https://www.rightspedia.org/api.php?action=feedcontributions&feedformat=atom&user=Ksandlund 2026-05-01T23:23:39Z User contributions MediaWiki 1.38.2 https://www.rightspedia.org/index.php?title=Source/Freedom_of_Expression&diff=232 2020-08-10T17:43:03Z

<p>Ksandlund: /* Does public polling reveal insights about the right as experienced in different countries? */</p> <hr /> <div>==History==<br /> ===What is the oldest source in any country that mentions this right?===<br /> <br /> The ancient Greeks within the Athenian Democracy, using the words “parrhesia” and “isegoria” (dating back to the fifth century BCE) were the first to emphasize the freedom to speak candidly and to &quot;say what one pleased&quot; a subset of freedom of the future declaration of freedom of expression (Bejan 2019, 97). The freedom of expression is imperative to democracy as it “refers to the ability of an individual or group of individuals to express their beliefs, thoughts, ideas, and emotions about different issues free from government censorship” (Freedom Forum Institute 2020). From the ancient Greeks, “Parrhesia” specifically describes the freedom to say whatever one pleased, and a similar idea describing freedom of expression, “isegoria,” describes the right of citizens to publicly address and debate against the democratic assembly (Lu 2017, 4). “Isegoria” is derived from the root word “agora” which translates to marketplace, and thus the meaning of this version of freedom of expression addresses that of public speech. This right to “isegoria” was more heavily based in the ideas of equality of all men to have access to the government than for the principles of freedom (Bejan 2017, 99). On the other hand, “parrhesia” held a broader meaning. This idea is more about the right to speak freely or frankly. This word implies a willingness of the speaker to be open, honest, and courageous in dealing with the consequences of the sometimes controversial truth which he spoke while those who listened had to tolerate any offense taken from the speaker. Because of the courage and privilege necessary in truly enjoying “parrhesia,” it describes a form of licensed privilege. After the collapse of the Athenian democracy, however, the fundamental ideas of “parrhesia” are the more common and practiced bases of freedom of expression today in documents such as the American Constitution. “Isegoria” on the other hand took on the form of freedom of speech and debate within the legislative houses of government such as British Parliament and American Congress. <br /> <br /> However, regarding modern history, the first legal document to declare these rights to freedom of expression was the English Bill of Rights in 1689 by William III and Mary II after the Glorious Revolution. This document outlined civil and human rights that were to be enjoyed by all men, and the document gave Parliament power over the monarch, increasing the amount of power given to the people.<br /> <br /> ===What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE===<br /> ====Afghanistan====<br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> National Constitution (1853)<br /> <br /> ====Armenia====<br /> ====Australia====<br /> The Constitution does not explicitly protect freedom of expression, but in 1992 the High Court of Australia ruled in favor of political expression, setting a precedent and implying freedom of expression<br /> <br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> ====Brazil====<br /> Brazil’s seventh Constitution (1988)<br /> <br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> Canadian Charter of Rights and Freedoms (1982)<br /> <br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> The Constitution of the People’s Republic of China (1982)<br /> <br /> ====Colombia====<br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> Declaration of the Rights of Man and of the Citizen (1789)<br /> <br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> Weimar Constitution of 1919<br /> <br /> ====Ghana====<br /> 1992 Constitution of Ghana<br /> <br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> The Constitution of India Bill (1895)<br /> <br /> ====Indonesia====<br /> 1945 Constitution<br /> <br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> ====Israel====<br /> Loosely defined by the Declaration of the Establishment of the State of Israel and rulings by the Israel Supreme Court<br /> <br /> ====Italy====<br /> Constitution of 1948<br /> <br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> 1947 Constitution<br /> <br /> ====Jordan====<br /> ====Kazakhstan====<br /> ====Kenya====<br /> 1963 Constitution<br /> <br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> ====Laos====<br /> ====Latvia====<br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> Mexican Constitutions of 1857 and 1917<br /> <br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> Federal Republic of Nigeria constitution (1958)<br /> <br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> ====Oman====<br /> ====Pakistan====<br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> Constitution of 1993<br /> <br /> ====Philippines====<br /> 1987 Constitution<br /> <br /> ====Poland====<br /> The Little Constitution of 1992<br /> <br /> ====Portugal====<br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> Constitution of Russian Federation (1993)<br /> <br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> National Communications Act of March 2012<br /> <br /> ====South Africa====<br /> South African Bill of Rights of the Constitution (1996)<br /> <br /> ====South Korea====<br /> Constitution of 1948<br /> <br /> ====South Sudan====<br /> ====Spain====<br /> Constitution of 1978<br /> <br /> ====Sri Lanka====<br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> Freedom of the Press Act of 1766<br /> <br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> ====United States====<br /> Declaration of Independence (1776)<br /> <br /> ====Uruguay====<br /> ====Uzbekistan====<br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> <br /> This right is mentioned in several historical noteworthy written sources, some of which include John Locke's extremely influential and fundamental Second Treatise of Government. Along that same vein, noted philosophers have written commentaries on laws, freedoms, and political theory; these include works by Michael Foucault, particularly in his lecture series at Berkeley, Montesquieu in his commentary the Spirit of the Laws, Sir William Blackstone's Commentaries on the Laws of England, and John Stuart Mill's noteworthy work On Liberty. <br /> <br /> Many international treaties, charters, and conventions also work to avidly incorporate the freedom of expression in its foundations. The UN International Covenant on Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights, and the EU Charter of Fundamental Rights.<br /> <br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> The right to free expression is upheld by most countries’ constitutions (World Population Review), though the degree of liberty that comes with entitlements to free expression may differ. Furthermore, a Free Expression Index generated by Pew Research Center demonstrates one method for comparing the strength of free expression internationally (Pew Research Center). In developing the index, Pew surveyed 38 countries on eight questions pertaining to free expression. Pew proceeded to then rank the countries on a scale of zero to eight-eight meaning the country fully supported free expression. From their results, the United States and Canada demonstrated the highest levels of free expression, with scores of 5.73 and 5.08 respectively, while Senegal and Burkina Faso showed the lowest levels of free expression, with scores of 2.06 and 2.94, respectively. Thus, demonstrated by the Pew Research index, while many countries may support free expression within their constitutions, the degree to which free expression is practiced and enforced often varies. <br /> <br /> Consequently, there are still several countries that restrict free expression in their laws. For example, in South Korea, The National Security Law prohibits sharing sympathies towards North Korea (Kolick, Alli; Dehague, Tyler; and Leick, Amber). Additionally, while Afghanistan’s constitution does protect freedom of expression, it does not firmly protect speech when related to “ ‘public spirit’, ‘security’, and ‘public interest’ ” (Ministry of Foreign Affairs - Islamic Republic of Afghanistan). India’s free expression laws likewise are not comprehensive, as the right to free press is not explicitly stated in the Indian Constitution (Kolick, Alli; Dehague, Tyler; and Leick, Ambe). Therefore, while most countries do have some form of free expression within their constitutions, not all free expression clauses clearly outline the rights of citizens; rather, many constitutions explicitly restrict forms of free expression.<br /> <br /> ===Is it contained in the US Constitution?===<br /> <br /> The right to free expression is not stated verbatim in the United States constitution. Though, it is universally accepted to be covered by the First Amendment (American Civil Liberties Union). Furthermore, the First Amendment asserts, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Specifically, the listed rights to free speech, press, assembly, and petition are broadly viewed as Americans’ rights to free expression.<br /> Though, the nature of free expression, as enshrined by the Constitution, has been heavily debated. Some believe that only political speech is protected by the First Amendment (Legal Infornation Institute, Cornell Law School). Others assert that the individual freedoms outlined by the First Amendment should not be grouped together as Americans’ general freedoms to expression. Rather, these individuals argue that the individual freedoms entitled by the First Amendment ought to be addressed as distinct rights (Bogen). Consequently, in 1799, John Hay, in criticizing the Sedition Act, argued that freedom of speech, as entitled by the First Amendment, protects all forms of expression. Specifically, using freedom of the press as an example, Hay asserts that the same degree of freedom is applied to each First Amendment right, stating “To ascertain what the &quot;freedom of the press&quot; is, we have only to ascertain what freedom itself is. For, surely, it will be conceded, that freedom applied to one subject, means the same, as freedom applied to another subject.” Ultimately, Hay’s argument developed the belief in Americans’ general right to free expression, which is still commonly accepted today to be protected by the First Amendment<br /> <br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> <br /> Given that freedom of expression is often used as a blanket term for the numerous rights enshrined by the First Amendment, free speech, press, petition, and association, its parameters are implicit. For example, while the First Amendment does assert the right to free speech, it does not go into detail about the nature or degree of free speech. For this reason, what counts as protected “expression” is implicit. Demonstrated by exceptions, summarized in &quot;Are there any exceptions in American law to this right?&quot;, to the First Amendment, the implications of the right to free expression are often determined by the Supreme Court’s decisions. Furthermore, cases such as Schenk v. United States, Chaplinsky v. New Hampshire, Miller v. California, New York Times Company v. Sullivan, and Central Hudson Gas &amp; Electric Corporation v. Public Service Commission of New York, have created precedents making the parameters of free expression increasingly explicit, as each case demonstrates how certain forms of expression are or are not protected by the First Amendment.<br /> <br /> ===Are there any exceptions in American law to this right?===<br /> <br /> Several Supreme Court cases have placed restrictions on the right to free expression, creating exceptions to the First Amendment. For example, in Schenk v. United States, the Supreme Court ruled that free expression is not constitutionally protected when it will “create a clear and present danger that they will bring about substantive evils that the government has a right to protect.” The qualifications for limiting dangerous speech were later established by Brandenburg v. Ohio, which ruled speech could be prohibited if it was &quot;directed at inciting or producing imminent lawless action&quot; or was “likely to incite or produce such action.”<br /> <br /> Additionally, there is a legal exception for “fighting words”, in that words that “would likely make the person to whom they are addressed commit an act of violence” are not shielded by the First Amendment. This was decided by the Chaplinsky v. New Hampshire decision, where the court upheld that it was illegal for Walter Chaplinsky to call a police officer “a damned Fascist.” <br /> <br /> Another exception to the First Amendment is obscene language. In Miller v. California, the court clarified what qualifies as obscene language, which was described as speech that “To the average person, applying contemporary community standards, appeal to the prurient interest; Depict or describe, in a patently offensive way, sexual conduct, as specifically defined by the applicable state law, and taken as a whole, lack any serious literary, artistic, political, or scientific value.” Therefore, expression that falls under these standards may be regulated. <br /> <br /> Defamation, “a statement that injures a third party’s reputation” (Legal Information Institute, Cornell Law School), is an additional exception to freedom of expression in the United States. The standards for defamation were established in New York Times Company v. Sullivan, which claimed that in order to sue a news outlet for defamation, one must have proof that the outlet was aware of their false claims prior to publishing. <br /> <br /> Lastly, commercial speech may be regulated in order to protect consumers. Furthermore, the standards for commercial speech regulation were created by Central Hudson Gas &amp; Electric Corporation v. Public Service Commission of New York, which created a four part test for determining whether or not the government could limit commercial speech. According to the court, commercial speech is may be regulated only if, <br /> <br /> speech must concern lawful activity and not be misleading; 2. the asserted governmental interest must be substantial. If the first two parts are established, then it must also be determined that: 3. the regulation directly advances the governmental interest asserted; and 4. the regulation is not more extensive than is necessary to serve that interest.<br /> <br /> Ultimately, demonstrated by these numerous cases, although the United States Constitution upholds freedom of expression, there are various exceptions to the First Amendment.<br /> <br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> <br /> For European countries, the right to free expression is entitled by Article 10 of the European Convention on Human Rights, though it is not an absolute law. According to the article, freedom of expression can be restricted if it incites crime or jeopardizes natural security, public health, personal reputations or the authority of the judiciary. Additionally, In Africa, both the African Charter on Human and Peoples’ Rights and the Declaration of Principles on Freedom of Expression assure members of the African Union the right to free expression. In Mexico and South America, the American Convention on Human Rights, also referred to as the Pact of San Jose, upholds the right to free expression. Internationally, the United Nations lists numerous treaties that uphold the right to free expression. Most predominantly, the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) enshrine the right to free expression. Through these various treaties, freedom of expression is upheld by international law.<br /> <br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> The ancient spiritual tradition of Buddhism is rooted in practices and teachings that promote enlightenment and ultimately reaching a state of nirvana or peace. The tradition quickly became a school of thought that heavily influenced east Asian societies and laws. Although, not traditionally accredited to influencing modern Western ideals and expressions of modern democracy and human rights, reform Buddhism does justify human rights law, and particularly the freedom of expression. Although often used synonymously, within the right to freedom of expression, the freedom of speech is an important component that is more directly addressed by the teachings of Buddhism. <br /> <br /> In 2010, the Dalai Lama was awarded a Democracy Service Medal for his commitment to democratic principles and upholding and defending human dignity. The Dalai Lama connects the modern practice of democracy with traditional Buddhist teachings. In his 1993 speech entitled “Buddhism and Democracy,” the Dalai Lama stated, “The institution the Buddha established was the Sangha or monastic community, which functioned on largely democratic lines. Within this fraternity, individuals were equal, whatever their social class or caste origins.” According to this idea of equality, the Buddhist concern for the well-being of all justifies rights to all freedoms of belief, expression and conduct” (Caney 2001, 68). Along the Buddhist ideals of equality and the freedom to exercise control of one’s life paired with the democratic ideals of freedom and commitments to human rights, the two practices are conjoined. And although there is no specific, equivalent word in Buddhism for the word “rights,” rights are understood as a subjective entitlement (Husted, Keown, &amp; Prebish 2012, 20). According to Charles Taylor, in Buddhism, “human rights don’t stand out, as they often do in the West, as a claim on their own, independent from the rest of our moral commitments” (Taylor 1999, 110). These rights are somewhat implicit in understanding the philosophy of Buddhism. <br /> <br /> In reaching enlightenment, one who practices Buddhism is to follow The Eightfold Path – the ultimate guide to life. The Eightfold Path outlines that followers should practice “1. Right understanding and viewpoint (based on the Four Noble Truths), 2. Right values and attitude (compassion rather than selfishness), 3. Right speech (don't tell lies, avoid harsh, abusive speech, avoid gossip), 4. Right action (help others, live honestly, don't harm living things, take care of the environment), 5. Right work (do something useful, avoid jobs which harm others), 6. Right effort (encourage good, helpful thoughts, discourage unwholesome destructive thoughts), 7. Right mindfulness (be aware of what you feel, think and do), and 8. Right meditation (calm mind, practice meditation which leads to nirvana)” (United Religions Initiative 2020). Number 3 on the path outlines the necessity of right speech, which adds a layer of responsibility to the freedom of speech – a component which is not explicitly outlined in most Western descriptions of the right to freedom of expression. Within the Buddhist teachings, lies, half-truths, insults, and gossip are strictly prohibited; ultimately, being truthful is only one component to the freedom of speech, but also non-exploitation of oneself and of others is a central principle to Buddhism (Ekachai 2015). This responsibility is what allows for each person to be not only equal, but also to have the same opportunity and potential to be who and what they desire to be. As a result, the Dalai Lama states that, “Thus not only are Buddhism and democracy compatible, they are rooted in a common understanding of the equality and potential of every individual” (Dalai Lama 1999).<br /> <br /> <br /> In his teachings, the Buddha stresses the importance of following the Eightfold Noble Path, which consists of cultivating eight essential areas of behavior. Within the Eightfold Noble Path, the Buddha asserts the need to practice “right speech” (Walton). When following right speech, also known as Wise Speech or Virtuous Speech, one focuses on expressing themselves in meaningful and genuine ways. When our words are moral, the Buddha states, our actions will follow, resulting in flourishing morality throughout the universe. <br /> <br /> Urging followers to engage in right speech, Buddhism condemns several forms of dialogue. In this way, the codes of Buddhism can be interpreted as a hindrance to the right to free expression, as certain types of discussion are excluded from qualifying as right speech. Defined as “abstinence from false speech, abstinence from malicious speech, abstinence from harsh speech, and abstinence from from idle chatter” (Roth), right speech upholds censoring hostile or false dialogue. While the Buddha emphasizes that the intention of right speech is to promote harmony, the doctrine of right speech nevertheless condemns words associated with political or social dissent. Thus, by providing a framework for proper speech, Buddhism undermines individuals’ entitlements to free expression. <br /> <br /> Though, despite the provisions of right speech, Buddhist leaders are expected to listen to the words of their people, upholding freedom of expression. As explained by John Peek in Human Rights and the Japanese State, “The enlightened ruler need not fear being deposed if he cultivates the traits of integrity, self-control, forbearance, generosity, gentleness, selflessness, non obstinacy, and nonviolence…the King will listen carefully to the wishes of the people, Just as this is to be a government by the people, it is also to be a government of the people” (Peek, 534). Portraying a system in which individual voices are supported by leaders, Peek asserts that Buddhism welcomes free expression. Thus, while Buddhists are guided to follow right speech, Buddhist leaders are expected to respect individual expression, regardless of if they believe it to be hostile or malicious. This contributes to the belief that free expression is a human right that must be protected by governments.<br /> <br /> ====Platonism====<br /> ====Aristotelian thought====<br /> Aristotle’s theories on the freedoms of men influenced the common theories of human rights that we know today; however, this may seem implausible at first glance, considering Aristotle did not consider individual freedom to be of the highest political value. He actually supported using state coercion to morally improve citizens. He also did not view democracy as the best form of government (Johnson 30, 2001). However, Aristotle’s “Politics” which subordinates individual freedom to collective goals imposed by ruling elites inspired the foundations of the guided freedoms we enjoy today. <br /> <br /> Within Aristotle’s political arguments and analyses, unlike Locke, who often writes about the preexisting natural rights of all men, Aristotle describes rights given to men within the “polis” or society against other individuals, rulers included, but not against the polis itself, referring to the government. Within this theory, justice can only be found in its truest form through the polis. However, Aristotle did recognize rights in the political community- a theory which eventually inspired the theories of natural rights (Miller 880, 1996). In his writings, Aristotle focuses less on the extents of and limits to freedom of expression and more on the value of what is said within the bounds of the freedom and the function of speech. Within freedom of expression, Aristotle focuses on the most important aspect: “logos,” the root word of the English word “logic” which means both “speech” and “reason” (Clayton 2020). Aristotle believed the ultimate purpose of speech, which was specifically assigned to men and no other animal by nature to be to determine what is right and wrong, just and unjust. In doing so, we make it possible for humans to live together justly and in pursuit of lives of virtue. Writing that we are, by nature, political animals, Aristotle claimed: “We must figure out how to live together for ourselves through the use of reason and speech, discovering justice and creating laws that make it possible for human community to survive and for the individuals in it to live virtuous lives. A group of people that has done this is a city: “[The virtue of] justice is a thing belonging to the city. For adjudication is an arrangement of the political partnership, and adjudication is judgment as to what is just” (Clayton 2020). In living according to the laws of the polis, pursuing justice, and using the virtues that separate us from other animals to form a functioning society, we can achieve individual virtue and happiness. Aristotle’s theory suggests that men are not free solely because they live in a free society, but men have certain freedoms, such as the freedom of expression, that help to govern them responsibly in the pursuit of happiness and virtue (Johnson 36, 2001). <br /> <br /> In order to attain true happiness, the free speech of a free man has a large stake in his moral virtue. Moral virtue can only be attained by a free man because an action is only moral if it is chosen. This theory can be called somewhat of a “virtuous circle of cause and effect. It implies a natural capacity for virtue that has to be actuated by virtue — a capacity for freedom that requires the exercise of freedom” (Mansfield 2018). There can be no freedom at all without the freedom of choice, and having the choice to speak freely is inherent in our society for our pursuit as a collective of virtue, justice, and happiness.<br /> <br /> ====Ancient Chinese Philosophy====<br /> <br /> Noted by Daniel Bell, professor of ethics and political philosophy and director of the Centre for International and Comparative Political Philosophy at Tsinghua University in Beijing, Confucius emphasized the importance of free political speech in The Analects. Conveyed by Bell, Confucianism supports civic engagement through political debate, a key element of free expression. Though, several other areas of the Analects dismiss certain forms of speech. For example one section of The Analects pronounces, “Crafty speech disrupts virtue” (The Analects of Confucius). While sections such as these condemn specific types of speech, they do not enforce a legal framework for restricting them. Thus, although Confucianism provides a framework for what qualifies as just speech, it does not explicitly urge followers to refrain from engaging in certain types of dialogue. In this way, Confucianism appears to promote freedom of expression. <br /> <br /> On the contrary, Legalism, with its focus on strong authoritarian power, promotes restrictions on free speech, weakening the right to free expression. Legalist scholar Han Feizi emphasizes this, stating, “Accordingly, in the country of an enlightened ruler there are no texts written in books and on bamboo strips, but the law is the teaching; there are no “speeches” of former kings” (Pines, 16). As noted by Han Feizi, within the legalist society, there are no teachings and works to be produced other than the laws created by the ruler. Thus, the principles of legalism directly counter the development of the right to free expression, as civilians are restricted by law from expressing themselves. Furthermore, these Legalist notions are emulated in contemporary China, where the communist party rampantly restricts the right to free expression. <br /> <br /> Taoism upholds intellectual freedom, promoting followers to use their creativity to express themselves. Though, discussed by You-Sheng Li in &quot;A New Interpretation of Chinese Taoist Philosophy&quot;, “Taoist Freedom of thought is different from the Western concept of free speech, free expression, and free press. The latter are all concerned with the social space in which free thoughts are expressed, and therefore are part of modern society. Taoist freedom is concerned with the individual himself.” Thus, Taoist philosophy asserts that while individuals should be entitled to the freedom of thought, this liberty is not necessarily applied to society. In this way, Taoism supports the freedom of the individual to express themselves, but not the universal legal entitlement to free expression.<br /> <br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> Although Physiocrats stress the importance of economic freedom, critics place them within the realm of enlightened despotism. Toqueville classifies the physiocrats as having “little liking for political freedom” (Cavanaugh 38). Physiocrats believed that a central authority figure was needed to create prosperity by following the principles of natural law (Cavanaugh 42). Most physiocrats’ research examines their economic stances, in fact, it overwhelmingly focuses on their economic theories. However, using their economic perspectives, one can extrapolate their beliefs on general rights and liberties. The physiocrats fundamentally believe in laissez faire—that the economy was over-regulated and taxation was overwhelmingly indirect. They believed that the government should take a hands-off economic approach and let the market regulate itself. This can be expanded into their views of personal rights and liberties. The physiocrats believed in the natural, inherent rights of man and believe these rights should not be regulated except in the instance where man infringes on the rights of others (Higgs 1897). The physiocrats do not believe that men do not compromise on rights in any instance, including when they enter into a social contract (Higgs 1897). Thus, even the state must be subservient to the rights of man. This philosophy is based on the idea of society collectively benefitting or losing based on the actions of individuals (Higgs 1897). Men can maintain all of their rights, with the understanding that an infringement on another individual’s rights would be collectively bad for society in which they both reside (Higgs 1897).<br /> <br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought====<br /> Feminist theory, at times, seems to be at odds with the principles of free expression. It is commonly acknowledge that limitations on freedom of speech are less strictly-enforced in academic settings because the freedom of exchanging ideas, without consequence or censorship, is essential to the marketplace of ideas (Cornwell, 107, 1998). The marketplace of idea, essentially, centers on the belief that some opinions will rise in merit, while lesser ideas will sink and be disqualified (Cornwell, 107, 1998). Feminist theory recognizes that there may be underlying power dynamics within a classroom setting that ultimately threaten the viability of the marketplace of ideas, namely that hate speech could perpetuate “the inequalities and injustices that feminist pedagogy attempts to overcome” (Cornwell, 107, 1998). To understand the study of free expression within feminist theory, one must understand that feminist scholars do not examine freedom of expression as an individual right, but instead “the social relations between individuals” (Cornwell, 110, 1998). Cornwell recognizes that speech, within a social relationship, creates “differentiations in power and the dominant becomes the standard by which the ‘other’ is defined” (110, 1998). Ideas about free speech, including the marketplace of ideas, were created and perpetuated by white males for over two hundred years, according to feminist theories, and, as such, so have the understanding of hate speech (Cornwell, 111, 1998). Cornwell, as such, recommends that academic settings, instead of using the marketplace of ideas theory to regulate freedom of speech, use the “ethic of care” principle (Cornwell, 113, 1998). The ethic of care essentially means an individual’s shift “towards an orientation of social life constituted by the relationship between individuals lays the groundwork for reorienting speech rights, so that they are not simply extensions of individual rights” (Cornwell, 113, 1998). Instead of viewing freedom of speech as an individual right, it “should be viewed as part of the social relation between individuals and, consequently, attention should be paid to the social implications of that relationship” (Cornwell, 113, 1998). Within the context of the ethic of care, hate speech is communication that creates a meaning of bigotry and discrimination—it changes the social relationship between two individuals to cause harm (Cornwell 113, 1998). Since speech creates meaning in a relationship that can define the two individuals, a relationship with hate speech “constructs a ‘truth’ about the victims of hate speech that invariably impacts on their liberty” (Cornwell, 113, 1998). Thus, within feminist theory, hate speech ought to be combated within the academic setting through “revealing and engaging with power, and community building in the classroom” (Cornwell, 111, 1998).<br /> <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> Critical legal theory states that the law is inherently intertwined with social issues, essentially claiming that the law has social biases that maintain the status quo of systemic issues (Legal Information Institute). According to critical legal theorists, the law enables the protection of the privileged few and systemically disadvantages the underrepresented and underprivileged (Legal Information Institute). In “Speaking Respect, Respecting Speech,” lawyer Richard Abel attacks the legitimacy of First Amendment protections: first, by declaring that the line between accepted and prohibited speech is too subjective and, consequently, “rests on sociopolitical needs and judgements” (Gould 763). Secondly, Abel asserts that the marketplace of ideas—the concept that is used to defend free and unfiltered speech—skews in favor of the privileged few (Gould 764). Concurring with Abel’s assessment are Richard Delgado and Jean Stegancic, authors of “Must We Defend Nazis? Hate Speech, Pornography, and the New First Amendment” (Gould 765). They take issue with the view that First Amendment protections are neutral, instead declaring that this jurisprudence is “repeatedly reinforcing the status and views of the governing white, male elite” (Gould 765). While many scholars acknowledge that the judicial system is unintentionally political and, consequently, decides on legal matters, many believe that freedom of expression is an absolute, unwavering statue (Gould 767). Some, like Supreme Court Justice Black, believe that the First Amendment literally: that Congress shall make no law which restricts expression (Gould 767). Others argue that the values which motivated the First Amendment—“self-expression, truth seeking, and self-government—require that its doctrine be permanent and unwavering” (Gould 768). However, Gould points out “that we present cultural and political rationales for the norm of free speech mean[ing] that we determine its importance through social interactions (768).<br /> <br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> <br /> According to Pew Research, majorities in Australia, Turkey, the Philippines, Ukraine, South Africa and Nigeria report that it is important to have free press, an essential element of freedom of expression. Consequently, freedom of the press is only considered important by less than half of adults in South Korea, Japan, Israel, Indonesia, Russia, India, Tunisia and Lebanon, revealing these societies possibly place less of an emphasis on freedom of expression. Furthermore, Pew notes that despite the fact that freedom of the press has declined since 2015, support for freedom of the press has overall increased. This demonstrates that individuals value freedom of expression greater when it becomes limited. Additionally, Pew presents that people with less education and people with popular views are less likely to assert freedom of the press to be important.<br /> <br /> Focusing on the United States, a Cato Institute study showed 58% of Americans felt that the current political climate keeps them from expressing themselves. Within this statistic, 53% of Democrats say they do not need to censor themselves in comparison to 27% of Republicans and 42% of Independents. This demonstrates that among Americans, Republicans particularly feel their right to free expression is limited by certain social and political norms, as they feel the need to restrict their speech. In regards to hate speech, despite the fact that 79% of Americans find it “morally unacceptable”, the Cato study reveals 59% of Americans believe it should be allowed in the public. Analyzing these numbers, the study claims, “the public appears to distinguish between allowing offensive speech and endorsing it.” Additionally, the study asserts that 66% of Americans believe colleges need to do more to teach Americans about the value of free speech, emphasizing that Americans highly value freedom of expression.<br /> Looking to college campuses, a 2017 Gallup poll found that 61% of college students strongly agreed that their campus climate prevents people from saying the things they believe. This was up seven percentage points from 2016, when Gallup previously surveyed students. A reversal from 2016, Democrats and Independents were more likely than Republican students to believe their college environment limited their ability to speak freely. Lastly, the study found that a smaller majority of students polled preferred a campus where all speech was allowed, demonstrating that students' value of free speech on campus has declined.<br /> <br /> An additional Pew study found that globally, a median of 62% of individuals say their country protects individuals freedom of expression. Furthermore, the study found that individuals in advanced countries were more likely to report that their country supported freedom of expression than individuals in emerging economies. Brazil, Spain, Argentina, Italy and Mexico reported specifically low numbers of individuals who felt their country supported freedom of expression. In each country, more than 50% of surveyed individuals stated they did not agree with the statement that their country supports freedom of expression. Specifically, Brazil reported very low numbers for freedom of expression, 39% saying their country does not support free expression at all. Within Europe, individuals in countries with favorable populist parties, such as Sweden, were additionally less likely to report that freedom of expression was protected by their government.<br /> <br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> <br /> <br /> Rights to privacy often conflict with the right to free expression. Furthermore, noted by Duke University Law Professor George Christie, often in Europe, speech pertaining to information not already known by the public can be successfully argued to be a violation of privacy, and thus illegal (Christie). Though, Christie argues, this argument is more difficult to make in the United States, as freedom of expression is the “preferred value” over privacy in American jurisprudence. This preferred value is exhibited in even the most extreme cases, such as Snyder v. Phelps, where the court upheld the rights of the Westboro Baptist Church to protest adjacent to the funeral of a Marine who had been killed in Iraq (Christie).<br /> <br /> Explained by Christie, while the Snyder v. Phelps case did strongly affirm the right to free speech, an additional conflicting right emerged from Justice Alito’s dissent. Alito asserted that the protests could violate the common law tort of intentional infliction of emotional distress, as the disturbing language of the church protests may have caused the plaintiff severe emotional distress. Through this, Alito affirms that individuals have a legal right to not be afflicted by speech that results in emotional distress, contradicting the right to free expression. <br /> <br /> Additionally, rights to public safety may contradict rights to free expression. This is largely demonstrated by international law, which upholds restrictions on free speech when they are intended to prevent defamation, protect national security, and uphold public health (Govindu). If speech comes into conflict with any of these areas, it is generally accepted that it can be curtailed by the government. In this way, the rights of others to public safety can overpower the right to individual expression. <br /> <br /> In the United States, the Schenck v. United States and subsequent Brandenburg v. Ohio rulings outline the ways in which free speech can be limited in the name of public safety. In Schenck, the court upheld that speech was not constitutionally protected if it will “create a clear and present danger that they will bring about substantive evils that the government has a right to protect” (Cornell Law School). The guidelines for restricting speech were then further clarified in Brandenburg, which asserted that speech could be prohibited if it was “&quot;directed at inciting or producing imminent lawless action&quot; or was “likely to incite or produce such action.” Exhibited by these two cases, the public has a right to be protected from dangerous speech. Therefore, through the protection of public safety, the right to free expression is contradicted.<br /> <br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> The freedom of expression is essential to the development and upholding of an individual’s inherent sense of self and personal dignity, and as a result, the protection of this right is necessary to the protection of society as a whole (Civic 118-119, 1997). After the court ruling of Whitney v. California, which deemed that the freedom of expression is not an absolute right, Justice Brandeis “declared free expression to be the means to attain the truth, and the truth to be at the foundation of liberty and happiness” (Civic 120, 1997).The fundamental nature of this right is protected in the Preambles of the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, and both assert human dignity as the foundation for all other rights protected in the documents, further asserting that human dignity is the foundation of all human rights (Civic 134, 1997).<br /> <br /> A survey carried out by FindLaw in 2015 found that of the 1,000 American adults asked to participate, 30% believed their freedom of speech to be the right of upmost importance from the Bill of Rights. Although all given rights are important, and it can be dangerous to start ranking rights’ power and relevance, Stephanie Rahlfs, attorney-editor with FindLaw.com states “it's interesting to note that the Founding Fathers placed freedom of speech into the First Amendment as a cornerstone of the Bill of Rights” (FindLaw, 2015).<br /> <br /> As time has passed, The Supreme Court has even professed this freedom to be “the matrix, the indispensable condition of nearly every other form of freedom;” for example, this right is what allows for the fundamental right to vote, the right which powers democracy, to be constitutionally protected (ACLU 2020). Although the right to freedom of expression falls under a small category of rights with “preferred position,” (a concept which was inspired by Justice Oliver Wendell Holmes Jr.’s opinion in the 1919 case of Schenck v. United States, which ultimately recognized the hierarchal primacy of the First Amendment and the rights protected under it), the right has been tested many times throughout American history (Pacelle Jr.). For example, during times of compromised national security such as WWI, First Amendment rights have been significantly compromised, with some citizens having been censored, fined, and jailed: “It was during WWI -- hardly ancient history -- that a person could be jailed just for giving out anti-war leaflets” (ACLU, 2020). From this example, we see that although freedom of expression ranks high on the list of protected rights, it does not outweigh the importance of the common good or the need for general societal peace.<br /> <br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> In 1919, Justice Holmes, in his dissent regarding the case of Abrams v. United States which saw the arrest of Russian immigrants convicted for handing out anti-war leaflets in New York City, stated that “the right to freedom of expression is at the very foundation of our constitutional theory. The expression of competing ideas in the marketplace of ideas is the best means of discovering the truth.” (Civic 119, 1997). Holmes advocated that the truth is at the “foundation of pursuit of the ultimate good, and pursuit of the ultimate good is the theoretical framework of the Constitution. Therefore, through free expression and the search for the truth, the ‘purpose’ of American liberty and democracy is realized” (Civic 120, 1997).<br /> <br /> Almost 20 years later, Justice Benjamin N. Cardozo wrote in the majority opinion of the 1937 case of Palko v. Connecticut (which questioned whether Palko’s second conviction of a crime violated the Fifth Amendment’s protection against double jeopardy) the first explicit hierarchal ordering of human rights (Pacelle Jr.). The verdict of this case caused to Cardozo write that “some Bill of Rights guarantees--such as freedom of thought and speech--are fundamental, and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states. Protection against double jeopardy was not a fundamental right” (Oyez 2020). Cardozo argued further that certain fundamental rights, including the rights to freedom of speech, religion, and press were the “very essence of a scheme of ordered liberty”(Pacelle Jr., 2020). The next year, Justice Harlan Fiske Stone argued in Footnote 4 of the majority opinion in United States v. Carolene Products that the Court should allow civil and individual rights to occupy a “preferred position” when dealing with economic disputes that also affect fundamental rights (Pacelle Jr., 2020).<br /> <br /> Ultimately, from these Supreme Court rulings, one can gather that freedom of expression is a fundamental right that “also underpins most other rights and allows them to flourish. The right to speak your mind freely on important issues in society, access information and hold the powers that be to account, plays a vital role in the healthy development process of any society” (Index on Censorship, 2013). As Amartya Sen writes in his book “Development as Freedom,” access to the freedom of expression is a necessity in the development process of a society and is a developmental goal of its own. The freedom is “both the primary end and the principal means of development” (Index on Censorship, 2013).<br /> <br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> <br /> The principles of federalism play an interesting role in the manner in which the right to freedom of expression is exercised. Historically, the founding fathers were divided on whether there should even be a bill of rights; the Constitutional Convention of 1787 did not include an explication of rights in the writing of the Constitution (Hail, 2020). The Bill of Rights was written as an afterthought, and as political scientist James Burnham observed, “ ‘These rights, in short, are limits, not powers’ (p. 87). Thus the constitutional theory of the founders was premised upon limitations to the powers of the federal government as reflected in the Bill of Rights” (Hail, 2020). Eventually, with the growth of the Union over the next 200 years, state constitutions started to include explications of the protected rights within their states, and as a result, some states are more protective over individual rights than the federal government itself: <br /> “For example, at the national level the right to privacy is derived from implications in the First, Third, Fourth, Fifth, Ninth, and 14th Amendments. By contrast, half the states have enumerated constitutionally or by statute an explicit, and typically broader, right to privacy. Federalism gives the states latitude to experiment with policy areas under the First Amendment that it does not give to the national government, even though the latter retains an important role.” (Hail, 2020).<br /> <br /> Federalism scholar Daniel J. Elazar observed that the states participate in policy experimentation and also provide more legal protection in addressing the unique and specific local/regional needs (Hail, 2020). However, in terms of actual exercise of the freedom of expression in particular, and related conflicting law between that of state and federal, “Federal speech laws survive more than half the time, state laws survive only a quarter of the time, and local laws almost always fail. This free speech federalism is likely attributable to some combination of federal courts deferring to federal lawmakers and the relative poor quality of law- making at the lower levels of government.” (Winkler 187, 2009).<br /> <br /> The federal government holds more power regarding cases involving freedom of expression, often bending both federal and state law to its will, oftentimes going out of its way to justify<br /> federal laws while heavily scrutinizing already narrow state laws. In the 1999 case of United States v. McCorkle, a federal court declined to identify the federal government’s reasoning for compelling secrecy regarding an order sealing transcripts of in camera proceedings sought by a newspaper. Another court deemed that the newspaper who was seeking access to the transcripts had failed at its job to offer effective alternatives to complete closure, “yet, under strict scrutiny the burden of showing no less-restrictive alternatives belongs to the government, not the challenger. Moreover, the newspaper had no information about what the subject of the bench conferences was and thus could not reasonably be expected to offer suitable alternatives to closure” (Winkler 172, 2009). This case saw federal right-of-access restrictions upheld solely because courts supposedly did not follow the traditional requirements of the strict scrutiny standard. <br /> <br /> Another case, contrastingly, shows the federal courts doing everything they could to invalidate the state restrictions. In the 1993 case of Lind v. Grimmer, a federal court “invalidated the application of a state law denying media access to pending complaints filed with the state campaign-finance spending commission. The court reasoned that the government interest in encouraging people to run for office was not protected by the restriction because complainants and others remained free to air their charges informally to the public. Yet, the same could be said about any restriction on the right of access” (Winkler 172-173, 2009).<br /> <br /> Since the 1965 case of Bond v. Floyd, legislators, like any other citizen, are protected under the free expression embodied in the First Amendment. After being elected to the Georgia House of Representatives, Julian Bond, who was an African-American, was refused his seat due to anti-Vietnam war statements he made. Some House members challenged that his statements aided the US’s enemies and violated his mandatory oath to support the Constitution and therefore, he was not permitted to a seat in the House (Hudson Jr., 2009). The Court ruled in favor of Bond due to his fundamental rights to freedom of expression and speech because:<br /> <br /> “Free expression in the legislature not only serves the deliberative process and allows voters to choose their representatives according to their expressed beliefs and opinions, it also reinforces the constitutional safeguards of federalism and the separation of powers. As an expressive act that registers the will, preference, and opinion of a legislator, voting performs a unique communicative function. It expresses loyalty or dissension, agreement or abstention. It can also inform voters of a legislator's position on matters of public concern. Not only is legislative voting expressive, it is also representative and political, and therefore critical to the proper functioning of participatory democracy” (Scherr 257, 1991).<br /> <br /> From the provided evidence, federalism can serve to protect the right to freedom of expression, but oftentimes, it allows for the federal government to somewhat bully state courts into the decisions that best suit them at the time.<br /> <br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> The following country-specific descriptions are from a 2019 US Government Report. <br /> <br /> '''Argentina''': Argentina protects the right to free press, without prior restraint. However, it does not explicitly protect other forms of expression, such as free speech. Argentina criminalizes speech likely to incite violence. Additionally, Argentinian penal law contains protections for one’s honor, making it a fineable offense to slander someone, intentionally discredit them, or falsely accuse them of a crime. However, these penalties do not apply in matters of public interest. Although Argentine courts have interpreted limits on free expression narrowly, they have allowed these limits where they are established by law, meet the needs of a democratic society and where the limits are proportional to their goals. <br /> <br /> '''Canada''': The Canadian Charter of Rights and Freedoms guarantees the right to “thought, belief, opinion, and expression, subject to limits that can be “demonstrably justified in a free and democratic society.” Courts have interpreted the right to free expression broadly. Courts have made judgements about the constitutionality of limitations through proportionality analysis, taking several factors into consideration. They are more inclined to protect political speech, or speech that serves another social value, such as art or science. Courts are also more willing to accept narrower limits with less extreme penalties (civil versus criminal, for example). They have refused to allow limitations based on the offensiveness or unpopularity of the expression’s content. Their courts ruled unconstitutional a law banning the spread of false news. <br /> Despite free expression’s broad protections, courts have upheld anti-hate-speech laws. Additionally, interruptions of public speeches, especially using obscene language, may criminally disrupt the peace. Canada’s equivalent to the FCC has the power to take action against outlets that spread false information, but it has only acted very limitedly on a few occasions. Finally, Canada bans foreign broadcasters from attempting to influence its elections. <br /> <br /> '''China''': China’s constitution claims to protect free expression, but this is not true in practice. The country’s cybersecurity law bans the online spread of several categories of information, including those that undermine “national security, national honor, and national interests”; that incite “subversion” or those that threaten to “overturn the socialist system”; and that include“violent, obscene, or sexual information.” Similarly, the press cannot publish material that violates constitutional principles; undermine state sovereignty and territorial integrity; endanger national security; incite discrimination; undermine public order; promote obscenity, gambling, or violence; or “endanger public ethics.” The country’s Radio and Television Administration places similar limits on expression. Finally, the country tightly monitors foreign journalists, who must be approved by the government. <br /> <br /> '''France''': The French Constitution protects the “communication of ideas and opinions.” However, the Constitution also states that speech may not “interfere with the established law and order” or constitute an “abuse of this liberty in the case determined by law.” Though French courts interpret restrictions narrowly, they use proportionality to balance free speech against other public interests. Free speech is sometimes balanced against rights such as privacy and the presumption of innocence, meaning that defamation, which truth does not necessarily preclude, is often not allowed. One whose speech incites criminality may be considered complicit in the act. Hate speech, which “incites discrimination,” is a jailable offense, as is the denial of crimes against humanity, such as the Holocaust. Defamation of public officials and institutions is a fineable offense, although good-faith reporting is exempt. During an event organized by public officials, it is illegal to disrespect the flag or national anthem. <br /> French radio and TV broadcasts may be regulated to protect values such as dignity, pluralism, public order, and the well-being of adolescents. The CSA, the French equivalent to the FCC, regulated broadcasts to ensure adherence to French law. Although it does not engage in prior restraint, the CSA may issue cease-and-desist orders and fines. It also may remove foreign broadcasts that undermine French interests. <br /> <br /> '''Germany''': German Basic Law (constitution) stipulates that free expression (it lists forms of expression but does not use the term) “shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.” General laws, as the Constitutional Court articulated, “aim to protect a legal interest per se without regard to a particular opinion.” For example, Germany has a blanket ban on speech inciting “hatred against part of the populace.” There is one notable exception to the General-Law requirement: speech that violates the dignity of victims of the Nazis or glorifies their abuses (although pro-Nazi material and hate speech often overlap). <br /> <br /> Israel: Though free expression is not explicitly protected in Israeli Basic Law, its courts have protected it, with exceptions for speech with a “near certainty” to cause “real harm” to safety. Israel restricts several types of speech, such as incitements to violence and terrorism and holocaust denial. It uses balancing tests to determine when speech can be restricted, and it sometimes restricts the quality and quantity of speech in ways that do not eliminate the viewpoint completely. Israeli law criminalizes insulting public servants, but courts have ruled that this law can only be enforced in extreme circumstances, where the insult severely harms the servant’s dignity. Israel restricts the rights of foreigners to broadcast.<br /> <br /> '''Japan''': The Japanese Constitution protects all types of free expression. However, it also states that citizens “shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare.” Japanese courts will consider the type of speech (political speech is especially protected), the necessity of restriction, and the manner of restriction. In Japan, it is illegal to disrupt a political campaign speech. Defamation, insult, and intimidation are forms of criminalized speech in the Japanese Penal Code. Article 231, the “Insult” section of the Penal Code, is broad: “A person who insults another in public, even if it does not allege facts, shall be punished by misdemeanor imprisonment without work or a petty fine.” There are significant restrictions of Japanese broadcasts. They must be politically fair, show as many sides of a political issue as possible, respect “public morals,” and be truthful. <br /> <br /> '''Netherlands''': The Dutch Constitution automatically incorporates the European Convention on Human Rights into law (see the International Agreements Section). The Constitution also allows limitations on expression by act of parliament “without prejudice to the responsibility of every person under the law.” Different expressive freedoms have different level of protection in the Constitution. For example, the press’s protection from prior restraint is absolute, but freedom in performances that may be seen by children is not. <br /> <br /> '''New Zealand''': New Zealand’s Bill of Rights, a 1990 statute, guarantees free expression, with limits that can be “demonstrably justified in a free and democratic society.” It is a jailable offense to act, including to speak, in a way likely to incite someone to disorderly and violent behavior. In a public place, it is a fineable offense to intentionally insult or offend anyone, or to use obscene language. Under a 1993 statute, it is illegal to distribute in writing or broadcast material that is “threatening, abusive, or insulting,” and to use a public place to do the same or to incite ill will against a particular group of people. Broadcasts must adhere to standards of political balance and “the observation of good taste and decency.” <br /> <br /> '''Sweden''': Sweden’s system protects free speech and press. Interrupting courts, weddings, funerals, or public deliberation is a crime. Disorderly conduct with the intent to agitate is also a crime. For example, someone was convicted for singing and playing music in his home to disrupt a political gathering outside. Sweden’s hate-speech law bans any “statement or other message that is spread and disseminated that threatens, or expresses condescension against, an ethnic group or another group of persons based on race, skin color, national or ethnic origin, faith, sexual orientation, gender, or gender identity or expression.” It is a crime to broadcast without a permit. Sweden requires at least half of its broadcasts to be produced by Europeans. <br /> <br /> America places these restrictions on speech much less frequently, or not at all.<br /> <br /> '''Hate Speech''': Foreign countries often do not share America’s aversion to banning hate speech. America is more the exception than the norm; a 2008 EU treaty, for example, mandates that its members develop a mechanism for prosecuting purveyors of hate speech.<br /> <br /> '''Blasphemy''': About 71 percent of countries have blasphemy laws, generally defined as laws insulting to a particular religion or its adherents, often an established state religion. Blasphemy laws are stereotypically associated with theocratic, authoritarian states. Some unexpected countries have them, however. For example, it is a fineable offense in Italy to “vilify with insulting expressions” religious ideas (it is only a jailable offense if one vandalizes religious items) (End Blasphemy Laws). <br /> <br /> '''Political Content''': Many countries ban certain forms of political speech, especially that which undermines the government. In China, for instance, it is illegal to post anything online that will “endanger the sovereignty, overturn the socialist system, incite separatism, break national unity, advocate terrorism or extremism, advocate ethnic hatred and ethnic discrimination, . . . [and] create or disseminate false information to disrupt the economic or social order.” <br /> <br /> '''Public Deliberations''': It is often illegal to interrupt public deliberations, especially by a governing body. In Sweden, for example, one cannot legally interrupt events such as religious ceremonies, marriages, or court proceedings (contempt of court is also a crime in the US). In Japan, it is illegal to disrupt a speech that is part of an election campaign. <br /> <br /> '''Proportionality Analysis''': Courts abroad are much more likely than American courts to use proportionality in determining whether infringement on a right is allowable. This requires weighing the evil of infringing on free expression against the objective the state was trying to achieve. In hate speech, for example, this means weighing a lessening of free speech against the goal of maintaining a tolerant society.<br /> <br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> '''Clear and Present Danger''': As the Supreme Court ruled in Schenck v. US (1919), speech can be curtailed when it poses a “clear and present danger.” This case arose when a defendant was accused of violating the Espionage Act by distributing leaflets encouraging people to dodge the draft. As the majority held, the defendant’s ability to undermine the war effort constituted such a danger, akin to yelling “fire” in a crowded theatre. <br /> <br /> '''Fighting Words''': In a doctrine similar to the clear-and-present-danger test, the Supreme Court ruled in Chaplinsky v. New Hampshire (1942) that the First Amendment does not protect “fighting words” - words that, as the court argued, “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Though this doctrine exists today, it has been undermined, especially by the court’s rulings protecting “hate speech” (see RAV v. St. Paul). <br /> <br /> '''O’Brien Test''': In US v. O’brien (1968), the Supreme Court developed a four-pronged test for determining whether the government could justifiably limit expression. “We think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” In this case, the Supreme Court held that a ban on burning draft cards did constitute a substantial government interest. <br /> <br /> '''Speech in schools''': In general, public schools have greater leeway to curtail free speech, although the court’s attitudes have changed repeatedly. In Tinker v. Des Moines (1965), the Supreme Court voided suspensions on students wearing armbands to protest the Vietnam War, holding that limited speech must “materially and substantially interfere” with school activities. In Hazelwood v. Kuhlmeier (1988), the court gave considerable leniency to schools restricting student speech in a school-sponsored platform (in this case, a school newspaper), allowing it to censor an article because it was “inconsistent with the shared values of a civilized social order.” In Bethel School District v. Fraser (1986), the court allowed a public school to suspend a student for using sexual innuendo at a speech at a school assembly because such speech undermined “fundamental values of public school education.” the Supreme Court ruled similarly in Morse v. Frederick (2007), holding that schools could limit speech advocating drug use. <br /> <br /> '''Imminent Lawless Action''': In Brandenburg v. Ohio (1969), the Supreme Court elaborated on the clear-and-present-danger test. To lack protection, certain speech must incite “imminent lawless action.” This means that the mere advocacy of violence is not enough; the speech must actually incite it. It was on these grounds that the court ruled that offensive, inflammatory speech from a klansman was protected because it did not imminently incite violence. This test has generally replaced clear and present danger, although clear and present danger is still the test used in military courts. <br /> <br /> '''Obscenity''': The Supreme Court adopted a three-pronged test in Miller v. California (1973) to determine whether material is legally obscene (and therefore not protected). The prongs are as follows: “whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Pornography is often not legally obscene.<br /> <br /> '''Libel''': Standards for what constitutes libel differ between private citizens and public figures (who can include political figures but also celebrities, business tycoons, etc). Libel against a public person requires a statement to have been false and made negligently. Libel against a public figure, does not include good-faith mistakes that may be considered negligent. Rather, it requires material to be false, and to have been published with “actual malice” (Hustler v. Falwell, 1988) (Nott). <br /> <br /> '''Intellectual property''': For example, in Zacchini v. Scripps-Howard Broadcasting (1977), the court ruled that the First Amendment does not protect the right of a television station to air an entire performance without the consent of the performers. <br /> <br /> '''Unlawful assembly''': Authorities may restrict assemblies as long as the restrictions are reasonable, narrowly tailored to a specific public interest while limiting rights as little as possible, and are not content-based. For example, a city may require a permit for holding a large assembly. In Forsyth County v. Nationalist Movement, the Supreme Court ruled that a permitting authority could not vary its demonstration permit fees based on the anticipated cost of maintaining public order. As the court held, making such a determination would require the government to differentiate its treatment toward demonstrations based on the content of their messages.<br /> <br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> <br /> '''Universal Declaration of Human Rights''': This was adopted by the UN General Assembly in 1948.<br /> <br /> Article 29 stipulates that the rights found in this document, including free expression, “shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” <br /> <br /> '''European Convention on Human Rights''': This treaty was ratified by most of Europe in 1953 (it is unrelated to the EU). It is enforced in the European Court of Human Rights. From Article 10: <br /> <br /> The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.<br /> <br /> Depending on the case, the court has ruled that hate speech is not protected under Article 10. For example, in ''Aksoy v. Turkey'' (2000), it held that “remarks aimed at inciting racial hatred in society or propagating the idea of a superior race can not claim any protection under Article 10 of the Convention” (Flauss 2009, 838). It has refused to protect “revisionist language” (837), that which denies certain notorious historical truths. For example, Holocaust denial may not be protected under Article 10. Finally, the court has ruled that Article 10 does not protect speech likely to lead to violence (840). <br /> <br /> In ''Ceylan v. Turkey'' (2000), the court ruled on Turkey’s conviction of a columnist who opposed Turkey’s policies toward Kurds. The court used proportionality analysis to determine that the infringement on free expression outweighed the security risk of the piece, which did not directly call for violence. In a concurring opinion, one judge argued that the court should use a clear-and-present-danger test. <br /> <br /> '''American Convention on Human Rights''': This human-rights framework was created in 1969, and over the ensuing decades, has been ratified, at least in part, by nearly all of Central and South America. There exists a corresponding inter-American Court of Human Rights. From Article 13: <br /> <br /> The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:<br /> <br /> a. respect for the rights or reputations of others; or<br /> <br /> b. the protection of national security, public order, or public health or morals.<br /> <br /> “Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.”<br /> <br /> “Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.” <br /> <br /> Article 11 of the convention guarantees a right to privacy, which includes protections against attacks on one's honor, dignity, and reputation. As such, the court must balance these two considerations, as occurs in cases of libel, slander, and defamation (Posenato 2016, 64). The exceptions for national security, public health, public order, and morals have been interpreted narrowly, so as not to allow authoritarian restrictions on free speech (65). <br /> <br /> '''Cairo Declaration of Human Rights in Islam''': This 1990 document was ratified by 45 states in the Organization of Islamic Cooperation. There is no relevant court. Article 22: <br /> <br /> (a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari'ah.<br /> <br /> 1. Everyone shall have the right to advocate what is right, and propagate what is good, and warn against what is wrong and evil according to the norms of Islamic Shari'ah.<br /> <br /> (c) Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical Values or disintegrate, corrupt or harm society or weaken its faith.<br /> <br /> (d) It is not permitted to excite nationalistic or doctrinal hatred or to do anything that may be an incitement to any form or racial discrimination.<br /> International Covenant on Civil and Political Rights: This is a UN treaty from 1966. Under certain circumstances, it may be enforced by the International Court of Justice, but the ICJ generally only hears disputes between countries. Article 19: <br /> Everyone shall have the right to hold opinions without interference.<br /> <br /> 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.<br /> <br /> 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:<br /> <br /> (a) For respect of the rights or reputations of others;<br /> <br /> (b) For the protection of national security or of public order (order public), or of public health or morals.<br /> <br /> '''African Charter on Human and People’s Rights''': This charter, with 54 signatories, came into effect in 1986. Article 9 guarantees the right to free expression, although no exceptions are enumerated. The African Court of Human and People’s Rights has repeatedly protected free expression, but not without limit. For example, in Ingabire Victoire Umuhoza v. The Republic of Rwanda (2017), the court held that minimizing a genocide need not be protected because it could disturb public order and peace.<br /> <br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> Yes. The most famous defense of the freedom of expression principle is written by John Stuart Mill, who did include exceptions to this protection. Mill believed that freedom of expression should be curtailed when the circumstances of the message are intended to instigate violence or criminal activities. Mill also claims that this exception stems from the government's duty to protect others from harm, which is more broadly known as the &quot;harm principle.&quot; This, Mill claims, is the only context in which power can be &quot;rightfully&quot; executed over others (On Liberty 13). Mill uses the example of a corn-dealer, who is starving the poor. When this fact or opinion is published through the press, it is entirely permissible under Mill's doctrine. However, when this opinion is advertised to a large and unruly mob, expression of such sentiment should be curtailed because, if shared, it could cause immediate harm and instigate criminal or violent activities (On Liberty 52). Mill's threshold for regulation of expressions is extremely narrow; it could be argued that he does not exempt hate speech because it does not cause immediate harm to others. While Mill states that only the harm principle should be applied to regulations of freedom of expression, Joel Feinberg believes that the harm principle is not sufficiently broad enough to account for hate speech. He stipulates that an &quot;offense principle&quot; is also needed. Feinberg believes that the harm principle is too high of a standard and that the government has the right to censure some speech if they deem it too offensive. Since the offense principle lowers the standard for censure of free speech, so too should the punishments be lowered. Feinberg defines offense to be a &quot;negative mental state&quot; (Simpson 237). Feinberg justifies the offense principle by stating that being offended, or being in a negative mental state, actually impedes on an individual's liberty because being offended impedes on his/her daily activities (Simpson 238).<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> In many European countries (Germany, France, Austria, etc.), Holocaust denial is illegal and approximately 80 Facebook posts per year are blocked. Zuckerburg, in a 2018, interview stated that he found Holocaust denials to be deeply offensive, but does not believe that warrants censorship. Zuckerburg seems to follow the harm principle, stating that &quot;unless individuals are trying to organize harm against someone, or attacking someone,&quot; content should not be censored (Rosenberg 2018). Facebook's Community Standards (also includes Instagram) are intended to guide freedom of expression on the site through rules such as preventing offline harm related to Facebook content through &quot;consider[ing] the language and context in order to distinguish casual statements from content that constitutes a credible threat to public or personal safety.&quot; The community standards prohibit the presence of terrorist groups on Facebook. The standards also &quot;prohibit people from facilitating, organizing, promoting, or admitting to certain criminal or harmful activities targeted at people, businesses, property or animals.&quot; With hate speech, although the community standards are clear, their implementation is vague--&quot;We define hate speech as a direct attack on people based on what we call protected characteristics — race, ethnicity, national origin, religious affiliation, sexual orientation, caste, sex, gender, gender identity, and serious disease or disability.&quot; The community standards do not account for politic speech. In a speech at Georgetown University, Zuckerburg articulated his position for political censorship: &quot;I don’t think it’s right for a private company to censor politicians or news in a democracy&quot; (Ghaffary 2020). Although Twitter has extremely similar policies to Facebook, they have dramatically different applications. In early May, Twitter fact-checked President Trump's tweets regarding voting by mail by placing links to a fact-checking page that debunks the president's tweets. Twitter announced that it would place labels on tweets containing false or misleading information in response to misinformation about the COVID-19 pandemic (Ghaffary 2020). Previously, Twitter had resisted such a move because the president is a world leader and considered his tweets as &quot;noteworthy&quot; and, as such, exempted them from their standards policy (Ghaffary 2020). Facebook has a similar conduct policy, but enacts it much differently. In response to the move, Zuckerburg stated that Facebook should not, nor is, an &quot;arbiter of truth&quot; (Ghaffary 2020). Twitter again used its new policy on the president's tweet about protests, saying that his &quot;when the looting starts, the shooting starts&quot; violated Twitter's policy of glorifying violence (Ghaffary 2020). Facebook, on the other hand, defended its position of not censoring the same statement by saying &quot;didn’t violate Facebook’s policies about inciting violence. He said the company saw it 'as a warning about state action,' and that 'people need to know if the government is planning to deploy force” (Ghaffary 2020).<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> Freedom of expression can be limited in times of crisis, most notably in wartime. This was first enacted in the late 1790s, with the Alien and Sedition Acts. The Sedition Act most markedly affected freedom of expression and freedom of the press by making it illegal to speak against the government or president (&quot;Alien and Sedition Acts&quot;). These limitations were consistently applied in times of war until World War I, when its legality was cemented by the Supreme Court with Schenck vs. United States (Emerson 1968). In Schenck v. US, the Court ruled that the standards for regulation of freedom of speech were lower in wartime (&quot;Schenck v. United States&quot;). It also established, for the first time, the &quot;clear and present danger&quot; test, clarifying that &quot;the First Amendment does not protect speech that approaches creating a clear and present danger of a significant evil that Congress has power to prevent (&quot;Schenck v. United States&quot;). During the Vietnam War, freedom of expression was upheld in New York Times v. United States by saying freedom of the press was &quot;was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government&quot; (Hudson).<br /> In states of emergency, such as the national one declared at the beginning of the COVID-19 pandemic, the president is granted special troubles that include infringements on freedom of the press/expression. One such power is the ability to shut down radio stations during a time of &quot;public peril.&quot; This ability is cemented in section 706 of the Communications Act of 1934 (Rottman 2020). Since the law was passed in 1934, it did not include other forms of news publication, such as websites and TV news stations. There is a fear, however, that the government could broaden the law to include these types of news dissemination (Rottman 2020). In the COVID-19 pandemic, states and counties have declared media companies as essential services, thus exempting them from quarantine and shelter-in-place limitations (Rottman 2020).<br /> <br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Association&diff=231 2020-08-10T17:40:34Z

<p>Ksandlund: /* Does public polling reveal insights about the right as experienced in different countries? */</p> <hr /> <div>==What is the oldest written source that mentions this right?==<br /> John Locke’s “A Letter Concerning Toleration” (1689) primarily concerns religious associations, but he extends certain arguments to associations in general. The text in the next paragraph is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right (241). <br /> <br /> “Suppose this Business of Religion were let alone,” Locke hypothesizes, “and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.” Under conditions of differential treatment, such persons, “united together by one common persecution,” would become just as dangerous and disruptive. Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter.<br /> <br /> In 1776, Richard Price, a British writer who supported the American revolution published Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America. Unlike other commentaries on civil rights, he includes discussion on free assembly. He describes a prohibition on “associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy” as being part of a “state of oppression which no country can endure.” Though he does not phrase it as a fundamental right, the fact that Price deems draconian restrictions on association oppressive implies a belief in at least a limited freedom of association.<br /> <br /> Though Enlightenment commentators like Locke argued for and against greater freedom to associate. However, the first to mention it as an absolute right was John Stuart Mill, who argues ''in On Liberty'' that “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (1859, 16).<br /> <br /> ===What is the oldest written source in this country that mentions this right?===<br /> ====Afghanistan====<br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> ====Armenia====<br /> ====Australia====<br /> Australia has detailed records of its constitutional convention, which occurred in the 1890s. In 1897. One speaker alluded to the power of free association: “The English feel the vigor of their public spirit; they have experienced the vigilance of a free press, and the power of associations and public meetings.”<br /> <br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> Chapter 2 of Botswana’s Constitution (1966) guarantees “freedom of conscience, of expression and of assembly and association.”<br /> <br /> ====Brazil====<br /> Brazil’s constitution (1988) has exceptionally detailed freedom of association provisions. Title II-I-5 states that: <br /> <br /> - there is total freedom of association for lawful purposes, but any paramilitary association is prohibited;<br /> <br /> - creation of associations and, as set forth in law, of cooperatives, requires no authorization, prohibiting state interference in their operations; <br /> <br /> - associations may be compulsorily dissolved or their activities suspended only by a judicial decision, which in the former case must be a final and unappealable decision;<br /> <br /> - no one can be compelled to join an association or to remain in one;<br /> <br /> - when expressly authorized, associations have standing to represent their members judicially and extrajudicially<br /> <br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> Chapter 345 Section 5 of Saskatchewan’s Bill of Rights (1947) states that “every person and every class of persons shall enjoy the right to peaceable assembly with others and to form with others associations of any character under the law.”<br /> <br /> Part 1 of the Canadian Bill of Rights (1960) lists “freedom of assembly and association” as a guaranteed right. This was an ordinary act of parliament, and it has been replaced by the Canadian Charter of Rights and Freedoms, an amendment to the Canadian Constitution.<br /> <br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> Chapter 2-4 of the Provisional Constitution of the Republic of China (1912) states that “citizens shall have the freedom of speech, of composition, of publication, of assembly and of association.”<br /> <br /> The 1912 Republic of China Constitution refers to the one adopted by the nationalist government on the mainland, led by Sun Yat-sen. Despite its lofty ideals, this government never really maintained power. After a period of instability and civil war, the CCP forced the nationalist government to retreat to Taiwan, which is known now as the Republic of China. Taiwan suspended its constitution, and it was under a repressive martial-law system until 1987. It is now a constitutional democracy, and freedom of association is protected in its constitution. The PRC constitution claims to protect freedom of association, among other civil liberties.<br /> <br /> ====Colombia====<br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> Section II-18 of Estonia’s first constitution (1920) states that “The forming of associations and unions is free in Esthonia.&quot;<br /> <br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> Title I of the French Constitution of 1791 guarantees the right of peaceful assembly. <br /> <br /> “Liberty to citizens to assemble peaceably and without arms in accordance with police regulations.”<br /> <br /> Though the French Constitution of 1791 protected the right to assemble, French revolutionaries considered explicitly excluding free association (Boyd 257). The French enacted a law protecting free association in 1901, and enshrined it in their constitution in 1971 (Boyd 2008, 237).<br /> <br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> The Weimar Constitution (1919) established freedom of association. <br /> <br /> Article 123: “All Germans have the right to assembly peacefully and unarmed without giving notice and without special permission.” <br /> <br /> Article 124: “All Germans have the right to form associations and societies for purposes not contrary to the criminal law.”<br /> <br /> ====Ghana====<br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> The following quote was attributed to Gandhi in 1922: <br /> <br /> “Freedom of association is truly respected when assemblies of people can discuss even revolutionary projects, the State relying upon the force of public opinion and the civil police, not the savage military at its disposal, to crush any actual outbreak of revolution that is designed to confound public opinion and the State representing it.., The fight for swaraj means a fight for this threefold freedom before all else.&quot; <br /> <br /> Part III Article 19 of the Indian Constitution (1950) grants citizens the right to “form associations or unions” (Dalton).<br /> <br /> ====Indonesia====<br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> Article 40 of the Irish Constitution (1940) guarantees “the right of the citizens to form associations and unions.”<br /> <br /> ====Israel====<br /> ====Italy====<br /> Part 1 Title 1 Article 18 of the Italian Constitution (1947) states that: <br /> <br /> - “Citizens have the right to form associations freely and without authorization for those ends that are not forbidden by criminal law.” <br /> <br /> - “Secret associations and associations that, even indirectly, pursue political aims by means of organisations having a military character shall be forbidden.”<br /> <br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> Chapter III Article 21 of the Japanese Constitution (1947): “Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.” <br /> <br /> Additionally, though finding direct texts has proven difficult, there have been political movements for greater political expression since the pre-war era. The freedom and popular rights movement existed throughout the second half of the 19th century, and its members advocated for increased freedom of assembly beginning no later than 1886 (Tierney 2013, 21).<br /> <br /> ====Jordan====<br /> ====Kazakhstan====<br /> ====Kenya====<br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> ====Laos====<br /> ====Latvia====<br /> The Latvian Constitution added a section on fundamental rights in 1998. Article 102 states that “everyone has the right to form and join associations, political parties and other public organisations.”<br /> <br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> From Section 1 Article 9 the Mexican Constitution of 1857: “No one shall be deprived of the right peaceably to assemble or to come together for any lawful purpose; but only citizens shall be permitted to exercise this right for the purpose of taking part in the political affairs of the country. No armed assembly shall have the right to deliberate.”<br /> <br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> Part 2 Section 17 of the Bill of Rights Act (1990) states that, “Everyone has the right to freedom of association.”<br /> <br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> Chapter IV Section 37 of the constitution of the Second Republic (1979) states that “every person shall be entitled to assemble freely and associate with other persons, and any political party, trade union, or other association for the protection of his interests.”<br /> <br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> ====Oman====<br /> ====Pakistan====<br /> The following is from Part II, Chapter I, Section 17 of Pakistan’s current constitution (1973). <br /> <br /> “Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.”<br /> <br /> “Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.”<br /> <br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> ====Philippines====<br /> ====Poland====<br /> ====Portugal====<br /> Article 46 of the Portugese Constitution (1976): <br /> <br /> “Citizens shall possess the right to freely associate with one another without requiring any authorisation, on condition that such associations are not intended to promote violence and their purposes are not contrary to the criminal law.” <br /> <br /> “Associations shall pursue their purposes freely and without interference from the public authorities and shall not be dissolved by the state or have their activities suspended, except in such cases as the law may provide for and then only by judicial order.”<br /> <br /> “No one shall be obliged to belong to an association, or be coerced to remain therein by any means.”<br /> <br /> “Armed associations, military, militarised or paramilitary-type associations and organisations that are racist or display a fascist ideology shall not be permitted.”<br /> <br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> ====South Africa====<br /> Chapter 3 section 17 of the 1993 Interim Constitution states that “every person shall have the right to freedom of association.”<br /> <br /> ====South Korea====<br /> <br /> Chapter two Article Ten of the Constitution (1948): “All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association.”<br /> <br /> ====South Sudan====<br /> ====Spain====<br /> ====Sri Lanka====<br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> The 1990 Human Rights Act protects the Right to assemble and associate, subject to reasonable and proportionate restrictions. The HRA primarily serves to codify the European Convention on Human Rights into British Law (the ECHR and its associated court are not related to the EU, and the UK is still a signatory). <br /> <br /> In 1776, Richard Price, a British writer who supported the American revolution published ''Observations on the Nature of Civil Liberty'', the Principles of Government, and the Justice and Policy of the War with America. Unlike other commentaries on civil rights, he includes discussion on free assembly. He describes a prohibition on “associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy” as being part of a “state of oppression which no country can endure.” Though he does not phrase it as a fundamental right, the fact that Price deems draconian restrictions on association oppressive implies a belief in at least a limited freedom of association. This is the first instance I could find of a political theorist invoking the concept of freedom of association (or the lack thereof).<br /> <br /> There is a more explicit case for free association in John Stuart Mill’s On Liberty (1859). Mill lays a broad notion of individual liberty. He then argues that “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived (16).”<br /> <br /> Before any British thinkers espoused freedom of association as a right, John Locke, Thomas Hobbes, and David Hume addressed the issue (as Boyd helpfully summarizes). Hobbes detested associations, referring to them as “lesser commonwealths in the bowels of a greater, like worms in the entrails of a natural man” (257). <br /> <br /> Locke disagreed with Hobbes’ cynical perspective on groups. John Locke’s “A Letter Concerning Toleration” primarily concerns religious associations, but he extends certain arguments to associations in general. The italicized text below is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right (2008, 241). <br /> <br /> “Suppose this Business of Religion were let alone,” Locke hypothesizes, “and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.” Under conditions of differential treatment, such persons, “united together by one common persecution,” would become just as dangerous and disruptive.26 Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter.<br /> Finally, David Hume’s “Of Parties in General” (1742) is another important piece of Enlightenment work skeptical of associations. His position is more nuanced that Hobbes; he understands that association may exist for different purposes. Factions “of interest” are deemed less dangerous than factions “of principle.” Regarding factions of principle, he wonders the following: “But where the difference of principle is attended with no contrariety of action, but every one may follow his own way, without interfering with his neighbour, as happens in all religious controversies; what madness, what fury can beget such unhappy and such fatal divisions?”<br /> <br /> ====United States====<br /> Listed at the bottom of this section is language from the State Constitutions of New Hampshire and North Carolina and the Pennsylvania Declaration of Rights, all from 1776, which articulate the right to assemble (assembly and association are not always interchangeable, but many constitutions group them together). These documents all contain rights to assemble written in remarkably similar language, and they describe the right as politically driven. These were the oldest references to something like the right of association in governing documents.<br /> <br /> Despite modern views of assembly as related to association, at the time of America’s founding, it would have been better understood as related to the right to petition. According to Congress’s online annotated Constitution, the assembly clause meant that the people have a right to assemble in order to petition the government. The site says that assembly was initially seen as a “subordinate and instrumental” right (&quot;Freedom of Assembly and Petition&quot;). The aforementioned state constitutions should be interpreted the same way. In fact, this is even more clear in these state constitutions than in the national one. The state constitutions surround the right to assemble with expressly political language, such as the right to petition and advocacy for the “common good,” while the First Amendment’s guarantees are political, but not entirely political (it protects religion, and protected speech and press are often, but not always, political). <br /> <br /> As Richard Boyd argues in “The Madisonian Paradox of Free Association,” America’s founders did not explicitly include free association because at least some of them were skeptical of it, worrying that certain associations would be conspiratorial or seditious. He summarizes the British Enlightenment tradition skeptical of associations, which influenced the founders (I describe this in the last few paragraphs of the UK section, on Hobbes, Locke, and Hume). James Madison, the primary author of the Bill of Rights, feared the influence of factions, which private associations furthered. As Boyd notes, Madison viewed association as a “second-order” right (page 258), whose existence is tolerable because institutions can mitigate its worst effects (page 247). The following passage from “Federalist No. 10” illustrates his attitude toward factions arising from free association: <br /> <br /> It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.<br /> <br /> As Boyd notes, there are several possible reasons why Madison may not have enumerated the right to associate. It is possible that he saw it as implied by other First-Amendment rights, such as free assembly. It also may have been seen as less important or vulnerable than other rights, and Madison may have seen it as the type of auxiliary right protected by the Ninth Amendment. Finally, the right’s exclusion may have been because the founders were too skeptical of it for its inclusion (258). <br /> <br /> Since the 1950s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in NAACP v. Alabama that the NAACP cannot be forced to submit a membership roster to a state government. In 2000, in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association. <br /> <br /> In ''Roberts v. US Jaycees'', an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.” <br /> <br /> Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in ''NAACP v. Button'', “It is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.” <br /> <br /> Article XVIII of North Carolina’s Constitution: “That the people have a right to assemble together, to consult for their common good, to instruct their Representatives, and to apply to the Legislature, for redress of grievances.”<br /> Section 21 of New Hampshire’s Constitution: “The citizens have a right in a peaceable manner to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or for other purposes, by petition, address, or remonstrance. No law abridging the freedom of speech shall be enacted.”<br /> <br /> Section XVI of the Pennsylvania Declaration of Rights: “That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance.<br /> <br /> ====Uruguay====<br /> ====Uzbekistan====<br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> Pope Leo XIII forcefully argued for free association in Section 51 of ''Rerum novarum'' (1891), an extremely influential text in Catholic thought. <br /> <br /> &quot;Private societies, then, although they exist within the body politic, and are severally part of the commonwealth, cannot nevertheless be absolutely, and as such, prohibited by public authority. For, to enter into a &quot;society&quot; of this kind is the natural right of man; and the State has for its office to protect natural rights, not to destroy them.&quot;<br /> <br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> This right became an element of political discourse in the late Enlightenment, especially the American Revolution. In the mid and late 1800s, writers such as Mill and Leo XIII pushed the idea into the mainstream.<br /> <br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> <br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> Constitutions written after 1900 very often protect free association.<br /> <br /> As the right to free association is upheld by numerous United Nations treaties, for example, the European Convention on Human Rights, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, it would be expected that most countries maintain legal provisions protecting it. Though, investigated by UN Special Rapporteur Maina Kiai, many countries enforce legislation that explicitly restricts civilians’ entitlements to free association (International Center for Not-for-Profit Law). <br /> <br /> For example, noted by Kiai, in Malaysia, the Peaceful Assembly Act 2012 bans individuals under the age of twenty one from organizing public demonstrations. Additionally, stipulated by the same act, children under the age of fifteen cannot participate in demonstrations. Article 33 of the Constitution of Mexico, Kiai asserts, prohibits foreigners from engaging with Mexican politics. Similarly, Kiai notes that in Myanmar, Article 354 prohibits foreigners from assembling. Through these various forms of legislation, political and social association are highly restricted, as individuals are prohibited from expressing their associations through protest and civic engagement. <br /> <br /> Additionally, Kiai presents how legal restrictions on sexual orientation limit free association in several countries. For example, in Russia, a ban on gay pride parades was upheld by Moscow’s city council in 2012. Likewise, in Nigeria, the President ushered in the Same Sex Marriage Act in 2014, prohibting gay marriage and the ability to “participate in or support gay clubs, societies, organizations, processions or meeting.” Kiai notes a similar anti-homosexuality law was signed by Uganda’s president in 2014. Demonstrated by these numerous legal restrictions to homosexuality, free association is unprotected in numerous countries, as one can often be punished for associating with a specific sexual orientation. <br /> <br /> In the remainder of his report, Kiai continues to elaborate on numerous legal provisions that restrict free association. For example, Kiai notes how both Chile and Turkey utilize counter-terrorism legislation to restrict free association. Similarly, he explains how criminal laws in Vietnam and El Salvador often deter individuals from exercising their rights to free association, as their voices may be met with harsh penalties from their governments. <br /> <br /> Witnessed through Kiai’s reporting, the restrictions to free association are plentiful. This ultimately demonstrates that despite its entitlement by numerous United Nations treaties, the right to free association is highly vulnerable to violation and not widely internationally upheld.<br /> <br /> ===Is it contained in the US Constitution?===<br /> No.<br /> <br /> The right to free association is not explicitly stated in the United States Constitution. Though, The Supreme Court has historically upheld the constitutional right to free association, invoking the Fourteenth and First Amendments (Legal Information Institute, Cornell Law School). In 1958, The NAACP v. Patterson ruling established this precedent. In response to Alabama’s aims to limit the NAACP’s business within the state, the Supreme Court ruled that it was “the right of petitioner's members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment” (Oyez). Furthermore, the court asserted that freedom of association was undoubtedly covered by the Due Process Clause of the Fourteenth Amendment (Oyez), which asserts no individual may be “&quot;deprived of life, liberty or property without due process of law.” The court additionally demonstrated the First Amendment to protect free association, Justice Marshall Harlan claiming “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” Thus, while the right to free association is not explicitly described by the Constitution, as witnessed in NAACP v. Patterson, it is upheld by American constitutional law.<br /> <br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> Since the 1950s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in ''NAACP v. Alabama'' that the NAACP cannot be forced to submit a membership roster to a state government. In 2000, in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association. <br /> <br /> In ''Roberts v. US Jaycees'', an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.” <br /> <br /> Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in NAACP v. Button, “It is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.”<br /> <br /> ===Are there any exceptions in American law to this right?===<br /> Yes. As seen in ''Roberts v. US Jaycees,'' the right may be weighed against other state interests, especially when the association in question is neither expressive nor intimate. In that case, free association rights were curtailed to ensure adherence to non-discrimination laws.<br /> <br /> Additionally, a significant exception to free association rights in the United States is witnessed through legislation regarding political parties. Furthermore, while one has the liberty to vote with, join, and create independent political parties, upheld by the William V. Rhodes ruling, the state can still regulate these parties if they violate other aspects of the Constitution. For example, in New York State Board of Elections vs. Lopez Torres, the court claimed, <br /> <br /> <br /> A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform. These rights are circumscribed, however, when the state gives a party a role in the election process...Then for example, the party’s racially discriminatory action may become state action that violates the Fifteenth Amendment<br /> Demonstrated by New York State Board of Elections vs. Lopez Torres, if a party associates with discriminatory or racist behavior, it cannot be involved in the state’s election process, demonstrating a limitation on free political association. <br /> <br /> Additionally, sections of the Federal Election Campaign Act are often interpreted to be exceptions to free association, as they require the public disclosure of individuals’ political donations. This position was echoed by the Buckley v. Valeo ruling, where the Supreme Court argued that new campaign finance laws, “impose significantly more severe restrictions on protected freedom of political expression and association than do its limitations on financial contributions.” Thus, witnessed by Buckley v. Valeo, campaign finance laws may be interpreted as an exception to free association, as one cannot privately financially contribute to the political party they associate with. <br /> <br /> Within universities, freedom of association, specifically the right to associate as an exclusive religious group, may be regulated by anti-discrimination clauses. This was observed in Christian Legal Society v. Martinez, where the court ruled in favor of Hastings’ College of Law’s anti-discrimintation policies, which prohibited Christian student group’s from excluding non-christians. Therefore, on university campuses, individuals must be able join any student group, regardless of their religious association. Ultimately, this decision restricted the parameters of free association, as one cannot actively discriminate on the basis of it. <br /> <br /> Consequently, decided by Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, certain groups can legally exclude individuals from associating with them. Furthermore, if an individual’s beliefs do not coincide with the group’s mission, the individual may be prohibited from membership. Specifically, the court claimed that by mandating the Boston Veterans’ Council to include Gay, Lesbian, and Bisexual individuals in their parade, the Massachusetts State Court, “violates the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.” Thus, while still restricting free association, the ruling counters Christian Legal Society v. Martinez, as individuals can be restricted from associating with certain groups if it is deemed that their identity does not conform to the group’s platform.<br /> <br /> Ultimately, these exceptions arise from the implicit nature of the freedom of association within the Constitution, as what qualifies as “association” is highly subject to interpretation by Supreme Court justices. For this reason, depending on who is sitting on the bench, freedom of association can be left unchecked or potentially be highly restricted.<br /> <br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> Yes. It is protected explicitly in documents such as the Universal Declaration of Human Rights, the European Convention on Human Rights, and the American Convention on Human Rights.<br /> <br /> Specifically, free association is upheld by Article 11 of the European Convention on Human Rights, which claims, “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”Additionally, it is enshrined in Article 20 of the Universal Declaration of Human Rights, which claims “ Everyone has the right to freedom of peaceful assembly and association; No one may be compelled to belong to an association.” In Article 22 of the International Covenant on Civil and Political Rights, the rights to association are specifically outlined, as it upholds “In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Lastly, The International Labor Organization similarly supports freedom of association in the 1998 Declaration on Fundamental Principles and Rights at Work, which asserts that all members have “freedom of association and the effective recognition of the right to collective bargaining;”<br /> <br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> The Five Precepts of Buddhism condemn activity relating to “sexual misconduct, falsehoods, and intoxicants” (Peek,529), possibly limiting the ability of individuals to associate with certain behaviors or activities. While Buddhism does warn against disobeying the Five Precepts, as this may result in bad Karma, it ultimately asserts that it is the choice of the individual to decide whether or not they wish to follow the declarations of the Five Precepts (Peek, 529). Furthermore, Buddhism’s focus on moral authority, in which the individual is not subordinate to the Five Precepts, can be interpreted as allowing individuals freedom in regards to association. Demonstrated by this, although Buddhism provides guidelines for what followers ought to avoid associating with, these are merely suggestions. Thus, emphasizing the freedom of the individual, Buddhism can be seen to support the right to free association.<br /> <br /> Though, the traditions of Buddhist monks reveal how certain Buddhist practices restrict freedom of association. As explained by Holmes Welch, “According to the Buddha’s rule, when people become monks and nuns they lead a collective life. Not only is there no private property, but there is no thought for oneself. To take thought for oneself is to keep hold of the ego” (Welch, 146). Noted by Welch, upon entering monastic life, Buddhists are expected to relinquish all previously held associations. Therefore, observed through the expectations of monks, elements of Buddhism confine free association. <br /> <br /> Additionally, through the Eightfold Path, the eight practices Buddhists are expected to follow on their journey to nirvana, certain behaviors are limited. For example, when following the Eightfold Path, individuals are restricted from making a living off selling animals, weapons, meat, poison, and liquor (Tilakaratne, 48). Condemning certain professions and ways of life, Buddhism again appears to limit the associations of its followers, undermining the strength of the freedom of association within the belief system.<br /> <br /> Looking to Buddhist leaders, freedom of association is ultimately upheld. For example, in a 1993 Washington address, the Dalai Lama demonstrated his admiration for the principles of democracy, particularly the liberties, such as freedom of association, it guarantees to civilians. The Dalai Lama asserts, “Irrespective of whether we are rich or poor, educated or uneducated, belonging to one nation or another, to one religion or another, adhering to this ideology or that, each of us is just a human being like everyone else.” Through his words of acceptance, the Dalai Lama conveys that Tibetan Buddhism supports the ability to freely associate with many identities. Thus, while the Five Precepts, monastic codes, and Eightfold Path appear to restrict the liberties of followers, the Dalai Lama’s words affirm them.<br /> <br /> ====Platonism====<br /> ====Aristotelian thought====<br /> Aristotle, in his book Nicomachean Ethics, wrote that “Friendships are also important parts of our childhood and adult experience. Without them, we struggle to discover, shape, and pursue our ideas of what constitutes a good life. But, again, friendships can take many forms for many reasons, not all of which are grounded in mutual affection and convivial warmth” (Brownlee and Jenkins 2019). Friendships here form the basis of our associations in life; he ultimately argues that we as humans require association and assembly in our lives. <br /> <br /> Aristotle argues that not all forms of association are political, particularly those that stem from material needs, including family, the market, and alliances for mutual defense/benefit- these can be organized into libertarian and capitalist principles. According to one’s needs, individuals are free to associate and disassociate within their own means of persuasion and trade, and none of this is political- or in other words, the government should have no business with the private associations of the people (Johnson 32, 2001). Regarding politically, he further argues that “It is not the case . . . that people come together for the sake of life alone, but rather for the sake of living well” (3.9.1280a31) and “the political community must be set down as existing for the sake of noble deeds and not merely for living together” (Johnson 32, 2001). He takes a stance against the dominance of individuals associating merely for political protection and gain, but he believed that the state should do more in its concern for the citizen, encouraging virtue and discouraging harm and vice (Johnson 32, 2001). He argues that the best political regime best delivers the “good life-” production and distribution of goods, both goods of the body and of the soul. Within this theory, Aristotle considers the production and distribution of bodily goods as private and the production and distribution of spiritual goods as public: “The primary goods of the soul are (1) moral and intellectual virtue, which are best produced by public education, and (2) honor, the public recognition of virtue, talent, and service rendered to the city. The principle of distributive justice is defined” (Johnson 38-39, 2001). Aristotle’s theory about freedom of association is that political associations’ ultimate goal is to help foster the virtues that are necessary in the pursuit of justice and happiness; therefore, “no legitimate regime can be indifferent to the virtue of the citizens” (Johnson 44, 2001). The polis is both the most inclusive and authoritative community according to Aristotle, seeing as Aristotle's polis is a mixed concept, fusing the political state with civil societal attributes including economic, religious, and other forms of association” (Miller 878, 1996).<br /> <br /> ====Ancient Chinese Philosophy====<br /> Various schools of Chinese Philosophy contribute to society’s understanding of the right to free association.<br /> <br /> Legalism, with its adherence to strict punishments for any violation of the law, limits the liberty of citizens to freely associate. At its core, Legalism restricts the ability of citizens to act freely, as under the philosophy individual’s lives become entirely controlled by administrative acts (MacCormack, 62). Furthermore, the legalist state was not concerned with the liberties of civilians. Rather, legalists focused their efforts towards strengthening the economic and military strength of the state through authoritarian power (MacCormack, 63). Thus, in the school of Legalism, there is little tolerance for associations that counter the laws of the state, undermining the right to free association.<br /> <br /> Consequently, Confucianism emphasizes the ability of citizens to rebel against the emperor (Peek, 523). This bolsters the right to free association, as individuals are encouraged to join other political parties in the face of an unjust regime. <br /> <br /> Though, more similarly to Legalism, additional elements of Confucianism vastly undermine the right to free association. As Confucianism evolved, the belief system began to emphasize a strict code of ethics, creating a rigid social structure (Peek, 532). This limited the ability of followers to freely associate, as they were confined to following a strict code of behavior. Thus, while Confucianism initially appears to support the right to free association, its development as a belief system has constricted the liberties of followers.<br /> <br /> While Taoism does not discredit the right to free association, it does weaken the importance of associations as a whole. Advocating that individuals put aside their distinguishing characteristics, Taoism stresses that there “is one underlying and uniting all phenomena” among human beings (Chan, 316). Furthermore, Taoists argue that human beings must transcend their personal distinctions, diminishing the value of individuals’ associations. Thus, while Taoism does not proclaim individuals should not be able to associate themselves with certain groups, it does argue that associations are ultimately meaningless.<br /> <br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought====<br /> Harriet Taylor, a feminist philosopher from the 19th century, wrote about the restrictions that limit women to the private sphere. Men, according to Taylor, decided that the private and domestic sphere is women’s “proper sphere”; however, she argues that any group’s proper sphere is the “largest and highest which they are able to attain to” (Taylor). Taylor argues that this is not possible without complete liberty and, if men are convinced of their mental superiority, should not be an issue if women and men are afforded the same opportunities (Taylor). This argument can be adapted to freedom of association because it essentially concludes that both women and men have the equal opportunity to associate with organizations if he or she can prove his or her worth. <br /> <br /> In the Constitution, there are two interpreted freedom of associations. The First Amendment includes the freedom of expressive association. The Fourteenth Amendment includes the freedom of intimate association. Intimate association is an individual’s right to form/maintain close personal relationships without interference from the government (Hudson, 2009). Expressive association, recognized in NAACP v. Alabama (1958), refers to the right of individuals to congregate or association for expressive purposes, such as advancing a political opinion (Hudson, 2009). In Roberts v. United States Jaycees (1984), Justice Brennan wrote the majority opinion. Brennan concluded that the Jaycees could not exclude women from membership because their purpose as an economic organization for the advancement of young men was not jeopardized if women were members (Bernstein, 2009). Justice O’Connor concurred, but distinguished between expressive and non-expressive groups, which exist for other purposes (Bernstein, 2009). O’Connor concluded that the Jaycees primarily existed for economic reasons, not expressive ones, and, as such, could not exclude women on the basis that it would compromise their mission (Bernstein, 2009).<br /> <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> The World Bank measures freedom of association across 156 countries using a scale ranging from 0 ( very low freedom of association) to 1(very high freedom of association). Looking at high income countries, with the exception of Israel, Kuwait, United Arab Emirates and Singapore, freedom of association is generally reported to be above the world median. Additionally, among wealthier countries, the World Bank data demonstrates that levels of freedom of association have remained generally fixed since 1975, when the data was first collected. In particular, the data reveals Burundi, China, Cuba, Equatorial Guinea, Eritrea, Iran, North Korea, Saudi Arabia, South Sudan, Syria, Tajikistan, Vietnam, and Yemen to have very low levels of freedom of association (below 0.3). Countries with very high levels of freedom of association (above 0.8) were more numerous, including the United States, the United Kingdom, Trinidad and Tobago, Switzerland, Sweden, Sri Lanka, Spain, South Africa, Slovenia, Sierra Leone, Senegal, Portugal, Peru, Papua New Guinea, Panama, Norway, New Zealand, Netherlands, Namibia, Mongolia, Mexico, Mauritius, Malawi, Liberia, Latvia, South Korea, Japan, Jamaica, Italy, Ireland, Honduras, Greece, Ghana, Estonia, Denmark, Czech Republic, Cyprus, Costa Rica, Canada, Benin, Belgium, Australia, and Albania. <br /> <br /> An Open Government Partnership (OGP) report reveals additional insights about freedom of association. The report surveys individuals within 78 OGP partnered countries about elements of freedom of association. Furthermore, the survey presents that approximately 25% of freedom of association issues within OGP countries are rooted in restrictive laws on foreign funding. Additionally, the survey demonstrates that OGP countries presenting challenges to freedom of association generally have not taken actions towards better protecting the right in the future. When asked to respond to “In practice, people can freely join any political organization they want”, the majority of OGP countries responded “Agree” or “Strongly Agree”. Though, when asked to reply to “In practice, people can freely join any (unforbidden) political organization they want”, a large number of OGP countries, approximately 20%, responded “Disagree” . This finding demonstrates that in reality, freedom of association may be less protected by countries’ governments than it is perceived to be. <br /> <br /> Within the International Labor Organization, the Committee on Freedom of Association (CFA) addresses violations of freedom of association. In their 2018 annual report, the CFA reported 402 freedom of association complaints from Africa, 410 from Asian and the Pacific, 657 from Europe, 1,681 from Latin America and 186 from North America. Furthermore, their data reveals decreases in complaints in Africa, Asia and the Pacfic, and North America and increases in complaints in Latin America in 2018. 100% of the freedom of association cases examined by the CFA were brought about by workers, rather than employers. 50% of these workers were from the private sector. Violations of trade union rights and civil liberties composed the majority of freedom of association cases investigated by the CFA.<br /> <br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> <br /> Numerous scholars offer interpretations of the hierarchy of rights, placing freedom of association at differing levels of importance. Noted by Tom Farer in “The Hierarchy of Human Rights”, human rights are non-negotiable, and thus are prioritized within the hierarchy. As to why certain rights remain at the top of the hierarchy, Farer answers “because all other rights are dependent on them.” Furthermore, Farer claims that a consensus among United States human rights organizations is that the rights to life, physical security, and due process are essential human rights. Excluding freedom of association from his selection of non-negotiable human rights, Farer undermines its importance within the hierarchy of rights. Thus, Farer emphasizes that the rights to life, physical security, and due process hold precedence over the right to free association. <br /> <br /> Fernando Surez Muller argues that there is a select group of fundamental rights that are essential to the exercise of all other rights. With this, Muller emphasizes that certain rights must be prioritized in order for others to be functionally implemented. When analyzing the Universal Declaration of Human Rights, Muller interprets freedom of association to be a right of particular importance. Muller argues that the rights to communication and expression are impossible to exercise without the right of free association, claiming, “Related to this transcendental right to communication (cell 6) are also all mobility rights (mentioned in articles 13 to 15) because communication is not only a matter of expression but it is also a matter of transporting and receiving the message and this requires freedom of association.” Thus, from Muller’s perspective, freedom of association maintains a high position within the hierarchy of human rights. <br /> <br /> Explained by Kimberley Brownlee and David Jenkins of the Stanford Encyclopedia of Philosophy, the right to associate often only pertains to certain associations. Because of this, different rights to different associations have varying ranks within the hierarchy of rights. Brownlee and Jenkins claim “However, since not all associations operate according to either implicit or explicit declarations of consent, exactly what counts as consent is a difficult thing to assess: How do we know when association is free? This problem is exacerbated by the hierarchical form that many associations take.” For this reason, Brownlee and Jenkins note that explicit associations, group identifications that are easy to identify and thus protect, are often prioritized within the hierarchy of rights.<br /> <br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> <br /> <br /> The Universal Declaration of Human Rights places freedom of association at a high position of value. The document asserts: “ Everyone has the right to freedom of peaceful assembly and association; No one may be compelled to belong to an association.” While the document does not enumerate human rights in hierarchical order, the platform of the United Nations and the inclusion of the freedom of association within the document suffices the right’s universally accepted importance and position of high status. <br /> <br /> Additionally, the inclusion of freedom of association within the European Convention on Human Rights emphasizes the value of the right. Asserting the importance of freedom of association, Article 11 claims, “Everyone has the right to freedom of peaceful assembly and of association with others, including the right to form and join trade unions for the protection of his interests.” Stressing freedom of association to be an essential human right, the Convention echoes the Universal Declaration of Human Rights, upholding the value of freedom of association.<br /> <br /> The Canadian Charter of Rights and Freedoms similarly elevates freedom of association to a high status. Within its fundamental freedoms section, the charter emphasizes “Everyone has the following fundamental freedoms: a. Freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; freedom of peaceful assembly; and freedom of association.” Explicitly stating that the freedom of association is one of the four fundamental freedoms, the Charter clearly asserts that freedom of association is essential to the liberty of individuals. Given the select group of fundamental freedoms, the placement of freedom of association within the list demonstrates its uplifted position within the greater hierarchy of human rights. <br /> <br /> In the Declaration on Fundamental Principles and Rights at Work, the International Labour Organization additionally upholds the pertinence of freedom of association. Within the declaration, the ILO asserts four categories to be promoted by member states, including freedom of association. Similar to The Canadian Charter of Rights and Freedoms, by only including a select group of rights, the Declaration affirms the high status of these freedoms. Thus, the inclusion of freedom of association within the four categories asserts its importance<br /> <br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> <br /> Differences in state and federal law contribute to varying levels of freedom of association across the United States. While Supreme Court cases such as Bates v. Little Rock, Shelton v. Tucker, Roberts vs. United States Jaycees, Boy Scouts of America vs. Dale, and Christian Legal Society vs. Martinez upheld the right to freedom of association, the right continues to be violated across states. Furthermore, despite its support from the Supreme Court, the system of federalism often leads to the restriction of freedom of association by local courts and authorities.<br /> <br /> Particularly in South Florida, Lance Compa investigates how nursing home workers’ rights to free association have been violated. Furthermore, Compa explains how federalism exacerbates these violations. Noting the Palm Garden nursing home case, Copa discusses how nursing home workers were threatened with pay and benefit cuts if they decided to join unions. Additionally, Compa notes Palm Garden’s personnel manual, which states, “This is a non-union health center...if you are approached to join a union, we sincerely hope you will consider the individual freedoms you could give up, and the countless risks you could be taking.” After workers were in fact fired for joining unions, Compa notes, the NLRB asserted that Palm Garden must reinstate employees, as they had violated the workers’ right to free association. Still rejecting rehiring the employees, Compa explains that Palm Garden appealed to federal court, where the case still remains pending indefinitely. Furthermore, while the Supreme Court may uphold freedom of association, this does not mean the right can be strictly enforced throughout the United States, as appealing to federal courts demonstrates a significant challenge. <br /> <br /> Additionally, Compa notes how freedom of association has been restricted for food processing workers. Specifically, Compa discusses the abuses faced by Smithfield workers in North Carolina, a state dominated by the food processing industry. Firing union activists and actively intimidating and discriminating against organizing workers, the Smithfield Plant violated its workers' freedom of association in numerous ways. Compa stresses that these abuses were ultimately the result of federalism, a system that contributes to the restriction of freedom of association. Compa states, “Instead of fulfilling the affirmative responsibility of government authorities to protect workers’ rights, state power was used to interfere with workers’ freedom of association in violation of international human rights norms.” Noting how local police were permitted to intimidate workers at the Smithfield Plant, Copa affirms how local authorities restrict freedom of association, countering federal law. This demonstrates how the division of state and federal power can weaken the strength of freedom of association, as local governments can discreetly work to limit the right.<br /> <br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> Restricting certain groupings and gatherings that are involved, or likely involved in crimes as was seen with the response to the formation of the Ku Klux Klan as a vigilante association, is a typical exception to the right of freedom of association (Australian Law Reform Commission 2016). In response to the crimes committed by the organization, Congress passed a Force Act in 1870 and the Ku Klux Klan Act in 1871, which authorized the suppression of disturbances to the peace by force (Gruberg). This was in effort to stop terrorist organizations through heavy punishments, such as the suspension of habeas corpus under these acts. These acts were eventually found by the Supreme Court to be unconstitutional and were repealed; however, although direct restrictions upon the group (who was behind the 1963 bombing of a black church in Alabama, numerous murders including that of three civil rights workers in 1964 Mississippi, and other criminal efforts to impose white supremacy on the masses and restrict the rights of African Americans) and its freedom of assembly and association have not been able to lawfully prevent such crimes in the name of violations of the freedom of association, modern civil rights laws and increased national surveillance by the Federal Bureau of Investigation have indirectly impacted the KKK’s and other criminally-involved groups’ (such as terrorist groups like ISIL) freedoms of association and assembly. The First Amendment of the US Constitution grants the right to “peaceable assembly,” and any indication of unpeaceable assembly warrants government interference. When also the association infringes upon another group’s freedoms of association, endangers public safety and order, or does not benefit/or harms social need, as can be seen with the efforts of the KKK to restrict black Americans rights to vote and peaceably assemble, necessary limitations are placed upon the right. <br /> <br /> In terms of certain limitations on peaceable assembly, the government has the right to limit this freedom based upon “time, place and manner” restrictions: “Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity (O'Neill). These restrictions come in many forms including imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property. ” These limits ultimately regard the facilitation of legitimate regulatory goals, such as preventing traffic congestion or preventing interference with nearby activities.<br /> <br /> <br /> Religious rights often conflict with the right to free association. As observed in Christian Legal Society v. Martinez, where a Christian student organization argued their First Amendment right to prohibit non-christians from their group, religious associations have used their rights to religious freedom to restrict certain individuals from associating with them. Though, as the Supreme Court ultimately ruled against the Christian Legal Society, rights to free association were ultimately upheld over contradicting religious rights. <br /> <br /> A similar issued was observed in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group. Though, in this case, the Supreme Court asserted the right of groups to prohibit membership from individuals whose beliefs do not coincide with the group mission.Furthermore, Hurley exhibited how religious rights can counter rights to free association, as the decision emphasized that certain individuals could be blocked from associating with religious groups on the basis of their identity. <br /> <br /> Rights to public safety additionally contradict rights to free association. This is often the argument made when prosecuting individuals associating with criminal and terrorist groups. For example in City of Chicago v. Morales, the Supreme Court upheld a Chicago law which criminalized public gang association, asserting that gang members had no constitutional rights to free association (Cole). Exhibited by the court’s decision, individuals are not constitutionally protected to align with criminal groups, as the public’s right to safety against such groups weighs against personal rights to association.<br /> <br /> In regards to the right to free political association, parties hold a contradicting First Amendment right to limit party membership. Furthermore, while a candidate can identify as associating with a specific political party on a ballot, that party has the ability to disassociate from them (Legal Information Institute, Cornell Law School). Through this, a candidate often cannot freely affiliate with the party they associate with, exhibiting a contradiction to the right to free association.<br /> <br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> The freedom of association is derivative from the First Amendment which guarantees the freedoms of speech, assembly, and petition (Hudson 2020). These freedoms of speech, assembly, and petition all form sub-categories of the freedom of association. Collectively, this right permits a group to act in the collective interest of its members and to maintain private associations and assemblies without government interference. The legal problems regarding its practice have only recently arisen- particularly from the loyalty investigations of the Communist Party membership and a series of other cases in the 1950s and 1960s in relation to the activities of the National Association for the Advancement of Colored People (Cornell Law School Legal Information Institute 2020). For example, in 1958, with the case of the NAACP v. Alabama, the right to freedom of association was strengthened and supported by the Supreme Court who ruled in favor of the NAACP’s decision to withhold a list of members in the organization from the government (Hudson 2020). In response to Brown v. Board of Education 1954, Alabama authorities was closely investigating the NAACP under the foreign corporation law. The NAACP complied with the state’s request of its business records, including its charter and list of organizational officers and staff. They refused, however, to give lists of rank-and-file members due to confidentiality, potential economic reprisal attacks, and potential repression. Giving up the lists, civil rights activists said, would dissuade members and potential recruits from associating with the organization, ultimately violating their right of association. <br /> <br /> Prior to this case the Court had supported a stronger suppression of the freedoms of association and assembly regarding organizations that were alleged to be involved in subversive and unlawful activities. In 1928’s New York ex rel. Bryant v. Zimmerman and 1951’s Dennis v. United States the Court had ruled in favor of government efforts to restrict and limit the rights of assembly and speech of both the KKK and the Communist Party (U.S. Supreme Court 1928, 1951). In this case, however, the Court said NAACP did not cause harm to government or society, and they had complied with the demands of the Alabama government sufficiently; therefore they were justified and protected by law in their decision to withhold membership lists. <br /> <br /> Later, in the 1967 case of United States v. Robel in which Eugene Robel, an inactive member of the Communist Party, was charged with violating the Subversive Activities Control Act when he continued his work at the Todd Pacific Shipyards, a location that was deemed by the Secretary of Defense to be a defense facility (U.S. Supreme Court 2020). Under the Act, his actions was illegal due to his membership to the Communist Party and members of the Party’s legal inability to remain employed at a location deemed a “defense facility”. The Supreme Court ruled that the “defense facility” employment provision was an unconstitutional abridgment of the right of association regardless of its application solely to active Party members. Chief Justice Earl Warren wrote that the provision was overbroad while Justice William J. Brennan added that the designation of defense facilities being a power given to the Secretary of Defense was unconstitutional because the Act provided no meaningful standards for the Secretary to follow. This case was a milestone because, once tested, the Court upheld the broad freedoms of association and continued the prohibition of government interference and bias towards any individual based upon an affiliated association. Later cases regarding the Bar examine and admission to the bar further backed this right. In 1971’s Baird v. State Bar of Arizona and Law Students Research Council v. Wadmond, the Supreme Court established that the government could only deny admission to the bar if an applicant’s membership in a group advocating overthrow of the government (such as the Communist Party) was legitimately coupled with the specific intent to achieve that end (U.S. Supreme Court 1971).<br /> <br /> These cases established that organized groups in association that gather in efforts to advance political, economic, religious, or cultural matters may gather without government interference (and particularly without government knowledge of listed members) unless the group explicitly poses a threat to society or engages in criminal activity. <br /> <br /> Under American jurisprudence, permissible exceptions to the freedom involve matters of internal affairs such as discrimination cases. In the 1976 case of Runyon v. McCrary, discrimination based upon race was established as a limitation to a body’s freedom of association after two children were denied access to certain private schools in Virginia as a result of the schools’ admitted segregationist school policies (U.S. Supreme Court 1976). Later, in the Roberts v. United States Jaycees court case of 1984, the court ruled that the Jaycees, an organization of young business leaders that only fully accepted male members and who claimed that the anti-discrimination laws that forced them to accept qualified women was a breach of their freedom of association, lacked “the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women,” ultimately prohibiting their exclusion of women (Bernstein 2020). <br /> <br /> Also, if the state has a compelling interest, it can justifiably limit associations’ rights to organizational autonomy (Alexander 2008, 14). Here, the state would be setting limits and requirements for how a group is organizationally run and made up. By giving an organization a quota, the state forces a particular pattern of inclusion that is in the public interest. For example, the US government is permitted to work to create less segregated schools, involving programs like the Moving to Opportunity (MTO). It is permitted to do in efforts to promote certain patterns of inclusion and acceptance within communities and associations (U.S. Department of Housing and Urban Development 1992).<br /> <br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> In Article 22 of the UN’s International Covenant on Civil and Political Rights (ICCPR), the right to freedom of association is granted to all, including joining trade unions (United Nations 1966). Restrictions can only be placed on this right if the restrictions are prescribed by the state’s law and “are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.” Similarly, in Europe, derogations are permissible only when “prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others” as is stated in Article 11 of the European Convention on Human Rights (European Court of Human Rights 1953, 12). And Article 16 of the American Convention on Human Rights mirrors the decree of the ICCPR (Inter-American Commission on Human Rights 1969).<br /> <br /> Regarding the International Labour Organisation (ILO) and its adoption of Freedom of Association and Protection of the Right to Organize, this body is in place to protect the labor interests of those around the world, and they are prohibited by international law to formulate and/or apply law so as to prejudice against any group (Swepston 1998, 172).<br /> <br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> <br /> Freedom of association is an essential facet of modern democracy, yet it is often overlooked in political discourse on the natural rights and liberties of the citizen. This could be due to the fact that freedom of association and assembly are often so closely related to freedoms of speech and expression, or it could be because it is so difficult for political theorists to decide which association should be allowed and which can be justifiably restricted. Whatever the case, the debate over exceptions to the right of free association continues to change and evolve even in the modern era.<br /> <br /> John Locke is one of the earliest proponents of natural right theory; his second “Treatise on Government” famously outlines humankind’s three essential rights to life, liberty, and property (Locke, “Treatise on Government”). He does not specifically mention people’s freedom of association, but scholars point to his writings on religious assembly as an indication of his stance on the right. In a George Mason University publication, Eric Claeys refers to a passage from Locke’s “Letter Concerning Toleration,” which states that a church is simply a “free and voluntary society” (Locke, “A Letter Concerning Toleration”), saying that “if one reads the same passage from the Letter with an eye toward issues about associational freedom, Locke is making a far more radical point: All private societies, churches and otherwise, deserve a presumption of associational freedom” (Claeys, “The Private Society and the Liberal Public Good in John Locke’s Thought”). In light of Claeys’ assessment, it is easy to observe Locke’s thoughts on the freedom of association in the constitution that he wrote for the Carolina Colony in 1669. For example, Article 103 of this document states that “no person whatsoever shall speak anything in their religious assembly irreverently or seditiously of the government or governors, or of state matters” (Locke, “The Fundamental Constitutions of Carolina: March 1, 1669”). This reveals a reluctance on Locke’s part to allow any association of citizens to gather in opposition of the established government, perhaps because he understands the potential threat that this could pose to political society. His position on the freedom of association is made all the more clear in his 108th Article, which stipulates that “assemblies, upon what presence soever of religion, not observing and performing the above said rules, shall not be esteemed as churches, but unlawful meetings, and be punished as other riots” (Locke, “The Fundamental Constitutions of Carolina: March 1, 1669”). The “above said rules” to which Locke refers consist mostly of provisions to ensure free membership and movement between various religious establishments, but the classification of non compliant assemblies as “unlawful” or “riots” implies a Locke’s hesitation to allow totally free and unrestricted assembly.<br /> <br /> Subsequent political theorists built upon Locke’s theory of rights and liberties, and a number of them elected to deal with the right to freedom of association more directly. The United States Constitution, much of which rests upon Lockean political theory, is one of the first documents to directly address freedom of assembly in its text. Perhaps the buildup to the American Revolution, in which groups like the Sons of Liberty and the Stamp Act Congress were outlawed and broken up by the British government, affected the Constitutional Convention’s decision to include assembly in the Bill of Rights. The Constitution’s First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” (The Constitution of the United States of America). The Constitutional Convention, led by prominent statesman James Madison, used the word peaceably to signal that citizens were not entitled to the complete freedom of assembly if such activity could potentially generate violence or unrest (Law Library of Congress, “The Right to Peaceable Assembly”). The Cornell Law Review writes that this guarantee gradually came to protect citizens’ rights to participate in organizations that regularly utilize their members’ constitutional rights to freely assemble and petition the government. It states that over time, “Supreme Court decisions gradually determined that “the right of association is derivative from the First Amendment guarantees of speech, assembly, and petition” (Legal Information Institute, “Right of Association”). While Madison and his colleagues did not directly address freedom of association in the Constitution’s text, they did lay the groundwork for its realization years later.<br /> <br /> French diplomat Alexis De Tocqueville traveled to the United States in the early 1800s in order to observe the country, and in 1835 he published his findings in his first volume of Democracy in America. In this work the Frenchman sung praise for the American system of government, applauding it for spreading liberty and freedom within its borders. However, even de Tocqueville understood the danger inherent in the guarantee of totally unrestrained freedom of association. Linking the freedom of association to such constitutional rights as the freedom of petition and freedom of the press, he writes that “it cannot be denied that the unrestrained liberty of association for political purposes is the privilege which a people is longest in learning how to exercise. If it does not throw the nation into anarchy, it perpetually augments the chances of that calamity” (De Tocqueville, Democracy in America). De Tocqueville goes on to explain that American association is generally peaceful because citizens tend only to use it to oppose political groups, but he nevertheless must address the danger inherent in the guarantee of unrestricted freedom of association. Even in what he sees as a most ideal form of government, the Frenchman recognizes the risks inherent in unrestricted freedom when it comes to assembly and association.<br /> <br /> Decades later, John Stuart Mill came to a similar conclusion in his 1859 work, On Liberty. Mill was familiar with the American system of government, as evidenced by his mentions of American religious toleration and prohibition of “fermented” drinks, so it is possible that his thinking was influenced in some way by Madison’s work on the Constitution (Mill, “On Liberty”). In his work, Mill advances the theory that humans band together solely for the purpose of protection, and that therefore we can never have the authority to restrain others’ liberty. However, he notes that “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others” (Mill, “On Liberty”). Later on, he explicitly asserts that “freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (Mill, “On Liberty”). Clearly, Mill is aware of the dangers implicit in the creation of total freedom of assembly, and he agrees with the Constitutional Convention that this important right can permissibly be subject to certain regulations and limitations.<br /> <br /> The political and philosophical debate over freedom and association and its acceptable limitations evolved dramatically in the United States in the late nineteenth and early twentieth centuries. Writing just over a century after Mill, First Amendment scholar Thomas Emerson produced an article entitled “Freedom of Association and Freedom of Expression,” in which he addresses a number of issues relating to freedom of association by assessing court precedents and the lessons of history. Like the documents from Mill and Madison, Emerson’s article holds that complete freedom of association would be detrimental to society. Using the example of an organization whose sole aim is to perpetrate a successful bank robbery, Emerson points out that “some types of association need, and are entitled to, greater protection than others” (Emerson, “Freedom of Association and Freedom of Expression,”). He goes on to state that “the legal doctrine that protects associational rights must be able to distinguish between them and to afford the required measure of protection in each case” (Emerson, “Freedom of Association and Freedom of Expression”). Taking into account twentieth-century court decisions, Emerson explains that “the Supreme Court, in recognizing an independent &quot;right of association,&quot; has undertaken to give that right constitutional protection primarily through application of a balancing test” (Emerson, “Freedom of Association and Freedom of Expression”). <br /> <br /> This balancing test is incredibly important in determining the constitutionality of certain restrictions on citizens’ association because it must avoid violating citizens’ unequivocal right to free expression while still preventing the perpetration of unlawful action (Emerson, “Freedom of Association and Freedom of Expression,”). The case of NAACP v. Alabama is one case in which the Supreme Court attempted to find this balance. This instance in which the NAACP argued that the state of Alabama could not constitutionally require the organization to disclose a list of its members, proved incredibly important to our modern understanding of the right to association. Writing the majority opinion, Justice John Marshall Harlan II explained that “it is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment” (Franklin, “NAACP v. Alabama”). This differed from other contemporary cases, such as New York ex. rel Bryant v. Zimmerman, in which the Supreme Court had ruled in favor of the state’s ability to restrict association related to the Ku Klux Klan. The difference, Harlan explained, was that unlike the KKK, the NAACP did not present a threat to society. For this reason, the organization and the members involved were protected under the First Amendment’s protection of citizens’ freedom to peaceably assemble (Franklin, “NAACP v. Alabama”). Harlan, like Madison, Locke, and Mill, understood the importance of restricting free association in order to preserve the peace in society.<br /> <br /> The right to free association is famously difficult to address because the general consensus is that association should not be completely free. For that reason, political theorists and philosophers have gone to great lengths over the centuries to define exactly when and why free association should be limited or left alone. The general consensus is that assembly and association are detrimental to society when they lead to violence or unrest, but as with other rights it is difficult for theorists to decide exactly what criteria turn a given gathering from an expression of free assembly into a potential threat to civil society.<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> <br /> Philosophers and political theorists generally agree that it is sometimes necessary to curtail free association, but this agreement does not answer questions of which forms assembly and association can permissibly be restricted, how they should be limited, or who should control their regulation. It often falls to the government to decide when to step in during times of popular uprising or violent protest, but history also shows a number of instances in which private actors have curtailed citizens’ right to free association or assembly.<br /> <br /> The most common way for private actors can curtail free association is by prohibiting assembly and demonstration on their privately-owned property. In U.S. law, there exists a precedent that protects citizens’ right to free association on public property precisely because the right is not guaranteed when it is practiced on private property. This doctrine was first introduced in 1936, when Jersey City mayor Frank Hague issued an ordinance prohibiting members of the Committee for Industrial Organization (CIO) from gathering in a public space and distributing “communist” literature (Garcia, “Hague v. Committee for Industrial Organization,”). The CIO, with the help of the American Civil Liberties Union, successfully argued that the New Jersey ordinance was unconstitutional under the First Amendment. Hague appealed to the Supreme Court, which upheld the original decision and struck the ordinance down (Garcia, “Hague v. Committee for Industrial Organization,”). Justice Owen Roberts justified the decision for Hague v. Committee for Industrial Organization by likening public spaces such as streets and parks to public forums, in which the free flow of ideas and discourse must be protected under the First Amendment. He made this ruling because he recognized that private actors retained the right to curtail citizens’ right to association when that association occurred on private property. In order to preserve the right to peaceable assembly, the Court’s decision set the precedent for the “public forum” doctrine, which continues to protect the right to association in public spaces to this day (Garcia, “Hague v. Committee for Industrial Organization,”). Writing for The First Amendment Encyclopedia, David Hudson writes that “in the Court’s forum-based approach, the government can impose reasonable time, place, and manner restrictions on speech in all three categories of property, but has limited ability to impose content-based restrictions on traditional or designated public forums” (Hudson, “Public Forum Doctrine | The First Amendment Encyclopedia,”). The doctrine specifically aims to protect peaceful association on public property because the right is not guaranteed when assembly occurs on private property.<br /> <br /> One example of a private actor using its ownership of property to curtail free association can be observed in the 1994 case of Madsen v. Women’s Health Center, Inc. In this case, the Aware Woman Center for Choice in Melbourne, Florida filed a suit against anti-abortion protestors who had been blocking entrances to the building, harrassing abortion patients, and demonstrating outside of staff members’ homes (“Madsen v. Women's Health Center, Inc.”). A court order was issued, ordering protestors to refrain from trespassing on Center property, blocking its entrances, and abusing staff and patients. When the court order was violated, the “the court created a 36-foot buffer zone around the clinic entrances and driveways (including the public sidewalk) within which all antiabortion speech was banned. It also prohibited excessive noise and images that patients could see or hear during surgery and recovery” (“Madsen v. Women's Health Center, Inc.”). The Supreme Court later upheld the buffer zone rules, but struck down the prohibition of protestors’ practice of showing images to clients. It also ruled that the Florida court’s 300-foot buffer zone that prohibited protestors from approaching clients and staff at the Center and at their homes was too restrictive of First Amendment rights (“Madsen v. Women's Health Center, Inc.”). The ruling, according to Chief Justice Rhenquist, sought to preserve protestors’ right to association and assembly while still protecting the patients and clients from intimidation and abuse (“Madsen v. Women's Health Center, Inc.”). It also serves as a reminder that private citizens still reserve the right to curtail free association if said association makes them feel unsafe or threatened.<br /> <br /> Both the Madsen and Hague cases illustrate that judges, in particular, have immense power to determine the breadth of citizens’ right to freedom of association as guaranteed in the First Amendment. For example, in the case of Ward v. Rock Against Racism, the Supreme Court determined that free expression in the form of a rock concert in New York’s Central Park could be subject to volume regulations under the First Amendment (O'Neill, “Time, Place and Manner Restrictions”). This decision, written by Justice Anthony Kennedy, led to the creation of a test to determine whether assembly and expression could be restricted. The test asks whether the regulation is “content neutral,” whether it is “narrowly tailored” to fit a specific governmental interest, and whether it still provides ample opportunity for the message to be communicated (O'Neill, “Time, Place and Manner Restrictions”). If a regulation passes all three prongs of this test, then it can legally restrict or control the time, place, or manner in which assemblies like protests are carried out. The Law Library of Congress writes that since Kennedy’s decision, “the Supreme Court has held that it is constitutionally permissible for the government to require that a permit for an assembly be obtained in advance” (“Right to Peaceful Assembly: United States | Law Library of Congress”). Kennedy’s ruling also allows the government to “make special regulations that impose additional requirements for assemblies that take place near major public events” (“Right to Peaceful Assembly: United States | Law Library of Congress”). This legal doctrine has significantly shaped the way in which state and federal governments treat freedom of association and the right to peaceable assembly. While the Supreme Court can hardly be considered a private actor, Justices like Kennedy rely on personal study and private experience to create policy that affects American freedom of association as a whole.<br /> <br /> Citizens within a political society have the right to free association as long as it is peaceable and does not infringe upon others’ rights or liberties. This principle lends itself to a number of complexities because its parameters for free association are so vague, but over the past few centuries the United States has worked to define when and how private actors can curtail others’ right to free association. The result is that the Supreme Court, and the justices that make it up, have set out precedents that test whether certain forms of association are constitutional and which ones can justifiably be restricted. The definition of public spaces as areas of free association and creation of buffer zones for private properties represent significant steps forward in this effort.<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> <br /> The right to freedom of association is not an absolute right because it is subject to certain limitations. Political thinkers and legal experts generally agree that assembly and association can be justifiably restricted if it conflicts with other citizens’ security, liberty, or property. Another case in which the right is subject to certain limitations is in a case of emergency or long-run disaster. Recent history shows a number of instances in which the U.S. government has justified the restriction of the right to free association during times of war and natural disaster. Interestingly, it did not effectively curtail citizens’ right to free association during the recent COVID-19 pandemic.<br /> <br /> Freedom of association most often restricted in the event of war. In his work, “The Forgotten Freedom of Assembly,” Washington University scholar John D. Inazu briefly explores the effect that World War I had on citizens’ right to gather and discuss the country’s affairs. He writes that during the late World War I years, “the freedom of assembly was constrained by shortsighted legislation like the Espionage Act of 1917 (and its 1918 amendments) and the Immigration Act of 1918, and the Justice Department’s infamous Palmer Raids in 1920” (Inazu, “The Forgotten Freedom of Assembly”). William Riggs of the First Amendment Encyclopedia similarly notes that the Vietnam War era, in particular, saw drastic reductions in Americans’ rights to peaceable assembly and association. He writes that “the war in Vietnam quickly became the focus of major protests that resulted in increased government attempts to limit First Amendment protections. These efforts mostly dealt with the right to assemble and what constituted appropriate free speech criticism of the war” (“Vietnam War | The First Amendment Encyclopedia,”). The U.S. government broadly justified these restrictions by arguing that they were made in the interest of national security, claiming wartime as an acceptable time for the limitation of free association.<br /> <br /> Recently, the United States government has also walked back citizens’ right to freedom of association when dealing with natural disasters. A 2020 Congressional report on First Amendment rights during the COVID-19 pandemic notes that when public health and safety are at risk, the government is justified in its restriction of certain freedoms to widely assemble as long as these regulations aim to protect citizens’ essential rights, such as those to life or property. It notes that the government is justified in restricting freedoms of association at certain times of the day, as long as this action is taken with the explicit purpose of protecting citizens from further harms. “For example,” it says, “in upholding a county curfew following Hurricane Andrew, the Eleventh Circuit asked only whether the government (1) took that action in “good faith,” (2) with ‘some factual basis’ that the restrictions were ‘necessary to maintain order’” (Killion, CRS Report, “U.S. Library of Congress”). The report argues that “curfews, increased “police powers,” and other measures that are considered “essential to the public safety [and] health” all constitute acceptable restrictions of First Amendment rights-such as the right to freedom of peaceable assembly- during times of natural crisis (Killion, CRS Report, “U.S. Library of Congress”).<br /> <br /> The recent COVID-19 crisis created another instance in which citizens’ right to freedom of association was called into question. The pandemic caused widespread and dramatic change within global society as the country entered a state of total lockdown, and in the process it raised a number of legal, moral, and philosophical questions about association and assembly. In June 2020, for example, plaintiffs Ron Givens and Christine Bish filed a lawsuit against California State officials after being denied permission to hold a protest outside the California State Capitol building. The assembly, which aimed to protest the state’s response to the COVID-19 pandemic, was not allowed to take place because of the potential health risks it would create. In response to this denial, the Department of Justice filed a Friend-of-the-Court brief which argued that California’s de facto ban on public demonstrations directly conflicts with First Amendment guarantees and should therefore be struck down (“Department of Justice Files Friend-of-the-Court Brief in Support of Free Speech Challenge to California's COVID-19 Ban on In-Person Political Protests,”). The debate over pandemic restrictions and First Amendment rights became even more heated as the Black Lives Matter Movement sparked major demonstrations in major cities all over the country as citizens gathered to protest police actions in the murder of George Floyd. An MSN report on the protests in Boston notes that “Black Lives Matter Boston and Violence in Boston, two activist organizations who are expected to hold a protest in the city Tuesday evening, urged anyone who is at high risk due to COVID-19 to stay home. Organizers also asked participants to wear gloves and masks and bring hand sanitizer” (“Protesting amid the coronavirus crisis: Massachusetts officials say they respect demonstrators' 1st Amendment rights, urge them to take health precautions though,”). The DOJ’s Friend-of-the-Court brief, in addition to reports on the Boston protests, indicate that the U.S. government has largely decided to allow citizens to exercise the right to free association and assembly, despite the potential danger it could pose.<br /> <br /> The right to freedom of association is subject to a number of limitations. Periods of war, natural disaster, and global pandemic all create conditions in which the United States has considered placing restrictions on the right to peaceable assembly. In the two former cases, it has generally been able to regulate its citizens’ exercise of their right to freely associate with one another. However, the COVID-19 pandemic has shown that while the government may seek to limit its citizens’ assembly, it is not always able to enforce its regulations.<br /> <br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Religion&diff=229 2020-08-03T00:44:13Z

