the more intimately a given "object" is connected with the integrity of the human person, the more stringently is it protected for him by natural justice. When the "object" is life itself, St. Thomas arguedand all Catholics agreenot even the jeopardy of many innocent people can so abrogate the right to life of an innocent man as to sanction the directly intentional killing of him as a means to their safety. The conclusion holds a fortiori if the "object" is a person's moral integrity, for human rights are derived from human ends. The more closely an "object" is tied to the sovereign end of the sovereign person's existence, the more sacrosanct is his right to it; and substantial fidelity to moral duty is a necessary (this is not to say a sufficient) condition of attaining that end. Therefore, given the premise that it is always one's duty to follow conscience once it is formed in good faith, one has the right to freedom to follow it; and this must hold most especially in the area in which moral duty bears most intimately upon the attainment of one's end, namely with regard to one's relationship with Godreligious choice, profession, and worship.

Who is the other party affected by this right? Every ascription of a right to a given person contains an implicit reference to some other identifiable person or persons against whom he can validly claim the right. In the debate concerning religious freedom the other party is the state. The argument concludes that the state, whether on its own behalf or at the behest of the Church, may not use its powers to force or induce a person to adopt a particular religion or to prevent or dissuade him from following that religious belief which his conscience requires him to follow. Two lines of argument lead to this conclusion. The first reasons that to answer otherwise is to imply that the state is empowered to prevent or hinder a person from achieving his sovereign end and require him to breach his personal moral obligations, and to credit it with the right to violate natural justice. The second leads to the next argument advanced by modern writers who hold that religious freedom is required in principle.

Limits of the Competence of the State. The previous argument began with the individual person and ended with the state; the second begins with the state and ends with the person. Two points are basic to it.

The first is a principle that was given its most authoritative statement by Pius XII: "In the pre-Christian era the public authority, the state, was as competent in the religious domain as in profane matters. The Catholic Church was aware that her divine Founder had transmitted to her the sphere of religion, the religious and moral direction of men, to the fullest extent, and independent of the power of the state" [Vous avez voulu, Act ApS 47 (1955) 677]. This suggests that the state is not empowered to enjoin or forbid attitudes and conduct in religious matters as it is competent to do in other fields; and this immediately prepares one for the conclusion that the state has no warrant for applying pressure for or against a given religious faith.

The other basic point is made by drawing a clear distinction between society and the state, a distinction implicit, it is claimed, in many earlier Catholic documents. In terms of this distinction it is argued that the state is simply one of the meansadmittedly a very important meansused by society to attain its purposes. Since substantial fidelity to conscience in religious matters is a necessary condition for attaining the supreme purpose of the human person, it cannot be within the state's power to interfere with the citizen's freedom to be faithful to his conscience in religious matters.

It would be simplistic to conclude baldly that "the state therefore has no competence in the field of religion." A satisfactory theory of the human person, the state, the Church, and their mutual relationships cannot be fashioned by seeing the strict implications of these two principles alone. Many other factors are relevanta people's history and experience; its stage of cultural, economic, technical, and political development; its shared moral code; its tribal or national temperament; its characteristic Weltanschauung; and its religious beliefs. All these and many other factors determine the kind of state it fashions. The state is not a sort of Platonic form that all actual states must identically instantiate; different societies may demand different functions of the states they create to serve their purposes. The Swedish and American peoples, for example, expect very different social services from their respective states, and neither can claim to have the correct program. In this and other fields there is a whole range of possibilities that, provided the demands of justice owed to individuals and groups are respected, may all satisfy the strict requirements of Christian social and political principles. With regard to religion, at least one thing is necessary: that the state recognize and protect religious freedom. It is perfectly proper for a people, if it chooses, to have the state do more, as in the Federal Republic of Germany, where the state contributes a proportion of public revenue to the various churches. But it may not do less.

The most complete statement in English of this second line of argument is that of John Courtney Murray, SJ. He has proposed reasons for preferring this approach to the first sketched above, suggesting that it does greater justice to the multiplicity of elements in the problem, beginning as it does, not with a "single insightthe exigence of the free human person for religious freedom," but with "a complex insightthe free human person under a government of limited powers" [Theological Studies ].

Faith a Free Act. French writers were prominent in the development of a third line of argument. The argument is based on the nature of the act of faith, two aspects of which lead toward the same conclusion.

First, faith is the gift of God alone. There are, in turn, two aspects to this. (1) Although natural truths about God are, at least in principle, discoverable by natural reason, supernatural truths, the proper object of faith, can be known only because God chose to reveal themthrough revelation in the strict sense. (2) Nor is this enough. Faith requires the work of God within a person; God's immediate action upon the soul is absolutely necessary if one is to be able to embrace divine revelation sicut oportet. This was true even of those who saw Jesus and his works with eyes of the flesh: "No one can come to me unless the Father who sent me draw him" (Jn 6.44). Hence faith is the gift of God alone; the conclusion is that religious faith not only may not, but quite literally cannot, be given or imposed or required by the state.

Second, faith involves, of its very nature, the completely free assent of the soul to the divine revelation and action. In Mystici Corporis Pius XII, citing a constitution of Vatican Council I, declared, "That faith without which it is 'impossible to please God' must be the completely free 'homage of intellect and will"' (loc. cit. 243). Freedom is absolutely necessary for a valid act of faith; the state therefore acts unjustly if it requires such faith of any person, or even if it destroys or lessens that condition of freedom in which such an act can validly be made.

