What is Religious Freedom?
By Richard Garnett
Religious freedom plays a significant role in the American imagination. When asked what it means to be an American, many Americans will refer to freedom and equality, which speaks to our intuitive sense of the equal dignity of all people. But how we think of religious freedom can differ from one person to the next. The ideal of religious freedom may be summarized as “separation of church and state” and “the right to follow my conscience.” Many Americans will often think primarily in terms of human rights. Religion – belief and practice, ritual and worship, and perhaps expression and profession – is considered an object of human rights laws, that is, as something that the laws protect. The leading human rights instruments confirm this entirely reasonable, if not quite complete, way of thinking. For example: “Everyone has the right to freedom of thought, conscience, and religion,” the Universal Declaration of Human Rights (1948) proclaims, and political communities should “strive ... to promote respect for [this right]” and “to secure [its] universal and effective recognition and observance.” Similarly, the European Convention on Human Rights (1950) declares that its signatories resolve to “secure [this right] to everyone within their jurisdiction.” The Constitution of the United States frames the issue in terms of constraints on government. The government may not prevent the free exercise of religion, nor may it establish a religion. In other words, religious liberty is often framed negatively, as “freedom from,” rather than as something more aspirational, as “freedom for.”
But what, exactly, is this religious liberty that needs safeguarding? Despite general agreement that religious liberty is protected by the Constitution, the extent of those protections, and what constitutes true religious liberty at its core, is disputed. While it is widely acknowledged that religious liberty includes the protection of the right to hold one’s own religious beliefs, this is only a partial picture of true religious liberty. True religious liberty also encompasses the religious individual’s ability to profess those beliefs in the public forum, and, crucially, extends beyond the individual to ensure the independence of religious institutions.
Three Views of Religious Liberty
There are at least three different views about religious liberty in the United States. The first approach – “freedom from religion” – emphasizes the right of individuals to be free from coercion in matters of religion. The right to be free from coercion and to have the space to freely respond to religious truth claims is important. However, too often, “freedom from religion” is a view that sees religion as having no place in public life. It accepts religion as a social reality, but regards it primarily as a danger to the common good, and regards it as a practice that should be confined to the private, personal realm. On this view, it is “bad taste” – or worse! – “to bring religion into discussions of public policy.” Under this model, as Prof. Stephen Carter memorably put it, religion is “like building model airplanes, just another hobby: something quiet, something trivial–not really a fit activity for intelligent . . . adults.”[1] Consistent with this approach, religious belief is protected, but the permissible implications and expressions of those beliefs are limited. Under this approach, the dominant concerns are the domestication of religion and its assimilation to the often-relativistic ideology of the state. The role of law and government is to maintain the boundary between private religion and public life; it is certainly not to support, and only rarely to accommodate, religious practice and formation.
The second approach – “freedom of religion” – tends to emphasize toleration, neutrality, and equal-treatment. Religion, on this view, is something that matters to many people, and so the law does not permit it to be singled out for special hostility or discrimination. It is recognized and accepted that religious believers and institutions are at work in society, and the stance of the law is even-handedness. Because we are all entitled to express our views, and to try to live in accord with our consciences, religious believers are so entitled, too. The law, it is thought, should be “religion-blind.”
Although this model is not hostile to religion, it is also reluctant to regard religion as something special. Religious liberty is just “liberty,” and liberty is something to which we all have an “equal” right. Religion is not something to be “singled out” for accommodations and privileges, or for burdens and disadvantages. Again, religious commitment, expression, and motivation are all, in the end, matters of taste, and private preference.
Finally, the third model: “freedom for religion.” This model represents the American experiment in “healthy secularism” at its best.[2] In this model, the search for religious truth is acknowledged as an important human activity. Religion is special, its exercise is seen as valuable and good, and worthy of accommodation, even support. The idea is not, to be clear, that the public authority should demand religious observances or establish religious orthodoxy; it is, instead, that a political community committed to positive secularity can and should still take note of the fact that people long for the transcendent and are, by nature, called to search for the truth, and for God. The appropriately secular and limited state will not prescribe the path this search should take, but it will take steps – positive steps – to make sure that “freedom for” religion, and the conditions necessary for the exercise of religious freedom, are nurtured. The government, under this approach, will not only refrain from discriminating against religion, it will take special care to accommodate and facilitate it – though always in a way that respects the distinction between “church” and “state” and the liberty of individual conscience. It not only avoids imposing unnecessary burdens on religion, it also looks for ways to lift such burdens where they exist.
Church Teaching
On December 7, 1965, the Second Vatican Council approved Dignitatis humanae, the Declaration on Religious Liberty. The Declaration addresses a question that comes up in every generation: how do we understand freedom, truth, and the relationship between church and state? The Council teaches: “Religious freedom…which men demand as necessary to fulfill their duty to worship God, has to do with immunity from coercion in civil society” (Dignitatis humanae, 1). Thus, the Declaration provides a starting point for a definition of religious freedom: immunity from coercion. Neither the state and its agents, nor other institutions, can coerce people to violate their religious convictions.