<p>Ksandlund: /* How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to? */</p> <hr /> <div>==History==<br /> ===What is the oldest source in any country that mentions this right?===<br /> The Edict of Toleration by Galerius in April of 311 ended Christian persecutions and granted their right to exist (Keresztes, &quot;From the Great Persecution to the Peace of Galerius,&quot; 390). This preceded the Edict of Milan by two years, which permanently declared religious toleration and protection for Christians within the Roman Empire (Britannica, &quot;Edict of Milan&quot;).<br /> <br /> ===What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE===<br /> ====Afghanistan====<br /> Its new constitution abides by the UHRD and Sharia law; it is constructed to defer to Sharia law in areas of blasphemy, apostasy, and conversion. However, minority religious communities do face some degree of discrimination (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Afghanistan,&quot; 1).<br /> <br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> The Constitution establishes freedom of religion, but also gives preferential status to the Roman Catholic Church (U.S. Department of State, &quot;ARGENTINA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Armenia====<br /> ====Australia====<br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> The Constitution declares Bangladesh to be an Islamic state, but ensures equal status of minority religions. However, minority religious have faced discrimination and pressure to migrate to India (Atkins, &quot;Challenges to Religious Freedom in Bangladesh&quot;).<br /> <br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> Bhutan is majority Buddhist and freedom of religion is guaranteed in the Constitution, but requires religious groups to register. As of now, only Buddhist and Hindu groups are registered and Christian organizations have not received an answer (U.S. Department of State, &quot;BHUTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> ====Brazil====<br /> The Constitution guarantees freedom of conscience and religious practice. In addition, it prohibits the state from favoring one religion over others (U.S. Department of State, &quot;2016 Report on International Religious Freedom - Brazil&quot;).<br /> <br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> The Constitution establishes freedom of religion, but limits it to &quot;normal religious activity&quot; without defining normal. Religious groups are controlled if they are perceived to be a threat by the Communist Party. In recent years, there has been a campaign of religious persecution of the Uighurs in the Xinjiang province (U.S. Department of State, &quot;CHINA (INCLUDES TIBET, XINJIANG, HONG KONG, AND MACAU) 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Colombia====<br /> The Constitution establishes freedom of religion, but gives preferential status to the Roman Catholic Church (Humanists International, &quot;The Freedom of Thought Report&quot;).<br /> <br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> Freedom of religion is guaranteed in the Constitution, but establishes the Evangelical Lutheran Church as the national church. Religious groups are required to register with the government. In recent years, there have been indications of restrictions of this freedom, such as banning face masks and mandatory religious teachings in pre-schools (U.S. Department of State, &quot;DENMARK 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> The earliest documentation of freedom of religion in France is the Declaration of the Rights of Man and of the Citizen in 1798 (Britannica, &quot;Declaration of the Rights of Man and of the Citizen,&quot; Article 10). The Law of Secularism, passed in 1905, establishes the separation of church and state, but favors traditionally &quot;French&quot; religions such as Catholicism, at the expense of others, like Islam (U.S. Department of State, &quot;FRANCE 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> Religious freedom and secularism are guaranteed in the Constitution. The various autonomous states regulate the existence and activities of religious groups within their borders (U.S. Department of State, &quot;GERMANY 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Ghana====<br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> ====Indonesia====<br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> Freedom of religion is guaranteed in the Constitution and religious groups are not required to register with the government. In terms of schooling, religion classes are permitted but parents can opt their students out (U.S. Department of State, &quot;IRELAND 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Israel====<br /> ====Italy====<br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> The Constitution guarantees freedom of religion (Sumimoto, &quot;RELIGIOUS FREEDOM PROBLEMS IN JAPAN: BACKGROUND AND CURRENT PROSPECTS&quot;).<br /> <br /> ====Jordan====<br /> ====Kazakhstan====<br /> The Constitution defines it as a secular state and ensures freedom of religion. Some missionary organizations are banned, as well as religious sects such as Sufism, Baptists, Seventh-day Adventists, and Presbyterians (U.S. Department of State, &quot;KAZAKHSTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Kenya====<br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> The Constitution guarantees freedom of conscience and religion and bans religious groups from inciting hatred towards others. It requires religious groups to register, but maintains bans on twenty-one &quot;extremist&quot; religious groups (U.S. Department of State, &quot;KYRGYZ REPUBLIC 2017 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Laos====<br /> ====Latvia====<br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> The Constitution designates Islam as the state religion, requires all citizens to be Muslim and requires all public officials to be Sunni Muslim (U.S. Department of State, &quot;MALDIVES 2019 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> The new constitution guarantees religious freedom, but bans conversions to Hinduism (Nazir-Ali, &quot;Christianity in South and Central Asia,&quot; 382).<br /> <br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> In 1845, the Dissenter Law gave Norwegians the right to secede for the state church and regulated the formulation of nonconformist sects. In 1964, it was amended to be included in the Constitution and the right to form denominations was expanded to include all religions five years later (Hale, &quot;The Development of Religious Freedom in Norway,&quot; 56).<br /> <br /> ====Oman====<br /> ====Pakistan====<br /> The Constitution designates Islam as the state religion and requires that all government laws be consistent with Islamic law. Despite this, the Constitution contains the right to religious freedom, though its implementation is disputed (U.S. Department of State, &quot;Pakistan,&quot; 1).<br /> <br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> ====Philippines====<br /> ====Poland====<br /> ====Portugal====<br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> The Constitution establishes freedom of religion and recognizes four &quot;traditional&quot; religions--Christianity, Judaism, Islam and Buddhism. Preference is given to the Russian Orthodox Church (U.S. Department of State, &quot;RUSSIA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> ====South Africa====<br /> ====South Korea====<br /> ====South Sudan====<br /> ====Spain====<br /> Freedom of religion is established within the Constitution and established a secular state. The Catholic Church, however, has established itself as a central player within Spanish politics, with its prominent role in the People's Party. It also has special privileges within Spanish society (U.S. Department of State, &quot;SPAIN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Sri Lanka====<br /> The Constitution provides freedom of thought and religion. It recognizes four religions (Buddhism, Christianity, Hinduism, and Islam). It also designates Buddhism as the state religion, thus giving it priority (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Sri Lanka&quot;).<br /> <br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> The Constitution provides religious freedom and establishes separation between church and state. All religious activity is required to be reported to the state. An amendment to current law (enforced in January 2018) permits restrictions on religious activity for the sole purpose of ensuring the rights and freedoms of others, as well as banning one religious sect from being state ideology (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Tajikistan&quot;).<br /> <br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> The Constitution ensures a secular state, but is significantly limited. The state requires that all religious organizations must register--as of now, only Sunni Muslims and Russian Orthodoxes are registered (U.S. Department of State, &quot;UZBEKISTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> The Toleration Act of 1689 allowed nonconformist religions, with the exception of Roman Catholicism, to practice. However, social penalties still persisted (U.K. Parliament, &quot;Catholics and nonconformists&quot;). The Human Rights Act of 1998 established the fundamental rights of citizens within the UK, including freedom of religion (Equality and Human Rights Commission, &quot;The Human Rights Act,&quot; Article 9).<br /> <br /> ====United States====<br /> ====Uruguay====<br /> ====Uzbekistan====<br /> The Constitution guarantees freedom of religion and separation of church and state (U.S. Department of State, &quot;UZBEKISTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> The Edict of Milan, as noted above, came two years after the Edict of Toleration by Galerius and granted religious toleration within the Roman Empire. The Magna Carta, signed in 1215 in England, provided the foundations for the rights of men, including freedom of religion (Britannica, &quot;Magna Carta&quot;).<br /> <br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> <br /> Religious freedom, while commonplace in modern liberal democracies, was not always identified as a natural right with which people were born. Historical narratives describe the “Dark Ages” between the fall of the Roman Empire and the advent of early modernity as a period in which the world was divided between various civilizations according to the religions which they professed. Religious pluralism did not become more widespread until toleration and freedom of religion were identified as potential rights. In Western civilization, this occurred during the Protestant Reformation of the sixteenth and seventeenth centuries.<br /> <br /> The Reformation was one of the most influential movements in the course of western history. As leaders like Martin Luther, and John Calvin led Christian communities to break from traditional Catholicism, the rate of religious pluralism rose within Europe and led to a series of religious wars that defined the sixteenth century. In an early attempt to mediate these conflicts, German rulers negotiated the 1555 Peace of Augsburg. Andrea Walsham writes that this document “established the principle of cuius regio, eius religio, by which individual rulers were permitted to choose whether Catholicism or Protestantism should be professed in their states” (Walsham, “Reformation Legacies,” 231.) Thus, in addition to legalizing the practice of multiple religions within the German states, the adoption of cuius regio, eius religio also meant that religion would no longer be forced upon a principality by outside forces. The idea that Christian rulers could have the right to choose their own religion, and that this choice would be respected, represents an early step toward the principles of religious pluralism and toleration. The Peace of Augsburg did not lend religious agency to the subjects living within these principalities, but it did show European leaders that cooperation was possible between rulers who belonged to differing faiths. <br /> <br /> The seventeenth century was an especially bloody one which included such conflicts as the English Civil War, the French Wars of Religion, and the vicious Thirty Years’ War. Religious plurality invariably led to violence in the seventeenth century, but these conflicts were often followed by important agreements that fostered some level of religious toleration. In 1598, following the religious battles between Catholics and Protestants in France, the French King Henry (IV) of Navarre signed the Edict of Nantes, which “gave Protestants permission to practice their faith openly, albeit within strict limits and as second-class citizens” (Walsham, “Reformation Legacies,” 231). The Thirty Years’ War famously concluded with the Peace of Westphalia, which decreed (among other things) that while each state should have the right to establish an official religion, they were also obligated to allow their subjects the opportunity to practice different Christian denominations without fear of persecution (Christenson, “Liberty of the Exercise of Religion in the Peace of Westphalia,” 740). By favoring religious toleration, Westphalia’s signatories recognized that only religious toleration would reduce the potential for future conflict between the various sects of Christianity. Documents like the Edict of Nantes and the Peace of Westphalia ultimately failed to end religious persecution and conflict within Europe, but they still reveal a heightened awareness of the need for leaders to tolerate religious plurality within their borders.<br /> <br /> As the sixteenth and seventeenth centuries wore on, European intelligentsia began exploring the concept of religious freedom more directly. Enlightenment thinkers such as Voltaire and Baruch Spinoza led the intellectual charge in support of freedom of conscience and thought, while political leaders such as Roger Williams and Thomas Jefferson incorporated principles of religious freedom and the separation of church and state into their state building efforts in North America. While legal guarantees of the right to religious freedom would not be made until the seventeenth and eighteenth centuries, the modern right to freedom of religion is rooted in Reformation-era efforts to mediate religious conflict and incorporate religious toleration into budding European nation-states.<br /> <br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> <br /> After witnessing the horror of religious warfare during the Reformation era, European philosophy began to explore the idea of religious toleration within political society. As the Enlightenment movement gained momentum during the seventeenth, eighteenth, and nineteenth centuries, western civilization turned to science, empiricism, and reason as sources of wisdom and knowledge. This movement was accompanied by a shift away from purely religious discourse as innovative thinkers began to take up more secular pursuits than they could have in centuries past. With this shift thinkers like Locke, Voltaire, Spinoza, and Williams began to question whether states had the right to dictate their subjects’ religious beliefs. These questions led these Enlightenment thinkers to begin believing that political society would better respect its citizens’ rights if it were to adopt policies of religious toleration.<br /> <br /> Religious pluralism became a reality in Enlightenment-era Europe. The Protestant Reformation of the previous centuries had given rise to a number of Protestant-dominated secular states which had carved out a right to remain independent of the Catholic Church after decades of bloodshed and warfare. In the following centuries, thinkers like Spinoza and Voltaire reflected upon the dangers that intolerance can pose to a peaceful society. In 1670 Spinoza’s anonymously published “Treatise on Theology and Politics” radically asserted that “men are very prone to error on religious subjects, and, according to the diversity of their dispositions, are wont with considerable stir to put forward their own inventions, as experience more than sufficiently attests.” (Spinoza, “The Chief Works of Benedict De Spinoza,” 163). However, rather than calling for the abolition of religious toleration, Spinoza uses this idea that religious difference breeds conflict to suggest that states should abandon any effort to control their citizens’ beliefs, and should instead simply protect the people’s right to their own thoughts. In a state built on principles of toleration instead of religious unity, religious conflict would be less likely. A century later, Voltaire came to a similar conclusion in his 1775 “Treatise on Tolerance.” In this work, the Frenchman writes that “toleration, in fine, never led to civil war; intolerance has covered the earth with carnage,” and asserts that “the whole of our continent shows us that we must neither preach nor practise intolerance” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). By linking the idea of religious toleration to the need for states to maintain law and order within society, both Spinoza and Voltaire began to identify religious freedom as an essential facet of a well-ordered state.<br /> <br /> Another important Enlightenment idea that contributed to the identification of the right to religious freedom was the argument that God may will that religious toleration be extended throughout the Christian world. After centuries of warfare, much of it based on the principle that members of the one true religion must fight infidels in the name of God, this was a relatively novel idea. In his 1644 work, The Bloudy Tenent of Persecution, Roger Williams rejects this idea and states that “it is the will and command of God, that (since the coming of his Son the Lord Jesus) a permission of the most pagan, Jewish, Turkish, or Antichristian consciences and worships, be granted to all men in all nations and countries...” (Williams, “The Bloudy Tenent of Persecution”). The Tenant even goes as far as to claim that “God requireth not an uniformity of religion to be enacted and enforced in any civil state…”(Williams, “The Bloudy Tenent of Persecution”). Williams’ work was not well-received by his audience in England, especially considering that the country was still in the midst of a religiously-motivated civil war. However, the idea that the civil state should not enforce any religion was hugely influential in the colony of Rhode Island, of which Williams is considered the sole founder. Decades later, in 1689 following the French King Louis XIV’s revocation of the Edict of Nantes, Locke wrote something very similar in his “Letter Concerning Toleration.” In this letter, he asserts that “the toleration of those that differ from others in matters of religion is so agreeable to the Gospel of Jesus Christ...that it seems monstrous for men to be so blind as not to perceive the necessity and advantage of it in so clear a light” (Locke, “A Letter Concerning Toleration”). The desire to follow God’s will had long guided European thoughts about the connection between church and state, but thinkers like Williams and Locke presented important challenges to this notion. This allowed for discussion over the right to religious freedom to flourish as the Enlightenment wore on.<br /> <br /> Though discourse on religious toleration was still considered fairly radical during the seventeenth century, Enlightenment philosophers also questioned whether it was indeed even possible for a state to dictate its citizens’ religious beliefs. Spinoza’s “Treatise” is heavily concerned with the idea that a person’s right to think freely is a natural right which cannot be deprived by any political society. He writes that “however unlimited, therefore, the power of a sovereign may be, however implicitly it is trusted as the exponent of law and religion, it can never prevent men from forming judgments according to their intellect, or being influenced by any given emotion” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This, Spinoza believes, necessarily implies that a state could never enforce a person’s belief or religious faith because it is not possible for a state to take a person’s mastery of their own thoughts. Voltaire expresses a similar sentiment in his essays when he states that “it does not depend on man to believe or not to believe: but it depends on him to respect the usages of his country” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). Writing about a century after Spinoza, Voltaire also explored the idea that the state is unable to change how a citizen believes, as long as the belief is not inherently detrimental to the state itself. With this in mind, Voltaire advances the idea that because states cannot change its citizens’ beliefs, it should embrace a diversity of beliefs by incorporating the principle of religious freedom into its governance.<br /> <br /> Among the most radical Enlightenment-era ideas concerning religious toleration was the thought that civil states did not have the inherent right to dictate citizens’ religion at all. Locke’s “Letter” asserts that “nobody, therefore, in fine, neither single persons nor churches, nay, nor even commonwealths, have any just title to invade the civil rights and worldly goods of each other upon pretence of religion” (Locke, “A Letter Concerning Toleration”). Spinoza similarly states that “government which attempts to control minds is accounted tyrannical, and it is considered an abuse of sovereignty and a usurpation of the rights of subjects” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This idea that citizens of a political society could have the innate right to decide their own thoughts and religion built upon the initial identification of religion as a multifaceted issue, which originated centuries earlier during the Reformation. As early as 1644, former Massachusetts Puritain Roger Williams rather controversially wrote that “all civil states and their officers of justice in their respective constitutions and administrations are proved essentially civil, and therefore not judges, governors, or defenders of the Spiritual or Christian state and worship” (Williams, “The Bloudy Tenent of Persecution”). The principle that civil states could not serve as spiritual authorities directly influenced the development of political states such as the Rhode Island Colony and the United States of America, in which freedom of religion was identified as an essential right with which the government could not interfere.<br /> <br /> Though the idea of a right to religious freedom was first conceived during the religious wars of the Reformation era, Enlightenment thinkers deserve credit for identifying religious freedom as an essential right. Questions of whether God’s will dictated religious uniformity, the dangers of combating religious pluralism, as well as issues of citizen and states’ rights all contributed, decades and centuries after they were originally pondered, to the inclusion of religious freedom in mainstream political discourse. Williams and Locke both made important contributions to the growing American discussion of essential rights and liberties, while writings from thinkers like Spinoza and Voltaire gradually invited Europeans to consider the benefits of granting religious freedom to their subjects.<br /> <br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> <br /> Religious freedom was originally identified as a fundamental right when Enlightenment thinkers began to question whether political society has the obligation, or even the right, to decide its citizens’ religion. At the time, the widespread conclusion was that religious toleration and freedom of belief were preferable to religious uniformity and faith-based oppression. Around the same time in the seventeenth and eighteenth century, political documents began to identify religious freedom as a fundamental, legally-protectable right with which the state had no right to interfere. Among the first western states to legislate freedom of religion were the English North American colony of Rhode Island, a few of its fellow American colonies, and the United States itself. There was some historical precedent for government-legislated religious toleration in the form of the 1598 Edict of Nantes and the 1648 Treaty of Westphalia, but the Rhode Island Charter and the United States Constitution were among the first documents to completely prohibit governments from interfering in their citizens’ religious affairs.<br /> <br /> The founding of the Rhode Island and Providence Plantations is accredited to Roger Williams, a preacher who was banished from the Massachusetts Bay Colony in 1635 and went on to purchase from the Narragansett Native Americans a plot of land that would become the city of Providence, Rhode Island (Smithsonian Institution, “God, Government and Roger Williams’ Big Idea”). He was banished for holding religious views that contrasted with those upon which the Massachusetts Bay Colony was founded, and it is likely that this experience influenced his thoughts about religious freedom and the value of toleration within political society. He expresses these views quite effectively in his 1644 work, The Bloudy Tenent of Persecution, which states that “the permission of other consciences and worships than a state professeth, only can (according to God) procure a firm and lasting peace, (good assurance being taken according to the wisdom of civil state for uniformity of civil obedience from all forts)” (Williams, “The Bloudy Tenent of Persecution,”). The Rhode Island Charter, which Williams secured from Parliament in July 1663, reflects this view. It states that: <br /> <br /> &quot;No person within the said colony, at any time hereafter, shall be any wise molested, punished, disquieted, or called in question, for any differences in opinion in matters of religion, and do not actually disturb the civil peace of our said colony; but that all and every person and persons may, from time to time, and at all times hereafter, freely and fully have and enjoy his and their own judgments and consciences, in matters of religious concernments, throughout the tract of lance hereafter mentioned.&quot; (“Charter of Rhode Island and Providence Plantations - July 15, 1663”)<br /> <br /> By prohibiting the molestation, punishment, disquieting, and questioning of any citizen on the basis of religion, the Charter sets a clear guarantee that those living within the colony had the legal right to religious freedom. This was groundbreaking not only because it was the first of the thirteen original American colonies to guarantee total religious freedom, but also because unlike most contemporary acts of toleration, the Charter did not exclude Quaker and Jewish citizens from enjoying the religious freedom that it promised.<br /> <br /> Of course, Rhode Island was not the only one of the thirteen original American colonies to identify religious freedom as a fundamental, legally protectable right. Colonies like Maryland and Pennsylvania are also noteworthy for their inclusion of religious groups that made up the English minority. Maryland famously welcomed Catholics inside its borders, and Pennsylvania was originally founded as a Quaker colony under William Penn. As the colonies grew they became examples to contemporary Enlightenment thinkers, who looked to their example as proof that religious toleration was a desirable principle within any system of government. In his work on religious toleration, Voltaire writes of Philadelphia that “discord and controversy are unknown in the happy country they have made for themselves; and the very name of their chief town, Philadelphia, which unceasingly reminds them that all men are brothers, is an example and a shame to nations that are yet ignorant of toleration” (Voltaire, “Toleration and Other Essays - Online Library of Liberty,”). The benefits of religious freedom were well-known by the time of the American Revolution, which explains why religious freedom was such an important building block of the early republic. The Constitution of the United States was also one of the first documents to identify religious freedom as a fundamental, legally protectable right. Its First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (“United States Bill of Rights, Amendment I”). The inclusion of this language in such an influential document represents an important step in the identification of religious freedom as a fundamental legal right. <br /> <br /> It should be noted, however, that the First Amendment does not explicitly separate church and state within the United States government. The principle of church and state separation was not explicitly outlined until 1802, when President Thomas Jefferson outlined it in a letter to the Baptist community of Danbury, Connecticut. It was written in response to community leaders’ complaint that religious freedom was being treated as a privilege, not a right within their state. They wrote that “our sentiments are uniformly on the side of religious liberty--that religion is at all times and places a matter between God and individuals--that no man ought to suffer in name, person, or effects on account of his religious opinions--that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbors” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). In response, Jefferson famously asserted that “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church &amp; State” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). This separation to which he refers is built upon Enlightenment ideals set out by thinkers like Locke and Spinoza, and it represents the realization of a movement for religious freedom that originated centuries before with the Protestant Reformation.<br /> <br /> Religious freedom is a right with a long history, and for centuries after it first came into question within the western world it was debated and considered. Thinkers like Locke and Voltaire championed it, and documents such as the Treaty of Westphalia and the Edict of Nantes made important strides toward realizing it as a legally protectable right. However, many of the first true instances of legally protected religious freedom occurred in American documents such as the Rhode Island Charter and the United States Constitution. These landmark pieces of legislation framed the modern American stance on religious toleration and the right to freedom of belief.<br /> <br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> <br /> Widespread belief in the importance of religious freedom within a liberal democratic society developed over centuries of religious separation, conflict, discourse. Over the past five hundred years Western civilization has transitioned from a uniformly Christian bloc of nations into a set of states defined by religious diversity and built upon the principles of toleration and religious freedom. Three major forces drove that transformation: The violence caused by religious intolerance, the increasing value of free thought, and the success of religiously free states. Over time, all three of these historical forces led to the widespread belief in the importance of religious freedom within western society.<br /> <br /> The first historical force that led to the original identification of religious freedom as a valuable right was the horror and devastation that Europe witnessed during the Reformation era as a result of religious conflicts. The widespread destruction that took place during such conflicts as the Schmalkaldic Wars, the French Wars of Religion, and the English Civil War showed Europeans how difficult it would be to preserve religious unity within their borders, which led some to question the value of religious homogeneity. The Thirty Years War, especially, led to the identification of religious tolerance as an alternative to the religiously-motivated violence when it concluded with the landmark Peace of Westphalia. Voltaire’s assessment that “Germany would be a desert strewn with the bones of Catholics, Protestants, and Anabaptists, slain by each other, if the Peace of Westphalia had not at length brought freedom of conscience” reveals how important the war, and the treaty that ended it, really were to the identification of religious freedom as an important civil right (Voltaire, “Toleration and Other Essays - Online Library of Liberty”). Historian Gordon Christenson similarly notes that the principle of religious tolerance had been included in previous Reformation-era treaties, but the Peace of Westphalia’s explicit use of the principle as a peacekeeping measure reveals that it had broken into mainstream political thought by the end of the war (Walsham, “Reformation Legacies,” 231.)<br /> <br /> As the dust settled after years of religious conflict, a second historical force also contributed to the widespread belief in the right of religious freedom. During the seventeenth and eighteenth centuries, Enlightenment thinkers reflected upon the Reformation wars and the state of European politics, and began to advocate for the freedom of thought and faith within political society. In 1669 Spinoza concluded that “a government would be most harsh which deprived the individual of his freedom of saying and teaching what he thought; and would be moderate if such freedom were granted” (Spinoza, “The Chief Works of Benedict De Spinoza,” 195), Two decades later, Locke came to a similar conclusion when his “Letter Concerning Toleration” specifically outlined the principle of religious toleration by asserting that “no private person has any right in any manner to prejudice another person in his civil enjoyments because he is of another church or religion” (Locke, “A Letter Concerning Toleration,”). Though the identification of religious freedom as a fundamental right did not immediately lead to its universal adoption among western states, it did represent a significant advancement in the field of religious rights. Going forward, rulers and state builders were more conscious of religious toleration as a viable alternative to forcing religious uniformity within their borders. About a century later, this Locke sentiment was directly incorporated into the American Bill of Rights, which prohibits the creation of any law that might restrict the free practice of religion(Constitution of the United States of America).<br /> <br /> Over time the ideas of toleration and the freedom of thought became more widespread, which led a number of states to explore religious freedom as a principle upon which strong nations could be built. Among the first political leaders to embrace the principle of religious freedom was Roger Williams, who founded the English colony of Rhode Island after he was banished from the Massachusetts Bay Colony. As the colony grew over the next several years, he drafted a compact under which it could be governed. Smithsonian Magazine writes that “the most significant element was what the compact did not say. It did not propose to build a model of God’s kingdom on earth, as did Massachusetts...the compact did not even ask God’s blessing. It made no mention of God at all” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). Shortly afterward Williams traveled to England in order to secure a charter from an English Parliament that was itself in the midst of a Civil War. The charter was granted, and the committee that granted it “left all decisions about religion to the “greater Part”—the majority—knowing the majority would keep the state out of matters of worship. Soul liberty now had official sanction” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). The establishment of the Rhode island colony greatly benefitted the growing belief in religious freedom as a fundamental right because it proved that a political society defined by toleration could find success despite the lack of uniform religion. This idea heavily influenced the drafting of the United States Constitution, and over the next two centuries freedom of religion came to be a defining feature for liberal democracies.<br /> <br /> Over the past five centuries, western civilization underwent a number of historical changes that led it to lose faith in the benefits of religious homogeneity and instead come to support freedom of belief and universal toleration. As it slowly began to understand the dangers of promoting state-led religious uniformity, the western world began to explore ideas of plurality and acceptance before eventually embracing them in political entities such as Rhode Island and the United States. Modern democracies still struggle to guarantee the right to freedom of religion at times, but after five hundred years of development western society at least recognizes it as a fundamental human right.<br /> <br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> Most countries in the modern world protect freedom of religion in their constitutions; however, the extent to which the right is truly protected in practice ranges from state to state. The U.S. State Department names and publicly shames eight “Countries of Particular Concern” that systematically and consistently violate religious freedom rights within their borders: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan (Pellot 2014). The Freedom of Thought Report by Humanists International found that you can be put to death for expressing atheism in an astonishing thirteen countries. Also, in thirty-nine countries the law mandates a prison sentence for blasphemy, including six surprising western countries: Iceland (up to three months), Denmark (up to four months), New Zealand (up to a year), Poland (up to two years), Germany (up to three years) and Greece (up to three years). Although the right may be protected in many states' constitutions, freedom of religion is severely lacking in many countries around the world.<br /> <br /> ===Is it contained in the US Constitution?===<br /> <br /> Yes this right is protected in the First Amendment of the US Constitution. It permits that all people have the right to practice his/her own religion, or that they have the choice to practice no religion at all. There is no established religion in the US, and under the Establishment Clause of the First Amendment, the government is prohibited from advancing or advocating any religion in any way. Also, under the Free Exercise Clause, the government cannot penalize a person for choosing or not choosing to worship in any particular way (ACLU 2020).<br /> <br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> The right is explicitly protected both in the Bill of Rights, but also in Article VI of the Constitution. This article prohibits religious discrimination in the formation of the government under the No Religious Test Clause. The clause, stating that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States,” promotes the freedom of religion and religious equality in all manners of life, starting from within the government itself (Brownstein and Campbell 2020)<br /> <br /> ===Are there any exceptions in American law to this right?===<br /> Based upon the Constitution and the First Amendment, the federal government is, by law, not permitted to limit the exercising of one’s right to freedom of religion, but this specific clause did not apply at the state level (Lutz 2013). Eventually the Fourteenth Amendment was ratified, extending more religious freedoms as a guaranteed right to the states. However, in the actual application of the freedom of religion, the US relies upon Supreme Court decisions as a guide to the manner in which the right is exercised. In 1878, in the case of Reynolds v. United States, the Mormon Church legally challenged the 1862 Morrill Anti-Bigamy Act in efforts to continue their polygamist practices according to their beliefs and interpretations of their religion. The Supreme Court ruled in favor of the US, citing that the law did not interfere with religious belief nor did it selectively target religious practice. In essence, “while the freedom to believe is absolute, the freedom to act on those beliefs is not” (Freedom Forum Institute 2020). Chief Justice Morrison Waite wrote, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, permit every citizen to become a law unto himself” (Lutz 2013). <br /> <br /> This decision was later reinforced in 1990, with the case of Employment Division v. Smith. After Alred Smith was fired from his job for using peyote, a controversial and, at that time, illegal hallucinogenic plant used in some religious rituals within the Native American Church, he sued the employment division under the law’s protection of “free exercise” (Cornell Legal Information Institute 2020). The Court ruled in favor of the Employment Division citing that the reason for the termination was work-related misconduct. Scalia stated that, allowing this kind of exemption from the law “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.” Eventually in 1994, however, this decision was reversed with the passing of the H.R. 4230 amendment to the American Indian Religious Freedom Act which protected the use of peyote in religious ceremonies.<br /> <br /> Also notably, the Sherbert v. Verner case of 1963 established the four-part “Sherbert test.” This test is also referred to as the “compelling interest” test. The test’s four parts are that: “For the individual, the court must 1. determine whether the person has a claim involving a sincere religious belief, and 2. whether the government action places a substantial burden on the person’s ability to act on that belief. Next, if these two elements are established, then the government must prove that 1. it is acting in furtherance of a “compelling state interest,” and that 2. it has pursued that interest in the manner least restrictive, or least burdensome, to religion” (Freedom Forum Institute 2020).<br /> <br /> However, the test was undermined in the ruling of the Employment Division v. Smith case because of the court’s implication that one could not legally and successfully challenge an infringement upon free exercise if the unintended result was to break laws that were generally applicable to all (and it permitted that the government did not have to justify this infringement by proving a compelling state interest). Also, these rulings were all made at the federal level; many states still control the ultimate application of “free exercise,” and as a result, the interpretation varies in differing states. <br /> <br /> Another notable case is the 1968 case of Newman v. Piggie Park Enterprises (Justia 2020). This case backed anti-discriminatory statutes after a barbecue chain refused to serve black people with the justification of the owner being that his beliefs compelled him to segregate races within his restaurants. This case was monumental because it well-established the limit to freedom of religion that allows for the weaponizing of one’s rights against another man. <br /> <br /> The courts also uses other tests in determining decisions regarding freedom of religion. The three-part Lemon test from the 1971 decision Lemon v. Kurtzman (which prohibited state funding of religious schools) states that 1. a court must first determine whether the law or government action in question has a compelling state and secular interest, underlining the idea that government should only concern itself in civil matters and should interfere with matters of individual religion as little as possible. 2. The state action must be proved to have the primary effect of advancing or inhibiting religion. And 3. the court must consider whether the action in question excessively entangles religion and government(Pacelle Jr.). Although criticized by several Supreme Court justices, some courts still use this test in establishment-clause cases. However, in the 1997 decision Agostini v. Felton, the Supreme Court finally modified the Lemon test in that it combined the entanglement and primary effects prongs of the test. <br /> <br /> The endorsement test, proposed by Justice Sandra Day O’Connor in her concurring opinion in the 1984 case of Lynch v. Donnelly, asks whether a particular government action amounts to an endorsement of religion (Hudson Jr.). This test has sometimes been assumed to fall into the Lemon test. It is similar to the first two prongs of the Lemon test by subjecting the challenged government act to the criteria of having the purpose or effect of endorsing religion. This test typically is invoked where the government is involved in expressive activities such as graduation prayers, religious signs on government property, religion in the curriculum, etc.<br /> <br /> Under the coercion test, the government does not violate the establishment clause unless it provides direct aid to religion in a way that would establish a state church or unless it coerces people to practice a religion against their will (Vile). However, this test is subject to varying interpretations, as is demonstrated in the conflicting cases of Allegheny County v. ACLU in 1989 and the 1992 case of Lee v. Weisman, in which Justices Kennedy and Antonin Scalia, applying the same test, reached different results (FindLaw 2020). Although freedom of religion is well-protected by the Constitution, debates over its application, protections from/of, and limitations to the right are an ongoing debate in the legal and free world.<br /> <br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> <br /> Yes, the freedom of religion is protected under several international human rights conventions, treaties, and decrees. This right is protected in article 18 of the UN’s 1948 Universal Declaration of Human Rights, article 18 of the 1966 International Covenant on Civil and Political Rights, and also in the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (United Nations Human Rights Office of the High Commissioner).<br /> <br /> The right is also protected by relevant articles within the following conventions and treaties: 1966 International Covenant on Economic, Social and Cultural Rights, the 1969 International Convention on the Elimination of All Forms of Racial Discrimination, the 1989 Convention on the Rights of the Child, the 1981 Convention on the Elimination of All Forms of Discrimination against Women, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the 1990 UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the 1951 Convention on the Prevention and Punishment of the Crime of Genocide and the 1951 Convention relating to the Status of Refugees.<br /> <br /> However, despite the writings and workings of all these conventions, treaties, and declarations, freedom of religion is still commonly suppressed in many areas of the world (Janis 2002). There is no effective international supervision of rights to religious freedom and diversity. However, regional European human rights law does in fact have tangible supervision of and consequences regarding the suppression of the freedom of religion. Article 9 of the 1950 European Convention on Human Rights and Fundamental Freedoms protects right to freedom of thought, conscience, and religion.<br /> <br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> Encouraging religious toleration, Buddhism is often seen to promote religious freedom. This belief is rooted in the teachings of the historical Buddha, who is believed to have preached the importance of allowing individuals to worship other religions. Kulatissa Nanda Jayatilleke emphasizes this, claiming “The Buddhist attitude to other religions has from its inception been one of critical tolerance” (Freiberger, 187). As noted by Jayatilleke, toleration is foundational to Buddhism, demonstrating the belief system’s adherence to the principles of free religious exercise. <br /> <br /> Though, as explained by Oliver Freiberger, this tolerance is primarily institutional rather than dogmatic (Freiberger, 186). While Buddhism condemns the persecution of other religious groups, it does not necessarily accept the practices and beliefs of other religions to be valid. Thus, as framed by Freiberger, while Buddhism promotes religious freedom, emphasized by its tenets of toleration, it does not approve of the practices of other religions. <br /> <br /> In addition to toleration, the inclusivity practiced by Buddhists connects the belief system with religious freedom. Noted by Kirstein Beise Kiblinger, modern Buddhists aim to include others in their practices, using Buddhist excerpts to justify inclusivity as a core tenet of their belief system (Freiberger, 188). Permitting anyone the ability to convert to Buddhism, the belief system stresses the importance of the freedom to select one’s religion, an essential aspect of the right to free religious exercise. <br /> <br /> Ultimately, the tenets of Buddhism can be used to bolster rights to religious freedom, the texts and practices of the religion upholding inclusivity and toleration.<br /> <br /> <br /> <br /> <br /> <br /> Throughout history, Buddhism has been characterized by a broad, decentralized variety of different teachings; thus, sometimes depending on the context and specific text, there can be differing views on freedom of religion within the Buddhist tradition (Borchert 5, 2016). The opinions of the appropriate rights for Buddhists may emphasize and support advocacy for religious freedom for Buddhists or may justify restrictions upon the religious freedom of non-Buddhists to persecute, drive out, and/or convert them (as in Myanmar and the political unrest there today) (Borchert 10, 2014).<br /> <br /> More often than not however, freedom of religion is strongly encouraged within the Buddhist tradition. Just as humans have a free mind in choosing between good and evil, we also have a free mind to choose what to believe, and each person should do so in: “healthy mind and knowledge” (Khareng, Awang, Rahman, Machae, Ismail 317, 2014). Within Buddhism, freedom of religion is described in the Tripitaka, the Buddhist most sacred text, and this text describes ten lessons for the “healthy mind” in evaluating the truths of other religions or schools of thought: “(a.) be not led by report (Ma Anusasawen), (b.) be not led by tradition (Ma Paramuprai), (c.) be not led by hearsay (Ma Itikirai), (d.) be not led by the authority of texts (Ma Pithoksamupathanen), (e.) be not led by mere logic and argument alone (Ma Takukahettu), (f.) be not led by inference (Ma Nayahettu), (g.) be not led by considering appearances (Ma Akorpariwitkuken), (h.) be not led by the agreement with a considered and approved theory (Ma Thitthinichamanokkukhanuthitaya), (i.) be not led by seeming possibilities (Ma Phapuphrutai) and (j.) be not led by the idea, ‘this is our teacher’ (Ma Sammanornokhruti)” (Khareng, Awang, Rahman, Machae, Ismail 317, 2014). <br /> <br /> Throughout recent history, Buddhist thinkers of the twentieth and twenty-first centuries, such as the Dalai Lama or Walpola Rahula, view the Buddhist concern of alleviating suffering as a rationale to justify Buddhist concern for human rights (Borchert 55-56, 2016). In the Dalai Lama’s “The Importance of Religious Harmony,” he writes: “Each religion has its own philosophy and there are similarities as well as differences among the various traditions. What is important is what is suitable for a particular person. We should look at the underlying purpose of religion andnot merely at the abstract details of theology or metaphysics. All religions make<br /> the betterment of humanity their primary concern… Whether we like it or not, we have all been born on this earth as part of one great human family. This is not to say that all human beings are the same or that because everyone wishes for happiness that the same things will make each of them happy. Brothers and sisters resemble each other without being identical” (Borchert 66, 2016). The Dalai Lama here clearly supports religious freedom, even pointing out the similarities in differing religions. <br /> <br /> This message highlights that human dignity, equality, and freedom, which are the basics of accepted human rights are intrinsic to the ideal of Buddhist teachings. Although the UDHR’s ideas on human rights are considered Western in nature, the Buddist teachings of the Five Precepts and the six directions champion human rights without ever coining the exact phrase.<br /> Stretching back to the third century BCE, Buddhist Emperor Asoka of India states in the 12th Edict of Asoka: “One should not honor only one’s own religion and condemn the religions<br /> of others, but one should honor others’ religions for this or that reason. In so doing, one helps one’s own religion to grow and renders service to the religions of others too. In acting otherwise one digs the grave of one’s own religion and also does harm to other religions” (Chanawangsa 4 then 9, 2011).<br /> <br /> ====Platonism====<br /> ====Aristotelian thought====<br /> Aristotle disagreed strongly with the concept of religion, but he believed people’s religious belief could be used both in the state’s favor. Regarding the relationship between politics and religion, in the work “Politics,” Aristotle writes, “A tyrant must put on the appearance of uncommon devotion to religion. Subjects are less apprehensive of illegal treatment from a ruler whom they consider god-fearing and pious. On the other hand, they do less easily move against him, believing that he has the gods on his side” (Cline 2019). He believed that implementing religion into the workings of a government gives a tyrant the ability to keep people at a distance, ignoring their disapproval of how they are being ruled and any challenges to the structure of the government itself. When sanctioned by divine order, people find a government much more difficult to question, let alone change (Cline 2019).<br /> <br /> Although he held these cynical views toward the idea of religion within the government, Aristotle did construct a “ministry of religious affairs” into his ideal polis. This ministry would make it possible for religious affairs within the polis to be monitored and fostered in one way or another, depending on the polis. Despite his aversion to religion, Aristotle understood religious practice to inevitably exist within any polis, and he decided that this belief should then at least be put to its best use. (Gerson 2018). This use can be by imitation of the divine, regarding their intellectual virtues, that are to foster moral choice or freedoms to speak, behave, or practice whatever religion one sees fit in pursuing justice and seeking to live a virtuous life. In doing this, a polis takes another step in the direction of justice and virtue, once again separating our capacity from that of animals. (Gerson 2018). These views were the beginnings of the ideas behind the freedom of religion that we are free to practice today. <br /> <br /> Aristotle’s views inspired the Thomastic principles that “the maintenance of any orderly society required adherence to defined rules of conduct… From this requirement some basic laws could be deduced, such as laws forbidding murder and theft. Such laws did not have to be revealed<br /> by divine inspiration” (Wallace 537-538, 2009). These natural laws could be rationally produced and would serve as the basic moral framework necessary for the success of that society and natural, collective good while divine law would require certain revelations that are only relevant to those who accept it for their eternal good. Based upon this belief, there was clear and rational justification for a state that ran independent of central religion (Wallace 537-38).<br /> <br /> ====Ancient Chinese Philosophy====<br /> The three primary ancient Chinese philosophies, Confucianism, Legalism, and Taoism, represent various attitudes regarding the rights to religious freedom. <br /> <br /> Founded on the premise of reforming a corrupted society during the Spring and Autumn period, Confucianism initially strongly opposed the customs of other belief systems. For example, noted by Robert Cummings Neville, in their attempts to strengthen their philosophy, Confucians actively worked to suppress beliefs such as superstition, which persisted throughout Chinese culture at the time (Neville, 26). Additionally, noted by Neville, Confucianism has a self-serving definition of toleration. Neville asserts, “Relative to toleration, the principle is that anything in the wider environment can be tolerated so long as the narrower environment can flourish” (Neville, 30). Witnessed through this narrow denotation of “tolerance”, Confucianism emphasizes a sense of dogmatic ethnocentrism, in which other religions may be permitted, but only to the extent that Confucianism can thrive as the prevailing belief system. In this way, Confucianism undermines the idea of unfettered religious freedom.<br /> <br /> Legalism, which focuses solely on preserving the strength and stability of the state, emphasizes that “law should replace morality” (Winston, 313). Furthermore, Legalist scholar Han Feizi emphasizes law to be within total control of the sovereign, undermining the individual liberties of citizens (Winston, 315). While not directly related to freedom of religion, the Legalist sovereign's unilateral power over the law emphasizes that individuals have no natural entitlements. This weakens the perceived strength of civilians’ rights to religion, as through Han Feizi’s teachings, civilians would only be permitted to worship as directed by the Sovereign. <br /> <br /> Contrary to Confucianism and Legalism, Taoism, which emphasizes peace and harmony, is more tolerant of other groups, encompassing the principles of the right to religious freedom. Explained by Liu Jinguang, a Senior Fellow at the Center for Religious Research of China, unliked other belief systems, “Chinese Taoism has the fine tradition of upholding and promoting harmony… mutual respect and peaceful co-existence of different culture,, nationalities and religions are the foundations for building a harmonious word” (Jinguang, 207). As Taoism embraces not only toleration, but acceptance, of other faiths, it upholds the necessity of religious freedom for world harmony. Therefore, Taoism distinctly argues the importance of religious rights, allowing for the co-existence of numerous religious groups.<br /> <br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought==== <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> Freedom of religion is more than just the freedom to worship as one pleases, but it is a right granted to all in efforts to prevent discrimination based upon one’s core values and beliefs, and it protects against the imposition of values and beliefs upon people both from society and from the government (The Heritage Foundation, 2020). More precisely, the freedom of religion possess two main components: “The first is the right to freedom of thought, conscience and religion, which means the right to hold or to change one’s religion or belief and which cannot be restricted under any circumstances. The second is the right to manifest one’s religion or belief, which, according to Articles 9(2) ECHR and 18(3) ICCPR, can be restricted but only if the restriction is prescribed by law and is necessary – Article 9(2) adds here ‘in a democratic society’ – for the protection of public safety, public health or morals or for the protection of the rights and freedoms of others” (Donald and Howard 2, 2015). The practice of freedom of religion often conflicts with several other guaranteed freedoms due to its intersectional nature, and can therefore, legally be restricted when it encroaches upon other fundamental and guaranteed human rights. <br /> <br /> In 2015, when the US Supreme Court deemed same-sex marriage constitutional, religious freedom cases flooded state legislatures and courthouses, many of which were seeking exceptions to anti-LGBTQIA+ legislature under the basis of religious beliefs (Russell-Kraft, 2017). Some of these cases, including the previous 2013 case of Elane Photography v. Willock, represent the power of the freedom of expression, the freedom to be married, and the right to not be discriminated against, to undermine certain instances of the practice of the freedom of religion. This case was between two women who sought to hire photography company Elane Photography for their wedding ceremony and the named photography company who refused to provide services due to religious reasons. The case eventually was ruled in favor of the same-sex couple citing that the state of New Mexico prohibited any discrimination on the basis of sexual orientation, and that the claims of the photographer for her freedom of religion and speech were not protected in this case due to the (Russell-Kraft, 2017). The Constitution does indeed “have competing values; the requirements of the free exercise and the establishment clauses, freedom of association, and anti-discrimination on the basis of faith don’t always add up” (Russell-Kraft, 2017). <br /> <br /> When dealing with cases in which freedom or religion seems to conflict with other guaranteed rights, international human rights law has historically precedented certain principles to consider in settling the matter: <br /> <br /> “These include the principles of: non-discrimination, meaning that there is no ‘right to discriminate;…’ neutrality and impartiality of the state as between religions and as between religious and nonreligious forms of belief; respect for others to believe and the duty of the state to create a level playing field between different groups of different religions or beliefs or no religion or belief, which may be summarized as respecting the believer rather than the belief; pluralism and tolerance, which includes that there is no right not to be offended; institutional and personal autonomy; proportionality in determining whether an interference with the right to manifest one’s religion is justified: the restriction must have a legitimate aim and the means used to achieve that aim must be proportionate and necessary…; no hierarchy of rights, meaning that in each instance, an attempt is made to maximize each of the rights engaged and to ensure that none is inappropriately sacrificed; and, legality, i.e. that restrictions on rights must be clear, publicly accessible, non-retrospective, and that people must be able to understand the circumstances in which restrictions might be imposed and foresee the consequences of their actions with a degree of certainty” (Donald and Howard, 2015)<br /> <br /> <br /> All this is ultimately to outline the considerations necessary to consider when dealing with encroachments upon and/or suppression of the freedom of religion due to society’s necessity of freedom of conscience. Freedom of conscience is ultimately necessary and fundamental to the workings of democracy. One example regarding the right to non-discrimination and freedom of conscience favoring the rights of freedom of religion is the 2013 case of Eweida and Others v UK. The outcome of this case saw a contrary ruling to that of the Elane Photography v. Willock case. This case saw two of the applicants, a registrar of birth, deaths and marriages (Ladele) and a relationship counsellor (McFarlane), deny their services to same-sex couples due to their company policies regarding their Christian, religious beliefs. The European Court of Human Rights (ECtHR) deemed that the freedom to not to be discriminated against on the ground of sexual orientation is, in fact, protected under the Convention on human rights and that difference in treatment requires significant and legal justification and legitimate reasoning for doing so; however, in this case, the court found that the applicants’ actions complied with their company policies and therefore did not constitute discrimination (Donald and Howard 7, 2015). The two opposing cases demonstrate the flexibility and conflicting natures of fundamental rights such as that of conscience and non-discrimination both for and against the practice of freedom of religion. <br /> <br /> The ECtHR recognizes further the conflicting rights of people to teach others about their religion or belief in contrast with the right of other people to be free from interference with their own freedom of religion or belief (which encompasses their right to be free from religion or belief): “For example, the European Centre for Law and Justice has argued within the Council of Europe for a ‘general provision reaffirming the fundamental right to freedom of religious opinion’ and argues that the concept of hate speech should ‘never end in a limitation of free speech’ (emphasis added). However, this is not entirely possible, seeing as international human rights laws draw limitations to ensure that conflicting rights in each particular case are proportionally balanced so that neither right in question is inappropriately sacrificed” (Donald and Howard 9, 2015).<br /> <br /> Lastly, even the freedom of assembly, which is guaranteed by Articles 20 of the Universal Declaration of Human Rights, 21 of the International Covenant on Civil and Political Rights and 11 of the European Convention on Human Rights comes into conflict with the freedom of religion. Some instances of peaceable assemblies such as LBGTQIA+ rallies have been prohibited and/or confined to venues out of public sight: “Where these events are not prohibited and do take place, there is often inadequate protection of participants by law enforcement agencies. This not only infringes the right of LGBTI people to freedom of expression and assembly, but it also makes them vulnerable to discrimination, abuse and violence… Despite these principles, claims based on religious conscience expressed in morally absolute terms persist” (Donald and Howard 10, 14, 2015).<br /> <br /> The rights of non-practicing individuals often conflict with the rights to freedom of religion. Furthermore, the concept of “freedom from religion” questions the strength of freedom of religion, as many believe that non-practicing individuals have an equally important right to not be subjected to religious practices (Sapir, Gidon, and Statman). Often this results in conflict between state power and religious rights, as the state is often expected to protect the rights of non-religious individuals. Gidon Sapir and Daniel Statman note how freedom from religion manifests itself, claiming “a law prohibiting the sale of goods on the sabbath would violate the would-be vendors freedom from religion.” Demonstrated by Sapir and Statman, religious rights may be contested when they conflict with the laws prescribed by the state upholding the rights of non-practicing individuals, for example that stores can operate on the sabbath day. In this way, the rights of non-religious individuals, as supported by the state, can act to diminish the power of religious rights.<br /> <br /> Additionally, conflicts of religious rights and the rights to free association have been notably observed throughout American jurisprudence. Most predominantly, this issue manifests itself in issues pertaining to First Amendment rights and civil rights. For example, the right for an individual to identify as LGBTQ+ has often been at odds with the Free Exercise Clause of the First Amendment. This was observed in Masterpiece Cakeshop v. Colorado Civil Rights Commision, when a Colorado bakery asserted their First Amendment rights to deny a gay couple service, arguing that “it would displease God to create cakes for same-sex marriages.” In response to the bakery’s actions, the couple sued, claiming that their rights to non-discrimination as protected by Colorado’s Anti-Discrimination Act had been violated. Although challenged by the couple’s discrimination case, Masterpiece Cakeshop v. Colorado Civil Rights Commision ultimately demonstrated that the right to free religious exercise has historically infringed upon individual’s rights to non-discrimination, as the Supreme Court ruled in favor of the bakery, claiming that under the Free Exercise Clause the bakery was permitted to deny service to the couple. Thus, while civil rights often create a legitimate conflict with religious rights, religious rights often take precedence. <br /> <br /> Though, as the issue of discrimination and religious rights has evolved, the strength of the First Amendment has weakened, reinforcing Civil Rights. Observed by the Bostock v. Clayton County decision, the Supreme Court now upholds that discrimination against LGBTQ+ individuals is a violation of Title VIII of the Civil Rights Act (Hollis-Brusky). This landmark decision curtails many of the arguments, such as those made by the justices in Masterpiece Cakeshop v. Colorado Civil Rights Commision, which had previously bolstered the rights to religious freedom over the rights of LGBTQ+ individuals. Furthermore, unlike the justices concluded in Masterpiece Cakeshop v. Colorado Civil Rights Commision, Bostock’s support of the primacy of civil rights undermines the belief that the First Amendment can be used to legally protect individuals who discriminate against LGBTQ+ individuals. Thus, exhibited by the Bostock v. Clayton County case, freedom of religion, specifically the Free Exercise Clause, can be limited by civil rights to non-discrimination.<br /> <br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> When dealing with cases in which freedom or religion seems to conflict with other guaranteed rights, international human rights law has historically precedented certain principles to consider in settling the matter: <br /> <br /> “These include the principles of: non-discrimination, meaning that there is no ‘right to discriminate;…’ neutrality and impartiality of the state as between religions and as between religious and nonreligious forms of belief; respect for others to believe and the duty of the state to create a level playing field between different groups of different religions or beliefs or no religion or belief, which may be summarized as respecting the believer rather than the belief; pluralism and tolerance, which includes that there is no right not to be offended; institutional and personal autonomy; proportionality in determining whether an interference with the right to manifest one’s religion is justified: the restriction must have a legitimate aim and the means used to achieve that aim must be proportionate and necessary…; no hierarchy of rights, meaning that in each instance, an attempt is made to maximize each of the rights engaged and to ensure that none is inappropriately sacrificed; and, legality, i.e. that restrictions on rights must be clear, publicly accessible, non-retrospective, and that people must be able to understand the circumstances in which restrictions might be imposed and foresee the consequences of their actions with a degree of certainty” (Donald and Howard, 2015)<br /> <br /> All this is ultimately to outline the considerations necessary to consider when dealing with encroachments upon and/or suppression of the freedom of religion due to society’s necessity of freedom of conscience. Freedom of conscience is ultimately necessary and fundamental to the workings of democracy. The right to freedom of religion falls well under the category to the right to freedom of conscience. And within this category, the right against religious discrimination is a distinct and complimentary right to freedom of religion: “Religious freedom is best understood as protecting our interest in religious adherence (and non-adherence), understood from the committed perspective of the (non)adherent. This internal, committed perspective generates a capacious and realistic conception of religious adherence, which reflects the staggering plurality of forms of religiosity (or lack thereof) as extant in contemporary societies” (Norton and Khaitan 1125, 2019). <br /> <br /> One example regarding the right to non-discrimination and freedom of conscience working in tandem with the freedom of religion is the 2013 case of Eweida and Others v UK. This case saw two of the applicants, a registrar of birth, deaths and marriages (Ladele) and a relationship counsellor (McFarlane), deny their services to same-sex couples due to their company policies regarding their Christian, religious beliefs. The European Court of Human Rights (ECtHR) deemed the court found that the applicants’ actions complied with their company policies and therefore did not constitute discrimination (Donald and Howard 7, 2015). The workings of freedom of religion and the expression of said religion as well as conscientious objection work in tandem to support the right to freedom of religion.<br /> <br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> <br /> Freedom of religion often conflicts with other human rights. Specifically in contemporary times, other fundamental rights are often prioritized over religious rights. In particular, this is observed with LGBTQ+ rights. Explained by Dr Alice Donald and Erica Howard of Middlesex University, the rights to religious freedom and anti-discrimination are both globally upheld as fundamental rights. Though, Donald and Howard argue, ultimately LGBTQ+ individuals’ rights to non-discrimination hold precedence over religious rights. <br /> <br /> Explaining how religious freedom is enshrined in numerous human rights treaties, Donald and Howard do not shy from acknowledging the importance of freedom of religion. Though, later explaining its intersectionality with anti-discrimination rights, which they further assert to be a fundamental human right, Donald and Howard ultimately uphold the importance and prioritization of LGBTQ+ rights. In this way, Donald and Howard diminish the dominance of freedom of religion within the hierarchy of fundamental rights. Donald and Howard assert, “As mentioned, the right to manifest one’s religion or belief can be restricted if this is necessary for the protection of public safety, public order, health or morals or the rights of others. The latter includes the right of others not to be discriminated against.” Thus, as explained by Donald and Howard, the right to anti-discrimination places the right to free religious exercise at a lower position within the hierarchy of rights. <br /> <br /> Though, recent United States court cases have countered Donald and Howard’s positions, denoting a higher status to freedom of religion. Furthermore, within American jurisprudence, freedom of religion holds a particularly higher position in the hierarchy of rights. This was most notably observed in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, where the court defended a baker’s denial of services to a gay couple on the grounds of religion. Upholding the ability of the baker to discriminate against the gay couple, the court asserted the dominance of religious rights over anti-discrimination laws. Noted by Justice Gorsuch, “The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.” Through this, the court demonstrated that religious rights hold a principal position above other fundamental rights within the United States.<br /> <br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> <br /> Explained by Donald and Howard, freedom of religion is upheld by all major human right treaties. Demonstrated by this, freedom of religion is prioritized within international human rights law. Article 18 of the Universal Declaration of Human Rights, Article 18(1) of the International Covenant on Civil and Political Rights and Article 9(1) of the European Convention for the Protection of Human rights and Fundamental Freedoms all protect individuals’ freedom of religion, which includes “freedom of thought, conscience, and religion.” Present in each of these major treaties, freedom of religion is observed to be highly respected and prioritized by the United Nations. <br /> <br /> Additionally, freedom of religion is enshrined in most constitutions, demonstrating its high status. For example, only 43 countries, 20% of all nations, assert a state religion in their constitutions, denying religious freedom. As the majority of countries do not uphold a state religion, they allow for degrees of religious freedom. Observed by this trend among the majority of countries, there is a general global consensus that freedom of religion is a highly regarded fundamental right.<br /> <br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> <br /> <br /> In regards to gay marriage and religious freedom, two often interconnected topics, federalism is particularly apparent. Furthermore, many conservatives argue that states should be able to use religious rights in deciding whether or not gay marriage is legal. Robert A. Levy of the Cato Institute explains how technically, this position is legally valid, as “Clearly, federalism allows states to decide whether to recognize both same-sex and conventional marriages, or assign a different label, or privatize marriage altogether.” In this way, Levy emphasizes that due to federalism, depending on the region of the country, religious rights may be used to justify denying gay couples the ability to marry. Though, ultimately Levy questions the realistic strengths of federalism, asserting that the Constitution’s limits on discrimination outweigh the powers allocated to the states by federalism. Thus, according to Levy, federalism does not allow for states to exercise religious rights in a way that permits them to discriminate against LGBTQ+ individuals. Following this logic, federalism can be viewed to weaken the exercise of religious freedom.<br /> <br /> Additionally, states’ varying approaches to school prayer demonstrate how religious rights are subject to federalism. Although federal law prohibits prayer in public schools, upholding it to be a violation of the establishment clause, certain school districts have acted to protect school prayer. For example, nearly forty years after Engel v. Vitale and Abington School District v. Schempp, which struck down on school prayer, Santa Fe Independent School District v. Doe proved school prayer was still alive in certain states, as the case presented a situation of student-led prayer prior to high school football games. Demonstrated by Santa Fe, while federal law may prohibit school-mandated prayer, certain states may permit public school districts to contradict these laws with student lead prayer. Furthermore, depending on the state, the degree of secularism within public schools may differ. This emphasizes how federalism can bolster religious rights, as state’s rights may permit them to evoke certain religious practices misaligned with federal law. <br /> <br /> Lastly, state constitutions additionally demonstrate how federalism affects religious freedom. Noted by Christopher Hammons, numerous states invoke religion in their constitutions, asserting God to be “the foundation of order, liberty, and good government.” The emphasis on god and direct religious references within certain state’s constitutions demonstrate how federalism, which provides states with specific liberties, allows for a varying image of religious freedom throughout the United States.<br /> <br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> The conflict of civil and religious rights has presented several exceptions to the right to free religious exercise. Specifically, stemming from the Supreme Court’s ruling in favor of marriage equality in 2015, many anti-discrimination laws have passed, restricting the right to unfettered religious exercise. Several scholars have argued in favor of these exceptions. In discussing the Supreme Court’s 2015 decision, Suzanne Goldberg states, “After many years of battles in which the religious right had hammered the message that gay people were somehow seeking “special rights” when advocating for laws prohibiting sexual orientation discrimination, the court added its authoritative view that the “special rights” rhetoric was meaningless” (Goldberg, 237). Emulated by Goldberg, as civil rights, such as marriage equality, are not “special rights&quot;, they must be protected equally to the First Amendment right to free religious exercise. Ultimately, Goldberg conveys the sentiment that within American jurisprudence, the right to free religious exercise is prima facie, and thus can be subject to numerous exceptions. <br /> <br /> Additionally, in regards to criminal law violations, William P Marshall of the University of Chicago Law Review supports the need for exceptions to the Free Exercise Clause. Furthermore, Marshall condemns the belief that religious activity, as protected by the Free Exercise Clause, should be exempt from criminal laws. In defending the Employment Division, Department of Human Resources of Oregon v. Smith decision, which confirmed the state’s ability to withhold unemployment benefits from workers fired for using illegal drugs for religious purposes, Marshall argues that if the Supreme Court were to permit religious exemptions to criminal laws, strengthening First Amendment Rights, they would have to engage in dangerous “constitutional balancing” (Marshall, 311). As explained by Marshall, this balancing would force the court to weigh the interests of religious groups against the interests of states, resulting in inconsistent rulings. Thus, presenting a clear exception to freedom of religion, Marshall argues that First Amendment rights, specifically the right to free religious exercise, do not exempt one from criminal prosecution. <br /> <br /> Between the positions of Marshall and Goldberg, lies Ira C. Lupu of the University of Pennsylvania Law Review. While Lupu dismisses the Smith decision, claiming religious rights should have been accommodated in that particular case, he still argues for limitations on religious expression, claiming, “every person may pursue religious freedom to the extent that it is fully compatible with the equal pursuit of religious freedom by others” (Lupu, 558). Similar to Goldberg, Lupu asserts that religious expression can be curtailed when it restricts the liberties of others. Thus, Lupu emphasizes that although certain religious practices should be exempt from the law, such as the peyote drinking incident in Smith, religious expression should not be left legally unrestricted.<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> Private companies have often been found to institute policies that restrict employees’ rights to religious freedom. Such policies directly violate Title VII of the Civil Rights Act, a provision meant to bolster religious freedom by prohibiting employment discrimination on the basis of religion (EEOC). <br /> <br /> Such discriminatory policies were observed in EEOC v. Abercrombie &amp; Fitch Stores. Furthermore, the case revealed Abercrombie’s “Look Policy”, which involved discriminatory hiring procedures towards Muslim individuals (Oyez). Affirmed by the Supreme Court, this policy was a direct violation of the Civil Rights Act, Justice Scalia upholding Title VII claiming, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions” (Justia Law). Demonstrated by the court’s decision, one’s entitlements to religious freedom in the workplace, as upheld by Title VII, are curtailed by discriminatory hiring practices such as the “Look Policy”.<br /> <br /> In addition to violating their Title VII entitlements, many individuals argue that their employers’ practices restrict their First Amendment rights to free religious exercise. For example, in Sherbert v. Verner, Adell Sherbert argued that her firing due to her refusal to work Saturdays, her Sabbath day, was a violation of the Free Exercise Clause of the First Amendment (Oyez). The Supreme Court concurred with Sherbert, emphasizing that the firing restricted Sherbert’s ability to freely practice her religion. Emphasized by the case, firing someone on the basis of their religion, in addition to likely being a violation of the Civil Rights Act, is a direct breach of the First Amendment. Thus, witnessed by instances such as those that precipitated Sherbert, First Amendment religious rights are often infringed upon by employment policies.<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> <br /> In the United States, certain religious practices have been limited during times of disease. For example, during the COVID-19 pandemic, limitations on free religious exercise have been visibly witnessed, demonstrating how the right is subject to restrictions during a health crisis. This was observed in the beginning of the pandemic, when many houses of worship challenged their closures by state governments, arguing that such actions violated their rights to free religious exercise. Though, when a specific California church’s case was brought to the Supreme Court, the closures were upheld as constitutional, Chief Justice Roberts arguing, “Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment” (New York Times). Emphasized by the California case, in times of disease, certain religious practices, such as attending largely populated church services, can be restricted if they do not correspond with federal public health guidelines. Thus, witnessed through the closing of churches as a result of the COVID-19 pandemic, a disaster can alter the Supreme court’s constitutional interpretation of the Free Exercise Clause.<br /> <br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Association&diff=217 2020-07-20T16:52:37Z

<p>Ksandlund: /* What are the typical exceptions or limitations placed on this right? */</p> <hr /> <div>==What is the oldest written source that mentions this right?==<br /> John Locke’s “A Letter Concerning Toleration” (1689) primarily concerns religious associations, but he extends certain arguments to associations in general. The text in the next paragraph is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right (241). <br /> <br /> “Suppose this Business of Religion were let alone,” Locke hypothesizes, “and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.” Under conditions of differential treatment, such persons, “united together by one common persecution,” would become just as dangerous and disruptive. Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter.<br /> <br /> In 1776, Richard Price, a British writer who supported the American revolution published Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America. Unlike other commentaries on civil rights, he includes discussion on free assembly. He describes a prohibition on “associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy” as being part of a “state of oppression which no country can endure.” Though he does not phrase it as a fundamental right, the fact that Price deems draconian restrictions on association oppressive implies a belief in at least a limited freedom of association.<br /> <br /> Though Enlightenment commentators like Locke argued for and against greater freedom to associate. However, the first to mention it as an absolute right was John Stuart Mill, who argues ''in On Liberty'' that “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (1859, 16).<br /> <br /> ===What is the oldest written source in this country that mentions this right?===<br /> ====Afghanistan====<br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> ====Armenia====<br /> ====Australia====<br /> Australia has detailed records of its constitutional convention, which occurred in the 1890s. In 1897. One speaker alluded to the power of free association: “The English feel the vigor of their public spirit; they have experienced the vigilance of a free press, and the power of associations and public meetings.”<br /> <br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> Chapter 2 of Botswana’s Constitution (1966) guarantees “freedom of conscience, of expression and of assembly and association.”<br /> <br /> ====Brazil====<br /> Brazil’s constitution (1988) has exceptionally detailed freedom of association provisions. Title II-I-5 states that: <br /> <br /> - there is total freedom of association for lawful purposes, but any paramilitary association is prohibited;<br /> <br /> - creation of associations and, as set forth in law, of cooperatives, requires no authorization, prohibiting state interference in their operations; <br /> <br /> - associations may be compulsorily dissolved or their activities suspended only by a judicial decision, which in the former case must be a final and unappealable decision;<br /> <br /> - no one can be compelled to join an association or to remain in one;<br /> <br /> - when expressly authorized, associations have standing to represent their members judicially and extrajudicially<br /> <br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> Chapter 345 Section 5 of Saskatchewan’s Bill of Rights (1947) states that “every person and every class of persons shall enjoy the right to peaceable assembly with others and to form with others associations of any character under the law.”<br /> <br /> Part 1 of the Canadian Bill of Rights (1960) lists “freedom of assembly and association” as a guaranteed right. This was an ordinary act of parliament, and it has been replaced by the Canadian Charter of Rights and Freedoms, an amendment to the Canadian Constitution.<br /> <br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> Chapter 2-4 of the Provisional Constitution of the Republic of China (1912) states that “citizens shall have the freedom of speech, of composition, of publication, of assembly and of association.”<br /> <br /> The 1912 Republic of China Constitution refers to the one adopted by the nationalist government on the mainland, led by Sun Yat-sen. Despite its lofty ideals, this government never really maintained power. After a period of instability and civil war, the CCP forced the nationalist government to retreat to Taiwan, which is known now as the Republic of China. Taiwan suspended its constitution, and it was under a repressive martial-law system until 1987. It is now a constitutional democracy, and freedom of association is protected in its constitution. The PRC constitution claims to protect freedom of association, among other civil liberties.<br /> <br /> ====Colombia====<br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> Section II-18 of Estonia’s first constitution (1920) states that “The forming of associations and unions is free in Esthonia.&quot;<br /> <br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> Title I of the French Constitution of 1791 guarantees the right of peaceful assembly. <br /> <br /> “Liberty to citizens to assemble peaceably and without arms in accordance with police regulations.”<br /> <br /> Though the French Constitution of 1791 protected the right to assemble, French revolutionaries considered explicitly excluding free association (Boyd 257). The French enacted a law protecting free association in 1901, and enshrined it in their constitution in 1971 (Boyd 2008, 237).<br /> <br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> The Weimar Constitution (1919) established freedom of association. <br /> <br /> Article 123: “All Germans have the right to assembly peacefully and unarmed without giving notice and without special permission.” <br /> <br /> Article 124: “All Germans have the right to form associations and societies for purposes not contrary to the criminal law.”<br /> <br /> ====Ghana====<br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> The following quote was attributed to Gandhi in 1922: <br /> <br /> “Freedom of association is truly respected when assemblies of people can discuss even revolutionary projects, the State relying upon the force of public opinion and the civil police, not the savage military at its disposal, to crush any actual outbreak of revolution that is designed to confound public opinion and the State representing it.., The fight for swaraj means a fight for this threefold freedom before all else.&quot; <br /> <br /> Part III Article 19 of the Indian Constitution (1950) grants citizens the right to “form associations or unions” (Dalton).<br /> <br /> ====Indonesia====<br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> Article 40 of the Irish Constitution (1940) guarantees “the right of the citizens to form associations and unions.”<br /> <br /> ====Israel====<br /> ====Italy====<br /> Part 1 Title 1 Article 18 of the Italian Constitution (1947) states that: <br /> <br /> - “Citizens have the right to form associations freely and without authorization for those ends that are not forbidden by criminal law.” <br /> <br /> - “Secret associations and associations that, even indirectly, pursue political aims by means of organisations having a military character shall be forbidden.”<br /> <br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> Chapter III Article 21 of the Japanese Constitution (1947): “Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.” <br /> <br /> Additionally, though finding direct texts has proven difficult, there have been political movements for greater political expression since the pre-war era. The freedom and popular rights movement existed throughout the second half of the 19th century, and its members advocated for increased freedom of assembly beginning no later than 1886 (Tierney 2013, 21).<br /> <br /> ====Jordan====<br /> ====Kazakhstan====<br /> ====Kenya====<br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> ====Laos====<br /> ====Latvia====<br /> The Latvian Constitution added a section on fundamental rights in 1998. Article 102 states that “everyone has the right to form and join associations, political parties and other public organisations.”<br /> <br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> From Section 1 Article 9 the Mexican Constitution of 1857: “No one shall be deprived of the right peaceably to assemble or to come together for any lawful purpose; but only citizens shall be permitted to exercise this right for the purpose of taking part in the political affairs of the country. No armed assembly shall have the right to deliberate.”<br /> <br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> Part 2 Section 17 of the Bill of Rights Act (1990) states that, “Everyone has the right to freedom of association.”<br /> <br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> Chapter IV Section 37 of the constitution of the Second Republic (1979) states that “every person shall be entitled to assemble freely and associate with other persons, and any political party, trade union, or other association for the protection of his interests.”<br /> <br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> ====Oman====<br /> ====Pakistan====<br /> The following is from Part II, Chapter I, Section 17 of Pakistan’s current constitution (1973). <br /> <br /> “Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.”<br /> <br /> “Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.”<br /> <br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> ====Philippines====<br /> ====Poland====<br /> ====Portugal====<br /> Article 46 of the Portugese Constitution (1976): <br /> <br /> “Citizens shall possess the right to freely associate with one another without requiring any authorisation, on condition that such associations are not intended to promote violence and their purposes are not contrary to the criminal law.” <br /> <br /> “Associations shall pursue their purposes freely and without interference from the public authorities and shall not be dissolved by the state or have their activities suspended, except in such cases as the law may provide for and then only by judicial order.”<br /> <br /> “No one shall be obliged to belong to an association, or be coerced to remain therein by any means.”<br /> <br /> “Armed associations, military, militarised or paramilitary-type associations and organisations that are racist or display a fascist ideology shall not be permitted.”<br /> <br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> ====South Africa====<br /> Chapter 3 section 17 of the 1993 Interim Constitution states that “every person shall have the right to freedom of association.”<br /> <br /> ====South Korea====<br /> <br /> Chapter two Article Ten of the Constitution (1948): “All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association.”<br /> <br /> ====South Sudan====<br /> ====Spain====<br /> ====Sri Lanka====<br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> The 1990 Human Rights Act protects the Right to assemble and associate, subject to reasonable and proportionate restrictions. The HRA primarily serves to codify the European Convention on Human Rights into British Law (the ECHR and its associated court are not related to the EU, and the UK is still a signatory). <br /> <br /> In 1776, Richard Price, a British writer who supported the American revolution published ''Observations on the Nature of Civil Liberty'', the Principles of Government, and the Justice and Policy of the War with America. Unlike other commentaries on civil rights, he includes discussion on free assembly. He describes a prohibition on “associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy” as being part of a “state of oppression which no country can endure.” Though he does not phrase it as a fundamental right, the fact that Price deems draconian restrictions on association oppressive implies a belief in at least a limited freedom of association. This is the first instance I could find of a political theorist invoking the concept of freedom of association (or the lack thereof).<br /> <br /> There is a more explicit case for free association in John Stuart Mill’s On Liberty (1859). Mill lays a broad notion of individual liberty. He then argues that “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived (16).”<br /> <br /> Before any British thinkers espoused freedom of association as a right, John Locke, Thomas Hobbes, and David Hume addressed the issue (as Boyd helpfully summarizes). Hobbes detested associations, referring to them as “lesser commonwealths in the bowels of a greater, like worms in the entrails of a natural man” (257). <br /> <br /> Locke disagreed with Hobbes’ cynical perspective on groups. John Locke’s “A Letter Concerning Toleration” primarily concerns religious associations, but he extends certain arguments to associations in general. The italicized text below is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right (2008, 241). <br /> <br /> “Suppose this Business of Religion were let alone,” Locke hypothesizes, “and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.” Under conditions of differential treatment, such persons, “united together by one common persecution,” would become just as dangerous and disruptive.26 Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter.<br /> Finally, David Hume’s “Of Parties in General” (1742) is another important piece of Enlightenment work skeptical of associations. His position is more nuanced that Hobbes; he understands that association may exist for different purposes. Factions “of interest” are deemed less dangerous than factions “of principle.” Regarding factions of principle, he wonders the following: “But where the difference of principle is attended with no contrariety of action, but every one may follow his own way, without interfering with his neighbour, as happens in all religious controversies; what madness, what fury can beget such unhappy and such fatal divisions?”<br /> <br /> ====United States====<br /> Listed at the bottom of this section is language from the State Constitutions of New Hampshire and North Carolina and the Pennsylvania Declaration of Rights, all from 1776, which articulate the right to assemble (assembly and association are not always interchangeable, but many constitutions group them together). These documents all contain rights to assemble written in remarkably similar language, and they describe the right as politically driven. These were the oldest references to something like the right of association in governing documents.<br /> <br /> Despite modern views of assembly as related to association, at the time of America’s founding, it would have been better understood as related to the right to petition. According to Congress’s online annotated Constitution, the assembly clause meant that the people have a right to assemble in order to petition the government. The site says that assembly was initially seen as a “subordinate and instrumental” right (&quot;Freedom of Assembly and Petition&quot;). The aforementioned state constitutions should be interpreted the same way. In fact, this is even more clear in these state constitutions than in the national one. The state constitutions surround the right to assemble with expressly political language, such as the right to petition and advocacy for the “common good,” while the First Amendment’s guarantees are political, but not entirely political (it protects religion, and protected speech and press are often, but not always, political). <br /> <br /> As Richard Boyd argues in “The Madisonian Paradox of Free Association,” America’s founders did not explicitly include free association because at least some of them were skeptical of it, worrying that certain associations would be conspiratorial or seditious. He summarizes the British Enlightenment tradition skeptical of associations, which influenced the founders (I describe this in the last few paragraphs of the UK section, on Hobbes, Locke, and Hume). James Madison, the primary author of the Bill of Rights, feared the influence of factions, which private associations furthered. As Boyd notes, Madison viewed association as a “second-order” right (page 258), whose existence is tolerable because institutions can mitigate its worst effects (page 247). The following passage from “Federalist No. 10” illustrates his attitude toward factions arising from free association: <br /> <br /> It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.<br /> <br /> As Boyd notes, there are several possible reasons why Madison may not have enumerated the right to associate. It is possible that he saw it as implied by other First-Amendment rights, such as free assembly. It also may have been seen as less important or vulnerable than other rights, and Madison may have seen it as the type of auxiliary right protected by the Ninth Amendment. Finally, the right’s exclusion may have been because the founders were too skeptical of it for its inclusion (258). <br /> <br /> Since the 1950s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in NAACP v. Alabama that the NAACP cannot be forced to submit a membership roster to a state government. In 2000, in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association. <br /> <br /> In ''Roberts v. US Jaycees'', an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.” <br /> <br /> Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in ''NAACP v. Button'', “It is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.” <br /> <br /> Article XVIII of North Carolina’s Constitution: “That the people have a right to assemble together, to consult for their common good, to instruct their Representatives, and to apply to the Legislature, for redress of grievances.”<br /> Section 21 of New Hampshire’s Constitution: “The citizens have a right in a peaceable manner to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or for other purposes, by petition, address, or remonstrance. No law abridging the freedom of speech shall be enacted.”<br /> <br /> Section XVI of the Pennsylvania Declaration of Rights: “That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance.<br /> <br /> ====Uruguay====<br /> ====Uzbekistan====<br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> Pope Leo XIII forcefully argued for free association in Section 51 of ''Rerum novarum'' (1891), an extremely influential text in Catholic thought. <br /> <br /> &quot;Private societies, then, although they exist within the body politic, and are severally part of the commonwealth, cannot nevertheless be absolutely, and as such, prohibited by public authority. For, to enter into a &quot;society&quot; of this kind is the natural right of man; and the State has for its office to protect natural rights, not to destroy them.&quot;<br /> <br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> This right became an element of political discourse in the late Enlightenment, especially the American Revolution. In the mid and late 1800s, writers such as Mill and Leo XIII pushed the idea into the mainstream.<br /> <br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> <br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> Constitutions written after 1900 very often protect free association.<br /> <br /> As the right to free association is upheld by numerous United Nations treaties, for example, the European Convention on Human Rights, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, it would be expected that most countries maintain legal provisions protecting it. Though, investigated by UN Special Rapporteur Maina Kiai, many countries enforce legislation that explicitly restricts civilians’ entitlements to free association (International Center for Not-for-Profit Law). <br /> <br /> For example, noted by Kiai, in Malaysia, the Peaceful Assembly Act 2012 bans individuals under the age of twenty one from organizing public demonstrations. Additionally, stipulated by the same act, children under the age of fifteen cannot participate in demonstrations. Article 33 of the Constitution of Mexico, Kiai asserts, prohibits foreigners from engaging with Mexican politics. Similarly, Kiai notes that in Myanmar, Article 354 prohibits foreigners from assembling. Through these various forms of legislation, political and social association are highly restricted, as individuals are prohibited from expressing their associations through protest and civic engagement. <br /> <br /> Additionally, Kiai presents how legal restrictions on sexual orientation limit free association in several countries. For example, in Russia, a ban on gay pride parades was upheld by Moscow’s city council in 2012. Likewise, in Nigeria, the President ushered in the Same Sex Marriage Act in 2014, prohibting gay marriage and the ability to “participate in or support gay clubs, societies, organizations, processions or meeting.” Kiai notes a similar anti-homosexuality law was signed by Uganda’s president in 2014. Demonstrated by these numerous legal restrictions to homosexuality, free association is unprotected in numerous countries, as one can often be punished for associating with a specific sexual orientation. <br /> <br /> In the remainder of his report, Kiai continues to elaborate on numerous legal provisions that restrict free association. For example, Kiai notes how both Chile and Turkey utilize counter-terrorism legislation to restrict free association. Similarly, he explains how criminal laws in Vietnam and El Salvador often deter individuals from exercising their rights to free association, as their voices may be met with harsh penalties from their governments. <br /> <br /> Witnessed through Kiai’s reporting, the restrictions to free association are plentiful. This ultimately demonstrates that despite its entitlement by numerous United Nations treaties, the right to free association is highly vulnerable to violation and not widely internationally upheld.<br /> <br /> ===Is it contained in the US Constitution?===<br /> No.<br /> <br /> The right to free association is not explicitly stated in the United States Constitution. Though, The Supreme Court has historically upheld the constitutional right to free association, invoking the Fourteenth and First Amendments (Legal Information Institute, Cornell Law School). In 1958, The NAACP v. Patterson ruling established this precedent. In response to Alabama’s aims to limit the NAACP’s business within the state, the Supreme Court ruled that it was “the right of petitioner's members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment” (Oyez). Furthermore, the court asserted that freedom of association was undoubtedly covered by the Due Process Clause of the Fourteenth Amendment (Oyez), which asserts no individual may be “&quot;deprived of life, liberty or property without due process of law.” The court additionally demonstrated the First Amendment to protect free association, Justice Marshall Harlan claiming “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” Thus, while the right to free association is not explicitly described by the Constitution, as witnessed in NAACP v. Patterson, it is upheld by American constitutional law.<br /> <br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> Since the 1950s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in ''NAACP v. Alabama'' that the NAACP cannot be forced to submit a membership roster to a state government. In 2000, in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association. <br /> <br /> In ''Roberts v. US Jaycees'', an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.” <br /> <br /> Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in NAACP v. Button, “It is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.”<br /> <br /> ===Are there any exceptions in American law to this right?===<br /> Yes. As seen in ''Roberts v. US Jaycees,'' the right may be weighed against other state interests, especially when the association in question is neither expressive nor intimate. In that case, free association rights were curtailed to ensure adherence to non-discrimination laws.<br /> <br /> Additionally, a significant exception to free association rights in the United States is witnessed through legislation regarding political parties. Furthermore, while one has the liberty to vote with, join, and create independent political parties, upheld by the William V. Rhodes ruling, the state can still regulate these parties if they violate other aspects of the Constitution. For example, in New York State Board of Elections vs. Lopez Torres, the court claimed, <br /> <br /> <br /> A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform. These rights are circumscribed, however, when the state gives a party a role in the election process...Then for example, the party’s racially discriminatory action may become state action that violates the Fifteenth Amendment<br /> Demonstrated by New York State Board of Elections vs. Lopez Torres, if a party associates with discriminatory or racist behavior, it cannot be involved in the state’s election process, demonstrating a limitation on free political association. <br /> <br /> Additionally, sections of the Federal Election Campaign Act are often interpreted to be exceptions to free association, as they require the public disclosure of individuals’ political donations. This position was echoed by the Buckley v. Valeo ruling, where the Supreme Court argued that new campaign finance laws, “impose significantly more severe restrictions on protected freedom of political expression and association than do its limitations on financial contributions.” Thus, witnessed by Buckley v. Valeo, campaign finance laws may be interpreted as an exception to free association, as one cannot privately financially contribute to the political party they associate with. <br /> <br /> Within universities, freedom of association, specifically the right to associate as an exclusive religious group, may be regulated by anti-discrimination clauses. This was observed in Christian Legal Society v. Martinez, where the court ruled in favor of Hastings’ College of Law’s anti-discrimintation policies, which prohibited Christian student group’s from excluding non-christians. Therefore, on university campuses, individuals must be able join any student group, regardless of their religious association. Ultimately, this decision restricted the parameters of free association, as one cannot actively discriminate on the basis of it. <br /> <br /> Consequently, decided by Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, certain groups can legally exclude individuals from associating with them. Furthermore, if an individual’s beliefs do not coincide with the group’s mission, the individual may be prohibited from membership. Specifically, the court claimed that by mandating the Boston Veterans’ Council to include Gay, Lesbian, and Bisexual individuals in their parade, the Massachusetts State Court, “violates the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.” Thus, while still restricting free association, the ruling counters Christian Legal Society v. Martinez, as individuals can be restricted from associating with certain groups if it is deemed that their identity does not conform to the group’s platform.<br /> <br /> Ultimately, these exceptions arise from the implicit nature of the freedom of association within the Constitution, as what qualifies as “association” is highly subject to interpretation by Supreme Court justices. For this reason, depending on who is sitting on the bench, freedom of association can be left unchecked or potentially be highly restricted.<br /> <br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> Yes. It is protected explicitly in documents such as the Universal Declaration of Human Rights, the European Convention on Human Rights, and the American Convention on Human Rights.<br /> <br /> Specifically, free association is upheld by Article 11 of the European Convention on Human Rights, which claims, “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”Additionally, it is enshrined in Article 20 of the Universal Declaration of Human Rights, which claims “ Everyone has the right to freedom of peaceful assembly and association; No one may be compelled to belong to an association.” In Article 22 of the International Covenant on Civil and Political Rights, the rights to association are specifically outlined, as it upholds “In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Lastly, The International Labor Organization similarly supports freedom of association in the 1998 Declaration on Fundamental Principles and Rights at Work, which asserts that all members have “freedom of association and the effective recognition of the right to collective bargaining;”<br /> <br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> The Five Precepts of Buddhism condemn activity relating to “sexual misconduct, falsehoods, and intoxicants” (Peek,529), possibly limiting the ability of individuals to associate with certain behaviors or activities. While Buddhism does warn against disobeying the Five Precepts, as this may result in bad Karma, it ultimately asserts that it is the choice of the individual to decide whether or not they wish to follow the declarations of the Five Precepts (Peek, 529). Furthermore, Buddhism’s focus on moral authority, in which the individual is not subordinate to the Five Precepts, can be interpreted as allowing individuals freedom in regards to association. Demonstrated by this, although Buddhism provides guidelines for what followers ought to avoid associating with, these are merely suggestions. Thus, emphasizing the freedom of the individual, Buddhism can be seen to support the right to free association.<br /> <br /> Though, the traditions of Buddhist monks reveal how certain Buddhist practices restrict freedom of association. As explained by Holmes Welch, “According to the Buddha’s rule, when people become monks and nuns they lead a collective life. Not only is there no private property, but there is no thought for oneself. To take thought for oneself is to keep hold of the ego” (Welch, 146). Noted by Welch, upon entering monastic life, Buddhists are expected to relinquish all previously held associations. Therefore, observed through the expectations of monks, elements of Buddhism confine free association. <br /> <br /> Additionally, through the Eightfold Path, the eight practices Buddhists are expected to follow on their journey to nirvana, certain behaviors are limited. For example, when following the Eightfold Path, individuals are restricted from making a living off selling animals, weapons, meat, poison, and liquor (Tilakaratne, 48). Condemning certain professions and ways of life, Buddhism again appears to limit the associations of its followers, undermining the strength of the freedom of association within the belief system.<br /> <br /> Looking to Buddhist leaders, freedom of association is ultimately upheld. For example, in a 1993 Washington address, the Dalai Lama demonstrated his admiration for the principles of democracy, particularly the liberties, such as freedom of association, it guarantees to civilians. The Dalai Lama asserts, “Irrespective of whether we are rich or poor, educated or uneducated, belonging to one nation or another, to one religion or another, adhering to this ideology or that, each of us is just a human being like everyone else.” Through his words of acceptance, the Dalai Lama conveys that Tibetan Buddhism supports the ability to freely associate with many identities. Thus, while the Five Precepts, monastic codes, and Eightfold Path appear to restrict the liberties of followers, the Dalai Lama’s words affirm them.<br /> <br /> ====Platonism====<br /> ====Aristotelian thought====<br /> Aristotle, in his book Nicomachean Ethics, wrote that “Friendships are also important parts of our childhood and adult experience. Without them, we struggle to discover, shape, and pursue our ideas of what constitutes a good life. But, again, friendships can take many forms for many reasons, not all of which are grounded in mutual affection and convivial warmth” (Brownlee and Jenkins 2019). Friendships here form the basis of our associations in life; he ultimately argues that we as humans require association and assembly in our lives. <br /> <br /> Aristotle argues that not all forms of association are political, particularly those that stem from material needs, including family, the market, and alliances for mutual defense/benefit- these can be organized into libertarian and capitalist principles. According to one’s needs, individuals are free to associate and disassociate within their own means of persuasion and trade, and none of this is political- or in other words, the government should have no business with the private associations of the people (Johnson 32, 2001). Regarding politically, he further argues that “It is not the case . . . that people come together for the sake of life alone, but rather for the sake of living well” (3.9.1280a31) and “the political community must be set down as existing for the sake of noble deeds and not merely for living together” (Johnson 32, 2001). He takes a stance against the dominance of individuals associating merely for political protection and gain, but he believed that the state should do more in its concern for the citizen, encouraging virtue and discouraging harm and vice (Johnson 32, 2001). He argues that the best political regime best delivers the “good life-” production and distribution of goods, both goods of the body and of the soul. Within this theory, Aristotle considers the production and distribution of bodily goods as private and the production and distribution of spiritual goods as public: “The primary goods of the soul are (1) moral and intellectual virtue, which are best produced by public education, and (2) honor, the public recognition of virtue, talent, and service rendered to the city. The principle of distributive justice is defined” (Johnson 38-39, 2001). Aristotle’s theory about freedom of association is that political associations’ ultimate goal is to help foster the virtues that are necessary in the pursuit of justice and happiness; therefore, “no legitimate regime can be indifferent to the virtue of the citizens” (Johnson 44, 2001). The polis is both the most inclusive and authoritative community according to Aristotle, seeing as Aristotle's polis is a mixed concept, fusing the political state with civil societal attributes including economic, religious, and other forms of association” (Miller 878, 1996).<br /> <br /> ====Ancient Chinese Philosophy====<br /> Various schools of Chinese Philosophy contribute to society’s understanding of the right to free association.<br /> <br /> Legalism, with its adherence to strict punishments for any violation of the law, limits the liberty of citizens to freely associate. At its core, Legalism restricts the ability of citizens to act freely, as under the philosophy individual’s lives become entirely controlled by administrative acts (MacCormack, 62). Furthermore, the legalist state was not concerned with the liberties of civilians. Rather, legalists focused their efforts towards strengthening the economic and military strength of the state through authoritarian power (MacCormack, 63). Thus, in the school of Legalism, there is little tolerance for associations that counter the laws of the state, undermining the right to free association.<br /> <br /> Consequently, Confucianism emphasizes the ability of citizens to rebel against the emperor (Peek, 523). This bolsters the right to free association, as individuals are encouraged to join other political parties in the face of an unjust regime. <br /> <br /> Though, more similarly to Legalism, additional elements of Confucianism vastly undermine the right to free association. As Confucianism evolved, the belief system began to emphasize a strict code of ethics, creating a rigid social structure (Peek, 532). This limited the ability of followers to freely associate, as they were confined to following a strict code of behavior. Thus, while Confucianism initially appears to support the right to free association, its development as a belief system has constricted the liberties of followers.<br /> <br /> While Taoism does not discredit the right to free association, it does weaken the importance of associations as a whole. Advocating that individuals put aside their distinguishing characteristics, Taoism stresses that there “is one underlying and uniting all phenomena” among human beings (Chan, 316). Furthermore, Taoists argue that human beings must transcend their personal distinctions, diminishing the value of individuals’ associations. Thus, while Taoism does not proclaim individuals should not be able to associate themselves with certain groups, it does argue that associations are ultimately meaningless.<br /> <br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought====<br /> Harriet Taylor, a feminist philosopher from the 19th century, wrote about the restrictions that limit women to the private sphere. Men, according to Taylor, decided that the private and domestic sphere is women’s “proper sphere”; however, she argues that any group’s proper sphere is the “largest and highest which they are able to attain to” (Taylor). Taylor argues that this is not possible without complete liberty and, if men are convinced of their mental superiority, should not be an issue if women and men are afforded the same opportunities (Taylor). This argument can be adapted to freedom of association because it essentially concludes that both women and men have the equal opportunity to associate with organizations if he or she can prove his or her worth. <br /> <br /> In the Constitution, there are two interpreted freedom of associations. The First Amendment includes the freedom of expressive association. The Fourteenth Amendment includes the freedom of intimate association. Intimate association is an individual’s right to form/maintain close personal relationships without interference from the government (Hudson, 2009). Expressive association, recognized in NAACP v. Alabama (1958), refers to the right of individuals to congregate or association for expressive purposes, such as advancing a political opinion (Hudson, 2009). In Roberts v. United States Jaycees (1984), Justice Brennan wrote the majority opinion. Brennan concluded that the Jaycees could not exclude women from membership because their purpose as an economic organization for the advancement of young men was not jeopardized if women were members (Bernstein, 2009). Justice O’Connor concurred, but distinguished between expressive and non-expressive groups, which exist for other purposes (Bernstein, 2009). O’Connor concluded that the Jaycees primarily existed for economic reasons, not expressive ones, and, as such, could not exclude women on the basis that it would compromise their mission (Bernstein, 2009).<br /> <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> Restricting certain groupings and gatherings that are involved, or likely involved in crimes as was seen with the response to the formation of the Ku Klux Klan as a vigilante association, is a typical exception to the right of freedom of association (Australian Law Reform Commission 2016). In response to the crimes committed by the organization, Congress passed a Force Act in 1870 and the Ku Klux Klan Act in 1871, which authorized the suppression of disturbances to the peace by force (Gruberg). This was in effort to stop terrorist organizations through heavy punishments, such as the suspension of habeas corpus under these acts. These acts were eventually found by the Supreme Court to be unconstitutional and were repealed; however, although direct restrictions upon the group (who was behind the 1963 bombing of a black church in Alabama, numerous murders including that of three civil rights workers in 1964 Mississippi, and other criminal efforts to impose white supremacy on the masses and restrict the rights of African Americans) and its freedom of assembly and association have not been able to lawfully prevent such crimes in the name of violations of the freedom of association, modern civil rights laws and increased national surveillance by the Federal Bureau of Investigation have indirectly impacted the KKK’s and other criminally-involved groups’ (such as terrorist groups like ISIL) freedoms of association and assembly. The First Amendment of the US Constitution grants the right to “peaceable assembly,” and any indication of unpeaceable assembly warrants government interference. When also the association infringes upon another group’s freedoms of association, endangers public safety and order, or does not benefit/or harms social need, as can be seen with the efforts of the KKK to restrict black Americans rights to vote and peaceably assemble, necessary limitations are placed upon the right. <br /> <br /> In terms of certain limitations on peaceable assembly, the government has the right to limit this freedom based upon “time, place and manner” restrictions: “Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity (O'Neill). These restrictions come in many forms including imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property. ” These limits ultimately regard the facilitation of legitimate regulatory goals, such as preventing traffic congestion or preventing interference with nearby activities.<br /> <br /> <br /> Religious rights often conflict with the right to free association. As observed in Christian Legal Society v. Martinez, where a Christian student organization argued their First Amendment right to prohibit non-christians from their group, religious associations have used their rights to religious freedom to restrict certain individuals from associating with them. Though, as the Supreme Court ultimately ruled against the Christian Legal Society, rights to free association were ultimately upheld over contradicting religious rights. <br /> <br /> A similar issued was observed in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group. Though, in this case, the Supreme Court asserted the right of groups to prohibit membership from individuals whose beliefs do not coincide with the group mission.Furthermore, Hurley exhibited how religious rights can counter rights to free association, as the decision emphasized that certain individuals could be blocked from associating with religious groups on the basis of their identity. <br /> <br /> Rights to public safety additionally contradict rights to free association. This is often the argument made when prosecuting individuals associating with criminal and terrorist groups. For example in City of Chicago v. Morales, the Supreme Court upheld a Chicago law which criminalized public gang association, asserting that gang members had no constitutional rights to free association (Cole). Exhibited by the court’s decision, individuals are not constitutionally protected to align with criminal groups, as the public’s right to safety against such groups weighs against personal rights to association.<br /> <br /> In regards to the right to free political association, parties hold a contradicting First Amendment right to limit party membership. Furthermore, while a candidate can identify as associating with a specific political party on a ballot, that party has the ability to disassociate from them (Legal Information Institute, Cornell Law School). Through this, a candidate often cannot freely affiliate with the party they associate with, exhibiting a contradiction to the right to free association.<br /> <br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> The freedom of association is derivative from the First Amendment which guarantees the freedoms of speech, assembly, and petition (Hudson 2020). These freedoms of speech, assembly, and petition all form sub-categories of the freedom of association. Collectively, this right permits a group to act in the collective interest of its members and to maintain private associations and assemblies without government interference. The legal problems regarding its practice have only recently arisen- particularly from the loyalty investigations of the Communist Party membership and a series of other cases in the 1950s and 1960s in relation to the activities of the National Association for the Advancement of Colored People (Cornell Law School Legal Information Institute 2020). For example, in 1958, with the case of the NAACP v. Alabama, the right to freedom of association was strengthened and supported by the Supreme Court who ruled in favor of the NAACP’s decision to withhold a list of members in the organization from the government (Hudson 2020). In response to Brown v. Board of Education 1954, Alabama authorities was closely investigating the NAACP under the foreign corporation law. The NAACP complied with the state’s request of its business records, including its charter and list of organizational officers and staff. They refused, however, to give lists of rank-and-file members due to confidentiality, potential economic reprisal attacks, and potential repression. Giving up the lists, civil rights activists said, would dissuade members and potential recruits from associating with the organization, ultimately violating their right of association. <br /> <br /> Prior to this case the Court had supported a stronger suppression of the freedoms of association and assembly regarding organizations that were alleged to be involved in subversive and unlawful activities. In 1928’s New York ex rel. Bryant v. Zimmerman and 1951’s Dennis v. United States the Court had ruled in favor of government efforts to restrict and limit the rights of assembly and speech of both the KKK and the Communist Party (U.S. Supreme Court 1928, 1951). In this case, however, the Court said NAACP did not cause harm to government or society, and they had complied with the demands of the Alabama government sufficiently; therefore they were justified and protected by law in their decision to withhold membership lists. <br /> <br /> Later, in the 1967 case of United States v. Robel in which Eugene Robel, an inactive member of the Communist Party, was charged with violating the Subversive Activities Control Act when he continued his work at the Todd Pacific Shipyards, a location that was deemed by the Secretary of Defense to be a defense facility (U.S. Supreme Court 2020). Under the Act, his actions was illegal due to his membership to the Communist Party and members of the Party’s legal inability to remain employed at a location deemed a “defense facility”. The Supreme Court ruled that the “defense facility” employment provision was an unconstitutional abridgment of the right of association regardless of its application solely to active Party members. Chief Justice Earl Warren wrote that the provision was overbroad while Justice William J. Brennan added that the designation of defense facilities being a power given to the Secretary of Defense was unconstitutional because the Act provided no meaningful standards for the Secretary to follow. This case was a milestone because, once tested, the Court upheld the broad freedoms of association and continued the prohibition of government interference and bias towards any individual based upon an affiliated association. Later cases regarding the Bar examine and admission to the bar further backed this right. In 1971’s Baird v. State Bar of Arizona and Law Students Research Council v. Wadmond, the Supreme Court established that the government could only deny admission to the bar if an applicant’s membership in a group advocating overthrow of the government (such as the Communist Party) was legitimately coupled with the specific intent to achieve that end (U.S. Supreme Court 1971).<br /> <br /> These cases established that organized groups in association that gather in efforts to advance political, economic, religious, or cultural matters may gather without government interference (and particularly without government knowledge of listed members) unless the group explicitly poses a threat to society or engages in criminal activity. <br /> <br /> Under American jurisprudence, permissible exceptions to the freedom involve matters of internal affairs such as discrimination cases. In the 1976 case of Runyon v. McCrary, discrimination based upon race was established as a limitation to a body’s freedom of association after two children were denied access to certain private schools in Virginia as a result of the schools’ admitted segregationist school policies (U.S. Supreme Court 1976). Later, in the Roberts v. United States Jaycees court case of 1984, the court ruled that the Jaycees, an organization of young business leaders that only fully accepted male members and who claimed that the anti-discrimination laws that forced them to accept qualified women was a breach of their freedom of association, lacked “the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women,” ultimately prohibiting their exclusion of women (Bernstein 2020). <br /> <br /> Also, if the state has a compelling interest, it can justifiably limit associations’ rights to organizational autonomy (Alexander 2008, 14). Here, the state would be setting limits and requirements for how a group is organizationally run and made up. By giving an organization a quota, the state forces a particular pattern of inclusion that is in the public interest. For example, the US government is permitted to work to create less segregated schools, involving programs like the Moving to Opportunity (MTO). It is permitted to do in efforts to promote certain patterns of inclusion and acceptance within communities and associations (U.S. Department of Housing and Urban Development 1992).<br /> <br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> In Article 22 of the UN’s International Covenant on Civil and Political Rights (ICCPR), the right to freedom of association is granted to all, including joining trade unions (United Nations 1966). Restrictions can only be placed on this right if the restrictions are prescribed by the state’s law and “are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.” Similarly, in Europe, derogations are permissible only when “prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others” as is stated in Article 11 of the European Convention on Human Rights (European Court of Human Rights 1953, 12). And Article 16 of the American Convention on Human Rights mirrors the decree of the ICCPR (Inter-American Commission on Human Rights 1969).<br /> <br /> Regarding the International Labour Organisation (ILO) and its adoption of Freedom of Association and Protection of the Right to Organize, this body is in place to protect the labor interests of those around the world, and they are prohibited by international law to formulate and/or apply law so as to prejudice against any group (Swepston 1998, 172).<br /> <br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> <br /> Freedom of association is an essential facet of modern democracy, yet it is often overlooked in political discourse on the natural rights and liberties of the citizen. This could be due to the fact that freedom of association and assembly are often so closely related to freedoms of speech and expression, or it could be because it is so difficult for political theorists to decide which association should be allowed and which can be justifiably restricted. Whatever the case, the debate over exceptions to the right of free association continues to change and evolve even in the modern era.<br /> <br /> John Locke is one of the earliest proponents of natural right theory; his second “Treatise on Government” famously outlines humankind’s three essential rights to life, liberty, and property (Locke, “Treatise on Government”). He does not specifically mention people’s freedom of association, but scholars point to his writings on religious assembly as an indication of his stance on the right. In a George Mason University publication, Eric Claeys refers to a passage from Locke’s “Letter Concerning Toleration,” which states that a church is simply a “free and voluntary society” (Locke, “A Letter Concerning Toleration”), saying that “if one reads the same passage from the Letter with an eye toward issues about associational freedom, Locke is making a far more radical point: All private societies, churches and otherwise, deserve a presumption of associational freedom” (Claeys, “The Private Society and the Liberal Public Good in John Locke’s Thought”). In light of Claeys’ assessment, it is easy to observe Locke’s thoughts on the freedom of association in the constitution that he wrote for the Carolina Colony in 1669. For example, Article 103 of this document states that “no person whatsoever shall speak anything in their religious assembly irreverently or seditiously of the government or governors, or of state matters” (Locke, “The Fundamental Constitutions of Carolina: March 1, 1669”). This reveals a reluctance on Locke’s part to allow any association of citizens to gather in opposition of the established government, perhaps because he understands the potential threat that this could pose to political society. His position on the freedom of association is made all the more clear in his 108th Article, which stipulates that “assemblies, upon what presence soever of religion, not observing and performing the above said rules, shall not be esteemed as churches, but unlawful meetings, and be punished as other riots” (Locke, “The Fundamental Constitutions of Carolina: March 1, 1669”). The “above said rules” to which Locke refers consist mostly of provisions to ensure free membership and movement between various religious establishments, but the classification of non compliant assemblies as “unlawful” or “riots” implies a Locke’s hesitation to allow totally free and unrestricted assembly.<br /> <br /> Subsequent political theorists built upon Locke’s theory of rights and liberties, and a number of them elected to deal with the right to freedom of association more directly. The United States Constitution, much of which rests upon Lockean political theory, is one of the first documents to directly address freedom of assembly in its text. Perhaps the buildup to the American Revolution, in which groups like the Sons of Liberty and the Stamp Act Congress were outlawed and broken up by the British government, affected the Constitutional Convention’s decision to include assembly in the Bill of Rights. The Constitution’s First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” (The Constitution of the United States of America). The Constitutional Convention, led by prominent statesman James Madison, used the word peaceably to signal that citizens were not entitled to the complete freedom of assembly if such activity could potentially generate violence or unrest (Law Library of Congress, “The Right to Peaceable Assembly”). The Cornell Law Review writes that this guarantee gradually came to protect citizens’ rights to participate in organizations that regularly utilize their members’ constitutional rights to freely assemble and petition the government. It states that over time, “Supreme Court decisions gradually determined that “the right of association is derivative from the First Amendment guarantees of speech, assembly, and petition” (Legal Information Institute, “Right of Association”). While Madison and his colleagues did not directly address freedom of association in the Constitution’s text, they did lay the groundwork for its realization years later.<br /> <br /> French diplomat Alexis De Tocqueville traveled to the United States in the early 1800s in order to observe the country, and in 1835 he published his findings in his first volume of Democracy in America. In this work the Frenchman sung praise for the American system of government, applauding it for spreading liberty and freedom within its borders. However, even de Tocqueville understood the danger inherent in the guarantee of totally unrestrained freedom of association. Linking the freedom of association to such constitutional rights as the freedom of petition and freedom of the press, he writes that “it cannot be denied that the unrestrained liberty of association for political purposes is the privilege which a people is longest in learning how to exercise. If it does not throw the nation into anarchy, it perpetually augments the chances of that calamity” (De Tocqueville, Democracy in America). De Tocqueville goes on to explain that American association is generally peaceful because citizens tend only to use it to oppose political groups, but he nevertheless must address the danger inherent in the guarantee of unrestricted freedom of association. Even in what he sees as a most ideal form of government, the Frenchman recognizes the risks inherent in unrestricted freedom when it comes to assembly and association.<br /> <br /> Decades later, John Stuart Mill came to a similar conclusion in his 1859 work, On Liberty. Mill was familiar with the American system of government, as evidenced by his mentions of American religious toleration and prohibition of “fermented” drinks, so it is possible that his thinking was influenced in some way by Madison’s work on the Constitution (Mill, “On Liberty”). In his work, Mill advances the theory that humans band together solely for the purpose of protection, and that therefore we can never have the authority to restrain others’ liberty. However, he notes that “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others” (Mill, “On Liberty”). Later on, he explicitly asserts that “freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (Mill, “On Liberty”). Clearly, Mill is aware of the dangers implicit in the creation of total freedom of assembly, and he agrees with the Constitutional Convention that this important right can permissibly be subject to certain regulations and limitations.<br /> <br /> The political and philosophical debate over freedom and association and its acceptable limitations evolved dramatically in the United States in the late nineteenth and early twentieth centuries. Writing just over a century after Mill, First Amendment scholar Thomas Emerson produced an article entitled “Freedom of Association and Freedom of Expression,” in which he addresses a number of issues relating to freedom of association by assessing court precedents and the lessons of history. Like the documents from Mill and Madison, Emerson’s article holds that complete freedom of association would be detrimental to society. Using the example of an organization whose sole aim is to perpetrate a successful bank robbery, Emerson points out that “some types of association need, and are entitled to, greater protection than others” (Emerson, “Freedom of Association and Freedom of Expression,”). He goes on to state that “the legal doctrine that protects associational rights must be able to distinguish between them and to afford the required measure of protection in each case” (Emerson, “Freedom of Association and Freedom of Expression”). Taking into account twentieth-century court decisions, Emerson explains that “the Supreme Court, in recognizing an independent &quot;right of association,&quot; has undertaken to give that right constitutional protection primarily through application of a balancing test” (Emerson, “Freedom of Association and Freedom of Expression”). <br /> <br /> This balancing test is incredibly important in determining the constitutionality of certain restrictions on citizens’ association because it must avoid violating citizens’ unequivocal right to free expression while still preventing the perpetration of unlawful action (Emerson, “Freedom of Association and Freedom of Expression,”). The case of NAACP v. Alabama is one case in which the Supreme Court attempted to find this balance. This instance in which the NAACP argued that the state of Alabama could not constitutionally require the organization to disclose a list of its members, proved incredibly important to our modern understanding of the right to association. Writing the majority opinion, Justice John Marshall Harlan II explained that “it is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment” (Franklin, “NAACP v. Alabama”). This differed from other contemporary cases, such as New York ex. rel Bryant v. Zimmerman, in which the Supreme Court had ruled in favor of the state’s ability to restrict association related to the Ku Klux Klan. The difference, Harlan explained, was that unlike the KKK, the NAACP did not present a threat to society. For this reason, the organization and the members involved were protected under the First Amendment’s protection of citizens’ freedom to peaceably assemble (Franklin, “NAACP v. Alabama”). Harlan, like Madison, Locke, and Mill, understood the importance of restricting free association in order to preserve the peace in society.<br /> <br /> The right to free association is famously difficult to address because the general consensus is that association should not be completely free. For that reason, political theorists and philosophers have gone to great lengths over the centuries to define exactly when and why free association should be limited or left alone. The general consensus is that assembly and association are detrimental to society when they lead to violence or unrest, but as with other rights it is difficult for theorists to decide exactly what criteria turn a given gathering from an expression of free assembly into a potential threat to civil society.<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> <br /> Philosophers and political theorists generally agree that it is sometimes necessary to curtail free association, but this agreement does not answer questions of which forms assembly and association can permissibly be restricted, how they should be limited, or who should control their regulation. It often falls to the government to decide when to step in during times of popular uprising or violent protest, but history also shows a number of instances in which private actors have curtailed citizens’ right to free association or assembly.<br /> <br /> The most common way for private actors can curtail free association is by prohibiting assembly and demonstration on their privately-owned property. In U.S. law, there exists a precedent that protects citizens’ right to free association on public property precisely because the right is not guaranteed when it is practiced on private property. This doctrine was first introduced in 1936, when Jersey City mayor Frank Hague issued an ordinance prohibiting members of the Committee for Industrial Organization (CIO) from gathering in a public space and distributing “communist” literature (Garcia, “Hague v. Committee for Industrial Organization,”). The CIO, with the help of the American Civil Liberties Union, successfully argued that the New Jersey ordinance was unconstitutional under the First Amendment. Hague appealed to the Supreme Court, which upheld the original decision and struck the ordinance down (Garcia, “Hague v. Committee for Industrial Organization,”). Justice Owen Roberts justified the decision for Hague v. Committee for Industrial Organization by likening public spaces such as streets and parks to public forums, in which the free flow of ideas and discourse must be protected under the First Amendment. He made this ruling because he recognized that private actors retained the right to curtail citizens’ right to association when that association occurred on private property. In order to preserve the right to peaceable assembly, the Court’s decision set the precedent for the “public forum” doctrine, which continues to protect the right to association in public spaces to this day (Garcia, “Hague v. Committee for Industrial Organization,”). Writing for The First Amendment Encyclopedia, David Hudson writes that “in the Court’s forum-based approach, the government can impose reasonable time, place, and manner restrictions on speech in all three categories of property, but has limited ability to impose content-based restrictions on traditional or designated public forums” (Hudson, “Public Forum Doctrine | The First Amendment Encyclopedia,”). The doctrine specifically aims to protect peaceful association on public property because the right is not guaranteed when assembly occurs on private property.<br /> <br /> One example of a private actor using its ownership of property to curtail free association can be observed in the 1994 case of Madsen v. Women’s Health Center, Inc. In this case, the Aware Woman Center for Choice in Melbourne, Florida filed a suit against anti-abortion protestors who had been blocking entrances to the building, harrassing abortion patients, and demonstrating outside of staff members’ homes (“Madsen v. Women's Health Center, Inc.”). A court order was issued, ordering protestors to refrain from trespassing on Center property, blocking its entrances, and abusing staff and patients. When the court order was violated, the “the court created a 36-foot buffer zone around the clinic entrances and driveways (including the public sidewalk) within which all antiabortion speech was banned. It also prohibited excessive noise and images that patients could see or hear during surgery and recovery” (“Madsen v. Women's Health Center, Inc.”). The Supreme Court later upheld the buffer zone rules, but struck down the prohibition of protestors’ practice of showing images to clients. It also ruled that the Florida court’s 300-foot buffer zone that prohibited protestors from approaching clients and staff at the Center and at their homes was too restrictive of First Amendment rights (“Madsen v. Women's Health Center, Inc.”). The ruling, according to Chief Justice Rhenquist, sought to preserve protestors’ right to association and assembly while still protecting the patients and clients from intimidation and abuse (“Madsen v. Women's Health Center, Inc.”). It also serves as a reminder that private citizens still reserve the right to curtail free association if said association makes them feel unsafe or threatened.<br /> <br /> Both the Madsen and Hague cases illustrate that judges, in particular, have immense power to determine the breadth of citizens’ right to freedom of association as guaranteed in the First Amendment. For example, in the case of Ward v. Rock Against Racism, the Supreme Court determined that free expression in the form of a rock concert in New York’s Central Park could be subject to volume regulations under the First Amendment (O'Neill, “Time, Place and Manner Restrictions”). This decision, written by Justice Anthony Kennedy, led to the creation of a test to determine whether assembly and expression could be restricted. The test asks whether the regulation is “content neutral,” whether it is “narrowly tailored” to fit a specific governmental interest, and whether it still provides ample opportunity for the message to be communicated (O'Neill, “Time, Place and Manner Restrictions”). If a regulation passes all three prongs of this test, then it can legally restrict or control the time, place, or manner in which assemblies like protests are carried out. The Law Library of Congress writes that since Kennedy’s decision, “the Supreme Court has held that it is constitutionally permissible for the government to require that a permit for an assembly be obtained in advance” (“Right to Peaceful Assembly: United States | Law Library of Congress”). Kennedy’s ruling also allows the government to “make special regulations that impose additional requirements for assemblies that take place near major public events” (“Right to Peaceful Assembly: United States | Law Library of Congress”). This legal doctrine has significantly shaped the way in which state and federal governments treat freedom of association and the right to peaceable assembly. While the Supreme Court can hardly be considered a private actor, Justices like Kennedy rely on personal study and private experience to create policy that affects American freedom of association as a whole.<br /> <br /> Citizens within a political society have the right to free association as long as it is peaceable and does not infringe upon others’ rights or liberties. This principle lends itself to a number of complexities because its parameters for free association are so vague, but over the past few centuries the United States has worked to define when and how private actors can curtail others’ right to free association. The result is that the Supreme Court, and the justices that make it up, have set out precedents that test whether certain forms of association are constitutional and which ones can justifiably be restricted. The definition of public spaces as areas of free association and creation of buffer zones for private properties represent significant steps forward in this effort.<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> <br /> The right to freedom of association is not an absolute right because it is subject to certain limitations. Political thinkers and legal experts generally agree that assembly and association can be justifiably restricted if it conflicts with other citizens’ security, liberty, or property. Another case in which the right is subject to certain limitations is in a case of emergency or long-run disaster. Recent history shows a number of instances in which the U.S. government has justified the restriction of the right to free association during times of war and natural disaster. Interestingly, it did not effectively curtail citizens’ right to free association during the recent COVID-19 pandemic.<br /> <br /> Freedom of association most often restricted in the event of war. In his work, “The Forgotten Freedom of Assembly,” Washington University scholar John D. Inazu briefly explores the effect that World War I had on citizens’ right to gather and discuss the country’s affairs. He writes that during the late World War I years, “the freedom of assembly was constrained by shortsighted legislation like the Espionage Act of 1917 (and its 1918 amendments) and the Immigration Act of 1918, and the Justice Department’s infamous Palmer Raids in 1920” (Inazu, “The Forgotten Freedom of Assembly”). William Riggs of the First Amendment Encyclopedia similarly notes that the Vietnam War era, in particular, saw drastic reductions in Americans’ rights to peaceable assembly and association. He writes that “the war in Vietnam quickly became the focus of major protests that resulted in increased government attempts to limit First Amendment protections. These efforts mostly dealt with the right to assemble and what constituted appropriate free speech criticism of the war” (“Vietnam War | The First Amendment Encyclopedia,”). The U.S. government broadly justified these restrictions by arguing that they were made in the interest of national security, claiming wartime as an acceptable time for the limitation of free association.<br /> <br /> Recently, the United States government has also walked back citizens’ right to freedom of association when dealing with natural disasters. A 2020 Congressional report on First Amendment rights during the COVID-19 pandemic notes that when public health and safety are at risk, the government is justified in its restriction of certain freedoms to widely assemble as long as these regulations aim to protect citizens’ essential rights, such as those to life or property. It notes that the government is justified in restricting freedoms of association at certain times of the day, as long as this action is taken with the explicit purpose of protecting citizens from further harms. “For example,” it says, “in upholding a county curfew following Hurricane Andrew, the Eleventh Circuit asked only whether the government (1) took that action in “good faith,” (2) with ‘some factual basis’ that the restrictions were ‘necessary to maintain order’” (Killion, CRS Report, “U.S. Library of Congress”). The report argues that “curfews, increased “police powers,” and other measures that are considered “essential to the public safety [and] health” all constitute acceptable restrictions of First Amendment rights-such as the right to freedom of peaceable assembly- during times of natural crisis (Killion, CRS Report, “U.S. Library of Congress”).<br /> <br /> The recent COVID-19 crisis created another instance in which citizens’ right to freedom of association was called into question. The pandemic caused widespread and dramatic change within global society as the country entered a state of total lockdown, and in the process it raised a number of legal, moral, and philosophical questions about association and assembly. In June 2020, for example, plaintiffs Ron Givens and Christine Bish filed a lawsuit against California State officials after being denied permission to hold a protest outside the California State Capitol building. The assembly, which aimed to protest the state’s response to the COVID-19 pandemic, was not allowed to take place because of the potential health risks it would create. In response to this denial, the Department of Justice filed a Friend-of-the-Court brief which argued that California’s de facto ban on public demonstrations directly conflicts with First Amendment guarantees and should therefore be struck down (“Department of Justice Files Friend-of-the-Court Brief in Support of Free Speech Challenge to California's COVID-19 Ban on In-Person Political Protests,”). The debate over pandemic restrictions and First Amendment rights became even more heated as the Black Lives Matter Movement sparked major demonstrations in major cities all over the country as citizens gathered to protest police actions in the murder of George Floyd. An MSN report on the protests in Boston notes that “Black Lives Matter Boston and Violence in Boston, two activist organizations who are expected to hold a protest in the city Tuesday evening, urged anyone who is at high risk due to COVID-19 to stay home. Organizers also asked participants to wear gloves and masks and bring hand sanitizer” (“Protesting amid the coronavirus crisis: Massachusetts officials say they respect demonstrators' 1st Amendment rights, urge them to take health precautions though,”). The DOJ’s Friend-of-the-Court brief, in addition to reports on the Boston protests, indicate that the U.S. government has largely decided to allow citizens to exercise the right to free association and assembly, despite the potential danger it could pose.<br /> <br /> The right to freedom of association is subject to a number of limitations. Periods of war, natural disaster, and global pandemic all create conditions in which the United States has considered placing restrictions on the right to peaceable assembly. In the two former cases, it has generally been able to regulate its citizens’ exercise of their right to freely associate with one another. However, the COVID-19 pandemic has shown that while the government may seek to limit its citizens’ assembly, it is not always able to enforce its regulations.<br /> <br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Expression&diff=216 2020-07-20T16:48:58Z