Answers to Objections. An important part of the case of those who argued for religious freedom as a demand of principle was their handling of objections. They were often accused of being at odds with "traditional Catholic doctrine," and in large measure they met this general charge by answering specific objections. It is sufficient to cite the four most important objections with an indication of the typical lines of reply.

First, it was objected that the claim of a universal right to religious freedom involves assumptions of religious indifferentism or doctrinal relativism. A statement of Ryan and Boland is typical of many: "The men who defend the principle of toleration for all varieties of religious opinion assume either that all religions are equally true or that the true cannot be distinguished from the false" (op. cit. ). The Catholic writers whose arguments have just been sketched draw on no such assumptions; indeed, they completely reject them. They all believe in the Catholic Church as the one true Church founded by Christ. They draw, as has been seen, on three groups of data that have nothing to do with the indifferentist or relativist premises imputed in the objection. It is true that the premises lead to the claim for universal religious freedom; but the converse is not true (p implies q does not entail q implies p ).

Second, it was objected that "error has no rights." This maxim was taken to be axiomatic, and the full consequences were put forward, not simply as the theory of one school, but as Catholic teaching. For instance, Reginald Garrigou-Lagrange, OP, wrote, "The Church claims that the truth alone has the right to be protected. Since therefore it is certain that she alone possesses the whole truth, she alone has the right to protection. In a Catholic state, she will often tolerate non-Catholics in order to avoid greater evils" [De Revelatione (Rome 192931) 2:453]. The maxim embodies a confusion of categories, viz, the logical fallacy committed by allocating concepts to logical types to which they do not belong, in this case, by assigning a predicate that falls under one category to a subject that falls under another. For a given predicate, there is a finite range of subjects of which it may be meaningfully affirmed or denied; if it is ascribed to a subject lying outside that range, the result is not false, but meaningless. For instance, the predicate "having wheels" may be affirmed or denied of motor-cars, armchairs, or clocks, but not that is, not meaningfullyof jokes, sonnets, or sonatas. So with the predicate "having rights"; it can be meaningfully ascribed only to persons, either individual persons, or groups of them. Rights can be meaningfully claimed or disclaimed for a person, a family, a voluntary association, a state; but not for a proposition, a theory, an argument, or a doctrine. In its literal acceptance then, the maxim "Error has no rights" is meaningless; it is in the same logical case as the sentence "Error has no wheels."

Third, another objection began with the principle that one is obliged to prevent evil when it lies in one's power to do so. If another person is bent on doing wrong, but cannot do so without one's assistance or acquiescence or at least noninterference, then one is bound to prevent him; to allow him to act is to share his guilt. Butthe objection proceedspagan and heretical religions are wrong. If, therefore, a person or group is bent on practicing or preaching them, a Catholic government that could prevent it is obliged to do so. But, in the first place, it is never permissible to use unjust means, even in order to secure a good end or to prevent a great evil. Since the right to religious freedom is a right in strict justice, no purpose, however exalted, can justify its violation. Second, Pius XII, dealing with the objection without reference to the question of the strict right to religious freedom, rejected in very explicit terms the major premise of the objection, viz, the claim that one is always obliged to prevent evil when it lies in one's power to do so. In an address to Italian Catholic jurists, he observed, "God has not given to human authority any such absolute and universal mandate in the field of either faith or morals. Such a mandate is unknown to the common convictions of mankind, to the Christian conscience, to the sources of revelation, and to the practice of the Church" ["Ci riesce," Acta Apostolicae Sedis].

Fourth, it was charged that the claim that religious freedom is a universal human right runs counter to traditional Catholic doctrine, in particular, that it was condemned by 19th-century popes. For example, gregory xvi wrote in Mirari vos, Aug. 15, 1832: "Indifferentism is the fetid source that gives rise to the mistaken view, or rather madness, that everyone is entitled to freedom of conscience" (H. Denzinger, Enchiridion symbolorum 2730). pius ix explicitly repeated the condemnation, and in his syllabus of errors condemned the proposition "Every man is free to embrace and to profess the religion which, by the light of reason, he believes to be true" (H. Denzinger, Enchiridion symbolorum 2915). It must be noted, however, that the Church's teaching authority is not exercised in vacuo, but according to the demands created by the needs of man and society, and by the spread of false teachings. Furthermore, it is necessary to distinguish between an ideology and the institutions to which it gives rise; the latter may be sound, although the former is false.(see john xxiii) ["Pacem in terris," Acta Apostolicae Sedis]. The popes condemned the ideology that based freedom of conscience on three false doctrines, viz, that the human conscience is exlex, subject to no law, not even God's; that all religions are equally true or valuable, or that religious truth cannot be known with certainty; and that the state is omnicompetent, so that the Church herself is to be incorporated in and subordinate to the state. These are false doctrines, and were condemned as such by the popes, but the condemnation does not extend to the institution of religious freedom that did in fact, in some places, come from them, but can be based on other, true, doctrinal and rational foundations. This statement may be compared with one from an Anglican source noting that toleration "is generally held to merit commendation when it issues from respect for the natural rights of the human person to freedom of belief, but condemnation when it is due to mere indifference" [Oxford Dictionary of the Christian Church ].

