Source/Freedom of Religion

History

What is the oldest source in any country that mentions this right?

The Edict of Toleration by Galerius in April of 311 ended Christian persecutions and granted their right to exist (Keresztes, "From the Great Persecution to the Peace of Galerius," 390). This preceded the Edict of Milan by two years, which permanently declared religious toleration and protection for Christians within the Roman Empire (Britannica, "Edict of Milan").

What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE

Afghanistan

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, "2018 Report on International Religious Freedom: Afghanistan," 1).

Albania

Article 45 of the Republic of Albania’s 1998 Constitution guarantees the right to vote to the People of Albania so they can exercise their power through their elected representatives in the Parliament (Berhani, I. (2015). Elections and Implementation of the Law of Elections in Albania. Mediterranean Journal of Social Sciences).

Argentina

The Constitution establishes freedom of religion, but also gives preferential status to the Roman Catholic Church (U.S. Department of State, "ARGENTINA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT").

Bangladesh

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, "Challenges to Religious Freedom in Bangladesh").

Bhutan

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, "BHUTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT").

Brazil

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, "2016 Report on International Religious Freedom - Brazil").

China

The Constitution establishes freedom of religion, but limits it to "normal religious activity" 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, "CHINA (INCLUDES TIBET, XINJIANG, HONG KONG, AND MACAU) 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT").

Colombia

The Constitution establishes freedom of religion, but gives preferential status to the Roman Catholic Church (Humanists International, "The Freedom of Thought Report").

Denmark

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, "DENMARK 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT").

France

The earliest documentation of freedom of religion in France is the Declaration of the Rights of Man and of the Citizen in 1798 (Britannica, "Declaration of the Rights of Man and of the Citizen," Article 10). The Law of Secularism, passed in 1905, establishes the separation of church and state, but favors traditionally "French" religions such as Catholicism, at the expense of others, like Islam (U.S. Department of State, "FRANCE 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT").

Germany

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, "GERMANY 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT").

Republic of Ireland

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, "IRELAND 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT").

Japan

The Constitution guarantees freedom of religion (Sumimoto, "RELIGIOUS FREEDOM PROBLEMS IN JAPAN: BACKGROUND AND CURRENT PROSPECTS").

Kazakhstan

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, "KAZAKHSTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT").

Kyrgyzstan

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 "extremist" religious groups (U.S. Department of State, "KYRGYZ REPUBLIC 2017 INTERNATIONAL RELIGIOUS FREEDOM REPORT").

Maldives

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, "MALDIVES 2019 INTERNATIONAL RELIGIOUS FREEDOM REPORT").

Nepal

The new constitution guarantees religious freedom, but bans conversions to Hinduism (Nazir-Ali, "Christianity in South and Central Asia," 382).

Norway

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, "The Development of Religious Freedom in Norway," 56).

Pakistan

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, "Pakistan," 1).

Russia

The Constitution establishes freedom of religion and recognizes four "traditional" religions--Christianity, Judaism, Islam and Buddhism. Preference is given to the Russian Orthodox Church (U.S. Department of State, "RUSSIA 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT").

Spain

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, "SPAIN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT").

Sri Lanka

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, "2018 Report on International Religious Freedom: Sri Lanka").

Tajikistan

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, "2018 Report on International Religious Freedom: Tajikistan").

Turkmenistan

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, "UZBEKISTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT").

United Kingdom

The Toleration Act of 1689 allowed nonconformist religions, with the exception of Roman Catholicism, to practice. However, social penalties still persisted (U.K. Parliament, "Catholics and nonconformists"). The Human Rights Act of 1998 established the fundamental rights of citizens within the UK, including freedom of religion (Equality and Human Rights Commission, "The Human Rights Act," Article 9).

United States

U.S. election laws first were seen in Article 1 of the Constitution, which gave states the responsibility to oversee federal elections. Since then, many Constitutional amendments and federal laws have been put in place to protect voting rights such as the Fifteenth, Nineteenth, and Twenty-sixth Amendment (USA.gov).

Uzbekistan

The Constitution guarantees freedom of religion and separation of church and state (U.S. Department of State, "UZBEKISTAN 2018 INTERNATIONAL RELIGIOUS FREEDOM REPORT").

Is there another noteworthy written source from the past that mentions this right?

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, "Magna Carta").

Is the identification of this right associated with a particular era in history, political regime, or political leader?

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.

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.

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.

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.

What specific events or ideas contributed to its identification as a fundamental right?

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.

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.

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.