<p>Ksandlund: /* Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this? */</p> <hr /> <div>==History==<br /> ===What is the oldest source in any country that mentions this right?===<br /> <br /> The ancient Greeks within the Athenian Democracy, using the words “parrhesia” and “isegoria” (dating back to the fifth century BCE) were the first to emphasize the freedom to speak candidly and to &quot;say what one pleased&quot; a subset of freedom of the future declaration of freedom of expression (Bejan 2019, 97). The freedom of expression is imperative to democracy as it “refers to the ability of an individual or group of individuals to express their beliefs, thoughts, ideas, and emotions about different issues free from government censorship” (Freedom Forum Institute 2020). From the ancient Greeks, “Parrhesia” specifically describes the freedom to say whatever one pleased, and a similar idea describing freedom of expression, “isegoria,” describes the right of citizens to publicly address and debate against the democratic assembly (Lu 2017, 4). “Isegoria” is derived from the root word “agora” which translates to marketplace, and thus the meaning of this version of freedom of expression addresses that of public speech. This right to “isegoria” was more heavily based in the ideas of equality of all men to have access to the government than for the principles of freedom (Bejan 2017, 99). On the other hand, “parrhesia” held a broader meaning. This idea is more about the right to speak freely or frankly. This word implies a willingness of the speaker to be open, honest, and courageous in dealing with the consequences of the sometimes controversial truth which he spoke while those who listened had to tolerate any offense taken from the speaker. Because of the courage and privilege necessary in truly enjoying “parrhesia,” it describes a form of licensed privilege. After the collapse of the Athenian democracy, however, the fundamental ideas of “parrhesia” are the more common and practiced bases of freedom of expression today in documents such as the American Constitution. “Isegoria” on the other hand took on the form of freedom of speech and debate within the legislative houses of government such as British Parliament and American Congress. <br /> <br /> However, regarding modern history, the first legal document to declare these rights to freedom of expression was the English Bill of Rights in 1689 by William III and Mary II after the Glorious Revolution. This document outlined civil and human rights that were to be enjoyed by all men, and the document gave Parliament power over the monarch, increasing the amount of power given to the people.<br /> <br /> ===What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE===<br /> ====Afghanistan====<br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> National Constitution (1853)<br /> <br /> ====Armenia====<br /> ====Australia====<br /> The Constitution does not explicitly protect freedom of expression, but in 1992 the High Court of Australia ruled in favor of political expression, setting a precedent and implying freedom of expression<br /> <br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> ====Brazil====<br /> Brazil’s seventh Constitution (1988)<br /> <br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> Canadian Charter of Rights and Freedoms (1982)<br /> <br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> The Constitution of the People’s Republic of China (1982)<br /> <br /> ====Colombia====<br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> Declaration of the Rights of Man and of the Citizen (1789)<br /> <br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> Weimar Constitution of 1919<br /> <br /> ====Ghana====<br /> 1992 Constitution of Ghana<br /> <br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> The Constitution of India Bill (1895)<br /> <br /> ====Indonesia====<br /> 1945 Constitution<br /> <br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> ====Israel====<br /> Loosely defined by the Declaration of the Establishment of the State of Israel and rulings by the Israel Supreme Court<br /> <br /> ====Italy====<br /> Constitution of 1948<br /> <br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> 1947 Constitution<br /> <br /> ====Jordan====<br /> ====Kazakhstan====<br /> ====Kenya====<br /> 1963 Constitution<br /> <br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> ====Laos====<br /> ====Latvia====<br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> Mexican Constitutions of 1857 and 1917<br /> <br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> Federal Republic of Nigeria constitution (1958)<br /> <br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> ====Oman====<br /> ====Pakistan====<br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> Constitution of 1993<br /> <br /> ====Philippines====<br /> 1987 Constitution<br /> <br /> ====Poland====<br /> The Little Constitution of 1992<br /> <br /> ====Portugal====<br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> Constitution of Russian Federation (1993)<br /> <br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> National Communications Act of March 2012<br /> <br /> ====South Africa====<br /> South African Bill of Rights of the Constitution (1996)<br /> <br /> ====South Korea====<br /> Constitution of 1948<br /> <br /> ====South Sudan====<br /> ====Spain====<br /> Constitution of 1978<br /> <br /> ====Sri Lanka====<br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> Freedom of the Press Act of 1766<br /> <br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> ====United States====<br /> Declaration of Independence (1776)<br /> <br /> ====Uruguay====<br /> ====Uzbekistan====<br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> <br /> This right is mentioned in several historical noteworthy written sources, some of which include John Locke's extremely influential and fundamental Second Treatise of Government. Along that same vein, noted philosophers have written commentaries on laws, freedoms, and political theory; these include works by Michael Foucault, particularly in his lecture series at Berkeley, Montesquieu in his commentary the Spirit of the Laws, Sir William Blackstone's Commentaries on the Laws of England, and John Stuart Mill's noteworthy work On Liberty. <br /> <br /> Many international treaties, charters, and conventions also work to avidly incorporate the freedom of expression in its foundations. The UN International Covenant on Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights, and the EU Charter of Fundamental Rights.<br /> <br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> The right to free expression is upheld by most countries’ constitutions (World Population Review), though the degree of liberty that comes with entitlements to free expression may differ. Furthermore, a Free Expression Index generated by Pew Research Center demonstrates one method for comparing the strength of free expression internationally (Pew Research Center). In developing the index, Pew surveyed 38 countries on eight questions pertaining to free expression. Pew proceeded to then rank the countries on a scale of zero to eight-eight meaning the country fully supported free expression. From their results, the United States and Canada demonstrated the highest levels of free expression, with scores of 5.73 and 5.08 respectively, while Senegal and Burkina Faso showed the lowest levels of free expression, with scores of 2.06 and 2.94, respectively. Thus, demonstrated by the Pew Research index, while many countries may support free expression within their constitutions, the degree to which free expression is practiced and enforced often varies. <br /> <br /> Consequently, there are still several countries that restrict free expression in their laws. For example, in South Korea, The National Security Law prohibits sharing sympathies towards North Korea (Kolick, Alli; Dehague, Tyler; and Leick, Amber). Additionally, while Afghanistan’s constitution does protect freedom of expression, it does not firmly protect speech when related to “ ‘public spirit’, ‘security’, and ‘public interest’ ” (Ministry of Foreign Affairs - Islamic Republic of Afghanistan). India’s free expression laws likewise are not comprehensive, as the right to free press is not explicitly stated in the Indian Constitution (Kolick, Alli; Dehague, Tyler; and Leick, Ambe). Therefore, while most countries do have some form of free expression within their constitutions, not all free expression clauses clearly outline the rights of citizens; rather, many constitutions explicitly restrict forms of free expression.<br /> <br /> ===Is it contained in the US Constitution?===<br /> <br /> The right to free expression is not stated verbatim in the United States constitution. Though, it is universally accepted to be covered by the First Amendment (American Civil Liberties Union). Furthermore, the First Amendment asserts, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Specifically, the listed rights to free speech, press, assembly, and petition are broadly viewed as Americans’ rights to free expression.<br /> Though, the nature of free expression, as enshrined by the Constitution, has been heavily debated. Some believe that only political speech is protected by the First Amendment (Legal Infornation Institute, Cornell Law School). Others assert that the individual freedoms outlined by the First Amendment should not be grouped together as Americans’ general freedoms to expression. Rather, these individuals argue that the individual freedoms entitled by the First Amendment ought to be addressed as distinct rights (Bogen). Consequently, in 1799, John Hay, in criticizing the Sedition Act, argued that freedom of speech, as entitled by the First Amendment, protects all forms of expression. Specifically, using freedom of the press as an example, Hay asserts that the same degree of freedom is applied to each First Amendment right, stating “To ascertain what the &quot;freedom of the press&quot; is, we have only to ascertain what freedom itself is. For, surely, it will be conceded, that freedom applied to one subject, means the same, as freedom applied to another subject.” Ultimately, Hay’s argument developed the belief in Americans’ general right to free expression, which is still commonly accepted today to be protected by the First Amendment<br /> <br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> <br /> Given that freedom of expression is often used as a blanket term for the numerous rights enshrined by the First Amendment, free speech, press, petition, and association, its parameters are implicit. For example, while the First Amendment does assert the right to free speech, it does not go into detail about the nature or degree of free speech. For this reason, what counts as protected “expression” is implicit. Demonstrated by exceptions, summarized in &quot;Are there any exceptions in American law to this right?&quot;, to the First Amendment, the implications of the right to free expression are often determined by the Supreme Court’s decisions. Furthermore, cases such as Schenk v. United States, Chaplinsky v. New Hampshire, Miller v. California, New York Times Company v. Sullivan, and Central Hudson Gas &amp; Electric Corporation v. Public Service Commission of New York, have created precedents making the parameters of free expression increasingly explicit, as each case demonstrates how certain forms of expression are or are not protected by the First Amendment.<br /> <br /> ===Are there any exceptions in American law to this right?===<br /> <br /> Several Supreme Court cases have placed restrictions on the right to free expression, creating exceptions to the First Amendment. For example, in Schenk v. United States, the Supreme Court ruled that free expression is not constitutionally protected when it will “create a clear and present danger that they will bring about substantive evils that the government has a right to protect.” The qualifications for limiting dangerous speech were later established by Brandenburg v. Ohio, which ruled speech could be prohibited if it was &quot;directed at inciting or producing imminent lawless action&quot; or was “likely to incite or produce such action.”<br /> <br /> Additionally, there is a legal exception for “fighting words”, in that words that “would likely make the person to whom they are addressed commit an act of violence” are not shielded by the First Amendment. This was decided by the Chaplinsky v. New Hampshire decision, where the court upheld that it was illegal for Walter Chaplinsky to call a police officer “a damned Fascist.” <br /> <br /> Another exception to the First Amendment is obscene language. In Miller v. California, the court clarified what qualifies as obscene language, which was described as speech that “To the average person, applying contemporary community standards, appeal to the prurient interest; Depict or describe, in a patently offensive way, sexual conduct, as specifically defined by the applicable state law, and taken as a whole, lack any serious literary, artistic, political, or scientific value.” Therefore, expression that falls under these standards may be regulated. <br /> <br /> Defamation, “a statement that injures a third party’s reputation” (Legal Information Institute, Cornell Law School), is an additional exception to freedom of expression in the United States. The standards for defamation were established in New York Times Company v. Sullivan, which claimed that in order to sue a news outlet for defamation, one must have proof that the outlet was aware of their false claims prior to publishing. <br /> <br /> Lastly, commercial speech may be regulated in order to protect consumers. Furthermore, the standards for commercial speech regulation were created by Central Hudson Gas &amp; Electric Corporation v. Public Service Commission of New York, which created a four part test for determining whether or not the government could limit commercial speech. According to the court, commercial speech is may be regulated only if, <br /> <br /> speech must concern lawful activity and not be misleading; 2. the asserted governmental interest must be substantial. If the first two parts are established, then it must also be determined that: 3. the regulation directly advances the governmental interest asserted; and 4. the regulation is not more extensive than is necessary to serve that interest.<br /> <br /> Ultimately, demonstrated by these numerous cases, although the United States Constitution upholds freedom of expression, there are various exceptions to the First Amendment.<br /> <br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> <br /> For European countries, the right to free expression is entitled by Article 10 of the European Convention on Human Rights, though it is not an absolute law. According to the article, freedom of expression can be restricted if it incites crime or jeopardizes natural security, public health, personal reputations or the authority of the judiciary. Additionally, In Africa, both the African Charter on Human and Peoples’ Rights and the Declaration of Principles on Freedom of Expression assure members of the African Union the right to free expression. In Mexico and South America, the American Convention on Human Rights, also referred to as the Pact of San Jose, upholds the right to free expression. Internationally, the United Nations lists numerous treaties that uphold the right to free expression. Most predominantly, the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) enshrine the right to free expression. Through these various treaties, freedom of expression is upheld by international law.<br /> <br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> The ancient spiritual tradition of Buddhism is rooted in practices and teachings that promote enlightenment and ultimately reaching a state of nirvana or peace. The tradition quickly became a school of thought that heavily influenced east Asian societies and laws. Although, not traditionally accredited to influencing modern Western ideals and expressions of modern democracy and human rights, reform Buddhism does justify human rights law, and particularly the freedom of expression. Although often used synonymously, within the right to freedom of expression, the freedom of speech is an important component that is more directly addressed by the teachings of Buddhism. <br /> <br /> In 2010, the Dalai Lama was awarded a Democracy Service Medal for his commitment to democratic principles and upholding and defending human dignity. The Dalai Lama connects the modern practice of democracy with traditional Buddhist teachings. In his 1993 speech entitled “Buddhism and Democracy,” the Dalai Lama stated, “The institution the Buddha established was the Sangha or monastic community, which functioned on largely democratic lines. Within this fraternity, individuals were equal, whatever their social class or caste origins.” According to this idea of equality, the Buddhist concern for the well-being of all justifies rights to all freedoms of belief, expression and conduct” (Caney 2001, 68). Along the Buddhist ideals of equality and the freedom to exercise control of one’s life paired with the democratic ideals of freedom and commitments to human rights, the two practices are conjoined. And although there is no specific, equivalent word in Buddhism for the word “rights,” rights are understood as a subjective entitlement (Husted, Keown, &amp; Prebish 2012, 20). According to Charles Taylor, in Buddhism, “human rights don’t stand out, as they often do in the West, as a claim on their own, independent from the rest of our moral commitments” (Taylor 1999, 110). These rights are somewhat implicit in understanding the philosophy of Buddhism. <br /> <br /> In reaching enlightenment, one who practices Buddhism is to follow The Eightfold Path – the ultimate guide to life. The Eightfold Path outlines that followers should practice “1. Right understanding and viewpoint (based on the Four Noble Truths), 2. Right values and attitude (compassion rather than selfishness), 3. Right speech (don't tell lies, avoid harsh, abusive speech, avoid gossip), 4. Right action (help others, live honestly, don't harm living things, take care of the environment), 5. Right work (do something useful, avoid jobs which harm others), 6. Right effort (encourage good, helpful thoughts, discourage unwholesome destructive thoughts), 7. Right mindfulness (be aware of what you feel, think and do), and 8. Right meditation (calm mind, practice meditation which leads to nirvana)” (United Religions Initiative 2020). Number 3 on the path outlines the necessity of right speech, which adds a layer of responsibility to the freedom of speech – a component which is not explicitly outlined in most Western descriptions of the right to freedom of expression. Within the Buddhist teachings, lies, half-truths, insults, and gossip are strictly prohibited; ultimately, being truthful is only one component to the freedom of speech, but also non-exploitation of oneself and of others is a central principle to Buddhism (Ekachai 2015). This responsibility is what allows for each person to be not only equal, but also to have the same opportunity and potential to be who and what they desire to be. As a result, the Dalai Lama states that, “Thus not only are Buddhism and democracy compatible, they are rooted in a common understanding of the equality and potential of every individual” (Dalai Lama 1999).<br /> <br /> <br /> In his teachings, the Buddha stresses the importance of following the Eightfold Noble Path, which consists of cultivating eight essential areas of behavior. Within the Eightfold Noble Path, the Buddha asserts the need to practice “right speech” (Walton). When following right speech, also known as Wise Speech or Virtuous Speech, one focuses on expressing themselves in meaningful and genuine ways. When our words are moral, the Buddha states, our actions will follow, resulting in flourishing morality throughout the universe. <br /> <br /> Urging followers to engage in right speech, Buddhism condemns several forms of dialogue. In this way, the codes of Buddhism can be interpreted as a hindrance to the right to free expression, as certain types of discussion are excluded from qualifying as right speech. Defined as “abstinence from false speech, abstinence from malicious speech, abstinence from harsh speech, and abstinence from from idle chatter” (Roth), right speech upholds censoring hostile or false dialogue. While the Buddha emphasizes that the intention of right speech is to promote harmony, the doctrine of right speech nevertheless condemns words associated with political or social dissent. Thus, by providing a framework for proper speech, Buddhism undermines individuals’ entitlements to free expression. <br /> <br /> Though, despite the provisions of right speech, Buddhist leaders are expected to listen to the words of their people, upholding freedom of expression. As explained by John Peek in Human Rights and the Japanese State, “The enlightened ruler need not fear being deposed if he cultivates the traits of integrity, self-control, forbearance, generosity, gentleness, selflessness, non obstinacy, and nonviolence…the King will listen carefully to the wishes of the people, Just as this is to be a government by the people, it is also to be a government of the people” (Peek, 534). Portraying a system in which individual voices are supported by leaders, Peek asserts that Buddhism welcomes free expression. Thus, while Buddhists are guided to follow right speech, Buddhist leaders are expected to respect individual expression, regardless of if they believe it to be hostile or malicious. This contributes to the belief that free expression is a human right that must be protected by governments.<br /> <br /> ====Platonism====<br /> ====Aristotelian thought====<br /> Aristotle’s theories on the freedoms of men influenced the common theories of human rights that we know today; however, this may seem implausible at first glance, considering Aristotle did not consider individual freedom to be of the highest political value. He actually supported using state coercion to morally improve citizens. He also did not view democracy as the best form of government (Johnson 30, 2001). However, Aristotle’s “Politics” which subordinates individual freedom to collective goals imposed by ruling elites inspired the foundations of the guided freedoms we enjoy today. <br /> <br /> Within Aristotle’s political arguments and analyses, unlike Locke, who often writes about the preexisting natural rights of all men, Aristotle describes rights given to men within the “polis” or society against other individuals, rulers included, but not against the polis itself, referring to the government. Within this theory, justice can only be found in its truest form through the polis. However, Aristotle did recognize rights in the political community- a theory which eventually inspired the theories of natural rights (Miller 880, 1996). In his writings, Aristotle focuses less on the extents of and limits to freedom of expression and more on the value of what is said within the bounds of the freedom and the function of speech. Within freedom of expression, Aristotle focuses on the most important aspect: “logos,” the root word of the English word “logic” which means both “speech” and “reason” (Clayton 2020). Aristotle believed the ultimate purpose of speech, which was specifically assigned to men and no other animal by nature to be to determine what is right and wrong, just and unjust. In doing so, we make it possible for humans to live together justly and in pursuit of lives of virtue. Writing that we are, by nature, political animals, Aristotle claimed: “We must figure out how to live together for ourselves through the use of reason and speech, discovering justice and creating laws that make it possible for human community to survive and for the individuals in it to live virtuous lives. A group of people that has done this is a city: “[The virtue of] justice is a thing belonging to the city. For adjudication is an arrangement of the political partnership, and adjudication is judgment as to what is just” (Clayton 2020). In living according to the laws of the polis, pursuing justice, and using the virtues that separate us from other animals to form a functioning society, we can achieve individual virtue and happiness. Aristotle’s theory suggests that men are not free solely because they live in a free society, but men have certain freedoms, such as the freedom of expression, that help to govern them responsibly in the pursuit of happiness and virtue (Johnson 36, 2001). <br /> <br /> In order to attain true happiness, the free speech of a free man has a large stake in his moral virtue. Moral virtue can only be attained by a free man because an action is only moral if it is chosen. This theory can be called somewhat of a “virtuous circle of cause and effect. It implies a natural capacity for virtue that has to be actuated by virtue — a capacity for freedom that requires the exercise of freedom” (Mansfield 2018). There can be no freedom at all without the freedom of choice, and having the choice to speak freely is inherent in our society for our pursuit as a collective of virtue, justice, and happiness.<br /> <br /> ====Ancient Chinese Philosophy====<br /> <br /> Noted by Daniel Bell, professor of ethics and political philosophy and director of the Centre for International and Comparative Political Philosophy at Tsinghua University in Beijing, Confucius emphasized the importance of free political speech in The Analects. Conveyed by Bell, Confucianism supports civic engagement through political debate, a key element of free expression. Though, several other areas of the Analects dismiss certain forms of speech. For example one section of The Analects pronounces, “Crafty speech disrupts virtue” (The Analects of Confucius). While sections such as these condemn specific types of speech, they do not enforce a legal framework for restricting them. Thus, although Confucianism provides a framework for what qualifies as just speech, it does not explicitly urge followers to refrain from engaging in certain types of dialogue. In this way, Confucianism appears to promote freedom of expression. <br /> <br /> On the contrary, Legalism, with its focus on strong authoritarian power, promotes restrictions on free speech, weakening the right to free expression. Legalist scholar Han Feizi emphasizes this, stating, “Accordingly, in the country of an enlightened ruler there are no texts written in books and on bamboo strips, but the law is the teaching; there are no “speeches” of former kings” (Pines, 16). As noted by Han Feizi, within the legalist society, there are no teachings and works to be produced other than the laws created by the ruler. Thus, the principles of legalism directly counter the development of the right to free expression, as civilians are restricted by law from expressing themselves. Furthermore, these Legalist notions are emulated in contemporary China, where the communist party rampantly restricts the right to free expression. <br /> <br /> Taoism upholds intellectual freedom, promoting followers to use their creativity to express themselves. Though, discussed by You-Sheng Li in &quot;A New Interpretation of Chinese Taoist Philosophy&quot;, “Taoist Freedom of thought is different from the Western concept of free speech, free expression, and free press. The latter are all concerned with the social space in which free thoughts are expressed, and therefore are part of modern society. Taoist freedom is concerned with the individual himself.” Thus, Taoist philosophy asserts that while individuals should be entitled to the freedom of thought, this liberty is not necessarily applied to society. In this way, Taoism supports the freedom of the individual to express themselves, but not the universal legal entitlement to free expression.<br /> <br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought====<br /> Feminist theory, at times, seems to be at odds with the principles of free expression. It is commonly acknowledge that limitations on freedom of speech are less strictly-enforced in academic settings because the freedom of exchanging ideas, without consequence or censorship, is essential to the marketplace of ideas (Cornwell, 107, 1998). The marketplace of idea, essentially, centers on the belief that some opinions will rise in merit, while lesser ideas will sink and be disqualified (Cornwell, 107, 1998). Feminist theory recognizes that there may be underlying power dynamics within a classroom setting that ultimately threaten the viability of the marketplace of ideas, namely that hate speech could perpetuate “the inequalities and injustices that feminist pedagogy attempts to overcome” (Cornwell, 107, 1998). To understand the study of free expression within feminist theory, one must understand that feminist scholars do not examine freedom of expression as an individual right, but instead “the social relations between individuals” (Cornwell, 110, 1998). Cornwell recognizes that speech, within a social relationship, creates “differentiations in power and the dominant becomes the standard by which the ‘other’ is defined” (110, 1998). Ideas about free speech, including the marketplace of ideas, were created and perpetuated by white males for over two hundred years, according to feminist theories, and, as such, so have the understanding of hate speech (Cornwell, 111, 1998). Cornwell, as such, recommends that academic settings, instead of using the marketplace of ideas theory to regulate freedom of speech, use the “ethic of care” principle (Cornwell, 113, 1998). The ethic of care essentially means an individual’s shift “towards an orientation of social life constituted by the relationship between individuals lays the groundwork for reorienting speech rights, so that they are not simply extensions of individual rights” (Cornwell, 113, 1998). Instead of viewing freedom of speech as an individual right, it “should be viewed as part of the social relation between individuals and, consequently, attention should be paid to the social implications of that relationship” (Cornwell, 113, 1998). Within the context of the ethic of care, hate speech is communication that creates a meaning of bigotry and discrimination—it changes the social relationship between two individuals to cause harm (Cornwell 113, 1998). Since speech creates meaning in a relationship that can define the two individuals, a relationship with hate speech “constructs a ‘truth’ about the victims of hate speech that invariably impacts on their liberty” (Cornwell, 113, 1998). Thus, within feminist theory, hate speech ought to be combated within the academic setting through “revealing and engaging with power, and community building in the classroom” (Cornwell, 111, 1998).<br /> <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> <br /> <br /> Rights to privacy often conflict with the right to free expression. Furthermore, noted by Duke University Law Professor George Christie, often in Europe, speech pertaining to information not already known by the public can be successfully argued to be a violation of privacy, and thus illegal (Christie). Though, Christie argues, this argument is more difficult to make in the United States, as freedom of expression is the “preferred value” over privacy in American jurisprudence. This preferred value is exhibited in even the most extreme cases, such as Snyder v. Phelps, where the court upheld the rights of the Westboro Baptist Church to protest adjacent to the funeral of a Marine who had been killed in Iraq (Christie).<br /> <br /> Explained by Christie, while the Snyder v. Phelps case did strongly affirm the right to free speech, an additional conflicting right emerged from Justice Alito’s dissent. Alito asserted that the protests could violate the common law tort of intentional infliction of emotional distress, as the disturbing language of the church protests may have caused the plaintiff severe emotional distress. Through this, Alito affirms that individuals have a legal right to not be afflicted by speech that results in emotional distress, contradicting the right to free expression. <br /> <br /> Additionally, rights to public safety may contradict rights to free expression. This is largely demonstrated by international law, which upholds restrictions on free speech when they are intended to prevent defamation, protect national security, and uphold public health (Govindu). If speech comes into conflict with any of these areas, it is generally accepted that it can be curtailed by the government. In this way, the rights of others to public safety can overpower the right to individual expression. <br /> <br /> In the United States, the Schenck v. United States and subsequent Brandenburg v. Ohio rulings outline the ways in which free speech can be limited in the name of public safety. In Schenck, the court upheld that speech was not constitutionally protected if it will “create a clear and present danger that they will bring about substantive evils that the government has a right to protect” (Cornell Law School). The guidelines for restricting speech were then further clarified in Brandenburg, which asserted that speech could be prohibited if it was “&quot;directed at inciting or producing imminent lawless action&quot; or was “likely to incite or produce such action.” Exhibited by these two cases, the public has a right to be protected from dangerous speech. Therefore, through the protection of public safety, the right to free expression is contradicted.<br /> <br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> The following country-specific descriptions are from a 2019 US Government Report. <br /> <br /> '''Argentina''': Argentina protects the right to free press, without prior restraint. However, it does not explicitly protect other forms of expression, such as free speech. Argentina criminalizes speech likely to incite violence. Additionally, Argentinian penal law contains protections for one’s honor, making it a fineable offense to slander someone, intentionally discredit them, or falsely accuse them of a crime. However, these penalties do not apply in matters of public interest. Although Argentine courts have interpreted limits on free expression narrowly, they have allowed these limits where they are established by law, meet the needs of a democratic society and where the limits are proportional to their goals. <br /> <br /> '''Canada''': The Canadian Charter of Rights and Freedoms guarantees the right to “thought, belief, opinion, and expression, subject to limits that can be “demonstrably justified in a free and democratic society.” Courts have interpreted the right to free expression broadly. Courts have made judgements about the constitutionality of limitations through proportionality analysis, taking several factors into consideration. They are more inclined to protect political speech, or speech that serves another social value, such as art or science. Courts are also more willing to accept narrower limits with less extreme penalties (civil versus criminal, for example). They have refused to allow limitations based on the offensiveness or unpopularity of the expression’s content. Their courts ruled unconstitutional a law banning the spread of false news. <br /> Despite free expression’s broad protections, courts have upheld anti-hate-speech laws. Additionally, interruptions of public speeches, especially using obscene language, may criminally disrupt the peace. Canada’s equivalent to the FCC has the power to take action against outlets that spread false information, but it has only acted very limitedly on a few occasions. Finally, Canada bans foreign broadcasters from attempting to influence its elections. <br /> <br /> '''China''': China’s constitution claims to protect free expression, but this is not true in practice. The country’s cybersecurity law bans the online spread of several categories of information, including those that undermine “national security, national honor, and national interests”; that incite “subversion” or those that threaten to “overturn the socialist system”; and that include“violent, obscene, or sexual information.” Similarly, the press cannot publish material that violates constitutional principles; undermine state sovereignty and territorial integrity; endanger national security; incite discrimination; undermine public order; promote obscenity, gambling, or violence; or “endanger public ethics.” The country’s Radio and Television Administration places similar limits on expression. Finally, the country tightly monitors foreign journalists, who must be approved by the government. <br /> <br /> '''France''': The French Constitution protects the “communication of ideas and opinions.” However, the Constitution also states that speech may not “interfere with the established law and order” or constitute an “abuse of this liberty in the case determined by law.” Though French courts interpret restrictions narrowly, they use proportionality to balance free speech against other public interests. Free speech is sometimes balanced against rights such as privacy and the presumption of innocence, meaning that defamation, which truth does not necessarily preclude, is often not allowed. One whose speech incites criminality may be considered complicit in the act. Hate speech, which “incites discrimination,” is a jailable offense, as is the denial of crimes against humanity, such as the Holocaust. Defamation of public officials and institutions is a fineable offense, although good-faith reporting is exempt. During an event organized by public officials, it is illegal to disrespect the flag or national anthem. <br /> French radio and TV broadcasts may be regulated to protect values such as dignity, pluralism, public order, and the well-being of adolescents. The CSA, the French equivalent to the FCC, regulated broadcasts to ensure adherence to French law. Although it does not engage in prior restraint, the CSA may issue cease-and-desist orders and fines. It also may remove foreign broadcasts that undermine French interests. <br /> <br /> '''Germany''': German Basic Law (constitution) stipulates that free expression (it lists forms of expression but does not use the term) “shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.” General laws, as the Constitutional Court articulated, “aim to protect a legal interest per se without regard to a particular opinion.” For example, Germany has a blanket ban on speech inciting “hatred against part of the populace.” There is one notable exception to the General-Law requirement: speech that violates the dignity of victims of the Nazis or glorifies their abuses (although pro-Nazi material and hate speech often overlap). <br /> <br /> Israel: Though free expression is not explicitly protected in Israeli Basic Law, its courts have protected it, with exceptions for speech with a “near certainty” to cause “real harm” to safety. Israel restricts several types of speech, such as incitements to violence and terrorism and holocaust denial. It uses balancing tests to determine when speech can be restricted, and it sometimes restricts the quality and quantity of speech in ways that do not eliminate the viewpoint completely. Israeli law criminalizes insulting public servants, but courts have ruled that this law can only be enforced in extreme circumstances, where the insult severely harms the servant’s dignity. Israel restricts the rights of foreigners to broadcast.<br /> <br /> '''Japan''': The Japanese Constitution protects all types of free expression. However, it also states that citizens “shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare.” Japanese courts will consider the type of speech (political speech is especially protected), the necessity of restriction, and the manner of restriction. In Japan, it is illegal to disrupt a political campaign speech. Defamation, insult, and intimidation are forms of criminalized speech in the Japanese Penal Code. Article 231, the “Insult” section of the Penal Code, is broad: “A person who insults another in public, even if it does not allege facts, shall be punished by misdemeanor imprisonment without work or a petty fine.” There are significant restrictions of Japanese broadcasts. They must be politically fair, show as many sides of a political issue as possible, respect “public morals,” and be truthful. <br /> <br /> '''Netherlands''': The Dutch Constitution automatically incorporates the European Convention on Human Rights into law (see the International Agreements Section). The Constitution also allows limitations on expression by act of parliament “without prejudice to the responsibility of every person under the law.” Different expressive freedoms have different level of protection in the Constitution. For example, the press’s protection from prior restraint is absolute, but freedom in performances that may be seen by children is not. <br /> <br /> '''New Zealand''': New Zealand’s Bill of Rights, a 1990 statute, guarantees free expression, with limits that can be “demonstrably justified in a free and democratic society.” It is a jailable offense to act, including to speak, in a way likely to incite someone to disorderly and violent behavior. In a public place, it is a fineable offense to intentionally insult or offend anyone, or to use obscene language. Under a 1993 statute, it is illegal to distribute in writing or broadcast material that is “threatening, abusive, or insulting,” and to use a public place to do the same or to incite ill will against a particular group of people. Broadcasts must adhere to standards of political balance and “the observation of good taste and decency.” <br /> <br /> '''Sweden''': Sweden’s system protects free speech and press. Interrupting courts, weddings, funerals, or public deliberation is a crime. Disorderly conduct with the intent to agitate is also a crime. For example, someone was convicted for singing and playing music in his home to disrupt a political gathering outside. Sweden’s hate-speech law bans any “statement or other message that is spread and disseminated that threatens, or expresses condescension against, an ethnic group or another group of persons based on race, skin color, national or ethnic origin, faith, sexual orientation, gender, or gender identity or expression.” It is a crime to broadcast without a permit. Sweden requires at least half of its broadcasts to be produced by Europeans. <br /> <br /> America places these restrictions on speech much less frequently, or not at all.<br /> <br /> '''Hate Speech''': Foreign countries often do not share America’s aversion to banning hate speech. America is more the exception than the norm; a 2008 EU treaty, for example, mandates that its members develop a mechanism for prosecuting purveyors of hate speech.<br /> <br /> '''Blasphemy''': About 71 percent of countries have blasphemy laws, generally defined as laws insulting to a particular religion or its adherents, often an established state religion. Blasphemy laws are stereotypically associated with theocratic, authoritarian states. Some unexpected countries have them, however. For example, it is a fineable offense in Italy to “vilify with insulting expressions” religious ideas (it is only a jailable offense if one vandalizes religious items) (End Blasphemy Laws). <br /> <br /> '''Political Content''': Many countries ban certain forms of political speech, especially that which undermines the government. In China, for instance, it is illegal to post anything online that will “endanger the sovereignty, overturn the socialist system, incite separatism, break national unity, advocate terrorism or extremism, advocate ethnic hatred and ethnic discrimination, . . . [and] create or disseminate false information to disrupt the economic or social order.” <br /> <br /> '''Public Deliberations''': It is often illegal to interrupt public deliberations, especially by a governing body. In Sweden, for example, one cannot legally interrupt events such as religious ceremonies, marriages, or court proceedings (contempt of court is also a crime in the US). In Japan, it is illegal to disrupt a speech that is part of an election campaign. <br /> <br /> '''Proportionality Analysis''': Courts abroad are much more likely than American courts to use proportionality in determining whether infringement on a right is allowable. This requires weighing the evil of infringing on free expression against the objective the state was trying to achieve. In hate speech, for example, this means weighing a lessening of free speech against the goal of maintaining a tolerant society.<br /> <br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> '''Clear and Present Danger''': As the Supreme Court ruled in Schenck v. US (1919), speech can be curtailed when it poses a “clear and present danger.” This case arose when a defendant was accused of violating the Espionage Act by distributing leaflets encouraging people to dodge the draft. As the majority held, the defendant’s ability to undermine the war effort constituted such a danger, akin to yelling “fire” in a crowded theatre. <br /> <br /> '''Fighting Words''': In a doctrine similar to the clear-and-present-danger test, the Supreme Court ruled in Chaplinsky v. New Hampshire (1942) that the First Amendment does not protect “fighting words” - words that, as the court argued, “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Though this doctrine exists today, it has been undermined, especially by the court’s rulings protecting “hate speech” (see RAV v. St. Paul). <br /> <br /> '''O’Brien Test''': In US v. O’brien (1968), the Supreme Court developed a four-pronged test for determining whether the government could justifiably limit expression. “We think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” In this case, the Supreme Court held that a ban on burning draft cards did constitute a substantial government interest. <br /> <br /> '''Speech in schools''': In general, public schools have greater leeway to curtail free speech, although the court’s attitudes have changed repeatedly. In Tinker v. Des Moines (1965), the Supreme Court voided suspensions on students wearing armbands to protest the Vietnam War, holding that limited speech must “materially and substantially interfere” with school activities. In Hazelwood v. Kuhlmeier (1988), the court gave considerable leniency to schools restricting student speech in a school-sponsored platform (in this case, a school newspaper), allowing it to censor an article because it was “inconsistent with the shared values of a civilized social order.” In Bethel School District v. Fraser (1986), the court allowed a public school to suspend a student for using sexual innuendo at a speech at a school assembly because such speech undermined “fundamental values of public school education.” the Supreme Court ruled similarly in Morse v. Frederick (2007), holding that schools could limit speech advocating drug use. <br /> <br /> '''Imminent Lawless Action''': In Brandenburg v. Ohio (1969), the Supreme Court elaborated on the clear-and-present-danger test. To lack protection, certain speech must incite “imminent lawless action.” This means that the mere advocacy of violence is not enough; the speech must actually incite it. It was on these grounds that the court ruled that offensive, inflammatory speech from a klansman was protected because it did not imminently incite violence. This test has generally replaced clear and present danger, although clear and present danger is still the test used in military courts. <br /> <br /> '''Obscenity''': The Supreme Court adopted a three-pronged test in Miller v. California (1973) to determine whether material is legally obscene (and therefore not protected). The prongs are as follows: “whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Pornography is often not legally obscene.<br /> <br /> '''Libel''': Standards for what constitutes libel differ between private citizens and public figures (who can include political figures but also celebrities, business tycoons, etc). Libel against a public person requires a statement to have been false and made negligently. Libel against a public figure, does not include good-faith mistakes that may be considered negligent. Rather, it requires material to be false, and to have been published with “actual malice” (Hustler v. Falwell, 1988) (Nott). <br /> <br /> '''Intellectual property''': For example, in Zacchini v. Scripps-Howard Broadcasting (1977), the court ruled that the First Amendment does not protect the right of a television station to air an entire performance without the consent of the performers. <br /> <br /> '''Unlawful assembly''': Authorities may restrict assemblies as long as the restrictions are reasonable, narrowly tailored to a specific public interest while limiting rights as little as possible, and are not content-based. For example, a city may require a permit for holding a large assembly. In Forsyth County v. Nationalist Movement, the Supreme Court ruled that a permitting authority could not vary its demonstration permit fees based on the anticipated cost of maintaining public order. As the court held, making such a determination would require the government to differentiate its treatment toward demonstrations based on the content of their messages.<br /> <br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> <br /> '''Universal Declaration of Human Rights''': This was adopted by the UN General Assembly in 1948.<br /> <br /> Article 29 stipulates that the rights found in this document, including free expression, “shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” <br /> <br /> '''European Convention on Human Rights''': This treaty was ratified by most of Europe in 1953 (it is unrelated to the EU). It is enforced in the European Court of Human Rights. From Article 10: <br /> <br /> The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.<br /> <br /> Depending on the case, the court has ruled that hate speech is not protected under Article 10. For example, in ''Aksoy v. Turkey'' (2000), it held that “remarks aimed at inciting racial hatred in society or propagating the idea of a superior race can not claim any protection under Article 10 of the Convention” (Flauss 2009, 838). It has refused to protect “revisionist language” (837), that which denies certain notorious historical truths. For example, Holocaust denial may not be protected under Article 10. Finally, the court has ruled that Article 10 does not protect speech likely to lead to violence (840). <br /> <br /> In ''Ceylan v. Turkey'' (2000), the court ruled on Turkey’s conviction of a columnist who opposed Turkey’s policies toward Kurds. The court used proportionality analysis to determine that the infringement on free expression outweighed the security risk of the piece, which did not directly call for violence. In a concurring opinion, one judge argued that the court should use a clear-and-present-danger test. <br /> <br /> '''American Convention on Human Rights''': This human-rights framework was created in 1969, and over the ensuing decades, has been ratified, at least in part, by nearly all of Central and South America. There exists a corresponding inter-American Court of Human Rights. From Article 13: <br /> <br /> The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:<br /> <br /> a. respect for the rights or reputations of others; or<br /> <br /> b. the protection of national security, public order, or public health or morals.<br /> <br /> “Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.”<br /> <br /> “Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.” <br /> <br /> Article 11 of the convention guarantees a right to privacy, which includes protections against attacks on one's honor, dignity, and reputation. As such, the court must balance these two considerations, as occurs in cases of libel, slander, and defamation (Posenato 2016, 64). The exceptions for national security, public health, public order, and morals have been interpreted narrowly, so as not to allow authoritarian restrictions on free speech (65). <br /> <br /> '''Cairo Declaration of Human Rights in Islam''': This 1990 document was ratified by 45 states in the Organization of Islamic Cooperation. There is no relevant court. Article 22: <br /> <br /> (a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari'ah.<br /> <br /> 1. Everyone shall have the right to advocate what is right, and propagate what is good, and warn against what is wrong and evil according to the norms of Islamic Shari'ah.<br /> <br /> (c) Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical Values or disintegrate, corrupt or harm society or weaken its faith.<br /> <br /> (d) It is not permitted to excite nationalistic or doctrinal hatred or to do anything that may be an incitement to any form or racial discrimination.<br /> International Covenant on Civil and Political Rights: This is a UN treaty from 1966. Under certain circumstances, it may be enforced by the International Court of Justice, but the ICJ generally only hears disputes between countries. Article 19: <br /> Everyone shall have the right to hold opinions without interference.<br /> <br /> 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.<br /> <br /> 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:<br /> <br /> (a) For respect of the rights or reputations of others;<br /> <br /> (b) For the protection of national security or of public order (order public), or of public health or morals.<br /> <br /> '''African Charter on Human and People’s Rights''': This charter, with 54 signatories, came into effect in 1986. Article 9 guarantees the right to free expression, although no exceptions are enumerated. The African Court of Human and People’s Rights has repeatedly protected free expression, but not without limit. For example, in Ingabire Victoire Umuhoza v. The Republic of Rwanda (2017), the court held that minimizing a genocide need not be protected because it could disturb public order and peace.<br /> <br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> Yes. The most famous defense of the freedom of expression principle is written by John Stuart Mill, who did include exceptions to this protection. Mill believed that freedom of expression should be curtailed when the circumstances of the message are intended to instigate violence or criminal activities. Mill also claims that this exception stems from the government's duty to protect others from harm, which is more broadly known as the &quot;harm principle.&quot; This, Mill claims, is the only context in which power can be &quot;rightfully&quot; executed over others (On Liberty 13). Mill uses the example of a corn-dealer, who is starving the poor. When this fact or opinion is published through the press, it is entirely permissible under Mill's doctrine. However, when this opinion is advertised to a large and unruly mob, expression of such sentiment should be curtailed because, if shared, it could cause immediate harm and instigate criminal or violent activities (On Liberty 52). Mill's threshold for regulation of expressions is extremely narrow; it could be argued that he does not exempt hate speech because it does not cause immediate harm to others. While Mill states that only the harm principle should be applied to regulations of freedom of expression, Joel Feinberg believes that the harm principle is not sufficiently broad enough to account for hate speech. He stipulates that an &quot;offense principle&quot; is also needed. Feinberg believes that the harm principle is too high of a standard and that the government has the right to censure some speech if they deem it too offensive. Since the offense principle lowers the standard for censure of free speech, so too should the punishments be lowered. Feinberg defines offense to be a &quot;negative mental state&quot; (Simpson 237). Feinberg justifies the offense principle by stating that being offended, or being in a negative mental state, actually impedes on an individual's liberty because being offended impedes on his/her daily activities (Simpson 238).<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> In many European countries (Germany, France, Austria, etc.), Holocaust denial is illegal and approximately 80 Facebook posts per year are blocked. Zuckerburg, in a 2018, interview stated that he found Holocaust denials to be deeply offensive, but does not believe that warrants censorship. Zuckerburg seems to follow the harm principle, stating that &quot;unless individuals are trying to organize harm against someone, or attacking someone,&quot; content should not be censored (Rosenberg 2018). Facebook's Community Standards (also includes Instagram) are intended to guide freedom of expression on the site through rules such as preventing offline harm related to Facebook content through &quot;consider[ing] the language and context in order to distinguish casual statements from content that constitutes a credible threat to public or personal safety.&quot; The community standards prohibit the presence of terrorist groups on Facebook. The standards also &quot;prohibit people from facilitating, organizing, promoting, or admitting to certain criminal or harmful activities targeted at people, businesses, property or animals.&quot; With hate speech, although the community standards are clear, their implementation is vague--&quot;We define hate speech as a direct attack on people based on what we call protected characteristics — race, ethnicity, national origin, religious affiliation, sexual orientation, caste, sex, gender, gender identity, and serious disease or disability.&quot; The community standards do not account for politic speech. In a speech at Georgetown University, Zuckerburg articulated his position for political censorship: &quot;I don’t think it’s right for a private company to censor politicians or news in a democracy&quot; (Ghaffary 2020). Although Twitter has extremely similar policies to Facebook, they have dramatically different applications. In early May, Twitter fact-checked President Trump's tweets regarding voting by mail by placing links to a fact-checking page that debunks the president's tweets. Twitter announced that it would place labels on tweets containing false or misleading information in response to misinformation about the COVID-19 pandemic (Ghaffary 2020). Previously, Twitter had resisted such a move because the president is a world leader and considered his tweets as &quot;noteworthy&quot; and, as such, exempted them from their standards policy (Ghaffary 2020). Facebook has a similar conduct policy, but enacts it much differently. In response to the move, Zuckerburg stated that Facebook should not, nor is, an &quot;arbiter of truth&quot; (Ghaffary 2020). Twitter again used its new policy on the president's tweet about protests, saying that his &quot;when the looting starts, the shooting starts&quot; violated Twitter's policy of glorifying violence (Ghaffary 2020). Facebook, on the other hand, defended its position of not censoring the same statement by saying &quot;didn’t violate Facebook’s policies about inciting violence. He said the company saw it 'as a warning about state action,' and that 'people need to know if the government is planning to deploy force” (Ghaffary 2020).<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> Freedom of expression can be limited in times of crisis, most notably in wartime. This was first enacted in the late 1790s, with the Alien and Sedition Acts. The Sedition Act most markedly affected freedom of expression and freedom of the press by making it illegal to speak against the government or president (&quot;Alien and Sedition Acts&quot;). These limitations were consistently applied in times of war until World War I, when its legality was cemented by the Supreme Court with Schenck vs. United States (Emerson 1968). In Schenck v. US, the Court ruled that the standards for regulation of freedom of speech were lower in wartime (&quot;Schenck v. United States&quot;). It also established, for the first time, the &quot;clear and present danger&quot; test, clarifying that &quot;the First Amendment does not protect speech that approaches creating a clear and present danger of a significant evil that Congress has power to prevent (&quot;Schenck v. United States&quot;). During the Vietnam War, freedom of expression was upheld in New York Times v. United States by saying freedom of the press was &quot;was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government&quot; (Hudson).<br /> In states of emergency, such as the national one declared at the beginning of the COVID-19 pandemic, the president is granted special troubles that include infringements on freedom of the press/expression. One such power is the ability to shut down radio stations during a time of &quot;public peril.&quot; This ability is cemented in section 706 of the Communications Act of 1934 (Rottman 2020). Since the law was passed in 1934, it did not include other forms of news publication, such as websites and TV news stations. There is a fear, however, that the government could broaden the law to include these types of news dissemination (Rottman 2020). In the COVID-19 pandemic, states and counties have declared media companies as essential services, thus exempting them from quarantine and shelter-in-place limitations (Rottman 2020).<br /> <br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Religion&diff=215 2020-07-20T16:42:00Z

<p>Ksandlund: /* Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this? */</p> <hr /> <div>==History==<br /> ===What is the oldest source in any country that mentions this right?===<br /> The Edict of Toleration by Galerius in April of 311 ended Christian persecutions and granted their right to exist (Keresztes, &quot;From the Great Persecution to the Peace of Galerius,&quot; 390). This preceded the Edict of Milan by two years, which permanently declared religious toleration and protection for Christians within the Roman Empire (Britannica, &quot;Edict of Milan&quot;).<br /> <br /> ===What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE===<br /> ====Afghanistan====<br /> Its new constitution abides by the UHRD and Sharia law; it is constructed to defer to Sharia law in areas of blasphemy, apostasy, and conversion. However, minority religious communities do face some degree of discrimination (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Afghanistan,&quot; 1).<br /> <br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> The Constitution establishes freedom of religion, but also gives preferential status to the Roman Catholic Church (U.S. Department of State, &quot;ARGENTINA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Armenia====<br /> ====Australia====<br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> The Constitution declares Bangladesh to be an Islamic state, but ensures equal status of minority religions. However, minority religious have faced discrimination and pressure to migrate to India (Atkins, &quot;Challenges to Religious Freedom in Bangladesh&quot;).<br /> <br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> Bhutan is majority Buddhist and freedom of religion is guaranteed in the Constitution, but requires religious groups to register. As of now, only Buddhist and Hindu groups are registered and Christian organizations have not received an answer (U.S. Department of State, &quot;BHUTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> ====Brazil====<br /> The Constitution guarantees freedom of conscience and religious practice. In addition, it prohibits the state from favoring one religion over others (U.S. Department of State, &quot;2016 Report on International Religious Freedom - Brazil&quot;).<br /> <br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> The Constitution establishes freedom of religion, but limits it to &quot;normal religious activity&quot; without defining normal. Religious groups are controlled if they are perceived to be a threat by the Communist Party. In recent years, there has been a campaign of religious persecution of the Uighurs in the Xinjiang province (U.S. Department of State, &quot;CHINA (INCLUDES TIBET, XINJIANG, HONG KONG, AND MACAU) 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Colombia====<br /> The Constitution establishes freedom of religion, but gives preferential status to the Roman Catholic Church (Humanists International, &quot;The Freedom of Thought Report&quot;).<br /> <br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> Freedom of religion is guaranteed in the Constitution, but establishes the Evangelical Lutheran Church as the national church. Religious groups are required to register with the government. In recent years, there have been indications of restrictions of this freedom, such as banning face masks and mandatory religious teachings in pre-schools (U.S. Department of State, &quot;DENMARK 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> The earliest documentation of freedom of religion in France is the Declaration of the Rights of Man and of the Citizen in 1798 (Britannica, &quot;Declaration of the Rights of Man and of the Citizen,&quot; Article 10). The Law of Secularism, passed in 1905, establishes the separation of church and state, but favors traditionally &quot;French&quot; religions such as Catholicism, at the expense of others, like Islam (U.S. Department of State, &quot;FRANCE 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> Religious freedom and secularism are guaranteed in the Constitution. The various autonomous states regulate the existence and activities of religious groups within their borders (U.S. Department of State, &quot;GERMANY 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Ghana====<br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> ====Indonesia====<br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> Freedom of religion is guaranteed in the Constitution and religious groups are not required to register with the government. In terms of schooling, religion classes are permitted but parents can opt their students out (U.S. Department of State, &quot;IRELAND 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Israel====<br /> ====Italy====<br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> The Constitution guarantees freedom of religion (Sumimoto, &quot;RELIGIOUS FREEDOM PROBLEMS IN JAPAN: BACKGROUND AND CURRENT PROSPECTS&quot;).<br /> <br /> ====Jordan====<br /> ====Kazakhstan====<br /> The Constitution defines it as a secular state and ensures freedom of religion. Some missionary organizations are banned, as well as religious sects such as Sufism, Baptists, Seventh-day Adventists, and Presbyterians (U.S. Department of State, &quot;KAZAKHSTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Kenya====<br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> The Constitution guarantees freedom of conscience and religion and bans religious groups from inciting hatred towards others. It requires religious groups to register, but maintains bans on twenty-one &quot;extremist&quot; religious groups (U.S. Department of State, &quot;KYRGYZ REPUBLIC 2017 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Laos====<br /> ====Latvia====<br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> The Constitution designates Islam as the state religion, requires all citizens to be Muslim and requires all public officials to be Sunni Muslim (U.S. Department of State, &quot;MALDIVES 2019 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> The new constitution guarantees religious freedom, but bans conversions to Hinduism (Nazir-Ali, &quot;Christianity in South and Central Asia,&quot; 382).<br /> <br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> In 1845, the Dissenter Law gave Norwegians the right to secede for the state church and regulated the formulation of nonconformist sects. In 1964, it was amended to be included in the Constitution and the right to form denominations was expanded to include all religions five years later (Hale, &quot;The Development of Religious Freedom in Norway,&quot; 56).<br /> <br /> ====Oman====<br /> ====Pakistan====<br /> The Constitution designates Islam as the state religion and requires that all government laws be consistent with Islamic law. Despite this, the Constitution contains the right to religious freedom, though its implementation is disputed (U.S. Department of State, &quot;Pakistan,&quot; 1).<br /> <br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> ====Philippines====<br /> ====Poland====<br /> ====Portugal====<br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> The Constitution establishes freedom of religion and recognizes four &quot;traditional&quot; religions--Christianity, Judaism, Islam and Buddhism. Preference is given to the Russian Orthodox Church (U.S. Department of State, &quot;RUSSIA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> ====South Africa====<br /> ====South Korea====<br /> ====South Sudan====<br /> ====Spain====<br /> Freedom of religion is established within the Constitution and established a secular state. The Catholic Church, however, has established itself as a central player within Spanish politics, with its prominent role in the People's Party. It also has special privileges within Spanish society (U.S. Department of State, &quot;SPAIN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Sri Lanka====<br /> The Constitution provides freedom of thought and religion. It recognizes four religions (Buddhism, Christianity, Hinduism, and Islam). It also designates Buddhism as the state religion, thus giving it priority (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Sri Lanka&quot;).<br /> <br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> The Constitution provides religious freedom and establishes separation between church and state. All religious activity is required to be reported to the state. An amendment to current law (enforced in January 2018) permits restrictions on religious activity for the sole purpose of ensuring the rights and freedoms of others, as well as banning one religious sect from being state ideology (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Tajikistan&quot;).<br /> <br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> The Constitution ensures a secular state, but is significantly limited. The state requires that all religious organizations must register--as of now, only Sunni Muslims and Russian Orthodoxes are registered (U.S. Department of State, &quot;UZBEKISTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> The Toleration Act of 1689 allowed nonconformist religions, with the exception of Roman Catholicism, to practice. However, social penalties still persisted (U.K. Parliament, &quot;Catholics and nonconformists&quot;). The Human Rights Act of 1998 established the fundamental rights of citizens within the UK, including freedom of religion (Equality and Human Rights Commission, &quot;The Human Rights Act,&quot; Article 9).<br /> <br /> ====United States====<br /> ====Uruguay====<br /> ====Uzbekistan====<br /> The Constitution guarantees freedom of religion and separation of church and state (U.S. Department of State, &quot;UZBEKISTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> The Edict of Milan, as noted above, came two years after the Edict of Toleration by Galerius and granted religious toleration within the Roman Empire. The Magna Carta, signed in 1215 in England, provided the foundations for the rights of men, including freedom of religion (Britannica, &quot;Magna Carta&quot;).<br /> <br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> <br /> Religious freedom, while commonplace in modern liberal democracies, was not always identified as a natural right with which people were born. Historical narratives describe the “Dark Ages” between the fall of the Roman Empire and the advent of early modernity as a period in which the world was divided between various civilizations according to the religions which they professed. Religious pluralism did not become more widespread until toleration and freedom of religion were identified as potential rights. In Western civilization, this occurred during the Protestant Reformation of the sixteenth and seventeenth centuries.<br /> <br /> The Reformation was one of the most influential movements in the course of western history. As leaders like Martin Luther, and John Calvin led Christian communities to break from traditional Catholicism, the rate of religious pluralism rose within Europe and led to a series of religious wars that defined the sixteenth century. In an early attempt to mediate these conflicts, German rulers negotiated the 1555 Peace of Augsburg. Andrea Walsham writes that this document “established the principle of cuius regio, eius religio, by which individual rulers were permitted to choose whether Catholicism or Protestantism should be professed in their states” (Walsham, “Reformation Legacies,” 231.) Thus, in addition to legalizing the practice of multiple religions within the German states, the adoption of cuius regio, eius religio also meant that religion would no longer be forced upon a principality by outside forces. The idea that Christian rulers could have the right to choose their own religion, and that this choice would be respected, represents an early step toward the principles of religious pluralism and toleration. The Peace of Augsburg did not lend religious agency to the subjects living within these principalities, but it did show European leaders that cooperation was possible between rulers who belonged to differing faiths. <br /> <br /> The seventeenth century was an especially bloody one which included such conflicts as the English Civil War, the French Wars of Religion, and the vicious Thirty Years’ War. Religious plurality invariably led to violence in the seventeenth century, but these conflicts were often followed by important agreements that fostered some level of religious toleration. In 1598, following the religious battles between Catholics and Protestants in France, the French King Henry (IV) of Navarre signed the Edict of Nantes, which “gave Protestants permission to practice their faith openly, albeit within strict limits and as second-class citizens” (Walsham, “Reformation Legacies,” 231). The Thirty Years’ War famously concluded with the Peace of Westphalia, which decreed (among other things) that while each state should have the right to establish an official religion, they were also obligated to allow their subjects the opportunity to practice different Christian denominations without fear of persecution (Christenson, “Liberty of the Exercise of Religion in the Peace of Westphalia,” 740). By favoring religious toleration, Westphalia’s signatories recognized that only religious toleration would reduce the potential for future conflict between the various sects of Christianity. Documents like the Edict of Nantes and the Peace of Westphalia ultimately failed to end religious persecution and conflict within Europe, but they still reveal a heightened awareness of the need for leaders to tolerate religious plurality within their borders.<br /> <br /> As the sixteenth and seventeenth centuries wore on, European intelligentsia began exploring the concept of religious freedom more directly. Enlightenment thinkers such as Voltaire and Baruch Spinoza led the intellectual charge in support of freedom of conscience and thought, while political leaders such as Roger Williams and Thomas Jefferson incorporated principles of religious freedom and the separation of church and state into their state building efforts in North America. While legal guarantees of the right to religious freedom would not be made until the seventeenth and eighteenth centuries, the modern right to freedom of religion is rooted in Reformation-era efforts to mediate religious conflict and incorporate religious toleration into budding European nation-states.<br /> <br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> <br /> After witnessing the horror of religious warfare during the Reformation era, European philosophy began to explore the idea of religious toleration within political society. As the Enlightenment movement gained momentum during the seventeenth, eighteenth, and nineteenth centuries, western civilization turned to science, empiricism, and reason as sources of wisdom and knowledge. This movement was accompanied by a shift away from purely religious discourse as innovative thinkers began to take up more secular pursuits than they could have in centuries past. With this shift thinkers like Locke, Voltaire, Spinoza, and Williams began to question whether states had the right to dictate their subjects’ religious beliefs. These questions led these Enlightenment thinkers to begin believing that political society would better respect its citizens’ rights if it were to adopt policies of religious toleration.<br /> <br /> Religious pluralism became a reality in Enlightenment-era Europe. The Protestant Reformation of the previous centuries had given rise to a number of Protestant-dominated secular states which had carved out a right to remain independent of the Catholic Church after decades of bloodshed and warfare. In the following centuries, thinkers like Spinoza and Voltaire reflected upon the dangers that intolerance can pose to a peaceful society. In 1670 Spinoza’s anonymously published “Treatise on Theology and Politics” radically asserted that “men are very prone to error on religious subjects, and, according to the diversity of their dispositions, are wont with considerable stir to put forward their own inventions, as experience more than sufficiently attests.” (Spinoza, “The Chief Works of Benedict De Spinoza,” 163). However, rather than calling for the abolition of religious toleration, Spinoza uses this idea that religious difference breeds conflict to suggest that states should abandon any effort to control their citizens’ beliefs, and should instead simply protect the people’s right to their own thoughts. In a state built on principles of toleration instead of religious unity, religious conflict would be less likely. A century later, Voltaire came to a similar conclusion in his 1775 “Treatise on Tolerance.” In this work, the Frenchman writes that “toleration, in fine, never led to civil war; intolerance has covered the earth with carnage,” and asserts that “the whole of our continent shows us that we must neither preach nor practise intolerance” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). By linking the idea of religious toleration to the need for states to maintain law and order within society, both Spinoza and Voltaire began to identify religious freedom as an essential facet of a well-ordered state.<br /> <br /> Another important Enlightenment idea that contributed to the identification of the right to religious freedom was the argument that God may will that religious toleration be extended throughout the Christian world. After centuries of warfare, much of it based on the principle that members of the one true religion must fight infidels in the name of God, this was a relatively novel idea. In his 1644 work, The Bloudy Tenent of Persecution, Roger Williams rejects this idea and states that “it is the will and command of God, that (since the coming of his Son the Lord Jesus) a permission of the most pagan, Jewish, Turkish, or Antichristian consciences and worships, be granted to all men in all nations and countries...” (Williams, “The Bloudy Tenent of Persecution”). The Tenant even goes as far as to claim that “God requireth not an uniformity of religion to be enacted and enforced in any civil state…”(Williams, “The Bloudy Tenent of Persecution”). Williams’ work was not well-received by his audience in England, especially considering that the country was still in the midst of a religiously-motivated civil war. However, the idea that the civil state should not enforce any religion was hugely influential in the colony of Rhode Island, of which Williams is considered the sole founder. Decades later, in 1689 following the French King Louis XIV’s revocation of the Edict of Nantes, Locke wrote something very similar in his “Letter Concerning Toleration.” In this letter, he asserts that “the toleration of those that differ from others in matters of religion is so agreeable to the Gospel of Jesus Christ...that it seems monstrous for men to be so blind as not to perceive the necessity and advantage of it in so clear a light” (Locke, “A Letter Concerning Toleration”). The desire to follow God’s will had long guided European thoughts about the connection between church and state, but thinkers like Williams and Locke presented important challenges to this notion. This allowed for discussion over the right to religious freedom to flourish as the Enlightenment wore on.<br /> <br /> Though discourse on religious toleration was still considered fairly radical during the seventeenth century, Enlightenment philosophers also questioned whether it was indeed even possible for a state to dictate its citizens’ religious beliefs. Spinoza’s “Treatise” is heavily concerned with the idea that a person’s right to think freely is a natural right which cannot be deprived by any political society. He writes that “however unlimited, therefore, the power of a sovereign may be, however implicitly it is trusted as the exponent of law and religion, it can never prevent men from forming judgments according to their intellect, or being influenced by any given emotion” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This, Spinoza believes, necessarily implies that a state could never enforce a person’s belief or religious faith because it is not possible for a state to take a person’s mastery of their own thoughts. Voltaire expresses a similar sentiment in his essays when he states that “it does not depend on man to believe or not to believe: but it depends on him to respect the usages of his country” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). Writing about a century after Spinoza, Voltaire also explored the idea that the state is unable to change how a citizen believes, as long as the belief is not inherently detrimental to the state itself. With this in mind, Voltaire advances the idea that because states cannot change its citizens’ beliefs, it should embrace a diversity of beliefs by incorporating the principle of religious freedom into its governance.<br /> <br /> Among the most radical Enlightenment-era ideas concerning religious toleration was the thought that civil states did not have the inherent right to dictate citizens’ religion at all. Locke’s “Letter” asserts that “nobody, therefore, in fine, neither single persons nor churches, nay, nor even commonwealths, have any just title to invade the civil rights and worldly goods of each other upon pretence of religion” (Locke, “A Letter Concerning Toleration”). Spinoza similarly states that “government which attempts to control minds is accounted tyrannical, and it is considered an abuse of sovereignty and a usurpation of the rights of subjects” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This idea that citizens of a political society could have the innate right to decide their own thoughts and religion built upon the initial identification of religion as a multifaceted issue, which originated centuries earlier during the Reformation. As early as 1644, former Massachusetts Puritain Roger Williams rather controversially wrote that “all civil states and their officers of justice in their respective constitutions and administrations are proved essentially civil, and therefore not judges, governors, or defenders of the Spiritual or Christian state and worship” (Williams, “The Bloudy Tenent of Persecution”). The principle that civil states could not serve as spiritual authorities directly influenced the development of political states such as the Rhode Island Colony and the United States of America, in which freedom of religion was identified as an essential right with which the government could not interfere.<br /> <br /> Though the idea of a right to religious freedom was first conceived during the religious wars of the Reformation era, Enlightenment thinkers deserve credit for identifying religious freedom as an essential right. Questions of whether God’s will dictated religious uniformity, the dangers of combating religious pluralism, as well as issues of citizen and states’ rights all contributed, decades and centuries after they were originally pondered, to the inclusion of religious freedom in mainstream political discourse. Williams and Locke both made important contributions to the growing American discussion of essential rights and liberties, while writings from thinkers like Spinoza and Voltaire gradually invited Europeans to consider the benefits of granting religious freedom to their subjects.<br /> <br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> <br /> Religious freedom was originally identified as a fundamental right when Enlightenment thinkers began to question whether political society has the obligation, or even the right, to decide its citizens’ religion. At the time, the widespread conclusion was that religious toleration and freedom of belief were preferable to religious uniformity and faith-based oppression. Around the same time in the seventeenth and eighteenth century, political documents began to identify religious freedom as a fundamental, legally-protectable right with which the state had no right to interfere. Among the first western states to legislate freedom of religion were the English North American colony of Rhode Island, a few of its fellow American colonies, and the United States itself. There was some historical precedent for government-legislated religious toleration in the form of the 1598 Edict of Nantes and the 1648 Treaty of Westphalia, but the Rhode Island Charter and the United States Constitution were among the first documents to completely prohibit governments from interfering in their citizens’ religious affairs.<br /> <br /> The founding of the Rhode Island and Providence Plantations is accredited to Roger Williams, a preacher who was banished from the Massachusetts Bay Colony in 1635 and went on to purchase from the Narragansett Native Americans a plot of land that would become the city of Providence, Rhode Island (Smithsonian Institution, “God, Government and Roger Williams’ Big Idea”). He was banished for holding religious views that contrasted with those upon which the Massachusetts Bay Colony was founded, and it is likely that this experience influenced his thoughts about religious freedom and the value of toleration within political society. He expresses these views quite effectively in his 1644 work, The Bloudy Tenent of Persecution, which states that “the permission of other consciences and worships than a state professeth, only can (according to God) procure a firm and lasting peace, (good assurance being taken according to the wisdom of civil state for uniformity of civil obedience from all forts)” (Williams, “The Bloudy Tenent of Persecution,”). The Rhode Island Charter, which Williams secured from Parliament in July 1663, reflects this view. It states that: <br /> <br /> &quot;No person within the said colony, at any time hereafter, shall be any wise molested, punished, disquieted, or called in question, for any differences in opinion in matters of religion, and do not actually disturb the civil peace of our said colony; but that all and every person and persons may, from time to time, and at all times hereafter, freely and fully have and enjoy his and their own judgments and consciences, in matters of religious concernments, throughout the tract of lance hereafter mentioned.&quot; (“Charter of Rhode Island and Providence Plantations - July 15, 1663”)<br /> <br /> By prohibiting the molestation, punishment, disquieting, and questioning of any citizen on the basis of religion, the Charter sets a clear guarantee that those living within the colony had the legal right to religious freedom. This was groundbreaking not only because it was the first of the thirteen original American colonies to guarantee total religious freedom, but also because unlike most contemporary acts of toleration, the Charter did not exclude Quaker and Jewish citizens from enjoying the religious freedom that it promised.<br /> <br /> Of course, Rhode Island was not the only one of the thirteen original American colonies to identify religious freedom as a fundamental, legally protectable right. Colonies like Maryland and Pennsylvania are also noteworthy for their inclusion of religious groups that made up the English minority. Maryland famously welcomed Catholics inside its borders, and Pennsylvania was originally founded as a Quaker colony under William Penn. As the colonies grew they became examples to contemporary Enlightenment thinkers, who looked to their example as proof that religious toleration was a desirable principle within any system of government. In his work on religious toleration, Voltaire writes of Philadelphia that “discord and controversy are unknown in the happy country they have made for themselves; and the very name of their chief town, Philadelphia, which unceasingly reminds them that all men are brothers, is an example and a shame to nations that are yet ignorant of toleration” (Voltaire, “Toleration and Other Essays - Online Library of Liberty,”). The benefits of religious freedom were well-known by the time of the American Revolution, which explains why religious freedom was such an important building block of the early republic. The Constitution of the United States was also one of the first documents to identify religious freedom as a fundamental, legally protectable right. Its First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (“United States Bill of Rights, Amendment I”). The inclusion of this language in such an influential document represents an important step in the identification of religious freedom as a fundamental legal right. <br /> <br /> It should be noted, however, that the First Amendment does not explicitly separate church and state within the United States government. The principle of church and state separation was not explicitly outlined until 1802, when President Thomas Jefferson outlined it in a letter to the Baptist community of Danbury, Connecticut. It was written in response to community leaders’ complaint that religious freedom was being treated as a privilege, not a right within their state. They wrote that “our sentiments are uniformly on the side of religious liberty--that religion is at all times and places a matter between God and individuals--that no man ought to suffer in name, person, or effects on account of his religious opinions--that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbors” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). In response, Jefferson famously asserted that “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church &amp; State” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). This separation to which he refers is built upon Enlightenment ideals set out by thinkers like Locke and Spinoza, and it represents the realization of a movement for religious freedom that originated centuries before with the Protestant Reformation.<br /> <br /> Religious freedom is a right with a long history, and for centuries after it first came into question within the western world it was debated and considered. Thinkers like Locke and Voltaire championed it, and documents such as the Treaty of Westphalia and the Edict of Nantes made important strides toward realizing it as a legally protectable right. However, many of the first true instances of legally protected religious freedom occurred in American documents such as the Rhode Island Charter and the United States Constitution. These landmark pieces of legislation framed the modern American stance on religious toleration and the right to freedom of belief.<br /> <br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> <br /> Widespread belief in the importance of religious freedom within a liberal democratic society developed over centuries of religious separation, conflict, discourse. Over the past five hundred years Western civilization has transitioned from a uniformly Christian bloc of nations into a set of states defined by religious diversity and built upon the principles of toleration and religious freedom. Three major forces drove that transformation: The violence caused by religious intolerance, the increasing value of free thought, and the success of religiously free states. Over time, all three of these historical forces led to the widespread belief in the importance of religious freedom within western society.<br /> <br /> The first historical force that led to the original identification of religious freedom as a valuable right was the horror and devastation that Europe witnessed during the Reformation era as a result of religious conflicts. The widespread destruction that took place during such conflicts as the Schmalkaldic Wars, the French Wars of Religion, and the English Civil War showed Europeans how difficult it would be to preserve religious unity within their borders, which led some to question the value of religious homogeneity. The Thirty Years War, especially, led to the identification of religious tolerance as an alternative to the religiously-motivated violence when it concluded with the landmark Peace of Westphalia. Voltaire’s assessment that “Germany would be a desert strewn with the bones of Catholics, Protestants, and Anabaptists, slain by each other, if the Peace of Westphalia had not at length brought freedom of conscience” reveals how important the war, and the treaty that ended it, really were to the identification of religious freedom as an important civil right (Voltaire, “Toleration and Other Essays - Online Library of Liberty”). Historian Gordon Christenson similarly notes that the principle of religious tolerance had been included in previous Reformation-era treaties, but the Peace of Westphalia’s explicit use of the principle as a peacekeeping measure reveals that it had broken into mainstream political thought by the end of the war (Walsham, “Reformation Legacies,” 231.)<br /> <br /> As the dust settled after years of religious conflict, a second historical force also contributed to the widespread belief in the right of religious freedom. During the seventeenth and eighteenth centuries, Enlightenment thinkers reflected upon the Reformation wars and the state of European politics, and began to advocate for the freedom of thought and faith within political society. In 1669 Spinoza concluded that “a government would be most harsh which deprived the individual of his freedom of saying and teaching what he thought; and would be moderate if such freedom were granted” (Spinoza, “The Chief Works of Benedict De Spinoza,” 195), Two decades later, Locke came to a similar conclusion when his “Letter Concerning Toleration” specifically outlined the principle of religious toleration by asserting that “no private person has any right in any manner to prejudice another person in his civil enjoyments because he is of another church or religion” (Locke, “A Letter Concerning Toleration,”). Though the identification of religious freedom as a fundamental right did not immediately lead to its universal adoption among western states, it did represent a significant advancement in the field of religious rights. Going forward, rulers and state builders were more conscious of religious toleration as a viable alternative to forcing religious uniformity within their borders. About a century later, this Locke sentiment was directly incorporated into the American Bill of Rights, which prohibits the creation of any law that might restrict the free practice of religion(Constitution of the United States of America).<br /> <br /> Over time the ideas of toleration and the freedom of thought became more widespread, which led a number of states to explore religious freedom as a principle upon which strong nations could be built. Among the first political leaders to embrace the principle of religious freedom was Roger Williams, who founded the English colony of Rhode Island after he was banished from the Massachusetts Bay Colony. As the colony grew over the next several years, he drafted a compact under which it could be governed. Smithsonian Magazine writes that “the most significant element was what the compact did not say. It did not propose to build a model of God’s kingdom on earth, as did Massachusetts...the compact did not even ask God’s blessing. It made no mention of God at all” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). Shortly afterward Williams traveled to England in order to secure a charter from an English Parliament that was itself in the midst of a Civil War. The charter was granted, and the committee that granted it “left all decisions about religion to the “greater Part”—the majority—knowing the majority would keep the state out of matters of worship. Soul liberty now had official sanction” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). The establishment of the Rhode island colony greatly benefitted the growing belief in religious freedom as a fundamental right because it proved that a political society defined by toleration could find success despite the lack of uniform religion. This idea heavily influenced the drafting of the United States Constitution, and over the next two centuries freedom of religion came to be a defining feature for liberal democracies.<br /> <br /> Over the past five centuries, western civilization underwent a number of historical changes that led it to lose faith in the benefits of religious homogeneity and instead come to support freedom of belief and universal toleration. As it slowly began to understand the dangers of promoting state-led religious uniformity, the western world began to explore ideas of plurality and acceptance before eventually embracing them in political entities such as Rhode Island and the United States. Modern democracies still struggle to guarantee the right to freedom of religion at times, but after five hundred years of development western society at least recognizes it as a fundamental human right.<br /> <br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> Most countries in the modern world protect freedom of religion in their constitutions; however, the extent to which the right is truly protected in practice ranges from state to state. The U.S. State Department names and publicly shames eight “Countries of Particular Concern” that systematically and consistently violate religious freedom rights within their borders: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan (Pellot 2014). The Freedom of Thought Report by Humanists International found that you can be put to death for expressing atheism in an astonishing thirteen countries. Also, in thirty-nine countries the law mandates a prison sentence for blasphemy, including six surprising western countries: Iceland (up to three months), Denmark (up to four months), New Zealand (up to a year), Poland (up to two years), Germany (up to three years) and Greece (up to three years). Although the right may be protected in many states' constitutions, freedom of religion is severely lacking in many countries around the world.<br /> <br /> ===Is it contained in the US Constitution?===<br /> <br /> Yes this right is protected in the First Amendment of the US Constitution. It permits that all people have the right to practice his/her own religion, or that they have the choice to practice no religion at all. There is no established religion in the US, and under the Establishment Clause of the First Amendment, the government is prohibited from advancing or advocating any religion in any way. Also, under the Free Exercise Clause, the government cannot penalize a person for choosing or not choosing to worship in any particular way (ACLU 2020).<br /> <br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> The right is explicitly protected both in the Bill of Rights, but also in Article VI of the Constitution. This article prohibits religious discrimination in the formation of the government under the No Religious Test Clause. The clause, stating that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States,” promotes the freedom of religion and religious equality in all manners of life, starting from within the government itself (Brownstein and Campbell 2020)<br /> <br /> ===Are there any exceptions in American law to this right?===<br /> Based upon the Constitution and the First Amendment, the federal government is, by law, not permitted to limit the exercising of one’s right to freedom of religion, but this specific clause did not apply at the state level (Lutz 2013). Eventually the Fourteenth Amendment was ratified, extending more religious freedoms as a guaranteed right to the states. However, in the actual application of the freedom of religion, the US relies upon Supreme Court decisions as a guide to the manner in which the right is exercised. In 1878, in the case of Reynolds v. United States, the Mormon Church legally challenged the 1862 Morrill Anti-Bigamy Act in efforts to continue their polygamist practices according to their beliefs and interpretations of their religion. The Supreme Court ruled in favor of the US, citing that the law did not interfere with religious belief nor did it selectively target religious practice. In essence, “while the freedom to believe is absolute, the freedom to act on those beliefs is not” (Freedom Forum Institute 2020). Chief Justice Morrison Waite wrote, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, permit every citizen to become a law unto himself” (Lutz 2013). <br /> <br /> This decision was later reinforced in 1990, with the case of Employment Division v. Smith. After Alred Smith was fired from his job for using peyote, a controversial and, at that time, illegal hallucinogenic plant used in some religious rituals within the Native American Church, he sued the employment division under the law’s protection of “free exercise” (Cornell Legal Information Institute 2020). The Court ruled in favor of the Employment Division citing that the reason for the termination was work-related misconduct. Scalia stated that, allowing this kind of exemption from the law “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.” Eventually in 1994, however, this decision was reversed with the passing of the H.R. 4230 amendment to the American Indian Religious Freedom Act which protected the use of peyote in religious ceremonies.<br /> <br /> Also notably, the Sherbert v. Verner case of 1963 established the four-part “Sherbert test.” This test is also referred to as the “compelling interest” test. The test’s four parts are that: “For the individual, the court must 1. determine whether the person has a claim involving a sincere religious belief, and 2. whether the government action places a substantial burden on the person’s ability to act on that belief. Next, if these two elements are established, then the government must prove that 1. it is acting in furtherance of a “compelling state interest,” and that 2. it has pursued that interest in the manner least restrictive, or least burdensome, to religion” (Freedom Forum Institute 2020).<br /> <br /> However, the test was undermined in the ruling of the Employment Division v. Smith case because of the court’s implication that one could not legally and successfully challenge an infringement upon free exercise if the unintended result was to break laws that were generally applicable to all (and it permitted that the government did not have to justify this infringement by proving a compelling state interest). Also, these rulings were all made at the federal level; many states still control the ultimate application of “free exercise,” and as a result, the interpretation varies in differing states. <br /> <br /> Another notable case is the 1968 case of Newman v. Piggie Park Enterprises (Justia 2020). This case backed anti-discriminatory statutes after a barbecue chain refused to serve black people with the justification of the owner being that his beliefs compelled him to segregate races within his restaurants. This case was monumental because it well-established the limit to freedom of religion that allows for the weaponizing of one’s rights against another man. <br /> <br /> The courts also uses other tests in determining decisions regarding freedom of religion. The three-part Lemon test from the 1971 decision Lemon v. Kurtzman (which prohibited state funding of religious schools) states that 1. a court must first determine whether the law or government action in question has a compelling state and secular interest, underlining the idea that government should only concern itself in civil matters and should interfere with matters of individual religion as little as possible. 2. The state action must be proved to have the primary effect of advancing or inhibiting religion. And 3. the court must consider whether the action in question excessively entangles religion and government(Pacelle Jr.). Although criticized by several Supreme Court justices, some courts still use this test in establishment-clause cases. However, in the 1997 decision Agostini v. Felton, the Supreme Court finally modified the Lemon test in that it combined the entanglement and primary effects prongs of the test. <br /> <br /> The endorsement test, proposed by Justice Sandra Day O’Connor in her concurring opinion in the 1984 case of Lynch v. Donnelly, asks whether a particular government action amounts to an endorsement of religion (Hudson Jr.). This test has sometimes been assumed to fall into the Lemon test. It is similar to the first two prongs of the Lemon test by subjecting the challenged government act to the criteria of having the purpose or effect of endorsing religion. This test typically is invoked where the government is involved in expressive activities such as graduation prayers, religious signs on government property, religion in the curriculum, etc.<br /> <br /> Under the coercion test, the government does not violate the establishment clause unless it provides direct aid to religion in a way that would establish a state church or unless it coerces people to practice a religion against their will (Vile). However, this test is subject to varying interpretations, as is demonstrated in the conflicting cases of Allegheny County v. ACLU in 1989 and the 1992 case of Lee v. Weisman, in which Justices Kennedy and Antonin Scalia, applying the same test, reached different results (FindLaw 2020). Although freedom of religion is well-protected by the Constitution, debates over its application, protections from/of, and limitations to the right are an ongoing debate in the legal and free world.<br /> <br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> <br /> Yes, the freedom of religion is protected under several international human rights conventions, treaties, and decrees. This right is protected in article 18 of the UN’s 1948 Universal Declaration of Human Rights, article 18 of the 1966 International Covenant on Civil and Political Rights, and also in the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (United Nations Human Rights Office of the High Commissioner).<br /> <br /> The right is also protected by relevant articles within the following conventions and treaties: 1966 International Covenant on Economic, Social and Cultural Rights, the 1969 International Convention on the Elimination of All Forms of Racial Discrimination, the 1989 Convention on the Rights of the Child, the 1981 Convention on the Elimination of All Forms of Discrimination against Women, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the 1990 UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the 1951 Convention on the Prevention and Punishment of the Crime of Genocide and the 1951 Convention relating to the Status of Refugees.<br /> <br /> However, despite the writings and workings of all these conventions, treaties, and declarations, freedom of religion is still commonly suppressed in many areas of the world (Janis 2002). There is no effective international supervision of rights to religious freedom and diversity. However, regional European human rights law does in fact have tangible supervision of and consequences regarding the suppression of the freedom of religion. Article 9 of the 1950 European Convention on Human Rights and Fundamental Freedoms protects right to freedom of thought, conscience, and religion.<br /> <br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> Encouraging religious toleration, Buddhism is often seen to promote religious freedom. This belief is rooted in the teachings of the historical Buddha, who is believed to have preached the importance of allowing individuals to worship other religions. Kulatissa Nanda Jayatilleke emphasizes this, claiming “The Buddhist attitude to other religions has from its inception been one of critical tolerance” (Freiberger, 187). As noted by Jayatilleke, toleration is foundational to Buddhism, demonstrating the belief system’s adherence to the principles of free religious exercise. <br /> <br /> Though, as explained by Oliver Freiberger, this tolerance is primarily institutional rather than dogmatic (Freiberger, 186). While Buddhism condemns the persecution of other religious groups, it does not necessarily accept the practices and beliefs of other religions to be valid. Thus, as framed by Freiberger, while Buddhism promotes religious freedom, emphasized by its tenets of toleration, it does not approve of the practices of other religions. <br /> <br /> In addition to toleration, the inclusivity practiced by Buddhists connects the belief system with religious freedom. Noted by Kirstein Beise Kiblinger, modern Buddhists aim to include others in their practices, using Buddhist excerpts to justify inclusivity as a core tenet of their belief system (Freiberger, 188). Permitting anyone the ability to convert to Buddhism, the belief system stresses the importance of the freedom to select one’s religion, an essential aspect of the right to free religious exercise. <br /> <br /> Ultimately, the tenets of Buddhism can be used to bolster rights to religious freedom, the texts and practices of the religion upholding inclusivity and toleration.<br /> <br /> <br /> <br /> <br /> <br /> Throughout history, Buddhism has been characterized by a broad, decentralized variety of different teachings; thus, sometimes depending on the context and specific text, there can be differing views on freedom of religion within the Buddhist tradition (Borchert 5, 2016). The opinions of the appropriate rights for Buddhists may emphasize and support advocacy for religious freedom for Buddhists or may justify restrictions upon the religious freedom of non-Buddhists to persecute, drive out, and/or convert them (as in Myanmar and the political unrest there today) (Borchert 10, 2014).<br /> <br /> More often than not however, freedom of religion is strongly encouraged within the Buddhist tradition. Just as humans have a free mind in choosing between good and evil, we also have a free mind to choose what to believe, and each person should do so in: “healthy mind and knowledge” (Khareng, Awang, Rahman, Machae, Ismail 317, 2014). Within Buddhism, freedom of religion is described in the Tripitaka, the Buddhist most sacred text, and this text describes ten lessons for the “healthy mind” in evaluating the truths of other religions or schools of thought: “(a.) be not led by report (Ma Anusasawen), (b.) be not led by tradition (Ma Paramuprai), (c.) be not led by hearsay (Ma Itikirai), (d.) be not led by the authority of texts (Ma Pithoksamupathanen), (e.) be not led by mere logic and argument alone (Ma Takukahettu), (f.) be not led by inference (Ma Nayahettu), (g.) be not led by considering appearances (Ma Akorpariwitkuken), (h.) be not led by the agreement with a considered and approved theory (Ma Thitthinichamanokkukhanuthitaya), (i.) be not led by seeming possibilities (Ma Phapuphrutai) and (j.) be not led by the idea, ‘this is our teacher’ (Ma Sammanornokhruti)” (Khareng, Awang, Rahman, Machae, Ismail 317, 2014). <br /> <br /> Throughout recent history, Buddhist thinkers of the twentieth and twenty-first centuries, such as the Dalai Lama or Walpola Rahula, view the Buddhist concern of alleviating suffering as a rationale to justify Buddhist concern for human rights (Borchert 55-56, 2016). In the Dalai Lama’s “The Importance of Religious Harmony,” he writes: “Each religion has its own philosophy and there are similarities as well as differences among the various traditions. What is important is what is suitable for a particular person. We should look at the underlying purpose of religion andnot merely at the abstract details of theology or metaphysics. All religions make<br /> the betterment of humanity their primary concern… Whether we like it or not, we have all been born on this earth as part of one great human family. This is not to say that all human beings are the same or that because everyone wishes for happiness that the same things will make each of them happy. Brothers and sisters resemble each other without being identical” (Borchert 66, 2016). The Dalai Lama here clearly supports religious freedom, even pointing out the similarities in differing religions. <br /> <br /> This message highlights that human dignity, equality, and freedom, which are the basics of accepted human rights are intrinsic to the ideal of Buddhist teachings. Although the UDHR’s ideas on human rights are considered Western in nature, the Buddist teachings of the Five Precepts and the six directions champion human rights without ever coining the exact phrase.<br /> Stretching back to the third century BCE, Buddhist Emperor Asoka of India states in the 12th Edict of Asoka: “One should not honor only one’s own religion and condemn the religions<br /> of others, but one should honor others’ religions for this or that reason. In so doing, one helps one’s own religion to grow and renders service to the religions of others too. In acting otherwise one digs the grave of one’s own religion and also does harm to other religions” (Chanawangsa 4 then 9, 2011).<br /> <br /> ====Platonism====<br /> ====Aristotelian thought====<br /> Aristotle disagreed strongly with the concept of religion, but he believed people’s religious belief could be used both in the state’s favor. Regarding the relationship between politics and religion, in the work “Politics,” Aristotle writes, “A tyrant must put on the appearance of uncommon devotion to religion. Subjects are less apprehensive of illegal treatment from a ruler whom they consider god-fearing and pious. On the other hand, they do less easily move against him, believing that he has the gods on his side” (Cline 2019). He believed that implementing religion into the workings of a government gives a tyrant the ability to keep people at a distance, ignoring their disapproval of how they are being ruled and any challenges to the structure of the government itself. When sanctioned by divine order, people find a government much more difficult to question, let alone change (Cline 2019).<br /> <br /> Although he held these cynical views toward the idea of religion within the government, Aristotle did construct a “ministry of religious affairs” into his ideal polis. This ministry would make it possible for religious affairs within the polis to be monitored and fostered in one way or another, depending on the polis. Despite his aversion to religion, Aristotle understood religious practice to inevitably exist within any polis, and he decided that this belief should then at least be put to its best use. (Gerson 2018). This use can be by imitation of the divine, regarding their intellectual virtues, that are to foster moral choice or freedoms to speak, behave, or practice whatever religion one sees fit in pursuing justice and seeking to live a virtuous life. In doing this, a polis takes another step in the direction of justice and virtue, once again separating our capacity from that of animals. (Gerson 2018). These views were the beginnings of the ideas behind the freedom of religion that we are free to practice today. <br /> <br /> Aristotle’s views inspired the Thomastic principles that “the maintenance of any orderly society required adherence to defined rules of conduct… From this requirement some basic laws could be deduced, such as laws forbidding murder and theft. Such laws did not have to be revealed<br /> by divine inspiration” (Wallace 537-538, 2009). These natural laws could be rationally produced and would serve as the basic moral framework necessary for the success of that society and natural, collective good while divine law would require certain revelations that are only relevant to those who accept it for their eternal good. Based upon this belief, there was clear and rational justification for a state that ran independent of central religion (Wallace 537-38).<br /> <br /> ====Ancient Chinese Philosophy====<br /> The three primary ancient Chinese philosophies, Confucianism, Legalism, and Taoism, represent various attitudes regarding the rights to religious freedom. <br /> <br /> Founded on the premise of reforming a corrupted society during the Spring and Autumn period, Confucianism initially strongly opposed the customs of other belief systems. For example, noted by Robert Cummings Neville, in their attempts to strengthen their philosophy, Confucians actively worked to suppress beliefs such as superstition, which persisted throughout Chinese culture at the time (Neville, 26). Additionally, noted by Neville, Confucianism has a self-serving definition of toleration. Neville asserts, “Relative to toleration, the principle is that anything in the wider environment can be tolerated so long as the narrower environment can flourish” (Neville, 30). Witnessed through this narrow denotation of “tolerance”, Confucianism emphasizes a sense of dogmatic ethnocentrism, in which other religions may be permitted, but only to the extent that Confucianism can thrive as the prevailing belief system. In this way, Confucianism undermines the idea of unfettered religious freedom.<br /> <br /> Legalism, which focuses solely on preserving the strength and stability of the state, emphasizes that “law should replace morality” (Winston, 313). Furthermore, Legalist scholar Han Feizi emphasizes law to be within total control of the sovereign, undermining the individual liberties of citizens (Winston, 315). While not directly related to freedom of religion, the Legalist sovereign's unilateral power over the law emphasizes that individuals have no natural entitlements. This weakens the perceived strength of civilians’ rights to religion, as through Han Feizi’s teachings, civilians would only be permitted to worship as directed by the Sovereign. <br /> <br /> Contrary to Confucianism and Legalism, Taoism, which emphasizes peace and harmony, is more tolerant of other groups, encompassing the principles of the right to religious freedom. Explained by Liu Jinguang, a Senior Fellow at the Center for Religious Research of China, unliked other belief systems, “Chinese Taoism has the fine tradition of upholding and promoting harmony… mutual respect and peaceful co-existence of different culture,, nationalities and religions are the foundations for building a harmonious word” (Jinguang, 207). As Taoism embraces not only toleration, but acceptance, of other faiths, it upholds the necessity of religious freedom for world harmony. Therefore, Taoism distinctly argues the importance of religious rights, allowing for the co-existence of numerous religious groups.<br /> <br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought==== <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> Freedom of religion is more than just the freedom to worship as one pleases, but it is a right granted to all in efforts to prevent discrimination based upon one’s core values and beliefs, and it protects against the imposition of values and beliefs upon people both from society and from the government (The Heritage Foundation, 2020). More precisely, the freedom of religion possess two main components: “The first is the right to freedom of thought, conscience and religion, which means the right to hold or to change one’s religion or belief and which cannot be restricted under any circumstances. The second is the right to manifest one’s religion or belief, which, according to Articles 9(2) ECHR and 18(3) ICCPR, can be restricted but only if the restriction is prescribed by law and is necessary – Article 9(2) adds here ‘in a democratic society’ – for the protection of public safety, public health or morals or for the protection of the rights and freedoms of others” (Donald and Howard 2, 2015). The practice of freedom of religion often conflicts with several other guaranteed freedoms due to its intersectional nature, and can therefore, legally be restricted when it encroaches upon other fundamental and guaranteed human rights. <br /> <br /> In 2015, when the US Supreme Court deemed same-sex marriage constitutional, religious freedom cases flooded state legislatures and courthouses, many of which were seeking exceptions to anti-LGBTQIA+ legislature under the basis of religious beliefs (Russell-Kraft, 2017). Some of these cases, including the previous 2013 case of Elane Photography v. Willock, represent the power of the freedom of expression, the freedom to be married, and the right to not be discriminated against, to undermine certain instances of the practice of the freedom of religion. This case was between two women who sought to hire photography company Elane Photography for their wedding ceremony and the named photography company who refused to provide services due to religious reasons. The case eventually was ruled in favor of the same-sex couple citing that the state of New Mexico prohibited any discrimination on the basis of sexual orientation, and that the claims of the photographer for her freedom of religion and speech were not protected in this case due to the (Russell-Kraft, 2017). The Constitution does indeed “have competing values; the requirements of the free exercise and the establishment clauses, freedom of association, and anti-discrimination on the basis of faith don’t always add up” (Russell-Kraft, 2017). <br /> <br /> When dealing with cases in which freedom or religion seems to conflict with other guaranteed rights, international human rights law has historically precedented certain principles to consider in settling the matter: <br /> <br /> “These include the principles of: non-discrimination, meaning that there is no ‘right to discriminate;…’ neutrality and impartiality of the state as between religions and as between religious and nonreligious forms of belief; respect for others to believe and the duty of the state to create a level playing field between different groups of different religions or beliefs or no religion or belief, which may be summarized as respecting the believer rather than the belief; pluralism and tolerance, which includes that there is no right not to be offended; institutional and personal autonomy; proportionality in determining whether an interference with the right to manifest one’s religion is justified: the restriction must have a legitimate aim and the means used to achieve that aim must be proportionate and necessary…; no hierarchy of rights, meaning that in each instance, an attempt is made to maximize each of the rights engaged and to ensure that none is inappropriately sacrificed; and, legality, i.e. that restrictions on rights must be clear, publicly accessible, non-retrospective, and that people must be able to understand the circumstances in which restrictions might be imposed and foresee the consequences of their actions with a degree of certainty” (Donald and Howard, 2015)<br /> <br /> <br /> All this is ultimately to outline the considerations necessary to consider when dealing with encroachments upon and/or suppression of the freedom of religion due to society’s necessity of freedom of conscience. Freedom of conscience is ultimately necessary and fundamental to the workings of democracy. One example regarding the right to non-discrimination and freedom of conscience favoring the rights of freedom of religion is the 2013 case of Eweida and Others v UK. The outcome of this case saw a contrary ruling to that of the Elane Photography v. Willock case. This case saw two of the applicants, a registrar of birth, deaths and marriages (Ladele) and a relationship counsellor (McFarlane), deny their services to same-sex couples due to their company policies regarding their Christian, religious beliefs. The European Court of Human Rights (ECtHR) deemed that the freedom to not to be discriminated against on the ground of sexual orientation is, in fact, protected under the Convention on human rights and that difference in treatment requires significant and legal justification and legitimate reasoning for doing so; however, in this case, the court found that the applicants’ actions complied with their company policies and therefore did not constitute discrimination (Donald and Howard 7, 2015). The two opposing cases demonstrate the flexibility and conflicting natures of fundamental rights such as that of conscience and non-discrimination both for and against the practice of freedom of religion. <br /> <br /> The ECtHR recognizes further the conflicting rights of people to teach others about their religion or belief in contrast with the right of other people to be free from interference with their own freedom of religion or belief (which encompasses their right to be free from religion or belief): “For example, the European Centre for Law and Justice has argued within the Council of Europe for a ‘general provision reaffirming the fundamental right to freedom of religious opinion’ and argues that the concept of hate speech should ‘never end in a limitation of free speech’ (emphasis added). However, this is not entirely possible, seeing as international human rights laws draw limitations to ensure that conflicting rights in each particular case are proportionally balanced so that neither right in question is inappropriately sacrificed” (Donald and Howard 9, 2015).<br /> <br /> Lastly, even the freedom of assembly, which is guaranteed by Articles 20 of the Universal Declaration of Human Rights, 21 of the International Covenant on Civil and Political Rights and 11 of the European Convention on Human Rights comes into conflict with the freedom of religion. Some instances of peaceable assemblies such as LBGTQIA+ rallies have been prohibited and/or confined to venues out of public sight: “Where these events are not prohibited and do take place, there is often inadequate protection of participants by law enforcement agencies. This not only infringes the right of LGBTI people to freedom of expression and assembly, but it also makes them vulnerable to discrimination, abuse and violence… Despite these principles, claims based on religious conscience expressed in morally absolute terms persist” (Donald and Howard 10, 14, 2015).<br /> <br /> The rights of non-practicing individuals often conflict with the rights to freedom of religion. Furthermore, the concept of “freedom from religion” questions the strength of freedom of religion, as many believe that non-practicing individuals have an equally important right to not be subjected to religious practices (Sapir, Gidon, and Statman). Often this results in conflict between state power and religious rights, as the state is often expected to protect the rights of non-religious individuals. Gidon Sapir and Daniel Statman note how freedom from religion manifests itself, claiming “a law prohibiting the sale of goods on the sabbath would violate the would-be vendors freedom from religion.” Demonstrated by Sapir and Statman, religious rights may be contested when they conflict with the laws prescribed by the state upholding the rights of non-practicing individuals, for example that stores can operate on the sabbath day. In this way, the rights of non-religious individuals, as supported by the state, can act to diminish the power of religious rights.<br /> <br /> Additionally, conflicts of religious rights and the rights to free association have been notably observed throughout American jurisprudence. Most predominantly, this issue manifests itself in issues pertaining to First Amendment rights and civil rights. For example, the right for an individual to identify as LGBTQ+ has often been at odds with the Free Exercise Clause of the First Amendment. This was observed in Masterpiece Cakeshop v. Colorado Civil Rights Commision, when a Colorado bakery asserted their First Amendment rights to deny a gay couple service, arguing that “it would displease God to create cakes for same-sex marriages.” In response to the bakery’s actions, the couple sued, claiming that their rights to non-discrimination as protected by Colorado’s Anti-Discrimination Act had been violated. Although challenged by the couple’s discrimination case, Masterpiece Cakeshop v. Colorado Civil Rights Commision ultimately demonstrated that the right to free religious exercise has historically infringed upon individual’s rights to non-discrimination, as the Supreme Court ruled in favor of the bakery, claiming that under the Free Exercise Clause the bakery was permitted to deny service to the couple. Thus, while civil rights often create a legitimate conflict with religious rights, religious rights often take precedence. <br /> <br /> Though, as the issue of discrimination and religious rights has evolved, the strength of the First Amendment has weakened, reinforcing Civil Rights. Observed by the Bostock v. Clayton County decision, the Supreme Court now upholds that discrimination against LGBTQ+ individuals is a violation of Title VIII of the Civil Rights Act (Hollis-Brusky). This landmark decision curtails many of the arguments, such as those made by the justices in Masterpiece Cakeshop v. Colorado Civil Rights Commision, which had previously bolstered the rights to religious freedom over the rights of LGBTQ+ individuals. Furthermore, unlike the justices concluded in Masterpiece Cakeshop v. Colorado Civil Rights Commision, Bostock’s support of the primacy of civil rights undermines the belief that the First Amendment can be used to legally protect individuals who discriminate against LGBTQ+ individuals. Thus, exhibited by the Bostock v. Clayton County case, freedom of religion, specifically the Free Exercise Clause, can be limited by civil rights to non-discrimination.<br /> <br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> When dealing with cases in which freedom or religion seems to conflict with other guaranteed rights, international human rights law has historically precedented certain principles to consider in settling the matter: <br /> <br /> “These include the principles of: non-discrimination, meaning that there is no ‘right to discriminate;…’ neutrality and impartiality of the state as between religions and as between religious and nonreligious forms of belief; respect for others to believe and the duty of the state to create a level playing field between different groups of different religions or beliefs or no religion or belief, which may be summarized as respecting the believer rather than the belief; pluralism and tolerance, which includes that there is no right not to be offended; institutional and personal autonomy; proportionality in determining whether an interference with the right to manifest one’s religion is justified: the restriction must have a legitimate aim and the means used to achieve that aim must be proportionate and necessary…; no hierarchy of rights, meaning that in each instance, an attempt is made to maximize each of the rights engaged and to ensure that none is inappropriately sacrificed; and, legality, i.e. that restrictions on rights must be clear, publicly accessible, non-retrospective, and that people must be able to understand the circumstances in which restrictions might be imposed and foresee the consequences of their actions with a degree of certainty” (Donald and Howard, 2015)<br /> <br /> All this is ultimately to outline the considerations necessary to consider when dealing with encroachments upon and/or suppression of the freedom of religion due to society’s necessity of freedom of conscience. Freedom of conscience is ultimately necessary and fundamental to the workings of democracy. The right to freedom of religion falls well under the category to the right to freedom of conscience. And within this category, the right against religious discrimination is a distinct and complimentary right to freedom of religion: “Religious freedom is best understood as protecting our interest in religious adherence (and non-adherence), understood from the committed perspective of the (non)adherent. This internal, committed perspective generates a capacious and realistic conception of religious adherence, which reflects the staggering plurality of forms of religiosity (or lack thereof) as extant in contemporary societies” (Norton 1125, 2019). <br /> <br /> One example regarding the right to non-discrimination and freedom of conscience working in tandem with the freedom of religion is the 2013 case of Eweida and Others v UK. This case saw two of the applicants, a registrar of birth, deaths and marriages (Ladele) and a relationship counsellor (McFarlane), deny their services to same-sex couples due to their company policies regarding their Christian, religious beliefs. The European Court of Human Rights (ECtHR) deemed the court found that the applicants’ actions complied with their company policies and therefore did not constitute discrimination (Donald and Howard 7, 2015). The workings of freedom of religion and the expression of said religion as well as conscientious objection work in tandem to support the right to freedom of religion.<br /> <br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> The conflict of civil and religious rights has presented several exceptions to the right to free religious exercise. Specifically, stemming from the Supreme Court’s ruling in favor of marriage equality in 2015, many anti-discrimination laws have passed, restricting the right to unfettered religious exercise. Several scholars have argued in favor of these exceptions. In discussing the Supreme Court’s 2015 decision, Suzanne Goldberg states, “After many years of battles in which the religious right had hammered the message that gay people were somehow seeking “special rights” when advocating for laws prohibiting sexual orientation discrimination, the court added its authoritative view that the “special rights” rhetoric was meaningless” (Goldberg, 237). Emulated by Goldberg, as civil rights, such as marriage equality, are not “special rights&quot;, they must be protected equally to the First Amendment right to free religious exercise. Ultimately, Goldberg conveys the sentiment that within American jurisprudence, the right to free religious exercise is prima facie, and thus can be subject to numerous exceptions. <br /> <br /> Additionally, in regards to criminal law violations, William P Marshall of the University of Chicago Law Review supports the need for exceptions to the Free Exercise Clause. Furthermore, Marshall condemns the belief that religious activity, as protected by the Free Exercise Clause, should be exempt from criminal laws. In defending the Employment Division, Department of Human Resources of Oregon v. Smith decision, which confirmed the state’s ability to withhold unemployment benefits from workers fired for using illegal drugs for religious purposes, Marshall argues that if the Supreme Court were to permit religious exemptions to criminal laws, strengthening First Amendment Rights, they would have to engage in dangerous “constitutional balancing” (Marshall, 311). As explained by Marshall, this balancing would force the court to weigh the interests of religious groups against the interests of states, resulting in inconsistent rulings. Thus, presenting a clear exception to freedom of religion, Marshall argues that First Amendment rights, specifically the right to free religious exercise, do not exempt one from criminal prosecution. <br /> <br /> Between the positions of Marshall and Goldberg, lies Ira C. Lupu of the University of Pennsylvania Law Review. While Lupu dismisses the Smith decision, claiming religious rights should have been accommodated in that particular case, he still argues for limitations on religious expression, claiming, “every person may pursue religious freedom to the extent that it is fully compatible with the equal pursuit of religious freedom by others” (Lupu, 558). Similar to Goldberg, Lupu asserts that religious expression can be curtailed when it restricts the liberties of others. Thus, Lupu emphasizes that although certain religious practices should be exempt from the law, such as the peyote drinking incident in Smith, religious expression should not be left legally unrestricted.<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> Private companies have often been found to institute policies that restrict employees’ rights to religious freedom. Such policies directly violate Title VII of the Civil Rights Act, a provision meant to bolster religious freedom by prohibiting employment discrimination on the basis of religion (EEOC). <br /> <br /> Such discriminatory policies were observed in EEOC v. Abercrombie &amp; Fitch Stores. Furthermore, the case revealed Abercrombie’s “Look Policy”, which involved discriminatory hiring procedures towards Muslim individuals (Oyez). Affirmed by the Supreme Court, this policy was a direct violation of the Civil Rights Act, Justice Scalia upholding Title VII claiming, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions” (Justia Law). Demonstrated by the court’s decision, one’s entitlements to religious freedom in the workplace, as upheld by Title VII, are curtailed by discriminatory hiring practices such as the “Look Policy”.<br /> <br /> In addition to violating their Title VII entitlements, many individuals argue that their employers’ practices restrict their First Amendment rights to free religious exercise. For example, in Sherbert v. Verner, Adell Sherbert argued that her firing due to her refusal to work Saturdays, her Sabbath day, was a violation of the Free Exercise Clause of the First Amendment (Oyez). The Supreme Court concurred with Sherbert, emphasizing that the firing restricted Sherbert’s ability to freely practice her religion. Emphasized by the case, firing someone on the basis of their religion, in addition to likely being a violation of the Civil Rights Act, is a direct breach of the First Amendment. Thus, witnessed by instances such as those that precipitated Sherbert, First Amendment religious rights are often infringed upon by employment policies.<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> <br /> In the United States, certain religious practices have been limited during times of disease. For example, during the COVID-19 pandemic, limitations on free religious exercise have been visibly witnessed, demonstrating how the right is subject to restrictions during a health crisis. This was observed in the beginning of the pandemic, when many houses of worship challenged their closures by state governments, arguing that such actions violated their rights to free religious exercise. Though, when a specific California church’s case was brought to the Supreme Court, the closures were upheld as constitutional, Chief Justice Roberts arguing, “Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment” (New York Times). Emphasized by the California case, in times of disease, certain religious practices, such as attending largely populated church services, can be restricted if they do not correspond with federal public health guidelines. Thus, witnessed through the closing of churches as a result of the COVID-19 pandemic, a disaster can alter the Supreme court’s constitutional interpretation of the Free Exercise Clause.<br /> <br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Association&diff=209 2020-07-13T15:10:51Z