Vatican Council II. Between the end of the first session of Vatican Council II and the opening of the debate on religious freedom in the second session, two important papal statements on the question were made. One occurred in the encyclical letter pacem in terris. In setting out the rights that arise from the dignity of the human person, John XXIII wrote: "Every human being has the right to honor God according to the dictates of an upright conscience, and therefore the right to profess his religion in private and in public" (loc. cit. 260). The other statement was made by Paul VI in his address at the opening of the second session, in the course of which he protested against the persecution that kept some bishops from attending the Council, and said: "It grieves and distresses us to see that in many countries religious freedom, together with the other principal human rights, are violated by the doctrines and practices of men who will not tolerate opinions different from their own: opinions about politics, about racial questions, about religion of every kind. We deplore the fact that such injustice is done anywhere to people who sincerely and openly profess their religion" (loc. cit. ). Three points in these statements need to be emphasized. First, religious freedom is not presented simply as the lesser of two evils, to be tolerated for the sake of avoiding a greater evil. The popes speak of it as a strict right, whose violation is an injustice. Second, the right is not claimed simply for Catholics, nor based upon the objective truth of a person's belief; it is seen as a human right, tied to conscience and the (subjective) sincerity of faith. Third, the individual's religious freedom is not restricted to interior belief; it extends to public profession.

Drafts of the Declaration on Religious Freedom. These two papal statements were greatly encouraging to those fathers of the Council who hoped for a declaration of the right to religious freedom. A draft for such a declaration was prepared by the Secretariate for Promoting Christian Unity. It was introduced in a relatio presented by Bp. Emile De Smedt of Bruges, Belgium. The claim for the right was based on the principle that a man can attain his ultimate end only by faithfully following the dictates of conscience: "The man who obeys his conscience obeys God himself." The draft was debated in the second session of the Council, but no vote was taken; in the months that followed a great number of animadversiones were received from the fathers and incorporated into a second draft. It was found that the majority of the fathers agreed with the substance of its principal thesis; but there were many amendments sought in expression, argument, and structure.

The minority opposed to the central thesis, which in the event turned out to be small numerically, argued along four main lines: (1) The draft seemed to favor religious and doctrinal indifferentism. (2) It ran counter to traditional Catholic doctrine, especially as taught by the 19th-century popes. (3) It ignored the axiom that error has no rights; only cynicism could extend the same rights indifferently to truth and error. (4) The proposed argument made a logically illegitimate move from the subjective order of conscience to the objective order of right. The Secretariate proposed answers to the first three questions along the lines already indicated. The fourth objection it answered by showing that, in the draft, the starting point was the human person in the objective factual state of contemporary society.

The amended draft was debated at the third session, rewritten once more, and finally adopted by the fourth. It was solemnly proclaimed at the close of the Council under the title Declaratio de Libertate Religiosa. The subtitle is noteworthy: On the right of the person and of communities to social and civil freedom in religious matters. The central thesis is stated as follows: "It is an injustice done to the human person, and to the order laid down for men by God, if a man is denied the free exercise of religion in society: saving a just public order."

After an introduction, which summarizes the reasons for interest in the problem and its principal elements, the Declaration falls into two parts.

A General Account of Religious Freedom. Three levels are distinguished: the human person, religious communities, and the family.

The human person, in matters concerning religion, has a strict right to freedom, i.e., to immunity from force, be it from individuals, from social groups, or from any human power. The right should be recognized in the legal structure of society, and established as a strict right at law.

Two sorts of reason are given. First, every man, being endowed with reason, free-will, and social responsibility, has an obligation to seek the truth, and embrace it when found: especially in religious matters. But he must do this in ways that fit his rational and social nature: by free inquiry, by learning from and engaging in discussions in which one man helps another find the truth that he believes himself to have found. God's commands are mediated to man by conscience; if he is to make his way to God, he must faithfully follow conscience in all his activity. The right to religious freedom is therefore based, not in a person's subjective attitudes, but in human nature itself.

This right demands that a person be not forced to act against his conscience, nor prevented from following it. For the exercise of religion consists above all in free interior acts, which no human power can command or prevent. But further, the social nature of man requires that these interior acts be given external and corporate expression. To deny a person the freedom of such expression would therefore be an injustice.

Second, religious acts transcend the earthly and temporal order. Since, therefore, the civil authority is charged with serving the common temporal good, it would be exceeding its competence if it presumed to direct or restrain such acts.

Religious communities, the Declaration continues, must be credited with the same right to immunity from force as is the person, for such communities are required both by the social nature of man and the nature of religion itself.

The freedom to which they are entitled, given that they respect the just demands of public order, involves a number of constitutive rights: the right to perform public worship, and to prepare their members for religious life and belief by suitable instruction and encouragement; the right to freedom from interference by the civil body in choosing, educating, appointing, and transferring their ministers, in communicating with their authorities and other religious communities in other parts of the world, and in erecting buildings and administering their affairs; the right to bear public witness to their beliefs by the spoken and written word, given respect for the rights of others; the right to show the special contribution their doctrines can make to social order and the enrichment of human life; and the right to hold assemblies and form associations of an educational, cultural, and charitable nature.