The right to be free from coercion limits the power of the state, but this right corresponds to a duty. This “freedom from” must be paired with a “freedom for,” a positive orientation to seeking and acting in accordance with the truth. The Church teaches:
It is in accordance with their dignity as persons-that is, beings endowed with reason and free will and therefore privileged to bear personal responsibility-that all men should be at once impelled by nature and also bound by a moral obligation to seek the truth, especially religious truth (Dignitatis humanae, 2).
People have both a right and a duty to seek religious truth. Freedom from coercion allows the space for the pursuit of religious truth. Yet, religious freedom not only requires that a society refrain from preventing people from living out their religion. It also means that government and civil society foster the conditions for religious expression to flourish: “Government therefore ought indeed to take account of the religious life of the citizenry and show it favor, since the function of government is to make provision for the common welfare” (Dignitatis humanae, 3). A free society, then, is one where people actively seek religious truth and fully live out that truth in public and private.
Human beings are social creatures. As the Church teaches, “[religious] freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits” (Dignitatis humanae, 2). Religious freedom means that not only individuals but also families, communities, and institutions enjoy the space to live out religious convictions. Parents have a fundamental right to teach their children their faith.[3] Companies that seek to contribute to the common good by their responsible business practices should be encouraged. Religious freedom belongs to groups as well as individuals.
This social dimension of religious freedom entails that religious freedom includes the freedom to practice our faith in public. In contemporary American culture, some tend to think that religious liberty means only that individuals can worship without interference from the government. The Church sees this understanding is inadequate. Religious schools, hospitals, and charities should be able to operate in accordance with their faith. Indeed, the work of these organizations is part and parcel of their faith. They are expressions of religious mission, and religions must have the space to live out their missions. As Pope Francis said in Cuba, the Church must have “the freedom and all the means needed to bring the proclamation of the Kingdom to the existential peripheries of society.”[4] Thus, of particular importance to this freedom for religion model is the extension of protection and support not only to religious individuals but also to religious institutions.
Broadly speaking, then, the Church teaches freedom for religion. Religious freedom entails immunity from coercion, and this freedom must be respected so that persons can seek the truth and order their public and private lives to that truth. This freedom belongs to individuals and institutions. Religious liberty cannot exist in its healthiest form without the ability of religious institutions to exercise meaningful autonomy.[5] Finally, religious freedom, as the Church understands it, means that government and civil society, not only respect religion, but even foster conditions in which the religious life of the political community can flourish. Religion is a human good, and religious freedom is fundamental to the common good.
[1] Stephen L. Carter, The culture of disbelief: How American law and politics trivialize religious devotion (Anchor publishing, 1994), p. 22.
[2] See Pope Benedict XVI, “Address to the Participants in the 56th National Study Congress Organized by the Union of the Italian Catholic Jurists,” (Libreria Editrice Vaticana, 2006): “‘[H]ealthy secularism’ implies that the State does not consider religion merely as an individual sentiment that may be confined to the private sphere alone. On the contrary, since religion is also organized in visible structures, as is the case with the Church, it should be recognized as a form of public community presence. This also implies that every religious denomination (provided it is neither in opposition to the moral order nor a threat to public order) be guaranteed the free exercise of the activities of worship - spiritual, cultural, educational and charitable - of the believing community.”
In a similar vein, Pope Francis speaks of a “healthy pluralism”: “A healthy pluralism, one which genuinely respects differences and values them as such, does not entail privatizing religions in an attempt to reduce them to the quiet obscurity of the individual’s conscience or to relegate them to the enclosed precincts of churches, synagogues or mosques. This would represent, in effect, a new form of discrimination and authoritarianism. The respect due to the agnostic or non-believing minority should not be arbitrarily imposed in a way that silences the convictions of the believing majority or ignores the wealth of religious traditions” (Evangelii gaudium, 255).
[3] “Parents, moreover, have the right to determine, in accordance with their own religious beliefs, the kind of religious education that their children are to receive. Government, in consequence, must acknowledge the right of parents to make a genuinely free choice of schools and of other means of education, and the use of this freedom of choice is not to be made a reason for imposing unjust burdens on parents, whether directly or indirectly” (Dignitatis humanae, 5).
[4] “Address of His Holiness Pope Francis at ‘José Martí’ International Airport, Havana,” 19 September 2015.
[5] Justice Brennan (following Douglas Laycock) explained such autonomy in a particularly helpful way, observing that religious organizations’ “autonomy in ordering their internal affairs” includes the freedom to “select their own leaders, define their own doctrines, resolve their own disputes, and run their own institution.” See Corp. of Presiding Bishop v. Amos, 483 US 327, 341-42 (Brennan, J. concurring) (quoting Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church-Labor Relations and the Right to Church Autonomy, 81 Columbia L. Rev. 1373, 1389 (1981)).
Richard Garnett is Paul J. Schierl/Fort Howard Corporation Professor of Law, Concurrent Professor of Political Science, and Director or Program on Church, State & Society at the University of Notre Dame.