<p>Ksandlund: /* Ancient Chinese Philosophy */</p> <hr /> <div>==What is the oldest written source that mentions this right?==<br /> John Locke’s “A Letter Concerning Toleration” (1689) primarily concerns religious associations, but he extends certain arguments to associations in general. The text in the next paragraph is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right (241). <br /> <br /> “Suppose this Business of Religion were let alone,” Locke hypothesizes, “and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.” Under conditions of differential treatment, such persons, “united together by one common persecution,” would become just as dangerous and disruptive. Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter.<br /> <br /> In 1776, Richard Price, a British writer who supported the American revolution published Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America. Unlike other commentaries on civil rights, he includes discussion on free assembly. He describes a prohibition on “associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy” as being part of a “state of oppression which no country can endure.” Though he does not phrase it as a fundamental right, the fact that Price deems draconian restrictions on association oppressive implies a belief in at least a limited freedom of association.<br /> <br /> Though Enlightenment commentators like Locke argued for and against greater freedom to associate. However, the first to mention it as an absolute right was John Stuart Mill, who argues ''in On Liberty'' that “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (1859, 16).<br /> <br /> ===What is the oldest written source in this country that mentions this right?===<br /> ====Afghanistan====<br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> ====Armenia====<br /> ====Australia====<br /> Australia has detailed records of its constitutional convention, which occurred in the 1890s. In 1897. One speaker alluded to the power of free association: “The English feel the vigor of their public spirit; they have experienced the vigilance of a free press, and the power of associations and public meetings.”<br /> <br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> Chapter 2 of Botswana’s Constitution (1966) guarantees “freedom of conscience, of expression and of assembly and association.”<br /> <br /> ====Brazil====<br /> Brazil’s constitution (1988) has exceptionally detailed freedom of association provisions. Title II-I-5 states that: <br /> <br /> - there is total freedom of association for lawful purposes, but any paramilitary association is prohibited;<br /> <br /> - creation of associations and, as set forth in law, of cooperatives, requires no authorization, prohibiting state interference in their operations; <br /> <br /> - associations may be compulsorily dissolved or their activities suspended only by a judicial decision, which in the former case must be a final and unappealable decision;<br /> <br /> - no one can be compelled to join an association or to remain in one;<br /> <br /> - when expressly authorized, associations have standing to represent their members judicially and extrajudicially<br /> <br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> Chapter 345 Section 5 of Saskatchewan’s Bill of Rights (1947) states that “every person and every class of persons shall enjoy the right to peaceable assembly with others and to form with others associations of any character under the law.”<br /> <br /> Part 1 of the Canadian Bill of Rights (1960) lists “freedom of assembly and association” as a guaranteed right. This was an ordinary act of parliament, and it has been replaced by the Canadian Charter of Rights and Freedoms, an amendment to the Canadian Constitution.<br /> <br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> Chapter 2-4 of the Provisional Constitution of the Republic of China (1912) states that “citizens shall have the freedom of speech, of composition, of publication, of assembly and of association.”<br /> <br /> The 1912 Republic of China Constitution refers to the one adopted by the nationalist government on the mainland, led by Sun Yat-sen. Despite its lofty ideals, this government never really maintained power. After a period of instability and civil war, the CCP forced the nationalist government to retreat to Taiwan, which is known now as the Republic of China. Taiwan suspended its constitution, and it was under a repressive martial-law system until 1987. It is now a constitutional democracy, and freedom of association is protected in its constitution. The PRC constitution claims to protect freedom of association, among other civil liberties.<br /> <br /> ====Colombia====<br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> Section II-18 of Estonia’s first constitution (1920) states that “The forming of associations and unions is free in Esthonia.&quot;<br /> <br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> Title I of the French Constitution of 1791 guarantees the right of peaceful assembly. <br /> <br /> “Liberty to citizens to assemble peaceably and without arms in accordance with police regulations.”<br /> <br /> Though the French Constitution of 1791 protected the right to assemble, French revolutionaries considered explicitly excluding free association (Boyd 257). The French enacted a law protecting free association in 1901, and enshrined it in their constitution in 1971 (Boyd 2008, 237).<br /> <br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> The Weimar Constitution (1919) established freedom of association. <br /> <br /> Article 123: “All Germans have the right to assembly peacefully and unarmed without giving notice and without special permission.” <br /> <br /> Article 124: “All Germans have the right to form associations and societies for purposes not contrary to the criminal law.”<br /> <br /> ====Ghana====<br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> The following quote was attributed to Gandhi in 1922: <br /> <br /> “Freedom of association is truly respected when assemblies of people can discuss even revolutionary projects, the State relying upon the force of public opinion and the civil police, not the savage military at its disposal, to crush any actual outbreak of revolution that is designed to confound public opinion and the State representing it.., The fight for swaraj means a fight for this threefold freedom before all else.&quot; <br /> <br /> Part III Article 19 of the Indian Constitution (1950) grants citizens the right to “form associations or unions” (Dalton).<br /> <br /> ====Indonesia====<br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> Article 40 of the Irish Constitution (1940) guarantees “the right of the citizens to form associations and unions.”<br /> <br /> ====Israel====<br /> ====Italy====<br /> Part 1 Title 1 Article 18 of the Italian Constitution (1947) states that: <br /> <br /> - “Citizens have the right to form associations freely and without authorization for those ends that are not forbidden by criminal law.” <br /> <br /> - “Secret associations and associations that, even indirectly, pursue political aims by means of organisations having a military character shall be forbidden.”<br /> <br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> Chapter III Article 21 of the Japanese Constitution (1947): “Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.” <br /> <br /> Additionally, though finding direct texts has proven difficult, there have been political movements for greater political expression since the pre-war era. The freedom and popular rights movement existed throughout the second half of the 19th century, and its members advocated for increased freedom of assembly beginning no later than 1886 (Tierney 2013, 21).<br /> <br /> ====Jordan====<br /> ====Kazakhstan====<br /> ====Kenya====<br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> ====Laos====<br /> ====Latvia====<br /> The Latvian Constitution added a section on fundamental rights in 1998. Article 102 states that “everyone has the right to form and join associations, political parties and other public organisations.”<br /> <br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> From Section 1 Article 9 the Mexican Constitution of 1857: “No one shall be deprived of the right peaceably to assemble or to come together for any lawful purpose; but only citizens shall be permitted to exercise this right for the purpose of taking part in the political affairs of the country. No armed assembly shall have the right to deliberate.”<br /> <br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> Part 2 Section 17 of the Bill of Rights Act (1990) states that, “Everyone has the right to freedom of association.”<br /> <br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> Chapter IV Section 37 of the constitution of the Second Republic (1979) states that “every person shall be entitled to assemble freely and associate with other persons, and any political party, trade union, or other association for the protection of his interests.”<br /> <br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> ====Oman====<br /> ====Pakistan====<br /> The following is from Part II, Chapter I, Section 17 of Pakistan’s current constitution (1973). <br /> <br /> “Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.”<br /> <br /> “Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.”<br /> <br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> ====Philippines====<br /> ====Poland====<br /> ====Portugal====<br /> Article 46 of the Portugese Constitution (1976): <br /> <br /> “Citizens shall possess the right to freely associate with one another without requiring any authorisation, on condition that such associations are not intended to promote violence and their purposes are not contrary to the criminal law.” <br /> <br /> “Associations shall pursue their purposes freely and without interference from the public authorities and shall not be dissolved by the state or have their activities suspended, except in such cases as the law may provide for and then only by judicial order.”<br /> <br /> “No one shall be obliged to belong to an association, or be coerced to remain therein by any means.”<br /> <br /> “Armed associations, military, militarised or paramilitary-type associations and organisations that are racist or display a fascist ideology shall not be permitted.”<br /> <br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> ====South Africa====<br /> Chapter 3 section 17 of the 1993 Interim Constitution states that “every person shall have the right to freedom of association.”<br /> <br /> ====South Korea====<br /> <br /> Chapter two Article Ten of the Constitution (1948): “All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association.”<br /> <br /> ====South Sudan====<br /> ====Spain====<br /> ====Sri Lanka====<br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> The 1990 Human Rights Act protects the Right to assemble and associate, subject to reasonable and proportionate restrictions. The HRA primarily serves to codify the European Convention on Human Rights into British Law (the ECHR and its associated court are not related to the EU, and the UK is still a signatory). <br /> <br /> In 1776, Richard Price, a British writer who supported the American revolution published ''Observations on the Nature of Civil Liberty'', the Principles of Government, and the Justice and Policy of the War with America. Unlike other commentaries on civil rights, he includes discussion on free assembly. He describes a prohibition on “associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy” as being part of a “state of oppression which no country can endure.” Though he does not phrase it as a fundamental right, the fact that Price deems draconian restrictions on association oppressive implies a belief in at least a limited freedom of association. This is the first instance I could find of a political theorist invoking the concept of freedom of association (or the lack thereof).<br /> <br /> There is a more explicit case for free association in John Stuart Mill’s On Liberty (1859). Mill lays a broad notion of individual liberty. He then argues that “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived (16).”<br /> <br /> Before any British thinkers espoused freedom of association as a right, John Locke, Thomas Hobbes, and David Hume addressed the issue (as Boyd helpfully summarizes). Hobbes detested associations, referring to them as “lesser commonwealths in the bowels of a greater, like worms in the entrails of a natural man” (257). <br /> <br /> Locke disagreed with Hobbes’ cynical perspective on groups. John Locke’s “A Letter Concerning Toleration” primarily concerns religious associations, but he extends certain arguments to associations in general. The italicized text below is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right (2008, 241). <br /> <br /> “Suppose this Business of Religion were let alone,” Locke hypothesizes, “and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.” Under conditions of differential treatment, such persons, “united together by one common persecution,” would become just as dangerous and disruptive.26 Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter.<br /> Finally, David Hume’s “Of Parties in General” (1742) is another important piece of Enlightenment work skeptical of associations. His position is more nuanced that Hobbes; he understands that association may exist for different purposes. Factions “of interest” are deemed less dangerous than factions “of principle.” Regarding factions of principle, he wonders the following: “But where the difference of principle is attended with no contrariety of action, but every one may follow his own way, without interfering with his neighbour, as happens in all religious controversies; what madness, what fury can beget such unhappy and such fatal divisions?”<br /> <br /> ====United States====<br /> Listed at the bottom of this section is language from the State Constitutions of New Hampshire and North Carolina and the Pennsylvania Declaration of Rights, all from 1776, which articulate the right to assemble (assembly and association are not always interchangeable, but many constitutions group them together). These documents all contain rights to assemble written in remarkably similar language, and they describe the right as politically driven. These were the oldest references to something like the right of association in governing documents.<br /> <br /> Despite modern views of assembly as related to association, at the time of America’s founding, it would have been better understood as related to the right to petition. According to Congress’s online annotated Constitution, the assembly clause meant that the people have a right to assemble in order to petition the government. The site says that assembly was initially seen as a “subordinate and instrumental” right (&quot;Freedom of Assembly and Petition&quot;). The aforementioned state constitutions should be interpreted the same way. In fact, this is even more clear in these state constitutions than in the national one. The state constitutions surround the right to assemble with expressly political language, such as the right to petition and advocacy for the “common good,” while the First Amendment’s guarantees are political, but not entirely political (it protects religion, and protected speech and press are often, but not always, political). <br /> <br /> As Richard Boyd argues in “The Madisonian Paradox of Free Association,” America’s founders did not explicitly include free association because at least some of them were skeptical of it, worrying that certain associations would be conspiratorial or seditious. He summarizes the British Enlightenment tradition skeptical of associations, which influenced the founders (I describe this in the last few paragraphs of the UK section, on Hobbes, Locke, and Hume). James Madison, the primary author of the Bill of Rights, feared the influence of factions, which private associations furthered. As Boyd notes, Madison viewed association as a “second-order” right (page 258), whose existence is tolerable because institutions can mitigate its worst effects (page 247). The following passage from “Federalist No. 10” illustrates his attitude toward factions arising from free association: <br /> <br /> It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.<br /> <br /> As Boyd notes, there are several possible reasons why Madison may not have enumerated the right to associate. It is possible that he saw it as implied by other First-Amendment rights, such as free assembly. It also may have been seen as less important or vulnerable than other rights, and Madison may have seen it as the type of auxiliary right protected by the Ninth Amendment. Finally, the right’s exclusion may have been because the founders were too skeptical of it for its inclusion (258). <br /> <br /> Since the 1950s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in NAACP v. Alabama that the NAACP cannot be forced to submit a membership roster to a state government. In 2000, in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association. <br /> <br /> In ''Roberts v. US Jaycees'', an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.” <br /> <br /> Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in ''NAACP v. Button'', “It is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.” <br /> <br /> Article XVIII of North Carolina’s Constitution: “That the people have a right to assemble together, to consult for their common good, to instruct their Representatives, and to apply to the Legislature, for redress of grievances.”<br /> Section 21 of New Hampshire’s Constitution: “The citizens have a right in a peaceable manner to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or for other purposes, by petition, address, or remonstrance. No law abridging the freedom of speech shall be enacted.”<br /> <br /> Section XVI of the Pennsylvania Declaration of Rights: “That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance.<br /> <br /> ====Uruguay====<br /> ====Uzbekistan====<br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> Pope Leo XIII forcefully argued for free association in Section 51 of ''Rerum novarum'' (1891), an extremely influential text in Catholic thought. <br /> <br /> &quot;Private societies, then, although they exist within the body politic, and are severally part of the commonwealth, cannot nevertheless be absolutely, and as such, prohibited by public authority. For, to enter into a &quot;society&quot; of this kind is the natural right of man; and the State has for its office to protect natural rights, not to destroy them.&quot;<br /> <br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> This right became an element of political discourse in the late Enlightenment, especially the American Revolution. In the mid and late 1800s, writers such as Mill and Leo XIII pushed the idea into the mainstream.<br /> <br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> <br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> Constitutions written after 1900 very often protect free association.<br /> <br /> As the right to free association is upheld by numerous United Nations treaties, for example, the European Convention on Human Rights, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, it would be expected that most countries maintain legal provisions protecting it. Though, investigated by UN Special Rapporteur Maina Kiai, many countries enforce legislation that explicitly restricts civilians’ entitlements to free association (International Center for Not-for-Profit Law). <br /> <br /> For example, noted by Kiai, in Malaysia, the Peaceful Assembly Act 2012 bans individuals under the age of twenty one from organizing public demonstrations. Additionally, stipulated by the same act, children under the age of fifteen cannot participate in demonstrations. Article 33 of the Constitution of Mexico, Kiai asserts, prohibits foreigners from engaging with Mexican politics. Similarly, Kiai notes that in Myanmar, Article 354 prohibits foreigners from assembling. Through these various forms of legislation, political and social association are highly restricted, as individuals are prohibited from expressing their associations through protest and civic engagement. <br /> <br /> Additionally, Kiai presents how legal restrictions on sexual orientation limit free association in several countries. For example, in Russia, a ban on gay pride parades was upheld by Moscow’s city council in 2012. Likewise, in Nigeria, the President ushered in the Same Sex Marriage Act in 2014, prohibting gay marriage and the ability to “participate in or support gay clubs, societies, organizations, processions or meeting.” Kiai notes a similar anti-homosexuality law was signed by Uganda’s president in 2014. Demonstrated by these numerous legal restrictions to homosexuality, free association is unprotected in numerous countries, as one can often be punished for associating with a specific sexual orientation. <br /> <br /> In the remainder of his report, Kiai continues to elaborate on numerous legal provisions that restrict free association. For example, Kiai notes how both Chile and Turkey utilize counter-terrorism legislation to restrict free association. Similarly, he explains how criminal laws in Vietnam and El Salvador often deter individuals from exercising their rights to free association, as their voices may be met with harsh penalties from their governments. <br /> <br /> Witnessed through Kiai’s reporting, the restrictions to free association are plentiful. This ultimately demonstrates that despite its entitlement by numerous United Nations treaties, the right to free association is highly vulnerable to violation and not widely internationally upheld.<br /> <br /> ===Is it contained in the US Constitution?===<br /> No.<br /> <br /> The right to free association is not explicitly stated in the United States Constitution. Though, The Supreme Court has historically upheld the constitutional right to free association, invoking the Fourteenth and First Amendments (Legal Information Institute, Cornell Law School). In 1958, The NAACP v. Patterson ruling established this precedent. In response to Alabama’s aims to limit the NAACP’s business within the state, the Supreme Court ruled that it was “the right of petitioner's members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment” (Oyez). Furthermore, the court asserted that freedom of association was undoubtedly covered by the Due Process Clause of the Fourteenth Amendment (Oyez), which asserts no individual may be “&quot;deprived of life, liberty or property without due process of law.” The court additionally demonstrated the First Amendment to protect free association, Justice Marshall Harlan claiming “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” Thus, while the right to free association is not explicitly described by the Constitution, as witnessed in NAACP v. Patterson, it is upheld by American constitutional law.<br /> <br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> Since the 1950s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in ''NAACP v. Alabama'' that the NAACP cannot be forced to submit a membership roster to a state government. In 2000, in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association. <br /> <br /> In ''Roberts v. US Jaycees'', an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.” <br /> <br /> Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in NAACP v. Button, “It is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.”<br /> <br /> ===Are there any exceptions in American law to this right?===<br /> Yes. As seen in ''Roberts v. US Jaycees,'' the right may be weighed against other state interests, especially when the association in question is neither expressive nor intimate. In that case, free association rights were curtailed to ensure adherence to non-discrimination laws.<br /> <br /> Additionally, a significant exception to free association rights in the United States is witnessed through legislation regarding political parties. Furthermore, while one has the liberty to vote with, join, and create independent political parties, upheld by the William V. Rhodes ruling, the state can still regulate these parties if they violate other aspects of the Constitution. For example, in New York State Board of Elections vs. Lopez Torres, the court claimed, <br /> <br /> <br /> A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform. These rights are circumscribed, however, when the state gives a party a role in the election process...Then for example, the party’s racially discriminatory action may become state action that violates the Fifteenth Amendment<br /> Demonstrated by New York State Board of Elections vs. Lopez Torres, if a party associates with discriminatory or racist behavior, it cannot be involved in the state’s election process, demonstrating a limitation on free political association. <br /> <br /> Additionally, sections of the Federal Election Campaign Act are often interpreted to be exceptions to free association, as they require the public disclosure of individuals’ political donations. This position was echoed by the Buckley v. Valeo ruling, where the Supreme Court argued that new campaign finance laws, “impose significantly more severe restrictions on protected freedom of political expression and association than do its limitations on financial contributions.” Thus, witnessed by Buckley v. Valeo, campaign finance laws may be interpreted as an exception to free association, as one cannot privately financially contribute to the political party they associate with. <br /> <br /> Within universities, freedom of association, specifically the right to associate as an exclusive religious group, may be regulated by anti-discrimination clauses. This was observed in Christian Legal Society v. Martinez, where the court ruled in favor of Hastings’ College of Law’s anti-discrimintation policies, which prohibited Christian student group’s from excluding non-christians. Therefore, on university campuses, individuals must be able join any student group, regardless of their religious association. Ultimately, this decision restricted the parameters of free association, as one cannot actively discriminate on the basis of it. <br /> <br /> Consequently, decided by Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, certain groups can legally exclude individuals from associating with them. Furthermore, if an individual’s beliefs do not coincide with the group’s mission, the individual may be prohibited from membership. Specifically, the court claimed that by mandating the Boston Veterans’ Council to include Gay, Lesbian, and Bisexual individuals in their parade, the Massachusetts State Court, “violates the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.” Thus, while still restricting free association, the ruling counters Christian Legal Society v. Martinez, as individuals can be restricted from associating with certain groups if it is deemed that their identity does not conform to the group’s platform.<br /> <br /> Ultimately, these exceptions arise from the implicit nature of the freedom of association within the Constitution, as what qualifies as “association” is highly subject to interpretation by Supreme Court justices. For this reason, depending on who is sitting on the bench, freedom of association can be left unchecked or potentially be highly restricted.<br /> <br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> Yes. It is protected explicitly in documents such as the Universal Declaration of Human Rights, the European Convention on Human Rights, and the American Convention on Human Rights.<br /> <br /> Specifically, free association is upheld by Article 11 of the European Convention on Human Rights, which claims, “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”Additionally, it is enshrined in Article 20 of the Universal Declaration of Human Rights, which claims “ Everyone has the right to freedom of peaceful assembly and association; No one may be compelled to belong to an association.” In Article 22 of the International Covenant on Civil and Political Rights, the rights to association are specifically outlined, as it upholds “In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Lastly, The International Labor Organization similarly supports freedom of association in the 1998 Declaration on Fundamental Principles and Rights at Work, which asserts that all members have “freedom of association and the effective recognition of the right to collective bargaining;”<br /> <br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> The Five Precepts of Buddhism condemn activity relating to “sexual misconduct, falsehoods, and intoxicants” (Peek,529), possibly limiting the ability of individuals to associate with certain behaviors or activities. While Buddhism does warn against disobeying the Five Precepts, as this may result in bad Karma, it ultimately asserts that it is the choice of the individual to decide whether or not they wish to follow the declarations of the Five Precepts (Peek, 529). Furthermore, Buddhism’s focus on moral authority, in which the individual is not subordinate to the Five Precepts, can be interpreted as allowing individuals freedom in regards to association. Demonstrated by this, although Buddhism provides guidelines for what followers ought to avoid associating with, these are merely suggestions. Thus, emphasizing the freedom of the individual, Buddhism can be seen to support the right to free association.<br /> <br /> Though, the traditions of Buddhist monks reveal how certain Buddhist practices restrict freedom of association. As explained by Holmes Welch, “According to the Buddha’s rule, when people become monks and nuns they lead a collective life. Not only is there no private property, but there is no thought for oneself. To take thought for oneself is to keep hold of the ego” (Welch, 146). Noted by Welch, upon entering monastic life, Buddhists are expected to relinquish all previously held associations. Therefore, observed through the expectations of monks, elements of Buddhism confine free association. <br /> <br /> Additionally, through the Eightfold Path, the eight practices Buddhists are expected to follow on their journey to nirvana, certain behaviors are limited. For example, when following the Eightfold Path, individuals are restricted from making a living off selling animals, weapons, meat, poison, and liquor (Tilakaratne, 48). Condemning certain professions and ways of life, Buddhism again appears to limit the associations of its followers, undermining the strength of the freedom of association within the belief system.<br /> <br /> Looking to Buddhist leaders, freedom of association is ultimately upheld. For example, in a 1993 Washington address, the Dalai Lama demonstrated his admiration for the principles of democracy, particularly the liberties, such as freedom of association, it guarantees to civilians. The Dalai Lama asserts, “Irrespective of whether we are rich or poor, educated or uneducated, belonging to one nation or another, to one religion or another, adhering to this ideology or that, each of us is just a human being like everyone else.” Through his words of acceptance, the Dalai Lama conveys that Tibetan Buddhism supports the ability to freely associate with many identities. Thus, while the Five Precepts, monastic codes, and Eightfold Path appear to restrict the liberties of followers, the Dalai Lama’s words affirm them.<br /> <br /> ====Platonism====<br /> ====Aristotelian thought====<br /> Aristotle, in his book Nicomachean Ethics, wrote that “Friendships are also important parts of our childhood and adult experience. Without them, we struggle to discover, shape, and pursue our ideas of what constitutes a good life. But, again, friendships can take many forms for many reasons, not all of which are grounded in mutual affection and convivial warmth” (Brownlee and Jenkins 2019). Friendships here form the basis of our associations in life; he ultimately argues that we as humans require association and assembly in our lives. <br /> <br /> Aristotle argues that not all forms of association are political, particularly those that stem from material needs, including family, the market, and alliances for mutual defense/benefit- these can be organized into libertarian and capitalist principles. According to one’s needs, individuals are free to associate and disassociate within their own means of persuasion and trade, and none of this is political- or in other words, the government should have no business with the private associations of the people (Johnson 32, 2001). Regarding politically, he further argues that “It is not the case . . . that people come together for the sake of life alone, but rather for the sake of living well” (3.9.1280a31) and “the political community must be set down as existing for the sake of noble deeds and not merely for living together” (Johnson 32, 2001). He takes a stance against the dominance of individuals associating merely for political protection and gain, but he believed that the state should do more in its concern for the citizen, encouraging virtue and discouraging harm and vice (Johnson 32, 2001). He argues that the best political regime best delivers the “good life-” production and distribution of goods, both goods of the body and of the soul. Within this theory, Aristotle considers the production and distribution of bodily goods as private and the production and distribution of spiritual goods as public: “The primary goods of the soul are (1) moral and intellectual virtue, which are best produced by public education, and (2) honor, the public recognition of virtue, talent, and service rendered to the city. The principle of distributive justice is defined” (Johnson 38-39, 2001). Aristotle’s theory about freedom of association is that political associations’ ultimate goal is to help foster the virtues that are necessary in the pursuit of justice and happiness; therefore, “no legitimate regime can be indifferent to the virtue of the citizens” (Johnson 44, 2001). The polis is both the most inclusive and authoritative community according to Aristotle, seeing as Aristotle's polis is a mixed concept, fusing the political state with civil societal attributes including economic, religious, and other forms of association” (Miller 878, 1996).<br /> <br /> ====Ancient Chinese Philosophy====<br /> Various schools of Chinese Philosophy contribute to society’s understanding of the right to free association.<br /> <br /> Legalism, with its adherence to strict punishments for any violation of the law, limits the liberty of citizens to freely associate. At its core, Legalism restricts the ability of citizens to act freely, as under the philosophy individual’s lives become entirely controlled by administrative acts (MacCormack, 62). Furthermore, the legalist state was not concerned with the liberties of civilians. Rather, legalists focused their efforts towards strengthening the economic and military strength of the state through authoritarian power (MacCormack, 63). Thus, in the school of Legalism, there is little tolerance for associations that counter the laws of the state, undermining the right to free association.<br /> <br /> Consequently, Confucianism emphasizes the ability of citizens to rebel against the emperor (Peek, 523). This bolsters the right to free association, as individuals are encouraged to join other political parties in the face of an unjust regime. <br /> <br /> Though, more similarly to Legalism, additional elements of Confucianism vastly undermine the right to free association. As Confucianism evolved, the belief system began to emphasize a strict code of ethics, creating a rigid social structure (Peek, 532). This limited the ability of followers to freely associate, as they were confined to following a strict code of behavior. Thus, while Confucianism initially appears to support the right to free association, its development as a belief system has constricted the liberties of followers.<br /> <br /> While Taoism does not discredit the right to free association, it does weaken the importance of associations as a whole. Advocating that individuals put aside their distinguishing characteristics, Taoism stresses that there “is one underlying and uniting all phenomena” among human beings (Chan, 316). Furthermore, Taoists argue that human beings must transcend their personal distinctions, diminishing the value of individuals’ associations. Thus, while Taoism does not proclaim individuals should not be able to associate themselves with certain groups, it does argue that associations are ultimately meaningless.<br /> <br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought==== <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> Restricting certain groupings and gatherings that are involved, or likely involved in crimes as was seen with the response to the formation of the Ku Klux Klan as a vigilante association, is a typical exception to the right of freedom of association (Australian Law Reform Commission 2016). In response to the crimes committed by the organization, Congress passed a Force Act in 1870 and the Ku Klux Klan Act in 1871, which authorized the suppression of disturbances to the peace by force (Gruberg). This was in effort to stop terrorist organizations through heavy punishments, such as the suspension of habeas corpus under these acts. These acts were eventually found by the Supreme Court to be unconstitutional and were repealed; however, although direct restrictions upon the group (who was behind the 1963 bombing of a black church in Alabama, numerous murders including that of three civil rights workers in 1964 Mississippi, and other criminal efforts to impose white supremacy on the masses and restrict the rights of African Americans) and its freedom of assembly and association have not been able to lawfully prevent such crimes in the name of violations of the freedom of association, modern civil rights laws and increased national surveillance by the Federal Bureau of Investigation have indirectly impacted the KKK’s and other criminally-involved groups’ (such as terrorist groups like ISIL) freedoms of association and assembly. The First Amendment of the US Constitution grants the right to “peaceable assembly,” and any indication of unpeaceable assembly warrants government interference. When also the association infringes upon another group’s freedoms of association, endangers public safety and order, or does not benefit/or harms social need, as can be seen with the efforts of the KKK to restrict black Americans rights to vote and peaceably assemble, necessary limitations are placed upon the right. <br /> <br /> In terms of certain limitations on peaceable assembly, the government has the right to limit this freedom based upon “time, place and manner” restrictions: “Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity (O'Neill). These restrictions come in many forms including imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property. ” These limits ultimately regard the facilitation of legitimate regulatory goals, such as preventing traffic congestion or preventing interference with nearby activities.<br /> <br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> The freedom of association is derivative from the First Amendment which guarantees the freedoms of speech, assembly, and petition (Hudson 2020). These freedoms of speech, assembly, and petition all form sub-categories of the freedom of association. Collectively, this right permits a group to act in the collective interest of its members and to maintain private associations and assemblies without government interference. The legal problems regarding its practice have only recently arisen- particularly from the loyalty investigations of the Communist Party membership and a series of other cases in the 1950s and 1960s in relation to the activities of the National Association for the Advancement of Colored People (Cornell Law School Legal Information Institute 2020). For example, in 1958, with the case of the NAACP v. Alabama, the right to freedom of association was strengthened and supported by the Supreme Court who ruled in favor of the NAACP’s decision to withhold a list of members in the organization from the government (Hudson 2020). In response to Brown v. Board of Education 1954, Alabama authorities was closely investigating the NAACP under the foreign corporation law. The NAACP complied with the state’s request of its business records, including its charter and list of organizational officers and staff. They refused, however, to give lists of rank-and-file members due to confidentiality, potential economic reprisal attacks, and potential repression. Giving up the lists, civil rights activists said, would dissuade members and potential recruits from associating with the organization, ultimately violating their right of association. <br /> <br /> Prior to this case the Court had supported a stronger suppression of the freedoms of association and assembly regarding organizations that were alleged to be involved in subversive and unlawful activities. In 1928’s New York ex rel. Bryant v. Zimmerman and 1951’s Dennis v. United States the Court had ruled in favor of government efforts to restrict and limit the rights of assembly and speech of both the KKK and the Communist Party (U.S. Supreme Court 1928, 1951). In this case, however, the Court said NAACP did not cause harm to government or society, and they had complied with the demands of the Alabama government sufficiently; therefore they were justified and protected by law in their decision to withhold membership lists. <br /> <br /> Later, in the 1967 case of United States v. Robel in which Eugene Robel, an inactive member of the Communist Party, was charged with violating the Subversive Activities Control Act when he continued his work at the Todd Pacific Shipyards, a location that was deemed by the Secretary of Defense to be a defense facility (U.S. Supreme Court 2020). Under the Act, his actions was illegal due to his membership to the Communist Party and members of the Party’s legal inability to remain employed at a location deemed a “defense facility”. The Supreme Court ruled that the “defense facility” employment provision was an unconstitutional abridgment of the right of association regardless of its application solely to active Party members. Chief Justice Earl Warren wrote that the provision was overbroad while Justice William J. Brennan added that the designation of defense facilities being a power given to the Secretary of Defense was unconstitutional because the Act provided no meaningful standards for the Secretary to follow. This case was a milestone because, once tested, the Court upheld the broad freedoms of association and continued the prohibition of government interference and bias towards any individual based upon an affiliated association. Later cases regarding the Bar examine and admission to the bar further backed this right. In 1971’s Baird v. State Bar of Arizona and Law Students Research Council v. Wadmond, the Supreme Court established that the government could only deny admission to the bar if an applicant’s membership in a group advocating overthrow of the government (such as the Communist Party) was legitimately coupled with the specific intent to achieve that end (U.S. Supreme Court 1971).<br /> <br /> These cases established that organized groups in association that gather in efforts to advance political, economic, religious, or cultural matters may gather without government interference (and particularly without government knowledge of listed members) unless the group explicitly poses a threat to society or engages in criminal activity. <br /> <br /> Under American jurisprudence, permissible exceptions to the freedom involve matters of internal affairs such as discrimination cases. In the 1976 case of Runyon v. McCrary, discrimination based upon race was established as a limitation to a body’s freedom of association after two children were denied access to certain private schools in Virginia as a result of the schools’ admitted segregationist school policies (U.S. Supreme Court 1976). Later, in the Roberts v. United States Jaycees court case of 1984, the court ruled that the Jaycees, an organization of young business leaders that only fully accepted male members and who claimed that the anti-discrimination laws that forced them to accept qualified women was a breach of their freedom of association, lacked “the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women,” ultimately prohibiting their exclusion of women (Bernstein 2020). <br /> <br /> Also, if the state has a compelling interest, it can justifiably limit associations’ rights to organizational autonomy (Alexander 2008, 14). Here, the state would be setting limits and requirements for how a group is organizationally run and made up. By giving an organization a quota, the state forces a particular pattern of inclusion that is in the public interest. For example, the US government is permitted to work to create less segregated schools, involving programs like the Moving to Opportunity (MTO). It is permitted to do in efforts to promote certain patterns of inclusion and acceptance within communities and associations (U.S. Department of Housing and Urban Development 1992).<br /> <br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> In Article 22 of the UN’s International Covenant on Civil and Political Rights (ICCPR), the right to freedom of association is granted to all, including joining trade unions (United Nations 1966). Restrictions can only be placed on this right if the restrictions are prescribed by the state’s law and “are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.” Similarly, in Europe, derogations are permissible only when “prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others” as is stated in Article 11 of the European Convention on Human Rights (European Court of Human Rights 1953, 12). And Article 16 of the American Convention on Human Rights mirrors the decree of the ICCPR (Inter-American Commission on Human Rights 1969).<br /> <br /> Regarding the International Labour Organisation (ILO) and its adoption of Freedom of Association and Protection of the Right to Organize, this body is in place to protect the labor interests of those around the world, and they are prohibited by international law to formulate and/or apply law so as to prejudice against any group (Swepston 1998, 172).<br /> <br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> <br /> Freedom of association is an essential facet of modern democracy, yet it is often overlooked in political discourse on the natural rights and liberties of the citizen. This could be due to the fact that freedom of association and assembly are often so closely related to freedoms of speech and expression, or it could be because it is so difficult for political theorists to decide which association should be allowed and which can be justifiably restricted. Whatever the case, the debate over exceptions to the right of free association continues to change and evolve even in the modern era.<br /> <br /> John Locke is one of the earliest proponents of natural right theory; his second “Treatise on Government” famously outlines humankind’s three essential rights to life, liberty, and property (Locke, “Treatise on Government”). He does not specifically mention people’s freedom of association, but scholars point to his writings on religious assembly as an indication of his stance on the right. In a George Mason University publication, Eric Claeys refers to a passage from Locke’s “Letter Concerning Toleration,” which states that a church is simply a “free and voluntary society” (Locke, “A Letter Concerning Toleration”), saying that “if one reads the same passage from the Letter with an eye toward issues about associational freedom, Locke is making a far more radical point: All private societies, churches and otherwise, deserve a presumption of associational freedom” (Claeys, “The Private Society and the Liberal Public Good in John Locke’s Thought”). In light of Claeys’ assessment, it is easy to observe Locke’s thoughts on the freedom of association in the constitution that he wrote for the Carolina Colony in 1669. For example, Article 103 of this document states that “no person whatsoever shall speak anything in their religious assembly irreverently or seditiously of the government or governors, or of state matters” (Locke, “The Fundamental Constitutions of Carolina: March 1, 1669”). This reveals a reluctance on Locke’s part to allow any association of citizens to gather in opposition of the established government, perhaps because he understands the potential threat that this could pose to political society. His position on the freedom of association is made all the more clear in his 108th Article, which stipulates that “assemblies, upon what presence soever of religion, not observing and performing the above said rules, shall not be esteemed as churches, but unlawful meetings, and be punished as other riots” (Locke, “The Fundamental Constitutions of Carolina: March 1, 1669”). The “above said rules” to which Locke refers consist mostly of provisions to ensure free membership and movement between various religious establishments, but the classification of non compliant assemblies as “unlawful” or “riots” implies a Locke’s hesitation to allow totally free and unrestricted assembly.<br /> <br /> Subsequent political theorists built upon Locke’s theory of rights and liberties, and a number of them elected to deal with the right to freedom of association more directly. The United States Constitution, much of which rests upon Lockean political theory, is one of the first documents to directly address freedom of assembly in its text. Perhaps the buildup to the American Revolution, in which groups like the Sons of Liberty and the Stamp Act Congress were outlawed and broken up by the British government, affected the Constitutional Convention’s decision to include assembly in the Bill of Rights. The Constitution’s First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” (The Constitution of the United States of America). The Constitutional Convention, led by prominent statesman James Madison, used the word peaceably to signal that citizens were not entitled to the complete freedom of assembly if such activity could potentially generate violence or unrest (Law Library of Congress, “The Right to Peaceable Assembly”). The Cornell Law Review writes that this guarantee gradually came to protect citizens’ rights to participate in organizations that regularly utilize their members’ constitutional rights to freely assemble and petition the government. It states that over time, “Supreme Court decisions gradually determined that “the right of association is derivative from the First Amendment guarantees of speech, assembly, and petition” (Legal Information Institute, “Right of Association”). While Madison and his colleagues did not directly address freedom of association in the Constitution’s text, they did lay the groundwork for its realization years later.<br /> <br /> French diplomat Alexis De Tocqueville traveled to the United States in the early 1800s in order to observe the country, and in 1835 he published his findings in his first volume of Democracy in America. In this work the Frenchman sung praise for the American system of government, applauding it for spreading liberty and freedom within its borders. However, even de Tocqueville understood the danger inherent in the guarantee of totally unrestrained freedom of association. Linking the freedom of association to such constitutional rights as the freedom of petition and freedom of the press, he writes that “it cannot be denied that the unrestrained liberty of association for political purposes is the privilege which a people is longest in learning how to exercise. If it does not throw the nation into anarchy, it perpetually augments the chances of that calamity” (De Tocqueville, Democracy in America). De Tocqueville goes on to explain that American association is generally peaceful because citizens tend only to use it to oppose political groups, but he nevertheless must address the danger inherent in the guarantee of unrestricted freedom of association. Even in what he sees as a most ideal form of government, the Frenchman recognizes the risks inherent in unrestricted freedom when it comes to assembly and association.<br /> <br /> Decades later, John Stuart Mill came to a similar conclusion in his 1859 work, On Liberty. Mill was familiar with the American system of government, as evidenced by his mentions of American religious toleration and prohibition of “fermented” drinks, so it is possible that his thinking was influenced in some way by Madison’s work on the Constitution (Mill, “On Liberty”). In his work, Mill advances the theory that humans band together solely for the purpose of protection, and that therefore we can never have the authority to restrain others’ liberty. However, he notes that “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others” (Mill, “On Liberty”). Later on, he explicitly asserts that “freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (Mill, “On Liberty”). Clearly, Mill is aware of the dangers implicit in the creation of total freedom of assembly, and he agrees with the Constitutional Convention that this important right can permissibly be subject to certain regulations and limitations.<br /> <br /> The political and philosophical debate over freedom and association and its acceptable limitations evolved dramatically in the United States in the late nineteenth and early twentieth centuries. Writing just over a century after Mill, First Amendment scholar Thomas Emerson produced an article entitled “Freedom of Association and Freedom of Expression,” in which he addresses a number of issues relating to freedom of association by assessing court precedents and the lessons of history. Like the documents from Mill and Madison, Emerson’s article holds that complete freedom of association would be detrimental to society. Using the example of an organization whose sole aim is to perpetrate a successful bank robbery, Emerson points out that “some types of association need, and are entitled to, greater protection than others” (Emerson, “Freedom of Association and Freedom of Expression,”). He goes on to state that “the legal doctrine that protects associational rights must be able to distinguish between them and to afford the required measure of protection in each case” (Emerson, “Freedom of Association and Freedom of Expression”). Taking into account twentieth-century court decisions, Emerson explains that “the Supreme Court, in recognizing an independent &quot;right of association,&quot; has undertaken to give that right constitutional protection primarily through application of a balancing test” (Emerson, “Freedom of Association and Freedom of Expression”). <br /> <br /> This balancing test is incredibly important in determining the constitutionality of certain restrictions on citizens’ association because it must avoid violating citizens’ unequivocal right to free expression while still preventing the perpetration of unlawful action (Emerson, “Freedom of Association and Freedom of Expression,”). The case of NAACP v. Alabama is one case in which the Supreme Court attempted to find this balance. This instance in which the NAACP argued that the state of Alabama could not constitutionally require the organization to disclose a list of its members, proved incredibly important to our modern understanding of the right to association. Writing the majority opinion, Justice John Marshall Harlan II explained that “it is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment” (Franklin, “NAACP v. Alabama”). This differed from other contemporary cases, such as New York ex. rel Bryant v. Zimmerman, in which the Supreme Court had ruled in favor of the state’s ability to restrict association related to the Ku Klux Klan. The difference, Harlan explained, was that unlike the KKK, the NAACP did not present a threat to society. For this reason, the organization and the members involved were protected under the First Amendment’s protection of citizens’ freedom to peaceably assemble (Franklin, “NAACP v. Alabama”). Harlan, like Madison, Locke, and Mill, understood the importance of restricting free association in order to preserve the peace in society.<br /> <br /> The right to free association is famously difficult to address because the general consensus is that association should not be completely free. For that reason, political theorists and philosophers have gone to great lengths over the centuries to define exactly when and why free association should be limited or left alone. The general consensus is that assembly and association are detrimental to society when they lead to violence or unrest, but as with other rights it is difficult for theorists to decide exactly what criteria turn a given gathering from an expression of free assembly into a potential threat to civil society.<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> <br /> Philosophers and political theorists generally agree that it is sometimes necessary to curtail free association, but this agreement does not answer questions of which forms assembly and association can permissibly be restricted, how they should be limited, or who should control their regulation. It often falls to the government to decide when to step in during times of popular uprising or violent protest, but history also shows a number of instances in which private actors have curtailed citizens’ right to free association or assembly.<br /> <br /> The most common way for private actors can curtail free association is by prohibiting assembly and demonstration on their privately-owned property. In U.S. law, there exists a precedent that protects citizens’ right to free association on public property precisely because the right is not guaranteed when it is practiced on private property. This doctrine was first introduced in 1936, when Jersey City mayor Frank Hague issued an ordinance prohibiting members of the Committee for Industrial Organization (CIO) from gathering in a public space and distributing “communist” literature (Garcia, “Hague v. Committee for Industrial Organization,”). The CIO, with the help of the American Civil Liberties Union, successfully argued that the New Jersey ordinance was unconstitutional under the First Amendment. Hague appealed to the Supreme Court, which upheld the original decision and struck the ordinance down (Garcia, “Hague v. Committee for Industrial Organization,”). Justice Owen Roberts justified the decision for Hague v. Committee for Industrial Organization by likening public spaces such as streets and parks to public forums, in which the free flow of ideas and discourse must be protected under the First Amendment. He made this ruling because he recognized that private actors retained the right to curtail citizens’ right to association when that association occurred on private property. In order to preserve the right to peaceable assembly, the Court’s decision set the precedent for the “public forum” doctrine, which continues to protect the right to association in public spaces to this day (Garcia, “Hague v. Committee for Industrial Organization,”). Writing for The First Amendment Encyclopedia, David Hudson writes that “in the Court’s forum-based approach, the government can impose reasonable time, place, and manner restrictions on speech in all three categories of property, but has limited ability to impose content-based restrictions on traditional or designated public forums” (Hudson, “Public Forum Doctrine | The First Amendment Encyclopedia,”). The doctrine specifically aims to protect peaceful association on public property because the right is not guaranteed when assembly occurs on private property.<br /> <br /> One example of a private actor using its ownership of property to curtail free association can be observed in the 1994 case of Madsen v. Women’s Health Center, Inc. In this case, the Aware Woman Center for Choice in Melbourne, Florida filed a suit against anti-abortion protestors who had been blocking entrances to the building, harrassing abortion patients, and demonstrating outside of staff members’ homes (“Madsen v. Women's Health Center, Inc.”). A court order was issued, ordering protestors to refrain from trespassing on Center property, blocking its entrances, and abusing staff and patients. When the court order was violated, the “the court created a 36-foot buffer zone around the clinic entrances and driveways (including the public sidewalk) within which all antiabortion speech was banned. It also prohibited excessive noise and images that patients could see or hear during surgery and recovery” (“Madsen v. Women's Health Center, Inc.”). The Supreme Court later upheld the buffer zone rules, but struck down the prohibition of protestors’ practice of showing images to clients. It also ruled that the Florida court’s 300-foot buffer zone that prohibited protestors from approaching clients and staff at the Center and at their homes was too restrictive of First Amendment rights (“Madsen v. Women's Health Center, Inc.”). The ruling, according to Chief Justice Rhenquist, sought to preserve protestors’ right to association and assembly while still protecting the patients and clients from intimidation and abuse (“Madsen v. Women's Health Center, Inc.”). It also serves as a reminder that private citizens still reserve the right to curtail free association if said association makes them feel unsafe or threatened.<br /> <br /> Both the Madsen and Hague cases illustrate that judges, in particular, have immense power to determine the breadth of citizens’ right to freedom of association as guaranteed in the First Amendment. For example, in the case of Ward v. Rock Against Racism, the Supreme Court determined that free expression in the form of a rock concert in New York’s Central Park could be subject to volume regulations under the First Amendment (O'Neill, “Time, Place and Manner Restrictions”). This decision, written by Justice Anthony Kennedy, led to the creation of a test to determine whether assembly and expression could be restricted. The test asks whether the regulation is “content neutral,” whether it is “narrowly tailored” to fit a specific governmental interest, and whether it still provides ample opportunity for the message to be communicated (O'Neill, “Time, Place and Manner Restrictions”). If a regulation passes all three prongs of this test, then it can legally restrict or control the time, place, or manner in which assemblies like protests are carried out. The Law Library of Congress writes that since Kennedy’s decision, “the Supreme Court has held that it is constitutionally permissible for the government to require that a permit for an assembly be obtained in advance” (“Right to Peaceful Assembly: United States | Law Library of Congress”). Kennedy’s ruling also allows the government to “make special regulations that impose additional requirements for assemblies that take place near major public events” (“Right to Peaceful Assembly: United States | Law Library of Congress”). This legal doctrine has significantly shaped the way in which state and federal governments treat freedom of association and the right to peaceable assembly. While the Supreme Court can hardly be considered a private actor, Justices like Kennedy rely on personal study and private experience to create policy that affects American freedom of association as a whole.<br /> <br /> Citizens within a political society have the right to free association as long as it is peaceable and does not infringe upon others’ rights or liberties. This principle lends itself to a number of complexities because its parameters for free association are so vague, but over the past few centuries the United States has worked to define when and how private actors can curtail others’ right to free association. The result is that the Supreme Court, and the justices that make it up, have set out precedents that test whether certain forms of association are constitutional and which ones can justifiably be restricted. The definition of public spaces as areas of free association and creation of buffer zones for private properties represent significant steps forward in this effort.<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> <br /> The right to freedom of association is not an absolute right because it is subject to certain limitations. Political thinkers and legal experts generally agree that assembly and association can be justifiably restricted if it conflicts with other citizens’ security, liberty, or property. Another case in which the right is subject to certain limitations is in a case of emergency or long-run disaster. Recent history shows a number of instances in which the U.S. government has justified the restriction of the right to free association during times of war and natural disaster. Interestingly, it did not effectively curtail citizens’ right to free association during the recent COVID-19 pandemic.<br /> <br /> Freedom of association most often restricted in the event of war. In his work, “The Forgotten Freedom of Assembly,” Washington University scholar John D. Inazu briefly explores the effect that World War I had on citizens’ right to gather and discuss the country’s affairs. He writes that during the late World War I years, “the freedom of assembly was constrained by shortsighted legislation like the Espionage Act of 1917 (and its 1918 amendments) and the Immigration Act of 1918, and the Justice Department’s infamous Palmer Raids in 1920” (Inazu, “The Forgotten Freedom of Assembly”). William Riggs of the First Amendment Encyclopedia similarly notes that the Vietnam War era, in particular, saw drastic reductions in Americans’ rights to peaceable assembly and association. He writes that “the war in Vietnam quickly became the focus of major protests that resulted in increased government attempts to limit First Amendment protections. These efforts mostly dealt with the right to assemble and what constituted appropriate free speech criticism of the war” (“Vietnam War | The First Amendment Encyclopedia,”). The U.S. government broadly justified these restrictions by arguing that they were made in the interest of national security, claiming wartime as an acceptable time for the limitation of free association.<br /> <br /> Recently, the United States government has also walked back citizens’ right to freedom of association when dealing with natural disasters. A 2020 Congressional report on First Amendment rights during the COVID-19 pandemic notes that when public health and safety are at risk, the government is justified in its restriction of certain freedoms to widely assemble as long as these regulations aim to protect citizens’ essential rights, such as those to life or property. It notes that the government is justified in restricting freedoms of association at certain times of the day, as long as this action is taken with the explicit purpose of protecting citizens from further harms. “For example,” it says, “in upholding a county curfew following Hurricane Andrew, the Eleventh Circuit asked only whether the government (1) took that action in “good faith,” (2) with ‘some factual basis’ that the restrictions were ‘necessary to maintain order’” (Killion, CRS Report, “U.S. Library of Congress”). The report argues that “curfews, increased “police powers,” and other measures that are considered “essential to the public safety [and] health” all constitute acceptable restrictions of First Amendment rights-such as the right to freedom of peaceable assembly- during times of natural crisis (Killion, CRS Report, “U.S. Library of Congress”).<br /> <br /> The recent COVID-19 crisis created another instance in which citizens’ right to freedom of association was called into question. The pandemic caused widespread and dramatic change within global society as the country entered a state of total lockdown, and in the process it raised a number of legal, moral, and philosophical questions about association and assembly. In June 2020, for example, plaintiffs Ron Givens and Christine Bish filed a lawsuit against California State officials after being denied permission to hold a protest outside the California State Capitol building. The assembly, which aimed to protest the state’s response to the COVID-19 pandemic, was not allowed to take place because of the potential health risks it would create. In response to this denial, the Department of Justice filed a Friend-of-the-Court brief which argued that California’s de facto ban on public demonstrations directly conflicts with First Amendment guarantees and should therefore be struck down (“Department of Justice Files Friend-of-the-Court Brief in Support of Free Speech Challenge to California's COVID-19 Ban on In-Person Political Protests,”). The debate over pandemic restrictions and First Amendment rights became even more heated as the Black Lives Matter Movement sparked major demonstrations in major cities all over the country as citizens gathered to protest police actions in the murder of George Floyd. An MSN report on the protests in Boston notes that “Black Lives Matter Boston and Violence in Boston, two activist organizations who are expected to hold a protest in the city Tuesday evening, urged anyone who is at high risk due to COVID-19 to stay home. Organizers also asked participants to wear gloves and masks and bring hand sanitizer” (“Protesting amid the coronavirus crisis: Massachusetts officials say they respect demonstrators' 1st Amendment rights, urge them to take health precautions though,”). The DOJ’s Friend-of-the-Court brief, in addition to reports on the Boston protests, indicate that the U.S. government has largely decided to allow citizens to exercise the right to free association and assembly, despite the potential danger it could pose.<br /> <br /> The right to freedom of association is subject to a number of limitations. Periods of war, natural disaster, and global pandemic all create conditions in which the United States has considered placing restrictions on the right to peaceable assembly. In the two former cases, it has generally been able to regulate its citizens’ exercise of their right to freely associate with one another. However, the COVID-19 pandemic has shown that while the government may seek to limit its citizens’ assembly, it is not always able to enforce its regulations.<br /> <br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Expression&diff=208 2020-07-13T14:42:27Z

<p>Ksandlund: /* Ancient Chinese Philosophy */</p> <hr /> <div>==History==<br /> ===What is the oldest source in any country that mentions this right?===<br /> <br /> The ancient Greeks within the Athenian Democracy, using the words “parrhesia” and “isegoria” (dating back to the fifth century BCE) were the first to emphasize the freedom to speak candidly and to &quot;say what one pleased&quot; a subset of freedom of the future declaration of freedom of expression (Bejan 2019, 97). The freedom of expression is imperative to democracy as it “refers to the ability of an individual or group of individuals to express their beliefs, thoughts, ideas, and emotions about different issues free from government censorship” (Freedom Forum Institute 2020). From the ancient Greeks, “Parrhesia” specifically describes the freedom to say whatever one pleased, and a similar idea describing freedom of expression, “isegoria,” describes the right of citizens to publicly address and debate against the democratic assembly (Lu 2017, 4). “Isegoria” is derived from the root word “agora” which translates to marketplace, and thus the meaning of this version of freedom of expression addresses that of public speech. This right to “isegoria” was more heavily based in the ideas of equality of all men to have access to the government than for the principles of freedom (Bejan 2017, 99). On the other hand, “parrhesia” held a broader meaning. This idea is more about the right to speak freely or frankly. This word implies a willingness of the speaker to be open, honest, and courageous in dealing with the consequences of the sometimes controversial truth which he spoke while those who listened had to tolerate any offense taken from the speaker. Because of the courage and privilege necessary in truly enjoying “parrhesia,” it describes a form of licensed privilege. After the collapse of the Athenian democracy, however, the fundamental ideas of “parrhesia” are the more common and practiced bases of freedom of expression today in documents such as the American Constitution. “Isegoria” on the other hand took on the form of freedom of speech and debate within the legislative houses of government such as British Parliament and American Congress. <br /> <br /> However, regarding modern history, the first legal document to declare these rights to freedom of expression was the English Bill of Rights in 1689 by William III and Mary II after the Glorious Revolution. This document outlined civil and human rights that were to be enjoyed by all men, and the document gave Parliament power over the monarch, increasing the amount of power given to the people.<br /> <br /> ===What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE===<br /> ====Afghanistan====<br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> National Constitution (1853)<br /> <br /> ====Armenia====<br /> ====Australia====<br /> The Constitution does not explicitly protect freedom of expression, but in 1992 the High Court of Australia ruled in favor of political expression, setting a precedent and implying freedom of expression<br /> <br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> ====Brazil====<br /> Brazil’s seventh Constitution (1988)<br /> <br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> Canadian Charter of Rights and Freedoms (1982)<br /> <br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> The Constitution of the People’s Republic of China (1982)<br /> <br /> ====Colombia====<br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> Declaration of the Rights of Man and of the Citizen (1789)<br /> <br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> Weimar Constitution of 1919<br /> <br /> ====Ghana====<br /> 1992 Constitution of Ghana<br /> <br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> The Constitution of India Bill (1895)<br /> <br /> ====Indonesia====<br /> 1945 Constitution<br /> <br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> ====Israel====<br /> Loosely defined by the Declaration of the Establishment of the State of Israel and rulings by the Israel Supreme Court<br /> <br /> ====Italy====<br /> Constitution of 1948<br /> <br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> 1947 Constitution<br /> <br /> ====Jordan====<br /> ====Kazakhstan====<br /> ====Kenya====<br /> 1963 Constitution<br /> <br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> ====Laos====<br /> ====Latvia====<br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> Mexican Constitutions of 1857 and 1917<br /> <br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> Federal Republic of Nigeria constitution (1958)<br /> <br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> ====Oman====<br /> ====Pakistan====<br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> Constitution of 1993<br /> <br /> ====Philippines====<br /> 1987 Constitution<br /> <br /> ====Poland====<br /> The Little Constitution of 1992<br /> <br /> ====Portugal====<br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> Constitution of Russian Federation (1993)<br /> <br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> National Communications Act of March 2012<br /> <br /> ====South Africa====<br /> South African Bill of Rights of the Constitution (1996)<br /> <br /> ====South Korea====<br /> Constitution of 1948<br /> <br /> ====South Sudan====<br /> ====Spain====<br /> Constitution of 1978<br /> <br /> ====Sri Lanka====<br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> Freedom of the Press Act of 1766<br /> <br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> ====United States====<br /> Declaration of Independence (1776)<br /> <br /> ====Uruguay====<br /> ====Uzbekistan====<br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> <br /> This right is mentioned in several historical noteworthy written sources, some of which include John Locke's extremely influential and fundamental Second Treatise of Government. Along that same vein, noted philosophers have written commentaries on laws, freedoms, and political theory; these include works by Michael Foucault, particularly in his lecture series at Berkeley, Montesquieu in his commentary the Spirit of the Laws, Sir William Blackstone's Commentaries on the Laws of England, and John Stuart Mill's noteworthy work On Liberty. <br /> <br /> Many international treaties, charters, and conventions also work to avidly incorporate the freedom of expression in its foundations. The UN International Covenant on Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights, and the EU Charter of Fundamental Rights.<br /> <br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> The right to free expression is upheld by most countries’ constitutions (World Population Review), though the degree of liberty that comes with entitlements to free expression may differ. Furthermore, a Free Expression Index generated by Pew Research Center demonstrates one method for comparing the strength of free expression internationally (Pew Research Center). In developing the index, Pew surveyed 38 countries on eight questions pertaining to free expression. Pew proceeded to then rank the countries on a scale of zero to eight-eight meaning the country fully supported free expression. From their results, the United States and Canada demonstrated the highest levels of free expression, with scores of 5.73 and 5.08 respectively, while Senegal and Burkina Faso showed the lowest levels of free expression, with scores of 2.06 and 2.94, respectively. Thus, demonstrated by the Pew Research index, while many countries may support free expression within their constitutions, the degree to which free expression is practiced and enforced often varies. <br /> <br /> Consequently, there are still several countries that restrict free expression in their laws. For example, in South Korea, The National Security Law prohibits sharing sympathies towards North Korea (Kolick, Alli; Dehague, Tyler; and Leick, Amber). Additionally, while Afghanistan’s constitution does protect freedom of expression, it does not firmly protect speech when related to “ ‘public spirit’, ‘security’, and ‘public interest’ ” (Ministry of Foreign Affairs - Islamic Republic of Afghanistan). India’s free expression laws likewise are not comprehensive, as the right to free press is not explicitly stated in the Indian Constitution (Kolick, Alli; Dehague, Tyler; and Leick, Ambe). Therefore, while most countries do have some form of free expression within their constitutions, not all free expression clauses clearly outline the rights of citizens; rather, many constitutions explicitly restrict forms of free expression.<br /> <br /> ===Is it contained in the US Constitution?===<br /> <br /> The right to free expression is not stated verbatim in the United States constitution. Though, it is universally accepted to be covered by the First Amendment (American Civil Liberties Union). Furthermore, the First Amendment asserts, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Specifically, the listed rights to free speech, press, assembly, and petition are broadly viewed as Americans’ rights to free expression.<br /> Though, the nature of free expression, as enshrined by the Constitution, has been heavily debated. Some believe that only political speech is protected by the First Amendment (Legal Infornation Institute, Cornell Law School). Others assert that the individual freedoms outlined by the First Amendment should not be grouped together as Americans’ general freedoms to expression. Rather, these individuals argue that the individual freedoms entitled by the First Amendment ought to be addressed as distinct rights (Bogen). Consequently, in 1799, John Hay, in criticizing the Sedition Act, argued that freedom of speech, as entitled by the First Amendment, protects all forms of expression. Specifically, using freedom of the press as an example, Hay asserts that the same degree of freedom is applied to each First Amendment right, stating “To ascertain what the &quot;freedom of the press&quot; is, we have only to ascertain what freedom itself is. For, surely, it will be conceded, that freedom applied to one subject, means the same, as freedom applied to another subject.” Ultimately, Hay’s argument developed the belief in Americans’ general right to free expression, which is still commonly accepted today to be protected by the First Amendment<br /> <br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> <br /> Given that freedom of expression is often used as a blanket term for the numerous rights enshrined by the First Amendment, free speech, press, petition, and association, its parameters are implicit. For example, while the First Amendment does assert the right to free speech, it does not go into detail about the nature or degree of free speech. For this reason, what counts as protected “expression” is implicit. Demonstrated by exceptions, summarized in &quot;Are there any exceptions in American law to this right?&quot;, to the First Amendment, the implications of the right to free expression are often determined by the Supreme Court’s decisions. Furthermore, cases such as Schenk v. United States, Chaplinsky v. New Hampshire, Miller v. California, New York Times Company v. Sullivan, and Central Hudson Gas &amp; Electric Corporation v. Public Service Commission of New York, have created precedents making the parameters of free expression increasingly explicit, as each case demonstrates how certain forms of expression are or are not protected by the First Amendment.<br /> <br /> ===Are there any exceptions in American law to this right?===<br /> <br /> Several Supreme Court cases have placed restrictions on the right to free expression, creating exceptions to the First Amendment. For example, in Schenk v. United States, the Supreme Court ruled that free expression is not constitutionally protected when it will “create a clear and present danger that they will bring about substantive evils that the government has a right to protect.” The qualifications for limiting dangerous speech were later established by Brandenburg v. Ohio, which ruled speech could be prohibited if it was &quot;directed at inciting or producing imminent lawless action&quot; or was “likely to incite or produce such action.”<br /> <br /> Additionally, there is a legal exception for “fighting words”, in that words that “would likely make the person to whom they are addressed commit an act of violence” are not shielded by the First Amendment. This was decided by the Chaplinsky v. New Hampshire decision, where the court upheld that it was illegal for Walter Chaplinsky to call a police officer “a damned Fascist.” <br /> <br /> Another exception to the First Amendment is obscene language. In Miller v. California, the court clarified what qualifies as obscene language, which was described as speech that “To the average person, applying contemporary community standards, appeal to the prurient interest; Depict or describe, in a patently offensive way, sexual conduct, as specifically defined by the applicable state law, and taken as a whole, lack any serious literary, artistic, political, or scientific value.” Therefore, expression that falls under these standards may be regulated. <br /> <br /> Defamation, “a statement that injures a third party’s reputation” (Legal Information Institute, Cornell Law School), is an additional exception to freedom of expression in the United States. The standards for defamation were established in New York Times Company v. Sullivan, which claimed that in order to sue a news outlet for defamation, one must have proof that the outlet was aware of their false claims prior to publishing. <br /> <br /> Lastly, commercial speech may be regulated in order to protect consumers. Furthermore, the standards for commercial speech regulation were created by Central Hudson Gas &amp; Electric Corporation v. Public Service Commission of New York, which created a four part test for determining whether or not the government could limit commercial speech. According to the court, commercial speech is may be regulated only if, <br /> <br /> speech must concern lawful activity and not be misleading; 2. the asserted governmental interest must be substantial. If the first two parts are established, then it must also be determined that: 3. the regulation directly advances the governmental interest asserted; and 4. the regulation is not more extensive than is necessary to serve that interest.<br /> <br /> Ultimately, demonstrated by these numerous cases, although the United States Constitution upholds freedom of expression, there are various exceptions to the First Amendment.<br /> <br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> <br /> For European countries, the right to free expression is entitled by Article 10 of the European Convention on Human Rights, though it is not an absolute law. According to the article, freedom of expression can be restricted if it incites crime or jeopardizes natural security, public health, personal reputations or the authority of the judiciary. Additionally, In Africa, both the African Charter on Human and Peoples’ Rights and the Declaration of Principles on Freedom of Expression assure members of the African Union the right to free expression. In Mexico and South America, the American Convention on Human Rights, also referred to as the Pact of San Jose, upholds the right to free expression. Internationally, the United Nations lists numerous treaties that uphold the right to free expression. Most predominantly, the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) enshrine the right to free expression. Through these various treaties, freedom of expression is upheld by international law.<br /> <br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> The ancient spiritual tradition of Buddhism is rooted in practices and teachings that promote enlightenment and ultimately reaching a state of nirvana or peace. The tradition quickly became a school of thought that heavily influenced east Asian societies and laws. Although, not traditionally accredited to influencing modern Western ideals and expressions of modern democracy and human rights, reform Buddhism does justify human rights law, and particularly the freedom of expression. Although often used synonymously, within the right to freedom of expression, the freedom of speech is an important component that is more directly addressed by the teachings of Buddhism. <br /> <br /> In 2010, the Dalai Lama was awarded a Democracy Service Medal for his commitment to democratic principles and upholding and defending human dignity. The Dalai Lama connects the modern practice of democracy with traditional Buddhist teachings. In his 1993 speech entitled “Buddhism and Democracy,” the Dalai Lama stated, “The institution the Buddha established was the Sangha or monastic community, which functioned on largely democratic lines. Within this fraternity, individuals were equal, whatever their social class or caste origins.” According to this idea of equality, the Buddhist concern for the well-being of all justifies rights to all freedoms of belief, expression and conduct” (Caney 2001, 68). Along the Buddhist ideals of equality and the freedom to exercise control of one’s life paired with the democratic ideals of freedom and commitments to human rights, the two practices are conjoined. And although there is no specific, equivalent word in Buddhism for the word “rights,” rights are understood as a subjective entitlement (Husted, Keown, &amp; Prebish 2012, 20). According to Charles Taylor, in Buddhism, “human rights don’t stand out, as they often do in the West, as a claim on their own, independent from the rest of our moral commitments” (Taylor 1999, 110). These rights are somewhat implicit in understanding the philosophy of Buddhism. <br /> <br /> In reaching enlightenment, one who practices Buddhism is to follow The Eightfold Path – the ultimate guide to life. The Eightfold Path outlines that followers should practice “1. Right understanding and viewpoint (based on the Four Noble Truths), 2. Right values and attitude (compassion rather than selfishness), 3. Right speech (don't tell lies, avoid harsh, abusive speech, avoid gossip), 4. Right action (help others, live honestly, don't harm living things, take care of the environment), 5. Right work (do something useful, avoid jobs which harm others), 6. Right effort (encourage good, helpful thoughts, discourage unwholesome destructive thoughts), 7. Right mindfulness (be aware of what you feel, think and do), and 8. Right meditation (calm mind, practice meditation which leads to nirvana)” (United Religions Initiative 2020). Number 3 on the path outlines the necessity of right speech, which adds a layer of responsibility to the freedom of speech – a component which is not explicitly outlined in most Western descriptions of the right to freedom of expression. Within the Buddhist teachings, lies, half-truths, insults, and gossip are strictly prohibited; ultimately, being truthful is only one component to the freedom of speech, but also non-exploitation of oneself and of others is a central principle to Buddhism (Ekachai 2015). This responsibility is what allows for each person to be not only equal, but also to have the same opportunity and potential to be who and what they desire to be. As a result, the Dalai Lama states that, “Thus not only are Buddhism and democracy compatible, they are rooted in a common understanding of the equality and potential of every individual” (Dalai Lama 1999).<br /> <br /> <br /> In his teachings, the Buddha stresses the importance of following the Eightfold Noble Path, which consists of cultivating eight essential areas of behavior. Within the Eightfold Noble Path, the Buddha asserts the need to practice “right speech” (Walton). When following right speech, also known as Wise Speech or Virtuous Speech, one focuses on expressing themselves in meaningful and genuine ways. When our words are moral, the Buddha states, our actions will follow, resulting in flourishing morality throughout the universe. <br /> <br /> Urging followers to engage in right speech, Buddhism condemns several forms of dialogue. In this way, the codes of Buddhism can be interpreted as a hindrance to the right to free expression, as certain types of discussion are excluded from qualifying as right speech. Defined as “abstinence from false speech, abstinence from malicious speech, abstinence from harsh speech, and abstinence from from idle chatter” (Roth), right speech upholds censoring hostile or false dialogue. While the Buddha emphasizes that the intention of right speech is to promote harmony, the doctrine of right speech nevertheless condemns words associated with political or social dissent. Thus, by providing a framework for proper speech, Buddhism undermines individuals’ entitlements to free expression. <br /> <br /> Though, despite the provisions of right speech, Buddhist leaders are expected to listen to the words of their people, upholding freedom of expression. As explained by John Peek in Human Rights and the Japanese State, “The enlightened ruler need not fear being deposed if he cultivates the traits of integrity, self-control, forbearance, generosity, gentleness, selflessness, non obstinacy, and nonviolence…the King will listen carefully to the wishes of the people, Just as this is to be a government by the people, it is also to be a government of the people” (Peek, 534). Portraying a system in which individual voices are supported by leaders, Peek asserts that Buddhism welcomes free expression. Thus, while Buddhists are guided to follow right speech, Buddhist leaders are expected to respect individual expression, regardless of if they believe it to be hostile or malicious. This contributes to the belief that free expression is a human right that must be protected by governments.<br /> <br /> ====Platonism====<br /> ====Aristotelian thought====<br /> Aristotle’s theories on the freedoms of men influenced the common theories of human rights that we know today; however, this may seem implausible at first glance, considering Aristotle did not consider individual freedom to be of the highest political value. He actually supported using state coercion to morally improve citizens. He also did not view democracy as the best form of government (Johnson 30, 2001). However, Aristotle’s “Politics” which subordinates individual freedom to collective goals imposed by ruling elites inspired the foundations of the guided freedoms we enjoy today. <br /> <br /> Within Aristotle’s political arguments and analyses, unlike Locke, who often writes about the preexisting natural rights of all men, Aristotle describes rights given to men within the “polis” or society against other individuals, rulers included, but not against the polis itself, referring to the government. Within this theory, justice can only be found in its truest form through the polis. However, Aristotle did recognize rights in the political community- a theory which eventually inspired the theories of natural rights (Miller 880, 1996). In his writings, Aristotle focuses less on the extents of and limits to freedom of expression and more on the value of what is said within the bounds of the freedom and the function of speech. Within freedom of expression, Aristotle focuses on the most important aspect: “logos,” the root word of the English word “logic” which means both “speech” and “reason” (Clayton 2020). Aristotle believed the ultimate purpose of speech, which was specifically assigned to men and no other animal by nature to be to determine what is right and wrong, just and unjust. In doing so, we make it possible for humans to live together justly and in pursuit of lives of virtue. Writing that we are, by nature, political animals, Aristotle claimed: “We must figure out how to live together for ourselves through the use of reason and speech, discovering justice and creating laws that make it possible for human community to survive and for the individuals in it to live virtuous lives. A group of people that has done this is a city: “[The virtue of] justice is a thing belonging to the city. For adjudication is an arrangement of the political partnership, and adjudication is judgment as to what is just” (Clayton 2020). In living according to the laws of the polis, pursuing justice, and using the virtues that separate us from other animals to form a functioning society, we can achieve individual virtue and happiness. Aristotle’s theory suggests that men are not free solely because they live in a free society, but men have certain freedoms, such as the freedom of expression, that help to govern them responsibly in the pursuit of happiness and virtue (Johnson 36, 2001). <br /> <br /> In order to attain true happiness, the free speech of a free man has a large stake in his moral virtue. Moral virtue can only be attained by a free man because an action is only moral if it is chosen. This theory can be called somewhat of a “virtuous circle of cause and effect. It implies a natural capacity for virtue that has to be actuated by virtue — a capacity for freedom that requires the exercise of freedom” (Mansfield 2018). There can be no freedom at all without the freedom of choice, and having the choice to speak freely is inherent in our society for our pursuit as a collective of virtue, justice, and happiness.<br /> <br /> ====Ancient Chinese Philosophy====<br /> <br /> Noted by Daniel Bell, professor of ethics and political philosophy and director of the Centre for International and Comparative Political Philosophy at Tsinghua University in Beijing, Confucius emphasized the importance of free political speech in The Analects. Conveyed by Bell, Confucianism supports civic engagement through political debate, a key element of free expression. Though, several other areas of the Analects dismiss certain forms of speech. For example one section of The Analects pronounces, “Crafty speech disrupts virtue” (The Analects of Confucius). While sections such as these condemn specific types of speech, they do not enforce a legal framework for restricting them. Thus, although Confucianism provides a framework for what qualifies as just speech, it does not explicitly urge followers to refrain from engaging in certain types of dialogue. In this way, Confucianism appears to promote freedom of expression. <br /> <br /> On the contrary, Legalism, with its focus on strong authoritarian power, promotes restrictions on free speech, weakening the right to free expression. Legalist scholar Han Feizi emphasizes this, stating, “Accordingly, in the country of an enlightened ruler there are no texts written in books and on bamboo strips, but the law is the teaching; there are no “speeches” of former kings” (Pines, 16). As noted by Han Feizi, within the legalist society, there are no teachings and works to be produced other than the laws created by the ruler. Thus, the principles of legalism directly counter the development of the right to free expression, as civilians are restricted by law from expressing themselves. Furthermore, these Legalist notions are emulated in contemporary China, where the communist party rampantly restricts the right to free expression. <br /> <br /> Taoism upholds intellectual freedom, promoting followers to use their creativity to express themselves. Though, discussed by You-Sheng Li in &quot;A New Interpretation of Chinese Taoist Philosophy&quot;, “Taoist Freedom of thought is different from the Western concept of free speech, free expression, and free press. The latter are all concerned with the social space in which free thoughts are expressed, and therefore are part of modern society. Taoist freedom is concerned with the individual himself.” Thus, Taoist philosophy asserts that while individuals should be entitled to the freedom of thought, this liberty is not necessarily applied to society. In this way, Taoism supports the freedom of the individual to express themselves, but not the universal legal entitlement to free expression.<br /> <br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought==== <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> The following country-specific descriptions are from a 2019 US Government Report. <br /> <br /> '''Argentina''': Argentina protects the right to free press, without prior restraint. However, it does not explicitly protect other forms of expression, such as free speech. Argentina criminalizes speech likely to incite violence. Additionally, Argentinian penal law contains protections for one’s honor, making it a fineable offense to slander someone, intentionally discredit them, or falsely accuse them of a crime. However, these penalties do not apply in matters of public interest. Although Argentine courts have interpreted limits on free expression narrowly, they have allowed these limits where they are established by law, meet the needs of a democratic society and where the limits are proportional to their goals. <br /> <br /> '''Canada''': The Canadian Charter of Rights and Freedoms guarantees the right to “thought, belief, opinion, and expression, subject to limits that can be “demonstrably justified in a free and democratic society.” Courts have interpreted the right to free expression broadly. Courts have made judgements about the constitutionality of limitations through proportionality analysis, taking several factors into consideration. They are more inclined to protect political speech, or speech that serves another social value, such as art or science. Courts are also more willing to accept narrower limits with less extreme penalties (civil versus criminal, for example). They have refused to allow limitations based on the offensiveness or unpopularity of the expression’s content. Their courts ruled unconstitutional a law banning the spread of false news. <br /> Despite free expression’s broad protections, courts have upheld anti-hate-speech laws. Additionally, interruptions of public speeches, especially using obscene language, may criminally disrupt the peace. Canada’s equivalent to the FCC has the power to take action against outlets that spread false information, but it has only acted very limitedly on a few occasions. Finally, Canada bans foreign broadcasters from attempting to influence its elections. <br /> <br /> '''China''': China’s constitution claims to protect free expression, but this is not true in practice. The country’s cybersecurity law bans the online spread of several categories of information, including those that undermine “national security, national honor, and national interests”; that incite “subversion” or those that threaten to “overturn the socialist system”; and that include“violent, obscene, or sexual information.” Similarly, the press cannot publish material that violates constitutional principles; undermine state sovereignty and territorial integrity; endanger national security; incite discrimination; undermine public order; promote obscenity, gambling, or violence; or “endanger public ethics.” The country’s Radio and Television Administration places similar limits on expression. Finally, the country tightly monitors foreign journalists, who must be approved by the government. <br /> <br /> '''France''': The French Constitution protects the “communication of ideas and opinions.” However, the Constitution also states that speech may not “interfere with the established law and order” or constitute an “abuse of this liberty in the case determined by law.” Though French courts interpret restrictions narrowly, they use proportionality to balance free speech against other public interests. Free speech is sometimes balanced against rights such as privacy and the presumption of innocence, meaning that defamation, which truth does not necessarily preclude, is often not allowed. One whose speech incites criminality may be considered complicit in the act. Hate speech, which “incites discrimination,” is a jailable offense, as is the denial of crimes against humanity, such as the Holocaust. Defamation of public officials and institutions is a fineable offense, although good-faith reporting is exempt. During an event organized by public officials, it is illegal to disrespect the flag or national anthem. <br /> French radio and TV broadcasts may be regulated to protect values such as dignity, pluralism, public order, and the well-being of adolescents. The CSA, the French equivalent to the FCC, regulated broadcasts to ensure adherence to French law. Although it does not engage in prior restraint, the CSA may issue cease-and-desist orders and fines. It also may remove foreign broadcasts that undermine French interests. <br /> <br /> '''Germany''': German Basic Law (constitution) stipulates that free expression (it lists forms of expression but does not use the term) “shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.” General laws, as the Constitutional Court articulated, “aim to protect a legal interest per se without regard to a particular opinion.” For example, Germany has a blanket ban on speech inciting “hatred against part of the populace.” There is one notable exception to the General-Law requirement: speech that violates the dignity of victims of the Nazis or glorifies their abuses (although pro-Nazi material and hate speech often overlap). <br /> <br /> Israel: Though free expression is not explicitly protected in Israeli Basic Law, its courts have protected it, with exceptions for speech with a “near certainty” to cause “real harm” to safety. Israel restricts several types of speech, such as incitements to violence and terrorism and holocaust denial. It uses balancing tests to determine when speech can be restricted, and it sometimes restricts the quality and quantity of speech in ways that do not eliminate the viewpoint completely. Israeli law criminalizes insulting public servants, but courts have ruled that this law can only be enforced in extreme circumstances, where the insult severely harms the servant’s dignity. Israel restricts the rights of foreigners to broadcast.<br /> <br /> '''Japan''': The Japanese Constitution protects all types of free expression. However, it also states that citizens “shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare.” Japanese courts will consider the type of speech (political speech is especially protected), the necessity of restriction, and the manner of restriction. In Japan, it is illegal to disrupt a political campaign speech. Defamation, insult, and intimidation are forms of criminalized speech in the Japanese Penal Code. Article 231, the “Insult” section of the Penal Code, is broad: “A person who insults another in public, even if it does not allege facts, shall be punished by misdemeanor imprisonment without work or a petty fine.” There are significant restrictions of Japanese broadcasts. They must be politically fair, show as many sides of a political issue as possible, respect “public morals,” and be truthful. <br /> <br /> '''Netherlands''': The Dutch Constitution automatically incorporates the European Convention on Human Rights into law (see the International Agreements Section). The Constitution also allows limitations on expression by act of parliament “without prejudice to the responsibility of every person under the law.” Different expressive freedoms have different level of protection in the Constitution. For example, the press’s protection from prior restraint is absolute, but freedom in performances that may be seen by children is not. <br /> <br /> '''New Zealand''': New Zealand’s Bill of Rights, a 1990 statute, guarantees free expression, with limits that can be “demonstrably justified in a free and democratic society.” It is a jailable offense to act, including to speak, in a way likely to incite someone to disorderly and violent behavior. In a public place, it is a fineable offense to intentionally insult or offend anyone, or to use obscene language. Under a 1993 statute, it is illegal to distribute in writing or broadcast material that is “threatening, abusive, or insulting,” and to use a public place to do the same or to incite ill will against a particular group of people. Broadcasts must adhere to standards of political balance and “the observation of good taste and decency.” <br /> <br /> '''Sweden''': Sweden’s system protects free speech and press. Interrupting courts, weddings, funerals, or public deliberation is a crime. Disorderly conduct with the intent to agitate is also a crime. For example, someone was convicted for singing and playing music in his home to disrupt a political gathering outside. Sweden’s hate-speech law bans any “statement or other message that is spread and disseminated that threatens, or expresses condescension against, an ethnic group or another group of persons based on race, skin color, national or ethnic origin, faith, sexual orientation, gender, or gender identity or expression.” It is a crime to broadcast without a permit. Sweden requires at least half of its broadcasts to be produced by Europeans. <br /> <br /> America places these restrictions on speech much less frequently, or not at all.<br /> <br /> '''Hate Speech''': Foreign countries often do not share America’s aversion to banning hate speech. America is more the exception than the norm; a 2008 EU treaty, for example, mandates that its members develop a mechanism for prosecuting purveyors of hate speech.<br /> <br /> '''Blasphemy''': About 71 percent of countries have blasphemy laws, generally defined as laws insulting to a particular religion or its adherents, often an established state religion. Blasphemy laws are stereotypically associated with theocratic, authoritarian states. Some unexpected countries have them, however. For example, it is a fineable offense in Italy to “vilify with insulting expressions” religious ideas (it is only a jailable offense if one vandalizes religious items) (End Blasphemy Laws). <br /> <br /> '''Political Content''': Many countries ban certain forms of political speech, especially that which undermines the government. In China, for instance, it is illegal to post anything online that will “endanger the sovereignty, overturn the socialist system, incite separatism, break national unity, advocate terrorism or extremism, advocate ethnic hatred and ethnic discrimination, . . . [and] create or disseminate false information to disrupt the economic or social order.” <br /> <br /> '''Public Deliberations''': It is often illegal to interrupt public deliberations, especially by a governing body. In Sweden, for example, one cannot legally interrupt events such as religious ceremonies, marriages, or court proceedings (contempt of court is also a crime in the US). In Japan, it is illegal to disrupt a speech that is part of an election campaign. <br /> <br /> '''Proportionality Analysis''': Courts abroad are much more likely than American courts to use proportionality in determining whether infringement on a right is allowable. This requires weighing the evil of infringing on free expression against the objective the state was trying to achieve. In hate speech, for example, this means weighing a lessening of free speech against the goal of maintaining a tolerant society.<br /> <br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> '''Clear and Present Danger''': As the Supreme Court ruled in Schenck v. US (1919), speech can be curtailed when it poses a “clear and present danger.” This case arose when a defendant was accused of violating the Espionage Act by distributing leaflets encouraging people to dodge the draft. As the majority held, the defendant’s ability to undermine the war effort constituted such a danger, akin to yelling “fire” in a crowded theatre. <br /> <br /> '''Fighting Words''': In a doctrine similar to the clear-and-present-danger test, the Supreme Court ruled in Chaplinsky v. New Hampshire (1942) that the First Amendment does not protect “fighting words” - words that, as the court argued, “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Though this doctrine exists today, it has been undermined, especially by the court’s rulings protecting “hate speech” (see RAV v. St. Paul). <br /> <br /> '''O’Brien Test''': In US v. O’brien (1968), the Supreme Court developed a four-pronged test for determining whether the government could justifiably limit expression. “We think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” In this case, the Supreme Court held that a ban on burning draft cards did constitute a substantial government interest. <br /> <br /> '''Speech in schools''': In general, public schools have greater leeway to curtail free speech, although the court’s attitudes have changed repeatedly. In Tinker v. Des Moines (1965), the Supreme Court voided suspensions on students wearing armbands to protest the Vietnam War, holding that limited speech must “materially and substantially interfere” with school activities. In Hazelwood v. Kuhlmeier (1988), the court gave considerable leniency to schools restricting student speech in a school-sponsored platform (in this case, a school newspaper), allowing it to censor an article because it was “inconsistent with the shared values of a civilized social order.” In Bethel School District v. Fraser (1986), the court allowed a public school to suspend a student for using sexual innuendo at a speech at a school assembly because such speech undermined “fundamental values of public school education.” the Supreme Court ruled similarly in Morse v. Frederick (2007), holding that schools could limit speech advocating drug use. <br /> <br /> '''Imminent Lawless Action''': In Brandenburg v. Ohio (1969), the Supreme Court elaborated on the clear-and-present-danger test. To lack protection, certain speech must incite “imminent lawless action.” This means that the mere advocacy of violence is not enough; the speech must actually incite it. It was on these grounds that the court ruled that offensive, inflammatory speech from a klansman was protected because it did not imminently incite violence. This test has generally replaced clear and present danger, although clear and present danger is still the test used in military courts. <br /> <br /> '''Obscenity''': The Supreme Court adopted a three-pronged test in Miller v. California (1973) to determine whether material is legally obscene (and therefore not protected). The prongs are as follows: “whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Pornography is often not legally obscene.<br /> <br /> '''Libel''': Standards for what constitutes libel differ between private citizens and public figures (who can include political figures but also celebrities, business tycoons, etc). Libel against a public person requires a statement to have been false and made negligently. Libel against a public figure, does not include good-faith mistakes that may be considered negligent. Rather, it requires material to be false, and to have been published with “actual malice” (Hustler v. Falwell, 1988) (Nott). <br /> <br /> '''Intellectual property''': For example, in Zacchini v. Scripps-Howard Broadcasting (1977), the court ruled that the First Amendment does not protect the right of a television station to air an entire performance without the consent of the performers. <br /> <br /> '''Unlawful assembly''': Authorities may restrict assemblies as long as the restrictions are reasonable, narrowly tailored to a specific public interest while limiting rights as little as possible, and are not content-based. For example, a city may require a permit for holding a large assembly. In Forsyth County v. Nationalist Movement, the Supreme Court ruled that a permitting authority could not vary its demonstration permit fees based on the anticipated cost of maintaining public order. As the court held, making such a determination would require the government to differentiate its treatment toward demonstrations based on the content of their messages.<br /> <br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> <br /> '''Universal Declaration of Human Rights''': This was adopted by the UN General Assembly in 1948.<br /> <br /> Article 29 stipulates that the rights found in this document, including free expression, “shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” <br /> <br /> '''European Convention on Human Rights''': This treaty was ratified by most of Europe in 1953 (it is unrelated to the EU). It is enforced in the European Court of Human Rights. From Article 10: <br /> <br /> The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.<br /> <br /> Depending on the case, the court has ruled that hate speech is not protected under Article 10. For example, in ''Aksoy v. Turkey'' (2000), it held that “remarks aimed at inciting racial hatred in society or propagating the idea of a superior race can not claim any protection under Article 10 of the Convention” (Flauss 2009, 838). It has refused to protect “revisionist language” (837), that which denies certain notorious historical truths. For example, Holocaust denial may not be protected under Article 10. Finally, the court has ruled that Article 10 does not protect speech likely to lead to violence (840). <br /> <br /> In ''Ceylan v. Turkey'' (2000), the court ruled on Turkey’s conviction of a columnist who opposed Turkey’s policies toward Kurds. The court used proportionality analysis to determine that the infringement on free expression outweighed the security risk of the piece, which did not directly call for violence. In a concurring opinion, one judge argued that the court should use a clear-and-present-danger test. <br /> <br /> '''American Convention on Human Rights''': This human-rights framework was created in 1969, and over the ensuing decades, has been ratified, at least in part, by nearly all of Central and South America. There exists a corresponding inter-American Court of Human Rights. From Article 13: <br /> <br /> The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:<br /> <br /> a. respect for the rights or reputations of others; or<br /> <br /> b. the protection of national security, public order, or public health or morals.<br /> <br /> “Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.”<br /> <br /> “Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.” <br /> <br /> Article 11 of the convention guarantees a right to privacy, which includes protections against attacks on one's honor, dignity, and reputation. As such, the court must balance these two considerations, as occurs in cases of libel, slander, and defamation (Posenato 2016, 64). The exceptions for national security, public health, public order, and morals have been interpreted narrowly, so as not to allow authoritarian restrictions on free speech (65). <br /> <br /> '''Cairo Declaration of Human Rights in Islam''': This 1990 document was ratified by 45 states in the Organization of Islamic Cooperation. There is no relevant court. Article 22: <br /> <br /> (a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari'ah.<br /> <br /> 1. Everyone shall have the right to advocate what is right, and propagate what is good, and warn against what is wrong and evil according to the norms of Islamic Shari'ah.<br /> <br /> (c) Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical Values or disintegrate, corrupt or harm society or weaken its faith.<br /> <br /> (d) It is not permitted to excite nationalistic or doctrinal hatred or to do anything that may be an incitement to any form or racial discrimination.<br /> International Covenant on Civil and Political Rights: This is a UN treaty from 1966. Under certain circumstances, it may be enforced by the International Court of Justice, but the ICJ generally only hears disputes between countries. Article 19: <br /> Everyone shall have the right to hold opinions without interference.<br /> <br /> 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.<br /> <br /> 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:<br /> <br /> (a) For respect of the rights or reputations of others;<br /> <br /> (b) For the protection of national security or of public order (order public), or of public health or morals.<br /> <br /> '''African Charter on Human and People’s Rights''': This charter, with 54 signatories, came into effect in 1986. Article 9 guarantees the right to free expression, although no exceptions are enumerated. The African Court of Human and People’s Rights has repeatedly protected free expression, but not without limit. For example, in Ingabire Victoire Umuhoza v. The Republic of Rwanda (2017), the court held that minimizing a genocide need not be protected because it could disturb public order and peace.<br /> <br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> Yes. The most famous defense of the freedom of expression principle is written by John Stuart Mill, who did include exceptions to this protection. Mill believed that freedom of expression should be curtailed when the circumstances of the message are intended to instigate violence or criminal activities. Mill also claims that this exception stems from the government's duty to protect others from harm, which is more broadly known as the &quot;harm principle.&quot; This, Mill claims, is the only context in which power can be &quot;rightfully&quot; executed over others (On Liberty 13). Mill uses the example of a corn-dealer, who is starving the poor. When this fact or opinion is published through the press, it is entirely permissible under Mill's doctrine. However, when this opinion is advertised to a large and unruly mob, expression of such sentiment should be curtailed because, if shared, it could cause immediate harm and instigate criminal or violent activities (On Liberty 52). Mill's threshold for regulation of expressions is extremely narrow; it could be argued that he does not exempt hate speech because it does not cause immediate harm to others. While Mill states that only the harm principle should be applied to regulations of freedom of expression, Joel Feinberg believes that the harm principle is not sufficiently broad enough to account for hate speech. He stipulates that an &quot;offense principle&quot; is also needed. Feinberg believes that the harm principle is too high of a standard and that the government has the right to censure some speech if they deem it too offensive. Since the offense principle lowers the standard for censure of free speech, so too should the punishments be lowered. Feinberg defines offense to be a &quot;negative mental state&quot; (Simpson 237). Feinberg justifies the offense principle by stating that being offended, or being in a negative mental state, actually impedes on an individual's liberty because being offended impedes on his/her daily activities (Simpson 238).<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> In many European countries (Germany, France, Austria, etc.), Holocaust denial is illegal and approximately 80 Facebook posts per year are blocked. Zuckerburg, in a 2018, interview stated that he found Holocaust denials to be deeply offensive, but does not believe that warrants censorship. Zuckerburg seems to follow the harm principle, stating that &quot;unless individuals are trying to organize harm against someone, or attacking someone,&quot; content should not be censored (Rosenberg 2018). Facebook's Community Standards (also includes Instagram) are intended to guide freedom of expression on the site through rules such as preventing offline harm related to Facebook content through &quot;consider[ing] the language and context in order to distinguish casual statements from content that constitutes a credible threat to public or personal safety.&quot; The community standards prohibit the presence of terrorist groups on Facebook. The standards also &quot;prohibit people from facilitating, organizing, promoting, or admitting to certain criminal or harmful activities targeted at people, businesses, property or animals.&quot; With hate speech, although the community standards are clear, their implementation is vague--&quot;We define hate speech as a direct attack on people based on what we call protected characteristics — race, ethnicity, national origin, religious affiliation, sexual orientation, caste, sex, gender, gender identity, and serious disease or disability.&quot; The community standards do not account for politic speech. In a speech at Georgetown University, Zuckerburg articulated his position for political censorship: &quot;I don’t think it’s right for a private company to censor politicians or news in a democracy&quot; (Ghaffary 2020). Although Twitter has extremely similar policies to Facebook, they have dramatically different applications. In early May, Twitter fact-checked President Trump's tweets regarding voting by mail by placing links to a fact-checking page that debunks the president's tweets. Twitter announced that it would place labels on tweets containing false or misleading information in response to misinformation about the COVID-19 pandemic (Ghaffary 2020). Previously, Twitter had resisted such a move because the president is a world leader and considered his tweets as &quot;noteworthy&quot; and, as such, exempted them from their standards policy (Ghaffary 2020). Facebook has a similar conduct policy, but enacts it much differently. In response to the move, Zuckerburg stated that Facebook should not, nor is, an &quot;arbiter of truth&quot; (Ghaffary 2020). Twitter again used its new policy on the president's tweet about protests, saying that his &quot;when the looting starts, the shooting starts&quot; violated Twitter's policy of glorifying violence (Ghaffary 2020). Facebook, on the other hand, defended its position of not censoring the same statement by saying &quot;didn’t violate Facebook’s policies about inciting violence. He said the company saw it 'as a warning about state action,' and that 'people need to know if the government is planning to deploy force” (Ghaffary 2020).<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> Freedom of expression can be limited in times of crisis, most notably in wartime. This was first enacted in the late 1790s, with the Alien and Sedition Acts. The Sedition Act most markedly affected freedom of expression and freedom of the press by making it illegal to speak against the government or president (&quot;Alien and Sedition Acts&quot;). These limitations were consistently applied in times of war until World War I, when its legality was cemented by the Supreme Court with Schenck vs. United States (Emerson 1968). In Schenck v. US, the Court ruled that the standards for regulation of freedom of speech were lower in wartime (&quot;Schenck v. United States&quot;). It also established, for the first time, the &quot;clear and present danger&quot; test, clarifying that &quot;the First Amendment does not protect speech that approaches creating a clear and present danger of a significant evil that Congress has power to prevent (&quot;Schenck v. United States&quot;). During the Vietnam War, freedom of expression was upheld in New York Times v. United States by saying freedom of the press was &quot;was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government&quot; (Hudson).<br /> In states of emergency, such as the national one declared at the beginning of the COVID-19 pandemic, the president is granted special troubles that include infringements on freedom of the press/expression. One such power is the ability to shut down radio stations during a time of &quot;public peril.&quot; This ability is cemented in section 706 of the Communications Act of 1934 (Rottman 2020). Since the law was passed in 1934, it did not include other forms of news publication, such as websites and TV news stations. There is a fear, however, that the government could broaden the law to include these types of news dissemination (Rottman 2020). In the COVID-19 pandemic, states and counties have declared media companies as essential services, thus exempting them from quarantine and shelter-in-place limitations (Rottman 2020).<br /> <br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Expression&diff=207 2020-07-13T14:36:31Z