The family has the right to order its own religious life, under the direction of the parents; and parents have the right to decide the way that their children are to be educated in their own religious tradition. The civil authorities must therefore recognize the right of parents to decide what sort of schools their children shall attend, without any penalties being imposed, whether directly or indirectly. The rights of parents are violated if their children are forced to attend schools that are not in harmony with their own beliefs, or where the only education given excludes any religious formation.

The Declaration then specifically considers the implications of these rights for civil law. Since it is the special business of the law to preserve and foster human rights and duties, it must ensure the religious freedom of all citizens, and thus the conditions that foster religious life. In some circumstances, the state may give special recognition to a particular religious community; but in such cases, it must recognize and protect the religious freedom of all other citizens and communities. In all circumstances, the civil authorities must make sure that the equality of all citizens before the laws is never, whether overtly or covertly, violated for religious reasons. It is very wrong, then, if the civil authorities, through force or fear, ever impose or prevent the free profession or change of religion; and this is worst of all when force is used to eradicate or stifle religion altogether.

Finally, the Declaration insists on one's duty to exercise religious freedom with personal and social moral responsibility. One must consider the rights of other people, and treat them with justice and humanity. It is for the civil authorities to protect its citizens from abuses of religious freedom, though invoking restrictions, of course, only when necessary.

Religious Freedom in the Light of Revelation. It is possible only to summarize the heads of doctrine in this very rich statement.

Since the act of faith is by its nature a free act, it is only voluntarily that a man can accept God's revelation. A condition of religious freedom, therefore, conduces to a situation in which one can best accept God's invitation to the Christian faith.

Although possessed of all the power of the Godhead, Our Lord forced no one to believe; gentle and humble of heart, He worked miracles to win men to belief, but rebuked the Apostles for suggesting prodigies that smacked of violence, and said that punishment for unbelief should be left to the Day of Judgment; it was not by force but by being lifted up on the cross that He drew men most powerfully to Himself. After Pentecost, the Apostles followed Our Lord's example. In proclaiming the right of the human person to religious freedom, the Church has therefore followed the spirit and mind of the gospel; and though there have been actions in the history of the people of God that lapsed from the spirit, the Church has always taught that no man may be forced to embrace the faith.

The Catholic Church claims freedom for herself under two descriptions: as a spiritual authority founded by Christ and charged to preach the gospel to every creature; and as a society of human beings entitled to live in civil society according to the commandments of the Christian faith.

The faithful are reminded that an element in the formation of their consciences must always be the teaching of the Church. They are urged to pray constantly for all men and to do everything they can to bring them to the truth of Christ by word, witness, and example, but always in the spirit of Christ's gentleness and love, full of respect for the dignity of the free human person.

Finally, the Council welcomes the religious freedom upheld in many contemporary legal systems, but deplores its infringement in many other countries. It is God's will that the human family should respect the right to religious freedom in human society and so, through the grace of Christ and the power of His Spirit, enter into the far more exalted freedom "wherewith Christ has made us free."

See Also: church and state.

Bibliography: f. l cross, The Oxford Dictionary of the Christian Church (London, 1957). j. c. murray, The Problem of Religious Freedom (pa. Westminster, Md. 1965), a basic survey of the recent theological development. Surveys with bibliographical aids. a. f. carrillo de albornoz, Roman Catholicism and Religious Liberty (Geneva 1959); The Basis of Religious Liberty (New York 1963). j. n. moody, "Church and State," Catholic Encyclopedia, suppl.2. Studies representative of the development. e. d'arcy, Conscience and Its Right to Freedom (New York 1962). a. hartmann, Toleranz und christlicher Glaube (Frankfurt 1955). j. lecler, L'Église et la souveraineté de l'état (Paris 1946); "Toleration and the Reformation," tr. fratres salvete Acta Apostolicae Sedis 55 (1963) 85556. t. l. westow, 2 v. (New York 1960); "La Papauté moderne et la liberté de conscience," Études 249 (1946) 289309. j. leclercq, Jean de Paris et l'ecclésiologie du XIII e siécle (Paris 1942). g. lamb, Tolerance and the Catholic: A Symposium, tr. (New York 1955). dom o. lottin, Psychologie et Morale aux XII e et XIII e siècles (Louvain 194249) 2:354406. j. c. murray, "St. Robert Bellarmine on the Indirect Power," Theological Studies 9 (1948) 491535; "Governmental Repression of Heresy," Catholic Theological Society of America, Proceedings 3 (1948) 26101. a. ottaviani, f. j. connell, j. c. fenton, and g.w. shea in American Ecclesiastial Review 123128 (195053), passim., articles, including defenses of the "thesis-hypothesis" position. j. a. ryan and f. j. boland, Catholic Principles of Politics (New York 1947) 318. a. vermeersch, Tolerance, tr. w. h. page (New York 1913). a. dulles, "John Paul II on Religious Freedom," The Thomist 65 (2001) 161178.