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.

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.

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.

When was it generally accepted as a fundamental, legally-protectable right?

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.

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:

    "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." (“Charter of Rhode Island and Providence Plantations - July 15, 1663”)

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.

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.

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 & 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.

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.

What historical forces or events, if any, contributed to a widespread belief in its importance?

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.

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.)

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).

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.

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.

Legal Codification

Is this right protected in the Constitutions of most countries today?

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.

Is it contained in the US Constitution?

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).

Has it been interpreted as being implicit in the US Constitution?

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)

Are there any exceptions in American law to this right?

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).

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.

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).

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.

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.

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.

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.

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.

Is this right enshrined in international and regional human rights treaties?

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).

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.

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.

Philosophical Origins

What have religious and philosophical traditions contributed to our understanding of this right?

Buddhism

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.

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.

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.

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.

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).

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).

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 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.

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. 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 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).

Aristotelian thought

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).

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.

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 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).

Ancient Chinese Philosophy

The three primary ancient Chinese philosophies, Confucianism, Legalism, and Taoism, represent various attitudes regarding the rights to religious freedom.

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.

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.

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.

Hobbesian Thought

Despite Hobbes’ often totalitarian views, Hobbes advocates at least some liberty of expression, religion, and association. Hobbes only supported restrictions on liberty when it would have a tangible benefit to the state. In ​Elements of Law​, he argues “that there be no restraint of natural liberty, but what is necessary for the good of the commonwealth” (1640, 9-4). In ​Behemoth,​ he even argues that “​suppression of doctrines does but unite and exasperate, that is, increase both the malice and power of them that have already believed them” (Hobbes 1681). Although Hobbes’ preference is liberty, he does not seem to have a particularly high standard for classifying ideas as seditious. He considered Christian views that violating conscience is a sin and that sanctity and faith are achieved through relations with the supernatural, not reason, to be seditious (Curley 1). One can see how these views would hurt a state - the idea about violating conscience could promote disobedience. Still, these views are nowhere near problematic to meet the standards for censorship employed by most modern Western governments. Leviathan:​ ​https://www.fulltextarchive.com/pdfs/Leviathan.pdf Curley: https://sites01.lsu.edu/faculty/voegelin/wp-content/uploads/sites/80/2015/09/Edwin-Curley.pdf Elements of Law:​ ​http://library.um.edu.mo/ebooks/b13602317.pdf Behemoth: https://oll.libertyfund.org/titles/hobbes-the-english-works-vol-vi-dialogue-behemoth-rhetoric

Lockean Thought/English Empiricism

In ​A Letter Concerning Toleration​, Locke advocates for religious freedom, albeit with qualification. He claims that toleration is the “chief characteristic mark of the true Church” (Locke 1689, 3). Locke justifies toleration by arguing that religious controversies cannot be solved by human beings, and since no religion has an objective claim to truth over another (not just between Christian denominations, but between, in the example he uses, Muslims, Christians and Jews), all religions must be tolerated (Kessler 1985, 490-91). However, Locke prioritizes following the law over free worship, condemning religiously motivated illegal acts (Kessler 493). The following passage from ​A Letter​ demonstrates Locke’s view that humanity cannot identify a true religion: “For every church is orthodox to itself; to others, erroneous or heretical. For whatsoever any church believes, it believes to be true and the contrary unto those things it pronounce; to be error. So that the controversy between these churches about the truth of their doctrines and the purity of their worship is on both sides equal; nor is there any judge, either at Constantinople or elsewhere upon earth, by whose sentence it can be determined” (13-14). Locke separates “speculative” and “practical” beliefs, the former of which applies merely to conscience, and the latter of which influences action. Locke argues that speculative beliefs should always be respected, but identifies certain practical beliefs that should not be (Locke 30-31). These include beliefs incompatible with morality, that induce disloyalty to the state, and atheism (Kessler 494). He condemns non-belief because, “Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist” (Locke 36). He also argues for a separation of church and state, claiming that peace and security are incompatible with “religion propagated by force of arms” (Locke 15). Though a devout

Christian, he rejects the application of Biblical law to modern societies; ‘“Hear, O Israel,” sufficiently restrains the obligations of the law of Moses only to that people” (Locke 28). He is unambiguous and absolute on separation, stating that “church itself is absolutely separate and distinct from the commonwealth and civil affairs. The boundaries on both sides are fixed and immovable. He mixes heaven and earth together, things most remote and opposite, who confuses these two societies, which in their origin, their end, and their whole substance are utterly and completely different” (Locke 15).