<p>Ksandlund: /* Buddhism */</p> <hr /> <div>==History==<br /> ===What is the oldest source in any country that mentions this right?===<br /> <br /> The ancient Greeks within the Athenian Democracy, using the words “parrhesia” and “isegoria” (dating back to the fifth century BCE) were the first to emphasize the freedom to speak candidly and to &quot;say what one pleased&quot; a subset of freedom of the future declaration of freedom of expression (Bejan 2019, 97). The freedom of expression is imperative to democracy as it “refers to the ability of an individual or group of individuals to express their beliefs, thoughts, ideas, and emotions about different issues free from government censorship” (Freedom Forum Institute 2020). From the ancient Greeks, “Parrhesia” specifically describes the freedom to say whatever one pleased, and a similar idea describing freedom of expression, “isegoria,” describes the right of citizens to publicly address and debate against the democratic assembly (Lu 2017, 4). “Isegoria” is derived from the root word “agora” which translates to marketplace, and thus the meaning of this version of freedom of expression addresses that of public speech. This right to “isegoria” was more heavily based in the ideas of equality of all men to have access to the government than for the principles of freedom (Bejan 2017, 99). On the other hand, “parrhesia” held a broader meaning. This idea is more about the right to speak freely or frankly. This word implies a willingness of the speaker to be open, honest, and courageous in dealing with the consequences of the sometimes controversial truth which he spoke while those who listened had to tolerate any offense taken from the speaker. Because of the courage and privilege necessary in truly enjoying “parrhesia,” it describes a form of licensed privilege. After the collapse of the Athenian democracy, however, the fundamental ideas of “parrhesia” are the more common and practiced bases of freedom of expression today in documents such as the American Constitution. “Isegoria” on the other hand took on the form of freedom of speech and debate within the legislative houses of government such as British Parliament and American Congress. <br /> <br /> However, regarding modern history, the first legal document to declare these rights to freedom of expression was the English Bill of Rights in 1689 by William III and Mary II after the Glorious Revolution. This document outlined civil and human rights that were to be enjoyed by all men, and the document gave Parliament power over the monarch, increasing the amount of power given to the people.<br /> <br /> ===What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE===<br /> ====Afghanistan====<br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> National Constitution (1853)<br /> <br /> ====Armenia====<br /> ====Australia====<br /> The Constitution does not explicitly protect freedom of expression, but in 1992 the High Court of Australia ruled in favor of political expression, setting a precedent and implying freedom of expression<br /> <br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> ====Brazil====<br /> Brazil’s seventh Constitution (1988)<br /> <br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> Canadian Charter of Rights and Freedoms (1982)<br /> <br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> The Constitution of the People’s Republic of China (1982)<br /> <br /> ====Colombia====<br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> Declaration of the Rights of Man and of the Citizen (1789)<br /> <br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> Weimar Constitution of 1919<br /> <br /> ====Ghana====<br /> 1992 Constitution of Ghana<br /> <br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> The Constitution of India Bill (1895)<br /> <br /> ====Indonesia====<br /> 1945 Constitution<br /> <br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> ====Israel====<br /> Loosely defined by the Declaration of the Establishment of the State of Israel and rulings by the Israel Supreme Court<br /> <br /> ====Italy====<br /> Constitution of 1948<br /> <br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> 1947 Constitution<br /> <br /> ====Jordan====<br /> ====Kazakhstan====<br /> ====Kenya====<br /> 1963 Constitution<br /> <br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> ====Laos====<br /> ====Latvia====<br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> Mexican Constitutions of 1857 and 1917<br /> <br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> Federal Republic of Nigeria constitution (1958)<br /> <br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> ====Oman====<br /> ====Pakistan====<br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> Constitution of 1993<br /> <br /> ====Philippines====<br /> 1987 Constitution<br /> <br /> ====Poland====<br /> The Little Constitution of 1992<br /> <br /> ====Portugal====<br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> Constitution of Russian Federation (1993)<br /> <br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> National Communications Act of March 2012<br /> <br /> ====South Africa====<br /> South African Bill of Rights of the Constitution (1996)<br /> <br /> ====South Korea====<br /> Constitution of 1948<br /> <br /> ====South Sudan====<br /> ====Spain====<br /> Constitution of 1978<br /> <br /> ====Sri Lanka====<br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> Freedom of the Press Act of 1766<br /> <br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> ====United States====<br /> Declaration of Independence (1776)<br /> <br /> ====Uruguay====<br /> ====Uzbekistan====<br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> <br /> This right is mentioned in several historical noteworthy written sources, some of which include John Locke's extremely influential and fundamental Second Treatise of Government. Along that same vein, noted philosophers have written commentaries on laws, freedoms, and political theory; these include works by Michael Foucault, particularly in his lecture series at Berkeley, Montesquieu in his commentary the Spirit of the Laws, Sir William Blackstone's Commentaries on the Laws of England, and John Stuart Mill's noteworthy work On Liberty. <br /> <br /> Many international treaties, charters, and conventions also work to avidly incorporate the freedom of expression in its foundations. The UN International Covenant on Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights, and the EU Charter of Fundamental Rights.<br /> <br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> The right to free expression is upheld by most countries’ constitutions (World Population Review), though the degree of liberty that comes with entitlements to free expression may differ. Furthermore, a Free Expression Index generated by Pew Research Center demonstrates one method for comparing the strength of free expression internationally (Pew Research Center). In developing the index, Pew surveyed 38 countries on eight questions pertaining to free expression. Pew proceeded to then rank the countries on a scale of zero to eight-eight meaning the country fully supported free expression. From their results, the United States and Canada demonstrated the highest levels of free expression, with scores of 5.73 and 5.08 respectively, while Senegal and Burkina Faso showed the lowest levels of free expression, with scores of 2.06 and 2.94, respectively. Thus, demonstrated by the Pew Research index, while many countries may support free expression within their constitutions, the degree to which free expression is practiced and enforced often varies. <br /> <br /> Consequently, there are still several countries that restrict free expression in their laws. For example, in South Korea, The National Security Law prohibits sharing sympathies towards North Korea (Kolick, Alli; Dehague, Tyler; and Leick, Amber). Additionally, while Afghanistan’s constitution does protect freedom of expression, it does not firmly protect speech when related to “ ‘public spirit’, ‘security’, and ‘public interest’ ” (Ministry of Foreign Affairs - Islamic Republic of Afghanistan). India’s free expression laws likewise are not comprehensive, as the right to free press is not explicitly stated in the Indian Constitution (Kolick, Alli; Dehague, Tyler; and Leick, Ambe). Therefore, while most countries do have some form of free expression within their constitutions, not all free expression clauses clearly outline the rights of citizens; rather, many constitutions explicitly restrict forms of free expression.<br /> <br /> ===Is it contained in the US Constitution?===<br /> <br /> The right to free expression is not stated verbatim in the United States constitution. Though, it is universally accepted to be covered by the First Amendment (American Civil Liberties Union). Furthermore, the First Amendment asserts, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Specifically, the listed rights to free speech, press, assembly, and petition are broadly viewed as Americans’ rights to free expression.<br /> Though, the nature of free expression, as enshrined by the Constitution, has been heavily debated. Some believe that only political speech is protected by the First Amendment (Legal Infornation Institute, Cornell Law School). Others assert that the individual freedoms outlined by the First Amendment should not be grouped together as Americans’ general freedoms to expression. Rather, these individuals argue that the individual freedoms entitled by the First Amendment ought to be addressed as distinct rights (Bogen). Consequently, in 1799, John Hay, in criticizing the Sedition Act, argued that freedom of speech, as entitled by the First Amendment, protects all forms of expression. Specifically, using freedom of the press as an example, Hay asserts that the same degree of freedom is applied to each First Amendment right, stating “To ascertain what the &quot;freedom of the press&quot; is, we have only to ascertain what freedom itself is. For, surely, it will be conceded, that freedom applied to one subject, means the same, as freedom applied to another subject.” Ultimately, Hay’s argument developed the belief in Americans’ general right to free expression, which is still commonly accepted today to be protected by the First Amendment<br /> <br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> <br /> Given that freedom of expression is often used as a blanket term for the numerous rights enshrined by the First Amendment, free speech, press, petition, and association, its parameters are implicit. For example, while the First Amendment does assert the right to free speech, it does not go into detail about the nature or degree of free speech. For this reason, what counts as protected “expression” is implicit. Demonstrated by exceptions, summarized in &quot;Are there any exceptions in American law to this right?&quot;, to the First Amendment, the implications of the right to free expression are often determined by the Supreme Court’s decisions. Furthermore, cases such as Schenk v. United States, Chaplinsky v. New Hampshire, Miller v. California, New York Times Company v. Sullivan, and Central Hudson Gas &amp; Electric Corporation v. Public Service Commission of New York, have created precedents making the parameters of free expression increasingly explicit, as each case demonstrates how certain forms of expression are or are not protected by the First Amendment.<br /> <br /> ===Are there any exceptions in American law to this right?===<br /> <br /> Several Supreme Court cases have placed restrictions on the right to free expression, creating exceptions to the First Amendment. For example, in Schenk v. United States, the Supreme Court ruled that free expression is not constitutionally protected when it will “create a clear and present danger that they will bring about substantive evils that the government has a right to protect.” The qualifications for limiting dangerous speech were later established by Brandenburg v. Ohio, which ruled speech could be prohibited if it was &quot;directed at inciting or producing imminent lawless action&quot; or was “likely to incite or produce such action.”<br /> <br /> Additionally, there is a legal exception for “fighting words”, in that words that “would likely make the person to whom they are addressed commit an act of violence” are not shielded by the First Amendment. This was decided by the Chaplinsky v. New Hampshire decision, where the court upheld that it was illegal for Walter Chaplinsky to call a police officer “a damned Fascist.” <br /> <br /> Another exception to the First Amendment is obscene language. In Miller v. California, the court clarified what qualifies as obscene language, which was described as speech that “To the average person, applying contemporary community standards, appeal to the prurient interest; Depict or describe, in a patently offensive way, sexual conduct, as specifically defined by the applicable state law, and taken as a whole, lack any serious literary, artistic, political, or scientific value.” Therefore, expression that falls under these standards may be regulated. <br /> <br /> Defamation, “a statement that injures a third party’s reputation” (Legal Information Institute, Cornell Law School), is an additional exception to freedom of expression in the United States. The standards for defamation were established in New York Times Company v. Sullivan, which claimed that in order to sue a news outlet for defamation, one must have proof that the outlet was aware of their false claims prior to publishing. <br /> <br /> Lastly, commercial speech may be regulated in order to protect consumers. Furthermore, the standards for commercial speech regulation were created by Central Hudson Gas &amp; Electric Corporation v. Public Service Commission of New York, which created a four part test for determining whether or not the government could limit commercial speech. According to the court, commercial speech is may be regulated only if, <br /> <br /> speech must concern lawful activity and not be misleading; 2. the asserted governmental interest must be substantial. If the first two parts are established, then it must also be determined that: 3. the regulation directly advances the governmental interest asserted; and 4. the regulation is not more extensive than is necessary to serve that interest.<br /> <br /> Ultimately, demonstrated by these numerous cases, although the United States Constitution upholds freedom of expression, there are various exceptions to the First Amendment.<br /> <br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> <br /> For European countries, the right to free expression is entitled by Article 10 of the European Convention on Human Rights, though it is not an absolute law. According to the article, freedom of expression can be restricted if it incites crime or jeopardizes natural security, public health, personal reputations or the authority of the judiciary. Additionally, In Africa, both the African Charter on Human and Peoples’ Rights and the Declaration of Principles on Freedom of Expression assure members of the African Union the right to free expression. In Mexico and South America, the American Convention on Human Rights, also referred to as the Pact of San Jose, upholds the right to free expression. Internationally, the United Nations lists numerous treaties that uphold the right to free expression. Most predominantly, the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) enshrine the right to free expression. Through these various treaties, freedom of expression is upheld by international law.<br /> <br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> The ancient spiritual tradition of Buddhism is rooted in practices and teachings that promote enlightenment and ultimately reaching a state of nirvana or peace. The tradition quickly became a school of thought that heavily influenced east Asian societies and laws. Although, not traditionally accredited to influencing modern Western ideals and expressions of modern democracy and human rights, reform Buddhism does justify human rights law, and particularly the freedom of expression. Although often used synonymously, within the right to freedom of expression, the freedom of speech is an important component that is more directly addressed by the teachings of Buddhism. <br /> <br /> In 2010, the Dalai Lama was awarded a Democracy Service Medal for his commitment to democratic principles and upholding and defending human dignity. The Dalai Lama connects the modern practice of democracy with traditional Buddhist teachings. In his 1993 speech entitled “Buddhism and Democracy,” the Dalai Lama stated, “The institution the Buddha established was the Sangha or monastic community, which functioned on largely democratic lines. Within this fraternity, individuals were equal, whatever their social class or caste origins.” According to this idea of equality, the Buddhist concern for the well-being of all justifies rights to all freedoms of belief, expression and conduct” (Caney 2001, 68). Along the Buddhist ideals of equality and the freedom to exercise control of one’s life paired with the democratic ideals of freedom and commitments to human rights, the two practices are conjoined. And although there is no specific, equivalent word in Buddhism for the word “rights,” rights are understood as a subjective entitlement (Husted, Keown, &amp; Prebish 2012, 20). According to Charles Taylor, in Buddhism, “human rights don’t stand out, as they often do in the West, as a claim on their own, independent from the rest of our moral commitments” (Taylor 1999, 110). These rights are somewhat implicit in understanding the philosophy of Buddhism. <br /> <br /> In reaching enlightenment, one who practices Buddhism is to follow The Eightfold Path – the ultimate guide to life. The Eightfold Path outlines that followers should practice “1. Right understanding and viewpoint (based on the Four Noble Truths), 2. Right values and attitude (compassion rather than selfishness), 3. Right speech (don't tell lies, avoid harsh, abusive speech, avoid gossip), 4. Right action (help others, live honestly, don't harm living things, take care of the environment), 5. Right work (do something useful, avoid jobs which harm others), 6. Right effort (encourage good, helpful thoughts, discourage unwholesome destructive thoughts), 7. Right mindfulness (be aware of what you feel, think and do), and 8. Right meditation (calm mind, practice meditation which leads to nirvana)” (United Religions Initiative 2020). Number 3 on the path outlines the necessity of right speech, which adds a layer of responsibility to the freedom of speech – a component which is not explicitly outlined in most Western descriptions of the right to freedom of expression. Within the Buddhist teachings, lies, half-truths, insults, and gossip are strictly prohibited; ultimately, being truthful is only one component to the freedom of speech, but also non-exploitation of oneself and of others is a central principle to Buddhism (Ekachai 2015). This responsibility is what allows for each person to be not only equal, but also to have the same opportunity and potential to be who and what they desire to be. As a result, the Dalai Lama states that, “Thus not only are Buddhism and democracy compatible, they are rooted in a common understanding of the equality and potential of every individual” (Dalai Lama 1999).<br /> <br /> <br /> In his teachings, the Buddha stresses the importance of following the Eightfold Noble Path, which consists of cultivating eight essential areas of behavior. Within the Eightfold Noble Path, the Buddha asserts the need to practice “right speech” (Walton). When following right speech, also known as Wise Speech or Virtuous Speech, one focuses on expressing themselves in meaningful and genuine ways. When our words are moral, the Buddha states, our actions will follow, resulting in flourishing morality throughout the universe. <br /> <br /> Urging followers to engage in right speech, Buddhism condemns several forms of dialogue. In this way, the codes of Buddhism can be interpreted as a hindrance to the right to free expression, as certain types of discussion are excluded from qualifying as right speech. Defined as “abstinence from false speech, abstinence from malicious speech, abstinence from harsh speech, and abstinence from from idle chatter” (Roth), right speech upholds censoring hostile or false dialogue. While the Buddha emphasizes that the intention of right speech is to promote harmony, the doctrine of right speech nevertheless condemns words associated with political or social dissent. Thus, by providing a framework for proper speech, Buddhism undermines individuals’ entitlements to free expression. <br /> <br /> Though, despite the provisions of right speech, Buddhist leaders are expected to listen to the words of their people, upholding freedom of expression. As explained by John Peek in Human Rights and the Japanese State, “The enlightened ruler need not fear being deposed if he cultivates the traits of integrity, self-control, forbearance, generosity, gentleness, selflessness, non obstinacy, and nonviolence…the King will listen carefully to the wishes of the people, Just as this is to be a government by the people, it is also to be a government of the people” (Peek, 534). Portraying a system in which individual voices are supported by leaders, Peek asserts that Buddhism welcomes free expression. Thus, while Buddhists are guided to follow right speech, Buddhist leaders are expected to respect individual expression, regardless of if they believe it to be hostile or malicious. This contributes to the belief that free expression is a human right that must be protected by governments.<br /> <br /> ====Platonism====<br /> ====Aristotelian thought====<br /> Aristotle’s theories on the freedoms of men influenced the common theories of human rights that we know today; however, this may seem implausible at first glance, considering Aristotle did not consider individual freedom to be of the highest political value. He actually supported using state coercion to morally improve citizens. He also did not view democracy as the best form of government (Johnson 30, 2001). However, Aristotle’s “Politics” which subordinates individual freedom to collective goals imposed by ruling elites inspired the foundations of the guided freedoms we enjoy today. <br /> <br /> Within Aristotle’s political arguments and analyses, unlike Locke, who often writes about the preexisting natural rights of all men, Aristotle describes rights given to men within the “polis” or society against other individuals, rulers included, but not against the polis itself, referring to the government. Within this theory, justice can only be found in its truest form through the polis. However, Aristotle did recognize rights in the political community- a theory which eventually inspired the theories of natural rights (Miller 880, 1996). In his writings, Aristotle focuses less on the extents of and limits to freedom of expression and more on the value of what is said within the bounds of the freedom and the function of speech. Within freedom of expression, Aristotle focuses on the most important aspect: “logos,” the root word of the English word “logic” which means both “speech” and “reason” (Clayton 2020). Aristotle believed the ultimate purpose of speech, which was specifically assigned to men and no other animal by nature to be to determine what is right and wrong, just and unjust. In doing so, we make it possible for humans to live together justly and in pursuit of lives of virtue. Writing that we are, by nature, political animals, Aristotle claimed: “We must figure out how to live together for ourselves through the use of reason and speech, discovering justice and creating laws that make it possible for human community to survive and for the individuals in it to live virtuous lives. A group of people that has done this is a city: “[The virtue of] justice is a thing belonging to the city. For adjudication is an arrangement of the political partnership, and adjudication is judgment as to what is just” (Clayton 2020). In living according to the laws of the polis, pursuing justice, and using the virtues that separate us from other animals to form a functioning society, we can achieve individual virtue and happiness. Aristotle’s theory suggests that men are not free solely because they live in a free society, but men have certain freedoms, such as the freedom of expression, that help to govern them responsibly in the pursuit of happiness and virtue (Johnson 36, 2001). <br /> <br /> In order to attain true happiness, the free speech of a free man has a large stake in his moral virtue. Moral virtue can only be attained by a free man because an action is only moral if it is chosen. This theory can be called somewhat of a “virtuous circle of cause and effect. It implies a natural capacity for virtue that has to be actuated by virtue — a capacity for freedom that requires the exercise of freedom” (Mansfield 2018). There can be no freedom at all without the freedom of choice, and having the choice to speak freely is inherent in our society for our pursuit as a collective of virtue, justice, and happiness.<br /> <br /> ====Ancient Chinese Philosophy====<br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought==== <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> The following country-specific descriptions are from a 2019 US Government Report. <br /> <br /> '''Argentina''': Argentina protects the right to free press, without prior restraint. However, it does not explicitly protect other forms of expression, such as free speech. Argentina criminalizes speech likely to incite violence. Additionally, Argentinian penal law contains protections for one’s honor, making it a fineable offense to slander someone, intentionally discredit them, or falsely accuse them of a crime. However, these penalties do not apply in matters of public interest. Although Argentine courts have interpreted limits on free expression narrowly, they have allowed these limits where they are established by law, meet the needs of a democratic society and where the limits are proportional to their goals. <br /> <br /> '''Canada''': The Canadian Charter of Rights and Freedoms guarantees the right to “thought, belief, opinion, and expression, subject to limits that can be “demonstrably justified in a free and democratic society.” Courts have interpreted the right to free expression broadly. Courts have made judgements about the constitutionality of limitations through proportionality analysis, taking several factors into consideration. They are more inclined to protect political speech, or speech that serves another social value, such as art or science. Courts are also more willing to accept narrower limits with less extreme penalties (civil versus criminal, for example). They have refused to allow limitations based on the offensiveness or unpopularity of the expression’s content. Their courts ruled unconstitutional a law banning the spread of false news. <br /> Despite free expression’s broad protections, courts have upheld anti-hate-speech laws. Additionally, interruptions of public speeches, especially using obscene language, may criminally disrupt the peace. Canada’s equivalent to the FCC has the power to take action against outlets that spread false information, but it has only acted very limitedly on a few occasions. Finally, Canada bans foreign broadcasters from attempting to influence its elections. <br /> <br /> '''China''': China’s constitution claims to protect free expression, but this is not true in practice. The country’s cybersecurity law bans the online spread of several categories of information, including those that undermine “national security, national honor, and national interests”; that incite “subversion” or those that threaten to “overturn the socialist system”; and that include“violent, obscene, or sexual information.” Similarly, the press cannot publish material that violates constitutional principles; undermine state sovereignty and territorial integrity; endanger national security; incite discrimination; undermine public order; promote obscenity, gambling, or violence; or “endanger public ethics.” The country’s Radio and Television Administration places similar limits on expression. Finally, the country tightly monitors foreign journalists, who must be approved by the government. <br /> <br /> '''France''': The French Constitution protects the “communication of ideas and opinions.” However, the Constitution also states that speech may not “interfere with the established law and order” or constitute an “abuse of this liberty in the case determined by law.” Though French courts interpret restrictions narrowly, they use proportionality to balance free speech against other public interests. Free speech is sometimes balanced against rights such as privacy and the presumption of innocence, meaning that defamation, which truth does not necessarily preclude, is often not allowed. One whose speech incites criminality may be considered complicit in the act. Hate speech, which “incites discrimination,” is a jailable offense, as is the denial of crimes against humanity, such as the Holocaust. Defamation of public officials and institutions is a fineable offense, although good-faith reporting is exempt. During an event organized by public officials, it is illegal to disrespect the flag or national anthem. <br /> French radio and TV broadcasts may be regulated to protect values such as dignity, pluralism, public order, and the well-being of adolescents. The CSA, the French equivalent to the FCC, regulated broadcasts to ensure adherence to French law. Although it does not engage in prior restraint, the CSA may issue cease-and-desist orders and fines. It also may remove foreign broadcasts that undermine French interests. <br /> <br /> '''Germany''': German Basic Law (constitution) stipulates that free expression (it lists forms of expression but does not use the term) “shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.” General laws, as the Constitutional Court articulated, “aim to protect a legal interest per se without regard to a particular opinion.” For example, Germany has a blanket ban on speech inciting “hatred against part of the populace.” There is one notable exception to the General-Law requirement: speech that violates the dignity of victims of the Nazis or glorifies their abuses (although pro-Nazi material and hate speech often overlap). <br /> <br /> Israel: Though free expression is not explicitly protected in Israeli Basic Law, its courts have protected it, with exceptions for speech with a “near certainty” to cause “real harm” to safety. Israel restricts several types of speech, such as incitements to violence and terrorism and holocaust denial. It uses balancing tests to determine when speech can be restricted, and it sometimes restricts the quality and quantity of speech in ways that do not eliminate the viewpoint completely. Israeli law criminalizes insulting public servants, but courts have ruled that this law can only be enforced in extreme circumstances, where the insult severely harms the servant’s dignity. Israel restricts the rights of foreigners to broadcast.<br /> <br /> '''Japan''': The Japanese Constitution protects all types of free expression. However, it also states that citizens “shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare.” Japanese courts will consider the type of speech (political speech is especially protected), the necessity of restriction, and the manner of restriction. In Japan, it is illegal to disrupt a political campaign speech. Defamation, insult, and intimidation are forms of criminalized speech in the Japanese Penal Code. Article 231, the “Insult” section of the Penal Code, is broad: “A person who insults another in public, even if it does not allege facts, shall be punished by misdemeanor imprisonment without work or a petty fine.” There are significant restrictions of Japanese broadcasts. They must be politically fair, show as many sides of a political issue as possible, respect “public morals,” and be truthful. <br /> <br /> '''Netherlands''': The Dutch Constitution automatically incorporates the European Convention on Human Rights into law (see the International Agreements Section). The Constitution also allows limitations on expression by act of parliament “without prejudice to the responsibility of every person under the law.” Different expressive freedoms have different level of protection in the Constitution. For example, the press’s protection from prior restraint is absolute, but freedom in performances that may be seen by children is not. <br /> <br /> '''New Zealand''': New Zealand’s Bill of Rights, a 1990 statute, guarantees free expression, with limits that can be “demonstrably justified in a free and democratic society.” It is a jailable offense to act, including to speak, in a way likely to incite someone to disorderly and violent behavior. In a public place, it is a fineable offense to intentionally insult or offend anyone, or to use obscene language. Under a 1993 statute, it is illegal to distribute in writing or broadcast material that is “threatening, abusive, or insulting,” and to use a public place to do the same or to incite ill will against a particular group of people. Broadcasts must adhere to standards of political balance and “the observation of good taste and decency.” <br /> <br /> '''Sweden''': Sweden’s system protects free speech and press. Interrupting courts, weddings, funerals, or public deliberation is a crime. Disorderly conduct with the intent to agitate is also a crime. For example, someone was convicted for singing and playing music in his home to disrupt a political gathering outside. Sweden’s hate-speech law bans any “statement or other message that is spread and disseminated that threatens, or expresses condescension against, an ethnic group or another group of persons based on race, skin color, national or ethnic origin, faith, sexual orientation, gender, or gender identity or expression.” It is a crime to broadcast without a permit. Sweden requires at least half of its broadcasts to be produced by Europeans. <br /> <br /> America places these restrictions on speech much less frequently, or not at all.<br /> <br /> '''Hate Speech''': Foreign countries often do not share America’s aversion to banning hate speech. America is more the exception than the norm; a 2008 EU treaty, for example, mandates that its members develop a mechanism for prosecuting purveyors of hate speech.<br /> <br /> '''Blasphemy''': About 71 percent of countries have blasphemy laws, generally defined as laws insulting to a particular religion or its adherents, often an established state religion. Blasphemy laws are stereotypically associated with theocratic, authoritarian states. Some unexpected countries have them, however. For example, it is a fineable offense in Italy to “vilify with insulting expressions” religious ideas (it is only a jailable offense if one vandalizes religious items) (End Blasphemy Laws). <br /> <br /> '''Political Content''': Many countries ban certain forms of political speech, especially that which undermines the government. In China, for instance, it is illegal to post anything online that will “endanger the sovereignty, overturn the socialist system, incite separatism, break national unity, advocate terrorism or extremism, advocate ethnic hatred and ethnic discrimination, . . . [and] create or disseminate false information to disrupt the economic or social order.” <br /> <br /> '''Public Deliberations''': It is often illegal to interrupt public deliberations, especially by a governing body. In Sweden, for example, one cannot legally interrupt events such as religious ceremonies, marriages, or court proceedings (contempt of court is also a crime in the US). In Japan, it is illegal to disrupt a speech that is part of an election campaign. <br /> <br /> '''Proportionality Analysis''': Courts abroad are much more likely than American courts to use proportionality in determining whether infringement on a right is allowable. This requires weighing the evil of infringing on free expression against the objective the state was trying to achieve. In hate speech, for example, this means weighing a lessening of free speech against the goal of maintaining a tolerant society.<br /> <br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> '''Clear and Present Danger''': As the Supreme Court ruled in Schenck v. US (1919), speech can be curtailed when it poses a “clear and present danger.” This case arose when a defendant was accused of violating the Espionage Act by distributing leaflets encouraging people to dodge the draft. As the majority held, the defendant’s ability to undermine the war effort constituted such a danger, akin to yelling “fire” in a crowded theatre. <br /> <br /> '''Fighting Words''': In a doctrine similar to the clear-and-present-danger test, the Supreme Court ruled in Chaplinsky v. New Hampshire (1942) that the First Amendment does not protect “fighting words” - words that, as the court argued, “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Though this doctrine exists today, it has been undermined, especially by the court’s rulings protecting “hate speech” (see RAV v. St. Paul). <br /> <br /> '''O’Brien Test''': In US v. O’brien (1968), the Supreme Court developed a four-pronged test for determining whether the government could justifiably limit expression. “We think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” In this case, the Supreme Court held that a ban on burning draft cards did constitute a substantial government interest. <br /> <br /> '''Speech in schools''': In general, public schools have greater leeway to curtail free speech, although the court’s attitudes have changed repeatedly. In Tinker v. Des Moines (1965), the Supreme Court voided suspensions on students wearing armbands to protest the Vietnam War, holding that limited speech must “materially and substantially interfere” with school activities. In Hazelwood v. Kuhlmeier (1988), the court gave considerable leniency to schools restricting student speech in a school-sponsored platform (in this case, a school newspaper), allowing it to censor an article because it was “inconsistent with the shared values of a civilized social order.” In Bethel School District v. Fraser (1986), the court allowed a public school to suspend a student for using sexual innuendo at a speech at a school assembly because such speech undermined “fundamental values of public school education.” the Supreme Court ruled similarly in Morse v. Frederick (2007), holding that schools could limit speech advocating drug use. <br /> <br /> '''Imminent Lawless Action''': In Brandenburg v. Ohio (1969), the Supreme Court elaborated on the clear-and-present-danger test. To lack protection, certain speech must incite “imminent lawless action.” This means that the mere advocacy of violence is not enough; the speech must actually incite it. It was on these grounds that the court ruled that offensive, inflammatory speech from a klansman was protected because it did not imminently incite violence. This test has generally replaced clear and present danger, although clear and present danger is still the test used in military courts. <br /> <br /> '''Obscenity''': The Supreme Court adopted a three-pronged test in Miller v. California (1973) to determine whether material is legally obscene (and therefore not protected). The prongs are as follows: “whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Pornography is often not legally obscene.<br /> <br /> '''Libel''': Standards for what constitutes libel differ between private citizens and public figures (who can include political figures but also celebrities, business tycoons, etc). Libel against a public person requires a statement to have been false and made negligently. Libel against a public figure, does not include good-faith mistakes that may be considered negligent. Rather, it requires material to be false, and to have been published with “actual malice” (Hustler v. Falwell, 1988) (Nott). <br /> <br /> '''Intellectual property''': For example, in Zacchini v. Scripps-Howard Broadcasting (1977), the court ruled that the First Amendment does not protect the right of a television station to air an entire performance without the consent of the performers. <br /> <br /> '''Unlawful assembly''': Authorities may restrict assemblies as long as the restrictions are reasonable, narrowly tailored to a specific public interest while limiting rights as little as possible, and are not content-based. For example, a city may require a permit for holding a large assembly. In Forsyth County v. Nationalist Movement, the Supreme Court ruled that a permitting authority could not vary its demonstration permit fees based on the anticipated cost of maintaining public order. As the court held, making such a determination would require the government to differentiate its treatment toward demonstrations based on the content of their messages.<br /> <br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> <br /> '''Universal Declaration of Human Rights''': This was adopted by the UN General Assembly in 1948.<br /> <br /> Article 29 stipulates that the rights found in this document, including free expression, “shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” <br /> <br /> '''European Convention on Human Rights''': This treaty was ratified by most of Europe in 1953 (it is unrelated to the EU). It is enforced in the European Court of Human Rights. From Article 10: <br /> <br /> The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.<br /> <br /> Depending on the case, the court has ruled that hate speech is not protected under Article 10. For example, in ''Aksoy v. Turkey'' (2000), it held that “remarks aimed at inciting racial hatred in society or propagating the idea of a superior race can not claim any protection under Article 10 of the Convention” (Flauss 2009, 838). It has refused to protect “revisionist language” (837), that which denies certain notorious historical truths. For example, Holocaust denial may not be protected under Article 10. Finally, the court has ruled that Article 10 does not protect speech likely to lead to violence (840). <br /> <br /> In ''Ceylan v. Turkey'' (2000), the court ruled on Turkey’s conviction of a columnist who opposed Turkey’s policies toward Kurds. The court used proportionality analysis to determine that the infringement on free expression outweighed the security risk of the piece, which did not directly call for violence. In a concurring opinion, one judge argued that the court should use a clear-and-present-danger test. <br /> <br /> '''American Convention on Human Rights''': This human-rights framework was created in 1969, and over the ensuing decades, has been ratified, at least in part, by nearly all of Central and South America. There exists a corresponding inter-American Court of Human Rights. From Article 13: <br /> <br /> The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:<br /> <br /> a. respect for the rights or reputations of others; or<br /> <br /> b. the protection of national security, public order, or public health or morals.<br /> <br /> “Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.”<br /> <br /> “Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.” <br /> <br /> Article 11 of the convention guarantees a right to privacy, which includes protections against attacks on one's honor, dignity, and reputation. As such, the court must balance these two considerations, as occurs in cases of libel, slander, and defamation (Posenato 2016, 64). The exceptions for national security, public health, public order, and morals have been interpreted narrowly, so as not to allow authoritarian restrictions on free speech (65). <br /> <br /> '''Cairo Declaration of Human Rights in Islam''': This 1990 document was ratified by 45 states in the Organization of Islamic Cooperation. There is no relevant court. Article 22: <br /> <br /> (a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari'ah.<br /> <br /> 1. Everyone shall have the right to advocate what is right, and propagate what is good, and warn against what is wrong and evil according to the norms of Islamic Shari'ah.<br /> <br /> (c) Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical Values or disintegrate, corrupt or harm society or weaken its faith.<br /> <br /> (d) It is not permitted to excite nationalistic or doctrinal hatred or to do anything that may be an incitement to any form or racial discrimination.<br /> International Covenant on Civil and Political Rights: This is a UN treaty from 1966. Under certain circumstances, it may be enforced by the International Court of Justice, but the ICJ generally only hears disputes between countries. Article 19: <br /> Everyone shall have the right to hold opinions without interference.<br /> <br /> 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.<br /> <br /> 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:<br /> <br /> (a) For respect of the rights or reputations of others;<br /> <br /> (b) For the protection of national security or of public order (order public), or of public health or morals.<br /> <br /> '''African Charter on Human and People’s Rights''': This charter, with 54 signatories, came into effect in 1986. Article 9 guarantees the right to free expression, although no exceptions are enumerated. The African Court of Human and People’s Rights has repeatedly protected free expression, but not without limit. For example, in Ingabire Victoire Umuhoza v. The Republic of Rwanda (2017), the court held that minimizing a genocide need not be protected because it could disturb public order and peace.<br /> <br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> Yes. The most famous defense of the freedom of expression principle is written by John Stuart Mill, who did include exceptions to this protection. Mill believed that freedom of expression should be curtailed when the circumstances of the message are intended to instigate violence or criminal activities. Mill also claims that this exception stems from the government's duty to protect others from harm, which is more broadly known as the &quot;harm principle.&quot; This, Mill claims, is the only context in which power can be &quot;rightfully&quot; executed over others (On Liberty 13). Mill uses the example of a corn-dealer, who is starving the poor. When this fact or opinion is published through the press, it is entirely permissible under Mill's doctrine. However, when this opinion is advertised to a large and unruly mob, expression of such sentiment should be curtailed because, if shared, it could cause immediate harm and instigate criminal or violent activities (On Liberty 52). Mill's threshold for regulation of expressions is extremely narrow; it could be argued that he does not exempt hate speech because it does not cause immediate harm to others. While Mill states that only the harm principle should be applied to regulations of freedom of expression, Joel Feinberg believes that the harm principle is not sufficiently broad enough to account for hate speech. He stipulates that an &quot;offense principle&quot; is also needed. Feinberg believes that the harm principle is too high of a standard and that the government has the right to censure some speech if they deem it too offensive. Since the offense principle lowers the standard for censure of free speech, so too should the punishments be lowered. Feinberg defines offense to be a &quot;negative mental state&quot; (Simpson 237). Feinberg justifies the offense principle by stating that being offended, or being in a negative mental state, actually impedes on an individual's liberty because being offended impedes on his/her daily activities (Simpson 238).<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> In many European countries (Germany, France, Austria, etc.), Holocaust denial is illegal and approximately 80 Facebook posts per year are blocked. Zuckerburg, in a 2018, interview stated that he found Holocaust denials to be deeply offensive, but does not believe that warrants censorship. Zuckerburg seems to follow the harm principle, stating that &quot;unless individuals are trying to organize harm against someone, or attacking someone,&quot; content should not be censored (Rosenberg 2018). Facebook's Community Standards (also includes Instagram) are intended to guide freedom of expression on the site through rules such as preventing offline harm related to Facebook content through &quot;consider[ing] the language and context in order to distinguish casual statements from content that constitutes a credible threat to public or personal safety.&quot; The community standards prohibit the presence of terrorist groups on Facebook. The standards also &quot;prohibit people from facilitating, organizing, promoting, or admitting to certain criminal or harmful activities targeted at people, businesses, property or animals.&quot; With hate speech, although the community standards are clear, their implementation is vague--&quot;We define hate speech as a direct attack on people based on what we call protected characteristics — race, ethnicity, national origin, religious affiliation, sexual orientation, caste, sex, gender, gender identity, and serious disease or disability.&quot; The community standards do not account for politic speech. In a speech at Georgetown University, Zuckerburg articulated his position for political censorship: &quot;I don’t think it’s right for a private company to censor politicians or news in a democracy&quot; (Ghaffary 2020). Although Twitter has extremely similar policies to Facebook, they have dramatically different applications. In early May, Twitter fact-checked President Trump's tweets regarding voting by mail by placing links to a fact-checking page that debunks the president's tweets. Twitter announced that it would place labels on tweets containing false or misleading information in response to misinformation about the COVID-19 pandemic (Ghaffary 2020). Previously, Twitter had resisted such a move because the president is a world leader and considered his tweets as &quot;noteworthy&quot; and, as such, exempted them from their standards policy (Ghaffary 2020). Facebook has a similar conduct policy, but enacts it much differently. In response to the move, Zuckerburg stated that Facebook should not, nor is, an &quot;arbiter of truth&quot; (Ghaffary 2020). Twitter again used its new policy on the president's tweet about protests, saying that his &quot;when the looting starts, the shooting starts&quot; violated Twitter's policy of glorifying violence (Ghaffary 2020). Facebook, on the other hand, defended its position of not censoring the same statement by saying &quot;didn’t violate Facebook’s policies about inciting violence. He said the company saw it 'as a warning about state action,' and that 'people need to know if the government is planning to deploy force” (Ghaffary 2020).<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> Freedom of expression can be limited in times of crisis, most notably in wartime. This was first enacted in the late 1790s, with the Alien and Sedition Acts. The Sedition Act most markedly affected freedom of expression and freedom of the press by making it illegal to speak against the government or president (&quot;Alien and Sedition Acts&quot;). These limitations were consistently applied in times of war until World War I, when its legality was cemented by the Supreme Court with Schenck vs. United States (Emerson 1968). In Schenck v. US, the Court ruled that the standards for regulation of freedom of speech were lower in wartime (&quot;Schenck v. United States&quot;). It also established, for the first time, the &quot;clear and present danger&quot; test, clarifying that &quot;the First Amendment does not protect speech that approaches creating a clear and present danger of a significant evil that Congress has power to prevent (&quot;Schenck v. United States&quot;). During the Vietnam War, freedom of expression was upheld in New York Times v. United States by saying freedom of the press was &quot;was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government&quot; (Hudson).<br /> In states of emergency, such as the national one declared at the beginning of the COVID-19 pandemic, the president is granted special troubles that include infringements on freedom of the press/expression. One such power is the ability to shut down radio stations during a time of &quot;public peril.&quot; This ability is cemented in section 706 of the Communications Act of 1934 (Rottman 2020). Since the law was passed in 1934, it did not include other forms of news publication, such as websites and TV news stations. There is a fear, however, that the government could broaden the law to include these types of news dissemination (Rottman 2020). In the COVID-19 pandemic, states and counties have declared media companies as essential services, thus exempting them from quarantine and shelter-in-place limitations (Rottman 2020).<br /> <br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Association&diff=206 2020-07-13T14:28:46Z

<p>Ksandlund: /* Buddhism */</p> <hr /> <div>==What is the oldest written source that mentions this right?==<br /> John Locke’s “A Letter Concerning Toleration” (1689) primarily concerns religious associations, but he extends certain arguments to associations in general. The text in the next paragraph is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right (241). <br /> <br /> “Suppose this Business of Religion were let alone,” Locke hypothesizes, “and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.” Under conditions of differential treatment, such persons, “united together by one common persecution,” would become just as dangerous and disruptive. Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter.<br /> <br /> In 1776, Richard Price, a British writer who supported the American revolution published Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America. Unlike other commentaries on civil rights, he includes discussion on free assembly. He describes a prohibition on “associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy” as being part of a “state of oppression which no country can endure.” Though he does not phrase it as a fundamental right, the fact that Price deems draconian restrictions on association oppressive implies a belief in at least a limited freedom of association.<br /> <br /> Though Enlightenment commentators like Locke argued for and against greater freedom to associate. However, the first to mention it as an absolute right was John Stuart Mill, who argues ''in On Liberty'' that “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (1859, 16).<br /> <br /> ===What is the oldest written source in this country that mentions this right?===<br /> ====Afghanistan====<br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> ====Armenia====<br /> ====Australia====<br /> Australia has detailed records of its constitutional convention, which occurred in the 1890s. In 1897. One speaker alluded to the power of free association: “The English feel the vigor of their public spirit; they have experienced the vigilance of a free press, and the power of associations and public meetings.”<br /> <br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> Chapter 2 of Botswana’s Constitution (1966) guarantees “freedom of conscience, of expression and of assembly and association.”<br /> <br /> ====Brazil====<br /> Brazil’s constitution (1988) has exceptionally detailed freedom of association provisions. Title II-I-5 states that: <br /> <br /> - there is total freedom of association for lawful purposes, but any paramilitary association is prohibited;<br /> <br /> - creation of associations and, as set forth in law, of cooperatives, requires no authorization, prohibiting state interference in their operations; <br /> <br /> - associations may be compulsorily dissolved or their activities suspended only by a judicial decision, which in the former case must be a final and unappealable decision;<br /> <br /> - no one can be compelled to join an association or to remain in one;<br /> <br /> - when expressly authorized, associations have standing to represent their members judicially and extrajudicially<br /> <br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> Chapter 345 Section 5 of Saskatchewan’s Bill of Rights (1947) states that “every person and every class of persons shall enjoy the right to peaceable assembly with others and to form with others associations of any character under the law.”<br /> <br /> Part 1 of the Canadian Bill of Rights (1960) lists “freedom of assembly and association” as a guaranteed right. This was an ordinary act of parliament, and it has been replaced by the Canadian Charter of Rights and Freedoms, an amendment to the Canadian Constitution.<br /> <br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> Chapter 2-4 of the Provisional Constitution of the Republic of China (1912) states that “citizens shall have the freedom of speech, of composition, of publication, of assembly and of association.”<br /> <br /> The 1912 Republic of China Constitution refers to the one adopted by the nationalist government on the mainland, led by Sun Yat-sen. Despite its lofty ideals, this government never really maintained power. After a period of instability and civil war, the CCP forced the nationalist government to retreat to Taiwan, which is known now as the Republic of China. Taiwan suspended its constitution, and it was under a repressive martial-law system until 1987. It is now a constitutional democracy, and freedom of association is protected in its constitution. The PRC constitution claims to protect freedom of association, among other civil liberties.<br /> <br /> ====Colombia====<br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> Section II-18 of Estonia’s first constitution (1920) states that “The forming of associations and unions is free in Esthonia.&quot;<br /> <br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> Title I of the French Constitution of 1791 guarantees the right of peaceful assembly. <br /> <br /> “Liberty to citizens to assemble peaceably and without arms in accordance with police regulations.”<br /> <br /> Though the French Constitution of 1791 protected the right to assemble, French revolutionaries considered explicitly excluding free association (Boyd 257). The French enacted a law protecting free association in 1901, and enshrined it in their constitution in 1971 (Boyd 2008, 237).<br /> <br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> The Weimar Constitution (1919) established freedom of association. <br /> <br /> Article 123: “All Germans have the right to assembly peacefully and unarmed without giving notice and without special permission.” <br /> <br /> Article 124: “All Germans have the right to form associations and societies for purposes not contrary to the criminal law.”<br /> <br /> ====Ghana====<br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> The following quote was attributed to Gandhi in 1922: <br /> <br /> “Freedom of association is truly respected when assemblies of people can discuss even revolutionary projects, the State relying upon the force of public opinion and the civil police, not the savage military at its disposal, to crush any actual outbreak of revolution that is designed to confound public opinion and the State representing it.., The fight for swaraj means a fight for this threefold freedom before all else.&quot; <br /> <br /> Part III Article 19 of the Indian Constitution (1950) grants citizens the right to “form associations or unions” (Dalton).<br /> <br /> ====Indonesia====<br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> Article 40 of the Irish Constitution (1940) guarantees “the right of the citizens to form associations and unions.”<br /> <br /> ====Israel====<br /> ====Italy====<br /> Part 1 Title 1 Article 18 of the Italian Constitution (1947) states that: <br /> <br /> - “Citizens have the right to form associations freely and without authorization for those ends that are not forbidden by criminal law.” <br /> <br /> - “Secret associations and associations that, even indirectly, pursue political aims by means of organisations having a military character shall be forbidden.”<br /> <br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> Chapter III Article 21 of the Japanese Constitution (1947): “Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.” <br /> <br /> Additionally, though finding direct texts has proven difficult, there have been political movements for greater political expression since the pre-war era. The freedom and popular rights movement existed throughout the second half of the 19th century, and its members advocated for increased freedom of assembly beginning no later than 1886 (Tierney 2013, 21).<br /> <br /> ====Jordan====<br /> ====Kazakhstan====<br /> ====Kenya====<br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> ====Laos====<br /> ====Latvia====<br /> The Latvian Constitution added a section on fundamental rights in 1998. Article 102 states that “everyone has the right to form and join associations, political parties and other public organisations.”<br /> <br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> From Section 1 Article 9 the Mexican Constitution of 1857: “No one shall be deprived of the right peaceably to assemble or to come together for any lawful purpose; but only citizens shall be permitted to exercise this right for the purpose of taking part in the political affairs of the country. No armed assembly shall have the right to deliberate.”<br /> <br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> Part 2 Section 17 of the Bill of Rights Act (1990) states that, “Everyone has the right to freedom of association.”<br /> <br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> Chapter IV Section 37 of the constitution of the Second Republic (1979) states that “every person shall be entitled to assemble freely and associate with other persons, and any political party, trade union, or other association for the protection of his interests.”<br /> <br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> ====Oman====<br /> ====Pakistan====<br /> The following is from Part II, Chapter I, Section 17 of Pakistan’s current constitution (1973). <br /> <br /> “Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.”<br /> <br /> “Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.”<br /> <br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> ====Philippines====<br /> ====Poland====<br /> ====Portugal====<br /> Article 46 of the Portugese Constitution (1976): <br /> <br /> “Citizens shall possess the right to freely associate with one another without requiring any authorisation, on condition that such associations are not intended to promote violence and their purposes are not contrary to the criminal law.” <br /> <br /> “Associations shall pursue their purposes freely and without interference from the public authorities and shall not be dissolved by the state or have their activities suspended, except in such cases as the law may provide for and then only by judicial order.”<br /> <br /> “No one shall be obliged to belong to an association, or be coerced to remain therein by any means.”<br /> <br /> “Armed associations, military, militarised or paramilitary-type associations and organisations that are racist or display a fascist ideology shall not be permitted.”<br /> <br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> ====South Africa====<br /> Chapter 3 section 17 of the 1993 Interim Constitution states that “every person shall have the right to freedom of association.”<br /> <br /> ====South Korea====<br /> <br /> Chapter two Article Ten of the Constitution (1948): “All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association.”<br /> <br /> ====South Sudan====<br /> ====Spain====<br /> ====Sri Lanka====<br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> The 1990 Human Rights Act protects the Right to assemble and associate, subject to reasonable and proportionate restrictions. The HRA primarily serves to codify the European Convention on Human Rights into British Law (the ECHR and its associated court are not related to the EU, and the UK is still a signatory). <br /> <br /> In 1776, Richard Price, a British writer who supported the American revolution published ''Observations on the Nature of Civil Liberty'', the Principles of Government, and the Justice and Policy of the War with America. Unlike other commentaries on civil rights, he includes discussion on free assembly. He describes a prohibition on “associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy” as being part of a “state of oppression which no country can endure.” Though he does not phrase it as a fundamental right, the fact that Price deems draconian restrictions on association oppressive implies a belief in at least a limited freedom of association. This is the first instance I could find of a political theorist invoking the concept of freedom of association (or the lack thereof).<br /> <br /> There is a more explicit case for free association in John Stuart Mill’s On Liberty (1859). Mill lays a broad notion of individual liberty. He then argues that “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived (16).”<br /> <br /> Before any British thinkers espoused freedom of association as a right, John Locke, Thomas Hobbes, and David Hume addressed the issue (as Boyd helpfully summarizes). Hobbes detested associations, referring to them as “lesser commonwealths in the bowels of a greater, like worms in the entrails of a natural man” (257). <br /> <br /> Locke disagreed with Hobbes’ cynical perspective on groups. John Locke’s “A Letter Concerning Toleration” primarily concerns religious associations, but he extends certain arguments to associations in general. The italicized text below is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right (2008, 241). <br /> <br /> “Suppose this Business of Religion were let alone,” Locke hypothesizes, “and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.” Under conditions of differential treatment, such persons, “united together by one common persecution,” would become just as dangerous and disruptive.26 Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter.<br /> Finally, David Hume’s “Of Parties in General” (1742) is another important piece of Enlightenment work skeptical of associations. His position is more nuanced that Hobbes; he understands that association may exist for different purposes. Factions “of interest” are deemed less dangerous than factions “of principle.” Regarding factions of principle, he wonders the following: “But where the difference of principle is attended with no contrariety of action, but every one may follow his own way, without interfering with his neighbour, as happens in all religious controversies; what madness, what fury can beget such unhappy and such fatal divisions?”<br /> <br /> ====United States====<br /> Listed at the bottom of this section is language from the State Constitutions of New Hampshire and North Carolina and the Pennsylvania Declaration of Rights, all from 1776, which articulate the right to assemble (assembly and association are not always interchangeable, but many constitutions group them together). These documents all contain rights to assemble written in remarkably similar language, and they describe the right as politically driven. These were the oldest references to something like the right of association in governing documents.<br /> <br /> Despite modern views of assembly as related to association, at the time of America’s founding, it would have been better understood as related to the right to petition. According to Congress’s online annotated Constitution, the assembly clause meant that the people have a right to assemble in order to petition the government. The site says that assembly was initially seen as a “subordinate and instrumental” right (&quot;Freedom of Assembly and Petition&quot;). The aforementioned state constitutions should be interpreted the same way. In fact, this is even more clear in these state constitutions than in the national one. The state constitutions surround the right to assemble with expressly political language, such as the right to petition and advocacy for the “common good,” while the First Amendment’s guarantees are political, but not entirely political (it protects religion, and protected speech and press are often, but not always, political). <br /> <br /> As Richard Boyd argues in “The Madisonian Paradox of Free Association,” America’s founders did not explicitly include free association because at least some of them were skeptical of it, worrying that certain associations would be conspiratorial or seditious. He summarizes the British Enlightenment tradition skeptical of associations, which influenced the founders (I describe this in the last few paragraphs of the UK section, on Hobbes, Locke, and Hume). James Madison, the primary author of the Bill of Rights, feared the influence of factions, which private associations furthered. As Boyd notes, Madison viewed association as a “second-order” right (page 258), whose existence is tolerable because institutions can mitigate its worst effects (page 247). The following passage from “Federalist No. 10” illustrates his attitude toward factions arising from free association: <br /> <br /> It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.<br /> <br /> As Boyd notes, there are several possible reasons why Madison may not have enumerated the right to associate. It is possible that he saw it as implied by other First-Amendment rights, such as free assembly. It also may have been seen as less important or vulnerable than other rights, and Madison may have seen it as the type of auxiliary right protected by the Ninth Amendment. Finally, the right’s exclusion may have been because the founders were too skeptical of it for its inclusion (258). <br /> <br /> Since the 1950s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in NAACP v. Alabama that the NAACP cannot be forced to submit a membership roster to a state government. In 2000, in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association. <br /> <br /> In ''Roberts v. US Jaycees'', an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.” <br /> <br /> Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in ''NAACP v. Button'', “It is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.” <br /> <br /> Article XVIII of North Carolina’s Constitution: “That the people have a right to assemble together, to consult for their common good, to instruct their Representatives, and to apply to the Legislature, for redress of grievances.”<br /> Section 21 of New Hampshire’s Constitution: “The citizens have a right in a peaceable manner to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or for other purposes, by petition, address, or remonstrance. No law abridging the freedom of speech shall be enacted.”<br /> <br /> Section XVI of the Pennsylvania Declaration of Rights: “That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance.<br /> <br /> ====Uruguay====<br /> ====Uzbekistan====<br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> Pope Leo XIII forcefully argued for free association in Section 51 of ''Rerum novarum'' (1891), an extremely influential text in Catholic thought. <br /> <br /> &quot;Private societies, then, although they exist within the body politic, and are severally part of the commonwealth, cannot nevertheless be absolutely, and as such, prohibited by public authority. For, to enter into a &quot;society&quot; of this kind is the natural right of man; and the State has for its office to protect natural rights, not to destroy them.&quot;<br /> <br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> This right became an element of political discourse in the late Enlightenment, especially the American Revolution. In the mid and late 1800s, writers such as Mill and Leo XIII pushed the idea into the mainstream.<br /> <br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> <br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> Constitutions written after 1900 very often protect free association.<br /> <br /> As the right to free association is upheld by numerous United Nations treaties, for example, the European Convention on Human Rights, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, it would be expected that most countries maintain legal provisions protecting it. Though, investigated by UN Special Rapporteur Maina Kiai, many countries enforce legislation that explicitly restricts civilians’ entitlements to free association (International Center for Not-for-Profit Law). <br /> <br /> For example, noted by Kiai, in Malaysia, the Peaceful Assembly Act 2012 bans individuals under the age of twenty one from organizing public demonstrations. Additionally, stipulated by the same act, children under the age of fifteen cannot participate in demonstrations. Article 33 of the Constitution of Mexico, Kiai asserts, prohibits foreigners from engaging with Mexican politics. Similarly, Kiai notes that in Myanmar, Article 354 prohibits foreigners from assembling. Through these various forms of legislation, political and social association are highly restricted, as individuals are prohibited from expressing their associations through protest and civic engagement. <br /> <br /> Additionally, Kiai presents how legal restrictions on sexual orientation limit free association in several countries. For example, in Russia, a ban on gay pride parades was upheld by Moscow’s city council in 2012. Likewise, in Nigeria, the President ushered in the Same Sex Marriage Act in 2014, prohibting gay marriage and the ability to “participate in or support gay clubs, societies, organizations, processions or meeting.” Kiai notes a similar anti-homosexuality law was signed by Uganda’s president in 2014. Demonstrated by these numerous legal restrictions to homosexuality, free association is unprotected in numerous countries, as one can often be punished for associating with a specific sexual orientation. <br /> <br /> In the remainder of his report, Kiai continues to elaborate on numerous legal provisions that restrict free association. For example, Kiai notes how both Chile and Turkey utilize counter-terrorism legislation to restrict free association. Similarly, he explains how criminal laws in Vietnam and El Salvador often deter individuals from exercising their rights to free association, as their voices may be met with harsh penalties from their governments. <br /> <br /> Witnessed through Kiai’s reporting, the restrictions to free association are plentiful. This ultimately demonstrates that despite its entitlement by numerous United Nations treaties, the right to free association is highly vulnerable to violation and not widely internationally upheld.<br /> <br /> ===Is it contained in the US Constitution?===<br /> No.<br /> <br /> The right to free association is not explicitly stated in the United States Constitution. Though, The Supreme Court has historically upheld the constitutional right to free association, invoking the Fourteenth and First Amendments (Legal Information Institute, Cornell Law School). In 1958, The NAACP v. Patterson ruling established this precedent. In response to Alabama’s aims to limit the NAACP’s business within the state, the Supreme Court ruled that it was “the right of petitioner's members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment” (Oyez). Furthermore, the court asserted that freedom of association was undoubtedly covered by the Due Process Clause of the Fourteenth Amendment (Oyez), which asserts no individual may be “&quot;deprived of life, liberty or property without due process of law.” The court additionally demonstrated the First Amendment to protect free association, Justice Marshall Harlan claiming “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” Thus, while the right to free association is not explicitly described by the Constitution, as witnessed in NAACP v. Patterson, it is upheld by American constitutional law.<br /> <br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> Since the 1950s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in ''NAACP v. Alabama'' that the NAACP cannot be forced to submit a membership roster to a state government. In 2000, in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association. <br /> <br /> In ''Roberts v. US Jaycees'', an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.” <br /> <br /> Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in NAACP v. Button, “It is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.”<br /> <br /> ===Are there any exceptions in American law to this right?===<br /> Yes. As seen in ''Roberts v. US Jaycees,'' the right may be weighed against other state interests, especially when the association in question is neither expressive nor intimate. In that case, free association rights were curtailed to ensure adherence to non-discrimination laws.<br /> <br /> Additionally, a significant exception to free association rights in the United States is witnessed through legislation regarding political parties. Furthermore, while one has the liberty to vote with, join, and create independent political parties, upheld by the William V. Rhodes ruling, the state can still regulate these parties if they violate other aspects of the Constitution. For example, in New York State Board of Elections vs. Lopez Torres, the court claimed, <br /> <br /> <br /> A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform. These rights are circumscribed, however, when the state gives a party a role in the election process...Then for example, the party’s racially discriminatory action may become state action that violates the Fifteenth Amendment<br /> Demonstrated by New York State Board of Elections vs. Lopez Torres, if a party associates with discriminatory or racist behavior, it cannot be involved in the state’s election process, demonstrating a limitation on free political association. <br /> <br /> Additionally, sections of the Federal Election Campaign Act are often interpreted to be exceptions to free association, as they require the public disclosure of individuals’ political donations. This position was echoed by the Buckley v. Valeo ruling, where the Supreme Court argued that new campaign finance laws, “impose significantly more severe restrictions on protected freedom of political expression and association than do its limitations on financial contributions.” Thus, witnessed by Buckley v. Valeo, campaign finance laws may be interpreted as an exception to free association, as one cannot privately financially contribute to the political party they associate with. <br /> <br /> Within universities, freedom of association, specifically the right to associate as an exclusive religious group, may be regulated by anti-discrimination clauses. This was observed in Christian Legal Society v. Martinez, where the court ruled in favor of Hastings’ College of Law’s anti-discrimintation policies, which prohibited Christian student group’s from excluding non-christians. Therefore, on university campuses, individuals must be able join any student group, regardless of their religious association. Ultimately, this decision restricted the parameters of free association, as one cannot actively discriminate on the basis of it. <br /> <br /> Consequently, decided by Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, certain groups can legally exclude individuals from associating with them. Furthermore, if an individual’s beliefs do not coincide with the group’s mission, the individual may be prohibited from membership. Specifically, the court claimed that by mandating the Boston Veterans’ Council to include Gay, Lesbian, and Bisexual individuals in their parade, the Massachusetts State Court, “violates the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.” Thus, while still restricting free association, the ruling counters Christian Legal Society v. Martinez, as individuals can be restricted from associating with certain groups if it is deemed that their identity does not conform to the group’s platform.<br /> <br /> Ultimately, these exceptions arise from the implicit nature of the freedom of association within the Constitution, as what qualifies as “association” is highly subject to interpretation by Supreme Court justices. For this reason, depending on who is sitting on the bench, freedom of association can be left unchecked or potentially be highly restricted.<br /> <br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> Yes. It is protected explicitly in documents such as the Universal Declaration of Human Rights, the European Convention on Human Rights, and the American Convention on Human Rights.<br /> <br /> Specifically, free association is upheld by Article 11 of the European Convention on Human Rights, which claims, “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”Additionally, it is enshrined in Article 20 of the Universal Declaration of Human Rights, which claims “ Everyone has the right to freedom of peaceful assembly and association; No one may be compelled to belong to an association.” In Article 22 of the International Covenant on Civil and Political Rights, the rights to association are specifically outlined, as it upholds “In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Lastly, The International Labor Organization similarly supports freedom of association in the 1998 Declaration on Fundamental Principles and Rights at Work, which asserts that all members have “freedom of association and the effective recognition of the right to collective bargaining;”<br /> <br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> The Five Precepts of Buddhism condemn activity relating to “sexual misconduct, falsehoods, and intoxicants” (Peek,529), possibly limiting the ability of individuals to associate with certain behaviors or activities. While Buddhism does warn against disobeying the Five Precepts, as this may result in bad Karma, it ultimately asserts that it is the choice of the individual to decide whether or not they wish to follow the declarations of the Five Precepts (Peek, 529). Furthermore, Buddhism’s focus on moral authority, in which the individual is not subordinate to the Five Precepts, can be interpreted as allowing individuals freedom in regards to association. Demonstrated by this, although Buddhism provides guidelines for what followers ought to avoid associating with, these are merely suggestions. Thus, emphasizing the freedom of the individual, Buddhism can be seen to support the right to free association.<br /> <br /> Though, the traditions of Buddhist monks reveal how certain Buddhist practices restrict freedom of association. As explained by Holmes Welch, “According to the Buddha’s rule, when people become monks and nuns they lead a collective life. Not only is there no private property, but there is no thought for oneself. To take thought for oneself is to keep hold of the ego” (Welch, 146). Noted by Welch, upon entering monastic life, Buddhists are expected to relinquish all previously held associations. Therefore, observed through the expectations of monks, elements of Buddhism confine free association. <br /> <br /> Additionally, through the Eightfold Path, the eight practices Buddhists are expected to follow on their journey to nirvana, certain behaviors are limited. For example, when following the Eightfold Path, individuals are restricted from making a living off selling animals, weapons, meat, poison, and liquor (Tilakaratne, 48). Condemning certain professions and ways of life, Buddhism again appears to limit the associations of its followers, undermining the strength of the freedom of association within the belief system.<br /> <br /> Looking to Buddhist leaders, freedom of association is ultimately upheld. For example, in a 1993 Washington address, the Dalai Lama demonstrated his admiration for the principles of democracy, particularly the liberties, such as freedom of association, it guarantees to civilians. The Dalai Lama asserts, “Irrespective of whether we are rich or poor, educated or uneducated, belonging to one nation or another, to one religion or another, adhering to this ideology or that, each of us is just a human being like everyone else.” Through his words of acceptance, the Dalai Lama conveys that Tibetan Buddhism supports the ability to freely associate with many identities. Thus, while the Five Precepts, monastic codes, and Eightfold Path appear to restrict the liberties of followers, the Dalai Lama’s words affirm them.<br /> <br /> ====Platonism====<br /> ====Aristotelian thought====<br /> Aristotle, in his book Nicomachean Ethics, wrote that “Friendships are also important parts of our childhood and adult experience. Without them, we struggle to discover, shape, and pursue our ideas of what constitutes a good life. But, again, friendships can take many forms for many reasons, not all of which are grounded in mutual affection and convivial warmth” (Brownlee and Jenkins 2019). Friendships here form the basis of our associations in life; he ultimately argues that we as humans require association and assembly in our lives. <br /> <br /> Aristotle argues that not all forms of association are political, particularly those that stem from material needs, including family, the market, and alliances for mutual defense/benefit- these can be organized into libertarian and capitalist principles. According to one’s needs, individuals are free to associate and disassociate within their own means of persuasion and trade, and none of this is political- or in other words, the government should have no business with the private associations of the people (Johnson 32, 2001). Regarding politically, he further argues that “It is not the case . . . that people come together for the sake of life alone, but rather for the sake of living well” (3.9.1280a31) and “the political community must be set down as existing for the sake of noble deeds and not merely for living together” (Johnson 32, 2001). He takes a stance against the dominance of individuals associating merely for political protection and gain, but he believed that the state should do more in its concern for the citizen, encouraging virtue and discouraging harm and vice (Johnson 32, 2001). He argues that the best political regime best delivers the “good life-” production and distribution of goods, both goods of the body and of the soul. Within this theory, Aristotle considers the production and distribution of bodily goods as private and the production and distribution of spiritual goods as public: “The primary goods of the soul are (1) moral and intellectual virtue, which are best produced by public education, and (2) honor, the public recognition of virtue, talent, and service rendered to the city. The principle of distributive justice is defined” (Johnson 38-39, 2001). Aristotle’s theory about freedom of association is that political associations’ ultimate goal is to help foster the virtues that are necessary in the pursuit of justice and happiness; therefore, “no legitimate regime can be indifferent to the virtue of the citizens” (Johnson 44, 2001). The polis is both the most inclusive and authoritative community according to Aristotle, seeing as Aristotle's polis is a mixed concept, fusing the political state with civil societal attributes including economic, religious, and other forms of association” (Miller 878, 1996).<br /> <br /> ====Ancient Chinese Philosophy====<br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought==== <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> Restricting certain groupings and gatherings that are involved, or likely involved in crimes as was seen with the response to the formation of the Ku Klux Klan as a vigilante association, is a typical exception to the right of freedom of association (Australian Law Reform Commission 2016). In response to the crimes committed by the organization, Congress passed a Force Act in 1870 and the Ku Klux Klan Act in 1871, which authorized the suppression of disturbances to the peace by force (Gruberg). This was in effort to stop terrorist organizations through heavy punishments, such as the suspension of habeas corpus under these acts. These acts were eventually found by the Supreme Court to be unconstitutional and were repealed; however, although direct restrictions upon the group (who was behind the 1963 bombing of a black church in Alabama, numerous murders including that of three civil rights workers in 1964 Mississippi, and other criminal efforts to impose white supremacy on the masses and restrict the rights of African Americans) and its freedom of assembly and association have not been able to lawfully prevent such crimes in the name of violations of the freedom of association, modern civil rights laws and increased national surveillance by the Federal Bureau of Investigation have indirectly impacted the KKK’s and other criminally-involved groups’ (such as terrorist groups like ISIL) freedoms of association and assembly. The First Amendment of the US Constitution grants the right to “peaceable assembly,” and any indication of unpeaceable assembly warrants government interference. When also the association infringes upon another group’s freedoms of association, endangers public safety and order, or does not benefit/or harms social need, as can be seen with the efforts of the KKK to restrict black Americans rights to vote and peaceably assemble, necessary limitations are placed upon the right. <br /> <br /> In terms of certain limitations on peaceable assembly, the government has the right to limit this freedom based upon “time, place and manner” restrictions: “Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity (O'Neill). These restrictions come in many forms including imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property. ” These limits ultimately regard the facilitation of legitimate regulatory goals, such as preventing traffic congestion or preventing interference with nearby activities.<br /> <br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> The freedom of association is derivative from the First Amendment which guarantees the freedoms of speech, assembly, and petition (Hudson 2020). These freedoms of speech, assembly, and petition all form sub-categories of the freedom of association. Collectively, this right permits a group to act in the collective interest of its members and to maintain private associations and assemblies without government interference. The legal problems regarding its practice have only recently arisen- particularly from the loyalty investigations of the Communist Party membership and a series of other cases in the 1950s and 1960s in relation to the activities of the National Association for the Advancement of Colored People (Cornell Law School Legal Information Institute 2020). For example, in 1958, with the case of the NAACP v. Alabama, the right to freedom of association was strengthened and supported by the Supreme Court who ruled in favor of the NAACP’s decision to withhold a list of members in the organization from the government (Hudson 2020). In response to Brown v. Board of Education 1954, Alabama authorities was closely investigating the NAACP under the foreign corporation law. The NAACP complied with the state’s request of its business records, including its charter and list of organizational officers and staff. They refused, however, to give lists of rank-and-file members due to confidentiality, potential economic reprisal attacks, and potential repression. Giving up the lists, civil rights activists said, would dissuade members and potential recruits from associating with the organization, ultimately violating their right of association. <br /> <br /> Prior to this case the Court had supported a stronger suppression of the freedoms of association and assembly regarding organizations that were alleged to be involved in subversive and unlawful activities. In 1928’s New York ex rel. Bryant v. Zimmerman and 1951’s Dennis v. United States the Court had ruled in favor of government efforts to restrict and limit the rights of assembly and speech of both the KKK and the Communist Party (U.S. Supreme Court 1928, 1951). In this case, however, the Court said NAACP did not cause harm to government or society, and they had complied with the demands of the Alabama government sufficiently; therefore they were justified and protected by law in their decision to withhold membership lists. <br /> <br /> Later, in the 1967 case of United States v. Robel in which Eugene Robel, an inactive member of the Communist Party, was charged with violating the Subversive Activities Control Act when he continued his work at the Todd Pacific Shipyards, a location that was deemed by the Secretary of Defense to be a defense facility (U.S. Supreme Court 2020). Under the Act, his actions was illegal due to his membership to the Communist Party and members of the Party’s legal inability to remain employed at a location deemed a “defense facility”. The Supreme Court ruled that the “defense facility” employment provision was an unconstitutional abridgment of the right of association regardless of its application solely to active Party members. Chief Justice Earl Warren wrote that the provision was overbroad while Justice William J. Brennan added that the designation of defense facilities being a power given to the Secretary of Defense was unconstitutional because the Act provided no meaningful standards for the Secretary to follow. This case was a milestone because, once tested, the Court upheld the broad freedoms of association and continued the prohibition of government interference and bias towards any individual based upon an affiliated association. Later cases regarding the Bar examine and admission to the bar further backed this right. In 1971’s Baird v. State Bar of Arizona and Law Students Research Council v. Wadmond, the Supreme Court established that the government could only deny admission to the bar if an applicant’s membership in a group advocating overthrow of the government (such as the Communist Party) was legitimately coupled with the specific intent to achieve that end (U.S. Supreme Court 1971).<br /> <br /> These cases established that organized groups in association that gather in efforts to advance political, economic, religious, or cultural matters may gather without government interference (and particularly without government knowledge of listed members) unless the group explicitly poses a threat to society or engages in criminal activity. <br /> <br /> Under American jurisprudence, permissible exceptions to the freedom involve matters of internal affairs such as discrimination cases. In the 1976 case of Runyon v. McCrary, discrimination based upon race was established as a limitation to a body’s freedom of association after two children were denied access to certain private schools in Virginia as a result of the schools’ admitted segregationist school policies (U.S. Supreme Court 1976). Later, in the Roberts v. United States Jaycees court case of 1984, the court ruled that the Jaycees, an organization of young business leaders that only fully accepted male members and who claimed that the anti-discrimination laws that forced them to accept qualified women was a breach of their freedom of association, lacked “the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women,” ultimately prohibiting their exclusion of women (Bernstein 2020). <br /> <br /> Also, if the state has a compelling interest, it can justifiably limit associations’ rights to organizational autonomy (Alexander 2008, 14). Here, the state would be setting limits and requirements for how a group is organizationally run and made up. By giving an organization a quota, the state forces a particular pattern of inclusion that is in the public interest. For example, the US government is permitted to work to create less segregated schools, involving programs like the Moving to Opportunity (MTO). It is permitted to do in efforts to promote certain patterns of inclusion and acceptance within communities and associations (U.S. Department of Housing and Urban Development 1992).<br /> <br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> In Article 22 of the UN’s International Covenant on Civil and Political Rights (ICCPR), the right to freedom of association is granted to all, including joining trade unions (United Nations 1966). Restrictions can only be placed on this right if the restrictions are prescribed by the state’s law and “are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.” Similarly, in Europe, derogations are permissible only when “prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others” as is stated in Article 11 of the European Convention on Human Rights (European Court of Human Rights 1953, 12). And Article 16 of the American Convention on Human Rights mirrors the decree of the ICCPR (Inter-American Commission on Human Rights 1969).<br /> <br /> Regarding the International Labour Organisation (ILO) and its adoption of Freedom of Association and Protection of the Right to Organize, this body is in place to protect the labor interests of those around the world, and they are prohibited by international law to formulate and/or apply law so as to prejudice against any group (Swepston 1998, 172).<br /> <br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> <br /> Freedom of association is an essential facet of modern democracy, yet it is often overlooked in political discourse on the natural rights and liberties of the citizen. This could be due to the fact that freedom of association and assembly are often so closely related to freedoms of speech and expression, or it could be because it is so difficult for political theorists to decide which association should be allowed and which can be justifiably restricted. Whatever the case, the debate over exceptions to the right of free association continues to change and evolve even in the modern era.<br /> <br /> John Locke is one of the earliest proponents of natural right theory; his second “Treatise on Government” famously outlines humankind’s three essential rights to life, liberty, and property (Locke, “Treatise on Government”). He does not specifically mention people’s freedom of association, but scholars point to his writings on religious assembly as an indication of his stance on the right. In a George Mason University publication, Eric Claeys refers to a passage from Locke’s “Letter Concerning Toleration,” which states that a church is simply a “free and voluntary society” (Locke, “A Letter Concerning Toleration”), saying that “if one reads the same passage from the Letter with an eye toward issues about associational freedom, Locke is making a far more radical point: All private societies, churches and otherwise, deserve a presumption of associational freedom” (Claeys, “The Private Society and the Liberal Public Good in John Locke’s Thought”). In light of Claeys’ assessment, it is easy to observe Locke’s thoughts on the freedom of association in the constitution that he wrote for the Carolina Colony in 1669. For example, Article 103 of this document states that “no person whatsoever shall speak anything in their religious assembly irreverently or seditiously of the government or governors, or of state matters” (Locke, “The Fundamental Constitutions of Carolina: March 1, 1669”). This reveals a reluctance on Locke’s part to allow any association of citizens to gather in opposition of the established government, perhaps because he understands the potential threat that this could pose to political society. His position on the freedom of association is made all the more clear in his 108th Article, which stipulates that “assemblies, upon what presence soever of religion, not observing and performing the above said rules, shall not be esteemed as churches, but unlawful meetings, and be punished as other riots” (Locke, “The Fundamental Constitutions of Carolina: March 1, 1669”). The “above said rules” to which Locke refers consist mostly of provisions to ensure free membership and movement between various religious establishments, but the classification of non compliant assemblies as “unlawful” or “riots” implies a Locke’s hesitation to allow totally free and unrestricted assembly.<br /> <br /> Subsequent political theorists built upon Locke’s theory of rights and liberties, and a number of them elected to deal with the right to freedom of association more directly. The United States Constitution, much of which rests upon Lockean political theory, is one of the first documents to directly address freedom of assembly in its text. Perhaps the buildup to the American Revolution, in which groups like the Sons of Liberty and the Stamp Act Congress were outlawed and broken up by the British government, affected the Constitutional Convention’s decision to include assembly in the Bill of Rights. The Constitution’s First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” (The Constitution of the United States of America). The Constitutional Convention, led by prominent statesman James Madison, used the word peaceably to signal that citizens were not entitled to the complete freedom of assembly if such activity could potentially generate violence or unrest (Law Library of Congress, “The Right to Peaceable Assembly”). The Cornell Law Review writes that this guarantee gradually came to protect citizens’ rights to participate in organizations that regularly utilize their members’ constitutional rights to freely assemble and petition the government. It states that over time, “Supreme Court decisions gradually determined that “the right of association is derivative from the First Amendment guarantees of speech, assembly, and petition” (Legal Information Institute, “Right of Association”). While Madison and his colleagues did not directly address freedom of association in the Constitution’s text, they did lay the groundwork for its realization years later.<br /> <br /> French diplomat Alexis De Tocqueville traveled to the United States in the early 1800s in order to observe the country, and in 1835 he published his findings in his first volume of Democracy in America. In this work the Frenchman sung praise for the American system of government, applauding it for spreading liberty and freedom within its borders. However, even de Tocqueville understood the danger inherent in the guarantee of totally unrestrained freedom of association. Linking the freedom of association to such constitutional rights as the freedom of petition and freedom of the press, he writes that “it cannot be denied that the unrestrained liberty of association for political purposes is the privilege which a people is longest in learning how to exercise. If it does not throw the nation into anarchy, it perpetually augments the chances of that calamity” (De Tocqueville, Democracy in America). De Tocqueville goes on to explain that American association is generally peaceful because citizens tend only to use it to oppose political groups, but he nevertheless must address the danger inherent in the guarantee of unrestricted freedom of association. Even in what he sees as a most ideal form of government, the Frenchman recognizes the risks inherent in unrestricted freedom when it comes to assembly and association.<br /> <br /> Decades later, John Stuart Mill came to a similar conclusion in his 1859 work, On Liberty. Mill was familiar with the American system of government, as evidenced by his mentions of American religious toleration and prohibition of “fermented” drinks, so it is possible that his thinking was influenced in some way by Madison’s work on the Constitution (Mill, “On Liberty”). In his work, Mill advances the theory that humans band together solely for the purpose of protection, and that therefore we can never have the authority to restrain others’ liberty. However, he notes that “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others” (Mill, “On Liberty”). Later on, he explicitly asserts that “freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (Mill, “On Liberty”). Clearly, Mill is aware of the dangers implicit in the creation of total freedom of assembly, and he agrees with the Constitutional Convention that this important right can permissibly be subject to certain regulations and limitations.<br /> <br /> The political and philosophical debate over freedom and association and its acceptable limitations evolved dramatically in the United States in the late nineteenth and early twentieth centuries. Writing just over a century after Mill, First Amendment scholar Thomas Emerson produced an article entitled “Freedom of Association and Freedom of Expression,” in which he addresses a number of issues relating to freedom of association by assessing court precedents and the lessons of history. Like the documents from Mill and Madison, Emerson’s article holds that complete freedom of association would be detrimental to society. Using the example of an organization whose sole aim is to perpetrate a successful bank robbery, Emerson points out that “some types of association need, and are entitled to, greater protection than others” (Emerson, “Freedom of Association and Freedom of Expression,”). He goes on to state that “the legal doctrine that protects associational rights must be able to distinguish between them and to afford the required measure of protection in each case” (Emerson, “Freedom of Association and Freedom of Expression”). Taking into account twentieth-century court decisions, Emerson explains that “the Supreme Court, in recognizing an independent &quot;right of association,&quot; has undertaken to give that right constitutional protection primarily through application of a balancing test” (Emerson, “Freedom of Association and Freedom of Expression”). <br /> <br /> This balancing test is incredibly important in determining the constitutionality of certain restrictions on citizens’ association because it must avoid violating citizens’ unequivocal right to free expression while still preventing the perpetration of unlawful action (Emerson, “Freedom of Association and Freedom of Expression,”). The case of NAACP v. Alabama is one case in which the Supreme Court attempted to find this balance. This instance in which the NAACP argued that the state of Alabama could not constitutionally require the organization to disclose a list of its members, proved incredibly important to our modern understanding of the right to association. Writing the majority opinion, Justice John Marshall Harlan II explained that “it is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment” (Franklin, “NAACP v. Alabama”). This differed from other contemporary cases, such as New York ex. rel Bryant v. Zimmerman, in which the Supreme Court had ruled in favor of the state’s ability to restrict association related to the Ku Klux Klan. The difference, Harlan explained, was that unlike the KKK, the NAACP did not present a threat to society. For this reason, the organization and the members involved were protected under the First Amendment’s protection of citizens’ freedom to peaceably assemble (Franklin, “NAACP v. Alabama”). Harlan, like Madison, Locke, and Mill, understood the importance of restricting free association in order to preserve the peace in society.<br /> <br /> The right to free association is famously difficult to address because the general consensus is that association should not be completely free. For that reason, political theorists and philosophers have gone to great lengths over the centuries to define exactly when and why free association should be limited or left alone. The general consensus is that assembly and association are detrimental to society when they lead to violence or unrest, but as with other rights it is difficult for theorists to decide exactly what criteria turn a given gathering from an expression of free assembly into a potential threat to civil society.<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> <br /> Philosophers and political theorists generally agree that it is sometimes necessary to curtail free association, but this agreement does not answer questions of which forms assembly and association can permissibly be restricted, how they should be limited, or who should control their regulation. It often falls to the government to decide when to step in during times of popular uprising or violent protest, but history also shows a number of instances in which private actors have curtailed citizens’ right to free association or assembly.<br /> <br /> The most common way for private actors can curtail free association is by prohibiting assembly and demonstration on their privately-owned property. In U.S. law, there exists a precedent that protects citizens’ right to free association on public property precisely because the right is not guaranteed when it is practiced on private property. This doctrine was first introduced in 1936, when Jersey City mayor Frank Hague issued an ordinance prohibiting members of the Committee for Industrial Organization (CIO) from gathering in a public space and distributing “communist” literature (Garcia, “Hague v. Committee for Industrial Organization,”). The CIO, with the help of the American Civil Liberties Union, successfully argued that the New Jersey ordinance was unconstitutional under the First Amendment. Hague appealed to the Supreme Court, which upheld the original decision and struck the ordinance down (Garcia, “Hague v. Committee for Industrial Organization,”). Justice Owen Roberts justified the decision for Hague v. Committee for Industrial Organization by likening public spaces such as streets and parks to public forums, in which the free flow of ideas and discourse must be protected under the First Amendment. He made this ruling because he recognized that private actors retained the right to curtail citizens’ right to association when that association occurred on private property. In order to preserve the right to peaceable assembly, the Court’s decision set the precedent for the “public forum” doctrine, which continues to protect the right to association in public spaces to this day (Garcia, “Hague v. Committee for Industrial Organization,”). Writing for The First Amendment Encyclopedia, David Hudson writes that “in the Court’s forum-based approach, the government can impose reasonable time, place, and manner restrictions on speech in all three categories of property, but has limited ability to impose content-based restrictions on traditional or designated public forums” (Hudson, “Public Forum Doctrine | The First Amendment Encyclopedia,”). The doctrine specifically aims to protect peaceful association on public property because the right is not guaranteed when assembly occurs on private property.<br /> <br /> One example of a private actor using its ownership of property to curtail free association can be observed in the 1994 case of Madsen v. Women’s Health Center, Inc. In this case, the Aware Woman Center for Choice in Melbourne, Florida filed a suit against anti-abortion protestors who had been blocking entrances to the building, harrassing abortion patients, and demonstrating outside of staff members’ homes (“Madsen v. Women's Health Center, Inc.”). A court order was issued, ordering protestors to refrain from trespassing on Center property, blocking its entrances, and abusing staff and patients. When the court order was violated, the “the court created a 36-foot buffer zone around the clinic entrances and driveways (including the public sidewalk) within which all antiabortion speech was banned. It also prohibited excessive noise and images that patients could see or hear during surgery and recovery” (“Madsen v. Women's Health Center, Inc.”). The Supreme Court later upheld the buffer zone rules, but struck down the prohibition of protestors’ practice of showing images to clients. It also ruled that the Florida court’s 300-foot buffer zone that prohibited protestors from approaching clients and staff at the Center and at their homes was too restrictive of First Amendment rights (“Madsen v. Women's Health Center, Inc.”). The ruling, according to Chief Justice Rhenquist, sought to preserve protestors’ right to association and assembly while still protecting the patients and clients from intimidation and abuse (“Madsen v. Women's Health Center, Inc.”). It also serves as a reminder that private citizens still reserve the right to curtail free association if said association makes them feel unsafe or threatened.<br /> <br /> Both the Madsen and Hague cases illustrate that judges, in particular, have immense power to determine the breadth of citizens’ right to freedom of association as guaranteed in the First Amendment. For example, in the case of Ward v. Rock Against Racism, the Supreme Court determined that free expression in the form of a rock concert in New York’s Central Park could be subject to volume regulations under the First Amendment (O'Neill, “Time, Place and Manner Restrictions”). This decision, written by Justice Anthony Kennedy, led to the creation of a test to determine whether assembly and expression could be restricted. The test asks whether the regulation is “content neutral,” whether it is “narrowly tailored” to fit a specific governmental interest, and whether it still provides ample opportunity for the message to be communicated (O'Neill, “Time, Place and Manner Restrictions”). If a regulation passes all three prongs of this test, then it can legally restrict or control the time, place, or manner in which assemblies like protests are carried out. The Law Library of Congress writes that since Kennedy’s decision, “the Supreme Court has held that it is constitutionally permissible for the government to require that a permit for an assembly be obtained in advance” (“Right to Peaceful Assembly: United States | Law Library of Congress”). Kennedy’s ruling also allows the government to “make special regulations that impose additional requirements for assemblies that take place near major public events” (“Right to Peaceful Assembly: United States | Law Library of Congress”). This legal doctrine has significantly shaped the way in which state and federal governments treat freedom of association and the right to peaceable assembly. While the Supreme Court can hardly be considered a private actor, Justices like Kennedy rely on personal study and private experience to create policy that affects American freedom of association as a whole.<br /> <br /> Citizens within a political society have the right to free association as long as it is peaceable and does not infringe upon others’ rights or liberties. This principle lends itself to a number of complexities because its parameters for free association are so vague, but over the past few centuries the United States has worked to define when and how private actors can curtail others’ right to free association. The result is that the Supreme Court, and the justices that make it up, have set out precedents that test whether certain forms of association are constitutional and which ones can justifiably be restricted. The definition of public spaces as areas of free association and creation of buffer zones for private properties represent significant steps forward in this effort.<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> <br /> The right to freedom of association is not an absolute right because it is subject to certain limitations. Political thinkers and legal experts generally agree that assembly and association can be justifiably restricted if it conflicts with other citizens’ security, liberty, or property. Another case in which the right is subject to certain limitations is in a case of emergency or long-run disaster. Recent history shows a number of instances in which the U.S. government has justified the restriction of the right to free association during times of war and natural disaster. Interestingly, it did not effectively curtail citizens’ right to free association during the recent COVID-19 pandemic.<br /> <br /> Freedom of association most often restricted in the event of war. In his work, “The Forgotten Freedom of Assembly,” Washington University scholar John D. Inazu briefly explores the effect that World War I had on citizens’ right to gather and discuss the country’s affairs. He writes that during the late World War I years, “the freedom of assembly was constrained by shortsighted legislation like the Espionage Act of 1917 (and its 1918 amendments) and the Immigration Act of 1918, and the Justice Department’s infamous Palmer Raids in 1920” (Inazu, “The Forgotten Freedom of Assembly”). William Riggs of the First Amendment Encyclopedia similarly notes that the Vietnam War era, in particular, saw drastic reductions in Americans’ rights to peaceable assembly and association. He writes that “the war in Vietnam quickly became the focus of major protests that resulted in increased government attempts to limit First Amendment protections. These efforts mostly dealt with the right to assemble and what constituted appropriate free speech criticism of the war” (“Vietnam War | The First Amendment Encyclopedia,”). The U.S. government broadly justified these restrictions by arguing that they were made in the interest of national security, claiming wartime as an acceptable time for the limitation of free association.<br /> <br /> Recently, the United States government has also walked back citizens’ right to freedom of association when dealing with natural disasters. A 2020 Congressional report on First Amendment rights during the COVID-19 pandemic notes that when public health and safety are at risk, the government is justified in its restriction of certain freedoms to widely assemble as long as these regulations aim to protect citizens’ essential rights, such as those to life or property. It notes that the government is justified in restricting freedoms of association at certain times of the day, as long as this action is taken with the explicit purpose of protecting citizens from further harms. “For example,” it says, “in upholding a county curfew following Hurricane Andrew, the Eleventh Circuit asked only whether the government (1) took that action in “good faith,” (2) with ‘some factual basis’ that the restrictions were ‘necessary to maintain order’” (Killion, CRS Report, “U.S. Library of Congress”). The report argues that “curfews, increased “police powers,” and other measures that are considered “essential to the public safety [and] health” all constitute acceptable restrictions of First Amendment rights-such as the right to freedom of peaceable assembly- during times of natural crisis (Killion, CRS Report, “U.S. Library of Congress”).<br /> <br /> The recent COVID-19 crisis created another instance in which citizens’ right to freedom of association was called into question. The pandemic caused widespread and dramatic change within global society as the country entered a state of total lockdown, and in the process it raised a number of legal, moral, and philosophical questions about association and assembly. In June 2020, for example, plaintiffs Ron Givens and Christine Bish filed a lawsuit against California State officials after being denied permission to hold a protest outside the California State Capitol building. The assembly, which aimed to protest the state’s response to the COVID-19 pandemic, was not allowed to take place because of the potential health risks it would create. In response to this denial, the Department of Justice filed a Friend-of-the-Court brief which argued that California’s de facto ban on public demonstrations directly conflicts with First Amendment guarantees and should therefore be struck down (“Department of Justice Files Friend-of-the-Court Brief in Support of Free Speech Challenge to California's COVID-19 Ban on In-Person Political Protests,”). The debate over pandemic restrictions and First Amendment rights became even more heated as the Black Lives Matter Movement sparked major demonstrations in major cities all over the country as citizens gathered to protest police actions in the murder of George Floyd. An MSN report on the protests in Boston notes that “Black Lives Matter Boston and Violence in Boston, two activist organizations who are expected to hold a protest in the city Tuesday evening, urged anyone who is at high risk due to COVID-19 to stay home. Organizers also asked participants to wear gloves and masks and bring hand sanitizer” (“Protesting amid the coronavirus crisis: Massachusetts officials say they respect demonstrators' 1st Amendment rights, urge them to take health precautions though,”). The DOJ’s Friend-of-the-Court brief, in addition to reports on the Boston protests, indicate that the U.S. government has largely decided to allow citizens to exercise the right to free association and assembly, despite the potential danger it could pose.<br /> <br /> The right to freedom of association is subject to a number of limitations. Periods of war, natural disaster, and global pandemic all create conditions in which the United States has considered placing restrictions on the right to peaceable assembly. In the two former cases, it has generally been able to regulate its citizens’ exercise of their right to freely associate with one another. However, the COVID-19 pandemic has shown that while the government may seek to limit its citizens’ assembly, it is not always able to enforce its regulations.<br /> <br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Religion&diff=199 2020-07-02T02:03:44Z