[e. d'arcy]

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Freedom of Religion

Freedom of Religion

Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal

Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C.A. § 2000bb et seq., to reverse a 1990 Supreme Court ruling. The RFRA states that the federal government may not substantially burden a person's exercise of religion "even if the burden results from a rule of general applicability." The act grants an exception if the government can prove the burden is justified by a compelling government interest and is the least restrictive means of furthering the compelling interest. The Supreme Court, in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, ___ U.S.___, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006), ruled that the federal government had failed to show a compelling interest in forbidding a small American branch of a Brazilian Christian Spiritist sect from using a sacramental tea that contained an illegal hallucinogen. In so ruling, the Court made clear that the mere invocation of the Controlled Substances Act, 21 U.S.C.A. § 801 et seq., was not sufficient to prove a compelling government interest under the RFRA.

The O Centro Espirita Beneficente Uniao Do Vegetal (UDV) has approximately 130 members in the United States. Members receive communion through a sacramental tea called "hoasca," which is made from two plants found only in the Amazon region. One of the plants contains the hallucinogen dimethyltryptamine (DMT). When mixed with the other plant the hallucinogenic effect of the DMT is enhanced. Under the Controlled Substances Act DMT is a Schedule I substance that is illegal to possess and use. In 1999 U.S. Customs Service inspectors intercepted a shipment of hoasca and tracked down additional supplies at the home of a UDV member in Santa Fe, Mexico. Although no arrests were made, the church filed a federal lawsuit seeking an injunction that would permit the continued importation and sacramental use of the tea. The church alleged that applying the Controlled Substances Act to its religious use of tea violated the RFRA. At a hearing on the preliminary injunction the federal government admitted using the Controlled Substances would substantially burden the expression of the UDV faith. However, the government argued that this was permissible under the exception to the RFRA: the government had a compelling interest to protect the health and safety of UDV members, to keep the tea out of the hands of non-UDV members, and to comply with the 1971 United Nations Convention on Psychotropic Substances, a treaty the U.S. signed in 1971.

The district court heard evidence on the safety and health risks of hoasca consumption from both sides and on the possible market for hoasca by persons who were not members of the church. The court concluded that the evidence on health risks and the diversion of the tea was "virtually balanced." In the face of this even showing the court concluded that the government had failed to prove that it had a compelling interest to place a substantial burden on the UDV's religious exercise. The granted the UDV a preliminary injunction that allowed the church to import the tea subject to federal permits and to limit access to church members. The Tenth Circuit Court of Appeals upheld the preliminary injunction.

The Supreme Court, in an 8-0 decision (newly confirmed Justice Samuel Alito did not participate in the consideration of the case), upheld the lower court decisions. Chief Justice John Roberts, writing for the Court, noted that the government did not challenge the district court's finding that the evidence was evenly balanced. Instead, the government argued that the evenly-balanced evidence was insufficient to justify a preliminary injunction against the enforcement of the Controlled Substances Act. Roberts disagreed, finding that the RFRA placed the burden on the government to show a compelling interest once the UDV established that it would be substantially burdened by the government's proposed action. The burden remained on the government whether at the preliminary injunction stage or at trial.

The government also contended that the description of Schedule I substances as a class in the Controlled Substances Act demonstrated that there could not be individualized exceptions like the one sought by the UDV. The prohibition on these substances was part of a comprehensive system that could not be sustained if courts handed out exemptions. The public would misread an exemption as meaning the substances was not harmful. Thus, the continued effectiveness of the Controlled Substances Act by itself justified the government's prohibition on the sacramental tea. Roberts rejected this line of argument, relying on the language of the RFRA that mandates that the compelling interest test must be satisfied through application of the challenged law :to the person." This meant that the "mere invocation of the general characteristics of Schedule I substances, as set forth in the Controlled Substances Act, cannot carry the day." Moreover, an exception had been made to the Schedule I ban for religious use, allowing the use of peyote by the Native American Church. This exemption, which goes back to the early 1970s, was extended in 1994 by Congress to all members of recognized Indian Tribes. Roberts stated that every risk and concern cited by the government against hoasca also applied to peyote, yet a religious exception had been made for peyote. It made no sense to worry about an exception for 130 hoasca users when "hundreds of thousands of Native Americans practicing their faith" had used peyote for many years.

Chief Justice Roberts rebuffed a third government argument that was based on "slippery-slope concerns" about opening the door for more religiously-based exceptions. He was unsympathetic, calling it the "classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions." The RFRA required that exceptions be considered when a law substantially burdens a person's practice of religion.

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Freedom of Religion

FREEDOM OF RELIGION

First Circuit Upholds Teaching About Same-Sex Families

In January 2008, the First Circuit Court of Appeals upheld the dismissal of a lawsuit filed by parents protesting the elementary school teaching to their young children of gay lifestyles and same-sex marriages. In Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008), the appellate court found that the parents' right to exercise their religious beliefs under the Free Exercise Clause of the FIRST AMENDMENTto the U.S. Constitution was not violated when their children were exposed to contrary ideas in school.

In April 2006, Tonia and David Parker filed suit against elementary school officials in Lexington, Massachusetts, after their son brought home a book from his kindergarten class that depicted a same-sex family. Two other parents, the Wirthlins, joined the suit after a second-grade teacher read a story to the class about two princes falling in love.