Locke does not argue for religious freedom because it is a fundamental right, but rather as a means of maintaining a free society in general. He argued that state enforcement of religious doctrine could serve as an excuse for tyranny. Locke believed that the large number of churches in a free society would maintain that freedom because these churches would be too varied for one to subjugate others and because they could collectively rise up against a threat to their freedom (Kessler 502). Finally, Locke embraced a form of civil disobedience when the government oversteps its bounds in making laws that restrict religion. As Locke argues in ​A Letter​, “If the law, indeed, be concerning things that lie not within the verge of the magistrate’s authority (as, for example, that the people, or any party amongst them, should be compelled to embrace a strange religion, and join in the worship and ceremonies of another Church), men are not in these cases obliged by that law, against their consciences” (33). The following passage from ​A Letter ​demonstrates Locke’s view on the benefits of religious freedom and pluralism: “Take away the partiality that is used towards them in matters of common right; change the laws, take away the penalties unto which they are subjected, and all things will immediately become safe and peaceable; nay, those that are averse to the religion of the magistrate will think

themselves so much the more bound to maintain the peace of the commonwealth as their condition is better in that place than elsewhere; and all the several separate congregations, like so many guardians of the public peace, will watch one another, that nothing may be innovated or changed in the form of the government, because they can hope for nothing better than what they already enjoy—that is, an equal condition with their fellow-subjects under a just and moderate government” (38-9). Locke describes churches in ​A Letter ​as “a society of members voluntarily uniting (Locke 9). He argues that churches should have the right to exclude members (12), and to create their own bylaws (10). Locke’s respect for association is not restricted to churches; ​A Letter ​advocates for no difference in governmental treatment between associations for philosophy, business, religion, or recreation (38). He states that, “Neighbourhood joins some and religion others. But there is only one thing which gathers people into seditious commotions, and that is oppression.” Still, religious associations - and, as Claeys interprets, associations as a whole - are subject to the aforementioned restrictions on practical beliefs (Claeys 2007, 27-28).

Benthamite Utilitarianism

Bentham’s utilitarianism was often fervently anti-religious; as Jake E. Crimmins writes, “ always the aim in view was to test the institutions, practices, rituals, doctrines, and beliefs of religion against the standard of utility. The results of this test were invariably negative and stand as a compelling testimony to Bentham's unmitigated atheism and to his desire to sweep away all religion in order to construct society anew according to the principles of his secular utilitarianism” (1986, 96). Bentham’s writings support greater religious freedom. For example, he argued in favor of a law tolerating Unitarianism, against blasphemy laws and laws criminalizing religious dissent, and against citizens being forced to take religious oaths (96). He argued that the state should recuse itself from all matters of religion, arguing unambiguously for both the separation of church and state and universal free exercise. In his Constitutional Code, Bentham writes that in his ideal state, the following would be true:

“For the business of religion, there is no department: there is no Minister. Of no opinion on the subject of religion, does this Constitution take any cognizance. It allows not of reward in any shape for the professing or advocating of any particular opinion on the subject of religion. It allows not of punishment in any shape for the professing or advocating of any particular opinion on the subject of religion. It leaves to each individual, after hearing any such arguments as he chooses to hear, to decide for himself on each occasion, what opinion has the truth on its side” (Bowring).

Millian Utilitarianism

Though Mill was a less forceful advocate for religious freedom and non-establishment than Bentham, his harm principle - that the only reason to restrict liberty is to prevent harm to others - extends to religion (George). In On Liberty, Mill argued against any attempt to impose religion on another person:

“The notion that it is one man’s duty that another should be religious, was the foundation of all the religious persecutions ever perpetrated, and, if admitted, would fully justify them. Though the feeling which breaks out in the repeated attempts to stop railway travelling on Sunday, in the resistance to the opening of Museums, and the like, has not the cruelty of the old persecutors, the state of mind indicated by it is fundamentally the same” (Mill 1859, 84).

Conflicts with other Rights

Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?

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.

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).

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:

“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)

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.

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).

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).

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.

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.

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.

Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?

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:

“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)

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).

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.

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?

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.

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.

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.

What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?

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.

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.

How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?

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.

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.

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.

Limitations / Restrictions

Have political theorists or philosophers discussed the permissibility of exceptions to this right?

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", 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.

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.

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.

Is this right at times curtailed by private actors?

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).

Such discriminatory policies were observed in EEOC v. Abercrombie & 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”.

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.

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?

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.