<p>Ksandlund: /* Buddhism */</p> <hr /> <div>==History==<br /> ===What is the oldest source in any country that mentions this right?===<br /> The Edict of Toleration by Galerius in April of 311 ended Christian persecutions and granted their right to exist (Keresztes, &quot;From the Great Persecution to the Peace of Galerius,&quot; 390). This preceded the Edict of Milan by two years, which permanently declared religious toleration and protection for Christians within the Roman Empire (Britannica, &quot;Edict of Milan&quot;).<br /> <br /> ===What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE===<br /> ====Afghanistan====<br /> Its new constitution abides by the UHRD and Sharia law; it is constructed to defer to Sharia law in areas of blasphemy, apostasy, and conversion. However, minority religious communities do face some degree of discrimination (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Afghanistan,&quot; 1).<br /> <br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> The Constitution establishes freedom of religion, but also gives preferential status to the Roman Catholic Church (U.S. Department of State, &quot;ARGENTINA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Armenia====<br /> ====Australia====<br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> The Constitution declares Bangladesh to be an Islamic state, but ensures equal status of minority religions. However, minority religious have faced discrimination and pressure to migrate to India (Atkins, &quot;Challenges to Religious Freedom in Bangladesh&quot;).<br /> <br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> Bhutan is majority Buddhist and freedom of religion is guaranteed in the Constitution, but requires religious groups to register. As of now, only Buddhist and Hindu groups are registered and Christian organizations have not received an answer (U.S. Department of State, &quot;BHUTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> ====Brazil====<br /> The Constitution guarantees freedom of conscience and religious practice. In addition, it prohibits the state from favoring one religion over others (U.S. Department of State, &quot;2016 Report on International Religious Freedom - Brazil&quot;).<br /> <br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> The Constitution establishes freedom of religion, but limits it to &quot;normal religious activity&quot; without defining normal. Religious groups are controlled if they are perceived to be a threat by the Communist Party. In recent years, there has been a campaign of religious persecution of the Uighurs in the Xinjiang province (U.S. Department of State, &quot;CHINA (INCLUDES TIBET, XINJIANG, HONG KONG, AND MACAU) 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Colombia====<br /> The Constitution establishes freedom of religion, but gives preferential status to the Roman Catholic Church (Humanists International, &quot;The Freedom of Thought Report&quot;).<br /> <br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> Freedom of religion is guaranteed in the Constitution, but establishes the Evangelical Lutheran Church as the national church. Religious groups are required to register with the government. In recent years, there have been indications of restrictions of this freedom, such as banning face masks and mandatory religious teachings in pre-schools (U.S. Department of State, &quot;DENMARK 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> The earliest documentation of freedom of religion in France is the Declaration of the Rights of Man and of the Citizen in 1798 (Britannica, &quot;Declaration of the Rights of Man and of the Citizen,&quot; Article 10). The Law of Secularism, passed in 1905, establishes the separation of church and state, but favors traditionally &quot;French&quot; religions such as Catholicism, at the expense of others, like Islam (U.S. Department of State, &quot;FRANCE 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> Religious freedom and secularism are guaranteed in the Constitution. The various autonomous states regulate the existence and activities of religious groups within their borders (U.S. Department of State, &quot;GERMANY 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Ghana====<br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> ====Indonesia====<br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> Freedom of religion is guaranteed in the Constitution and religious groups are not required to register with the government. In terms of schooling, religion classes are permitted but parents can opt their students out (U.S. Department of State, &quot;IRELAND 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Israel====<br /> ====Italy====<br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> The Constitution guarantees freedom of religion (Sumimoto, &quot;RELIGIOUS FREEDOM PROBLEMS IN JAPAN: BACKGROUND AND CURRENT PROSPECTS&quot;).<br /> <br /> ====Jordan====<br /> ====Kazakhstan====<br /> The Constitution defines it as a secular state and ensures freedom of religion. Some missionary organizations are banned, as well as religious sects such as Sufism, Baptists, Seventh-day Adventists, and Presbyterians (U.S. Department of State, &quot;KAZAKHSTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Kenya====<br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> The Constitution guarantees freedom of conscience and religion and bans religious groups from inciting hatred towards others. It requires religious groups to register, but maintains bans on twenty-one &quot;extremist&quot; religious groups (U.S. Department of State, &quot;KYRGYZ REPUBLIC 2017 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Laos====<br /> ====Latvia====<br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> The Constitution designates Islam as the state religion, requires all citizens to be Muslim and requires all public officials to be Sunni Muslim (U.S. Department of State, &quot;MALDIVES 2019 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> The new constitution guarantees religious freedom, but bans conversions to Hinduism (Nazir-Ali, &quot;Christianity in South and Central Asia,&quot; 382).<br /> <br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> In 1845, the Dissenter Law gave Norwegians the right to secede for the state church and regulated the formulation of nonconformist sects. In 1964, it was amended to be included in the Constitution and the right to form denominations was expanded to include all religions five years later (Hale, &quot;The Development of Religious Freedom in Norway,&quot; 56).<br /> <br /> ====Oman====<br /> ====Pakistan====<br /> The Constitution designates Islam as the state religion and requires that all government laws be consistent with Islamic law. Despite this, the Constitution contains the right to religious freedom, though its implementation is disputed (U.S. Department of State, &quot;Pakistan,&quot; 1).<br /> <br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> ====Philippines====<br /> ====Poland====<br /> ====Portugal====<br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> The Constitution establishes freedom of religion and recognizes four &quot;traditional&quot; religions--Christianity, Judaism, Islam and Buddhism. Preference is given to the Russian Orthodox Church (U.S. Department of State, &quot;RUSSIA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> ====South Africa====<br /> ====South Korea====<br /> ====South Sudan====<br /> ====Spain====<br /> Freedom of religion is established within the Constitution and established a secular state. The Catholic Church, however, has established itself as a central player within Spanish politics, with its prominent role in the People's Party. It also has special privileges within Spanish society (U.S. Department of State, &quot;SPAIN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Sri Lanka====<br /> The Constitution provides freedom of thought and religion. It recognizes four religions (Buddhism, Christianity, Hinduism, and Islam). It also designates Buddhism as the state religion, thus giving it priority (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Sri Lanka&quot;).<br /> <br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> The Constitution provides religious freedom and establishes separation between church and state. All religious activity is required to be reported to the state. An amendment to current law (enforced in January 2018) permits restrictions on religious activity for the sole purpose of ensuring the rights and freedoms of others, as well as banning one religious sect from being state ideology (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Tajikistan&quot;).<br /> <br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> The Constitution ensures a secular state, but is significantly limited. The state requires that all religious organizations must register--as of now, only Sunni Muslims and Russian Orthodoxes are registered (U.S. Department of State, &quot;UZBEKISTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> The Toleration Act of 1689 allowed nonconformist religions, with the exception of Roman Catholicism, to practice. However, social penalties still persisted (U.K. Parliament, &quot;Catholics and nonconformists&quot;). The Human Rights Act of 1998 established the fundamental rights of citizens within the UK, including freedom of religion (Equality and Human Rights Commission, &quot;The Human Rights Act,&quot; Article 9).<br /> <br /> ====United States====<br /> ====Uruguay====<br /> ====Uzbekistan====<br /> The Constitution guarantees freedom of religion and separation of church and state (U.S. Department of State, &quot;UZBEKISTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> The Edict of Milan, as noted above, came two years after the Edict of Toleration by Galerius and granted religious toleration within the Roman Empire. The Magna Carta, signed in 1215 in England, provided the foundations for the rights of men, including freedom of religion (Britannica, &quot;Magna Carta&quot;).<br /> <br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> <br /> Religious freedom, while commonplace in modern liberal democracies, was not always identified as a natural right with which people were born. Historical narratives describe the “Dark Ages” between the fall of the Roman Empire and the advent of early modernity as a period in which the world was divided between various civilizations according to the religions which they professed. Religious pluralism did not become more widespread until toleration and freedom of religion were identified as potential rights. In Western civilization, this occurred during the Protestant Reformation of the sixteenth and seventeenth centuries.<br /> <br /> The Reformation was one of the most influential movements in the course of western history. As leaders like Martin Luther, and John Calvin led Christian communities to break from traditional Catholicism, the rate of religious pluralism rose within Europe and led to a series of religious wars that defined the sixteenth century. In an early attempt to mediate these conflicts, German rulers negotiated the 1555 Peace of Augsburg. Andrea Walsham writes that this document “established the principle of cuius regio, eius religio, by which individual rulers were permitted to choose whether Catholicism or Protestantism should be professed in their states” (Walsham, “Reformation Legacies,” 231.) Thus, in addition to legalizing the practice of multiple religions within the German states, the adoption of cuius regio, eius religio also meant that religion would no longer be forced upon a principality by outside forces. The idea that Christian rulers could have the right to choose their own religion, and that this choice would be respected, represents an early step toward the principles of religious pluralism and toleration. The Peace of Augsburg did not lend religious agency to the subjects living within these principalities, but it did show European leaders that cooperation was possible between rulers who belonged to differing faiths. <br /> <br /> The seventeenth century was an especially bloody one which included such conflicts as the English Civil War, the French Wars of Religion, and the vicious Thirty Years’ War. Religious plurality invariably led to violence in the seventeenth century, but these conflicts were often followed by important agreements that fostered some level of religious toleration. In 1598, following the religious battles between Catholics and Protestants in France, the French King Henry (IV) of Navarre signed the Edict of Nantes, which “gave Protestants permission to practice their faith openly, albeit within strict limits and as second-class citizens” (Walsham, “Reformation Legacies,” 231). The Thirty Years’ War famously concluded with the Peace of Westphalia, which decreed (among other things) that while each state should have the right to establish an official religion, they were also obligated to allow their subjects the opportunity to practice different Christian denominations without fear of persecution (Christenson, “Liberty of the Exercise of Religion in the Peace of Westphalia,” 740). By favoring religious toleration, Westphalia’s signatories recognized that only religious toleration would reduce the potential for future conflict between the various sects of Christianity. Documents like the Edict of Nantes and the Peace of Westphalia ultimately failed to end religious persecution and conflict within Europe, but they still reveal a heightened awareness of the need for leaders to tolerate religious plurality within their borders.<br /> <br /> As the sixteenth and seventeenth centuries wore on, European intelligentsia began exploring the concept of religious freedom more directly. Enlightenment thinkers such as Voltaire and Baruch Spinoza led the intellectual charge in support of freedom of conscience and thought, while political leaders such as Roger Williams and Thomas Jefferson incorporated principles of religious freedom and the separation of church and state into their state building efforts in North America. While legal guarantees of the right to religious freedom would not be made until the seventeenth and eighteenth centuries, the modern right to freedom of religion is rooted in Reformation-era efforts to mediate religious conflict and incorporate religious toleration into budding European nation-states.<br /> <br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> <br /> After witnessing the horror of religious warfare during the Reformation era, European philosophy began to explore the idea of religious toleration within political society. As the Enlightenment movement gained momentum during the seventeenth, eighteenth, and nineteenth centuries, western civilization turned to science, empiricism, and reason as sources of wisdom and knowledge. This movement was accompanied by a shift away from purely religious discourse as innovative thinkers began to take up more secular pursuits than they could have in centuries past. With this shift thinkers like Locke, Voltaire, Spinoza, and Williams began to question whether states had the right to dictate their subjects’ religious beliefs. These questions led these Enlightenment thinkers to begin believing that political society would better respect its citizens’ rights if it were to adopt policies of religious toleration.<br /> <br /> Religious pluralism became a reality in Enlightenment-era Europe. The Protestant Reformation of the previous centuries had given rise to a number of Protestant-dominated secular states which had carved out a right to remain independent of the Catholic Church after decades of bloodshed and warfare. In the following centuries, thinkers like Spinoza and Voltaire reflected upon the dangers that intolerance can pose to a peaceful society. In 1670 Spinoza’s anonymously published “Treatise on Theology and Politics” radically asserted that “men are very prone to error on religious subjects, and, according to the diversity of their dispositions, are wont with considerable stir to put forward their own inventions, as experience more than sufficiently attests.” (Spinoza, “The Chief Works of Benedict De Spinoza,” 163). However, rather than calling for the abolition of religious toleration, Spinoza uses this idea that religious difference breeds conflict to suggest that states should abandon any effort to control their citizens’ beliefs, and should instead simply protect the people’s right to their own thoughts. In a state built on principles of toleration instead of religious unity, religious conflict would be less likely. A century later, Voltaire came to a similar conclusion in his 1775 “Treatise on Tolerance.” In this work, the Frenchman writes that “toleration, in fine, never led to civil war; intolerance has covered the earth with carnage,” and asserts that “the whole of our continent shows us that we must neither preach nor practise intolerance” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). By linking the idea of religious toleration to the need for states to maintain law and order within society, both Spinoza and Voltaire began to identify religious freedom as an essential facet of a well-ordered state.<br /> <br /> Another important Enlightenment idea that contributed to the identification of the right to religious freedom was the argument that God may will that religious toleration be extended throughout the Christian world. After centuries of warfare, much of it based on the principle that members of the one true religion must fight infidels in the name of God, this was a relatively novel idea. In his 1644 work, The Bloudy Tenent of Persecution, Roger Williams rejects this idea and states that “it is the will and command of God, that (since the coming of his Son the Lord Jesus) a permission of the most pagan, Jewish, Turkish, or Antichristian consciences and worships, be granted to all men in all nations and countries...” (Williams, “The Bloudy Tenent of Persecution”). The Tenant even goes as far as to claim that “God requireth not an uniformity of religion to be enacted and enforced in any civil state…”(Williams, “The Bloudy Tenent of Persecution”). Williams’ work was not well-received by his audience in England, especially considering that the country was still in the midst of a religiously-motivated civil war. However, the idea that the civil state should not enforce any religion was hugely influential in the colony of Rhode Island, of which Williams is considered the sole founder. Decades later, in 1689 following the French King Louis XIV’s revocation of the Edict of Nantes, Locke wrote something very similar in his “Letter Concerning Toleration.” In this letter, he asserts that “the toleration of those that differ from others in matters of religion is so agreeable to the Gospel of Jesus Christ...that it seems monstrous for men to be so blind as not to perceive the necessity and advantage of it in so clear a light” (Locke, “A Letter Concerning Toleration”). The desire to follow God’s will had long guided European thoughts about the connection between church and state, but thinkers like Williams and Locke presented important challenges to this notion. This allowed for discussion over the right to religious freedom to flourish as the Enlightenment wore on.<br /> <br /> Though discourse on religious toleration was still considered fairly radical during the seventeenth century, Enlightenment philosophers also questioned whether it was indeed even possible for a state to dictate its citizens’ religious beliefs. Spinoza’s “Treatise” is heavily concerned with the idea that a person’s right to think freely is a natural right which cannot be deprived by any political society. He writes that “however unlimited, therefore, the power of a sovereign may be, however implicitly it is trusted as the exponent of law and religion, it can never prevent men from forming judgments according to their intellect, or being influenced by any given emotion” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This, Spinoza believes, necessarily implies that a state could never enforce a person’s belief or religious faith because it is not possible for a state to take a person’s mastery of their own thoughts. Voltaire expresses a similar sentiment in his essays when he states that “it does not depend on man to believe or not to believe: but it depends on him to respect the usages of his country” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). Writing about a century after Spinoza, Voltaire also explored the idea that the state is unable to change how a citizen believes, as long as the belief is not inherently detrimental to the state itself. With this in mind, Voltaire advances the idea that because states cannot change its citizens’ beliefs, it should embrace a diversity of beliefs by incorporating the principle of religious freedom into its governance.<br /> <br /> Among the most radical Enlightenment-era ideas concerning religious toleration was the thought that civil states did not have the inherent right to dictate citizens’ religion at all. Locke’s “Letter” asserts that “nobody, therefore, in fine, neither single persons nor churches, nay, nor even commonwealths, have any just title to invade the civil rights and worldly goods of each other upon pretence of religion” (Locke, “A Letter Concerning Toleration”). Spinoza similarly states that “government which attempts to control minds is accounted tyrannical, and it is considered an abuse of sovereignty and a usurpation of the rights of subjects” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This idea that citizens of a political society could have the innate right to decide their own thoughts and religion built upon the initial identification of religion as a multifaceted issue, which originated centuries earlier during the Reformation. As early as 1644, former Massachusetts Puritain Roger Williams rather controversially wrote that “all civil states and their officers of justice in their respective constitutions and administrations are proved essentially civil, and therefore not judges, governors, or defenders of the Spiritual or Christian state and worship” (Williams, “The Bloudy Tenent of Persecution”). The principle that civil states could not serve as spiritual authorities directly influenced the development of political states such as the Rhode Island Colony and the United States of America, in which freedom of religion was identified as an essential right with which the government could not interfere.<br /> <br /> Though the idea of a right to religious freedom was first conceived during the religious wars of the Reformation era, Enlightenment thinkers deserve credit for identifying religious freedom as an essential right. Questions of whether God’s will dictated religious uniformity, the dangers of combating religious pluralism, as well as issues of citizen and states’ rights all contributed, decades and centuries after they were originally pondered, to the inclusion of religious freedom in mainstream political discourse. Williams and Locke both made important contributions to the growing American discussion of essential rights and liberties, while writings from thinkers like Spinoza and Voltaire gradually invited Europeans to consider the benefits of granting religious freedom to their subjects.<br /> <br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> <br /> Religious freedom was originally identified as a fundamental right when Enlightenment thinkers began to question whether political society has the obligation, or even the right, to decide its citizens’ religion. At the time, the widespread conclusion was that religious toleration and freedom of belief were preferable to religious uniformity and faith-based oppression. Around the same time in the seventeenth and eighteenth century, political documents began to identify religious freedom as a fundamental, legally-protectable right with which the state had no right to interfere. Among the first western states to legislate freedom of religion were the English North American colony of Rhode Island, a few of its fellow American colonies, and the United States itself. There was some historical precedent for government-legislated religious toleration in the form of the 1598 Edict of Nantes and the 1648 Treaty of Westphalia, but the Rhode Island Charter and the United States Constitution were among the first documents to completely prohibit governments from interfering in their citizens’ religious affairs.<br /> <br /> The founding of the Rhode Island and Providence Plantations is accredited to Roger Williams, a preacher who was banished from the Massachusetts Bay Colony in 1635 and went on to purchase from the Narragansett Native Americans a plot of land that would become the city of Providence, Rhode Island (Smithsonian Institution, “God, Government and Roger Williams’ Big Idea”). He was banished for holding religious views that contrasted with those upon which the Massachusetts Bay Colony was founded, and it is likely that this experience influenced his thoughts about religious freedom and the value of toleration within political society. He expresses these views quite effectively in his 1644 work, The Bloudy Tenent of Persecution, which states that “the permission of other consciences and worships than a state professeth, only can (according to God) procure a firm and lasting peace, (good assurance being taken according to the wisdom of civil state for uniformity of civil obedience from all forts)” (Williams, “The Bloudy Tenent of Persecution,”). The Rhode Island Charter, which Williams secured from Parliament in July 1663, reflects this view. It states that: <br /> <br /> &quot;No person within the said colony, at any time hereafter, shall be any wise molested, punished, disquieted, or called in question, for any differences in opinion in matters of religion, and do not actually disturb the civil peace of our said colony; but that all and every person and persons may, from time to time, and at all times hereafter, freely and fully have and enjoy his and their own judgments and consciences, in matters of religious concernments, throughout the tract of lance hereafter mentioned.&quot; (“Charter of Rhode Island and Providence Plantations - July 15, 1663”)<br /> <br /> By prohibiting the molestation, punishment, disquieting, and questioning of any citizen on the basis of religion, the Charter sets a clear guarantee that those living within the colony had the legal right to religious freedom. This was groundbreaking not only because it was the first of the thirteen original American colonies to guarantee total religious freedom, but also because unlike most contemporary acts of toleration, the Charter did not exclude Quaker and Jewish citizens from enjoying the religious freedom that it promised.<br /> <br /> Of course, Rhode Island was not the only one of the thirteen original American colonies to identify religious freedom as a fundamental, legally protectable right. Colonies like Maryland and Pennsylvania are also noteworthy for their inclusion of religious groups that made up the English minority. Maryland famously welcomed Catholics inside its borders, and Pennsylvania was originally founded as a Quaker colony under William Penn. As the colonies grew they became examples to contemporary Enlightenment thinkers, who looked to their example as proof that religious toleration was a desirable principle within any system of government. In his work on religious toleration, Voltaire writes of Philadelphia that “discord and controversy are unknown in the happy country they have made for themselves; and the very name of their chief town, Philadelphia, which unceasingly reminds them that all men are brothers, is an example and a shame to nations that are yet ignorant of toleration” (Voltaire, “Toleration and Other Essays - Online Library of Liberty,”). The benefits of religious freedom were well-known by the time of the American Revolution, which explains why religious freedom was such an important building block of the early republic. The Constitution of the United States was also one of the first documents to identify religious freedom as a fundamental, legally protectable right. Its First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (“United States Bill of Rights, Amendment I”). The inclusion of this language in such an influential document represents an important step in the identification of religious freedom as a fundamental legal right. <br /> <br /> It should be noted, however, that the First Amendment does not explicitly separate church and state within the United States government. The principle of church and state separation was not explicitly outlined until 1802, when President Thomas Jefferson outlined it in a letter to the Baptist community of Danbury, Connecticut. It was written in response to community leaders’ complaint that religious freedom was being treated as a privilege, not a right within their state. They wrote that “our sentiments are uniformly on the side of religious liberty--that religion is at all times and places a matter between God and individuals--that no man ought to suffer in name, person, or effects on account of his religious opinions--that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbors” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). In response, Jefferson famously asserted that “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church &amp; State” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). This separation to which he refers is built upon Enlightenment ideals set out by thinkers like Locke and Spinoza, and it represents the realization of a movement for religious freedom that originated centuries before with the Protestant Reformation.<br /> <br /> Religious freedom is a right with a long history, and for centuries after it first came into question within the western world it was debated and considered. Thinkers like Locke and Voltaire championed it, and documents such as the Treaty of Westphalia and the Edict of Nantes made important strides toward realizing it as a legally protectable right. However, many of the first true instances of legally protected religious freedom occurred in American documents such as the Rhode Island Charter and the United States Constitution. These landmark pieces of legislation framed the modern American stance on religious toleration and the right to freedom of belief.<br /> <br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> <br /> Widespread belief in the importance of religious freedom within a liberal democratic society developed over centuries of religious separation, conflict, discourse. Over the past five hundred years Western civilization has transitioned from a uniformly Christian bloc of nations into a set of states defined by religious diversity and built upon the principles of toleration and religious freedom. Three major forces drove that transformation: The violence caused by religious intolerance, the increasing value of free thought, and the success of religiously free states. Over time, all three of these historical forces led to the widespread belief in the importance of religious freedom within western society.<br /> <br /> The first historical force that led to the original identification of religious freedom as a valuable right was the horror and devastation that Europe witnessed during the Reformation era as a result of religious conflicts. The widespread destruction that took place during such conflicts as the Schmalkaldic Wars, the French Wars of Religion, and the English Civil War showed Europeans how difficult it would be to preserve religious unity within their borders, which led some to question the value of religious homogeneity. The Thirty Years War, especially, led to the identification of religious tolerance as an alternative to the religiously-motivated violence when it concluded with the landmark Peace of Westphalia. Voltaire’s assessment that “Germany would be a desert strewn with the bones of Catholics, Protestants, and Anabaptists, slain by each other, if the Peace of Westphalia had not at length brought freedom of conscience” reveals how important the war, and the treaty that ended it, really were to the identification of religious freedom as an important civil right (Voltaire, “Toleration and Other Essays - Online Library of Liberty”). Historian Gordon Christenson similarly notes that the principle of religious tolerance had been included in previous Reformation-era treaties, but the Peace of Westphalia’s explicit use of the principle as a peacekeeping measure reveals that it had broken into mainstream political thought by the end of the war (Walsham, “Reformation Legacies,” 231.)<br /> <br /> As the dust settled after years of religious conflict, a second historical force also contributed to the widespread belief in the right of religious freedom. During the seventeenth and eighteenth centuries, Enlightenment thinkers reflected upon the Reformation wars and the state of European politics, and began to advocate for the freedom of thought and faith within political society. In 1669 Spinoza concluded that “a government would be most harsh which deprived the individual of his freedom of saying and teaching what he thought; and would be moderate if such freedom were granted” (Spinoza, “The Chief Works of Benedict De Spinoza,” 195), Two decades later, Locke came to a similar conclusion when his “Letter Concerning Toleration” specifically outlined the principle of religious toleration by asserting that “no private person has any right in any manner to prejudice another person in his civil enjoyments because he is of another church or religion” (Locke, “A Letter Concerning Toleration,”). Though the identification of religious freedom as a fundamental right did not immediately lead to its universal adoption among western states, it did represent a significant advancement in the field of religious rights. Going forward, rulers and state builders were more conscious of religious toleration as a viable alternative to forcing religious uniformity within their borders. About a century later, this Locke sentiment was directly incorporated into the American Bill of Rights, which prohibits the creation of any law that might restrict the free practice of religion(Constitution of the United States of America).<br /> <br /> Over time the ideas of toleration and the freedom of thought became more widespread, which led a number of states to explore religious freedom as a principle upon which strong nations could be built. Among the first political leaders to embrace the principle of religious freedom was Roger Williams, who founded the English colony of Rhode Island after he was banished from the Massachusetts Bay Colony. As the colony grew over the next several years, he drafted a compact under which it could be governed. Smithsonian Magazine writes that “the most significant element was what the compact did not say. It did not propose to build a model of God’s kingdom on earth, as did Massachusetts...the compact did not even ask God’s blessing. It made no mention of God at all” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). Shortly afterward Williams traveled to England in order to secure a charter from an English Parliament that was itself in the midst of a Civil War. The charter was granted, and the committee that granted it “left all decisions about religion to the “greater Part”—the majority—knowing the majority would keep the state out of matters of worship. Soul liberty now had official sanction” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). The establishment of the Rhode island colony greatly benefitted the growing belief in religious freedom as a fundamental right because it proved that a political society defined by toleration could find success despite the lack of uniform religion. This idea heavily influenced the drafting of the United States Constitution, and over the next two centuries freedom of religion came to be a defining feature for liberal democracies.<br /> <br /> Over the past five centuries, western civilization underwent a number of historical changes that led it to lose faith in the benefits of religious homogeneity and instead come to support freedom of belief and universal toleration. As it slowly began to understand the dangers of promoting state-led religious uniformity, the western world began to explore ideas of plurality and acceptance before eventually embracing them in political entities such as Rhode Island and the United States. Modern democracies still struggle to guarantee the right to freedom of religion at times, but after five hundred years of development western society at least recognizes it as a fundamental human right.<br /> <br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> Most countries in the modern world protect freedom of religion in their constitutions; however, the extent to which the right is truly protected in practice ranges from state to state. The U.S. State Department names and publicly shames eight “Countries of Particular Concern” that systematically and consistently violate religious freedom rights within their borders: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan (Pellot 2014). The Freedom of Thought Report by Humanists International found that you can be put to death for expressing atheism in an astonishing thirteen countries. Also, in thirty-nine countries the law mandates a prison sentence for blasphemy, including six surprising western countries: Iceland (up to three months), Denmark (up to four months), New Zealand (up to a year), Poland (up to two years), Germany (up to three years) and Greece (up to three years). Although the right may be protected in many states' constitutions, freedom of religion is severely lacking in many countries around the world.<br /> <br /> ===Is it contained in the US Constitution?===<br /> <br /> Yes this right is protected in the First Amendment of the US Constitution. It permits that all people have the right to practice his/her own religion, or that they have the choice to practice no religion at all. There is no established religion in the US, and under the Establishment Clause of the First Amendment, the government is prohibited from advancing or advocating any religion in any way. Also, under the Free Exercise Clause, the government cannot penalize a person for choosing or not choosing to worship in any particular way (ACLU 2020).<br /> <br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> The right is explicitly protected both in the Bill of Rights, but also in Article VI of the Constitution. This article prohibits religious discrimination in the formation of the government under the No Religious Test Clause. The clause, stating that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States,” promotes the freedom of religion and religious equality in all manners of life, starting from within the government itself (Brownstein and Campbell 2020)<br /> <br /> ===Are there any exceptions in American law to this right?===<br /> Based upon the Constitution and the First Amendment, the federal government is, by law, not permitted to limit the exercising of one’s right to freedom of religion, but this specific clause did not apply at the state level (Lutz 2013). Eventually the Fourteenth Amendment was ratified, extending more religious freedoms as a guaranteed right to the states. However, in the actual application of the freedom of religion, the US relies upon Supreme Court decisions as a guide to the manner in which the right is exercised. In 1878, in the case of Reynolds v. United States, the Mormon Church legally challenged the 1862 Morrill Anti-Bigamy Act in efforts to continue their polygamist practices according to their beliefs and interpretations of their religion. The Supreme Court ruled in favor of the US, citing that the law did not interfere with religious belief nor did it selectively target religious practice. In essence, “while the freedom to believe is absolute, the freedom to act on those beliefs is not” (Freedom Forum Institute 2020). Chief Justice Morrison Waite wrote, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, permit every citizen to become a law unto himself” (Lutz 2013). <br /> <br /> This decision was later reinforced in 1990, with the case of Employment Division v. Smith. After Alred Smith was fired from his job for using peyote, a controversial and, at that time, illegal hallucinogenic plant used in some religious rituals within the Native American Church, he sued the employment division under the law’s protection of “free exercise” (Cornell Legal Information Institute 2020). The Court ruled in favor of the Employment Division citing that the reason for the termination was work-related misconduct. Scalia stated that, allowing this kind of exemption from the law “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.” Eventually in 1994, however, this decision was reversed with the passing of the H.R. 4230 amendment to the American Indian Religious Freedom Act which protected the use of peyote in religious ceremonies.<br /> <br /> Also notably, the Sherbert v. Verner case of 1963 established the four-part “Sherbert test.” This test is also referred to as the “compelling interest” test. The test’s four parts are that: “For the individual, the court must 1. determine whether the person has a claim involving a sincere religious belief, and 2. whether the government action places a substantial burden on the person’s ability to act on that belief. Next, if these two elements are established, then the government must prove that 1. it is acting in furtherance of a “compelling state interest,” and that 2. it has pursued that interest in the manner least restrictive, or least burdensome, to religion” (Freedom Forum Institute 2020).<br /> <br /> However, the test was undermined in the ruling of the Employment Division v. Smith case because of the court’s implication that one could not legally and successfully challenge an infringement upon free exercise if the unintended result was to break laws that were generally applicable to all (and it permitted that the government did not have to justify this infringement by proving a compelling state interest). Also, these rulings were all made at the federal level; many states still control the ultimate application of “free exercise,” and as a result, the interpretation varies in differing states. <br /> <br /> Another notable case is the 1968 case of Newman v. Piggie Park Enterprises (Justia 2020). This case backed anti-discriminatory statutes after a barbecue chain refused to serve black people with the justification of the owner being that his beliefs compelled him to segregate races within his restaurants. This case was monumental because it well-established the limit to freedom of religion that allows for the weaponizing of one’s rights against another man. <br /> <br /> The courts also uses other tests in determining decisions regarding freedom of religion. The three-part Lemon test from the 1971 decision Lemon v. Kurtzman (which prohibited state funding of religious schools) states that 1. a court must first determine whether the law or government action in question has a compelling state and secular interest, underlining the idea that government should only concern itself in civil matters and should interfere with matters of individual religion as little as possible. 2. The state action must be proved to have the primary effect of advancing or inhibiting religion. And 3. the court must consider whether the action in question excessively entangles religion and government(Pacelle Jr.). Although criticized by several Supreme Court justices, some courts still use this test in establishment-clause cases. However, in the 1997 decision Agostini v. Felton, the Supreme Court finally modified the Lemon test in that it combined the entanglement and primary effects prongs of the test. <br /> <br /> The endorsement test, proposed by Justice Sandra Day O’Connor in her concurring opinion in the 1984 case of Lynch v. Donnelly, asks whether a particular government action amounts to an endorsement of religion (Hudson Jr.). This test has sometimes been assumed to fall into the Lemon test. It is similar to the first two prongs of the Lemon test by subjecting the challenged government act to the criteria of having the purpose or effect of endorsing religion. This test typically is invoked where the government is involved in expressive activities such as graduation prayers, religious signs on government property, religion in the curriculum, etc.<br /> <br /> Under the coercion test, the government does not violate the establishment clause unless it provides direct aid to religion in a way that would establish a state church or unless it coerces people to practice a religion against their will (Vile). However, this test is subject to varying interpretations, as is demonstrated in the conflicting cases of Allegheny County v. ACLU in 1989 and the 1992 case of Lee v. Weisman, in which Justices Kennedy and Antonin Scalia, applying the same test, reached different results (FindLaw 2020). Although freedom of religion is well-protected by the Constitution, debates over its application, protections from/of, and limitations to the right are an ongoing debate in the legal and free world.<br /> <br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> <br /> Yes, the freedom of religion is protected under several international human rights conventions, treaties, and decrees. This right is protected in article 18 of the UN’s 1948 Universal Declaration of Human Rights, article 18 of the 1966 International Covenant on Civil and Political Rights, and also in the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (United Nations Human Rights Office of the High Commissioner).<br /> <br /> The right is also protected by relevant articles within the following conventions and treaties: 1966 International Covenant on Economic, Social and Cultural Rights, the 1969 International Convention on the Elimination of All Forms of Racial Discrimination, the 1989 Convention on the Rights of the Child, the 1981 Convention on the Elimination of All Forms of Discrimination against Women, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the 1990 UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the 1951 Convention on the Prevention and Punishment of the Crime of Genocide and the 1951 Convention relating to the Status of Refugees.<br /> <br /> However, despite the writings and workings of all these conventions, treaties, and declarations, freedom of religion is still commonly suppressed in many areas of the world (Janis 2002). There is no effective international supervision of rights to religious freedom and diversity. However, regional European human rights law does in fact have tangible supervision of and consequences regarding the suppression of the freedom of religion. Article 9 of the 1950 European Convention on Human Rights and Fundamental Freedoms protects right to freedom of thought, conscience, and religion.<br /> <br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> Encouraging religious toleration, Buddhism is often seen to promote religious freedom. This belief is rooted in the teachings of the historical Buddha, who is believed to have preached the importance of allowing individuals to worship other religions. Kulatissa Nanda Jayatilleke emphasizes this, claiming “The Buddhist attitude to other religions has from its inception been one of critical tolerance” (Freiberger, 187). As noted by Jayatilleke, toleration is foundational to Buddhism, demonstrating the belief system’s adherence to the principles of free religious exercise. <br /> <br /> Though, as explained by Oliver Freiberger, this tolerance is primarily institutional rather than dogmatic (Freiberger, 186). While Buddhism condemns the persecution of other religious groups, it does not necessarily accept the practices and beliefs of other religions to be valid. Thus, as framed by Freiberger, while Buddhism promotes religious freedom, emphasized by its tenets of toleration, it does not approve of the practices of other religions. <br /> <br /> In addition to toleration, the inclusivity practiced by Buddhists connects the belief system with religious freedom. Noted by Kirstein Beise Kiblinger, modern Buddhists aim to include others in their practices, using Buddhist excerpts to justify inclusivity as a core tenet of their belief system (Freiberger, 188). Permitting anyone the ability to convert to Buddhism, the belief system stresses the importance of the freedom to select one’s religion, an essential aspect of the right to free religious exercise. <br /> <br /> Ultimately, the tenets of Buddhism can be used to bolster rights to religious freedom, the texts and practices of the religion upholding inclusivity and toleration.<br /> <br /> ====Platonism====<br /> ====Aristotelian thought====<br /> ====Ancient Chinese Philosophy====<br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought==== <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> The conflict of civil and religious rights has presented several exceptions to the right to free religious exercise. Specifically, stemming from the Supreme Court’s ruling in favor of marriage equality in 2015, many anti-discrimination laws have passed, restricting the right to unfettered religious exercise. Several scholars have argued in favor of these exceptions. In discussing the Supreme Court’s 2015 decision, Suzanne Goldberg states, “After many years of battles in which the religious right had hammered the message that gay people were somehow seeking “special rights” when advocating for laws prohibiting sexual orientation discrimination, the court added its authoritative view that the “special rights” rhetoric was meaningless” (Goldberg, 237). Emulated by Goldberg, as civil rights, such as marriage equality, are not “special rights&quot;, they must be protected equally to the First Amendment right to free religious exercise. Ultimately, Goldberg conveys the sentiment that within American jurisprudence, the right to free religious exercise is prima facie, and thus can be subject to numerous exceptions. <br /> <br /> Additionally, in regards to criminal law violations, William P Marshall of the University of Chicago Law Review supports the need for exceptions to the Free Exercise Clause. Furthermore, Marshall condemns the belief that religious activity, as protected by the Free Exercise Clause, should be exempt from criminal laws. In defending the Employment Division, Department of Human Resources of Oregon v. Smith decision, which confirmed the state’s ability to withhold unemployment benefits from workers fired for using illegal drugs for religious purposes, Marshall argues that if the Supreme Court were to permit religious exemptions to criminal laws, strengthening First Amendment Rights, they would have to engage in dangerous “constitutional balancing” (Marshall, 311). As explained by Marshall, this balancing would force the court to weigh the interests of religious groups against the interests of states, resulting in inconsistent rulings. Thus, presenting a clear exception to freedom of religion, Marshall argues that First Amendment rights, specifically the right to free religious exercise, do not exempt one from criminal prosecution. <br /> <br /> Between the positions of Marshall and Goldberg, lies Ira C. Lupu of the University of Pennsylvania Law Review. While Lupu dismisses the Smith decision, claiming religious rights should have been accommodated in that particular case, he still argues for limitations on religious expression, claiming, “every person may pursue religious freedom to the extent that it is fully compatible with the equal pursuit of religious freedom by others” (Lupu, 558). Similar to Goldberg, Lupu asserts that religious expression can be curtailed when it restricts the liberties of others. Thus, Lupu emphasizes that although certain religious practices should be exempt from the law, such as the peyote drinking incident in Smith, religious expression should not be left legally unrestricted.<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> Private companies have often been found to institute policies that restrict employees’ rights to religious freedom. Such policies directly violate Title VII of the Civil Rights Act, a provision meant to bolster religious freedom by prohibiting employment discrimination on the basis of religion (EEOC). <br /> <br /> Such discriminatory policies were observed in EEOC v. Abercrombie &amp; Fitch Stores. Furthermore, the case revealed Abercrombie’s “Look Policy”, which involved discriminatory hiring procedures towards Muslim individuals (Oyez). Affirmed by the Supreme Court, this policy was a direct violation of the Civil Rights Act, Justice Scalia upholding Title VII claiming, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions” (Justia Law). Demonstrated by the court’s decision, one’s entitlements to religious freedom in the workplace, as upheld by Title VII, are curtailed by discriminatory hiring practices such as the “Look Policy”.<br /> <br /> In addition to violating their Title VII entitlements, many individuals argue that their employers’ practices restrict their First Amendment rights to free religious exercise. For example, in Sherbert v. Verner, Adell Sherbert argued that her firing due to her refusal to work Saturdays, her Sabbath day, was a violation of the Free Exercise Clause of the First Amendment (Oyez). The Supreme Court concurred with Sherbert, emphasizing that the firing restricted Sherbert’s ability to freely practice her religion. Emphasized by the case, firing someone on the basis of their religion, in addition to likely being a violation of the Civil Rights Act, is a direct breach of the First Amendment. Thus, witnessed by instances such as those that precipitated Sherbert, First Amendment religious rights are often infringed upon by employment policies.<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> <br /> In the United States, certain religious practices have been limited during times of disease. For example, during the COVID-19 pandemic, limitations on free religious exercise have been visibly witnessed, demonstrating how the right is subject to restrictions during a health crisis. This was observed in the beginning of the pandemic, when many houses of worship challenged their closures by state governments, arguing that such actions violated their rights to free religious exercise. Though, when a specific California church’s case was brought to the Supreme Court, the closures were upheld as constitutional, Chief Justice Roberts arguing, “Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment” (New York Times). Emphasized by the California case, in times of disease, certain religious practices, such as attending largely populated church services, can be restricted if they do not correspond with federal public health guidelines. Thus, witnessed through the closing of churches as a result of the COVID-19 pandemic, a disaster can alter the Supreme court’s constitutional interpretation of the Free Exercise Clause.<br /> <br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Religion&diff=198 2020-06-30T16:25:52Z

<p>Ksandlund: /* Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question? */</p> <hr /> <div>==History==<br /> ===What is the oldest source in any country that mentions this right?===<br /> The Edict of Toleration by Galerius in April of 311 ended Christian persecutions and granted their right to exist (Keresztes, &quot;From the Great Persecution to the Peace of Galerius,&quot; 390). This preceded the Edict of Milan by two years, which permanently declared religious toleration and protection for Christians within the Roman Empire (Britannica, &quot;Edict of Milan&quot;).<br /> <br /> ===What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE===<br /> ====Afghanistan====<br /> Its new constitution abides by the UHRD and Sharia law; it is constructed to defer to Sharia law in areas of blasphemy, apostasy, and conversion. However, minority religious communities do face some degree of discrimination (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Afghanistan,&quot; 1).<br /> <br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> The Constitution establishes freedom of religion, but also gives preferential status to the Roman Catholic Church (U.S. Department of State, &quot;ARGENTINA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Armenia====<br /> ====Australia====<br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> The Constitution declares Bangladesh to be an Islamic state, but ensures equal status of minority religions. However, minority religious have faced discrimination and pressure to migrate to India (Atkins, &quot;Challenges to Religious Freedom in Bangladesh&quot;).<br /> <br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> Bhutan is majority Buddhist and freedom of religion is guaranteed in the Constitution, but requires religious groups to register. As of now, only Buddhist and Hindu groups are registered and Christian organizations have not received an answer (U.S. Department of State, &quot;BHUTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> ====Brazil====<br /> The Constitution guarantees freedom of conscience and religious practice. In addition, it prohibits the state from favoring one religion over others (U.S. Department of State, &quot;2016 Report on International Religious Freedom - Brazil&quot;).<br /> <br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> The Constitution establishes freedom of religion, but limits it to &quot;normal religious activity&quot; without defining normal. Religious groups are controlled if they are perceived to be a threat by the Communist Party. In recent years, there has been a campaign of religious persecution of the Uighurs in the Xinjiang province (U.S. Department of State, &quot;CHINA (INCLUDES TIBET, XINJIANG, HONG KONG, AND MACAU) 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Colombia====<br /> The Constitution establishes freedom of religion, but gives preferential status to the Roman Catholic Church (Humanists International, &quot;The Freedom of Thought Report&quot;).<br /> <br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> Freedom of religion is guaranteed in the Constitution, but establishes the Evangelical Lutheran Church as the national church. Religious groups are required to register with the government. In recent years, there have been indications of restrictions of this freedom, such as banning face masks and mandatory religious teachings in pre-schools (U.S. Department of State, &quot;DENMARK 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> The earliest documentation of freedom of religion in France is the Declaration of the Rights of Man and of the Citizen in 1798 (Britannica, &quot;Declaration of the Rights of Man and of the Citizen,&quot; Article 10). The Law of Secularism, passed in 1905, establishes the separation of church and state, but favors traditionally &quot;French&quot; religions such as Catholicism, at the expense of others, like Islam (U.S. Department of State, &quot;FRANCE 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> Religious freedom and secularism are guaranteed in the Constitution. The various autonomous states regulate the existence and activities of religious groups within their borders (U.S. Department of State, &quot;GERMANY 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Ghana====<br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> ====Indonesia====<br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> Freedom of religion is guaranteed in the Constitution and religious groups are not required to register with the government. In terms of schooling, religion classes are permitted but parents can opt their students out (U.S. Department of State, &quot;IRELAND 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Israel====<br /> ====Italy====<br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> The Constitution guarantees freedom of religion (Sumimoto, &quot;RELIGIOUS FREEDOM PROBLEMS IN JAPAN: BACKGROUND AND CURRENT PROSPECTS&quot;).<br /> <br /> ====Jordan====<br /> ====Kazakhstan====<br /> The Constitution defines it as a secular state and ensures freedom of religion. Some missionary organizations are banned, as well as religious sects such as Sufism, Baptists, Seventh-day Adventists, and Presbyterians (U.S. Department of State, &quot;KAZAKHSTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Kenya====<br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> The Constitution guarantees freedom of conscience and religion and bans religious groups from inciting hatred towards others. It requires religious groups to register, but maintains bans on twenty-one &quot;extremist&quot; religious groups (U.S. Department of State, &quot;KYRGYZ REPUBLIC 2017 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Laos====<br /> ====Latvia====<br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> The Constitution designates Islam as the state religion, requires all citizens to be Muslim and requires all public officials to be Sunni Muslim (U.S. Department of State, &quot;MALDIVES 2019 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> The new constitution guarantees religious freedom, but bans conversions to Hinduism (Nazir-Ali, &quot;Christianity in South and Central Asia,&quot; 382).<br /> <br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> In 1845, the Dissenter Law gave Norwegians the right to secede for the state church and regulated the formulation of nonconformist sects. In 1964, it was amended to be included in the Constitution and the right to form denominations was expanded to include all religions five years later (Hale, &quot;The Development of Religious Freedom in Norway,&quot; 56).<br /> <br /> ====Oman====<br /> ====Pakistan====<br /> The Constitution designates Islam as the state religion and requires that all government laws be consistent with Islamic law. Despite this, the Constitution contains the right to religious freedom, though its implementation is disputed (U.S. Department of State, &quot;Pakistan,&quot; 1).<br /> <br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> ====Philippines====<br /> ====Poland====<br /> ====Portugal====<br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> The Constitution establishes freedom of religion and recognizes four &quot;traditional&quot; religions--Christianity, Judaism, Islam and Buddhism. Preference is given to the Russian Orthodox Church (U.S. Department of State, &quot;RUSSIA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> ====South Africa====<br /> ====South Korea====<br /> ====South Sudan====<br /> ====Spain====<br /> Freedom of religion is established within the Constitution and established a secular state. The Catholic Church, however, has established itself as a central player within Spanish politics, with its prominent role in the People's Party. It also has special privileges within Spanish society (U.S. Department of State, &quot;SPAIN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Sri Lanka====<br /> The Constitution provides freedom of thought and religion. It recognizes four religions (Buddhism, Christianity, Hinduism, and Islam). It also designates Buddhism as the state religion, thus giving it priority (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Sri Lanka&quot;).<br /> <br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> The Constitution provides religious freedom and establishes separation between church and state. All religious activity is required to be reported to the state. An amendment to current law (enforced in January 2018) permits restrictions on religious activity for the sole purpose of ensuring the rights and freedoms of others, as well as banning one religious sect from being state ideology (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Tajikistan&quot;).<br /> <br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> The Constitution ensures a secular state, but is significantly limited. The state requires that all religious organizations must register--as of now, only Sunni Muslims and Russian Orthodoxes are registered (U.S. Department of State, &quot;UZBEKISTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> The Toleration Act of 1689 allowed nonconformist religions, with the exception of Roman Catholicism, to practice. However, social penalties still persisted (U.K. Parliament, &quot;Catholics and nonconformists&quot;). The Human Rights Act of 1998 established the fundamental rights of citizens within the UK, including freedom of religion (Equality and Human Rights Commission, &quot;The Human Rights Act,&quot; Article 9).<br /> <br /> ====United States====<br /> ====Uruguay====<br /> ====Uzbekistan====<br /> The Constitution guarantees freedom of religion and separation of church and state (U.S. Department of State, &quot;UZBEKISTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> The Edict of Milan, as noted above, came two years after the Edict of Toleration by Galerius and granted religious toleration within the Roman Empire. The Magna Carta, signed in 1215 in England, provided the foundations for the rights of men, including freedom of religion (Britannica, &quot;Magna Carta&quot;).<br /> <br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> <br /> Religious freedom, while commonplace in modern liberal democracies, was not always identified as a natural right with which people were born. Historical narratives describe the “Dark Ages” between the fall of the Roman Empire and the advent of early modernity as a period in which the world was divided between various civilizations according to the religions which they professed. Religious pluralism did not become more widespread until toleration and freedom of religion were identified as potential rights. In Western civilization, this occurred during the Protestant Reformation of the sixteenth and seventeenth centuries.<br /> <br /> The Reformation was one of the most influential movements in the course of western history. As leaders like Martin Luther, and John Calvin led Christian communities to break from traditional Catholicism, the rate of religious pluralism rose within Europe and led to a series of religious wars that defined the sixteenth century. In an early attempt to mediate these conflicts, German rulers negotiated the 1555 Peace of Augsburg. Andrea Walsham writes that this document “established the principle of cuius regio, eius religio, by which individual rulers were permitted to choose whether Catholicism or Protestantism should be professed in their states” (Walsham, “Reformation Legacies,” 231.) Thus, in addition to legalizing the practice of multiple religions within the German states, the adoption of cuius regio, eius religio also meant that religion would no longer be forced upon a principality by outside forces. The idea that Christian rulers could have the right to choose their own religion, and that this choice would be respected, represents an early step toward the principles of religious pluralism and toleration. The Peace of Augsburg did not lend religious agency to the subjects living within these principalities, but it did show European leaders that cooperation was possible between rulers who belonged to differing faiths. <br /> <br /> The seventeenth century was an especially bloody one which included such conflicts as the English Civil War, the French Wars of Religion, and the vicious Thirty Years’ War. Religious plurality invariably led to violence in the seventeenth century, but these conflicts were often followed by important agreements that fostered some level of religious toleration. In 1598, following the religious battles between Catholics and Protestants in France, the French King Henry (IV) of Navarre signed the Edict of Nantes, which “gave Protestants permission to practice their faith openly, albeit within strict limits and as second-class citizens” (Walsham, “Reformation Legacies,” 231). The Thirty Years’ War famously concluded with the Peace of Westphalia, which decreed (among other things) that while each state should have the right to establish an official religion, they were also obligated to allow their subjects the opportunity to practice different Christian denominations without fear of persecution (Christenson, “Liberty of the Exercise of Religion in the Peace of Westphalia,” 740). By favoring religious toleration, Westphalia’s signatories recognized that only religious toleration would reduce the potential for future conflict between the various sects of Christianity. Documents like the Edict of Nantes and the Peace of Westphalia ultimately failed to end religious persecution and conflict within Europe, but they still reveal a heightened awareness of the need for leaders to tolerate religious plurality within their borders.<br /> <br /> As the sixteenth and seventeenth centuries wore on, European intelligentsia began exploring the concept of religious freedom more directly. Enlightenment thinkers such as Voltaire and Baruch Spinoza led the intellectual charge in support of freedom of conscience and thought, while political leaders such as Roger Williams and Thomas Jefferson incorporated principles of religious freedom and the separation of church and state into their state building efforts in North America. While legal guarantees of the right to religious freedom would not be made until the seventeenth and eighteenth centuries, the modern right to freedom of religion is rooted in Reformation-era efforts to mediate religious conflict and incorporate religious toleration into budding European nation-states.<br /> <br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> <br /> After witnessing the horror of religious warfare during the Reformation era, European philosophy began to explore the idea of religious toleration within political society. As the Enlightenment movement gained momentum during the seventeenth, eighteenth, and nineteenth centuries, western civilization turned to science, empiricism, and reason as sources of wisdom and knowledge. This movement was accompanied by a shift away from purely religious discourse as innovative thinkers began to take up more secular pursuits than they could have in centuries past. With this shift thinkers like Locke, Voltaire, Spinoza, and Williams began to question whether states had the right to dictate their subjects’ religious beliefs. These questions led these Enlightenment thinkers to begin believing that political society would better respect its citizens’ rights if it were to adopt policies of religious toleration.<br /> <br /> Religious pluralism became a reality in Enlightenment-era Europe. The Protestant Reformation of the previous centuries had given rise to a number of Protestant-dominated secular states which had carved out a right to remain independent of the Catholic Church after decades of bloodshed and warfare. In the following centuries, thinkers like Spinoza and Voltaire reflected upon the dangers that intolerance can pose to a peaceful society. In 1670 Spinoza’s anonymously published “Treatise on Theology and Politics” radically asserted that “men are very prone to error on religious subjects, and, according to the diversity of their dispositions, are wont with considerable stir to put forward their own inventions, as experience more than sufficiently attests.” (Spinoza, “The Chief Works of Benedict De Spinoza,” 163). However, rather than calling for the abolition of religious toleration, Spinoza uses this idea that religious difference breeds conflict to suggest that states should abandon any effort to control their citizens’ beliefs, and should instead simply protect the people’s right to their own thoughts. In a state built on principles of toleration instead of religious unity, religious conflict would be less likely. A century later, Voltaire came to a similar conclusion in his 1775 “Treatise on Tolerance.” In this work, the Frenchman writes that “toleration, in fine, never led to civil war; intolerance has covered the earth with carnage,” and asserts that “the whole of our continent shows us that we must neither preach nor practise intolerance” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). By linking the idea of religious toleration to the need for states to maintain law and order within society, both Spinoza and Voltaire began to identify religious freedom as an essential facet of a well-ordered state.<br /> <br /> Another important Enlightenment idea that contributed to the identification of the right to religious freedom was the argument that God may will that religious toleration be extended throughout the Christian world. After centuries of warfare, much of it based on the principle that members of the one true religion must fight infidels in the name of God, this was a relatively novel idea. In his 1644 work, The Bloudy Tenent of Persecution, Roger Williams rejects this idea and states that “it is the will and command of God, that (since the coming of his Son the Lord Jesus) a permission of the most pagan, Jewish, Turkish, or Antichristian consciences and worships, be granted to all men in all nations and countries...” (Williams, “The Bloudy Tenent of Persecution”). The Tenant even goes as far as to claim that “God requireth not an uniformity of religion to be enacted and enforced in any civil state…”(Williams, “The Bloudy Tenent of Persecution”). Williams’ work was not well-received by his audience in England, especially considering that the country was still in the midst of a religiously-motivated civil war. However, the idea that the civil state should not enforce any religion was hugely influential in the colony of Rhode Island, of which Williams is considered the sole founder. Decades later, in 1689 following the French King Louis XIV’s revocation of the Edict of Nantes, Locke wrote something very similar in his “Letter Concerning Toleration.” In this letter, he asserts that “the toleration of those that differ from others in matters of religion is so agreeable to the Gospel of Jesus Christ...that it seems monstrous for men to be so blind as not to perceive the necessity and advantage of it in so clear a light” (Locke, “A Letter Concerning Toleration”). The desire to follow God’s will had long guided European thoughts about the connection between church and state, but thinkers like Williams and Locke presented important challenges to this notion. This allowed for discussion over the right to religious freedom to flourish as the Enlightenment wore on.<br /> <br /> Though discourse on religious toleration was still considered fairly radical during the seventeenth century, Enlightenment philosophers also questioned whether it was indeed even possible for a state to dictate its citizens’ religious beliefs. Spinoza’s “Treatise” is heavily concerned with the idea that a person’s right to think freely is a natural right which cannot be deprived by any political society. He writes that “however unlimited, therefore, the power of a sovereign may be, however implicitly it is trusted as the exponent of law and religion, it can never prevent men from forming judgments according to their intellect, or being influenced by any given emotion” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This, Spinoza believes, necessarily implies that a state could never enforce a person’s belief or religious faith because it is not possible for a state to take a person’s mastery of their own thoughts. Voltaire expresses a similar sentiment in his essays when he states that “it does not depend on man to believe or not to believe: but it depends on him to respect the usages of his country” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). Writing about a century after Spinoza, Voltaire also explored the idea that the state is unable to change how a citizen believes, as long as the belief is not inherently detrimental to the state itself. With this in mind, Voltaire advances the idea that because states cannot change its citizens’ beliefs, it should embrace a diversity of beliefs by incorporating the principle of religious freedom into its governance.<br /> <br /> Among the most radical Enlightenment-era ideas concerning religious toleration was the thought that civil states did not have the inherent right to dictate citizens’ religion at all. Locke’s “Letter” asserts that “nobody, therefore, in fine, neither single persons nor churches, nay, nor even commonwealths, have any just title to invade the civil rights and worldly goods of each other upon pretence of religion” (Locke, “A Letter Concerning Toleration”). Spinoza similarly states that “government which attempts to control minds is accounted tyrannical, and it is considered an abuse of sovereignty and a usurpation of the rights of subjects” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This idea that citizens of a political society could have the innate right to decide their own thoughts and religion built upon the initial identification of religion as a multifaceted issue, which originated centuries earlier during the Reformation. As early as 1644, former Massachusetts Puritain Roger Williams rather controversially wrote that “all civil states and their officers of justice in their respective constitutions and administrations are proved essentially civil, and therefore not judges, governors, or defenders of the Spiritual or Christian state and worship” (Williams, “The Bloudy Tenent of Persecution”). The principle that civil states could not serve as spiritual authorities directly influenced the development of political states such as the Rhode Island Colony and the United States of America, in which freedom of religion was identified as an essential right with which the government could not interfere.<br /> <br /> Though the idea of a right to religious freedom was first conceived during the religious wars of the Reformation era, Enlightenment thinkers deserve credit for identifying religious freedom as an essential right. Questions of whether God’s will dictated religious uniformity, the dangers of combating religious pluralism, as well as issues of citizen and states’ rights all contributed, decades and centuries after they were originally pondered, to the inclusion of religious freedom in mainstream political discourse. Williams and Locke both made important contributions to the growing American discussion of essential rights and liberties, while writings from thinkers like Spinoza and Voltaire gradually invited Europeans to consider the benefits of granting religious freedom to their subjects.<br /> <br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> <br /> Religious freedom was originally identified as a fundamental right when Enlightenment thinkers began to question whether political society has the obligation, or even the right, to decide its citizens’ religion. At the time, the widespread conclusion was that religious toleration and freedom of belief were preferable to religious uniformity and faith-based oppression. Around the same time in the seventeenth and eighteenth century, political documents began to identify religious freedom as a fundamental, legally-protectable right with which the state had no right to interfere. Among the first western states to legislate freedom of religion were the English North American colony of Rhode Island, a few of its fellow American colonies, and the United States itself. There was some historical precedent for government-legislated religious toleration in the form of the 1598 Edict of Nantes and the 1648 Treaty of Westphalia, but the Rhode Island Charter and the United States Constitution were among the first documents to completely prohibit governments from interfering in their citizens’ religious affairs.<br /> <br /> The founding of the Rhode Island and Providence Plantations is accredited to Roger Williams, a preacher who was banished from the Massachusetts Bay Colony in 1635 and went on to purchase from the Narragansett Native Americans a plot of land that would become the city of Providence, Rhode Island (Smithsonian Institution, “God, Government and Roger Williams’ Big Idea”). He was banished for holding religious views that contrasted with those upon which the Massachusetts Bay Colony was founded, and it is likely that this experience influenced his thoughts about religious freedom and the value of toleration within political society. He expresses these views quite effectively in his 1644 work, The Bloudy Tenent of Persecution, which states that “the permission of other consciences and worships than a state professeth, only can (according to God) procure a firm and lasting peace, (good assurance being taken according to the wisdom of civil state for uniformity of civil obedience from all forts)” (Williams, “The Bloudy Tenent of Persecution,”). The Rhode Island Charter, which Williams secured from Parliament in July 1663, reflects this view. It states that: <br /> <br /> &quot;No person within the said colony, at any time hereafter, shall be any wise molested, punished, disquieted, or called in question, for any differences in opinion in matters of religion, and do not actually disturb the civil peace of our said colony; but that all and every person and persons may, from time to time, and at all times hereafter, freely and fully have and enjoy his and their own judgments and consciences, in matters of religious concernments, throughout the tract of lance hereafter mentioned.&quot; (“Charter of Rhode Island and Providence Plantations - July 15, 1663”)<br /> <br /> By prohibiting the molestation, punishment, disquieting, and questioning of any citizen on the basis of religion, the Charter sets a clear guarantee that those living within the colony had the legal right to religious freedom. This was groundbreaking not only because it was the first of the thirteen original American colonies to guarantee total religious freedom, but also because unlike most contemporary acts of toleration, the Charter did not exclude Quaker and Jewish citizens from enjoying the religious freedom that it promised.<br /> <br /> Of course, Rhode Island was not the only one of the thirteen original American colonies to identify religious freedom as a fundamental, legally protectable right. Colonies like Maryland and Pennsylvania are also noteworthy for their inclusion of religious groups that made up the English minority. Maryland famously welcomed Catholics inside its borders, and Pennsylvania was originally founded as a Quaker colony under William Penn. As the colonies grew they became examples to contemporary Enlightenment thinkers, who looked to their example as proof that religious toleration was a desirable principle within any system of government. In his work on religious toleration, Voltaire writes of Philadelphia that “discord and controversy are unknown in the happy country they have made for themselves; and the very name of their chief town, Philadelphia, which unceasingly reminds them that all men are brothers, is an example and a shame to nations that are yet ignorant of toleration” (Voltaire, “Toleration and Other Essays - Online Library of Liberty,”). The benefits of religious freedom were well-known by the time of the American Revolution, which explains why religious freedom was such an important building block of the early republic. The Constitution of the United States was also one of the first documents to identify religious freedom as a fundamental, legally protectable right. Its First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (“United States Bill of Rights, Amendment I”). The inclusion of this language in such an influential document represents an important step in the identification of religious freedom as a fundamental legal right. <br /> <br /> It should be noted, however, that the First Amendment does not explicitly separate church and state within the United States government. The principle of church and state separation was not explicitly outlined until 1802, when President Thomas Jefferson outlined it in a letter to the Baptist community of Danbury, Connecticut. It was written in response to community leaders’ complaint that religious freedom was being treated as a privilege, not a right within their state. They wrote that “our sentiments are uniformly on the side of religious liberty--that religion is at all times and places a matter between God and individuals--that no man ought to suffer in name, person, or effects on account of his religious opinions--that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbors” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). In response, Jefferson famously asserted that “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church &amp; State” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). This separation to which he refers is built upon Enlightenment ideals set out by thinkers like Locke and Spinoza, and it represents the realization of a movement for religious freedom that originated centuries before with the Protestant Reformation.<br /> <br /> Religious freedom is a right with a long history, and for centuries after it first came into question within the western world it was debated and considered. Thinkers like Locke and Voltaire championed it, and documents such as the Treaty of Westphalia and the Edict of Nantes made important strides toward realizing it as a legally protectable right. However, many of the first true instances of legally protected religious freedom occurred in American documents such as the Rhode Island Charter and the United States Constitution. These landmark pieces of legislation framed the modern American stance on religious toleration and the right to freedom of belief.<br /> <br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> <br /> Widespread belief in the importance of religious freedom within a liberal democratic society developed over centuries of religious separation, conflict, discourse. Over the past five hundred years Western civilization has transitioned from a uniformly Christian bloc of nations into a set of states defined by religious diversity and built upon the principles of toleration and religious freedom. Three major forces drove that transformation: The violence caused by religious intolerance, the increasing value of free thought, and the success of religiously free states. Over time, all three of these historical forces led to the widespread belief in the importance of religious freedom within western society.<br /> <br /> The first historical force that led to the original identification of religious freedom as a valuable right was the horror and devastation that Europe witnessed during the Reformation era as a result of religious conflicts. The widespread destruction that took place during such conflicts as the Schmalkaldic Wars, the French Wars of Religion, and the English Civil War showed Europeans how difficult it would be to preserve religious unity within their borders, which led some to question the value of religious homogeneity. The Thirty Years War, especially, led to the identification of religious tolerance as an alternative to the religiously-motivated violence when it concluded with the landmark Peace of Westphalia. Voltaire’s assessment that “Germany would be a desert strewn with the bones of Catholics, Protestants, and Anabaptists, slain by each other, if the Peace of Westphalia had not at length brought freedom of conscience” reveals how important the war, and the treaty that ended it, really were to the identification of religious freedom as an important civil right (Voltaire, “Toleration and Other Essays - Online Library of Liberty”). Historian Gordon Christenson similarly notes that the principle of religious tolerance had been included in previous Reformation-era treaties, but the Peace of Westphalia’s explicit use of the principle as a peacekeeping measure reveals that it had broken into mainstream political thought by the end of the war (Walsham, “Reformation Legacies,” 231.)<br /> <br /> As the dust settled after years of religious conflict, a second historical force also contributed to the widespread belief in the right of religious freedom. During the seventeenth and eighteenth centuries, Enlightenment thinkers reflected upon the Reformation wars and the state of European politics, and began to advocate for the freedom of thought and faith within political society. In 1669 Spinoza concluded that “a government would be most harsh which deprived the individual of his freedom of saying and teaching what he thought; and would be moderate if such freedom were granted” (Spinoza, “The Chief Works of Benedict De Spinoza,” 195), Two decades later, Locke came to a similar conclusion when his “Letter Concerning Toleration” specifically outlined the principle of religious toleration by asserting that “no private person has any right in any manner to prejudice another person in his civil enjoyments because he is of another church or religion” (Locke, “A Letter Concerning Toleration,”). Though the identification of religious freedom as a fundamental right did not immediately lead to its universal adoption among western states, it did represent a significant advancement in the field of religious rights. Going forward, rulers and state builders were more conscious of religious toleration as a viable alternative to forcing religious uniformity within their borders. About a century later, this Locke sentiment was directly incorporated into the American Bill of Rights, which prohibits the creation of any law that might restrict the free practice of religion(Constitution of the United States of America).<br /> <br /> Over time the ideas of toleration and the freedom of thought became more widespread, which led a number of states to explore religious freedom as a principle upon which strong nations could be built. Among the first political leaders to embrace the principle of religious freedom was Roger Williams, who founded the English colony of Rhode Island after he was banished from the Massachusetts Bay Colony. As the colony grew over the next several years, he drafted a compact under which it could be governed. Smithsonian Magazine writes that “the most significant element was what the compact did not say. It did not propose to build a model of God’s kingdom on earth, as did Massachusetts...the compact did not even ask God’s blessing. It made no mention of God at all” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). Shortly afterward Williams traveled to England in order to secure a charter from an English Parliament that was itself in the midst of a Civil War. The charter was granted, and the committee that granted it “left all decisions about religion to the “greater Part”—the majority—knowing the majority would keep the state out of matters of worship. Soul liberty now had official sanction” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). The establishment of the Rhode island colony greatly benefitted the growing belief in religious freedom as a fundamental right because it proved that a political society defined by toleration could find success despite the lack of uniform religion. This idea heavily influenced the drafting of the United States Constitution, and over the next two centuries freedom of religion came to be a defining feature for liberal democracies.<br /> <br /> Over the past five centuries, western civilization underwent a number of historical changes that led it to lose faith in the benefits of religious homogeneity and instead come to support freedom of belief and universal toleration. As it slowly began to understand the dangers of promoting state-led religious uniformity, the western world began to explore ideas of plurality and acceptance before eventually embracing them in political entities such as Rhode Island and the United States. Modern democracies still struggle to guarantee the right to freedom of religion at times, but after five hundred years of development western society at least recognizes it as a fundamental human right.<br /> <br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> Most countries in the modern world protect freedom of religion in their constitutions; however, the extent to which the right is truly protected in practice ranges from state to state. The U.S. State Department names and publicly shames eight “Countries of Particular Concern” that systematically and consistently violate religious freedom rights within their borders: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan (Pellot 2014). The Freedom of Thought Report by Humanists International found that you can be put to death for expressing atheism in an astonishing thirteen countries. Also, in thirty-nine countries the law mandates a prison sentence for blasphemy, including six surprising western countries: Iceland (up to three months), Denmark (up to four months), New Zealand (up to a year), Poland (up to two years), Germany (up to three years) and Greece (up to three years). Although the right may be protected in many states' constitutions, freedom of religion is severely lacking in many countries around the world.<br /> <br /> ===Is it contained in the US Constitution?===<br /> <br /> Yes this right is protected in the First Amendment of the US Constitution. It permits that all people have the right to practice his/her own religion, or that they have the choice to practice no religion at all. There is no established religion in the US, and under the Establishment Clause of the First Amendment, the government is prohibited from advancing or advocating any religion in any way. Also, under the Free Exercise Clause, the government cannot penalize a person for choosing or not choosing to worship in any particular way (ACLU 2020).<br /> <br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> The right is explicitly protected both in the Bill of Rights, but also in Article VI of the Constitution. This article prohibits religious discrimination in the formation of the government under the No Religious Test Clause. The clause, stating that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States,” promotes the freedom of religion and religious equality in all manners of life, starting from within the government itself (Brownstein and Campbell 2020)<br /> <br /> ===Are there any exceptions in American law to this right?===<br /> Based upon the Constitution and the First Amendment, the federal government is, by law, not permitted to limit the exercising of one’s right to freedom of religion, but this specific clause did not apply at the state level (Lutz 2013). Eventually the Fourteenth Amendment was ratified, extending more religious freedoms as a guaranteed right to the states. However, in the actual application of the freedom of religion, the US relies upon Supreme Court decisions as a guide to the manner in which the right is exercised. In 1878, in the case of Reynolds v. United States, the Mormon Church legally challenged the 1862 Morrill Anti-Bigamy Act in efforts to continue their polygamist practices according to their beliefs and interpretations of their religion. The Supreme Court ruled in favor of the US, citing that the law did not interfere with religious belief nor did it selectively target religious practice. In essence, “while the freedom to believe is absolute, the freedom to act on those beliefs is not” (Freedom Forum Institute 2020). Chief Justice Morrison Waite wrote, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, permit every citizen to become a law unto himself” (Lutz 2013). <br /> <br /> This decision was later reinforced in 1990, with the case of Employment Division v. Smith. After Alred Smith was fired from his job for using peyote, a controversial and, at that time, illegal hallucinogenic plant used in some religious rituals within the Native American Church, he sued the employment division under the law’s protection of “free exercise” (Cornell Legal Information Institute 2020). The Court ruled in favor of the Employment Division citing that the reason for the termination was work-related misconduct. Scalia stated that, allowing this kind of exemption from the law “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.” Eventually in 1994, however, this decision was reversed with the passing of the H.R. 4230 amendment to the American Indian Religious Freedom Act which protected the use of peyote in religious ceremonies.<br /> <br /> Also notably, the Sherbert v. Verner case of 1963 established the four-part “Sherbert test.” This test is also referred to as the “compelling interest” test. The test’s four parts are that: “For the individual, the court must 1. determine whether the person has a claim involving a sincere religious belief, and 2. whether the government action places a substantial burden on the person’s ability to act on that belief. Next, if these two elements are established, then the government must prove that 1. it is acting in furtherance of a “compelling state interest,” and that 2. it has pursued that interest in the manner least restrictive, or least burdensome, to religion” (Freedom Forum Institute 2020).<br /> <br /> However, the test was undermined in the ruling of the Employment Division v. Smith case because of the court’s implication that one could not legally and successfully challenge an infringement upon free exercise if the unintended result was to break laws that were generally applicable to all (and it permitted that the government did not have to justify this infringement by proving a compelling state interest). Also, these rulings were all made at the federal level; many states still control the ultimate application of “free exercise,” and as a result, the interpretation varies in differing states. <br /> <br /> Another notable case is the 1968 case of Newman v. Piggie Park Enterprises (Justia 2020). This case backed anti-discriminatory statutes after a barbecue chain refused to serve black people with the justification of the owner being that his beliefs compelled him to segregate races within his restaurants. This case was monumental because it well-established the limit to freedom of religion that allows for the weaponizing of one’s rights against another man. <br /> <br /> The courts also uses other tests in determining decisions regarding freedom of religion. The three-part Lemon test from the 1971 decision Lemon v. Kurtzman (which prohibited state funding of religious schools) states that 1. a court must first determine whether the law or government action in question has a compelling state and secular interest, underlining the idea that government should only concern itself in civil matters and should interfere with matters of individual religion as little as possible. 2. The state action must be proved to have the primary effect of advancing or inhibiting religion. And 3. the court must consider whether the action in question excessively entangles religion and government(Pacelle Jr.). Although criticized by several Supreme Court justices, some courts still use this test in establishment-clause cases. However, in the 1997 decision Agostini v. Felton, the Supreme Court finally modified the Lemon test in that it combined the entanglement and primary effects prongs of the test. <br /> <br /> The endorsement test, proposed by Justice Sandra Day O’Connor in her concurring opinion in the 1984 case of Lynch v. Donnelly, asks whether a particular government action amounts to an endorsement of religion (Hudson Jr.). This test has sometimes been assumed to fall into the Lemon test. It is similar to the first two prongs of the Lemon test by subjecting the challenged government act to the criteria of having the purpose or effect of endorsing religion. This test typically is invoked where the government is involved in expressive activities such as graduation prayers, religious signs on government property, religion in the curriculum, etc.<br /> <br /> Under the coercion test, the government does not violate the establishment clause unless it provides direct aid to religion in a way that would establish a state church or unless it coerces people to practice a religion against their will (Vile). However, this test is subject to varying interpretations, as is demonstrated in the conflicting cases of Allegheny County v. ACLU in 1989 and the 1992 case of Lee v. Weisman, in which Justices Kennedy and Antonin Scalia, applying the same test, reached different results (FindLaw 2020). Although freedom of religion is well-protected by the Constitution, debates over its application, protections from/of, and limitations to the right are an ongoing debate in the legal and free world.<br /> <br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> <br /> Yes, the freedom of religion is protected under several international human rights conventions, treaties, and decrees. This right is protected in article 18 of the UN’s 1948 Universal Declaration of Human Rights, article 18 of the 1966 International Covenant on Civil and Political Rights, and also in the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (United Nations Human Rights Office of the High Commissioner).<br /> <br /> The right is also protected by relevant articles within the following conventions and treaties: 1966 International Covenant on Economic, Social and Cultural Rights, the 1969 International Convention on the Elimination of All Forms of Racial Discrimination, the 1989 Convention on the Rights of the Child, the 1981 Convention on the Elimination of All Forms of Discrimination against Women, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the 1990 UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the 1951 Convention on the Prevention and Punishment of the Crime of Genocide and the 1951 Convention relating to the Status of Refugees.<br /> <br /> However, despite the writings and workings of all these conventions, treaties, and declarations, freedom of religion is still commonly suppressed in many areas of the world (Janis 2002). There is no effective international supervision of rights to religious freedom and diversity. However, regional European human rights law does in fact have tangible supervision of and consequences regarding the suppression of the freedom of religion. Article 9 of the 1950 European Convention on Human Rights and Fundamental Freedoms protects right to freedom of thought, conscience, and religion.<br /> <br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> ====Platonism====<br /> ====Aristotelian thought====<br /> ====Ancient Chinese Philosophy====<br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought==== <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> The conflict of civil and religious rights has presented several exceptions to the right to free religious exercise. Specifically, stemming from the Supreme Court’s ruling in favor of marriage equality in 2015, many anti-discrimination laws have passed, restricting the right to unfettered religious exercise. Several scholars have argued in favor of these exceptions. In discussing the Supreme Court’s 2015 decision, Suzanne Goldberg states, “After many years of battles in which the religious right had hammered the message that gay people were somehow seeking “special rights” when advocating for laws prohibiting sexual orientation discrimination, the court added its authoritative view that the “special rights” rhetoric was meaningless” (Goldberg, 237). Emulated by Goldberg, as civil rights, such as marriage equality, are not “special rights&quot;, they must be protected equally to the First Amendment right to free religious exercise. Ultimately, Goldberg conveys the sentiment that within American jurisprudence, the right to free religious exercise is prima facie, and thus can be subject to numerous exceptions. <br /> <br /> Additionally, in regards to criminal law violations, William P Marshall of the University of Chicago Law Review supports the need for exceptions to the Free Exercise Clause. Furthermore, Marshall condemns the belief that religious activity, as protected by the Free Exercise Clause, should be exempt from criminal laws. In defending the Employment Division, Department of Human Resources of Oregon v. Smith decision, which confirmed the state’s ability to withhold unemployment benefits from workers fired for using illegal drugs for religious purposes, Marshall argues that if the Supreme Court were to permit religious exemptions to criminal laws, strengthening First Amendment Rights, they would have to engage in dangerous “constitutional balancing” (Marshall, 311). As explained by Marshall, this balancing would force the court to weigh the interests of religious groups against the interests of states, resulting in inconsistent rulings. Thus, presenting a clear exception to freedom of religion, Marshall argues that First Amendment rights, specifically the right to free religious exercise, do not exempt one from criminal prosecution. <br /> <br /> Between the positions of Marshall and Goldberg, lies Ira C. Lupu of the University of Pennsylvania Law Review. While Lupu dismisses the Smith decision, claiming religious rights should have been accommodated in that particular case, he still argues for limitations on religious expression, claiming, “every person may pursue religious freedom to the extent that it is fully compatible with the equal pursuit of religious freedom by others” (Lupu, 558). Similar to Goldberg, Lupu asserts that religious expression can be curtailed when it restricts the liberties of others. Thus, Lupu emphasizes that although certain religious practices should be exempt from the law, such as the peyote drinking incident in Smith, religious expression should not be left legally unrestricted.<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> Private companies have often been found to institute policies that restrict employees’ rights to religious freedom. Such policies directly violate Title VII of the Civil Rights Act, a provision meant to bolster religious freedom by prohibiting employment discrimination on the basis of religion (EEOC). <br /> <br /> Such discriminatory policies were observed in EEOC v. Abercrombie &amp; Fitch Stores. Furthermore, the case revealed Abercrombie’s “Look Policy”, which involved discriminatory hiring procedures towards Muslim individuals (Oyez). Affirmed by the Supreme Court, this policy was a direct violation of the Civil Rights Act, Justice Scalia upholding Title VII claiming, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions” (Justia Law). Demonstrated by the court’s decision, one’s entitlements to religious freedom in the workplace, as upheld by Title VII, are curtailed by discriminatory hiring practices such as the “Look Policy”.<br /> <br /> In addition to violating their Title VII entitlements, many individuals argue that their employers’ practices restrict their First Amendment rights to free religious exercise. For example, in Sherbert v. Verner, Adell Sherbert argued that her firing due to her refusal to work Saturdays, her Sabbath day, was a violation of the Free Exercise Clause of the First Amendment (Oyez). The Supreme Court concurred with Sherbert, emphasizing that the firing restricted Sherbert’s ability to freely practice her religion. Emphasized by the case, firing someone on the basis of their religion, in addition to likely being a violation of the Civil Rights Act, is a direct breach of the First Amendment. Thus, witnessed by instances such as those that precipitated Sherbert, First Amendment religious rights are often infringed upon by employment policies.<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> <br /> In the United States, certain religious practices have been limited during times of disease. For example, during the COVID-19 pandemic, limitations on free religious exercise have been visibly witnessed, demonstrating how the right is subject to restrictions during a health crisis. This was observed in the beginning of the pandemic, when many houses of worship challenged their closures by state governments, arguing that such actions violated their rights to free religious exercise. Though, when a specific California church’s case was brought to the Supreme Court, the closures were upheld as constitutional, Chief Justice Roberts arguing, “Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment” (New York Times). Emphasized by the California case, in times of disease, certain religious practices, such as attending largely populated church services, can be restricted if they do not correspond with federal public health guidelines. Thus, witnessed through the closing of churches as a result of the COVID-19 pandemic, a disaster can alter the Supreme court’s constitutional interpretation of the Free Exercise Clause.<br /> <br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Religion&diff=197 2020-06-30T16:23:25Z

<p>Ksandlund: /* Is this right at times curtailed by private actors? */</p> <hr /> <div>==History==<br /> ===What is the oldest source in any country that mentions this right?===<br /> The Edict of Toleration by Galerius in April of 311 ended Christian persecutions and granted their right to exist (Keresztes, &quot;From the Great Persecution to the Peace of Galerius,&quot; 390). This preceded the Edict of Milan by two years, which permanently declared religious toleration and protection for Christians within the Roman Empire (Britannica, &quot;Edict of Milan&quot;).<br /> <br /> ===What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE===<br /> ====Afghanistan====<br /> Its new constitution abides by the UHRD and Sharia law; it is constructed to defer to Sharia law in areas of blasphemy, apostasy, and conversion. However, minority religious communities do face some degree of discrimination (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Afghanistan,&quot; 1).<br /> <br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> The Constitution establishes freedom of religion, but also gives preferential status to the Roman Catholic Church (U.S. Department of State, &quot;ARGENTINA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Armenia====<br /> ====Australia====<br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> The Constitution declares Bangladesh to be an Islamic state, but ensures equal status of minority religions. However, minority religious have faced discrimination and pressure to migrate to India (Atkins, &quot;Challenges to Religious Freedom in Bangladesh&quot;).<br /> <br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> Bhutan is majority Buddhist and freedom of religion is guaranteed in the Constitution, but requires religious groups to register. As of now, only Buddhist and Hindu groups are registered and Christian organizations have not received an answer (U.S. Department of State, &quot;BHUTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> ====Brazil====<br /> The Constitution guarantees freedom of conscience and religious practice. In addition, it prohibits the state from favoring one religion over others (U.S. Department of State, &quot;2016 Report on International Religious Freedom - Brazil&quot;).<br /> <br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> The Constitution establishes freedom of religion, but limits it to &quot;normal religious activity&quot; without defining normal. Religious groups are controlled if they are perceived to be a threat by the Communist Party. In recent years, there has been a campaign of religious persecution of the Uighurs in the Xinjiang province (U.S. Department of State, &quot;CHINA (INCLUDES TIBET, XINJIANG, HONG KONG, AND MACAU) 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Colombia====<br /> The Constitution establishes freedom of religion, but gives preferential status to the Roman Catholic Church (Humanists International, &quot;The Freedom of Thought Report&quot;).<br /> <br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> Freedom of religion is guaranteed in the Constitution, but establishes the Evangelical Lutheran Church as the national church. Religious groups are required to register with the government. In recent years, there have been indications of restrictions of this freedom, such as banning face masks and mandatory religious teachings in pre-schools (U.S. Department of State, &quot;DENMARK 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> The earliest documentation of freedom of religion in France is the Declaration of the Rights of Man and of the Citizen in 1798 (Britannica, &quot;Declaration of the Rights of Man and of the Citizen,&quot; Article 10). The Law of Secularism, passed in 1905, establishes the separation of church and state, but favors traditionally &quot;French&quot; religions such as Catholicism, at the expense of others, like Islam (U.S. Department of State, &quot;FRANCE 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> Religious freedom and secularism are guaranteed in the Constitution. The various autonomous states regulate the existence and activities of religious groups within their borders (U.S. Department of State, &quot;GERMANY 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Ghana====<br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> ====Indonesia====<br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> Freedom of religion is guaranteed in the Constitution and religious groups are not required to register with the government. In terms of schooling, religion classes are permitted but parents can opt their students out (U.S. Department of State, &quot;IRELAND 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Israel====<br /> ====Italy====<br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> The Constitution guarantees freedom of religion (Sumimoto, &quot;RELIGIOUS FREEDOM PROBLEMS IN JAPAN: BACKGROUND AND CURRENT PROSPECTS&quot;).<br /> <br /> ====Jordan====<br /> ====Kazakhstan====<br /> The Constitution defines it as a secular state and ensures freedom of religion. Some missionary organizations are banned, as well as religious sects such as Sufism, Baptists, Seventh-day Adventists, and Presbyterians (U.S. Department of State, &quot;KAZAKHSTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Kenya====<br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> The Constitution guarantees freedom of conscience and religion and bans religious groups from inciting hatred towards others. It requires religious groups to register, but maintains bans on twenty-one &quot;extremist&quot; religious groups (U.S. Department of State, &quot;KYRGYZ REPUBLIC 2017 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Laos====<br /> ====Latvia====<br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> The Constitution designates Islam as the state religion, requires all citizens to be Muslim and requires all public officials to be Sunni Muslim (U.S. Department of State, &quot;MALDIVES 2019 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> The new constitution guarantees religious freedom, but bans conversions to Hinduism (Nazir-Ali, &quot;Christianity in South and Central Asia,&quot; 382).<br /> <br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> In 1845, the Dissenter Law gave Norwegians the right to secede for the state church and regulated the formulation of nonconformist sects. In 1964, it was amended to be included in the Constitution and the right to form denominations was expanded to include all religions five years later (Hale, &quot;The Development of Religious Freedom in Norway,&quot; 56).<br /> <br /> ====Oman====<br /> ====Pakistan====<br /> The Constitution designates Islam as the state religion and requires that all government laws be consistent with Islamic law. Despite this, the Constitution contains the right to religious freedom, though its implementation is disputed (U.S. Department of State, &quot;Pakistan,&quot; 1).<br /> <br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> ====Philippines====<br /> ====Poland====<br /> ====Portugal====<br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> The Constitution establishes freedom of religion and recognizes four &quot;traditional&quot; religions--Christianity, Judaism, Islam and Buddhism. Preference is given to the Russian Orthodox Church (U.S. Department of State, &quot;RUSSIA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> ====South Africa====<br /> ====South Korea====<br /> ====South Sudan====<br /> ====Spain====<br /> Freedom of religion is established within the Constitution and established a secular state. The Catholic Church, however, has established itself as a central player within Spanish politics, with its prominent role in the People's Party. It also has special privileges within Spanish society (U.S. Department of State, &quot;SPAIN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Sri Lanka====<br /> The Constitution provides freedom of thought and religion. It recognizes four religions (Buddhism, Christianity, Hinduism, and Islam). It also designates Buddhism as the state religion, thus giving it priority (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Sri Lanka&quot;).<br /> <br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> The Constitution provides religious freedom and establishes separation between church and state. All religious activity is required to be reported to the state. An amendment to current law (enforced in January 2018) permits restrictions on religious activity for the sole purpose of ensuring the rights and freedoms of others, as well as banning one religious sect from being state ideology (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Tajikistan&quot;).<br /> <br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> The Constitution ensures a secular state, but is significantly limited. The state requires that all religious organizations must register--as of now, only Sunni Muslims and Russian Orthodoxes are registered (U.S. Department of State, &quot;UZBEKISTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> The Toleration Act of 1689 allowed nonconformist religions, with the exception of Roman Catholicism, to practice. However, social penalties still persisted (U.K. Parliament, &quot;Catholics and nonconformists&quot;). The Human Rights Act of 1998 established the fundamental rights of citizens within the UK, including freedom of religion (Equality and Human Rights Commission, &quot;The Human Rights Act,&quot; Article 9).<br /> <br /> ====United States====<br /> ====Uruguay====<br /> ====Uzbekistan====<br /> The Constitution guarantees freedom of religion and separation of church and state (U.S. Department of State, &quot;UZBEKISTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> The Edict of Milan, as noted above, came two years after the Edict of Toleration by Galerius and granted religious toleration within the Roman Empire. The Magna Carta, signed in 1215 in England, provided the foundations for the rights of men, including freedom of religion (Britannica, &quot;Magna Carta&quot;).<br /> <br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> <br /> Religious freedom, while commonplace in modern liberal democracies, was not always identified as a natural right with which people were born. Historical narratives describe the “Dark Ages” between the fall of the Roman Empire and the advent of early modernity as a period in which the world was divided between various civilizations according to the religions which they professed. Religious pluralism did not become more widespread until toleration and freedom of religion were identified as potential rights. In Western civilization, this occurred during the Protestant Reformation of the sixteenth and seventeenth centuries.<br /> <br /> The Reformation was one of the most influential movements in the course of western history. As leaders like Martin Luther, and John Calvin led Christian communities to break from traditional Catholicism, the rate of religious pluralism rose within Europe and led to a series of religious wars that defined the sixteenth century. In an early attempt to mediate these conflicts, German rulers negotiated the 1555 Peace of Augsburg. Andrea Walsham writes that this document “established the principle of cuius regio, eius religio, by which individual rulers were permitted to choose whether Catholicism or Protestantism should be professed in their states” (Walsham, “Reformation Legacies,” 231.) Thus, in addition to legalizing the practice of multiple religions within the German states, the adoption of cuius regio, eius religio also meant that religion would no longer be forced upon a principality by outside forces. The idea that Christian rulers could have the right to choose their own religion, and that this choice would be respected, represents an early step toward the principles of religious pluralism and toleration. The Peace of Augsburg did not lend religious agency to the subjects living within these principalities, but it did show European leaders that cooperation was possible between rulers who belonged to differing faiths. <br /> <br /> The seventeenth century was an especially bloody one which included such conflicts as the English Civil War, the French Wars of Religion, and the vicious Thirty Years’ War. Religious plurality invariably led to violence in the seventeenth century, but these conflicts were often followed by important agreements that fostered some level of religious toleration. In 1598, following the religious battles between Catholics and Protestants in France, the French King Henry (IV) of Navarre signed the Edict of Nantes, which “gave Protestants permission to practice their faith openly, albeit within strict limits and as second-class citizens” (Walsham, “Reformation Legacies,” 231). The Thirty Years’ War famously concluded with the Peace of Westphalia, which decreed (among other things) that while each state should have the right to establish an official religion, they were also obligated to allow their subjects the opportunity to practice different Christian denominations without fear of persecution (Christenson, “Liberty of the Exercise of Religion in the Peace of Westphalia,” 740). By favoring religious toleration, Westphalia’s signatories recognized that only religious toleration would reduce the potential for future conflict between the various sects of Christianity. Documents like the Edict of Nantes and the Peace of Westphalia ultimately failed to end religious persecution and conflict within Europe, but they still reveal a heightened awareness of the need for leaders to tolerate religious plurality within their borders.<br /> <br /> As the sixteenth and seventeenth centuries wore on, European intelligentsia began exploring the concept of religious freedom more directly. Enlightenment thinkers such as Voltaire and Baruch Spinoza led the intellectual charge in support of freedom of conscience and thought, while political leaders such as Roger Williams and Thomas Jefferson incorporated principles of religious freedom and the separation of church and state into their state building efforts in North America. While legal guarantees of the right to religious freedom would not be made until the seventeenth and eighteenth centuries, the modern right to freedom of religion is rooted in Reformation-era efforts to mediate religious conflict and incorporate religious toleration into budding European nation-states.<br /> <br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> <br /> After witnessing the horror of religious warfare during the Reformation era, European philosophy began to explore the idea of religious toleration within political society. As the Enlightenment movement gained momentum during the seventeenth, eighteenth, and nineteenth centuries, western civilization turned to science, empiricism, and reason as sources of wisdom and knowledge. This movement was accompanied by a shift away from purely religious discourse as innovative thinkers began to take up more secular pursuits than they could have in centuries past. With this shift thinkers like Locke, Voltaire, Spinoza, and Williams began to question whether states had the right to dictate their subjects’ religious beliefs. These questions led these Enlightenment thinkers to begin believing that political society would better respect its citizens’ rights if it were to adopt policies of religious toleration.<br /> <br /> Religious pluralism became a reality in Enlightenment-era Europe. The Protestant Reformation of the previous centuries had given rise to a number of Protestant-dominated secular states which had carved out a right to remain independent of the Catholic Church after decades of bloodshed and warfare. In the following centuries, thinkers like Spinoza and Voltaire reflected upon the dangers that intolerance can pose to a peaceful society. In 1670 Spinoza’s anonymously published “Treatise on Theology and Politics” radically asserted that “men are very prone to error on religious subjects, and, according to the diversity of their dispositions, are wont with considerable stir to put forward their own inventions, as experience more than sufficiently attests.” (Spinoza, “The Chief Works of Benedict De Spinoza,” 163). However, rather than calling for the abolition of religious toleration, Spinoza uses this idea that religious difference breeds conflict to suggest that states should abandon any effort to control their citizens’ beliefs, and should instead simply protect the people’s right to their own thoughts. In a state built on principles of toleration instead of religious unity, religious conflict would be less likely. A century later, Voltaire came to a similar conclusion in his 1775 “Treatise on Tolerance.” In this work, the Frenchman writes that “toleration, in fine, never led to civil war; intolerance has covered the earth with carnage,” and asserts that “the whole of our continent shows us that we must neither preach nor practise intolerance” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). By linking the idea of religious toleration to the need for states to maintain law and order within society, both Spinoza and Voltaire began to identify religious freedom as an essential facet of a well-ordered state.<br /> <br /> Another important Enlightenment idea that contributed to the identification of the right to religious freedom was the argument that God may will that religious toleration be extended throughout the Christian world. After centuries of warfare, much of it based on the principle that members of the one true religion must fight infidels in the name of God, this was a relatively novel idea. In his 1644 work, The Bloudy Tenent of Persecution, Roger Williams rejects this idea and states that “it is the will and command of God, that (since the coming of his Son the Lord Jesus) a permission of the most pagan, Jewish, Turkish, or Antichristian consciences and worships, be granted to all men in all nations and countries...” (Williams, “The Bloudy Tenent of Persecution”). The Tenant even goes as far as to claim that “God requireth not an uniformity of religion to be enacted and enforced in any civil state…”(Williams, “The Bloudy Tenent of Persecution”). Williams’ work was not well-received by his audience in England, especially considering that the country was still in the midst of a religiously-motivated civil war. However, the idea that the civil state should not enforce any religion was hugely influential in the colony of Rhode Island, of which Williams is considered the sole founder. Decades later, in 1689 following the French King Louis XIV’s revocation of the Edict of Nantes, Locke wrote something very similar in his “Letter Concerning Toleration.” In this letter, he asserts that “the toleration of those that differ from others in matters of religion is so agreeable to the Gospel of Jesus Christ...that it seems monstrous for men to be so blind as not to perceive the necessity and advantage of it in so clear a light” (Locke, “A Letter Concerning Toleration”). The desire to follow God’s will had long guided European thoughts about the connection between church and state, but thinkers like Williams and Locke presented important challenges to this notion. This allowed for discussion over the right to religious freedom to flourish as the Enlightenment wore on.<br /> <br /> Though discourse on religious toleration was still considered fairly radical during the seventeenth century, Enlightenment philosophers also questioned whether it was indeed even possible for a state to dictate its citizens’ religious beliefs. Spinoza’s “Treatise” is heavily concerned with the idea that a person’s right to think freely is a natural right which cannot be deprived by any political society. He writes that “however unlimited, therefore, the power of a sovereign may be, however implicitly it is trusted as the exponent of law and religion, it can never prevent men from forming judgments according to their intellect, or being influenced by any given emotion” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This, Spinoza believes, necessarily implies that a state could never enforce a person’s belief or religious faith because it is not possible for a state to take a person’s mastery of their own thoughts. Voltaire expresses a similar sentiment in his essays when he states that “it does not depend on man to believe or not to believe: but it depends on him to respect the usages of his country” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). Writing about a century after Spinoza, Voltaire also explored the idea that the state is unable to change how a citizen believes, as long as the belief is not inherently detrimental to the state itself. With this in mind, Voltaire advances the idea that because states cannot change its citizens’ beliefs, it should embrace a diversity of beliefs by incorporating the principle of religious freedom into its governance.<br /> <br /> Among the most radical Enlightenment-era ideas concerning religious toleration was the thought that civil states did not have the inherent right to dictate citizens’ religion at all. Locke’s “Letter” asserts that “nobody, therefore, in fine, neither single persons nor churches, nay, nor even commonwealths, have any just title to invade the civil rights and worldly goods of each other upon pretence of religion” (Locke, “A Letter Concerning Toleration”). Spinoza similarly states that “government which attempts to control minds is accounted tyrannical, and it is considered an abuse of sovereignty and a usurpation of the rights of subjects” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This idea that citizens of a political society could have the innate right to decide their own thoughts and religion built upon the initial identification of religion as a multifaceted issue, which originated centuries earlier during the Reformation. As early as 1644, former Massachusetts Puritain Roger Williams rather controversially wrote that “all civil states and their officers of justice in their respective constitutions and administrations are proved essentially civil, and therefore not judges, governors, or defenders of the Spiritual or Christian state and worship” (Williams, “The Bloudy Tenent of Persecution”). The principle that civil states could not serve as spiritual authorities directly influenced the development of political states such as the Rhode Island Colony and the United States of America, in which freedom of religion was identified as an essential right with which the government could not interfere.<br /> <br /> Though the idea of a right to religious freedom was first conceived during the religious wars of the Reformation era, Enlightenment thinkers deserve credit for identifying religious freedom as an essential right. Questions of whether God’s will dictated religious uniformity, the dangers of combating religious pluralism, as well as issues of citizen and states’ rights all contributed, decades and centuries after they were originally pondered, to the inclusion of religious freedom in mainstream political discourse. Williams and Locke both made important contributions to the growing American discussion of essential rights and liberties, while writings from thinkers like Spinoza and Voltaire gradually invited Europeans to consider the benefits of granting religious freedom to their subjects.<br /> <br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> <br /> Religious freedom was originally identified as a fundamental right when Enlightenment thinkers began to question whether political society has the obligation, or even the right, to decide its citizens’ religion. At the time, the widespread conclusion was that religious toleration and freedom of belief were preferable to religious uniformity and faith-based oppression. Around the same time in the seventeenth and eighteenth century, political documents began to identify religious freedom as a fundamental, legally-protectable right with which the state had no right to interfere. Among the first western states to legislate freedom of religion were the English North American colony of Rhode Island, a few of its fellow American colonies, and the United States itself. There was some historical precedent for government-legislated religious toleration in the form of the 1598 Edict of Nantes and the 1648 Treaty of Westphalia, but the Rhode Island Charter and the United States Constitution were among the first documents to completely prohibit governments from interfering in their citizens’ religious affairs.<br /> <br /> The founding of the Rhode Island and Providence Plantations is accredited to Roger Williams, a preacher who was banished from the Massachusetts Bay Colony in 1635 and went on to purchase from the Narragansett Native Americans a plot of land that would become the city of Providence, Rhode Island (Smithsonian Institution, “God, Government and Roger Williams’ Big Idea”). He was banished for holding religious views that contrasted with those upon which the Massachusetts Bay Colony was founded, and it is likely that this experience influenced his thoughts about religious freedom and the value of toleration within political society. He expresses these views quite effectively in his 1644 work, The Bloudy Tenent of Persecution, which states that “the permission of other consciences and worships than a state professeth, only can (according to God) procure a firm and lasting peace, (good assurance being taken according to the wisdom of civil state for uniformity of civil obedience from all forts)” (Williams, “The Bloudy Tenent of Persecution,”). The Rhode Island Charter, which Williams secured from Parliament in July 1663, reflects this view. It states that: <br /> <br /> &quot;No person within the said colony, at any time hereafter, shall be any wise molested, punished, disquieted, or called in question, for any differences in opinion in matters of religion, and do not actually disturb the civil peace of our said colony; but that all and every person and persons may, from time to time, and at all times hereafter, freely and fully have and enjoy his and their own judgments and consciences, in matters of religious concernments, throughout the tract of lance hereafter mentioned.&quot; (“Charter of Rhode Island and Providence Plantations - July 15, 1663”)<br /> <br /> By prohibiting the molestation, punishment, disquieting, and questioning of any citizen on the basis of religion, the Charter sets a clear guarantee that those living within the colony had the legal right to religious freedom. This was groundbreaking not only because it was the first of the thirteen original American colonies to guarantee total religious freedom, but also because unlike most contemporary acts of toleration, the Charter did not exclude Quaker and Jewish citizens from enjoying the religious freedom that it promised.<br /> <br /> Of course, Rhode Island was not the only one of the thirteen original American colonies to identify religious freedom as a fundamental, legally protectable right. Colonies like Maryland and Pennsylvania are also noteworthy for their inclusion of religious groups that made up the English minority. Maryland famously welcomed Catholics inside its borders, and Pennsylvania was originally founded as a Quaker colony under William Penn. As the colonies grew they became examples to contemporary Enlightenment thinkers, who looked to their example as proof that religious toleration was a desirable principle within any system of government. In his work on religious toleration, Voltaire writes of Philadelphia that “discord and controversy are unknown in the happy country they have made for themselves; and the very name of their chief town, Philadelphia, which unceasingly reminds them that all men are brothers, is an example and a shame to nations that are yet ignorant of toleration” (Voltaire, “Toleration and Other Essays - Online Library of Liberty,”). The benefits of religious freedom were well-known by the time of the American Revolution, which explains why religious freedom was such an important building block of the early republic. The Constitution of the United States was also one of the first documents to identify religious freedom as a fundamental, legally protectable right. Its First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (“United States Bill of Rights, Amendment I”). The inclusion of this language in such an influential document represents an important step in the identification of religious freedom as a fundamental legal right. <br /> <br /> It should be noted, however, that the First Amendment does not explicitly separate church and state within the United States government. The principle of church and state separation was not explicitly outlined until 1802, when President Thomas Jefferson outlined it in a letter to the Baptist community of Danbury, Connecticut. It was written in response to community leaders’ complaint that religious freedom was being treated as a privilege, not a right within their state. They wrote that “our sentiments are uniformly on the side of religious liberty--that religion is at all times and places a matter between God and individuals--that no man ought to suffer in name, person, or effects on account of his religious opinions--that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbors” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). In response, Jefferson famously asserted that “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church &amp; State” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). This separation to which he refers is built upon Enlightenment ideals set out by thinkers like Locke and Spinoza, and it represents the realization of a movement for religious freedom that originated centuries before with the Protestant Reformation.<br /> <br /> Religious freedom is a right with a long history, and for centuries after it first came into question within the western world it was debated and considered. Thinkers like Locke and Voltaire championed it, and documents such as the Treaty of Westphalia and the Edict of Nantes made important strides toward realizing it as a legally protectable right. However, many of the first true instances of legally protected religious freedom occurred in American documents such as the Rhode Island Charter and the United States Constitution. These landmark pieces of legislation framed the modern American stance on religious toleration and the right to freedom of belief.<br /> <br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> <br /> Widespread belief in the importance of religious freedom within a liberal democratic society developed over centuries of religious separation, conflict, discourse. Over the past five hundred years Western civilization has transitioned from a uniformly Christian bloc of nations into a set of states defined by religious diversity and built upon the principles of toleration and religious freedom. Three major forces drove that transformation: The violence caused by religious intolerance, the increasing value of free thought, and the success of religiously free states. Over time, all three of these historical forces led to the widespread belief in the importance of religious freedom within western society.<br /> <br /> The first historical force that led to the original identification of religious freedom as a valuable right was the horror and devastation that Europe witnessed during the Reformation era as a result of religious conflicts. The widespread destruction that took place during such conflicts as the Schmalkaldic Wars, the French Wars of Religion, and the English Civil War showed Europeans how difficult it would be to preserve religious unity within their borders, which led some to question the value of religious homogeneity. The Thirty Years War, especially, led to the identification of religious tolerance as an alternative to the religiously-motivated violence when it concluded with the landmark Peace of Westphalia. Voltaire’s assessment that “Germany would be a desert strewn with the bones of Catholics, Protestants, and Anabaptists, slain by each other, if the Peace of Westphalia had not at length brought freedom of conscience” reveals how important the war, and the treaty that ended it, really were to the identification of religious freedom as an important civil right (Voltaire, “Toleration and Other Essays - Online Library of Liberty”). Historian Gordon Christenson similarly notes that the principle of religious tolerance had been included in previous Reformation-era treaties, but the Peace of Westphalia’s explicit use of the principle as a peacekeeping measure reveals that it had broken into mainstream political thought by the end of the war (Walsham, “Reformation Legacies,” 231.)<br /> <br /> As the dust settled after years of religious conflict, a second historical force also contributed to the widespread belief in the right of religious freedom. During the seventeenth and eighteenth centuries, Enlightenment thinkers reflected upon the Reformation wars and the state of European politics, and began to advocate for the freedom of thought and faith within political society. In 1669 Spinoza concluded that “a government would be most harsh which deprived the individual of his freedom of saying and teaching what he thought; and would be moderate if such freedom were granted” (Spinoza, “The Chief Works of Benedict De Spinoza,” 195), Two decades later, Locke came to a similar conclusion when his “Letter Concerning Toleration” specifically outlined the principle of religious toleration by asserting that “no private person has any right in any manner to prejudice another person in his civil enjoyments because he is of another church or religion” (Locke, “A Letter Concerning Toleration,”). Though the identification of religious freedom as a fundamental right did not immediately lead to its universal adoption among western states, it did represent a significant advancement in the field of religious rights. Going forward, rulers and state builders were more conscious of religious toleration as a viable alternative to forcing religious uniformity within their borders. About a century later, this Locke sentiment was directly incorporated into the American Bill of Rights, which prohibits the creation of any law that might restrict the free practice of religion(Constitution of the United States of America).<br /> <br /> Over time the ideas of toleration and the freedom of thought became more widespread, which led a number of states to explore religious freedom as a principle upon which strong nations could be built. Among the first political leaders to embrace the principle of religious freedom was Roger Williams, who founded the English colony of Rhode Island after he was banished from the Massachusetts Bay Colony. As the colony grew over the next several years, he drafted a compact under which it could be governed. Smithsonian Magazine writes that “the most significant element was what the compact did not say. It did not propose to build a model of God’s kingdom on earth, as did Massachusetts...the compact did not even ask God’s blessing. It made no mention of God at all” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). Shortly afterward Williams traveled to England in order to secure a charter from an English Parliament that was itself in the midst of a Civil War. The charter was granted, and the committee that granted it “left all decisions about religion to the “greater Part”—the majority—knowing the majority would keep the state out of matters of worship. Soul liberty now had official sanction” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). The establishment of the Rhode island colony greatly benefitted the growing belief in religious freedom as a fundamental right because it proved that a political society defined by toleration could find success despite the lack of uniform religion. This idea heavily influenced the drafting of the United States Constitution, and over the next two centuries freedom of religion came to be a defining feature for liberal democracies.<br /> <br /> Over the past five centuries, western civilization underwent a number of historical changes that led it to lose faith in the benefits of religious homogeneity and instead come to support freedom of belief and universal toleration. As it slowly began to understand the dangers of promoting state-led religious uniformity, the western world began to explore ideas of plurality and acceptance before eventually embracing them in political entities such as Rhode Island and the United States. Modern democracies still struggle to guarantee the right to freedom of religion at times, but after five hundred years of development western society at least recognizes it as a fundamental human right.<br /> <br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> Most countries in the modern world protect freedom of religion in their constitutions; however, the extent to which the right is truly protected in practice ranges from state to state. The U.S. State Department names and publicly shames eight “Countries of Particular Concern” that systematically and consistently violate religious freedom rights within their borders: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan (Pellot 2014). The Freedom of Thought Report by Humanists International found that you can be put to death for expressing atheism in an astonishing thirteen countries. Also, in thirty-nine countries the law mandates a prison sentence for blasphemy, including six surprising western countries: Iceland (up to three months), Denmark (up to four months), New Zealand (up to a year), Poland (up to two years), Germany (up to three years) and Greece (up to three years). Although the right may be protected in many states' constitutions, freedom of religion is severely lacking in many countries around the world.<br /> <br /> ===Is it contained in the US Constitution?===<br /> <br /> Yes this right is protected in the First Amendment of the US Constitution. It permits that all people have the right to practice his/her own religion, or that they have the choice to practice no religion at all. There is no established religion in the US, and under the Establishment Clause of the First Amendment, the government is prohibited from advancing or advocating any religion in any way. Also, under the Free Exercise Clause, the government cannot penalize a person for choosing or not choosing to worship in any particular way (ACLU 2020).<br /> <br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> The right is explicitly protected both in the Bill of Rights, but also in Article VI of the Constitution. This article prohibits religious discrimination in the formation of the government under the No Religious Test Clause. The clause, stating that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States,” promotes the freedom of religion and religious equality in all manners of life, starting from within the government itself (Brownstein and Campbell 2020)<br /> <br /> ===Are there any exceptions in American law to this right?===<br /> Based upon the Constitution and the First Amendment, the federal government is, by law, not permitted to limit the exercising of one’s right to freedom of religion, but this specific clause did not apply at the state level (Lutz 2013). Eventually the Fourteenth Amendment was ratified, extending more religious freedoms as a guaranteed right to the states. However, in the actual application of the freedom of religion, the US relies upon Supreme Court decisions as a guide to the manner in which the right is exercised. In 1878, in the case of Reynolds v. United States, the Mormon Church legally challenged the 1862 Morrill Anti-Bigamy Act in efforts to continue their polygamist practices according to their beliefs and interpretations of their religion. The Supreme Court ruled in favor of the US, citing that the law did not interfere with religious belief nor did it selectively target religious practice. In essence, “while the freedom to believe is absolute, the freedom to act on those beliefs is not” (Freedom Forum Institute 2020). Chief Justice Morrison Waite wrote, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, permit every citizen to become a law unto himself” (Lutz 2013). <br /> <br /> This decision was later reinforced in 1990, with the case of Employment Division v. Smith. After Alred Smith was fired from his job for using peyote, a controversial and, at that time, illegal hallucinogenic plant used in some religious rituals within the Native American Church, he sued the employment division under the law’s protection of “free exercise” (Cornell Legal Information Institute 2020). The Court ruled in favor of the Employment Division citing that the reason for the termination was work-related misconduct. Scalia stated that, allowing this kind of exemption from the law “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.” Eventually in 1994, however, this decision was reversed with the passing of the H.R. 4230 amendment to the American Indian Religious Freedom Act which protected the use of peyote in religious ceremonies.<br /> <br /> Also notably, the Sherbert v. Verner case of 1963 established the four-part “Sherbert test.” This test is also referred to as the “compelling interest” test. The test’s four parts are that: “For the individual, the court must 1. determine whether the person has a claim involving a sincere religious belief, and 2. whether the government action places a substantial burden on the person’s ability to act on that belief. Next, if these two elements are established, then the government must prove that 1. it is acting in furtherance of a “compelling state interest,” and that 2. it has pursued that interest in the manner least restrictive, or least burdensome, to religion” (Freedom Forum Institute 2020).<br /> <br /> However, the test was undermined in the ruling of the Employment Division v. Smith case because of the court’s implication that one could not legally and successfully challenge an infringement upon free exercise if the unintended result was to break laws that were generally applicable to all (and it permitted that the government did not have to justify this infringement by proving a compelling state interest). Also, these rulings were all made at the federal level; many states still control the ultimate application of “free exercise,” and as a result, the interpretation varies in differing states. <br /> <br /> Another notable case is the 1968 case of Newman v. Piggie Park Enterprises (Justia 2020). This case backed anti-discriminatory statutes after a barbecue chain refused to serve black people with the justification of the owner being that his beliefs compelled him to segregate races within his restaurants. This case was monumental because it well-established the limit to freedom of religion that allows for the weaponizing of one’s rights against another man. <br /> <br /> The courts also uses other tests in determining decisions regarding freedom of religion. The three-part Lemon test from the 1971 decision Lemon v. Kurtzman (which prohibited state funding of religious schools) states that 1. a court must first determine whether the law or government action in question has a compelling state and secular interest, underlining the idea that government should only concern itself in civil matters and should interfere with matters of individual religion as little as possible. 2. The state action must be proved to have the primary effect of advancing or inhibiting religion. And 3. the court must consider whether the action in question excessively entangles religion and government(Pacelle Jr.). Although criticized by several Supreme Court justices, some courts still use this test in establishment-clause cases. However, in the 1997 decision Agostini v. Felton, the Supreme Court finally modified the Lemon test in that it combined the entanglement and primary effects prongs of the test. <br /> <br /> The endorsement test, proposed by Justice Sandra Day O’Connor in her concurring opinion in the 1984 case of Lynch v. Donnelly, asks whether a particular government action amounts to an endorsement of religion (Hudson Jr.). This test has sometimes been assumed to fall into the Lemon test. It is similar to the first two prongs of the Lemon test by subjecting the challenged government act to the criteria of having the purpose or effect of endorsing religion. This test typically is invoked where the government is involved in expressive activities such as graduation prayers, religious signs on government property, religion in the curriculum, etc.<br /> <br /> Under the coercion test, the government does not violate the establishment clause unless it provides direct aid to religion in a way that would establish a state church or unless it coerces people to practice a religion against their will (Vile). However, this test is subject to varying interpretations, as is demonstrated in the conflicting cases of Allegheny County v. ACLU in 1989 and the 1992 case of Lee v. Weisman, in which Justices Kennedy and Antonin Scalia, applying the same test, reached different results (FindLaw 2020). Although freedom of religion is well-protected by the Constitution, debates over its application, protections from/of, and limitations to the right are an ongoing debate in the legal and free world.<br /> <br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> <br /> Yes, the freedom of religion is protected under several international human rights conventions, treaties, and decrees. This right is protected in article 18 of the UN’s 1948 Universal Declaration of Human Rights, article 18 of the 1966 International Covenant on Civil and Political Rights, and also in the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (United Nations Human Rights Office of the High Commissioner).<br /> <br /> The right is also protected by relevant articles within the following conventions and treaties: 1966 International Covenant on Economic, Social and Cultural Rights, the 1969 International Convention on the Elimination of All Forms of Racial Discrimination, the 1989 Convention on the Rights of the Child, the 1981 Convention on the Elimination of All Forms of Discrimination against Women, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the 1990 UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the 1951 Convention on the Prevention and Punishment of the Crime of Genocide and the 1951 Convention relating to the Status of Refugees.<br /> <br /> However, despite the writings and workings of all these conventions, treaties, and declarations, freedom of religion is still commonly suppressed in many areas of the world (Janis 2002). There is no effective international supervision of rights to religious freedom and diversity. However, regional European human rights law does in fact have tangible supervision of and consequences regarding the suppression of the freedom of religion. Article 9 of the 1950 European Convention on Human Rights and Fundamental Freedoms protects right to freedom of thought, conscience, and religion.<br /> <br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> ====Platonism====<br /> ====Aristotelian thought====<br /> ====Ancient Chinese Philosophy====<br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought==== <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> The conflict of civil and religious rights has presented several exceptions to the right to free religious exercise. Specifically, stemming from the Supreme Court’s ruling in favor of marriage equality in 2015, many anti-discrimination laws have passed, restricting the right to unfettered religious exercise. Several scholars have argued in favor of these exceptions. In discussing the Supreme Court’s 2015 decision, Suzanne Goldberg states, “After many years of battles in which the religious right had hammered the message that gay people were somehow seeking “special rights” when advocating for laws prohibiting sexual orientation discrimination, the court added its authoritative view that the “special rights” rhetoric was meaningless” (Goldberg, 237). Emulated by Goldberg, as civil rights, such as marriage equality, are not “special rights&quot;, they must be protected equally to the First Amendment right to free religious exercise. Ultimately, Goldberg conveys the sentiment that within American jurisprudence, the right to free religious exercise is prima facie, and thus can be subject to numerous exceptions. <br /> <br /> Additionally, in regards to criminal law violations, William P Marshall of the University of Chicago Law Review supports the need for exceptions to the Free Exercise Clause. Furthermore, Marshall condemns the belief that religious activity, as protected by the Free Exercise Clause, should be exempt from criminal laws. In defending the Employment Division, Department of Human Resources of Oregon v. Smith decision, which confirmed the state’s ability to withhold unemployment benefits from workers fired for using illegal drugs for religious purposes, Marshall argues that if the Supreme Court were to permit religious exemptions to criminal laws, strengthening First Amendment Rights, they would have to engage in dangerous “constitutional balancing” (Marshall, 311). As explained by Marshall, this balancing would force the court to weigh the interests of religious groups against the interests of states, resulting in inconsistent rulings. Thus, presenting a clear exception to freedom of religion, Marshall argues that First Amendment rights, specifically the right to free religious exercise, do not exempt one from criminal prosecution. <br /> <br /> Between the positions of Marshall and Goldberg, lies Ira C. Lupu of the University of Pennsylvania Law Review. While Lupu dismisses the Smith decision, claiming religious rights should have been accommodated in that particular case, he still argues for limitations on religious expression, claiming, “every person may pursue religious freedom to the extent that it is fully compatible with the equal pursuit of religious freedom by others” (Lupu, 558). Similar to Goldberg, Lupu asserts that religious expression can be curtailed when it restricts the liberties of others. Thus, Lupu emphasizes that although certain religious practices should be exempt from the law, such as the peyote drinking incident in Smith, religious expression should not be left legally unrestricted.<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> Private companies have often been found to institute policies that restrict employees’ rights to religious freedom. Such policies directly violate Title VII of the Civil Rights Act, a provision meant to bolster religious freedom by prohibiting employment discrimination on the basis of religion (EEOC). <br /> <br /> Such discriminatory policies were observed in EEOC v. Abercrombie &amp; Fitch Stores. Furthermore, the case revealed Abercrombie’s “Look Policy”, which involved discriminatory hiring procedures towards Muslim individuals (Oyez). Affirmed by the Supreme Court, this policy was a direct violation of the Civil Rights Act, Justice Scalia upholding Title VII claiming, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions” (Justia Law). Demonstrated by the court’s decision, one’s entitlements to religious freedom in the workplace, as upheld by Title VII, are curtailed by discriminatory hiring practices such as the “Look Policy”.<br /> <br /> In addition to violating their Title VII entitlements, many individuals argue that their employers’ practices restrict their First Amendment rights to free religious exercise. For example, in Sherbert v. Verner, Adell Sherbert argued that her firing due to her refusal to work Saturdays, her Sabbath day, was a violation of the Free Exercise Clause of the First Amendment (Oyez). The Supreme Court concurred with Sherbert, emphasizing that the firing restricted Sherbert’s ability to freely practice her religion. Emphasized by the case, firing someone on the basis of their religion, in addition to likely being a violation of the Civil Rights Act, is a direct breach of the First Amendment. Thus, witnessed by instances such as those that precipitated Sherbert, First Amendment religious rights are often infringed upon by employment policies.<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> <br /> In the United States, certain religious practices have been limited during times of disease. For example, during the COVID-19 pandemic, limitations on free religious exercise have been visibly witnessed, demonstrating how the right is subject to restrictions during a health crisis. This was observed in the beginning of the pandemic, when many houses of worship challenged their closures by state governments, arguing that such actions violated their rights to free religious exercise. Though, when a specific California church’s case was brought to the Supreme Court, the closures were upheld as constitutional, Chief Justice Roberts arguing, “Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment.” Emphasized by the California case, in times of disease, certain religious practices, such as attending largely populated church services, can be restricted if they do not correspond with federal public health guidelines. Thus, witnessed through the closing of churches as a result of the COVID-19 pandemic, a disaster can alter the Supreme court’s constitutional interpretation of the Free Exercise Clause.<br /> <br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Religion&diff=196 2020-06-30T16:16:03Z