The parents asserted violations of their own as well as their children's rights under the First Amendment. They further asserted violations of their substantive parental and due process rights, protections of which were binding upon states under the Fourteenth Amendment. The parents specifically alleged that they should have been given prior notice by the elementary public school, which would have given them the opportunity to exempt their young children from exposure to books that they found religiously repugnant. In support of this claim, the parents cited Mass. Gen. Laws ch. 71, 32A, a state law that required parents to be given notice and the opportunity to exempt their children from curriculum which primarily involved human sexual education or human sexuality issues. The parents did not object to the use of these materials as part of a non-discrimination curriculum in the public schools, but rather, challenged the school district's failure to provide them with prior notice. They requested future relief until their children reached seventh grade.

The school declined to apply the statutory exemption to these parents because it asserted that the materials to which the children were exposed did not primarily involve human sexual education or human sexuality issues.

In February 2007, the federal district court dismissed the case for failure to state a federal constitutional claim. The parents appealed to the First Circuit Court of Appeals.

But the appellate court affirmed the lower court's dismissal. It found that a child's exposure to alternative or gay lifestyles did not constitute “indoctrination” or “discussion of human sexuality” as the parents claimed, thus invoking the Massachusetts ‘prior notice’ statute . Rather, the court opined, the activities complained of merely exposed the children to an age-appropriate acknowledgement of the existence of same-sex families in a state where gay marriage was legal. “Public schools are not obliged to shield individual students from ideas which potentially are religiously offensive, particularly when the school imposes no requirement that the student agree with or affirm those ideas, or even participate in discussions about them,” the court held.

The appellate court noted that it found no federal case under the Due Process Clause which permitted parents to demand an exemption for their children from exposure to certain books in public schools. The court characterized the due process right of parental autonomy as a subset of a broader substantive right of familial privacy. But the appellate court noted that other cases establishing such privacy rights under the Due Process Clause were more fundamental in nature, such as the right to marry or the right to procreate. “In sum,” said the court, “the substantive due process clause by itself, either in its parental control or its privacy focus, does not give plaintiffs the degree of control over their children's education that their requested relief seeks.”

The court then turned to whether a combination of substantive due process and First Amendment free exercise interests could give rise to a cause of action . But again, looking to the facts, the court found that there was insufficient conduct on the part of the school to establish a claim of indoctrination (the court made note that the children were not forced to read books on pain of suspension). Nor were the children subjected to a constant stream of similar material. There was no allegation of a formalized curriculum requiring students to read books affirming gay marriage.

In summary, the court found that the facts alleged in the complaint did not rise to the level of “claims of constitutional magnitude.” Therefore, the district court did not err in dismissing the claims under the U.S. Constitution. The appellate court acknowledged that the school's choice of books for young students offended the plaintiffs. But, noted the court, the plaintiffs could seek recourse through the political process at the local level. Their objections to the educational materials did not mean they were entitled to a federal remedy under the Constitution.

Connecticut Supreme Court Upholds Denial of Buddhist Temple

The Connecticut Supreme Court on February 12, 2008 upheld a denial of a permit by a town zoning and planning commission to deny a Cambodian Buddhist society the right to construct a 7,600-square-foot temple in the town.

In so ruling, the court rejected arguments that the zoning commission had violated state and federal law in denying the application. The Buddhist society claimed that the denial was the result of racial bigotry, due in large part to the Asian design of the proposed temple.

In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc et seq. This statute provides, in part, as follows:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.

The statute also prohibits implementation of a land use regulation in a manner that “treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” Moreover, the statute proscribes a city from imposing a land use regulation that “(A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.” 28 U.S.C. § 2000cc.

The State of Connecticut also enacted a statute that prohibits discrimination on the basis of religion. Under section 52-571b of the Connecticut General Statutes states that neither the state government nor a political subdivision of the state may “burden a person's exercise of religion” under the state Constitution. Exceptions under the state statute are similar to those under the RLUIPA in that the state may burden a person's exercise of religion only if the state demonstrates that the burden furthers a compelling governmental interest and that the burden is the least restrictive means of furthering that interest.

In 1999, a Cambodian Buddhist society purchased a ten-acre lot in Newtown, Connecticut. The property is located in a farming and residential zone where the operation of a place of religious worship is allowed under a special exception. In August 2002, the society applied for a special exception that would allow it to build a 6,000-square-foot meditation temple and meeting hall on the property. The proposal also called for off-street parting for about 100 vehicles. The society later revised the application to indicate that the building would be 7,618 square feet, featuring both a mediation temple and a meeting hall. The plans also called for 148 parking spaces to accommodate the society's 450 members who would meet at the temple on an annual basis.

Newtown's zoning commission constructed public hearings on the application in October and December 2002. At a special meeting on February 20, 2003, the commission voted to reject the society's application. The reasoning for the rejection was that the application did not comply with standards set forth in the city's zoning regulation. The commission concluded that the temple was inconsistent with the “quiet single-family residential neighborhood with a rural setting” and was thus out of harmony with the general character of the neighborhood.

The commission also stated several other reasons for its denial. The commission discovered evidence that the U.S. Department of Commerce had awarded a grant for a health care facility that was reportedly located on the society's property. Unconvinced the society's representations that the property would not be used for health care purposes, the commission concluded that the proposal did not satisfy the city's regulations. Moreover, the commission expressed concern about the increase in traffic volume in the neighborhood as well as whether the septic system and water supply system proposed in the temple's plans would comply with the state's public health code.

The society, along with society president Pong Me, appealed the commission's decision to a Connecticut superior court. Among the society's arguments were that the commission's decision violated both the RLUIPA and section 52-571b of the Connecticut statutes. Several owners of property either adjacent to or near the society's property intervened as defendants in the case. The trial court concluded that the commission's denial of the society's application did not substantially burden the society's exercise of religion under either the federal or the state law. However, the court agreed with the society on issues of whether the society's proposed use comported with the city's zoning regulations. Nevertheless, the trial court determined that it was within the commission's discretion to deny the society's application.

The society appealed the decision to the Connecticut Supreme Court. Among its arguments before court, the society claimed that the trial court had erred in concluding that the commission had violated the society's rights under RLUIPA or section 52-571b. Judge Richard N. Palmer, writing for a unanimous court, rejected the society's arguments. The court concluded that the commission had “substantial evidence” on which to deny the application. According to the court, RLUIPA “does not apply to neutral and generally applicable land use regulations that are intended to protect the public health and safety, such as those at issue in the present case.” Cambodian Buddhist Society of Conn., Inc. v. Planning & Zoning Comm'n of the Town of New-town, 941 A.2d 868 (Conn. 2008).

Commentators noted that the decision was consistent with others nationwide holding that the federal law has limited application in cases where there is no evidence of religious discrimination. Spokespeople for the Buddhist society said they were “extremely disappointed” in the decision, noting that the society needed the temple to prevent its religion and culture from declining or dying off.

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Freedom of Religion

Freedom of Religion

As their colonial experiment began in 1607, the English monarchy was striving for a modicum of uniformity in religious expression and practice. Instead, the nation was torn by theological conflict until the final decade of the century. In 1689, after almost two hundred years of bitter religious rivalry and persecution, the English Parliament passed the Act of Toleration, which retained the Church of England as the established religion and granted toleration to a wide range of Protestants.

In the seventeenth century, American colonial religious sects spread out along the coast like the refraction from a prism. In England there was one political system, over which warring factions fought to establish a version of Protestantism. In America each faction found room for its own form of establishment, colony by colony.

Each of the thirteen colonies reflected a portion of that spectrum without any politically effective community of dissent. Each colony established its own brand of Protestantism, wherein minorities were frequently persecuted. The Anglican Church in Virginia and Puritanism in Massachusetts reigned supreme until the middle of the eighteenth century. Rhode Island, under the leadership of Roger Williams, was a notable exception, with no establishment for several decades.

By 1775 English America sported thirteen distinct governing bodies, under control of Parliament, and each with a discrete religious establishment. Some were severely restrictive; others, more lenient. That picture changed for some states at the birth of the new nation, signaled by the adoption of various declarations of rights. Other states—Massachusetts and Connecticut, for example—continued a church establishment well into the nineteenth century. This was confirmed in a letter to President Jefferson in 1801 by several Baptist leaders in Danbury, Connecticut: "[T]herefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights. . . ."

The 1789 Constitution was silent on religion save for prohibiting religious tests for holding public office. Adoption of the First Amendment religion clauses created no consensus on the issues of religious freedom and establishment at the state level. Leaders in Connecticut and Massachusetts saw those clauses as a protection against federal interference with state religious establishments. In contrast, Virginian James Madison championed a federal mandate securing religious freedom and nonestablishment in state law. That sharp ideological division explains why the Senate refused to extend the First Amendment's guarantees to state laws, rejecting Madison's sound insight that it was in the states and local communities where religious freedom was most at risk. Not until after the ratification and incorporation of the Fourteenth Amendment did Madison's view finally prevail.

Throughout the nineteenth century and the first half of the twentieth, even though most states had adopted strong declarations on the rights of conscience, a de facto Protestant establishment most frequently ignored or reinterpreted its own constitutions to allow for political control by Protestants. After 1850 that hegemony slowly eroded in the face of the immigration of Roman Catholics and, by the close of the century, the growing American Jewish population. Nevertheless, state practices, particularly respecting emerging public schools, were consistently tilted toward the Protestants in most jurisdictions. It was not until 1928, with the nomination by the Democrats of Al Smith to run for president, that the nation as a whole had to confront the full implications of that nineteenth-century de facto establishment. Smith's defeat, while frequently attributed to his Roman Catholic faith, was the result of numerous other factors as well. But it put the nation on notice that the religious issue would not go away.

In the early 1940s the U.S. Supreme Court focused on several state actions that, guided by the Fourteenth Amendment, it determined were in violation of the religion clauses. Those early decisions focused on "free exercise"; however, in 1948, in its McCollum decision, the Court declared unconstitutional the teaching of religion by sectarian denominations in the public schools. The nation awakened to the fact that long-established religious practices in a vast number of public schools were at risk. In that same postwar era a new wave of national religious fervor emerged, fueled by television evangelist Billy Graham and by Bishop Fulton J. Sheen. They found support in the public piety of presidents Truman and Eisenhower. In the fifties the McCollum decision was modified as the entire issue was overshadowed in the public mind by Brown v. Board of Education and the civil rights movement of that decade.