<p>Ksandlund: /* Have political theorists or philosophers discussed the permissibility of exceptions to this right? */</p> <hr /> <div>==History==<br /> ===What is the oldest source in any country that mentions this right?===<br /> The Edict of Toleration by Galerius in April of 311 ended Christian persecutions and granted their right to exist (Keresztes, &quot;From the Great Persecution to the Peace of Galerius,&quot; 390). This preceded the Edict of Milan by two years, which permanently declared religious toleration and protection for Christians within the Roman Empire (Britannica, &quot;Edict of Milan&quot;).<br /> <br /> ===What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE===<br /> ====Afghanistan====<br /> Its new constitution abides by the UHRD and Sharia law; it is constructed to defer to Sharia law in areas of blasphemy, apostasy, and conversion. However, minority religious communities do face some degree of discrimination (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Afghanistan,&quot; 1).<br /> <br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> The Constitution establishes freedom of religion, but also gives preferential status to the Roman Catholic Church (U.S. Department of State, &quot;ARGENTINA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Armenia====<br /> ====Australia====<br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> The Constitution declares Bangladesh to be an Islamic state, but ensures equal status of minority religions. However, minority religious have faced discrimination and pressure to migrate to India (Atkins, &quot;Challenges to Religious Freedom in Bangladesh&quot;).<br /> <br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> Bhutan is majority Buddhist and freedom of religion is guaranteed in the Constitution, but requires religious groups to register. As of now, only Buddhist and Hindu groups are registered and Christian organizations have not received an answer (U.S. Department of State, &quot;BHUTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> ====Brazil====<br /> The Constitution guarantees freedom of conscience and religious practice. In addition, it prohibits the state from favoring one religion over others (U.S. Department of State, &quot;2016 Report on International Religious Freedom - Brazil&quot;).<br /> <br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> The Constitution establishes freedom of religion, but limits it to &quot;normal religious activity&quot; without defining normal. Religious groups are controlled if they are perceived to be a threat by the Communist Party. In recent years, there has been a campaign of religious persecution of the Uighurs in the Xinjiang province (U.S. Department of State, &quot;CHINA (INCLUDES TIBET, XINJIANG, HONG KONG, AND MACAU) 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Colombia====<br /> The Constitution establishes freedom of religion, but gives preferential status to the Roman Catholic Church (Humanists International, &quot;The Freedom of Thought Report&quot;).<br /> <br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> Freedom of religion is guaranteed in the Constitution, but establishes the Evangelical Lutheran Church as the national church. Religious groups are required to register with the government. In recent years, there have been indications of restrictions of this freedom, such as banning face masks and mandatory religious teachings in pre-schools (U.S. Department of State, &quot;DENMARK 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> The earliest documentation of freedom of religion in France is the Declaration of the Rights of Man and of the Citizen in 1798 (Britannica, &quot;Declaration of the Rights of Man and of the Citizen,&quot; Article 10). The Law of Secularism, passed in 1905, establishes the separation of church and state, but favors traditionally &quot;French&quot; religions such as Catholicism, at the expense of others, like Islam (U.S. Department of State, &quot;FRANCE 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> Religious freedom and secularism are guaranteed in the Constitution. The various autonomous states regulate the existence and activities of religious groups within their borders (U.S. Department of State, &quot;GERMANY 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Ghana====<br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> ====Indonesia====<br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> Freedom of religion is guaranteed in the Constitution and religious groups are not required to register with the government. In terms of schooling, religion classes are permitted but parents can opt their students out (U.S. Department of State, &quot;IRELAND 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Israel====<br /> ====Italy====<br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> The Constitution guarantees freedom of religion (Sumimoto, &quot;RELIGIOUS FREEDOM PROBLEMS IN JAPAN: BACKGROUND AND CURRENT PROSPECTS&quot;).<br /> <br /> ====Jordan====<br /> ====Kazakhstan====<br /> The Constitution defines it as a secular state and ensures freedom of religion. Some missionary organizations are banned, as well as religious sects such as Sufism, Baptists, Seventh-day Adventists, and Presbyterians (U.S. Department of State, &quot;KAZAKHSTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Kenya====<br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> The Constitution guarantees freedom of conscience and religion and bans religious groups from inciting hatred towards others. It requires religious groups to register, but maintains bans on twenty-one &quot;extremist&quot; religious groups (U.S. Department of State, &quot;KYRGYZ REPUBLIC 2017 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Laos====<br /> ====Latvia====<br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> The Constitution designates Islam as the state religion, requires all citizens to be Muslim and requires all public officials to be Sunni Muslim (U.S. Department of State, &quot;MALDIVES 2019 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> The new constitution guarantees religious freedom, but bans conversions to Hinduism (Nazir-Ali, &quot;Christianity in South and Central Asia,&quot; 382).<br /> <br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> In 1845, the Dissenter Law gave Norwegians the right to secede for the state church and regulated the formulation of nonconformist sects. In 1964, it was amended to be included in the Constitution and the right to form denominations was expanded to include all religions five years later (Hale, &quot;The Development of Religious Freedom in Norway,&quot; 56).<br /> <br /> ====Oman====<br /> ====Pakistan====<br /> The Constitution designates Islam as the state religion and requires that all government laws be consistent with Islamic law. Despite this, the Constitution contains the right to religious freedom, though its implementation is disputed (U.S. Department of State, &quot;Pakistan,&quot; 1).<br /> <br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> ====Philippines====<br /> ====Poland====<br /> ====Portugal====<br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> The Constitution establishes freedom of religion and recognizes four &quot;traditional&quot; religions--Christianity, Judaism, Islam and Buddhism. Preference is given to the Russian Orthodox Church (U.S. Department of State, &quot;RUSSIA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> ====South Africa====<br /> ====South Korea====<br /> ====South Sudan====<br /> ====Spain====<br /> Freedom of religion is established within the Constitution and established a secular state. The Catholic Church, however, has established itself as a central player within Spanish politics, with its prominent role in the People's Party. It also has special privileges within Spanish society (U.S. Department of State, &quot;SPAIN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Sri Lanka====<br /> The Constitution provides freedom of thought and religion. It recognizes four religions (Buddhism, Christianity, Hinduism, and Islam). It also designates Buddhism as the state religion, thus giving it priority (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Sri Lanka&quot;).<br /> <br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> The Constitution provides religious freedom and establishes separation between church and state. All religious activity is required to be reported to the state. An amendment to current law (enforced in January 2018) permits restrictions on religious activity for the sole purpose of ensuring the rights and freedoms of others, as well as banning one religious sect from being state ideology (U.S. Department of State, &quot;2018 Report on International Religious Freedom: Tajikistan&quot;).<br /> <br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> The Constitution ensures a secular state, but is significantly limited. The state requires that all religious organizations must register--as of now, only Sunni Muslims and Russian Orthodoxes are registered (U.S. Department of State, &quot;UZBEKISTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> The Toleration Act of 1689 allowed nonconformist religions, with the exception of Roman Catholicism, to practice. However, social penalties still persisted (U.K. Parliament, &quot;Catholics and nonconformists&quot;). The Human Rights Act of 1998 established the fundamental rights of citizens within the UK, including freedom of religion (Equality and Human Rights Commission, &quot;The Human Rights Act,&quot; Article 9).<br /> <br /> ====United States====<br /> ====Uruguay====<br /> ====Uzbekistan====<br /> The Constitution guarantees freedom of religion and separation of church and state (U.S. Department of State, &quot;UZBEKISTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT&quot;).<br /> <br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> The Edict of Milan, as noted above, came two years after the Edict of Toleration by Galerius and granted religious toleration within the Roman Empire. The Magna Carta, signed in 1215 in England, provided the foundations for the rights of men, including freedom of religion (Britannica, &quot;Magna Carta&quot;).<br /> <br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> <br /> Religious freedom, while commonplace in modern liberal democracies, was not always identified as a natural right with which people were born. Historical narratives describe the “Dark Ages” between the fall of the Roman Empire and the advent of early modernity as a period in which the world was divided between various civilizations according to the religions which they professed. Religious pluralism did not become more widespread until toleration and freedom of religion were identified as potential rights. In Western civilization, this occurred during the Protestant Reformation of the sixteenth and seventeenth centuries.<br /> <br /> The Reformation was one of the most influential movements in the course of western history. As leaders like Martin Luther, and John Calvin led Christian communities to break from traditional Catholicism, the rate of religious pluralism rose within Europe and led to a series of religious wars that defined the sixteenth century. In an early attempt to mediate these conflicts, German rulers negotiated the 1555 Peace of Augsburg. Andrea Walsham writes that this document “established the principle of cuius regio, eius religio, by which individual rulers were permitted to choose whether Catholicism or Protestantism should be professed in their states” (Walsham, “Reformation Legacies,” 231.) Thus, in addition to legalizing the practice of multiple religions within the German states, the adoption of cuius regio, eius religio also meant that religion would no longer be forced upon a principality by outside forces. The idea that Christian rulers could have the right to choose their own religion, and that this choice would be respected, represents an early step toward the principles of religious pluralism and toleration. The Peace of Augsburg did not lend religious agency to the subjects living within these principalities, but it did show European leaders that cooperation was possible between rulers who belonged to differing faiths. <br /> <br /> The seventeenth century was an especially bloody one which included such conflicts as the English Civil War, the French Wars of Religion, and the vicious Thirty Years’ War. Religious plurality invariably led to violence in the seventeenth century, but these conflicts were often followed by important agreements that fostered some level of religious toleration. In 1598, following the religious battles between Catholics and Protestants in France, the French King Henry (IV) of Navarre signed the Edict of Nantes, which “gave Protestants permission to practice their faith openly, albeit within strict limits and as second-class citizens” (Walsham, “Reformation Legacies,” 231). The Thirty Years’ War famously concluded with the Peace of Westphalia, which decreed (among other things) that while each state should have the right to establish an official religion, they were also obligated to allow their subjects the opportunity to practice different Christian denominations without fear of persecution (Christenson, “Liberty of the Exercise of Religion in the Peace of Westphalia,” 740). By favoring religious toleration, Westphalia’s signatories recognized that only religious toleration would reduce the potential for future conflict between the various sects of Christianity. Documents like the Edict of Nantes and the Peace of Westphalia ultimately failed to end religious persecution and conflict within Europe, but they still reveal a heightened awareness of the need for leaders to tolerate religious plurality within their borders.<br /> <br /> As the sixteenth and seventeenth centuries wore on, European intelligentsia began exploring the concept of religious freedom more directly. Enlightenment thinkers such as Voltaire and Baruch Spinoza led the intellectual charge in support of freedom of conscience and thought, while political leaders such as Roger Williams and Thomas Jefferson incorporated principles of religious freedom and the separation of church and state into their state building efforts in North America. While legal guarantees of the right to religious freedom would not be made until the seventeenth and eighteenth centuries, the modern right to freedom of religion is rooted in Reformation-era efforts to mediate religious conflict and incorporate religious toleration into budding European nation-states.<br /> <br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> <br /> After witnessing the horror of religious warfare during the Reformation era, European philosophy began to explore the idea of religious toleration within political society. As the Enlightenment movement gained momentum during the seventeenth, eighteenth, and nineteenth centuries, western civilization turned to science, empiricism, and reason as sources of wisdom and knowledge. This movement was accompanied by a shift away from purely religious discourse as innovative thinkers began to take up more secular pursuits than they could have in centuries past. With this shift thinkers like Locke, Voltaire, Spinoza, and Williams began to question whether states had the right to dictate their subjects’ religious beliefs. These questions led these Enlightenment thinkers to begin believing that political society would better respect its citizens’ rights if it were to adopt policies of religious toleration.<br /> <br /> Religious pluralism became a reality in Enlightenment-era Europe. The Protestant Reformation of the previous centuries had given rise to a number of Protestant-dominated secular states which had carved out a right to remain independent of the Catholic Church after decades of bloodshed and warfare. In the following centuries, thinkers like Spinoza and Voltaire reflected upon the dangers that intolerance can pose to a peaceful society. In 1670 Spinoza’s anonymously published “Treatise on Theology and Politics” radically asserted that “men are very prone to error on religious subjects, and, according to the diversity of their dispositions, are wont with considerable stir to put forward their own inventions, as experience more than sufficiently attests.” (Spinoza, “The Chief Works of Benedict De Spinoza,” 163). However, rather than calling for the abolition of religious toleration, Spinoza uses this idea that religious difference breeds conflict to suggest that states should abandon any effort to control their citizens’ beliefs, and should instead simply protect the people’s right to their own thoughts. In a state built on principles of toleration instead of religious unity, religious conflict would be less likely. A century later, Voltaire came to a similar conclusion in his 1775 “Treatise on Tolerance.” In this work, the Frenchman writes that “toleration, in fine, never led to civil war; intolerance has covered the earth with carnage,” and asserts that “the whole of our continent shows us that we must neither preach nor practise intolerance” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). By linking the idea of religious toleration to the need for states to maintain law and order within society, both Spinoza and Voltaire began to identify religious freedom as an essential facet of a well-ordered state.<br /> <br /> Another important Enlightenment idea that contributed to the identification of the right to religious freedom was the argument that God may will that religious toleration be extended throughout the Christian world. After centuries of warfare, much of it based on the principle that members of the one true religion must fight infidels in the name of God, this was a relatively novel idea. In his 1644 work, The Bloudy Tenent of Persecution, Roger Williams rejects this idea and states that “it is the will and command of God, that (since the coming of his Son the Lord Jesus) a permission of the most pagan, Jewish, Turkish, or Antichristian consciences and worships, be granted to all men in all nations and countries...” (Williams, “The Bloudy Tenent of Persecution”). The Tenant even goes as far as to claim that “God requireth not an uniformity of religion to be enacted and enforced in any civil state…”(Williams, “The Bloudy Tenent of Persecution”). Williams’ work was not well-received by his audience in England, especially considering that the country was still in the midst of a religiously-motivated civil war. However, the idea that the civil state should not enforce any religion was hugely influential in the colony of Rhode Island, of which Williams is considered the sole founder. Decades later, in 1689 following the French King Louis XIV’s revocation of the Edict of Nantes, Locke wrote something very similar in his “Letter Concerning Toleration.” In this letter, he asserts that “the toleration of those that differ from others in matters of religion is so agreeable to the Gospel of Jesus Christ...that it seems monstrous for men to be so blind as not to perceive the necessity and advantage of it in so clear a light” (Locke, “A Letter Concerning Toleration”). The desire to follow God’s will had long guided European thoughts about the connection between church and state, but thinkers like Williams and Locke presented important challenges to this notion. This allowed for discussion over the right to religious freedom to flourish as the Enlightenment wore on.<br /> <br /> Though discourse on religious toleration was still considered fairly radical during the seventeenth century, Enlightenment philosophers also questioned whether it was indeed even possible for a state to dictate its citizens’ religious beliefs. Spinoza’s “Treatise” is heavily concerned with the idea that a person’s right to think freely is a natural right which cannot be deprived by any political society. He writes that “however unlimited, therefore, the power of a sovereign may be, however implicitly it is trusted as the exponent of law and religion, it can never prevent men from forming judgments according to their intellect, or being influenced by any given emotion” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This, Spinoza believes, necessarily implies that a state could never enforce a person’s belief or religious faith because it is not possible for a state to take a person’s mastery of their own thoughts. Voltaire expresses a similar sentiment in his essays when he states that “it does not depend on man to believe or not to believe: but it depends on him to respect the usages of his country” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). Writing about a century after Spinoza, Voltaire also explored the idea that the state is unable to change how a citizen believes, as long as the belief is not inherently detrimental to the state itself. With this in mind, Voltaire advances the idea that because states cannot change its citizens’ beliefs, it should embrace a diversity of beliefs by incorporating the principle of religious freedom into its governance.<br /> <br /> Among the most radical Enlightenment-era ideas concerning religious toleration was the thought that civil states did not have the inherent right to dictate citizens’ religion at all. Locke’s “Letter” asserts that “nobody, therefore, in fine, neither single persons nor churches, nay, nor even commonwealths, have any just title to invade the civil rights and worldly goods of each other upon pretence of religion” (Locke, “A Letter Concerning Toleration”). Spinoza similarly states that “government which attempts to control minds is accounted tyrannical, and it is considered an abuse of sovereignty and a usurpation of the rights of subjects” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This idea that citizens of a political society could have the innate right to decide their own thoughts and religion built upon the initial identification of religion as a multifaceted issue, which originated centuries earlier during the Reformation. As early as 1644, former Massachusetts Puritain Roger Williams rather controversially wrote that “all civil states and their officers of justice in their respective constitutions and administrations are proved essentially civil, and therefore not judges, governors, or defenders of the Spiritual or Christian state and worship” (Williams, “The Bloudy Tenent of Persecution”). The principle that civil states could not serve as spiritual authorities directly influenced the development of political states such as the Rhode Island Colony and the United States of America, in which freedom of religion was identified as an essential right with which the government could not interfere.<br /> <br /> Though the idea of a right to religious freedom was first conceived during the religious wars of the Reformation era, Enlightenment thinkers deserve credit for identifying religious freedom as an essential right. Questions of whether God’s will dictated religious uniformity, the dangers of combating religious pluralism, as well as issues of citizen and states’ rights all contributed, decades and centuries after they were originally pondered, to the inclusion of religious freedom in mainstream political discourse. Williams and Locke both made important contributions to the growing American discussion of essential rights and liberties, while writings from thinkers like Spinoza and Voltaire gradually invited Europeans to consider the benefits of granting religious freedom to their subjects.<br /> <br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> <br /> Religious freedom was originally identified as a fundamental right when Enlightenment thinkers began to question whether political society has the obligation, or even the right, to decide its citizens’ religion. At the time, the widespread conclusion was that religious toleration and freedom of belief were preferable to religious uniformity and faith-based oppression. Around the same time in the seventeenth and eighteenth century, political documents began to identify religious freedom as a fundamental, legally-protectable right with which the state had no right to interfere. Among the first western states to legislate freedom of religion were the English North American colony of Rhode Island, a few of its fellow American colonies, and the United States itself. There was some historical precedent for government-legislated religious toleration in the form of the 1598 Edict of Nantes and the 1648 Treaty of Westphalia, but the Rhode Island Charter and the United States Constitution were among the first documents to completely prohibit governments from interfering in their citizens’ religious affairs.<br /> <br /> The founding of the Rhode Island and Providence Plantations is accredited to Roger Williams, a preacher who was banished from the Massachusetts Bay Colony in 1635 and went on to purchase from the Narragansett Native Americans a plot of land that would become the city of Providence, Rhode Island (Smithsonian Institution, “God, Government and Roger Williams’ Big Idea”). He was banished for holding religious views that contrasted with those upon which the Massachusetts Bay Colony was founded, and it is likely that this experience influenced his thoughts about religious freedom and the value of toleration within political society. He expresses these views quite effectively in his 1644 work, The Bloudy Tenent of Persecution, which states that “the permission of other consciences and worships than a state professeth, only can (according to God) procure a firm and lasting peace, (good assurance being taken according to the wisdom of civil state for uniformity of civil obedience from all forts)” (Williams, “The Bloudy Tenent of Persecution,”). The Rhode Island Charter, which Williams secured from Parliament in July 1663, reflects this view. It states that: <br /> <br /> &quot;No person within the said colony, at any time hereafter, shall be any wise molested, punished, disquieted, or called in question, for any differences in opinion in matters of religion, and do not actually disturb the civil peace of our said colony; but that all and every person and persons may, from time to time, and at all times hereafter, freely and fully have and enjoy his and their own judgments and consciences, in matters of religious concernments, throughout the tract of lance hereafter mentioned.&quot; (“Charter of Rhode Island and Providence Plantations - July 15, 1663”)<br /> <br /> By prohibiting the molestation, punishment, disquieting, and questioning of any citizen on the basis of religion, the Charter sets a clear guarantee that those living within the colony had the legal right to religious freedom. This was groundbreaking not only because it was the first of the thirteen original American colonies to guarantee total religious freedom, but also because unlike most contemporary acts of toleration, the Charter did not exclude Quaker and Jewish citizens from enjoying the religious freedom that it promised.<br /> <br /> Of course, Rhode Island was not the only one of the thirteen original American colonies to identify religious freedom as a fundamental, legally protectable right. Colonies like Maryland and Pennsylvania are also noteworthy for their inclusion of religious groups that made up the English minority. Maryland famously welcomed Catholics inside its borders, and Pennsylvania was originally founded as a Quaker colony under William Penn. As the colonies grew they became examples to contemporary Enlightenment thinkers, who looked to their example as proof that religious toleration was a desirable principle within any system of government. In his work on religious toleration, Voltaire writes of Philadelphia that “discord and controversy are unknown in the happy country they have made for themselves; and the very name of their chief town, Philadelphia, which unceasingly reminds them that all men are brothers, is an example and a shame to nations that are yet ignorant of toleration” (Voltaire, “Toleration and Other Essays - Online Library of Liberty,”). The benefits of religious freedom were well-known by the time of the American Revolution, which explains why religious freedom was such an important building block of the early republic. The Constitution of the United States was also one of the first documents to identify religious freedom as a fundamental, legally protectable right. Its First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (“United States Bill of Rights, Amendment I”). The inclusion of this language in such an influential document represents an important step in the identification of religious freedom as a fundamental legal right. <br /> <br /> It should be noted, however, that the First Amendment does not explicitly separate church and state within the United States government. The principle of church and state separation was not explicitly outlined until 1802, when President Thomas Jefferson outlined it in a letter to the Baptist community of Danbury, Connecticut. It was written in response to community leaders’ complaint that religious freedom was being treated as a privilege, not a right within their state. They wrote that “our sentiments are uniformly on the side of religious liberty--that religion is at all times and places a matter between God and individuals--that no man ought to suffer in name, person, or effects on account of his religious opinions--that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbors” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). In response, Jefferson famously asserted that “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church &amp; State” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). This separation to which he refers is built upon Enlightenment ideals set out by thinkers like Locke and Spinoza, and it represents the realization of a movement for religious freedom that originated centuries before with the Protestant Reformation.<br /> <br /> Religious freedom is a right with a long history, and for centuries after it first came into question within the western world it was debated and considered. Thinkers like Locke and Voltaire championed it, and documents such as the Treaty of Westphalia and the Edict of Nantes made important strides toward realizing it as a legally protectable right. However, many of the first true instances of legally protected religious freedom occurred in American documents such as the Rhode Island Charter and the United States Constitution. These landmark pieces of legislation framed the modern American stance on religious toleration and the right to freedom of belief.<br /> <br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> <br /> Widespread belief in the importance of religious freedom within a liberal democratic society developed over centuries of religious separation, conflict, discourse. Over the past five hundred years Western civilization has transitioned from a uniformly Christian bloc of nations into a set of states defined by religious diversity and built upon the principles of toleration and religious freedom. Three major forces drove that transformation: The violence caused by religious intolerance, the increasing value of free thought, and the success of religiously free states. Over time, all three of these historical forces led to the widespread belief in the importance of religious freedom within western society.<br /> <br /> The first historical force that led to the original identification of religious freedom as a valuable right was the horror and devastation that Europe witnessed during the Reformation era as a result of religious conflicts. The widespread destruction that took place during such conflicts as the Schmalkaldic Wars, the French Wars of Religion, and the English Civil War showed Europeans how difficult it would be to preserve religious unity within their borders, which led some to question the value of religious homogeneity. The Thirty Years War, especially, led to the identification of religious tolerance as an alternative to the religiously-motivated violence when it concluded with the landmark Peace of Westphalia. Voltaire’s assessment that “Germany would be a desert strewn with the bones of Catholics, Protestants, and Anabaptists, slain by each other, if the Peace of Westphalia had not at length brought freedom of conscience” reveals how important the war, and the treaty that ended it, really were to the identification of religious freedom as an important civil right (Voltaire, “Toleration and Other Essays - Online Library of Liberty”). Historian Gordon Christenson similarly notes that the principle of religious tolerance had been included in previous Reformation-era treaties, but the Peace of Westphalia’s explicit use of the principle as a peacekeeping measure reveals that it had broken into mainstream political thought by the end of the war (Walsham, “Reformation Legacies,” 231.)<br /> <br /> As the dust settled after years of religious conflict, a second historical force also contributed to the widespread belief in the right of religious freedom. During the seventeenth and eighteenth centuries, Enlightenment thinkers reflected upon the Reformation wars and the state of European politics, and began to advocate for the freedom of thought and faith within political society. In 1669 Spinoza concluded that “a government would be most harsh which deprived the individual of his freedom of saying and teaching what he thought; and would be moderate if such freedom were granted” (Spinoza, “The Chief Works of Benedict De Spinoza,” 195), Two decades later, Locke came to a similar conclusion when his “Letter Concerning Toleration” specifically outlined the principle of religious toleration by asserting that “no private person has any right in any manner to prejudice another person in his civil enjoyments because he is of another church or religion” (Locke, “A Letter Concerning Toleration,”). Though the identification of religious freedom as a fundamental right did not immediately lead to its universal adoption among western states, it did represent a significant advancement in the field of religious rights. Going forward, rulers and state builders were more conscious of religious toleration as a viable alternative to forcing religious uniformity within their borders. About a century later, this Locke sentiment was directly incorporated into the American Bill of Rights, which prohibits the creation of any law that might restrict the free practice of religion(Constitution of the United States of America).<br /> <br /> Over time the ideas of toleration and the freedom of thought became more widespread, which led a number of states to explore religious freedom as a principle upon which strong nations could be built. Among the first political leaders to embrace the principle of religious freedom was Roger Williams, who founded the English colony of Rhode Island after he was banished from the Massachusetts Bay Colony. As the colony grew over the next several years, he drafted a compact under which it could be governed. Smithsonian Magazine writes that “the most significant element was what the compact did not say. It did not propose to build a model of God’s kingdom on earth, as did Massachusetts...the compact did not even ask God’s blessing. It made no mention of God at all” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). Shortly afterward Williams traveled to England in order to secure a charter from an English Parliament that was itself in the midst of a Civil War. The charter was granted, and the committee that granted it “left all decisions about religion to the “greater Part”—the majority—knowing the majority would keep the state out of matters of worship. Soul liberty now had official sanction” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). The establishment of the Rhode island colony greatly benefitted the growing belief in religious freedom as a fundamental right because it proved that a political society defined by toleration could find success despite the lack of uniform religion. This idea heavily influenced the drafting of the United States Constitution, and over the next two centuries freedom of religion came to be a defining feature for liberal democracies.<br /> <br /> Over the past five centuries, western civilization underwent a number of historical changes that led it to lose faith in the benefits of religious homogeneity and instead come to support freedom of belief and universal toleration. As it slowly began to understand the dangers of promoting state-led religious uniformity, the western world began to explore ideas of plurality and acceptance before eventually embracing them in political entities such as Rhode Island and the United States. Modern democracies still struggle to guarantee the right to freedom of religion at times, but after five hundred years of development western society at least recognizes it as a fundamental human right.<br /> <br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> Most countries in the modern world protect freedom of religion in their constitutions; however, the extent to which the right is truly protected in practice ranges from state to state. The U.S. State Department names and publicly shames eight “Countries of Particular Concern” that systematically and consistently violate religious freedom rights within their borders: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan (Pellot 2014). The Freedom of Thought Report by Humanists International found that you can be put to death for expressing atheism in an astonishing thirteen countries. Also, in thirty-nine countries the law mandates a prison sentence for blasphemy, including six surprising western countries: Iceland (up to three months), Denmark (up to four months), New Zealand (up to a year), Poland (up to two years), Germany (up to three years) and Greece (up to three years). Although the right may be protected in many states' constitutions, freedom of religion is severely lacking in many countries around the world.<br /> <br /> ===Is it contained in the US Constitution?===<br /> <br /> Yes this right is protected in the First Amendment of the US Constitution. It permits that all people have the right to practice his/her own religion, or that they have the choice to practice no religion at all. There is no established religion in the US, and under the Establishment Clause of the First Amendment, the government is prohibited from advancing or advocating any religion in any way. Also, under the Free Exercise Clause, the government cannot penalize a person for choosing or not choosing to worship in any particular way (ACLU 2020).<br /> <br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> The right is explicitly protected both in the Bill of Rights, but also in Article VI of the Constitution. This article prohibits religious discrimination in the formation of the government under the No Religious Test Clause. The clause, stating that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States,” promotes the freedom of religion and religious equality in all manners of life, starting from within the government itself (Brownstein and Campbell 2020)<br /> <br /> ===Are there any exceptions in American law to this right?===<br /> Based upon the Constitution and the First Amendment, the federal government is, by law, not permitted to limit the exercising of one’s right to freedom of religion, but this specific clause did not apply at the state level (Lutz 2013). Eventually the Fourteenth Amendment was ratified, extending more religious freedoms as a guaranteed right to the states. However, in the actual application of the freedom of religion, the US relies upon Supreme Court decisions as a guide to the manner in which the right is exercised. In 1878, in the case of Reynolds v. United States, the Mormon Church legally challenged the 1862 Morrill Anti-Bigamy Act in efforts to continue their polygamist practices according to their beliefs and interpretations of their religion. The Supreme Court ruled in favor of the US, citing that the law did not interfere with religious belief nor did it selectively target religious practice. In essence, “while the freedom to believe is absolute, the freedom to act on those beliefs is not” (Freedom Forum Institute 2020). Chief Justice Morrison Waite wrote, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, permit every citizen to become a law unto himself” (Lutz 2013). <br /> <br /> This decision was later reinforced in 1990, with the case of Employment Division v. Smith. After Alred Smith was fired from his job for using peyote, a controversial and, at that time, illegal hallucinogenic plant used in some religious rituals within the Native American Church, he sued the employment division under the law’s protection of “free exercise” (Cornell Legal Information Institute 2020). The Court ruled in favor of the Employment Division citing that the reason for the termination was work-related misconduct. Scalia stated that, allowing this kind of exemption from the law “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.” Eventually in 1994, however, this decision was reversed with the passing of the H.R. 4230 amendment to the American Indian Religious Freedom Act which protected the use of peyote in religious ceremonies.<br /> <br /> Also notably, the Sherbert v. Verner case of 1963 established the four-part “Sherbert test.” This test is also referred to as the “compelling interest” test. The test’s four parts are that: “For the individual, the court must 1. determine whether the person has a claim involving a sincere religious belief, and 2. whether the government action places a substantial burden on the person’s ability to act on that belief. Next, if these two elements are established, then the government must prove that 1. it is acting in furtherance of a “compelling state interest,” and that 2. it has pursued that interest in the manner least restrictive, or least burdensome, to religion” (Freedom Forum Institute 2020).<br /> <br /> However, the test was undermined in the ruling of the Employment Division v. Smith case because of the court’s implication that one could not legally and successfully challenge an infringement upon free exercise if the unintended result was to break laws that were generally applicable to all (and it permitted that the government did not have to justify this infringement by proving a compelling state interest). Also, these rulings were all made at the federal level; many states still control the ultimate application of “free exercise,” and as a result, the interpretation varies in differing states. <br /> <br /> Another notable case is the 1968 case of Newman v. Piggie Park Enterprises (Justia 2020). This case backed anti-discriminatory statutes after a barbecue chain refused to serve black people with the justification of the owner being that his beliefs compelled him to segregate races within his restaurants. This case was monumental because it well-established the limit to freedom of religion that allows for the weaponizing of one’s rights against another man. <br /> <br /> The courts also uses other tests in determining decisions regarding freedom of religion. The three-part Lemon test from the 1971 decision Lemon v. Kurtzman (which prohibited state funding of religious schools) states that 1. a court must first determine whether the law or government action in question has a compelling state and secular interest, underlining the idea that government should only concern itself in civil matters and should interfere with matters of individual religion as little as possible. 2. The state action must be proved to have the primary effect of advancing or inhibiting religion. And 3. the court must consider whether the action in question excessively entangles religion and government(Pacelle Jr.). Although criticized by several Supreme Court justices, some courts still use this test in establishment-clause cases. However, in the 1997 decision Agostini v. Felton, the Supreme Court finally modified the Lemon test in that it combined the entanglement and primary effects prongs of the test. <br /> <br /> The endorsement test, proposed by Justice Sandra Day O’Connor in her concurring opinion in the 1984 case of Lynch v. Donnelly, asks whether a particular government action amounts to an endorsement of religion (Hudson Jr.). This test has sometimes been assumed to fall into the Lemon test. It is similar to the first two prongs of the Lemon test by subjecting the challenged government act to the criteria of having the purpose or effect of endorsing religion. This test typically is invoked where the government is involved in expressive activities such as graduation prayers, religious signs on government property, religion in the curriculum, etc.<br /> <br /> Under the coercion test, the government does not violate the establishment clause unless it provides direct aid to religion in a way that would establish a state church or unless it coerces people to practice a religion against their will (Vile). However, this test is subject to varying interpretations, as is demonstrated in the conflicting cases of Allegheny County v. ACLU in 1989 and the 1992 case of Lee v. Weisman, in which Justices Kennedy and Antonin Scalia, applying the same test, reached different results (FindLaw 2020). Although freedom of religion is well-protected by the Constitution, debates over its application, protections from/of, and limitations to the right are an ongoing debate in the legal and free world.<br /> <br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> <br /> Yes, the freedom of religion is protected under several international human rights conventions, treaties, and decrees. This right is protected in article 18 of the UN’s 1948 Universal Declaration of Human Rights, article 18 of the 1966 International Covenant on Civil and Political Rights, and also in the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (United Nations Human Rights Office of the High Commissioner).<br /> <br /> The right is also protected by relevant articles within the following conventions and treaties: 1966 International Covenant on Economic, Social and Cultural Rights, the 1969 International Convention on the Elimination of All Forms of Racial Discrimination, the 1989 Convention on the Rights of the Child, the 1981 Convention on the Elimination of All Forms of Discrimination against Women, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the 1990 UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the 1951 Convention on the Prevention and Punishment of the Crime of Genocide and the 1951 Convention relating to the Status of Refugees.<br /> <br /> However, despite the writings and workings of all these conventions, treaties, and declarations, freedom of religion is still commonly suppressed in many areas of the world (Janis 2002). There is no effective international supervision of rights to religious freedom and diversity. However, regional European human rights law does in fact have tangible supervision of and consequences regarding the suppression of the freedom of religion. Article 9 of the 1950 European Convention on Human Rights and Fundamental Freedoms protects right to freedom of thought, conscience, and religion.<br /> <br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> ====Platonism====<br /> ====Aristotelian thought====<br /> ====Ancient Chinese Philosophy====<br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought==== <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> The conflict of civil and religious rights has presented several exceptions to the right to free religious exercise. Specifically, stemming from the Supreme Court’s ruling in favor of marriage equality in 2015, many anti-discrimination laws have passed, restricting the right to unfettered religious exercise. Several scholars have argued in favor of these exceptions. In discussing the Supreme Court’s 2015 decision, Suzanne Goldberg states, “After many years of battles in which the religious right had hammered the message that gay people were somehow seeking “special rights” when advocating for laws prohibiting sexual orientation discrimination, the court added its authoritative view that the “special rights” rhetoric was meaningless” (Goldberg, 237). Emulated by Goldberg, as civil rights, such as marriage equality, are not “special rights&quot;, they must be protected equally to the First Amendment right to free religious exercise. Ultimately, Goldberg conveys the sentiment that within American jurisprudence, the right to free religious exercise is prima facie, and thus can be subject to numerous exceptions. <br /> <br /> Additionally, in regards to criminal law violations, William P Marshall of the University of Chicago Law Review supports the need for exceptions to the Free Exercise Clause. Furthermore, Marshall condemns the belief that religious activity, as protected by the Free Exercise Clause, should be exempt from criminal laws. In defending the Employment Division, Department of Human Resources of Oregon v. Smith decision, which confirmed the state’s ability to withhold unemployment benefits from workers fired for using illegal drugs for religious purposes, Marshall argues that if the Supreme Court were to permit religious exemptions to criminal laws, strengthening First Amendment Rights, they would have to engage in dangerous “constitutional balancing” (Marshall, 311). As explained by Marshall, this balancing would force the court to weigh the interests of religious groups against the interests of states, resulting in inconsistent rulings. Thus, presenting a clear exception to freedom of religion, Marshall argues that First Amendment rights, specifically the right to free religious exercise, do not exempt one from criminal prosecution. <br /> <br /> Between the positions of Marshall and Goldberg, lies Ira C. Lupu of the University of Pennsylvania Law Review. While Lupu dismisses the Smith decision, claiming religious rights should have been accommodated in that particular case, he still argues for limitations on religious expression, claiming, “every person may pursue religious freedom to the extent that it is fully compatible with the equal pursuit of religious freedom by others” (Lupu, 558). Similar to Goldberg, Lupu asserts that religious expression can be curtailed when it restricts the liberties of others. Thus, Lupu emphasizes that although certain religious practices should be exempt from the law, such as the peyote drinking incident in Smith, religious expression should not be left legally unrestricted.<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> Private companies have often been found to institute policies that restrict employees’ rights to religious freedom. Such policies directly violate Title VII of the Civil Rights Act, a provision meant to bolster religious freedom by prohibiting employment discrimination on the basis of religion. <br /> <br /> An example of such discriminatory policies was observed in EEOC v. Abercrombie &amp; Fitch Stores. Furthermore, the case revealed Abercrombie’s “Look Policy”, which involved discriminatory hiring procedures towards Muslim individuals. Affirmed by the Supreme Court, this policy was a direct violation of the Civil Rights Act, Justice Scalia upholding Title VII claiming, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” Demonstrated by the court’s decision, one’s entitlements to religious freedom in the workplace, as upheld by Title VII, are curtailed by discriminatory hiring practices such as the “Look Policy”.<br /> <br /> In addition to violating their Title VII entitlements, many individuals argue that their employers’ practices restrict their First Amendment rights to free religious exercise. For example, in Sherbert v. Verner, Adell Sherbert argued that her firing due to her refusal to work Saturdays, her Sabbath day, was a violation of the Free Exercise Clause of the First Amendment. The Supreme Court concurred with Sherbert, emphasizing that the firing restricted Sherbert’s ability to freely practice her religion. Emphasized by the case, firing someone on the basis of their religion, in addition to likely being a violation of the Civil Rights Act, is a direct breach of the First Amendment. Thus, witnessed by instances such as those that precipitated Sherbert, First Amendment religious rights are often infringed upon by employment policies.<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> <br /> In the United States, certain religious practices have been limited during times of disease. For example, during the COVID-19 pandemic, limitations on free religious exercise have been visibly witnessed, demonstrating how the right is subject to restrictions during a health crisis. This was observed in the beginning of the pandemic, when many houses of worship challenged their closures by state governments, arguing that such actions violated their rights to free religious exercise. Though, when a specific California church’s case was brought to the Supreme Court, the closures were upheld as constitutional, Chief Justice Roberts arguing, “Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment.” Emphasized by the California case, in times of disease, certain religious practices, such as attending largely populated church services, can be restricted if they do not correspond with federal public health guidelines. Thus, witnessed through the closing of churches as a result of the COVID-19 pandemic, a disaster can alter the Supreme court’s constitutional interpretation of the Free Exercise Clause.<br /> <br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Association&diff=195 2020-06-30T16:05:10Z

<p>Ksandlund: /* Is it contained in the US Constitution? */</p> <hr /> <div>==What is the oldest written source that mentions this right?==<br /> John Locke’s “A Letter Concerning Toleration” (1689) primarily concerns religious associations, but he extends certain arguments to associations in general. The text in the next paragraph is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right (241). <br /> <br /> “Suppose this Business of Religion were let alone,” Locke hypothesizes, “and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.” Under conditions of differential treatment, such persons, “united together by one common persecution,” would become just as dangerous and disruptive. Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter.<br /> <br /> In 1776, Richard Price, a British writer who supported the American revolution published Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America. Unlike other commentaries on civil rights, he includes discussion on free assembly. He describes a prohibition on “associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy” as being part of a “state of oppression which no country can endure.” Though he does not phrase it as a fundamental right, the fact that Price deems draconian restrictions on association oppressive implies a belief in at least a limited freedom of association.<br /> <br /> Though Enlightenment commentators like Locke argued for and against greater freedom to associate. However, the first to mention it as an absolute right was John Stuart Mill, who argues ''in On Liberty'' that “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (1859, 16).<br /> <br /> ===What is the oldest written source in this country that mentions this right?===<br /> ====Afghanistan====<br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> ====Armenia====<br /> ====Australia====<br /> Australia has detailed records of its constitutional convention, which occurred in the 1890s. In 1897. One speaker alluded to the power of free association: “The English feel the vigor of their public spirit; they have experienced the vigilance of a free press, and the power of associations and public meetings.”<br /> <br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> Chapter 2 of Botswana’s Constitution (1966) guarantees “freedom of conscience, of expression and of assembly and association.”<br /> <br /> ====Brazil====<br /> Brazil’s constitution (1988) has exceptionally detailed freedom of association provisions. Title II-I-5 states that: <br /> <br /> - there is total freedom of association for lawful purposes, but any paramilitary association is prohibited;<br /> <br /> - creation of associations and, as set forth in law, of cooperatives, requires no authorization, prohibiting state interference in their operations; <br /> <br /> - associations may be compulsorily dissolved or their activities suspended only by a judicial decision, which in the former case must be a final and unappealable decision;<br /> <br /> - no one can be compelled to join an association or to remain in one;<br /> <br /> - when expressly authorized, associations have standing to represent their members judicially and extrajudicially<br /> <br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> Chapter 345 Section 5 of Saskatchewan’s Bill of Rights (1947) states that “every person and every class of persons shall enjoy the right to peaceable assembly with others and to form with others associations of any character under the law.”<br /> <br /> Part 1 of the Canadian Bill of Rights (1960) lists “freedom of assembly and association” as a guaranteed right. This was an ordinary act of parliament, and it has been replaced by the Canadian Charter of Rights and Freedoms, an amendment to the Canadian Constitution.<br /> <br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> Chapter 2-4 of the Provisional Constitution of the Republic of China (1912) states that “citizens shall have the freedom of speech, of composition, of publication, of assembly and of association.”<br /> <br /> The 1912 Republic of China Constitution refers to the one adopted by the nationalist government on the mainland, led by Sun Yat-sen. Despite its lofty ideals, this government never really maintained power. After a period of instability and civil war, the CCP forced the nationalist government to retreat to Taiwan, which is known now as the Republic of China. Taiwan suspended its constitution, and it was under a repressive martial-law system until 1987. It is now a constitutional democracy, and freedom of association is protected in its constitution. The PRC constitution claims to protect freedom of association, among other civil liberties.<br /> <br /> ====Colombia====<br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> Section II-18 of Estonia’s first constitution (1920) states that “The forming of associations and unions is free in Esthonia.&quot;<br /> <br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> Title I of the French Constitution of 1791 guarantees the right of peaceful assembly. <br /> <br /> “Liberty to citizens to assemble peaceably and without arms in accordance with police regulations.”<br /> <br /> Though the French Constitution of 1791 protected the right to assemble, French revolutionaries considered explicitly excluding free association (Boyd 257). The French enacted a law protecting free association in 1901, and enshrined it in their constitution in 1971 (Boyd 2008, 237).<br /> <br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> The Weimar Constitution (1919) established freedom of association. <br /> <br /> Article 123: “All Germans have the right to assembly peacefully and unarmed without giving notice and without special permission.” <br /> <br /> Article 124: “All Germans have the right to form associations and societies for purposes not contrary to the criminal law.”<br /> <br /> ====Ghana====<br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> The following quote was attributed to Gandhi in 1922: <br /> <br /> “Freedom of association is truly respected when assemblies of people can discuss even revolutionary projects, the State relying upon the force of public opinion and the civil police, not the savage military at its disposal, to crush any actual outbreak of revolution that is designed to confound public opinion and the State representing it.., The fight for swaraj means a fight for this threefold freedom before all else.&quot; <br /> <br /> Part III Article 19 of the Indian Constitution (1950) grants citizens the right to “form associations or unions” (Dalton).<br /> <br /> ====Indonesia====<br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> Article 40 of the Irish Constitution (1940) guarantees “the right of the citizens to form associations and unions.”<br /> <br /> ====Israel====<br /> ====Italy====<br /> Part 1 Title 1 Article 18 of the Italian Constitution (1947) states that: <br /> <br /> - “Citizens have the right to form associations freely and without authorization for those ends that are not forbidden by criminal law.” <br /> <br /> - “Secret associations and associations that, even indirectly, pursue political aims by means of organisations having a military character shall be forbidden.”<br /> <br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> Chapter III Article 21 of the Japanese Constitution (1947): “Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.” <br /> <br /> Additionally, though finding direct texts has proven difficult, there have been political movements for greater political expression since the pre-war era. The freedom and popular rights movement existed throughout the second half of the 19th century, and its members advocated for increased freedom of assembly beginning no later than 1886 (Tierney 2013, 21).<br /> <br /> ====Jordan====<br /> ====Kazakhstan====<br /> ====Kenya====<br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> ====Laos====<br /> ====Latvia====<br /> The Latvian Constitution added a section on fundamental rights in 1998. Article 102 states that “everyone has the right to form and join associations, political parties and other public organisations.”<br /> <br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> From Section 1 Article 9 the Mexican Constitution of 1857: “No one shall be deprived of the right peaceably to assemble or to come together for any lawful purpose; but only citizens shall be permitted to exercise this right for the purpose of taking part in the political affairs of the country. No armed assembly shall have the right to deliberate.”<br /> <br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> Part 2 Section 17 of the Bill of Rights Act (1990) states that, “Everyone has the right to freedom of association.”<br /> <br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> Chapter IV Section 37 of the constitution of the Second Republic (1979) states that “every person shall be entitled to assemble freely and associate with other persons, and any political party, trade union, or other association for the protection of his interests.”<br /> <br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> ====Oman====<br /> ====Pakistan====<br /> The following is from Part II, Chapter I, Section 17 of Pakistan’s current constitution (1973). <br /> <br /> “Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.”<br /> <br /> “Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.”<br /> <br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> ====Philippines====<br /> ====Poland====<br /> ====Portugal====<br /> Article 46 of the Portugese Constitution (1976): <br /> <br /> “Citizens shall possess the right to freely associate with one another without requiring any authorisation, on condition that such associations are not intended to promote violence and their purposes are not contrary to the criminal law.” <br /> <br /> “Associations shall pursue their purposes freely and without interference from the public authorities and shall not be dissolved by the state or have their activities suspended, except in such cases as the law may provide for and then only by judicial order.”<br /> <br /> “No one shall be obliged to belong to an association, or be coerced to remain therein by any means.”<br /> <br /> “Armed associations, military, militarised or paramilitary-type associations and organisations that are racist or display a fascist ideology shall not be permitted.”<br /> <br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> ====South Africa====<br /> Chapter 3 section 17 of the 1993 Interim Constitution states that “every person shall have the right to freedom of association.”<br /> <br /> ====South Korea====<br /> <br /> Chapter two Article Ten of the Constitution (1948): “All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association.”<br /> <br /> ====South Sudan====<br /> ====Spain====<br /> ====Sri Lanka====<br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> The 1990 Human Rights Act protects the Right to assemble and associate, subject to reasonable and proportionate restrictions. The HRA primarily serves to codify the European Convention on Human Rights into British Law (the ECHR and its associated court are not related to the EU, and the UK is still a signatory). <br /> <br /> In 1776, Richard Price, a British writer who supported the American revolution published ''Observations on the Nature of Civil Liberty'', the Principles of Government, and the Justice and Policy of the War with America. Unlike other commentaries on civil rights, he includes discussion on free assembly. He describes a prohibition on “associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy” as being part of a “state of oppression which no country can endure.” Though he does not phrase it as a fundamental right, the fact that Price deems draconian restrictions on association oppressive implies a belief in at least a limited freedom of association. This is the first instance I could find of a political theorist invoking the concept of freedom of association (or the lack thereof).<br /> <br /> There is a more explicit case for free association in John Stuart Mill’s On Liberty (1859). Mill lays a broad notion of individual liberty. He then argues that “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived (16).”<br /> <br /> Before any British thinkers espoused freedom of association as a right, John Locke, Thomas Hobbes, and David Hume addressed the issue (as Boyd helpfully summarizes). Hobbes detested associations, referring to them as “lesser commonwealths in the bowels of a greater, like worms in the entrails of a natural man” (257). <br /> <br /> Locke disagreed with Hobbes’ cynical perspective on groups. John Locke’s “A Letter Concerning Toleration” primarily concerns religious associations, but he extends certain arguments to associations in general. The italicized text below is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right (2008, 241). <br /> <br /> “Suppose this Business of Religion were let alone,” Locke hypothesizes, “and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.” Under conditions of differential treatment, such persons, “united together by one common persecution,” would become just as dangerous and disruptive.26 Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter.<br /> Finally, David Hume’s “Of Parties in General” (1742) is another important piece of Enlightenment work skeptical of associations. His position is more nuanced that Hobbes; he understands that association may exist for different purposes. Factions “of interest” are deemed less dangerous than factions “of principle.” Regarding factions of principle, he wonders the following: “But where the difference of principle is attended with no contrariety of action, but every one may follow his own way, without interfering with his neighbour, as happens in all religious controversies; what madness, what fury can beget such unhappy and such fatal divisions?”<br /> <br /> ====United States====<br /> Listed at the bottom of this section is language from the State Constitutions of New Hampshire and North Carolina and the Pennsylvania Declaration of Rights, all from 1776, which articulate the right to assemble (assembly and association are not always interchangeable, but many constitutions group them together). These documents all contain rights to assemble written in remarkably similar language, and they describe the right as politically driven. These were the oldest references to something like the right of association in governing documents.<br /> <br /> Despite modern views of assembly as related to association, at the time of America’s founding, it would have been better understood as related to the right to petition. According to Congress’s online annotated Constitution, the assembly clause meant that the people have a right to assemble in order to petition the government. The site says that assembly was initially seen as a “subordinate and instrumental” right (&quot;Freedom of Assembly and Petition&quot;). The aforementioned state constitutions should be interpreted the same way. In fact, this is even more clear in these state constitutions than in the national one. The state constitutions surround the right to assemble with expressly political language, such as the right to petition and advocacy for the “common good,” while the First Amendment’s guarantees are political, but not entirely political (it protects religion, and protected speech and press are often, but not always, political). <br /> <br /> As Richard Boyd argues in “The Madisonian Paradox of Free Association,” America’s founders did not explicitly include free association because at least some of them were skeptical of it, worrying that certain associations would be conspiratorial or seditious. He summarizes the British Enlightenment tradition skeptical of associations, which influenced the founders (I describe this in the last few paragraphs of the UK section, on Hobbes, Locke, and Hume). James Madison, the primary author of the Bill of Rights, feared the influence of factions, which private associations furthered. As Boyd notes, Madison viewed association as a “second-order” right (page 258), whose existence is tolerable because institutions can mitigate its worst effects (page 247). The following passage from “Federalist No. 10” illustrates his attitude toward factions arising from free association: <br /> <br /> It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.<br /> <br /> As Boyd notes, there are several possible reasons why Madison may not have enumerated the right to associate. It is possible that he saw it as implied by other First-Amendment rights, such as free assembly. It also may have been seen as less important or vulnerable than other rights, and Madison may have seen it as the type of auxiliary right protected by the Ninth Amendment. Finally, the right’s exclusion may have been because the founders were too skeptical of it for its inclusion (258). <br /> <br /> Since the 1950s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in NAACP v. Alabama that the NAACP cannot be forced to submit a membership roster to a state government. In 2000, in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association. <br /> <br /> In ''Roberts v. US Jaycees'', an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.” <br /> <br /> Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in ''NAACP v. Button'', “It is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.” <br /> <br /> Article XVIII of North Carolina’s Constitution: “That the people have a right to assemble together, to consult for their common good, to instruct their Representatives, and to apply to the Legislature, for redress of grievances.”<br /> Section 21 of New Hampshire’s Constitution: “The citizens have a right in a peaceable manner to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or for other purposes, by petition, address, or remonstrance. No law abridging the freedom of speech shall be enacted.”<br /> <br /> Section XVI of the Pennsylvania Declaration of Rights: “That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance.<br /> <br /> ====Uruguay====<br /> ====Uzbekistan====<br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> Pope Leo XIII forcefully argued for free association in Section 51 of ''Rerum novarum'' (1891), an extremely influential text in Catholic thought. <br /> <br /> &quot;Private societies, then, although they exist within the body politic, and are severally part of the commonwealth, cannot nevertheless be absolutely, and as such, prohibited by public authority. For, to enter into a &quot;society&quot; of this kind is the natural right of man; and the State has for its office to protect natural rights, not to destroy them.&quot;<br /> <br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> This right became an element of political discourse in the late Enlightenment, especially the American Revolution. In the mid and late 1800s, writers such as Mill and Leo XIII pushed the idea into the mainstream.<br /> <br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> <br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> Constitutions written after 1900 very often protect free association.<br /> <br /> As the right to free association is upheld by numerous United Nations treaties, for example, the European Convention on Human Rights, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, it would be expected that most countries maintain legal provisions protecting it. Though, investigated by UN Special Rapporteur Maina Kiai, many countries enforce legislation that explicitly restricts civilians’ entitlements to free association (International Center for Not-for-Profit Law). <br /> <br /> For example, noted by Kiai, in Malaysia, the Peaceful Assembly Act 2012 bans individuals under the age of twenty one from organizing public demonstrations. Additionally, stipulated by the same act, children under the age of fifteen cannot participate in demonstrations. Article 33 of the Constitution of Mexico, Kiai asserts, prohibits foreigners from engaging with Mexican politics. Similarly, Kiai notes that in Myanmar, Article 354 prohibits foreigners from assembling. Through these various forms of legislation, political and social association are highly restricted, as individuals are prohibited from expressing their associations through protest and civic engagement. <br /> <br /> Additionally, Kiai presents how legal restrictions on sexual orientation limit free association in several countries. For example, in Russia, a ban on gay pride parades was upheld by Moscow’s city council in 2012. Likewise, in Nigeria, the President ushered in the Same Sex Marriage Act in 2014, prohibting gay marriage and the ability to “participate in or support gay clubs, societies, organizations, processions or meeting.” Kiai notes a similar anti-homosexuality law was signed by Uganda’s president in 2014. Demonstrated by these numerous legal restrictions to homosexuality, free association is unprotected in numerous countries, as one can often be punished for associating with a specific sexual orientation. <br /> <br /> In the remainder of his report, Kiai continues to elaborate on numerous legal provisions that restrict free association. For example, Kiai notes how both Chile and Turkey utilize counter-terrorism legislation to restrict free association. Similarly, he explains how criminal laws in Vietnam and El Salvador often deter individuals from exercising their rights to free association, as their voices may be met with harsh penalties from their governments. <br /> <br /> Witnessed through Kiai’s reporting, the restrictions to free association are plentiful. This ultimately demonstrates that despite its entitlement by numerous United Nations treaties, the right to free association is highly vulnerable to violation and not widely internationally upheld.<br /> <br /> ===Is it contained in the US Constitution?===<br /> No.<br /> <br /> The right to free association is not explicitly stated in the United States Constitution. Though, The Supreme Court has historically upheld the constitutional right to free association, invoking the Fourteenth and First Amendments (Legal Information Institute, Cornell Law School). In 1958, The NAACP v. Patterson ruling established this precedent. In response to Alabama’s aims to limit the NAACP’s business within the state, the Supreme Court ruled that it was “the right of petitioner's members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment” (Oyez). Furthermore, the court asserted that freedom of association was undoubtedly covered by the Due Process Clause of the Fourteenth Amendment (Oyez), which asserts no individual may be “&quot;deprived of life, liberty or property without due process of law.” The court additionally demonstrated the First Amendment to protect free association, Justice Marshall Harlan claiming “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” Thus, while the right to free association is not explicitly described by the Constitution, as witnessed in NAACP v. Patterson, it is upheld by American constitutional law.<br /> <br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> Since the 1950s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in ''NAACP v. Alabama'' that the NAACP cannot be forced to submit a membership roster to a state government. In 2000, in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association. <br /> <br /> In ''Roberts v. US Jaycees'', an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.” <br /> <br /> Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in NAACP v. Button, “It is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.”<br /> <br /> ===Are there any exceptions in American law to this right?===<br /> Yes. As seen in ''Roberts v. US Jaycees,'' the right may be weighed against other state interests, especially when the association in question is neither expressive nor intimate. In that case, free association rights were curtailed to ensure adherence to non-discrimination laws.<br /> <br /> Additionally, a significant exception to free association rights in the United States is witnessed through legislation regarding political parties. Furthermore, while one has the liberty to vote with, join, and create independent political parties, upheld by the William V. Rhodes ruling, the state can still regulate these parties if they violate other aspects of the Constitution. For example, in New York State Board of Elections vs. Lopez Torres, the court claimed, <br /> <br /> <br /> A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform. These rights are circumscribed, however, when the state gives a party a role in the election process...Then for example, the party’s racially discriminatory action may become state action that violates the Fifteenth Amendment<br /> Demonstrated by New York State Board of Elections vs. Lopez Torres, if a party associates with discriminatory or racist behavior, it cannot be involved in the state’s election process, demonstrating a limitation on free political association. <br /> <br /> Additionally, sections of the Federal Election Campaign Act are often interpreted to be exceptions to free association, as they require the public disclosure of individuals’ political donations. This position was echoed by the Buckley v. Valeo ruling, where the Supreme Court argued that new campaign finance laws, “impose significantly more severe restrictions on protected freedom of political expression and association than do its limitations on financial contributions.” Thus, witnessed by Buckley v. Valeo, campaign finance laws may be interpreted as an exception to free association, as one cannot privately financially contribute to the political party they associate with. <br /> <br /> Within universities, freedom of association, specifically the right to associate as an exclusive religious group, may be regulated by anti-discrimination clauses. This was observed in Christian Legal Society v. Martinez, where the court ruled in favor of Hastings’ College of Law’s anti-discrimintation policies, which prohibited Christian student group’s from excluding non-christians. Therefore, on university campuses, individuals must be able join any student group, regardless of their religious association. Ultimately, this decision restricted the parameters of free association, as one cannot actively discriminate on the basis of it. <br /> <br /> Consequently, decided by Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, certain groups can legally exclude individuals from associating with them. Furthermore, if an individual’s beliefs do not coincide with the group’s mission, the individual may be prohibited from membership. Specifically, the court claimed that by mandating the Boston Veterans’ Council to include Gay, Lesbian, and Bisexual individuals in their parade, the Massachusetts State Court, “violates the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.” Thus, while still restricting free association, the ruling counters Christian Legal Society v. Martinez, as individuals can be restricted from associating with certain groups if it is deemed that their identity does not conform to the group’s platform.<br /> <br /> Ultimately, these exceptions arise from the implicit nature of the freedom of association within the Constitution, as what qualifies as “association” is highly subject to interpretation by Supreme Court justices. For this reason, depending on who is sitting on the bench, freedom of association can be left unchecked or potentially be highly restricted.<br /> <br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> Yes. It is protected explicitly in documents such as the Universal Declaration of Human Rights, the European Convention on Human Rights, and the American Convention on Human Rights.<br /> <br /> Specifically, free association is upheld by Article 11 of the European Convention on Human Rights, which claims, “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”Additionally, it is enshrined in Article 20 of the Universal Declaration of Human Rights, which claims “ Everyone has the right to freedom of peaceful assembly and association; No one may be compelled to belong to an association.” In Article 22 of the International Covenant on Civil and Political Rights, the rights to association are specifically outlined, as it upholds “In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Lastly, The International Labor Organization similarly supports freedom of association in the 1998 Declaration on Fundamental Principles and Rights at Work, which asserts that all members have “freedom of association and the effective recognition of the right to collective bargaining;”<br /> <br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> ====Platonism====<br /> ====Aristotelian thought====<br /> ====Ancient Chinese Philosophy====<br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought==== <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> Restricting certain groupings and gatherings that are involved, or likely involved in crimes as was seen with the response to the formation of the Ku Klux Klan as a vigilante association, is a typical exception to the right of freedom of association (Australian Law Reform Commission 2016). In response to the crimes committed by the organization, Congress passed a Force Act in 1870 and the Ku Klux Klan Act in 1871, which authorized the suppression of disturbances to the peace by force (Gruberg). This was in effort to stop terrorist organizations through heavy punishments, such as the suspension of habeas corpus under these acts. These acts were eventually found by the Supreme Court to be unconstitutional and were repealed; however, although direct restrictions upon the group (who was behind the 1963 bombing of a black church in Alabama, numerous murders including that of three civil rights workers in 1964 Mississippi, and other criminal efforts to impose white supremacy on the masses and restrict the rights of African Americans) and its freedom of assembly and association have not been able to lawfully prevent such crimes in the name of violations of the freedom of association, modern civil rights laws and increased national surveillance by the Federal Bureau of Investigation have indirectly impacted the KKK’s and other criminally-involved groups’ (such as terrorist groups like ISIL) freedoms of association and assembly. The First Amendment of the US Constitution grants the right to “peaceable assembly,” and any indication of unpeaceable assembly warrants government interference. When also the association infringes upon another group’s freedoms of association, endangers public safety and order, or does not benefit/or harms social need, as can be seen with the efforts of the KKK to restrict black Americans rights to vote and peaceably assemble, necessary limitations are placed upon the right. <br /> <br /> In terms of certain limitations on peaceable assembly, the government has the right to limit this freedom based upon “time, place and manner” restrictions: “Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity (O'Neill). These restrictions come in many forms including imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property. ” These limits ultimately regard the facilitation of legitimate regulatory goals, such as preventing traffic congestion or preventing interference with nearby activities.<br /> <br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> The freedom of association is derivative from the First Amendment which guarantees the freedoms of speech, assembly, and petition (Hudson 2020). These freedoms of speech, assembly, and petition all form sub-categories of the freedom of association. Collectively, this right permits a group to act in the collective interest of its members and to maintain private associations and assemblies without government interference. The legal problems regarding its practice have only recently arisen- particularly from the loyalty investigations of the Communist Party membership and a series of other cases in the 1950s and 1960s in relation to the activities of the National Association for the Advancement of Colored People (Cornell Law School Legal Information Institute 2020). For example, in 1958, with the case of the NAACP v. Alabama, the right to freedom of association was strengthened and supported by the Supreme Court who ruled in favor of the NAACP’s decision to withhold a list of members in the organization from the government (Hudson 2020). In response to Brown v. Board of Education 1954, Alabama authorities was closely investigating the NAACP under the foreign corporation law. The NAACP complied with the state’s request of its business records, including its charter and list of organizational officers and staff. They refused, however, to give lists of rank-and-file members due to confidentiality, potential economic reprisal attacks, and potential repression. Giving up the lists, civil rights activists said, would dissuade members and potential recruits from associating with the organization, ultimately violating their right of association. <br /> <br /> Prior to this case the Court had supported a stronger suppression of the freedoms of association and assembly regarding organizations that were alleged to be involved in subversive and unlawful activities. In 1928’s New York ex rel. Bryant v. Zimmerman and 1951’s Dennis v. United States the Court had ruled in favor of government efforts to restrict and limit the rights of assembly and speech of both the KKK and the Communist Party (U.S. Supreme Court 1928, 1951). In this case, however, the Court said NAACP did not cause harm to government or society, and they had complied with the demands of the Alabama government sufficiently; therefore they were justified and protected by law in their decision to withhold membership lists. <br /> <br /> Later, in the 1967 case of United States v. Robel in which Eugene Robel, an inactive member of the Communist Party, was charged with violating the Subversive Activities Control Act when he continued his work at the Todd Pacific Shipyards, a location that was deemed by the Secretary of Defense to be a defense facility (U.S. Supreme Court 2020). Under the Act, his actions was illegal due to his membership to the Communist Party and members of the Party’s legal inability to remain employed at a location deemed a “defense facility”. The Supreme Court ruled that the “defense facility” employment provision was an unconstitutional abridgment of the right of association regardless of its application solely to active Party members. Chief Justice Earl Warren wrote that the provision was overbroad while Justice William J. Brennan added that the designation of defense facilities being a power given to the Secretary of Defense was unconstitutional because the Act provided no meaningful standards for the Secretary to follow. This case was a milestone because, once tested, the Court upheld the broad freedoms of association and continued the prohibition of government interference and bias towards any individual based upon an affiliated association. Later cases regarding the Bar examine and admission to the bar further backed this right. In 1971’s Baird v. State Bar of Arizona and Law Students Research Council v. Wadmond, the Supreme Court established that the government could only deny admission to the bar if an applicant’s membership in a group advocating overthrow of the government (such as the Communist Party) was legitimately coupled with the specific intent to achieve that end (U.S. Supreme Court 1971).<br /> <br /> These cases established that organized groups in association that gather in efforts to advance political, economic, religious, or cultural matters may gather without government interference (and particularly without government knowledge of listed members) unless the group explicitly poses a threat to society or engages in criminal activity. <br /> <br /> Under American jurisprudence, permissible exceptions to the freedom involve matters of internal affairs such as discrimination cases. In the 1976 case of Runyon v. McCrary, discrimination based upon race was established as a limitation to a body’s freedom of association after two children were denied access to certain private schools in Virginia as a result of the schools’ admitted segregationist school policies (U.S. Supreme Court 1976). Later, in the Roberts v. United States Jaycees court case of 1984, the court ruled that the Jaycees, an organization of young business leaders that only fully accepted male members and who claimed that the anti-discrimination laws that forced them to accept qualified women was a breach of their freedom of association, lacked “the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women,” ultimately prohibiting their exclusion of women (Bernstein 2020). <br /> <br /> Also, if the state has a compelling interest, it can justifiably limit associations’ rights to organizational autonomy (Alexander 2008, 14). Here, the state would be setting limits and requirements for how a group is organizationally run and made up. By giving an organization a quota, the state forces a particular pattern of inclusion that is in the public interest. For example, the US government is permitted to work to create less segregated schools, involving programs like the Moving to Opportunity (MTO). It is permitted to do in efforts to promote certain patterns of inclusion and acceptance within communities and associations (U.S. Department of Housing and Urban Development 1992).<br /> <br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> In Article 22 of the UN’s International Covenant on Civil and Political Rights (ICCPR), the right to freedom of association is granted to all, including joining trade unions (United Nations 1966). Restrictions can only be placed on this right if the restrictions are prescribed by the state’s law and “are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.” Similarly, in Europe, derogations are permissible only when “prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others” as is stated in Article 11 of the European Convention on Human Rights (European Court of Human Rights 1953, 12). And Article 16 of the American Convention on Human Rights mirrors the decree of the ICCPR (Inter-American Commission on Human Rights 1969).<br /> <br /> Regarding the International Labour Organisation (ILO) and its adoption of Freedom of Association and Protection of the Right to Organize, this body is in place to protect the labor interests of those around the world, and they are prohibited by international law to formulate and/or apply law so as to prejudice against any group (Swepston 1998, 172).<br /> <br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> <br /> Freedom of association is an essential facet of modern democracy, yet it is often overlooked in political discourse on the natural rights and liberties of the citizen. This could be due to the fact that freedom of association and assembly are often so closely related to freedoms of speech and expression, or it could be because it is so difficult for political theorists to decide which association should be allowed and which can be justifiably restricted. Whatever the case, the debate over exceptions to the right of free association continues to change and evolve even in the modern era.<br /> <br /> John Locke is one of the earliest proponents of natural right theory; his second “Treatise on Government” famously outlines humankind’s three essential rights to life, liberty, and property (Locke, “Treatise on Government”). He does not specifically mention people’s freedom of association, but scholars point to his writings on religious assembly as an indication of his stance on the right. In a George Mason University publication, Eric Claeys refers to a passage from Locke’s “Letter Concerning Toleration,” which states that a church is simply a “free and voluntary society” (Locke, “A Letter Concerning Toleration”), saying that “if one reads the same passage from the Letter with an eye toward issues about associational freedom, Locke is making a far more radical point: All private societies, churches and otherwise, deserve a presumption of associational freedom” (Claeys, “The Private Society and the Liberal Public Good in John Locke’s Thought”). In light of Claeys’ assessment, it is easy to observe Locke’s thoughts on the freedom of association in the constitution that he wrote for the Carolina Colony in 1669. For example, Article 103 of this document states that “no person whatsoever shall speak anything in their religious assembly irreverently or seditiously of the government or governors, or of state matters” (Locke, “The Fundamental Constitutions of Carolina: March 1, 1669”). This reveals a reluctance on Locke’s part to allow any association of citizens to gather in opposition of the established government, perhaps because he understands the potential threat that this could pose to political society. His position on the freedom of association is made all the more clear in his 108th Article, which stipulates that “assemblies, upon what presence soever of religion, not observing and performing the above said rules, shall not be esteemed as churches, but unlawful meetings, and be punished as other riots” (Locke, “The Fundamental Constitutions of Carolina: March 1, 1669”). The “above said rules” to which Locke refers consist mostly of provisions to ensure free membership and movement between various religious establishments, but the classification of non compliant assemblies as “unlawful” or “riots” implies a Locke’s hesitation to allow totally free and unrestricted assembly.<br /> <br /> Subsequent political theorists built upon Locke’s theory of rights and liberties, and a number of them elected to deal with the right to freedom of association more directly. The United States Constitution, much of which rests upon Lockean political theory, is one of the first documents to directly address freedom of assembly in its text. Perhaps the buildup to the American Revolution, in which groups like the Sons of Liberty and the Stamp Act Congress were outlawed and broken up by the British government, affected the Constitutional Convention’s decision to include assembly in the Bill of Rights. The Constitution’s First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” (The Constitution of the United States of America). The Constitutional Convention, led by prominent statesman James Madison, used the word peaceably to signal that citizens were not entitled to the complete freedom of assembly if such activity could potentially generate violence or unrest (Law Library of Congress, “The Right to Peaceable Assembly”). The Cornell Law Review writes that this guarantee gradually came to protect citizens’ rights to participate in organizations that regularly utilize their members’ constitutional rights to freely assemble and petition the government. It states that over time, “Supreme Court decisions gradually determined that “the right of association is derivative from the First Amendment guarantees of speech, assembly, and petition” (Legal Information Institute, “Right of Association”). While Madison and his colleagues did not directly address freedom of association in the Constitution’s text, they did lay the groundwork for its realization years later.<br /> <br /> French diplomat Alexis De Tocqueville traveled to the United States in the early 1800s in order to observe the country, and in 1835 he published his findings in his first volume of Democracy in America. In this work the Frenchman sung praise for the American system of government, applauding it for spreading liberty and freedom within its borders. However, even de Tocqueville understood the danger inherent in the guarantee of totally unrestrained freedom of association. Linking the freedom of association to such constitutional rights as the freedom of petition and freedom of the press, he writes that “it cannot be denied that the unrestrained liberty of association for political purposes is the privilege which a people is longest in learning how to exercise. If it does not throw the nation into anarchy, it perpetually augments the chances of that calamity” (De Tocqueville, Democracy in America). De Tocqueville goes on to explain that American association is generally peaceful because citizens tend only to use it to oppose political groups, but he nevertheless must address the danger inherent in the guarantee of unrestricted freedom of association. Even in what he sees as a most ideal form of government, the Frenchman recognizes the risks inherent in unrestricted freedom when it comes to assembly and association.<br /> <br /> Decades later, John Stuart Mill came to a similar conclusion in his 1859 work, On Liberty. Mill was familiar with the American system of government, as evidenced by his mentions of American religious toleration and prohibition of “fermented” drinks, so it is possible that his thinking was influenced in some way by Madison’s work on the Constitution (Mill, “On Liberty”). In his work, Mill advances the theory that humans band together solely for the purpose of protection, and that therefore we can never have the authority to restrain others’ liberty. However, he notes that “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others” (Mill, “On Liberty”). Later on, he explicitly asserts that “freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (Mill, “On Liberty”). Clearly, Mill is aware of the dangers implicit in the creation of total freedom of assembly, and he agrees with the Constitutional Convention that this important right can permissibly be subject to certain regulations and limitations.<br /> <br /> The political and philosophical debate over freedom and association and its acceptable limitations evolved dramatically in the United States in the late nineteenth and early twentieth centuries. Writing just over a century after Mill, First Amendment scholar Thomas Emerson produced an article entitled “Freedom of Association and Freedom of Expression,” in which he addresses a number of issues relating to freedom of association by assessing court precedents and the lessons of history. Like the documents from Mill and Madison, Emerson’s article holds that complete freedom of association would be detrimental to society. Using the example of an organization whose sole aim is to perpetrate a successful bank robbery, Emerson points out that “some types of association need, and are entitled to, greater protection than others” (Emerson, “Freedom of Association and Freedom of Expression,”). He goes on to state that “the legal doctrine that protects associational rights must be able to distinguish between them and to afford the required measure of protection in each case” (Emerson, “Freedom of Association and Freedom of Expression”). Taking into account twentieth-century court decisions, Emerson explains that “the Supreme Court, in recognizing an independent &quot;right of association,&quot; has undertaken to give that right constitutional protection primarily through application of a balancing test” (Emerson, “Freedom of Association and Freedom of Expression”). <br /> <br /> This balancing test is incredibly important in determining the constitutionality of certain restrictions on citizens’ association because it must avoid violating citizens’ unequivocal right to free expression while still preventing the perpetration of unlawful action (Emerson, “Freedom of Association and Freedom of Expression,”). The case of NAACP v. Alabama is one case in which the Supreme Court attempted to find this balance. This instance in which the NAACP argued that the state of Alabama could not constitutionally require the organization to disclose a list of its members, proved incredibly important to our modern understanding of the right to association. Writing the majority opinion, Justice John Marshall Harlan II explained that “it is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment” (Franklin, “NAACP v. Alabama”). This differed from other contemporary cases, such as New York ex. rel Bryant v. Zimmerman, in which the Supreme Court had ruled in favor of the state’s ability to restrict association related to the Ku Klux Klan. The difference, Harlan explained, was that unlike the KKK, the NAACP did not present a threat to society. For this reason, the organization and the members involved were protected under the First Amendment’s protection of citizens’ freedom to peaceably assemble (Franklin, “NAACP v. Alabama”). Harlan, like Madison, Locke, and Mill, understood the importance of restricting free association in order to preserve the peace in society.<br /> <br /> The right to free association is famously difficult to address because the general consensus is that association should not be completely free. For that reason, political theorists and philosophers have gone to great lengths over the centuries to define exactly when and why free association should be limited or left alone. The general consensus is that assembly and association are detrimental to society when they lead to violence or unrest, but as with other rights it is difficult for theorists to decide exactly what criteria turn a given gathering from an expression of free assembly into a potential threat to civil society.<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> <br /> Philosophers and political theorists generally agree that it is sometimes necessary to curtail free association, but this agreement does not answer questions of which forms assembly and association can permissibly be restricted, how they should be limited, or who should control their regulation. It often falls to the government to decide when to step in during times of popular uprising or violent protest, but history also shows a number of instances in which private actors have curtailed citizens’ right to free association or assembly.<br /> <br /> The most common way for private actors can curtail free association is by prohibiting assembly and demonstration on their privately-owned property. In U.S. law, there exists a precedent that protects citizens’ right to free association on public property precisely because the right is not guaranteed when it is practiced on private property. This doctrine was first introduced in 1936, when Jersey City mayor Frank Hague issued an ordinance prohibiting members of the Committee for Industrial Organization (CIO) from gathering in a public space and distributing “communist” literature (Garcia, “Hague v. Committee for Industrial Organization,”). The CIO, with the help of the American Civil Liberties Union, successfully argued that the New Jersey ordinance was unconstitutional under the First Amendment. Hague appealed to the Supreme Court, which upheld the original decision and struck the ordinance down (Garcia, “Hague v. Committee for Industrial Organization,”). Justice Owen Roberts justified the decision for Hague v. Committee for Industrial Organization by likening public spaces such as streets and parks to public forums, in which the free flow of ideas and discourse must be protected under the First Amendment. He made this ruling because he recognized that private actors retained the right to curtail citizens’ right to association when that association occurred on private property. In order to preserve the right to peaceable assembly, the Court’s decision set the precedent for the “public forum” doctrine, which continues to protect the right to association in public spaces to this day (Garcia, “Hague v. Committee for Industrial Organization,”). Writing for The First Amendment Encyclopedia, David Hudson writes that “in the Court’s forum-based approach, the government can impose reasonable time, place, and manner restrictions on speech in all three categories of property, but has limited ability to impose content-based restrictions on traditional or designated public forums” (Hudson, “Public Forum Doctrine | The First Amendment Encyclopedia,”). The doctrine specifically aims to protect peaceful association on public property because the right is not guaranteed when assembly occurs on private property.<br /> <br /> One example of a private actor using its ownership of property to curtail free association can be observed in the 1994 case of Madsen v. Women’s Health Center, Inc. In this case, the Aware Woman Center for Choice in Melbourne, Florida filed a suit against anti-abortion protestors who had been blocking entrances to the building, harrassing abortion patients, and demonstrating outside of staff members’ homes (“Madsen v. Women's Health Center, Inc.”). A court order was issued, ordering protestors to refrain from trespassing on Center property, blocking its entrances, and abusing staff and patients. When the court order was violated, the “the court created a 36-foot buffer zone around the clinic entrances and driveways (including the public sidewalk) within which all antiabortion speech was banned. It also prohibited excessive noise and images that patients could see or hear during surgery and recovery” (“Madsen v. Women's Health Center, Inc.”). The Supreme Court later upheld the buffer zone rules, but struck down the prohibition of protestors’ practice of showing images to clients. It also ruled that the Florida court’s 300-foot buffer zone that prohibited protestors from approaching clients and staff at the Center and at their homes was too restrictive of First Amendment rights (“Madsen v. Women's Health Center, Inc.”). The ruling, according to Chief Justice Rhenquist, sought to preserve protestors’ right to association and assembly while still protecting the patients and clients from intimidation and abuse (“Madsen v. Women's Health Center, Inc.”). It also serves as a reminder that private citizens still reserve the right to curtail free association if said association makes them feel unsafe or threatened.<br /> <br /> Both the Madsen and Hague cases illustrate that judges, in particular, have immense power to determine the breadth of citizens’ right to freedom of association as guaranteed in the First Amendment. For example, in the case of Ward v. Rock Against Racism, the Supreme Court determined that free expression in the form of a rock concert in New York’s Central Park could be subject to volume regulations under the First Amendment (O'Neill, “Time, Place and Manner Restrictions”). This decision, written by Justice Anthony Kennedy, led to the creation of a test to determine whether assembly and expression could be restricted. The test asks whether the regulation is “content neutral,” whether it is “narrowly tailored” to fit a specific governmental interest, and whether it still provides ample opportunity for the message to be communicated (O'Neill, “Time, Place and Manner Restrictions”). If a regulation passes all three prongs of this test, then it can legally restrict or control the time, place, or manner in which assemblies like protests are carried out. The Law Library of Congress writes that since Kennedy’s decision, “the Supreme Court has held that it is constitutionally permissible for the government to require that a permit for an assembly be obtained in advance” (“Right to Peaceful Assembly: United States | Law Library of Congress”). Kennedy’s ruling also allows the government to “make special regulations that impose additional requirements for assemblies that take place near major public events” (“Right to Peaceful Assembly: United States | Law Library of Congress”). This legal doctrine has significantly shaped the way in which state and federal governments treat freedom of association and the right to peaceable assembly. While the Supreme Court can hardly be considered a private actor, Justices like Kennedy rely on personal study and private experience to create policy that affects American freedom of association as a whole.<br /> <br /> Citizens within a political society have the right to free association as long as it is peaceable and does not infringe upon others’ rights or liberties. This principle lends itself to a number of complexities because its parameters for free association are so vague, but over the past few centuries the United States has worked to define when and how private actors can curtail others’ right to free association. The result is that the Supreme Court, and the justices that make it up, have set out precedents that test whether certain forms of association are constitutional and which ones can justifiably be restricted. The definition of public spaces as areas of free association and creation of buffer zones for private properties represent significant steps forward in this effort.<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> <br /> The right to freedom of association is not an absolute right because it is subject to certain limitations. Political thinkers and legal experts generally agree that assembly and association can be justifiably restricted if it conflicts with other citizens’ security, liberty, or property. Another case in which the right is subject to certain limitations is in a case of emergency or long-run disaster. Recent history shows a number of instances in which the U.S. government has justified the restriction of the right to free association during times of war and natural disaster. Interestingly, it did not effectively curtail citizens’ right to free association during the recent COVID-19 pandemic.<br /> <br /> Freedom of association most often restricted in the event of war. In his work, “The Forgotten Freedom of Assembly,” Washington University scholar John D. Inazu briefly explores the effect that World War I had on citizens’ right to gather and discuss the country’s affairs. He writes that during the late World War I years, “the freedom of assembly was constrained by shortsighted legislation like the Espionage Act of 1917 (and its 1918 amendments) and the Immigration Act of 1918, and the Justice Department’s infamous Palmer Raids in 1920” (Inazu, “The Forgotten Freedom of Assembly”). William Riggs of the First Amendment Encyclopedia similarly notes that the Vietnam War era, in particular, saw drastic reductions in Americans’ rights to peaceable assembly and association. He writes that “the war in Vietnam quickly became the focus of major protests that resulted in increased government attempts to limit First Amendment protections. These efforts mostly dealt with the right to assemble and what constituted appropriate free speech criticism of the war” (“Vietnam War | The First Amendment Encyclopedia,”). The U.S. government broadly justified these restrictions by arguing that they were made in the interest of national security, claiming wartime as an acceptable time for the limitation of free association.<br /> <br /> Recently, the United States government has also walked back citizens’ right to freedom of association when dealing with natural disasters. A 2020 Congressional report on First Amendment rights during the COVID-19 pandemic notes that when public health and safety are at risk, the government is justified in its restriction of certain freedoms to widely assemble as long as these regulations aim to protect citizens’ essential rights, such as those to life or property. It notes that the government is justified in restricting freedoms of association at certain times of the day, as long as this action is taken with the explicit purpose of protecting citizens from further harms. “For example,” it says, “in upholding a county curfew following Hurricane Andrew, the Eleventh Circuit asked only whether the government (1) took that action in “good faith,” (2) with ‘some factual basis’ that the restrictions were ‘necessary to maintain order’” (Killion, CRS Report, “U.S. Library of Congress”). The report argues that “curfews, increased “police powers,” and other measures that are considered “essential to the public safety [and] health” all constitute acceptable restrictions of First Amendment rights-such as the right to freedom of peaceable assembly- during times of natural crisis (Killion, CRS Report, “U.S. Library of Congress”).<br /> <br /> The recent COVID-19 crisis created another instance in which citizens’ right to freedom of association was called into question. The pandemic caused widespread and dramatic change within global society as the country entered a state of total lockdown, and in the process it raised a number of legal, moral, and philosophical questions about association and assembly. In June 2020, for example, plaintiffs Ron Givens and Christine Bish filed a lawsuit against California State officials after being denied permission to hold a protest outside the California State Capitol building. The assembly, which aimed to protest the state’s response to the COVID-19 pandemic, was not allowed to take place because of the potential health risks it would create. In response to this denial, the Department of Justice filed a Friend-of-the-Court brief which argued that California’s de facto ban on public demonstrations directly conflicts with First Amendment guarantees and should therefore be struck down (“Department of Justice Files Friend-of-the-Court Brief in Support of Free Speech Challenge to California's COVID-19 Ban on In-Person Political Protests,”). The debate over pandemic restrictions and First Amendment rights became even more heated as the Black Lives Matter Movement sparked major demonstrations in major cities all over the country as citizens gathered to protest police actions in the murder of George Floyd. An MSN report on the protests in Boston notes that “Black Lives Matter Boston and Violence in Boston, two activist organizations who are expected to hold a protest in the city Tuesday evening, urged anyone who is at high risk due to COVID-19 to stay home. Organizers also asked participants to wear gloves and masks and bring hand sanitizer” (“Protesting amid the coronavirus crisis: Massachusetts officials say they respect demonstrators' 1st Amendment rights, urge them to take health precautions though,”). The DOJ’s Friend-of-the-Court brief, in addition to reports on the Boston protests, indicate that the U.S. government has largely decided to allow citizens to exercise the right to free association and assembly, despite the potential danger it could pose.<br /> <br /> The right to freedom of association is subject to a number of limitations. Periods of war, natural disaster, and global pandemic all create conditions in which the United States has considered placing restrictions on the right to peaceable assembly. In the two former cases, it has generally been able to regulate its citizens’ exercise of their right to freely associate with one another. However, the COVID-19 pandemic has shown that while the government may seek to limit its citizens’ assembly, it is not always able to enforce its regulations.<br /> <br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Association&diff=194 2020-06-30T16:01:36Z