In 1960 the nation turned a corner with the election of Roman Catholic John F. Kennedy. The new president was more staunchly committed to a clearly defined church/state separation than his two predecessors had been. The year after Kennedy took office, the Supreme Court issued its 1962 decision Engel v. Vitale, forbidding public-school-sanctioned prayers. A year later, in Abington v. Schempp, the Court extended Engel to cover Bible reading in public schools. President Kennedy was the voice of reason when he spoke to the public following Engel: "We have in this case a very easy remedy, and that is to pray ourselves." But reason was hardly the order of the day in Congress. Following the 1962 Court decision an angry House of Representatives voted unanimously to replace some of the stars on the wall above the Speaker's desk with "In God We Trust." A Missouri Democratic congressman opined that one of the ". . . by-products of our act today is that we have given perhaps not too directly, but in not too subtle a way, our answer to the recent decision of the U.S. Supreme Court. . . ."

As Congress responded with proposals to amend the Constitution to overturn the Court decisions, the weight of the National Council of Churches, several Roman Catholic clerics, and the Conservative and Reform Jewish communities was on the side of the justices. The term "Religious Right" had not yet emerged. The "mainline" churches and synagogues were instrumental in blunting attacks on the Court. There were, to be sure, sharp critiques of the "Warren Court" on church/state issues by conservative religious leaders, but all efforts to derail, by constitutional amendments, the impact of the religion clauses consistently foundered throughout the rest of the sixties and the seventies. In 1971 the Court created three criteria by which to judge whether the establishment clause had been breached. The "Lemon test" asserted that any statute must have a secular legislative purpose, it must not advance or inhibit religion, and it must not foster excessive government entanglement with religion. In the following years there were several Court decisions that denied public funding for religious institutions.

But there was a storm brewing. The seventies were the decade when television became a player in a drama that altered the church/state debate. Religious fundamentalists had begun, in the late sixties, to use the medium for preaching and fund-raising. Jerry Falwell was one of the earliest television preachers. Adhering to a position espoused by his fundamentalist forebears, he eschewed political action altogether. Enter the Supreme Court once more.

In 1973 the Court handed down its decision in Roe v. Wade, overturning state antiabortion laws. It was predictable that the Roman Catholic leadership would find the justices to be in serious error. What was not anticipated was Falwell's response. He immediately found himself in a quandary. Should he become a politically active preacher in light of what he saw as an outrageous attack on ethics and values? The answer was unmistakably affirmative. More than anything else, that single decision by the Lynchburg Baptist preacher was to energize a large block of several million Americans, devoted to Christian fundamentalism, into becoming politically involved. Some six years later the Moral Majority began to take shape; it entered the national political fray in 1980.

With the election of Ronald Reagan that year a new political force moved onto the public stage just at a time when the mainline Protestants were seemingly suffering from an identity crisis. That force came to be called the "Religious Right," and it aided Reagan in his defeat of President Carter. From the beginning the Moral Majority, conceived by Paul Weyrich and Howard Phillips and headed by Falwell, urged amending the Constitution to allow public-school-sponsored prayer and demanded the overturning of the Roe v. Wade decision. Reagan's Supreme Court appointees included justices less impressed with the Jefferson/Madison model on church and state. Indeed, for the first time a "litmus test" for court appointees was created, focused on the two issues—prayer in schools and abortion.

Throughout the eighties powerful pressure from the leaders of the Religious Right was exerted on those two fronts, and in 1992 it seemed to be bearing fruit. Two Supreme Court cases appeared ideal as a means of keeping the promises by the Reagan-Bush administration. President Bush, to that end, instructed the Justice Department to contest the two cases: Planned Parenthood v. Casey (abortion) and Lee v. Weisman (school-sponsored graduation prayer). The Religious Right had reason to expect victory on two fronts. But in two 5–4 decisions in June 1992, the Court upheld Roe v. Wade and declared unconstitutional public-school-sponsored graduation prayers.

The surprising election of Bill Clinton in 1992 created a dilemma in the minds of many of the religiously motivated supporters of Reagan and Bush. In his first term President Clinton appointed two judicial moderates to the Court, Ruth Bader Ginsburg and Stephen Breyer. Further, Clinton lent the power of his office in opposing a constitutional prayer amendment offered by Representative Ernest Istook, who had the full support of House Speaker Newt Gingrich. In 1998 Istook's efforts resulted in a vote far short of the required two-thirds majority, and Madison's legacy seemed, for the moment, somewhat more secure.

The state of Religious Right political action in 1999 was less clear. In the spring, even as vouchers for religious schools was becoming a hot political and judicial topic, there was a strong signal that some leaders of the Religious Right, having almost nothing tangible to show for twenty years of intense political activity on behalf of their moral agenda, were thinking of returning to a pre-1980 approach in which political action would take second place to the moral and spiritual growth of communities of faith. Leaders such as Paul Weyrich, William Bennett, and Robert Bork were making sounds in that direction. The move was, it appeared, based on an evident failure to convince enough politicians that a political party platform should include a moral agenda predicated on a particular religious perspective. As the century closed, the founders' secular republic had weathered, once again, efforts to install a colonial model that would provide governmental preference for religious institutions.


See alsoAbortion; Churchand State; Falwell, Jerry; Fundamentalist Christianity; Moral Majority; Prayerin School; Religious Persecution; Religious Right.

Bibliography

Alley, Robert S. School Prayer: TheCourt,theCongress,and the First Amendment. 1993.

Swomley, John M. Religious LibertyandtheSecularState. 1987.

Robert S. Alley

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