<p>Ksandlund: /* Is this right protected in the Constitutions of most countries today? */</p> <hr /> <div>==What is the oldest written source that mentions this right?==<br /> John Locke’s “A Letter Concerning Toleration” (1689) primarily concerns religious associations, but he extends certain arguments to associations in general. The text in the next paragraph is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right (241). <br /> <br /> “Suppose this Business of Religion were let alone,” Locke hypothesizes, “and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.” Under conditions of differential treatment, such persons, “united together by one common persecution,” would become just as dangerous and disruptive. Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter.<br /> <br /> In 1776, Richard Price, a British writer who supported the American revolution published Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America. Unlike other commentaries on civil rights, he includes discussion on free assembly. He describes a prohibition on “associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy” as being part of a “state of oppression which no country can endure.” Though he does not phrase it as a fundamental right, the fact that Price deems draconian restrictions on association oppressive implies a belief in at least a limited freedom of association.<br /> <br /> Though Enlightenment commentators like Locke argued for and against greater freedom to associate. However, the first to mention it as an absolute right was John Stuart Mill, who argues ''in On Liberty'' that “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (1859, 16).<br /> <br /> ===What is the oldest written source in this country that mentions this right?===<br /> ====Afghanistan====<br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> ====Armenia====<br /> ====Australia====<br /> Australia has detailed records of its constitutional convention, which occurred in the 1890s. In 1897. One speaker alluded to the power of free association: “The English feel the vigor of their public spirit; they have experienced the vigilance of a free press, and the power of associations and public meetings.”<br /> <br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> Chapter 2 of Botswana’s Constitution (1966) guarantees “freedom of conscience, of expression and of assembly and association.”<br /> <br /> ====Brazil====<br /> Brazil’s constitution (1988) has exceptionally detailed freedom of association provisions. Title II-I-5 states that: <br /> <br /> - there is total freedom of association for lawful purposes, but any paramilitary association is prohibited;<br /> <br /> - creation of associations and, as set forth in law, of cooperatives, requires no authorization, prohibiting state interference in their operations; <br /> <br /> - associations may be compulsorily dissolved or their activities suspended only by a judicial decision, which in the former case must be a final and unappealable decision;<br /> <br /> - no one can be compelled to join an association or to remain in one;<br /> <br /> - when expressly authorized, associations have standing to represent their members judicially and extrajudicially<br /> <br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> Chapter 345 Section 5 of Saskatchewan’s Bill of Rights (1947) states that “every person and every class of persons shall enjoy the right to peaceable assembly with others and to form with others associations of any character under the law.”<br /> <br /> Part 1 of the Canadian Bill of Rights (1960) lists “freedom of assembly and association” as a guaranteed right. This was an ordinary act of parliament, and it has been replaced by the Canadian Charter of Rights and Freedoms, an amendment to the Canadian Constitution.<br /> <br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> Chapter 2-4 of the Provisional Constitution of the Republic of China (1912) states that “citizens shall have the freedom of speech, of composition, of publication, of assembly and of association.”<br /> <br /> The 1912 Republic of China Constitution refers to the one adopted by the nationalist government on the mainland, led by Sun Yat-sen. Despite its lofty ideals, this government never really maintained power. After a period of instability and civil war, the CCP forced the nationalist government to retreat to Taiwan, which is known now as the Republic of China. Taiwan suspended its constitution, and it was under a repressive martial-law system until 1987. It is now a constitutional democracy, and freedom of association is protected in its constitution. The PRC constitution claims to protect freedom of association, among other civil liberties.<br /> <br /> ====Colombia====<br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> Section II-18 of Estonia’s first constitution (1920) states that “The forming of associations and unions is free in Esthonia.&quot;<br /> <br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> Title I of the French Constitution of 1791 guarantees the right of peaceful assembly. <br /> <br /> “Liberty to citizens to assemble peaceably and without arms in accordance with police regulations.”<br /> <br /> Though the French Constitution of 1791 protected the right to assemble, French revolutionaries considered explicitly excluding free association (Boyd 257). The French enacted a law protecting free association in 1901, and enshrined it in their constitution in 1971 (Boyd 2008, 237).<br /> <br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> The Weimar Constitution (1919) established freedom of association. <br /> <br /> Article 123: “All Germans have the right to assembly peacefully and unarmed without giving notice and without special permission.” <br /> <br /> Article 124: “All Germans have the right to form associations and societies for purposes not contrary to the criminal law.”<br /> <br /> ====Ghana====<br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> The following quote was attributed to Gandhi in 1922: <br /> <br /> “Freedom of association is truly respected when assemblies of people can discuss even revolutionary projects, the State relying upon the force of public opinion and the civil police, not the savage military at its disposal, to crush any actual outbreak of revolution that is designed to confound public opinion and the State representing it.., The fight for swaraj means a fight for this threefold freedom before all else.&quot; <br /> <br /> Part III Article 19 of the Indian Constitution (1950) grants citizens the right to “form associations or unions” (Dalton).<br /> <br /> ====Indonesia====<br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> Article 40 of the Irish Constitution (1940) guarantees “the right of the citizens to form associations and unions.”<br /> <br /> ====Israel====<br /> ====Italy====<br /> Part 1 Title 1 Article 18 of the Italian Constitution (1947) states that: <br /> <br /> - “Citizens have the right to form associations freely and without authorization for those ends that are not forbidden by criminal law.” <br /> <br /> - “Secret associations and associations that, even indirectly, pursue political aims by means of organisations having a military character shall be forbidden.”<br /> <br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> Chapter III Article 21 of the Japanese Constitution (1947): “Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.” <br /> <br /> Additionally, though finding direct texts has proven difficult, there have been political movements for greater political expression since the pre-war era. The freedom and popular rights movement existed throughout the second half of the 19th century, and its members advocated for increased freedom of assembly beginning no later than 1886 (Tierney 2013, 21).<br /> <br /> ====Jordan====<br /> ====Kazakhstan====<br /> ====Kenya====<br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> ====Laos====<br /> ====Latvia====<br /> The Latvian Constitution added a section on fundamental rights in 1998. Article 102 states that “everyone has the right to form and join associations, political parties and other public organisations.”<br /> <br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> From Section 1 Article 9 the Mexican Constitution of 1857: “No one shall be deprived of the right peaceably to assemble or to come together for any lawful purpose; but only citizens shall be permitted to exercise this right for the purpose of taking part in the political affairs of the country. No armed assembly shall have the right to deliberate.”<br /> <br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> Part 2 Section 17 of the Bill of Rights Act (1990) states that, “Everyone has the right to freedom of association.”<br /> <br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> Chapter IV Section 37 of the constitution of the Second Republic (1979) states that “every person shall be entitled to assemble freely and associate with other persons, and any political party, trade union, or other association for the protection of his interests.”<br /> <br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> ====Oman====<br /> ====Pakistan====<br /> The following is from Part II, Chapter I, Section 17 of Pakistan’s current constitution (1973). <br /> <br /> “Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.”<br /> <br /> “Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.”<br /> <br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> ====Philippines====<br /> ====Poland====<br /> ====Portugal====<br /> Article 46 of the Portugese Constitution (1976): <br /> <br /> “Citizens shall possess the right to freely associate with one another without requiring any authorisation, on condition that such associations are not intended to promote violence and their purposes are not contrary to the criminal law.” <br /> <br /> “Associations shall pursue their purposes freely and without interference from the public authorities and shall not be dissolved by the state or have their activities suspended, except in such cases as the law may provide for and then only by judicial order.”<br /> <br /> “No one shall be obliged to belong to an association, or be coerced to remain therein by any means.”<br /> <br /> “Armed associations, military, militarised or paramilitary-type associations and organisations that are racist or display a fascist ideology shall not be permitted.”<br /> <br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> ====South Africa====<br /> Chapter 3 section 17 of the 1993 Interim Constitution states that “every person shall have the right to freedom of association.”<br /> <br /> ====South Korea====<br /> <br /> Chapter two Article Ten of the Constitution (1948): “All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association.”<br /> <br /> ====South Sudan====<br /> ====Spain====<br /> ====Sri Lanka====<br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> The 1990 Human Rights Act protects the Right to assemble and associate, subject to reasonable and proportionate restrictions. The HRA primarily serves to codify the European Convention on Human Rights into British Law (the ECHR and its associated court are not related to the EU, and the UK is still a signatory). <br /> <br /> In 1776, Richard Price, a British writer who supported the American revolution published ''Observations on the Nature of Civil Liberty'', the Principles of Government, and the Justice and Policy of the War with America. Unlike other commentaries on civil rights, he includes discussion on free assembly. He describes a prohibition on “associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy” as being part of a “state of oppression which no country can endure.” Though he does not phrase it as a fundamental right, the fact that Price deems draconian restrictions on association oppressive implies a belief in at least a limited freedom of association. This is the first instance I could find of a political theorist invoking the concept of freedom of association (or the lack thereof).<br /> <br /> There is a more explicit case for free association in John Stuart Mill’s On Liberty (1859). Mill lays a broad notion of individual liberty. He then argues that “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived (16).”<br /> <br /> Before any British thinkers espoused freedom of association as a right, John Locke, Thomas Hobbes, and David Hume addressed the issue (as Boyd helpfully summarizes). Hobbes detested associations, referring to them as “lesser commonwealths in the bowels of a greater, like worms in the entrails of a natural man” (257). <br /> <br /> Locke disagreed with Hobbes’ cynical perspective on groups. John Locke’s “A Letter Concerning Toleration” primarily concerns religious associations, but he extends certain arguments to associations in general. The italicized text below is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right (2008, 241). <br /> <br /> “Suppose this Business of Religion were let alone,” Locke hypothesizes, “and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.” Under conditions of differential treatment, such persons, “united together by one common persecution,” would become just as dangerous and disruptive.26 Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter.<br /> Finally, David Hume’s “Of Parties in General” (1742) is another important piece of Enlightenment work skeptical of associations. His position is more nuanced that Hobbes; he understands that association may exist for different purposes. Factions “of interest” are deemed less dangerous than factions “of principle.” Regarding factions of principle, he wonders the following: “But where the difference of principle is attended with no contrariety of action, but every one may follow his own way, without interfering with his neighbour, as happens in all religious controversies; what madness, what fury can beget such unhappy and such fatal divisions?”<br /> <br /> ====United States====<br /> Listed at the bottom of this section is language from the State Constitutions of New Hampshire and North Carolina and the Pennsylvania Declaration of Rights, all from 1776, which articulate the right to assemble (assembly and association are not always interchangeable, but many constitutions group them together). These documents all contain rights to assemble written in remarkably similar language, and they describe the right as politically driven. These were the oldest references to something like the right of association in governing documents.<br /> <br /> Despite modern views of assembly as related to association, at the time of America’s founding, it would have been better understood as related to the right to petition. According to Congress’s online annotated Constitution, the assembly clause meant that the people have a right to assemble in order to petition the government. The site says that assembly was initially seen as a “subordinate and instrumental” right (&quot;Freedom of Assembly and Petition&quot;). The aforementioned state constitutions should be interpreted the same way. In fact, this is even more clear in these state constitutions than in the national one. The state constitutions surround the right to assemble with expressly political language, such as the right to petition and advocacy for the “common good,” while the First Amendment’s guarantees are political, but not entirely political (it protects religion, and protected speech and press are often, but not always, political). <br /> <br /> As Richard Boyd argues in “The Madisonian Paradox of Free Association,” America’s founders did not explicitly include free association because at least some of them were skeptical of it, worrying that certain associations would be conspiratorial or seditious. He summarizes the British Enlightenment tradition skeptical of associations, which influenced the founders (I describe this in the last few paragraphs of the UK section, on Hobbes, Locke, and Hume). James Madison, the primary author of the Bill of Rights, feared the influence of factions, which private associations furthered. As Boyd notes, Madison viewed association as a “second-order” right (page 258), whose existence is tolerable because institutions can mitigate its worst effects (page 247). The following passage from “Federalist No. 10” illustrates his attitude toward factions arising from free association: <br /> <br /> It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.<br /> <br /> As Boyd notes, there are several possible reasons why Madison may not have enumerated the right to associate. It is possible that he saw it as implied by other First-Amendment rights, such as free assembly. It also may have been seen as less important or vulnerable than other rights, and Madison may have seen it as the type of auxiliary right protected by the Ninth Amendment. Finally, the right’s exclusion may have been because the founders were too skeptical of it for its inclusion (258). <br /> <br /> Since the 1950s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in NAACP v. Alabama that the NAACP cannot be forced to submit a membership roster to a state government. In 2000, in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association. <br /> <br /> In ''Roberts v. US Jaycees'', an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.” <br /> <br /> Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in ''NAACP v. Button'', “It is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.” <br /> <br /> Article XVIII of North Carolina’s Constitution: “That the people have a right to assemble together, to consult for their common good, to instruct their Representatives, and to apply to the Legislature, for redress of grievances.”<br /> Section 21 of New Hampshire’s Constitution: “The citizens have a right in a peaceable manner to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or for other purposes, by petition, address, or remonstrance. No law abridging the freedom of speech shall be enacted.”<br /> <br /> Section XVI of the Pennsylvania Declaration of Rights: “That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance.<br /> <br /> ====Uruguay====<br /> ====Uzbekistan====<br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> Pope Leo XIII forcefully argued for free association in Section 51 of ''Rerum novarum'' (1891), an extremely influential text in Catholic thought. <br /> <br /> &quot;Private societies, then, although they exist within the body politic, and are severally part of the commonwealth, cannot nevertheless be absolutely, and as such, prohibited by public authority. For, to enter into a &quot;society&quot; of this kind is the natural right of man; and the State has for its office to protect natural rights, not to destroy them.&quot;<br /> <br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> This right became an element of political discourse in the late Enlightenment, especially the American Revolution. In the mid and late 1800s, writers such as Mill and Leo XIII pushed the idea into the mainstream.<br /> <br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> <br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> Constitutions written after 1900 very often protect free association.<br /> <br /> As the right to free association is upheld by numerous United Nations treaties, for example, the European Convention on Human Rights, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, it would be expected that most countries maintain legal provisions protecting it. Though, investigated by UN Special Rapporteur Maina Kiai, many countries enforce legislation that explicitly restricts civilians’ entitlements to free association (International Center for Not-for-Profit Law). <br /> <br /> For example, noted by Kiai, in Malaysia, the Peaceful Assembly Act 2012 bans individuals under the age of twenty one from organizing public demonstrations. Additionally, stipulated by the same act, children under the age of fifteen cannot participate in demonstrations. Article 33 of the Constitution of Mexico, Kiai asserts, prohibits foreigners from engaging with Mexican politics. Similarly, Kiai notes that in Myanmar, Article 354 prohibits foreigners from assembling. Through these various forms of legislation, political and social association are highly restricted, as individuals are prohibited from expressing their associations through protest and civic engagement. <br /> <br /> Additionally, Kiai presents how legal restrictions on sexual orientation limit free association in several countries. For example, in Russia, a ban on gay pride parades was upheld by Moscow’s city council in 2012. Likewise, in Nigeria, the President ushered in the Same Sex Marriage Act in 2014, prohibting gay marriage and the ability to “participate in or support gay clubs, societies, organizations, processions or meeting.” Kiai notes a similar anti-homosexuality law was signed by Uganda’s president in 2014. Demonstrated by these numerous legal restrictions to homosexuality, free association is unprotected in numerous countries, as one can often be punished for associating with a specific sexual orientation. <br /> <br /> In the remainder of his report, Kiai continues to elaborate on numerous legal provisions that restrict free association. For example, Kiai notes how both Chile and Turkey utilize counter-terrorism legislation to restrict free association. Similarly, he explains how criminal laws in Vietnam and El Salvador often deter individuals from exercising their rights to free association, as their voices may be met with harsh penalties from their governments. <br /> <br /> Witnessed through Kiai’s reporting, the restrictions to free association are plentiful. This ultimately demonstrates that despite its entitlement by numerous United Nations treaties, the right to free association is highly vulnerable to violation and not widely internationally upheld.<br /> <br /> ===Is it contained in the US Constitution?===<br /> No.<br /> <br /> The right to free association is not explicitly stated in the United States Constitution. Though, The Supreme Court has historically upheld the constitutional right to free association, invoking the Fourteenth and First Amendments. In 1958, The NAACP v. Patterson ruling established this precedent. In response to Alabama’s aims to limit the NAACP’s business within the state, the Supreme Court ruled that it was “the right of petitioner's members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment.” Furthermore, the court asserted that freedom of association was undoubtedly covered by the Due Process Clause of the Fourteenth Amendment, which asserts no individual may be “&quot;deprived of life, liberty or property without due process of law.” The court additionally demonstrated the First Amendment to protect free association, Justice Marshall Harlan claiming “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” Thus, while the right to free association is not explicitly described by the Constitution, as witnessed in NAACP v. Patterson, it is upheld by American constitutional law.<br /> <br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> Since the 1950s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in ''NAACP v. Alabama'' that the NAACP cannot be forced to submit a membership roster to a state government. In 2000, in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association. <br /> <br /> In ''Roberts v. US Jaycees'', an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.” <br /> <br /> Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in NAACP v. Button, “It is not necessary to subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly, for there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.”<br /> <br /> ===Are there any exceptions in American law to this right?===<br /> Yes. As seen in ''Roberts v. US Jaycees,'' the right may be weighed against other state interests, especially when the association in question is neither expressive nor intimate. In that case, free association rights were curtailed to ensure adherence to non-discrimination laws.<br /> <br /> Additionally, a significant exception to free association rights in the United States is witnessed through legislation regarding political parties. Furthermore, while one has the liberty to vote with, join, and create independent political parties, upheld by the William V. Rhodes ruling, the state can still regulate these parties if they violate other aspects of the Constitution. For example, in New York State Board of Elections vs. Lopez Torres, the court claimed, <br /> <br /> <br /> A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform. These rights are circumscribed, however, when the state gives a party a role in the election process...Then for example, the party’s racially discriminatory action may become state action that violates the Fifteenth Amendment<br /> Demonstrated by New York State Board of Elections vs. Lopez Torres, if a party associates with discriminatory or racist behavior, it cannot be involved in the state’s election process, demonstrating a limitation on free political association. <br /> <br /> Additionally, sections of the Federal Election Campaign Act are often interpreted to be exceptions to free association, as they require the public disclosure of individuals’ political donations. This position was echoed by the Buckley v. Valeo ruling, where the Supreme Court argued that new campaign finance laws, “impose significantly more severe restrictions on protected freedom of political expression and association than do its limitations on financial contributions.” Thus, witnessed by Buckley v. Valeo, campaign finance laws may be interpreted as an exception to free association, as one cannot privately financially contribute to the political party they associate with. <br /> <br /> Within universities, freedom of association, specifically the right to associate as an exclusive religious group, may be regulated by anti-discrimination clauses. This was observed in Christian Legal Society v. Martinez, where the court ruled in favor of Hastings’ College of Law’s anti-discrimintation policies, which prohibited Christian student group’s from excluding non-christians. Therefore, on university campuses, individuals must be able join any student group, regardless of their religious association. Ultimately, this decision restricted the parameters of free association, as one cannot actively discriminate on the basis of it. <br /> <br /> Consequently, decided by Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, certain groups can legally exclude individuals from associating with them. Furthermore, if an individual’s beliefs do not coincide with the group’s mission, the individual may be prohibited from membership. Specifically, the court claimed that by mandating the Boston Veterans’ Council to include Gay, Lesbian, and Bisexual individuals in their parade, the Massachusetts State Court, “violates the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.” Thus, while still restricting free association, the ruling counters Christian Legal Society v. Martinez, as individuals can be restricted from associating with certain groups if it is deemed that their identity does not conform to the group’s platform.<br /> <br /> Ultimately, these exceptions arise from the implicit nature of the freedom of association within the Constitution, as what qualifies as “association” is highly subject to interpretation by Supreme Court justices. For this reason, depending on who is sitting on the bench, freedom of association can be left unchecked or potentially be highly restricted.<br /> <br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> Yes. It is protected explicitly in documents such as the Universal Declaration of Human Rights, the European Convention on Human Rights, and the American Convention on Human Rights.<br /> <br /> Specifically, free association is upheld by Article 11 of the European Convention on Human Rights, which claims, “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”Additionally, it is enshrined in Article 20 of the Universal Declaration of Human Rights, which claims “ Everyone has the right to freedom of peaceful assembly and association; No one may be compelled to belong to an association.” In Article 22 of the International Covenant on Civil and Political Rights, the rights to association are specifically outlined, as it upholds “In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Lastly, The International Labor Organization similarly supports freedom of association in the 1998 Declaration on Fundamental Principles and Rights at Work, which asserts that all members have “freedom of association and the effective recognition of the right to collective bargaining;”<br /> <br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> ====Platonism====<br /> ====Aristotelian thought====<br /> ====Ancient Chinese Philosophy====<br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought==== <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> Restricting certain groupings and gatherings that are involved, or likely involved in crimes as was seen with the response to the formation of the Ku Klux Klan as a vigilante association, is a typical exception to the right of freedom of association (Australian Law Reform Commission 2016). In response to the crimes committed by the organization, Congress passed a Force Act in 1870 and the Ku Klux Klan Act in 1871, which authorized the suppression of disturbances to the peace by force (Gruberg). This was in effort to stop terrorist organizations through heavy punishments, such as the suspension of habeas corpus under these acts. These acts were eventually found by the Supreme Court to be unconstitutional and were repealed; however, although direct restrictions upon the group (who was behind the 1963 bombing of a black church in Alabama, numerous murders including that of three civil rights workers in 1964 Mississippi, and other criminal efforts to impose white supremacy on the masses and restrict the rights of African Americans) and its freedom of assembly and association have not been able to lawfully prevent such crimes in the name of violations of the freedom of association, modern civil rights laws and increased national surveillance by the Federal Bureau of Investigation have indirectly impacted the KKK’s and other criminally-involved groups’ (such as terrorist groups like ISIL) freedoms of association and assembly. The First Amendment of the US Constitution grants the right to “peaceable assembly,” and any indication of unpeaceable assembly warrants government interference. When also the association infringes upon another group’s freedoms of association, endangers public safety and order, or does not benefit/or harms social need, as can be seen with the efforts of the KKK to restrict black Americans rights to vote and peaceably assemble, necessary limitations are placed upon the right. <br /> <br /> In terms of certain limitations on peaceable assembly, the government has the right to limit this freedom based upon “time, place and manner” restrictions: “Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity (O'Neill). These restrictions come in many forms including imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property. ” These limits ultimately regard the facilitation of legitimate regulatory goals, such as preventing traffic congestion or preventing interference with nearby activities.<br /> <br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> The freedom of association is derivative from the First Amendment which guarantees the freedoms of speech, assembly, and petition (Hudson 2020). These freedoms of speech, assembly, and petition all form sub-categories of the freedom of association. Collectively, this right permits a group to act in the collective interest of its members and to maintain private associations and assemblies without government interference. The legal problems regarding its practice have only recently arisen- particularly from the loyalty investigations of the Communist Party membership and a series of other cases in the 1950s and 1960s in relation to the activities of the National Association for the Advancement of Colored People (Cornell Law School Legal Information Institute 2020). For example, in 1958, with the case of the NAACP v. Alabama, the right to freedom of association was strengthened and supported by the Supreme Court who ruled in favor of the NAACP’s decision to withhold a list of members in the organization from the government (Hudson 2020). In response to Brown v. Board of Education 1954, Alabama authorities was closely investigating the NAACP under the foreign corporation law. The NAACP complied with the state’s request of its business records, including its charter and list of organizational officers and staff. They refused, however, to give lists of rank-and-file members due to confidentiality, potential economic reprisal attacks, and potential repression. Giving up the lists, civil rights activists said, would dissuade members and potential recruits from associating with the organization, ultimately violating their right of association. <br /> <br /> Prior to this case the Court had supported a stronger suppression of the freedoms of association and assembly regarding organizations that were alleged to be involved in subversive and unlawful activities. In 1928’s New York ex rel. Bryant v. Zimmerman and 1951’s Dennis v. United States the Court had ruled in favor of government efforts to restrict and limit the rights of assembly and speech of both the KKK and the Communist Party (U.S. Supreme Court 1928, 1951). In this case, however, the Court said NAACP did not cause harm to government or society, and they had complied with the demands of the Alabama government sufficiently; therefore they were justified and protected by law in their decision to withhold membership lists. <br /> <br /> Later, in the 1967 case of United States v. Robel in which Eugene Robel, an inactive member of the Communist Party, was charged with violating the Subversive Activities Control Act when he continued his work at the Todd Pacific Shipyards, a location that was deemed by the Secretary of Defense to be a defense facility (U.S. Supreme Court 2020). Under the Act, his actions was illegal due to his membership to the Communist Party and members of the Party’s legal inability to remain employed at a location deemed a “defense facility”. The Supreme Court ruled that the “defense facility” employment provision was an unconstitutional abridgment of the right of association regardless of its application solely to active Party members. Chief Justice Earl Warren wrote that the provision was overbroad while Justice William J. Brennan added that the designation of defense facilities being a power given to the Secretary of Defense was unconstitutional because the Act provided no meaningful standards for the Secretary to follow. This case was a milestone because, once tested, the Court upheld the broad freedoms of association and continued the prohibition of government interference and bias towards any individual based upon an affiliated association. Later cases regarding the Bar examine and admission to the bar further backed this right. In 1971’s Baird v. State Bar of Arizona and Law Students Research Council v. Wadmond, the Supreme Court established that the government could only deny admission to the bar if an applicant’s membership in a group advocating overthrow of the government (such as the Communist Party) was legitimately coupled with the specific intent to achieve that end (U.S. Supreme Court 1971).<br /> <br /> These cases established that organized groups in association that gather in efforts to advance political, economic, religious, or cultural matters may gather without government interference (and particularly without government knowledge of listed members) unless the group explicitly poses a threat to society or engages in criminal activity. <br /> <br /> Under American jurisprudence, permissible exceptions to the freedom involve matters of internal affairs such as discrimination cases. In the 1976 case of Runyon v. McCrary, discrimination based upon race was established as a limitation to a body’s freedom of association after two children were denied access to certain private schools in Virginia as a result of the schools’ admitted segregationist school policies (U.S. Supreme Court 1976). Later, in the Roberts v. United States Jaycees court case of 1984, the court ruled that the Jaycees, an organization of young business leaders that only fully accepted male members and who claimed that the anti-discrimination laws that forced them to accept qualified women was a breach of their freedom of association, lacked “the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women,” ultimately prohibiting their exclusion of women (Bernstein 2020). <br /> <br /> Also, if the state has a compelling interest, it can justifiably limit associations’ rights to organizational autonomy (Alexander 2008, 14). Here, the state would be setting limits and requirements for how a group is organizationally run and made up. By giving an organization a quota, the state forces a particular pattern of inclusion that is in the public interest. For example, the US government is permitted to work to create less segregated schools, involving programs like the Moving to Opportunity (MTO). It is permitted to do in efforts to promote certain patterns of inclusion and acceptance within communities and associations (U.S. Department of Housing and Urban Development 1992).<br /> <br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> In Article 22 of the UN’s International Covenant on Civil and Political Rights (ICCPR), the right to freedom of association is granted to all, including joining trade unions (United Nations 1966). Restrictions can only be placed on this right if the restrictions are prescribed by the state’s law and “are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.” Similarly, in Europe, derogations are permissible only when “prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others” as is stated in Article 11 of the European Convention on Human Rights (European Court of Human Rights 1953, 12). And Article 16 of the American Convention on Human Rights mirrors the decree of the ICCPR (Inter-American Commission on Human Rights 1969).<br /> <br /> Regarding the International Labour Organisation (ILO) and its adoption of Freedom of Association and Protection of the Right to Organize, this body is in place to protect the labor interests of those around the world, and they are prohibited by international law to formulate and/or apply law so as to prejudice against any group (Swepston 1998, 172).<br /> <br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> <br /> Freedom of association is an essential facet of modern democracy, yet it is often overlooked in political discourse on the natural rights and liberties of the citizen. This could be due to the fact that freedom of association and assembly are often so closely related to freedoms of speech and expression, or it could be because it is so difficult for political theorists to decide which association should be allowed and which can be justifiably restricted. Whatever the case, the debate over exceptions to the right of free association continues to change and evolve even in the modern era.<br /> <br /> John Locke is one of the earliest proponents of natural right theory; his second “Treatise on Government” famously outlines humankind’s three essential rights to life, liberty, and property (Locke, “Treatise on Government”). He does not specifically mention people’s freedom of association, but scholars point to his writings on religious assembly as an indication of his stance on the right. In a George Mason University publication, Eric Claeys refers to a passage from Locke’s “Letter Concerning Toleration,” which states that a church is simply a “free and voluntary society” (Locke, “A Letter Concerning Toleration”), saying that “if one reads the same passage from the Letter with an eye toward issues about associational freedom, Locke is making a far more radical point: All private societies, churches and otherwise, deserve a presumption of associational freedom” (Claeys, “The Private Society and the Liberal Public Good in John Locke’s Thought”). In light of Claeys’ assessment, it is easy to observe Locke’s thoughts on the freedom of association in the constitution that he wrote for the Carolina Colony in 1669. For example, Article 103 of this document states that “no person whatsoever shall speak anything in their religious assembly irreverently or seditiously of the government or governors, or of state matters” (Locke, “The Fundamental Constitutions of Carolina: March 1, 1669”). This reveals a reluctance on Locke’s part to allow any association of citizens to gather in opposition of the established government, perhaps because he understands the potential threat that this could pose to political society. His position on the freedom of association is made all the more clear in his 108th Article, which stipulates that “assemblies, upon what presence soever of religion, not observing and performing the above said rules, shall not be esteemed as churches, but unlawful meetings, and be punished as other riots” (Locke, “The Fundamental Constitutions of Carolina: March 1, 1669”). The “above said rules” to which Locke refers consist mostly of provisions to ensure free membership and movement between various religious establishments, but the classification of non compliant assemblies as “unlawful” or “riots” implies a Locke’s hesitation to allow totally free and unrestricted assembly.<br /> <br /> Subsequent political theorists built upon Locke’s theory of rights and liberties, and a number of them elected to deal with the right to freedom of association more directly. The United States Constitution, much of which rests upon Lockean political theory, is one of the first documents to directly address freedom of assembly in its text. Perhaps the buildup to the American Revolution, in which groups like the Sons of Liberty and the Stamp Act Congress were outlawed and broken up by the British government, affected the Constitutional Convention’s decision to include assembly in the Bill of Rights. The Constitution’s First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” (The Constitution of the United States of America). The Constitutional Convention, led by prominent statesman James Madison, used the word peaceably to signal that citizens were not entitled to the complete freedom of assembly if such activity could potentially generate violence or unrest (Law Library of Congress, “The Right to Peaceable Assembly”). The Cornell Law Review writes that this guarantee gradually came to protect citizens’ rights to participate in organizations that regularly utilize their members’ constitutional rights to freely assemble and petition the government. It states that over time, “Supreme Court decisions gradually determined that “the right of association is derivative from the First Amendment guarantees of speech, assembly, and petition” (Legal Information Institute, “Right of Association”). While Madison and his colleagues did not directly address freedom of association in the Constitution’s text, they did lay the groundwork for its realization years later.<br /> <br /> French diplomat Alexis De Tocqueville traveled to the United States in the early 1800s in order to observe the country, and in 1835 he published his findings in his first volume of Democracy in America. In this work the Frenchman sung praise for the American system of government, applauding it for spreading liberty and freedom within its borders. However, even de Tocqueville understood the danger inherent in the guarantee of totally unrestrained freedom of association. Linking the freedom of association to such constitutional rights as the freedom of petition and freedom of the press, he writes that “it cannot be denied that the unrestrained liberty of association for political purposes is the privilege which a people is longest in learning how to exercise. If it does not throw the nation into anarchy, it perpetually augments the chances of that calamity” (De Tocqueville, Democracy in America). De Tocqueville goes on to explain that American association is generally peaceful because citizens tend only to use it to oppose political groups, but he nevertheless must address the danger inherent in the guarantee of unrestricted freedom of association. Even in what he sees as a most ideal form of government, the Frenchman recognizes the risks inherent in unrestricted freedom when it comes to assembly and association.<br /> <br /> Decades later, John Stuart Mill came to a similar conclusion in his 1859 work, On Liberty. Mill was familiar with the American system of government, as evidenced by his mentions of American religious toleration and prohibition of “fermented” drinks, so it is possible that his thinking was influenced in some way by Madison’s work on the Constitution (Mill, “On Liberty”). In his work, Mill advances the theory that humans band together solely for the purpose of protection, and that therefore we can never have the authority to restrain others’ liberty. However, he notes that “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others” (Mill, “On Liberty”). Later on, he explicitly asserts that “freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (Mill, “On Liberty”). Clearly, Mill is aware of the dangers implicit in the creation of total freedom of assembly, and he agrees with the Constitutional Convention that this important right can permissibly be subject to certain regulations and limitations.<br /> <br /> The political and philosophical debate over freedom and association and its acceptable limitations evolved dramatically in the United States in the late nineteenth and early twentieth centuries. Writing just over a century after Mill, First Amendment scholar Thomas Emerson produced an article entitled “Freedom of Association and Freedom of Expression,” in which he addresses a number of issues relating to freedom of association by assessing court precedents and the lessons of history. Like the documents from Mill and Madison, Emerson’s article holds that complete freedom of association would be detrimental to society. Using the example of an organization whose sole aim is to perpetrate a successful bank robbery, Emerson points out that “some types of association need, and are entitled to, greater protection than others” (Emerson, “Freedom of Association and Freedom of Expression,”). He goes on to state that “the legal doctrine that protects associational rights must be able to distinguish between them and to afford the required measure of protection in each case” (Emerson, “Freedom of Association and Freedom of Expression”). Taking into account twentieth-century court decisions, Emerson explains that “the Supreme Court, in recognizing an independent &quot;right of association,&quot; has undertaken to give that right constitutional protection primarily through application of a balancing test” (Emerson, “Freedom of Association and Freedom of Expression”). <br /> <br /> This balancing test is incredibly important in determining the constitutionality of certain restrictions on citizens’ association because it must avoid violating citizens’ unequivocal right to free expression while still preventing the perpetration of unlawful action (Emerson, “Freedom of Association and Freedom of Expression,”). The case of NAACP v. Alabama is one case in which the Supreme Court attempted to find this balance. This instance in which the NAACP argued that the state of Alabama could not constitutionally require the organization to disclose a list of its members, proved incredibly important to our modern understanding of the right to association. Writing the majority opinion, Justice John Marshall Harlan II explained that “it is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment” (Franklin, “NAACP v. Alabama”). This differed from other contemporary cases, such as New York ex. rel Bryant v. Zimmerman, in which the Supreme Court had ruled in favor of the state’s ability to restrict association related to the Ku Klux Klan. The difference, Harlan explained, was that unlike the KKK, the NAACP did not present a threat to society. For this reason, the organization and the members involved were protected under the First Amendment’s protection of citizens’ freedom to peaceably assemble (Franklin, “NAACP v. Alabama”). Harlan, like Madison, Locke, and Mill, understood the importance of restricting free association in order to preserve the peace in society.<br /> <br /> The right to free association is famously difficult to address because the general consensus is that association should not be completely free. For that reason, political theorists and philosophers have gone to great lengths over the centuries to define exactly when and why free association should be limited or left alone. The general consensus is that assembly and association are detrimental to society when they lead to violence or unrest, but as with other rights it is difficult for theorists to decide exactly what criteria turn a given gathering from an expression of free assembly into a potential threat to civil society.<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> <br /> Philosophers and political theorists generally agree that it is sometimes necessary to curtail free association, but this agreement does not answer questions of which forms assembly and association can permissibly be restricted, how they should be limited, or who should control their regulation. It often falls to the government to decide when to step in during times of popular uprising or violent protest, but history also shows a number of instances in which private actors have curtailed citizens’ right to free association or assembly.<br /> <br /> The most common way for private actors can curtail free association is by prohibiting assembly and demonstration on their privately-owned property. In U.S. law, there exists a precedent that protects citizens’ right to free association on public property precisely because the right is not guaranteed when it is practiced on private property. This doctrine was first introduced in 1936, when Jersey City mayor Frank Hague issued an ordinance prohibiting members of the Committee for Industrial Organization (CIO) from gathering in a public space and distributing “communist” literature (Garcia, “Hague v. Committee for Industrial Organization,”). The CIO, with the help of the American Civil Liberties Union, successfully argued that the New Jersey ordinance was unconstitutional under the First Amendment. Hague appealed to the Supreme Court, which upheld the original decision and struck the ordinance down (Garcia, “Hague v. Committee for Industrial Organization,”). Justice Owen Roberts justified the decision for Hague v. Committee for Industrial Organization by likening public spaces such as streets and parks to public forums, in which the free flow of ideas and discourse must be protected under the First Amendment. He made this ruling because he recognized that private actors retained the right to curtail citizens’ right to association when that association occurred on private property. In order to preserve the right to peaceable assembly, the Court’s decision set the precedent for the “public forum” doctrine, which continues to protect the right to association in public spaces to this day (Garcia, “Hague v. Committee for Industrial Organization,”). Writing for The First Amendment Encyclopedia, David Hudson writes that “in the Court’s forum-based approach, the government can impose reasonable time, place, and manner restrictions on speech in all three categories of property, but has limited ability to impose content-based restrictions on traditional or designated public forums” (Hudson, “Public Forum Doctrine | The First Amendment Encyclopedia,”). The doctrine specifically aims to protect peaceful association on public property because the right is not guaranteed when assembly occurs on private property.<br /> <br /> One example of a private actor using its ownership of property to curtail free association can be observed in the 1994 case of Madsen v. Women’s Health Center, Inc. In this case, the Aware Woman Center for Choice in Melbourne, Florida filed a suit against anti-abortion protestors who had been blocking entrances to the building, harrassing abortion patients, and demonstrating outside of staff members’ homes (“Madsen v. Women's Health Center, Inc.”). A court order was issued, ordering protestors to refrain from trespassing on Center property, blocking its entrances, and abusing staff and patients. When the court order was violated, the “the court created a 36-foot buffer zone around the clinic entrances and driveways (including the public sidewalk) within which all antiabortion speech was banned. It also prohibited excessive noise and images that patients could see or hear during surgery and recovery” (“Madsen v. Women's Health Center, Inc.”). The Supreme Court later upheld the buffer zone rules, but struck down the prohibition of protestors’ practice of showing images to clients. It also ruled that the Florida court’s 300-foot buffer zone that prohibited protestors from approaching clients and staff at the Center and at their homes was too restrictive of First Amendment rights (“Madsen v. Women's Health Center, Inc.”). The ruling, according to Chief Justice Rhenquist, sought to preserve protestors’ right to association and assembly while still protecting the patients and clients from intimidation and abuse (“Madsen v. Women's Health Center, Inc.”). It also serves as a reminder that private citizens still reserve the right to curtail free association if said association makes them feel unsafe or threatened.<br /> <br /> Both the Madsen and Hague cases illustrate that judges, in particular, have immense power to determine the breadth of citizens’ right to freedom of association as guaranteed in the First Amendment. For example, in the case of Ward v. Rock Against Racism, the Supreme Court determined that free expression in the form of a rock concert in New York’s Central Park could be subject to volume regulations under the First Amendment (O'Neill, “Time, Place and Manner Restrictions”). This decision, written by Justice Anthony Kennedy, led to the creation of a test to determine whether assembly and expression could be restricted. The test asks whether the regulation is “content neutral,” whether it is “narrowly tailored” to fit a specific governmental interest, and whether it still provides ample opportunity for the message to be communicated (O'Neill, “Time, Place and Manner Restrictions”). If a regulation passes all three prongs of this test, then it can legally restrict or control the time, place, or manner in which assemblies like protests are carried out. The Law Library of Congress writes that since Kennedy’s decision, “the Supreme Court has held that it is constitutionally permissible for the government to require that a permit for an assembly be obtained in advance” (“Right to Peaceful Assembly: United States | Law Library of Congress”). Kennedy’s ruling also allows the government to “make special regulations that impose additional requirements for assemblies that take place near major public events” (“Right to Peaceful Assembly: United States | Law Library of Congress”). This legal doctrine has significantly shaped the way in which state and federal governments treat freedom of association and the right to peaceable assembly. While the Supreme Court can hardly be considered a private actor, Justices like Kennedy rely on personal study and private experience to create policy that affects American freedom of association as a whole.<br /> <br /> Citizens within a political society have the right to free association as long as it is peaceable and does not infringe upon others’ rights or liberties. This principle lends itself to a number of complexities because its parameters for free association are so vague, but over the past few centuries the United States has worked to define when and how private actors can curtail others’ right to free association. The result is that the Supreme Court, and the justices that make it up, have set out precedents that test whether certain forms of association are constitutional and which ones can justifiably be restricted. The definition of public spaces as areas of free association and creation of buffer zones for private properties represent significant steps forward in this effort.<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> <br /> The right to freedom of association is not an absolute right because it is subject to certain limitations. Political thinkers and legal experts generally agree that assembly and association can be justifiably restricted if it conflicts with other citizens’ security, liberty, or property. Another case in which the right is subject to certain limitations is in a case of emergency or long-run disaster. Recent history shows a number of instances in which the U.S. government has justified the restriction of the right to free association during times of war and natural disaster. Interestingly, it did not effectively curtail citizens’ right to free association during the recent COVID-19 pandemic.<br /> <br /> Freedom of association most often restricted in the event of war. In his work, “The Forgotten Freedom of Assembly,” Washington University scholar John D. Inazu briefly explores the effect that World War I had on citizens’ right to gather and discuss the country’s affairs. He writes that during the late World War I years, “the freedom of assembly was constrained by shortsighted legislation like the Espionage Act of 1917 (and its 1918 amendments) and the Immigration Act of 1918, and the Justice Department’s infamous Palmer Raids in 1920” (Inazu, “The Forgotten Freedom of Assembly”). William Riggs of the First Amendment Encyclopedia similarly notes that the Vietnam War era, in particular, saw drastic reductions in Americans’ rights to peaceable assembly and association. He writes that “the war in Vietnam quickly became the focus of major protests that resulted in increased government attempts to limit First Amendment protections. These efforts mostly dealt with the right to assemble and what constituted appropriate free speech criticism of the war” (“Vietnam War | The First Amendment Encyclopedia,”). The U.S. government broadly justified these restrictions by arguing that they were made in the interest of national security, claiming wartime as an acceptable time for the limitation of free association.<br /> <br /> Recently, the United States government has also walked back citizens’ right to freedom of association when dealing with natural disasters. A 2020 Congressional report on First Amendment rights during the COVID-19 pandemic notes that when public health and safety are at risk, the government is justified in its restriction of certain freedoms to widely assemble as long as these regulations aim to protect citizens’ essential rights, such as those to life or property. It notes that the government is justified in restricting freedoms of association at certain times of the day, as long as this action is taken with the explicit purpose of protecting citizens from further harms. “For example,” it says, “in upholding a county curfew following Hurricane Andrew, the Eleventh Circuit asked only whether the government (1) took that action in “good faith,” (2) with ‘some factual basis’ that the restrictions were ‘necessary to maintain order’” (Killion, CRS Report, “U.S. Library of Congress”). The report argues that “curfews, increased “police powers,” and other measures that are considered “essential to the public safety [and] health” all constitute acceptable restrictions of First Amendment rights-such as the right to freedom of peaceable assembly- during times of natural crisis (Killion, CRS Report, “U.S. Library of Congress”).<br /> <br /> The recent COVID-19 crisis created another instance in which citizens’ right to freedom of association was called into question. The pandemic caused widespread and dramatic change within global society as the country entered a state of total lockdown, and in the process it raised a number of legal, moral, and philosophical questions about association and assembly. In June 2020, for example, plaintiffs Ron Givens and Christine Bish filed a lawsuit against California State officials after being denied permission to hold a protest outside the California State Capitol building. The assembly, which aimed to protest the state’s response to the COVID-19 pandemic, was not allowed to take place because of the potential health risks it would create. In response to this denial, the Department of Justice filed a Friend-of-the-Court brief which argued that California’s de facto ban on public demonstrations directly conflicts with First Amendment guarantees and should therefore be struck down (“Department of Justice Files Friend-of-the-Court Brief in Support of Free Speech Challenge to California's COVID-19 Ban on In-Person Political Protests,”). The debate over pandemic restrictions and First Amendment rights became even more heated as the Black Lives Matter Movement sparked major demonstrations in major cities all over the country as citizens gathered to protest police actions in the murder of George Floyd. An MSN report on the protests in Boston notes that “Black Lives Matter Boston and Violence in Boston, two activist organizations who are expected to hold a protest in the city Tuesday evening, urged anyone who is at high risk due to COVID-19 to stay home. Organizers also asked participants to wear gloves and masks and bring hand sanitizer” (“Protesting amid the coronavirus crisis: Massachusetts officials say they respect demonstrators' 1st Amendment rights, urge them to take health precautions though,”). The DOJ’s Friend-of-the-Court brief, in addition to reports on the Boston protests, indicate that the U.S. government has largely decided to allow citizens to exercise the right to free association and assembly, despite the potential danger it could pose.<br /> <br /> The right to freedom of association is subject to a number of limitations. Periods of war, natural disaster, and global pandemic all create conditions in which the United States has considered placing restrictions on the right to peaceable assembly. In the two former cases, it has generally been able to regulate its citizens’ exercise of their right to freely associate with one another. However, the COVID-19 pandemic has shown that while the government may seek to limit its citizens’ assembly, it is not always able to enforce its regulations.<br /> <br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Religion&diff=126 2020-06-25T19:53:56Z

<p>Ksandlund: /* Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question? */</p> <hr /> <div>==History==<br /> ===What is the oldest source in any country that mentions this right?===<br /> ===What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE===<br /> ====Afghanistan====<br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> ====Armenia====<br /> ====Australia====<br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> ====Brazil====<br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> ====Colombia====<br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> ====Ghana====<br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> ====Indonesia====<br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> ====Israel====<br /> ====Italy====<br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> ====Jordan====<br /> ====Kazakhstan====<br /> ====Kenya====<br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> ====Laos====<br /> ====Latvia====<br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> ====Oman====<br /> ====Pakistan====<br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> ====Philippines====<br /> ====Poland====<br /> ====Portugal====<br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> ====South Africa====<br /> ====South Korea====<br /> ====South Sudan====<br /> ====Spain====<br /> ====Sri Lanka====<br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> ====United States====<br /> ====Uruguay====<br /> ====Uzbekistan====<br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> <br /> Religious freedom, while commonplace in modern liberal democracies, was not always identified as a natural right with which people were born. Historical narratives describe the “Dark Ages” between the fall of the Roman Empire and the advent of early modernity as a period in which the world was divided between various civilizations according to the religions which they professed. Religious pluralism did not become more widespread until toleration and freedom of religion were identified as potential rights. In Western civilization, this occurred during the Protestant Reformation of the sixteenth and seventeenth centuries.<br /> <br /> The Reformation was one of the most influential movements in the course of western history. As leaders like Martin Luther, and John Calvin led Christian communities to break from traditional Catholicism, the rate of religious pluralism rose within Europe and led to a series of religious wars that defined the sixteenth century. In an early attempt to mediate these conflicts, German rulers negotiated the 1555 Peace of Augsburg. Andrea Walsham writes that this document “established the principle of cuius regio, eius religio, by which individual rulers were permitted to choose whether Catholicism or Protestantism should be professed in their states” (Walsham, “Reformation Legacies,” 231.) Thus, in addition to legalizing the practice of multiple religions within the German states, the adoption of cuius regio, eius religio also meant that religion would no longer be forced upon a principality by outside forces. The idea that Christian rulers could have the right to choose their own religion, and that this choice would be respected, represents an early step toward the principles of religious pluralism and toleration. The Peace of Augsburg did not lend religious agency to the subjects living within these principalities, but it did show European leaders that cooperation was possible between rulers who belonged to differing faiths. <br /> <br /> The seventeenth century was an especially bloody one which included such conflicts as the English Civil War, the French Wars of Religion, and the vicious Thirty Years’ War. Religious plurality invariably led to violence in the seventeenth century, but these conflicts were often followed by important agreements that fostered some level of religious toleration. In 1598, following the religious battles between Catholics and Protestants in France, the French King Henry (IV) of Navarre signed the Edict of Nantes, which “gave Protestants permission to practice their faith openly, albeit within strict limits and as second-class citizens” (Walsham, “Reformation Legacies,” 231). The Thirty Years’ War famously concluded with the Peace of Westphalia, which decreed (among other things) that while each state should have the right to establish an official religion, they were also obligated to allow their subjects the opportunity to practice different Christian denominations without fear of persecution (Christenson, “Liberty of the Exercise of Religion in the Peace of Westphalia,” 740). By favoring religious toleration, Westphalia’s signatories recognized that only religious toleration would reduce the potential for future conflict between the various sects of Christianity. Documents like the Edict of Nantes and the Peace of Westphalia ultimately failed to end religious persecution and conflict within Europe, but they still reveal a heightened awareness of the need for leaders to tolerate religious plurality within their borders.<br /> <br /> As the sixteenth and seventeenth centuries wore on, European intelligentsia began exploring the concept of religious freedom more directly. Enlightenment thinkers such as Voltaire and Baruch Spinoza led the intellectual charge in support of freedom of conscience and thought, while political leaders such as Roger Williams and Thomas Jefferson incorporated principles of religious freedom and the separation of church and state into their state building efforts in North America. While legal guarantees of the right to religious freedom would not be made until the seventeenth and eighteenth centuries, the modern right to freedom of religion is rooted in Reformation-era efforts to mediate religious conflict and incorporate religious toleration into budding European nation-states.<br /> <br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> <br /> After witnessing the horror of religious warfare during the Reformation era, European philosophy began to explore the idea of religious toleration within political society. As the Enlightenment movement gained momentum during the seventeenth, eighteenth, and nineteenth centuries, western civilization turned to science, empiricism, and reason as sources of wisdom and knowledge. This movement was accompanied by a shift away from purely religious discourse as innovative thinkers began to take up more secular pursuits than they could have in centuries past. With this shift thinkers like Locke, Voltaire, Spinoza, and Williams began to question whether states had the right to dictate their subjects’ religious beliefs. These questions led these Enlightenment thinkers to begin believing that political society would better respect its citizens’ rights if it were to adopt policies of religious toleration.<br /> <br /> Religious pluralism became a reality in Enlightenment-era Europe. The Protestant Reformation of the previous centuries had given rise to a number of Protestant-dominated secular states which had carved out a right to remain independent of the Catholic Church after decades of bloodshed and warfare. In the following centuries, thinkers like Spinoza and Voltaire reflected upon the dangers that intolerance can pose to a peaceful society. In 1670 Spinoza’s anonymously published “Treatise on Theology and Politics” radically asserted that “men are very prone to error on religious subjects, and, according to the diversity of their dispositions, are wont with considerable stir to put forward their own inventions, as experience more than sufficiently attests.” (Spinoza, “The Chief Works of Benedict De Spinoza,” 163). However, rather than calling for the abolition of religious toleration, Spinoza uses this idea that religious difference breeds conflict to suggest that states should abandon any effort to control their citizens’ beliefs, and should instead simply protect the people’s right to their own thoughts. In a state built on principles of toleration instead of religious unity, religious conflict would be less likely. A century later, Voltaire came to a similar conclusion in his 1775 “Treatise on Tolerance.” In this work, the Frenchman writes that “toleration, in fine, never led to civil war; intolerance has covered the earth with carnage,” and asserts that “the whole of our continent shows us that we must neither preach nor practise intolerance” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). By linking the idea of religious toleration to the need for states to maintain law and order within society, both Spinoza and Voltaire began to identify religious freedom as an essential facet of a well-ordered state.<br /> <br /> Another important Enlightenment idea that contributed to the identification of the right to religious freedom was the argument that God may will that religious toleration be extended throughout the Christian world. After centuries of warfare, much of it based on the principle that members of the one true religion must fight infidels in the name of God, this was a relatively novel idea. In his 1644 work, The Bloudy Tenent of Persecution, Roger Williams rejects this idea and states that “it is the will and command of God, that (since the coming of his Son the Lord Jesus) a permission of the most pagan, Jewish, Turkish, or Antichristian consciences and worships, be granted to all men in all nations and countries...” (Williams, “The Bloudy Tenent of Persecution”). The Tenant even goes as far as to claim that “God requireth not an uniformity of religion to be enacted and enforced in any civil state…”(Williams, “The Bloudy Tenent of Persecution”). Williams’ work was not well-received by his audience in England, especially considering that the country was still in the midst of a religiously-motivated civil war. However, the idea that the civil state should not enforce any religion was hugely influential in the colony of Rhode Island, of which Williams is considered the sole founder. Decades later, in 1689 following the French King Louis XIV’s revocation of the Edict of Nantes, Locke wrote something very similar in his “Letter Concerning Toleration.” In this letter, he asserts that “the toleration of those that differ from others in matters of religion is so agreeable to the Gospel of Jesus Christ...that it seems monstrous for men to be so blind as not to perceive the necessity and advantage of it in so clear a light” (Locke, “A Letter Concerning Toleration”). The desire to follow God’s will had long guided European thoughts about the connection between church and state, but thinkers like Williams and Locke presented important challenges to this notion. This allowed for discussion over the right to religious freedom to flourish as the Enlightenment wore on.<br /> <br /> Though discourse on religious toleration was still considered fairly radical during the seventeenth century, Enlightenment philosophers also questioned whether it was indeed even possible for a state to dictate its citizens’ religious beliefs. Spinoza’s “Treatise” is heavily concerned with the idea that a person’s right to think freely is a natural right which cannot be deprived by any political society. He writes that “however unlimited, therefore, the power of a sovereign may be, however implicitly it is trusted as the exponent of law and religion, it can never prevent men from forming judgments according to their intellect, or being influenced by any given emotion” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This, Spinoza believes, necessarily implies that a state could never enforce a person’s belief or religious faith because it is not possible for a state to take a person’s mastery of their own thoughts. Voltaire expresses a similar sentiment in his essays when he states that “it does not depend on man to believe or not to believe: but it depends on him to respect the usages of his country” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). Writing about a century after Spinoza, Voltaire also explored the idea that the state is unable to change how a citizen believes, as long as the belief is not inherently detrimental to the state itself. With this in mind, Voltaire advances the idea that because states cannot change its citizens’ beliefs, it should embrace a diversity of beliefs by incorporating the principle of religious freedom into its governance.<br /> <br /> Among the most radical Enlightenment-era ideas concerning religious toleration was the thought that civil states did not have the inherent right to dictate citizens’ religion at all. Locke’s “Letter” asserts that “nobody, therefore, in fine, neither single persons nor churches, nay, nor even commonwealths, have any just title to invade the civil rights and worldly goods of each other upon pretence of religion” (Locke, “A Letter Concerning Toleration”). Spinoza similarly states that “government which attempts to control minds is accounted tyrannical, and it is considered an abuse of sovereignty and a usurpation of the rights of subjects” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This idea that citizens of a political society could have the innate right to decide their own thoughts and religion built upon the initial identification of religion as a multifaceted issue, which originated centuries earlier during the Reformation. As early as 1644, former Massachusetts Puritain Roger Williams rather controversially wrote that “all civil states and their officers of justice in their respective constitutions and administrations are proved essentially civil, and therefore not judges, governors, or defenders of the Spiritual or Christian state and worship” (Williams, “The Bloudy Tenent of Persecution”). The principle that civil states could not serve as spiritual authorities directly influenced the development of political states such as the Rhode Island Colony and the United States of America, in which freedom of religion was identified as an essential right with which the government could not interfere.<br /> <br /> Though the idea of a right to religious freedom was first conceived during the religious wars of the Reformation era, Enlightenment thinkers deserve credit for identifying religious freedom as an essential right. Questions of whether God’s will dictated religious uniformity, the dangers of combating religious pluralism, as well as issues of citizen and states’ rights all contributed, decades and centuries after they were originally pondered, to the inclusion of religious freedom in mainstream political discourse. Williams and Locke both made important contributions to the growing American discussion of essential rights and liberties, while writings from thinkers like Spinoza and Voltaire gradually invited Europeans to consider the benefits of granting religious freedom to their subjects.<br /> <br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> <br /> Religious freedom was originally identified as a fundamental right when Enlightenment thinkers began to question whether political society has the obligation, or even the right, to decide its citizens’ religion. At the time, the widespread conclusion was that religious toleration and freedom of belief were preferable to religious uniformity and faith-based oppression. Around the same time in the seventeenth and eighteenth century, political documents began to identify religious freedom as a fundamental, legally-protectable right with which the state had no right to interfere. Among the first western states to legislate freedom of religion were the English North American colony of Rhode Island, a few of its fellow American colonies, and the United States itself. There was some historical precedent for government-legislated religious toleration in the form of the 1598 Edict of Nantes and the 1648 Treaty of Westphalia, but the Rhode Island Charter and the United States Constitution were among the first documents to completely prohibit governments from interfering in their citizens’ religious affairs.<br /> <br /> The founding of the Rhode Island and Providence Plantations is accredited to Roger Williams, a preacher who was banished from the Massachusetts Bay Colony in 1635 and went on to purchase from the Narragansett Native Americans a plot of land that would become the city of Providence, Rhode Island (Smithsonian Institution, “God, Government and Roger Williams’ Big Idea”). He was banished for holding religious views that contrasted with those upon which the Massachusetts Bay Colony was founded, and it is likely that this experience influenced his thoughts about religious freedom and the value of toleration within political society. He expresses these views quite effectively in his 1644 work, The Bloudy Tenent of Persecution, which states that “the permission of other consciences and worships than a state professeth, only can (according to God) procure a firm and lasting peace, (good assurance being taken according to the wisdom of civil state for uniformity of civil obedience from all forts)” (Williams, “The Bloudy Tenent of Persecution,”). The Rhode Island Charter, which Williams secured from Parliament in July 1663, reflects this view. It states that: <br /> <br /> &quot;No person within the said colony, at any time hereafter, shall be any wise molested, punished, disquieted, or called in question, for any differences in opinion in matters of religion, and do not actually disturb the civil peace of our said colony; but that all and every person and persons may, from time to time, and at all times hereafter, freely and fully have and enjoy his and their own judgments and consciences, in matters of religious concernments, throughout the tract of lance hereafter mentioned.&quot; (“Charter of Rhode Island and Providence Plantations - July 15, 1663”)<br /> <br /> By prohibiting the molestation, punishment, disquieting, and questioning of any citizen on the basis of religion, the Charter sets a clear guarantee that those living within the colony had the legal right to religious freedom. This was groundbreaking not only because it was the first of the thirteen original American colonies to guarantee total religious freedom, but also because unlike most contemporary acts of toleration, the Charter did not exclude Quaker and Jewish citizens from enjoying the religious freedom that it promised.<br /> <br /> Of course, Rhode Island was not the only one of the thirteen original American colonies to identify religious freedom as a fundamental, legally protectable right. Colonies like Maryland and Pennsylvania are also noteworthy for their inclusion of religious groups that made up the English minority. Maryland famously welcomed Catholics inside its borders, and Pennsylvania was originally founded as a Quaker colony under William Penn. As the colonies grew they became examples to contemporary Enlightenment thinkers, who looked to their example as proof that religious toleration was a desirable principle within any system of government. In his work on religious toleration, Voltaire writes of Philadelphia that “discord and controversy are unknown in the happy country they have made for themselves; and the very name of their chief town, Philadelphia, which unceasingly reminds them that all men are brothers, is an example and a shame to nations that are yet ignorant of toleration” (Voltaire, “Toleration and Other Essays - Online Library of Liberty,”). The benefits of religious freedom were well-known by the time of the American Revolution, which explains why religious freedom was such an important building block of the early republic. The Constitution of the United States was also one of the first documents to identify religious freedom as a fundamental, legally protectable right. Its First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). The inclusion of this language in such an influential document represents an important step in the identification of religious freedom as a fundamental legal right. <br /> <br /> It should be noted, however, that the First Amendment does not explicitly separate church and state within the United States government. The principle of church and state separation was not explicitly outlined until 1802, when President Thomas Jefferson outlined it in a letter to the Baptist community of Danbury, Connecticut. It was written in response to community leaders’ complaint that religious freedom was being treated as a privilege, not a right within their state. They wrote that “our sentiments are uniformly on the side of religious liberty--that religion is at all times and places a matter between God and individuals--that no man ought to suffer in name, person, or effects on account of his religious opinions--that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbors” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). In response, Jefferson famously asserted that “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church &amp; State” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). This separation to which he refers is built upon Enlightenment ideals set out by thinkers like Locke and Spinoza, and it represents the realization of a movement for religious freedom that originated centuries before with the Protestant Reformation.<br /> <br /> Religious freedom is a right with a long history, and for centuries after it first came into question within the western world it was debated and considered. Thinkers like Locke and Voltaire championed it, and documents such as the Treaty of Westphalia and the Edict of Nantes made important strides toward realizing it as a legally protectable right. However, many of the first true instances of legally protected religious freedom occurred in American documents such as the Rhode Island Charter and the United States Constitution. These landmark pieces of legislation framed the modern American stance on religious toleration and the right to freedom of belief.<br /> <br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> <br /> Widespread belief in the importance of religious freedom within a liberal democratic society developed over centuries of religious separation, conflict, discourse. Over the past five hundred years Western civilization has transitioned from a uniformly Christian bloc of nations into a set of states defined by religious diversity and built upon the principles of toleration and religious freedom. Three major forces drove that transformation: The violence caused by religious intolerance, the increasing value of free thought, and the success of religiously free states. Over time, all three of these historical forces led to the widespread belief in the importance of religious freedom within western society.<br /> <br /> The first historical force that led to the original identification of religious freedom as a valuable right was the horror and devastation that Europe witnessed during the Reformation era as a result of religious conflicts. The widespread destruction that took place during such conflicts as the Schmalkaldic Wars, the French Wars of Religion, and the English Civil War showed Europeans how difficult it would be to preserve religious unity within their borders, which led some to question the value of religious homogeneity. The Thirty Years War, especially, led to the identification of religious tolerance as an alternative to the religiously-motivated violence when it concluded with the landmark Peace of Westphalia. Voltaire’s assessment that “Germany would be a desert strewn with the bones of Catholics, Protestants, and Anabaptists, slain by each other, if the Peace of Westphalia had not at length brought freedom of conscience” reveals how important the war, and the treaty that ended it, really were to the identification of religious freedom as an important civil right (Voltaire, “Toleration and Other Essays - Online Library of Liberty”). Historian Gordon Christenson similarly notes that the principle of religious tolerance had been included in previous Reformation-era treaties, but the Peace of Westphalia’s explicit use of the principle as a peacekeeping measure reveals that it had broken into mainstream political thought by the end of the war (Walsham, “Reformation Legacies,” 231.)<br /> <br /> As the dust settled after years of religious conflict, a second historical force also contributed to the widespread belief in the right of religious freedom. During the seventeenth and eighteenth centuries, Enlightenment thinkers reflected upon the Reformation wars and the state of European politics, and began to advocate for the freedom of thought and faith within political society. In 1669 Spinoza concluded that “a government would be most harsh which deprived the individual of his freedom of saying and teaching what he thought; and would be moderate if such freedom were granted” (Spinoza, “The Chief Works of Benedict De Spinoza,” 195), Two decades later, Locke came to a similar conclusion when his “Letter Concerning Toleration” specifically outlined the principle of religious toleration by asserting that “no private person has any right in any manner to prejudice another person in his civil enjoyments because he is of another church or religion” (Locke, “A Letter Concerning Toleration,”). Though the identification of religious freedom as a fundamental right did not immediately lead to its universal adoption among western states, it did represent a significant advancement in the field of religious rights. Going forward, rulers and state builders were more conscious of religious toleration as a viable alternative to forcing religious uniformity within their borders. About a century later, this Locke sentiment was directly incorporated into the American Bill of Rights, which prohibits the creation of any law that might restrict the free practice of religion(Constitution of the United States of America).<br /> <br /> Over time the ideas of toleration and the freedom of thought became more widespread, which led a number of states to explore religious freedom as a principle upon which strong nations could be built. Among the first political leaders to embrace the principle of religious freedom was Roger Williams, who founded the English colony of Rhode Island after he was banished from the Massachusetts Bay Colony. As the colony grew over the next several years, he drafted a compact under which it could be governed. Smithsonian Magazine writes that “the most significant element was what the compact did not say. It did not propose to build a model of God’s kingdom on earth, as did Massachusetts...the compact did not even ask God’s blessing. It made no mention of God at all” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). Shortly afterward Williams traveled to England in order to secure a charter from an English Parliament that was itself in the midst of a Civil War. The charter was granted, and the committee that granted it “left all decisions about religion to the “greater Part”—the majority—knowing the majority would keep the state out of matters of worship. Soul liberty now had official sanction” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). The establishment of the Rhode island colony greatly benefitted the growing belief in religious freedom as a fundamental right because it proved that a political society defined by toleration could find success despite the lack of uniform religion. This idea heavily influenced the drafting of the United States Constitution, and over the next two centuries freedom of religion came to be a defining feature for liberal democracies.<br /> <br /> Over the past five centuries, western civilization underwent a number of historical changes that led it to lose faith in the benefits of religious homogeneity and instead come to support freedom of belief and universal toleration. As it slowly began to understand the dangers of promoting state-led religious uniformity, the western world began to explore ideas of plurality and acceptance before eventually embracing them in political entities such as Rhode Island and the United States. Modern democracies still struggle to guarantee the right to freedom of religion at times, but after five hundred years of development western society at least recognizes it as a fundamental human right.<br /> <br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> ===Is it contained in the US Constitution?===<br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> ===Are there any exceptions in American law to this right?===<br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> ====Platonism====<br /> ====Aristotelian thought====<br /> ====Ancient Chinese Philosophy====<br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought==== <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> The conflict of civil and religious rights has presented several exceptions to the right to free religious exercise. Specifically, stemming from the Supreme Court’s ruling in favor of marriage equality in 2015, many anti-discrimination laws have passed, restricting the right to unfettered religious exercise. Several scholars have argued in favor of these exceptions. In discussing the Supreme Court’s 2015 decision, Suzanne Goldberg states, “After many years of battles in which the religious right had hammered the message that gay people were somehow seeking “special rights” when advocating for laws prohibiting sexual orientation discrimination, the court added its authoritative view that the “special rights” rhetoric was meaningless.” Emulated by Goldberg, as civil rights, such as marriage equality, are not “special rights”, they must be protected equally to the First Amendment right to free religious exercise. Ultimately, Goldberg conveys the sentiment that within American jurisprudence, the right to free religious exercise is prima facie, and thus can be subject to numerous exceptions. <br /> <br /> Additionally, in regards to criminal law violations, William P Marshall of the University of Chicago Law Review supports the need for exceptions to the Free Exercise Clause. Furthermore, Marshall condemns the belief that religious activity, as protected by the Free Exercise Clause, should be exempt from criminal laws. In defending the Employment Division, Department of Human Resources of Oregon v. Smith decision, which confirmed the state’s ability to withhold unemployment benefits from workers fired for using illegal drugs for religious purposes, Marshall argues that if the Supreme Court were to permit religious exemptions to criminal laws, strengthening First Amendment Rights, they would have to engage in dangerous “constitutional balancing.” As explained by Marshall, this balancing would force the court to weigh the interests of religious groups against the interests of states, resulting in inconsistent rulings. Thus, presenting a clear exception to freedom of religion, Marshall argues that First Amendment rights, specifically the right to free religious exercise, do not exempt one from criminal prosecution. <br /> <br /> Between the positions of Marshall and Goldberg, lies Ira C. Lupu of the University of Pennsylvania Law Review. While Lupu dismisses the Smith decision, claiming religious rights should have been accommodated in that particular case, he still argues for limitations on religious expression, claiming, “every person may pursue religious freedom to the extent that it is fully compatible with the equal pursuit of religious freedom by others.” Similar to Goldberg, Lupu asserts that religious expression can be curtailed when it restricts the liberties of others. Thus, Lupu emphasizes that although certain religious practices should be exempt from the law, such as the peyote drinking incident in Smith, religious expression should not be left legally unrestricted.<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> Private companies have often been found to institute policies that restrict employees’ rights to religious freedom. Such policies directly violate Title VII of the Civil Rights Act, a provision meant to bolster religious freedom by prohibiting employment discrimination on the basis of religion. <br /> <br /> An example of such discriminatory policies was observed in EEOC v. Abercrombie &amp; Fitch Stores. Furthermore, the case revealed Abercrombie’s “Look Policy”, which involved discriminatory hiring procedures towards Muslim individuals. Affirmed by the Supreme Court, this policy was a direct violation of the Civil Rights Act, Justice Scalia upholding Title VII claiming, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” Demonstrated by the court’s decision, one’s entitlements to religious freedom in the workplace, as upheld by Title VII, are curtailed by discriminatory hiring practices such as the “Look Policy”.<br /> <br /> In addition to violating their Title VII entitlements, many individuals argue that their employers’ practices restrict their First Amendment rights to free religious exercise. For example, in Sherbert v. Verner, Adell Sherbert argued that her firing due to her refusal to work Saturdays, her Sabbath day, was a violation of the Free Exercise Clause of the First Amendment. The Supreme Court concurred with Sherbert, emphasizing that the firing restricted Sherbert’s ability to freely practice her religion. Emphasized by the case, firing someone on the basis of their religion, in addition to likely being a violation of the Civil Rights Act, is a direct breach of the First Amendment. Thus, witnessed by instances such as those that precipitated Sherbert, First Amendment religious rights are often infringed upon by employment policies.<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> <br /> In the United States, certain religious practices have been limited during times of disease. For example, during the COVID-19 pandemic, limitations on free religious exercise have been visibly witnessed, demonstrating how the right is subject to restrictions during a health crisis. This was observed in the beginning of the pandemic, when many houses of worship challenged their closures by state governments, arguing that such actions violated their rights to free religious exercise. Though, when a specific California church’s case was brought to the Supreme Court, the closures were upheld as constitutional, Chief Justice Roberts arguing, “Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment.” Emphasized by the California case, in times of disease, certain religious practices, such as attending largely populated church services, can be restricted if they do not correspond with federal public health guidelines. Thus, witnessed through the closing of churches as a result of the COVID-19 pandemic, a disaster can alter the Supreme court’s constitutional interpretation of the Free Exercise Clause.<br /> <br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Religion&diff=125 2020-06-25T19:51:25Z

<p>Ksandlund: /* Is this right at times curtailed by private actors? */</p> <hr /> <div>==History==<br /> ===What is the oldest source in any country that mentions this right?===<br /> ===What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE===<br /> ====Afghanistan====<br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> ====Armenia====<br /> ====Australia====<br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> ====Brazil====<br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> ====Colombia====<br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> ====Ghana====<br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> ====Indonesia====<br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> ====Israel====<br /> ====Italy====<br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> ====Jordan====<br /> ====Kazakhstan====<br /> ====Kenya====<br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> ====Laos====<br /> ====Latvia====<br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> ====Oman====<br /> ====Pakistan====<br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> ====Philippines====<br /> ====Poland====<br /> ====Portugal====<br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> ====South Africa====<br /> ====South Korea====<br /> ====South Sudan====<br /> ====Spain====<br /> ====Sri Lanka====<br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> ====United States====<br /> ====Uruguay====<br /> ====Uzbekistan====<br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> <br /> Religious freedom, while commonplace in modern liberal democracies, was not always identified as a natural right with which people were born. Historical narratives describe the “Dark Ages” between the fall of the Roman Empire and the advent of early modernity as a period in which the world was divided between various civilizations according to the religions which they professed. Religious pluralism did not become more widespread until toleration and freedom of religion were identified as potential rights. In Western civilization, this occurred during the Protestant Reformation of the sixteenth and seventeenth centuries.<br /> <br /> The Reformation was one of the most influential movements in the course of western history. As leaders like Martin Luther, and John Calvin led Christian communities to break from traditional Catholicism, the rate of religious pluralism rose within Europe and led to a series of religious wars that defined the sixteenth century. In an early attempt to mediate these conflicts, German rulers negotiated the 1555 Peace of Augsburg. Andrea Walsham writes that this document “established the principle of cuius regio, eius religio, by which individual rulers were permitted to choose whether Catholicism or Protestantism should be professed in their states” (Walsham, “Reformation Legacies,” 231.) Thus, in addition to legalizing the practice of multiple religions within the German states, the adoption of cuius regio, eius religio also meant that religion would no longer be forced upon a principality by outside forces. The idea that Christian rulers could have the right to choose their own religion, and that this choice would be respected, represents an early step toward the principles of religious pluralism and toleration. The Peace of Augsburg did not lend religious agency to the subjects living within these principalities, but it did show European leaders that cooperation was possible between rulers who belonged to differing faiths. <br /> <br /> The seventeenth century was an especially bloody one which included such conflicts as the English Civil War, the French Wars of Religion, and the vicious Thirty Years’ War. Religious plurality invariably led to violence in the seventeenth century, but these conflicts were often followed by important agreements that fostered some level of religious toleration. In 1598, following the religious battles between Catholics and Protestants in France, the French King Henry (IV) of Navarre signed the Edict of Nantes, which “gave Protestants permission to practice their faith openly, albeit within strict limits and as second-class citizens” (Walsham, “Reformation Legacies,” 231). The Thirty Years’ War famously concluded with the Peace of Westphalia, which decreed (among other things) that while each state should have the right to establish an official religion, they were also obligated to allow their subjects the opportunity to practice different Christian denominations without fear of persecution (Christenson, “Liberty of the Exercise of Religion in the Peace of Westphalia,” 740). By favoring religious toleration, Westphalia’s signatories recognized that only religious toleration would reduce the potential for future conflict between the various sects of Christianity. Documents like the Edict of Nantes and the Peace of Westphalia ultimately failed to end religious persecution and conflict within Europe, but they still reveal a heightened awareness of the need for leaders to tolerate religious plurality within their borders.<br /> <br /> As the sixteenth and seventeenth centuries wore on, European intelligentsia began exploring the concept of religious freedom more directly. Enlightenment thinkers such as Voltaire and Baruch Spinoza led the intellectual charge in support of freedom of conscience and thought, while political leaders such as Roger Williams and Thomas Jefferson incorporated principles of religious freedom and the separation of church and state into their state building efforts in North America. While legal guarantees of the right to religious freedom would not be made until the seventeenth and eighteenth centuries, the modern right to freedom of religion is rooted in Reformation-era efforts to mediate religious conflict and incorporate religious toleration into budding European nation-states.<br /> <br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> <br /> After witnessing the horror of religious warfare during the Reformation era, European philosophy began to explore the idea of religious toleration within political society. As the Enlightenment movement gained momentum during the seventeenth, eighteenth, and nineteenth centuries, western civilization turned to science, empiricism, and reason as sources of wisdom and knowledge. This movement was accompanied by a shift away from purely religious discourse as innovative thinkers began to take up more secular pursuits than they could have in centuries past. With this shift thinkers like Locke, Voltaire, Spinoza, and Williams began to question whether states had the right to dictate their subjects’ religious beliefs. These questions led these Enlightenment thinkers to begin believing that political society would better respect its citizens’ rights if it were to adopt policies of religious toleration.<br /> <br /> Religious pluralism became a reality in Enlightenment-era Europe. The Protestant Reformation of the previous centuries had given rise to a number of Protestant-dominated secular states which had carved out a right to remain independent of the Catholic Church after decades of bloodshed and warfare. In the following centuries, thinkers like Spinoza and Voltaire reflected upon the dangers that intolerance can pose to a peaceful society. In 1670 Spinoza’s anonymously published “Treatise on Theology and Politics” radically asserted that “men are very prone to error on religious subjects, and, according to the diversity of their dispositions, are wont with considerable stir to put forward their own inventions, as experience more than sufficiently attests.” (Spinoza, “The Chief Works of Benedict De Spinoza,” 163). However, rather than calling for the abolition of religious toleration, Spinoza uses this idea that religious difference breeds conflict to suggest that states should abandon any effort to control their citizens’ beliefs, and should instead simply protect the people’s right to their own thoughts. In a state built on principles of toleration instead of religious unity, religious conflict would be less likely. A century later, Voltaire came to a similar conclusion in his 1775 “Treatise on Tolerance.” In this work, the Frenchman writes that “toleration, in fine, never led to civil war; intolerance has covered the earth with carnage,” and asserts that “the whole of our continent shows us that we must neither preach nor practise intolerance” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). By linking the idea of religious toleration to the need for states to maintain law and order within society, both Spinoza and Voltaire began to identify religious freedom as an essential facet of a well-ordered state.<br /> <br /> Another important Enlightenment idea that contributed to the identification of the right to religious freedom was the argument that God may will that religious toleration be extended throughout the Christian world. After centuries of warfare, much of it based on the principle that members of the one true religion must fight infidels in the name of God, this was a relatively novel idea. In his 1644 work, The Bloudy Tenent of Persecution, Roger Williams rejects this idea and states that “it is the will and command of God, that (since the coming of his Son the Lord Jesus) a permission of the most pagan, Jewish, Turkish, or Antichristian consciences and worships, be granted to all men in all nations and countries...” (Williams, “The Bloudy Tenent of Persecution”). The Tenant even goes as far as to claim that “God requireth not an uniformity of religion to be enacted and enforced in any civil state…”(Williams, “The Bloudy Tenent of Persecution”). Williams’ work was not well-received by his audience in England, especially considering that the country was still in the midst of a religiously-motivated civil war. However, the idea that the civil state should not enforce any religion was hugely influential in the colony of Rhode Island, of which Williams is considered the sole founder. Decades later, in 1689 following the French King Louis XIV’s revocation of the Edict of Nantes, Locke wrote something very similar in his “Letter Concerning Toleration.” In this letter, he asserts that “the toleration of those that differ from others in matters of religion is so agreeable to the Gospel of Jesus Christ...that it seems monstrous for men to be so blind as not to perceive the necessity and advantage of it in so clear a light” (Locke, “A Letter Concerning Toleration”). The desire to follow God’s will had long guided European thoughts about the connection between church and state, but thinkers like Williams and Locke presented important challenges to this notion. This allowed for discussion over the right to religious freedom to flourish as the Enlightenment wore on.<br /> <br /> Though discourse on religious toleration was still considered fairly radical during the seventeenth century, Enlightenment philosophers also questioned whether it was indeed even possible for a state to dictate its citizens’ religious beliefs. Spinoza’s “Treatise” is heavily concerned with the idea that a person’s right to think freely is a natural right which cannot be deprived by any political society. He writes that “however unlimited, therefore, the power of a sovereign may be, however implicitly it is trusted as the exponent of law and religion, it can never prevent men from forming judgments according to their intellect, or being influenced by any given emotion” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This, Spinoza believes, necessarily implies that a state could never enforce a person’s belief or religious faith because it is not possible for a state to take a person’s mastery of their own thoughts. Voltaire expresses a similar sentiment in his essays when he states that “it does not depend on man to believe or not to believe: but it depends on him to respect the usages of his country” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). Writing about a century after Spinoza, Voltaire also explored the idea that the state is unable to change how a citizen believes, as long as the belief is not inherently detrimental to the state itself. With this in mind, Voltaire advances the idea that because states cannot change its citizens’ beliefs, it should embrace a diversity of beliefs by incorporating the principle of religious freedom into its governance.<br /> <br /> Among the most radical Enlightenment-era ideas concerning religious toleration was the thought that civil states did not have the inherent right to dictate citizens’ religion at all. Locke’s “Letter” asserts that “nobody, therefore, in fine, neither single persons nor churches, nay, nor even commonwealths, have any just title to invade the civil rights and worldly goods of each other upon pretence of religion” (Locke, “A Letter Concerning Toleration”). Spinoza similarly states that “government which attempts to control minds is accounted tyrannical, and it is considered an abuse of sovereignty and a usurpation of the rights of subjects” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This idea that citizens of a political society could have the innate right to decide their own thoughts and religion built upon the initial identification of religion as a multifaceted issue, which originated centuries earlier during the Reformation. As early as 1644, former Massachusetts Puritain Roger Williams rather controversially wrote that “all civil states and their officers of justice in their respective constitutions and administrations are proved essentially civil, and therefore not judges, governors, or defenders of the Spiritual or Christian state and worship” (Williams, “The Bloudy Tenent of Persecution”). The principle that civil states could not serve as spiritual authorities directly influenced the development of political states such as the Rhode Island Colony and the United States of America, in which freedom of religion was identified as an essential right with which the government could not interfere.<br /> <br /> Though the idea of a right to religious freedom was first conceived during the religious wars of the Reformation era, Enlightenment thinkers deserve credit for identifying religious freedom as an essential right. Questions of whether God’s will dictated religious uniformity, the dangers of combating religious pluralism, as well as issues of citizen and states’ rights all contributed, decades and centuries after they were originally pondered, to the inclusion of religious freedom in mainstream political discourse. Williams and Locke both made important contributions to the growing American discussion of essential rights and liberties, while writings from thinkers like Spinoza and Voltaire gradually invited Europeans to consider the benefits of granting religious freedom to their subjects.<br /> <br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> <br /> Religious freedom was originally identified as a fundamental right when Enlightenment thinkers began to question whether political society has the obligation, or even the right, to decide its citizens’ religion. At the time, the widespread conclusion was that religious toleration and freedom of belief were preferable to religious uniformity and faith-based oppression. Around the same time in the seventeenth and eighteenth century, political documents began to identify religious freedom as a fundamental, legally-protectable right with which the state had no right to interfere. Among the first western states to legislate freedom of religion were the English North American colony of Rhode Island, a few of its fellow American colonies, and the United States itself. There was some historical precedent for government-legislated religious toleration in the form of the 1598 Edict of Nantes and the 1648 Treaty of Westphalia, but the Rhode Island Charter and the United States Constitution were among the first documents to completely prohibit governments from interfering in their citizens’ religious affairs.<br /> <br /> The founding of the Rhode Island and Providence Plantations is accredited to Roger Williams, a preacher who was banished from the Massachusetts Bay Colony in 1635 and went on to purchase from the Narragansett Native Americans a plot of land that would become the city of Providence, Rhode Island (Smithsonian Institution, “God, Government and Roger Williams’ Big Idea”). He was banished for holding religious views that contrasted with those upon which the Massachusetts Bay Colony was founded, and it is likely that this experience influenced his thoughts about religious freedom and the value of toleration within political society. He expresses these views quite effectively in his 1644 work, The Bloudy Tenent of Persecution, which states that “the permission of other consciences and worships than a state professeth, only can (according to God) procure a firm and lasting peace, (good assurance being taken according to the wisdom of civil state for uniformity of civil obedience from all forts)” (Williams, “The Bloudy Tenent of Persecution,”). The Rhode Island Charter, which Williams secured from Parliament in July 1663, reflects this view. It states that: <br /> <br /> &quot;No person within the said colony, at any time hereafter, shall be any wise molested, punished, disquieted, or called in question, for any differences in opinion in matters of religion, and do not actually disturb the civil peace of our said colony; but that all and every person and persons may, from time to time, and at all times hereafter, freely and fully have and enjoy his and their own judgments and consciences, in matters of religious concernments, throughout the tract of lance hereafter mentioned.&quot; (“Charter of Rhode Island and Providence Plantations - July 15, 1663”)<br /> <br /> By prohibiting the molestation, punishment, disquieting, and questioning of any citizen on the basis of religion, the Charter sets a clear guarantee that those living within the colony had the legal right to religious freedom. This was groundbreaking not only because it was the first of the thirteen original American colonies to guarantee total religious freedom, but also because unlike most contemporary acts of toleration, the Charter did not exclude Quaker and Jewish citizens from enjoying the religious freedom that it promised.<br /> <br /> Of course, Rhode Island was not the only one of the thirteen original American colonies to identify religious freedom as a fundamental, legally protectable right. Colonies like Maryland and Pennsylvania are also noteworthy for their inclusion of religious groups that made up the English minority. Maryland famously welcomed Catholics inside its borders, and Pennsylvania was originally founded as a Quaker colony under William Penn. As the colonies grew they became examples to contemporary Enlightenment thinkers, who looked to their example as proof that religious toleration was a desirable principle within any system of government. In his work on religious toleration, Voltaire writes of Philadelphia that “discord and controversy are unknown in the happy country they have made for themselves; and the very name of their chief town, Philadelphia, which unceasingly reminds them that all men are brothers, is an example and a shame to nations that are yet ignorant of toleration” (Voltaire, “Toleration and Other Essays - Online Library of Liberty,”). The benefits of religious freedom were well-known by the time of the American Revolution, which explains why religious freedom was such an important building block of the early republic. The Constitution of the United States was also one of the first documents to identify religious freedom as a fundamental, legally protectable right. Its First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). The inclusion of this language in such an influential document represents an important step in the identification of religious freedom as a fundamental legal right. <br /> <br /> It should be noted, however, that the First Amendment does not explicitly separate church and state within the United States government. The principle of church and state separation was not explicitly outlined until 1802, when President Thomas Jefferson outlined it in a letter to the Baptist community of Danbury, Connecticut. It was written in response to community leaders’ complaint that religious freedom was being treated as a privilege, not a right within their state. They wrote that “our sentiments are uniformly on the side of religious liberty--that religion is at all times and places a matter between God and individuals--that no man ought to suffer in name, person, or effects on account of his religious opinions--that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbors” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). In response, Jefferson famously asserted that “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church &amp; State” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). This separation to which he refers is built upon Enlightenment ideals set out by thinkers like Locke and Spinoza, and it represents the realization of a movement for religious freedom that originated centuries before with the Protestant Reformation.<br /> <br /> Religious freedom is a right with a long history, and for centuries after it first came into question within the western world it was debated and considered. Thinkers like Locke and Voltaire championed it, and documents such as the Treaty of Westphalia and the Edict of Nantes made important strides toward realizing it as a legally protectable right. However, many of the first true instances of legally protected religious freedom occurred in American documents such as the Rhode Island Charter and the United States Constitution. These landmark pieces of legislation framed the modern American stance on religious toleration and the right to freedom of belief.<br /> <br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> <br /> Widespread belief in the importance of religious freedom within a liberal democratic society developed over centuries of religious separation, conflict, discourse. Over the past five hundred years Western civilization has transitioned from a uniformly Christian bloc of nations into a set of states defined by religious diversity and built upon the principles of toleration and religious freedom. Three major forces drove that transformation: The violence caused by religious intolerance, the increasing value of free thought, and the success of religiously free states. Over time, all three of these historical forces led to the widespread belief in the importance of religious freedom within western society.<br /> <br /> The first historical force that led to the original identification of religious freedom as a valuable right was the horror and devastation that Europe witnessed during the Reformation era as a result of religious conflicts. The widespread destruction that took place during such conflicts as the Schmalkaldic Wars, the French Wars of Religion, and the English Civil War showed Europeans how difficult it would be to preserve religious unity within their borders, which led some to question the value of religious homogeneity. The Thirty Years War, especially, led to the identification of religious tolerance as an alternative to the religiously-motivated violence when it concluded with the landmark Peace of Westphalia. Voltaire’s assessment that “Germany would be a desert strewn with the bones of Catholics, Protestants, and Anabaptists, slain by each other, if the Peace of Westphalia had not at length brought freedom of conscience” reveals how important the war, and the treaty that ended it, really were to the identification of religious freedom as an important civil right (Voltaire, “Toleration and Other Essays - Online Library of Liberty”). Historian Gordon Christenson similarly notes that the principle of religious tolerance had been included in previous Reformation-era treaties, but the Peace of Westphalia’s explicit use of the principle as a peacekeeping measure reveals that it had broken into mainstream political thought by the end of the war (Walsham, “Reformation Legacies,” 231.)<br /> <br /> As the dust settled after years of religious conflict, a second historical force also contributed to the widespread belief in the right of religious freedom. During the seventeenth and eighteenth centuries, Enlightenment thinkers reflected upon the Reformation wars and the state of European politics, and began to advocate for the freedom of thought and faith within political society. In 1669 Spinoza concluded that “a government would be most harsh which deprived the individual of his freedom of saying and teaching what he thought; and would be moderate if such freedom were granted” (Spinoza, “The Chief Works of Benedict De Spinoza,” 195), Two decades later, Locke came to a similar conclusion when his “Letter Concerning Toleration” specifically outlined the principle of religious toleration by asserting that “no private person has any right in any manner to prejudice another person in his civil enjoyments because he is of another church or religion” (Locke, “A Letter Concerning Toleration,”). Though the identification of religious freedom as a fundamental right did not immediately lead to its universal adoption among western states, it did represent a significant advancement in the field of religious rights. Going forward, rulers and state builders were more conscious of religious toleration as a viable alternative to forcing religious uniformity within their borders. About a century later, this Locke sentiment was directly incorporated into the American Bill of Rights, which prohibits the creation of any law that might restrict the free practice of religion(Constitution of the United States of America).<br /> <br /> Over time the ideas of toleration and the freedom of thought became more widespread, which led a number of states to explore religious freedom as a principle upon which strong nations could be built. Among the first political leaders to embrace the principle of religious freedom was Roger Williams, who founded the English colony of Rhode Island after he was banished from the Massachusetts Bay Colony. As the colony grew over the next several years, he drafted a compact under which it could be governed. Smithsonian Magazine writes that “the most significant element was what the compact did not say. It did not propose to build a model of God’s kingdom on earth, as did Massachusetts...the compact did not even ask God’s blessing. It made no mention of God at all” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). Shortly afterward Williams traveled to England in order to secure a charter from an English Parliament that was itself in the midst of a Civil War. The charter was granted, and the committee that granted it “left all decisions about religion to the “greater Part”—the majority—knowing the majority would keep the state out of matters of worship. Soul liberty now had official sanction” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). The establishment of the Rhode island colony greatly benefitted the growing belief in religious freedom as a fundamental right because it proved that a political society defined by toleration could find success despite the lack of uniform religion. This idea heavily influenced the drafting of the United States Constitution, and over the next two centuries freedom of religion came to be a defining feature for liberal democracies.<br /> <br /> Over the past five centuries, western civilization underwent a number of historical changes that led it to lose faith in the benefits of religious homogeneity and instead come to support freedom of belief and universal toleration. As it slowly began to understand the dangers of promoting state-led religious uniformity, the western world began to explore ideas of plurality and acceptance before eventually embracing them in political entities such as Rhode Island and the United States. Modern democracies still struggle to guarantee the right to freedom of religion at times, but after five hundred years of development western society at least recognizes it as a fundamental human right.<br /> <br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> ===Is it contained in the US Constitution?===<br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> ===Are there any exceptions in American law to this right?===<br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> ====Platonism====<br /> ====Aristotelian thought====<br /> ====Ancient Chinese Philosophy====<br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought==== <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> The conflict of civil and religious rights has presented several exceptions to the right to free religious exercise. Specifically, stemming from the Supreme Court’s ruling in favor of marriage equality in 2015, many anti-discrimination laws have passed, restricting the right to unfettered religious exercise. Several scholars have argued in favor of these exceptions. In discussing the Supreme Court’s 2015 decision, Suzanne Goldberg states, “After many years of battles in which the religious right had hammered the message that gay people were somehow seeking “special rights” when advocating for laws prohibiting sexual orientation discrimination, the court added its authoritative view that the “special rights” rhetoric was meaningless.” Emulated by Goldberg, as civil rights, such as marriage equality, are not “special rights”, they must be protected equally to the First Amendment right to free religious exercise. Ultimately, Goldberg conveys the sentiment that within American jurisprudence, the right to free religious exercise is prima facie, and thus can be subject to numerous exceptions. <br /> <br /> Additionally, in regards to criminal law violations, William P Marshall of the University of Chicago Law Review supports the need for exceptions to the Free Exercise Clause. Furthermore, Marshall condemns the belief that religious activity, as protected by the Free Exercise Clause, should be exempt from criminal laws. In defending the Employment Division, Department of Human Resources of Oregon v. Smith decision, which confirmed the state’s ability to withhold unemployment benefits from workers fired for using illegal drugs for religious purposes, Marshall argues that if the Supreme Court were to permit religious exemptions to criminal laws, strengthening First Amendment Rights, they would have to engage in dangerous “constitutional balancing.” As explained by Marshall, this balancing would force the court to weigh the interests of religious groups against the interests of states, resulting in inconsistent rulings. Thus, presenting a clear exception to freedom of religion, Marshall argues that First Amendment rights, specifically the right to free religious exercise, do not exempt one from criminal prosecution. <br /> <br /> Between the positions of Marshall and Goldberg, lies Ira C. Lupu of the University of Pennsylvania Law Review. While Lupu dismisses the Smith decision, claiming religious rights should have been accommodated in that particular case, he still argues for limitations on religious expression, claiming, “every person may pursue religious freedom to the extent that it is fully compatible with the equal pursuit of religious freedom by others.” Similar to Goldberg, Lupu asserts that religious expression can be curtailed when it restricts the liberties of others. Thus, Lupu emphasizes that although certain religious practices should be exempt from the law, such as the peyote drinking incident in Smith, religious expression should not be left legally unrestricted.<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> Private companies have often been found to institute policies that restrict employees’ rights to religious freedom. Such policies directly violate Title VII of the Civil Rights Act, a provision meant to bolster religious freedom by prohibiting employment discrimination on the basis of religion. <br /> <br /> An example of such discriminatory policies was observed in EEOC v. Abercrombie &amp; Fitch Stores. Furthermore, the case revealed Abercrombie’s “Look Policy”, which involved discriminatory hiring procedures towards Muslim individuals. Affirmed by the Supreme Court, this policy was a direct violation of the Civil Rights Act, Justice Scalia upholding Title VII claiming, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” Demonstrated by the court’s decision, one’s entitlements to religious freedom in the workplace, as upheld by Title VII, are curtailed by discriminatory hiring practices such as the “Look Policy”.<br /> <br /> In addition to violating their Title VII entitlements, many individuals argue that their employers’ practices restrict their First Amendment rights to free religious exercise. For example, in Sherbert v. Verner, Adell Sherbert argued that her firing due to her refusal to work Saturdays, her Sabbath day, was a violation of the Free Exercise Clause of the First Amendment. The Supreme Court concurred with Sherbert, emphasizing that the firing restricted Sherbert’s ability to freely practice her religion. Emphasized by the case, firing someone on the basis of their religion, in addition to likely being a violation of the Civil Rights Act, is a direct breach of the First Amendment. Thus, witnessed by instances such as those that precipitated Sherbert, First Amendment religious rights are often infringed upon by employment policies.<br /> <br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

Ksandlund https://www.rightspedia.org/index.php?title=Source/Freedom_of_Religion&diff=124 2020-06-25T19:49:59Z

<p>Ksandlund: /* Have political theorists or philosophers discussed the permissibility of exceptions to this right? */</p> <hr /> <div>==History==<br /> ===What is the oldest source in any country that mentions this right?===<br /> ===What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE===<br /> ====Afghanistan====<br /> ====Albania====<br /> ====Algeria====<br /> ====Andorra====<br /> ====Angola====<br /> ====Antigua and Barbuda====<br /> ====Argentina====<br /> ====Armenia====<br /> ====Australia====<br /> ====Austria====<br /> ====Azerbaijan====<br /> ====The Bahamas====<br /> ====Bahrain====<br /> ====Bangladesh====<br /> ====Barbados====<br /> ====Belarus====<br /> ====Belgium====<br /> ====Belize====<br /> ====Benin====<br /> ====Bhutan====<br /> ====Bolivia====<br /> ====Bosnia and Herzegovina====<br /> ====Botswana====<br /> ====Brazil====<br /> ====Brunei====<br /> ====Bulgaria====<br /> ====Burkina Faso====<br /> ====Burundi====<br /> ====Cambodia====<br /> ====Cameroon====<br /> ====Canada====<br /> ====Cape Verde====<br /> ====Central African Republic====<br /> ====Chad====<br /> ====Chile====<br /> ====China====<br /> ====Colombia====<br /> ====Comoros====<br /> ====Democratic Republic of the Congo====<br /> ====Republic of the Congo====<br /> ====Costa Rica====<br /> ====Croatia====<br /> ====Cuba====<br /> ====Cyprus====<br /> ====Czech Republic====<br /> ====Denmark====<br /> ====Djibouti====<br /> ====Dominica====<br /> ====Dominican Republic====<br /> ====East Timor====<br /> ====Ecuador====<br /> ====Egypt====<br /> ====El Salvador====<br /> ====Equatorial Guinea====<br /> ====Eritrea====<br /> ====Estonia====<br /> ====Eswatini====<br /> ====Ethiopia====<br /> ====Fiji====<br /> ====Finland====<br /> ====France====<br /> ====Gabon====<br /> ====The Gambia====<br /> ====Georgia====<br /> ====Germany====<br /> ====Ghana====<br /> ====Greece====<br /> ====Grenada====<br /> ====Guatemala====<br /> ====Guinea====<br /> ====Guinea-Bissau====<br /> ====Guyana====<br /> ====Haiti====<br /> ====Honduras====<br /> ====Hungary====<br /> ====Iceland====<br /> ====India====<br /> ====Indonesia====<br /> ====Iran====<br /> ====Iraq====<br /> ====Republic of Ireland====<br /> ====Israel====<br /> ====Italy====<br /> ====Ivory Coast====<br /> ====Jamaica====<br /> ====Japan====<br /> ====Jordan====<br /> ====Kazakhstan====<br /> ====Kenya====<br /> ====Kiribati====<br /> ====Kuwait====<br /> ====Kyrgyzstan====<br /> ====Laos====<br /> ====Latvia====<br /> ====Lebanon====<br /> ====Lesotho====<br /> ====Liberia====<br /> ====Libya====<br /> ====Liechtenstein====<br /> ====Lithuania====<br /> ====Luxembourg====<br /> ====Madagascar====<br /> ====Malawi====<br /> ====Malaysia====<br /> ====Maldives====<br /> ====Mali====<br /> ====Malta====<br /> ====Marshall Islands====<br /> ====Mauritania====<br /> ====Mauritius====<br /> ====Mexico====<br /> ====Federated States of Micronesia====<br /> ====Moldova====<br /> ====Monaco====<br /> ====Mongolia====<br /> ====Montenegro====<br /> ====Morocco====<br /> ====Mozambique====<br /> ====Myanmar====<br /> ====Namibia====<br /> ====Nauru====<br /> ====Nepal====<br /> ====Kingdom of the Netherlands====<br /> ====New Zealand====<br /> ====Nicaragua====<br /> ====Niger====<br /> ====Nigeria====<br /> ====North Korea====<br /> ====North Macedonia====<br /> ====Norway====<br /> ====Oman====<br /> ====Pakistan====<br /> ====Palau====<br /> ====Panama====<br /> ====Papua New Guinea====<br /> ====Paraguay====<br /> ====Peru====<br /> ====Philippines====<br /> ====Poland====<br /> ====Portugal====<br /> ====Qatar====<br /> ====Romania====<br /> ====Russia====<br /> ====Rwanda====<br /> ====Saint Kitts and Nevis====<br /> ====Saint Lucia====<br /> ====Saint Vincent and the Grenadines====<br /> ====Samoa====<br /> ====San Marino====<br /> ====São Tomé and Príncipe====<br /> ====Saudi Arabia====<br /> ====Senegal====<br /> ====Serbia====<br /> ====Seychelles====<br /> ====Sierra Leone====<br /> ====Singapore====<br /> ====Slovakia====<br /> ====Slovenia====<br /> ====Solomon Islands====<br /> ====Somalia====<br /> ====South Africa====<br /> ====South Korea====<br /> ====South Sudan====<br /> ====Spain====<br /> ====Sri Lanka====<br /> ====Sudan====<br /> ====Suriname====<br /> ====Sweden====<br /> ====Switzerland====<br /> ====Syria====<br /> ====Tajikistan====<br /> ====Tanzania====<br /> ====Thailand====<br /> ====Togo====<br /> ====Tonga====<br /> ====Trinidad and Tobago====<br /> ====Tunisia====<br /> ====Turkey====<br /> ====Turkmenistan====<br /> ====Tuvalu====<br /> ====Uganda====<br /> ====Ukraine====<br /> ====United Arab Emirates====<br /> ====United Kingdom====<br /> ====United States====<br /> ====Uruguay====<br /> ====Uzbekistan====<br /> ====Vanuatu====<br /> ====Venezuela====<br /> ====Vietnam====<br /> ====Yemen====<br /> ====Zambia====<br /> ====Zimbabwe====<br /> ===Is there another noteworthy written source from the past that mentions this right?===<br /> ===Is the identification of this right associated with a particular era in history, political regime, or political leader?===<br /> <br /> Religious freedom, while commonplace in modern liberal democracies, was not always identified as a natural right with which people were born. Historical narratives describe the “Dark Ages” between the fall of the Roman Empire and the advent of early modernity as a period in which the world was divided between various civilizations according to the religions which they professed. Religious pluralism did not become more widespread until toleration and freedom of religion were identified as potential rights. In Western civilization, this occurred during the Protestant Reformation of the sixteenth and seventeenth centuries.<br /> <br /> The Reformation was one of the most influential movements in the course of western history. As leaders like Martin Luther, and John Calvin led Christian communities to break from traditional Catholicism, the rate of religious pluralism rose within Europe and led to a series of religious wars that defined the sixteenth century. In an early attempt to mediate these conflicts, German rulers negotiated the 1555 Peace of Augsburg. Andrea Walsham writes that this document “established the principle of cuius regio, eius religio, by which individual rulers were permitted to choose whether Catholicism or Protestantism should be professed in their states” (Walsham, “Reformation Legacies,” 231.) Thus, in addition to legalizing the practice of multiple religions within the German states, the adoption of cuius regio, eius religio also meant that religion would no longer be forced upon a principality by outside forces. The idea that Christian rulers could have the right to choose their own religion, and that this choice would be respected, represents an early step toward the principles of religious pluralism and toleration. The Peace of Augsburg did not lend religious agency to the subjects living within these principalities, but it did show European leaders that cooperation was possible between rulers who belonged to differing faiths. <br /> <br /> The seventeenth century was an especially bloody one which included such conflicts as the English Civil War, the French Wars of Religion, and the vicious Thirty Years’ War. Religious plurality invariably led to violence in the seventeenth century, but these conflicts were often followed by important agreements that fostered some level of religious toleration. In 1598, following the religious battles between Catholics and Protestants in France, the French King Henry (IV) of Navarre signed the Edict of Nantes, which “gave Protestants permission to practice their faith openly, albeit within strict limits and as second-class citizens” (Walsham, “Reformation Legacies,” 231). The Thirty Years’ War famously concluded with the Peace of Westphalia, which decreed (among other things) that while each state should have the right to establish an official religion, they were also obligated to allow their subjects the opportunity to practice different Christian denominations without fear of persecution (Christenson, “Liberty of the Exercise of Religion in the Peace of Westphalia,” 740). By favoring religious toleration, Westphalia’s signatories recognized that only religious toleration would reduce the potential for future conflict between the various sects of Christianity. Documents like the Edict of Nantes and the Peace of Westphalia ultimately failed to end religious persecution and conflict within Europe, but they still reveal a heightened awareness of the need for leaders to tolerate religious plurality within their borders.<br /> <br /> As the sixteenth and seventeenth centuries wore on, European intelligentsia began exploring the concept of religious freedom more directly. Enlightenment thinkers such as Voltaire and Baruch Spinoza led the intellectual charge in support of freedom of conscience and thought, while political leaders such as Roger Williams and Thomas Jefferson incorporated principles of religious freedom and the separation of church and state into their state building efforts in North America. While legal guarantees of the right to religious freedom would not be made until the seventeenth and eighteenth centuries, the modern right to freedom of religion is rooted in Reformation-era efforts to mediate religious conflict and incorporate religious toleration into budding European nation-states.<br /> <br /> ===What specific events or ideas contributed to its identification as a fundamental right?===<br /> <br /> After witnessing the horror of religious warfare during the Reformation era, European philosophy began to explore the idea of religious toleration within political society. As the Enlightenment movement gained momentum during the seventeenth, eighteenth, and nineteenth centuries, western civilization turned to science, empiricism, and reason as sources of wisdom and knowledge. This movement was accompanied by a shift away from purely religious discourse as innovative thinkers began to take up more secular pursuits than they could have in centuries past. With this shift thinkers like Locke, Voltaire, Spinoza, and Williams began to question whether states had the right to dictate their subjects’ religious beliefs. These questions led these Enlightenment thinkers to begin believing that political society would better respect its citizens’ rights if it were to adopt policies of religious toleration.<br /> <br /> Religious pluralism became a reality in Enlightenment-era Europe. The Protestant Reformation of the previous centuries had given rise to a number of Protestant-dominated secular states which had carved out a right to remain independent of the Catholic Church after decades of bloodshed and warfare. In the following centuries, thinkers like Spinoza and Voltaire reflected upon the dangers that intolerance can pose to a peaceful society. In 1670 Spinoza’s anonymously published “Treatise on Theology and Politics” radically asserted that “men are very prone to error on religious subjects, and, according to the diversity of their dispositions, are wont with considerable stir to put forward their own inventions, as experience more than sufficiently attests.” (Spinoza, “The Chief Works of Benedict De Spinoza,” 163). However, rather than calling for the abolition of religious toleration, Spinoza uses this idea that religious difference breeds conflict to suggest that states should abandon any effort to control their citizens’ beliefs, and should instead simply protect the people’s right to their own thoughts. In a state built on principles of toleration instead of religious unity, religious conflict would be less likely. A century later, Voltaire came to a similar conclusion in his 1775 “Treatise on Tolerance.” In this work, the Frenchman writes that “toleration, in fine, never led to civil war; intolerance has covered the earth with carnage,” and asserts that “the whole of our continent shows us that we must neither preach nor practise intolerance” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). By linking the idea of religious toleration to the need for states to maintain law and order within society, both Spinoza and Voltaire began to identify religious freedom as an essential facet of a well-ordered state.<br /> <br /> Another important Enlightenment idea that contributed to the identification of the right to religious freedom was the argument that God may will that religious toleration be extended throughout the Christian world. After centuries of warfare, much of it based on the principle that members of the one true religion must fight infidels in the name of God, this was a relatively novel idea. In his 1644 work, The Bloudy Tenent of Persecution, Roger Williams rejects this idea and states that “it is the will and command of God, that (since the coming of his Son the Lord Jesus) a permission of the most pagan, Jewish, Turkish, or Antichristian consciences and worships, be granted to all men in all nations and countries...” (Williams, “The Bloudy Tenent of Persecution”). The Tenant even goes as far as to claim that “God requireth not an uniformity of religion to be enacted and enforced in any civil state…”(Williams, “The Bloudy Tenent of Persecution”). Williams’ work was not well-received by his audience in England, especially considering that the country was still in the midst of a religiously-motivated civil war. However, the idea that the civil state should not enforce any religion was hugely influential in the colony of Rhode Island, of which Williams is considered the sole founder. Decades later, in 1689 following the French King Louis XIV’s revocation of the Edict of Nantes, Locke wrote something very similar in his “Letter Concerning Toleration.” In this letter, he asserts that “the toleration of those that differ from others in matters of religion is so agreeable to the Gospel of Jesus Christ...that it seems monstrous for men to be so blind as not to perceive the necessity and advantage of it in so clear a light” (Locke, “A Letter Concerning Toleration”). The desire to follow God’s will had long guided European thoughts about the connection between church and state, but thinkers like Williams and Locke presented important challenges to this notion. This allowed for discussion over the right to religious freedom to flourish as the Enlightenment wore on.<br /> <br /> Though discourse on religious toleration was still considered fairly radical during the seventeenth century, Enlightenment philosophers also questioned whether it was indeed even possible for a state to dictate its citizens’ religious beliefs. Spinoza’s “Treatise” is heavily concerned with the idea that a person’s right to think freely is a natural right which cannot be deprived by any political society. He writes that “however unlimited, therefore, the power of a sovereign may be, however implicitly it is trusted as the exponent of law and religion, it can never prevent men from forming judgments according to their intellect, or being influenced by any given emotion” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This, Spinoza believes, necessarily implies that a state could never enforce a person’s belief or religious faith because it is not possible for a state to take a person’s mastery of their own thoughts. Voltaire expresses a similar sentiment in his essays when he states that “it does not depend on man to believe or not to believe: but it depends on him to respect the usages of his country” (Voltaire, “Toleration and Other Essays-Online Library of Liberty”). Writing about a century after Spinoza, Voltaire also explored the idea that the state is unable to change how a citizen believes, as long as the belief is not inherently detrimental to the state itself. With this in mind, Voltaire advances the idea that because states cannot change its citizens’ beliefs, it should embrace a diversity of beliefs by incorporating the principle of religious freedom into its governance.<br /> <br /> Among the most radical Enlightenment-era ideas concerning religious toleration was the thought that civil states did not have the inherent right to dictate citizens’ religion at all. Locke’s “Letter” asserts that “nobody, therefore, in fine, neither single persons nor churches, nay, nor even commonwealths, have any just title to invade the civil rights and worldly goods of each other upon pretence of religion” (Locke, “A Letter Concerning Toleration”). Spinoza similarly states that “government which attempts to control minds is accounted tyrannical, and it is considered an abuse of sovereignty and a usurpation of the rights of subjects” (Spinoza, “The Chief Works of Benedict De Spinoza,” 194). This idea that citizens of a political society could have the innate right to decide their own thoughts and religion built upon the initial identification of religion as a multifaceted issue, which originated centuries earlier during the Reformation. As early as 1644, former Massachusetts Puritain Roger Williams rather controversially wrote that “all civil states and their officers of justice in their respective constitutions and administrations are proved essentially civil, and therefore not judges, governors, or defenders of the Spiritual or Christian state and worship” (Williams, “The Bloudy Tenent of Persecution”). The principle that civil states could not serve as spiritual authorities directly influenced the development of political states such as the Rhode Island Colony and the United States of America, in which freedom of religion was identified as an essential right with which the government could not interfere.<br /> <br /> Though the idea of a right to religious freedom was first conceived during the religious wars of the Reformation era, Enlightenment thinkers deserve credit for identifying religious freedom as an essential right. Questions of whether God’s will dictated religious uniformity, the dangers of combating religious pluralism, as well as issues of citizen and states’ rights all contributed, decades and centuries after they were originally pondered, to the inclusion of religious freedom in mainstream political discourse. Williams and Locke both made important contributions to the growing American discussion of essential rights and liberties, while writings from thinkers like Spinoza and Voltaire gradually invited Europeans to consider the benefits of granting religious freedom to their subjects.<br /> <br /> ===When was it generally accepted as a fundamental, legally-protectable right?===<br /> <br /> Religious freedom was originally identified as a fundamental right when Enlightenment thinkers began to question whether political society has the obligation, or even the right, to decide its citizens’ religion. At the time, the widespread conclusion was that religious toleration and freedom of belief were preferable to religious uniformity and faith-based oppression. Around the same time in the seventeenth and eighteenth century, political documents began to identify religious freedom as a fundamental, legally-protectable right with which the state had no right to interfere. Among the first western states to legislate freedom of religion were the English North American colony of Rhode Island, a few of its fellow American colonies, and the United States itself. There was some historical precedent for government-legislated religious toleration in the form of the 1598 Edict of Nantes and the 1648 Treaty of Westphalia, but the Rhode Island Charter and the United States Constitution were among the first documents to completely prohibit governments from interfering in their citizens’ religious affairs.<br /> <br /> The founding of the Rhode Island and Providence Plantations is accredited to Roger Williams, a preacher who was banished from the Massachusetts Bay Colony in 1635 and went on to purchase from the Narragansett Native Americans a plot of land that would become the city of Providence, Rhode Island (Smithsonian Institution, “God, Government and Roger Williams’ Big Idea”). He was banished for holding religious views that contrasted with those upon which the Massachusetts Bay Colony was founded, and it is likely that this experience influenced his thoughts about religious freedom and the value of toleration within political society. He expresses these views quite effectively in his 1644 work, The Bloudy Tenent of Persecution, which states that “the permission of other consciences and worships than a state professeth, only can (according to God) procure a firm and lasting peace, (good assurance being taken according to the wisdom of civil state for uniformity of civil obedience from all forts)” (Williams, “The Bloudy Tenent of Persecution,”). The Rhode Island Charter, which Williams secured from Parliament in July 1663, reflects this view. It states that: <br /> <br /> &quot;No person within the said colony, at any time hereafter, shall be any wise molested, punished, disquieted, or called in question, for any differences in opinion in matters of religion, and do not actually disturb the civil peace of our said colony; but that all and every person and persons may, from time to time, and at all times hereafter, freely and fully have and enjoy his and their own judgments and consciences, in matters of religious concernments, throughout the tract of lance hereafter mentioned.&quot; (“Charter of Rhode Island and Providence Plantations - July 15, 1663”)<br /> <br /> By prohibiting the molestation, punishment, disquieting, and questioning of any citizen on the basis of religion, the Charter sets a clear guarantee that those living within the colony had the legal right to religious freedom. This was groundbreaking not only because it was the first of the thirteen original American colonies to guarantee total religious freedom, but also because unlike most contemporary acts of toleration, the Charter did not exclude Quaker and Jewish citizens from enjoying the religious freedom that it promised.<br /> <br /> Of course, Rhode Island was not the only one of the thirteen original American colonies to identify religious freedom as a fundamental, legally protectable right. Colonies like Maryland and Pennsylvania are also noteworthy for their inclusion of religious groups that made up the English minority. Maryland famously welcomed Catholics inside its borders, and Pennsylvania was originally founded as a Quaker colony under William Penn. As the colonies grew they became examples to contemporary Enlightenment thinkers, who looked to their example as proof that religious toleration was a desirable principle within any system of government. In his work on religious toleration, Voltaire writes of Philadelphia that “discord and controversy are unknown in the happy country they have made for themselves; and the very name of their chief town, Philadelphia, which unceasingly reminds them that all men are brothers, is an example and a shame to nations that are yet ignorant of toleration” (Voltaire, “Toleration and Other Essays - Online Library of Liberty,”). The benefits of religious freedom were well-known by the time of the American Revolution, which explains why religious freedom was such an important building block of the early republic. The Constitution of the United States was also one of the first documents to identify religious freedom as a fundamental, legally protectable right. Its First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). The inclusion of this language in such an influential document represents an important step in the identification of religious freedom as a fundamental legal right. <br /> <br /> It should be noted, however, that the First Amendment does not explicitly separate church and state within the United States government. The principle of church and state separation was not explicitly outlined until 1802, when President Thomas Jefferson outlined it in a letter to the Baptist community of Danbury, Connecticut. It was written in response to community leaders’ complaint that religious freedom was being treated as a privilege, not a right within their state. They wrote that “our sentiments are uniformly on the side of religious liberty--that religion is at all times and places a matter between God and individuals--that no man ought to suffer in name, person, or effects on account of his religious opinions--that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbors” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). In response, Jefferson famously asserted that “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church &amp; State” (“Jefferson's Wall of Separation Letter - The U.S. Constitution Online,”). This separation to which he refers is built upon Enlightenment ideals set out by thinkers like Locke and Spinoza, and it represents the realization of a movement for religious freedom that originated centuries before with the Protestant Reformation.<br /> <br /> Religious freedom is a right with a long history, and for centuries after it first came into question within the western world it was debated and considered. Thinkers like Locke and Voltaire championed it, and documents such as the Treaty of Westphalia and the Edict of Nantes made important strides toward realizing it as a legally protectable right. However, many of the first true instances of legally protected religious freedom occurred in American documents such as the Rhode Island Charter and the United States Constitution. These landmark pieces of legislation framed the modern American stance on religious toleration and the right to freedom of belief.<br /> <br /> ===What historical forces or events, if any, contributed to a widespread belief in its importance? ===<br /> <br /> Widespread belief in the importance of religious freedom within a liberal democratic society developed over centuries of religious separation, conflict, discourse. Over the past five hundred years Western civilization has transitioned from a uniformly Christian bloc of nations into a set of states defined by religious diversity and built upon the principles of toleration and religious freedom. Three major forces drove that transformation: The violence caused by religious intolerance, the increasing value of free thought, and the success of religiously free states. Over time, all three of these historical forces led to the widespread belief in the importance of religious freedom within western society.<br /> <br /> The first historical force that led to the original identification of religious freedom as a valuable right was the horror and devastation that Europe witnessed during the Reformation era as a result of religious conflicts. The widespread destruction that took place during such conflicts as the Schmalkaldic Wars, the French Wars of Religion, and the English Civil War showed Europeans how difficult it would be to preserve religious unity within their borders, which led some to question the value of religious homogeneity. The Thirty Years War, especially, led to the identification of religious tolerance as an alternative to the religiously-motivated violence when it concluded with the landmark Peace of Westphalia. Voltaire’s assessment that “Germany would be a desert strewn with the bones of Catholics, Protestants, and Anabaptists, slain by each other, if the Peace of Westphalia had not at length brought freedom of conscience” reveals how important the war, and the treaty that ended it, really were to the identification of religious freedom as an important civil right (Voltaire, “Toleration and Other Essays - Online Library of Liberty”). Historian Gordon Christenson similarly notes that the principle of religious tolerance had been included in previous Reformation-era treaties, but the Peace of Westphalia’s explicit use of the principle as a peacekeeping measure reveals that it had broken into mainstream political thought by the end of the war (Walsham, “Reformation Legacies,” 231.)<br /> <br /> As the dust settled after years of religious conflict, a second historical force also contributed to the widespread belief in the right of religious freedom. During the seventeenth and eighteenth centuries, Enlightenment thinkers reflected upon the Reformation wars and the state of European politics, and began to advocate for the freedom of thought and faith within political society. In 1669 Spinoza concluded that “a government would be most harsh which deprived the individual of his freedom of saying and teaching what he thought; and would be moderate if such freedom were granted” (Spinoza, “The Chief Works of Benedict De Spinoza,” 195), Two decades later, Locke came to a similar conclusion when his “Letter Concerning Toleration” specifically outlined the principle of religious toleration by asserting that “no private person has any right in any manner to prejudice another person in his civil enjoyments because he is of another church or religion” (Locke, “A Letter Concerning Toleration,”). Though the identification of religious freedom as a fundamental right did not immediately lead to its universal adoption among western states, it did represent a significant advancement in the field of religious rights. Going forward, rulers and state builders were more conscious of religious toleration as a viable alternative to forcing religious uniformity within their borders. About a century later, this Locke sentiment was directly incorporated into the American Bill of Rights, which prohibits the creation of any law that might restrict the free practice of religion(Constitution of the United States of America).<br /> <br /> Over time the ideas of toleration and the freedom of thought became more widespread, which led a number of states to explore religious freedom as a principle upon which strong nations could be built. Among the first political leaders to embrace the principle of religious freedom was Roger Williams, who founded the English colony of Rhode Island after he was banished from the Massachusetts Bay Colony. As the colony grew over the next several years, he drafted a compact under which it could be governed. Smithsonian Magazine writes that “the most significant element was what the compact did not say. It did not propose to build a model of God’s kingdom on earth, as did Massachusetts...the compact did not even ask God’s blessing. It made no mention of God at all” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). Shortly afterward Williams traveled to England in order to secure a charter from an English Parliament that was itself in the midst of a Civil War. The charter was granted, and the committee that granted it “left all decisions about religion to the “greater Part”—the majority—knowing the majority would keep the state out of matters of worship. Soul liberty now had official sanction” (Smithsonian Institution, “God, Government and Roger Williams' Big Idea,”). The establishment of the Rhode island colony greatly benefitted the growing belief in religious freedom as a fundamental right because it proved that a political society defined by toleration could find success despite the lack of uniform religion. This idea heavily influenced the drafting of the United States Constitution, and over the next two centuries freedom of religion came to be a defining feature for liberal democracies.<br /> <br /> Over the past five centuries, western civilization underwent a number of historical changes that led it to lose faith in the benefits of religious homogeneity and instead come to support freedom of belief and universal toleration. As it slowly began to understand the dangers of promoting state-led religious uniformity, the western world began to explore ideas of plurality and acceptance before eventually embracing them in political entities such as Rhode Island and the United States. Modern democracies still struggle to guarantee the right to freedom of religion at times, but after five hundred years of development western society at least recognizes it as a fundamental human right.<br /> <br /> ==Legal Codification==<br /> ===Is this right protected in the Constitutions of most countries today?===<br /> ===Is it contained in the US Constitution?===<br /> ===Has it been interpreted as being implicit in the US Constitution?===<br /> ===Are there any exceptions in American law to this right?===<br /> ===Is this right enshrined in international and regional human rights treaties?===<br /> ==Philosophical Origins==<br /> ===What have religious and philosophical traditions contributed to our understanding of this right?===<br /> ====Buddhism====<br /> ====Platonism====<br /> ====Aristotelian thought====<br /> ====Ancient Chinese Philosophy====<br /> ====Stoicism====<br /> ====Early Indian Philosophy====<br /> ====Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)====<br /> ====Roman Legal and Political Thought====<br /> ====Early Christianity====<br /> ====Thomism and medieval Christianity====<br /> ====Medieval Islamic Thought====<br /> ====Medieval Judaism====<br /> ====Early Modern Rationalism====<br /> ====Absolute Idealism====<br /> ====Reformation Christianity====<br /> ====Hobbesian Thought====<br /> ====Lockean Thought/English Empiricism====<br /> ====Physiocrats====<br /> ====Scottish Enlightenment====<br /> ====Modern Capitalism====<br /> ====Rousseau's Thought====<br /> ====Kantianism====<br /> ====German Idealism====<br /> ====Benthamite Utilitarianism==== <br /> ====Millian Utilitarianism====<br /> ====Current Utilitarianism====<br /> ====Transcendentalism====<br /> ====Marxism====<br /> ====Early Sociology====<br /> ====Pragmatism====<br /> ====Weberian Thought====<br /> ====Process Philosophy====<br /> ====Social Darwinism====<br /> ====British Idealism (19th cen.)====<br /> ====Continental Philosophy/Frankfurt School====<br /> ====Behaviorism====<br /> ====Feminist Thought==== <br /> ====Postmodernism====<br /> ===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== <br /> ===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?===<br /> ==Culture and Politics==<br /> ===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively===<br /> ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?===<br /> ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?===<br /> ===Does public polling reveal insights about the right as experienced in different countries?===<br /> ==Conflicts with other Rights==<br /> ===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?===<br /> ===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?===<br /> ===Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?===<br /> ===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?===<br /> ===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?===<br /> ==Limitations / Restrictions==<br /> ===What are the typical exceptions or limitations placed on this right?===<br /> ===Under American jurisprudence, what permissible exceptions exist?===<br /> ===Under international human rights laws, what permissible exceptions (often called derogations) exist?===<br /> ===Have political theorists or philosophers discussed the permissibility of exceptions to this right?===<br /> The conflict of civil and religious rights has presented several exceptions to the right to free religious exercise. Specifically, stemming from the Supreme Court’s ruling in favor of marriage equality in 2015, many anti-discrimination laws have passed, restricting the right to unfettered religious exercise. Several scholars have argued in favor of these exceptions. In discussing the Supreme Court’s 2015 decision, Suzanne Goldberg states, “After many years of battles in which the religious right had hammered the message that gay people were somehow seeking “special rights” when advocating for laws prohibiting sexual orientation discrimination, the court added its authoritative view that the “special rights” rhetoric was meaningless.” Emulated by Goldberg, as civil rights, such as marriage equality, are not “special rights”, they must be protected equally to the First Amendment right to free religious exercise. Ultimately, Goldberg conveys the sentiment that within American jurisprudence, the right to free religious exercise is prima facie, and thus can be subject to numerous exceptions. <br /> <br /> Additionally, in regards to criminal law violations, William P Marshall of the University of Chicago Law Review supports the need for exceptions to the Free Exercise Clause. Furthermore, Marshall condemns the belief that religious activity, as protected by the Free Exercise Clause, should be exempt from criminal laws. In defending the Employment Division, Department of Human Resources of Oregon v. Smith decision, which confirmed the state’s ability to withhold unemployment benefits from workers fired for using illegal drugs for religious purposes, Marshall argues that if the Supreme Court were to permit religious exemptions to criminal laws, strengthening First Amendment Rights, they would have to engage in dangerous “constitutional balancing.” As explained by Marshall, this balancing would force the court to weigh the interests of religious groups against the interests of states, resulting in inconsistent rulings. Thus, presenting a clear exception to freedom of religion, Marshall argues that First Amendment rights, specifically the right to free religious exercise, do not exempt one from criminal prosecution. <br /> <br /> Between the positions of Marshall and Goldberg, lies Ira C. Lupu of the University of Pennsylvania Law Review. While Lupu dismisses the Smith decision, claiming religious rights should have been accommodated in that particular case, he still argues for limitations on religious expression, claiming, “every person may pursue religious freedom to the extent that it is fully compatible with the equal pursuit of religious freedom by others.” Similar to Goldberg, Lupu asserts that religious expression can be curtailed when it restricts the liberties of others. Thus, Lupu emphasizes that although certain religious practices should be exempt from the law, such as the peyote drinking incident in Smith, religious expression should not be left legally unrestricted.<br /> <br /> ===Should this right be limited when limiting it would jeopardize democratic norms?===<br /> ===Is this right often perceived as threatening to government authorities?===<br /> ===Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible?===<br /> ===Is this right at times curtailed by private actors?===<br /> ===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===<br /> ==Utilitarian / Fairness Assessments==<br /> ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?===<br /> ====Short-term economic cost in general====<br /> ====Long-term economic cost in general====<br /> ====Cost to those least able to economically absorb the cost====<br /> ====Cost to perceived democratic legitimacy====<br /> ====Cost to consistency or coherence of the law as a whole====<br /> ====Cost to the legitimacy or effectiveness of other rights====<br /> ====Cost to considerations of social equality====<br /> ====Cost to other non-material goods not so far specified====<br /> ===What are the financial consequences, if any, of making this right a legally protectable right?===<br /> ===Are there any groups that are uniquely disadvantaged by the exercise of this right?===<br /> ===Are there any groups that uniquely benefit from the exercise of this right?===<br /> ===Are there instances when this fundamental right can lead to unfairness or inequities?=== <br /> ===Are there objective ways to measure the utilitarian nature of this right?===<br /> ===If so, where can one draw the line: when does this right stop being useful or economically viable?===<br /> ==Looking Ahead==<br /> ===How can we expect this right to change and evolve in the years ahead?===<br /> ===How is the future likely to shape the exercise of this right?===<br /> ===Will the exercise or protection of this right be affected by technological changes?===<br /> ===Under what conditions would this right become irrelevant?===<br /> ===Are questions of fairness and utility pertaining to this right likely to change in the years ahead?===<br /> ==Policy Recommendations==<br /> ===Can the practice or exercise of this right be shaped through executive action?===<br /> ===In the US context, are there particular parties with a stake or interest in amending or reconceptualizing this right?===<br /> ===In the US context, can this right be altered legislatively, or would it require a constitutional amendment?===<br /> ===Is this right best addressed at the national level? The sub-national level? The international level?===<br /> ===To what extent is this right shaped primarily by judicial decisions?===<br /> ===If this right is best addressed through the amendment process, how should it proceed?===<br /> ===If this right were unlimited, what might be the consequences (positive and negative)?===<br /> ===If this right were eliminated, what might be the consequences (positive and negative)?===</div>

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