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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.
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. Alexandra 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,” 297.) 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,” 299). 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.
REFERENCES
Gordon A. Christenson, “Liberty of the Exercise of Religion in the Peace of Westphalia,” Transnational Law & Contemporary Problems, Vol. 21, 2012).
Alexandra Walsham, “Reformation Legacies,” from The Oxford History of the Reformation, ed. Peter Marshall, Oxford University Press: Oxford, 2022
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 ideas relevant to 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 Rhode Island and Providence Plantations is credited 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”). 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”). 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.
References:
John M. Barry, “God, Government and Roger Williams’ Big Idea,” Jan. 2012, https://www.smithsonianmag.com/history/god-government-and-roger-williams-big-idea-6291280/
“Charter of Rhode Island and Providence Plantations - July 15, 1663”)
“Jefferson's Wall of Separation Letter,” https://www.usconstitution.net/jeffwall.html
United States Bill of Rights
Voltaire, Voltaire. Toleration and Other Essays. New York: G. P. Putnam’s Sons, 1755. https://oll.libertyfund.org/title/mccabe-toleration-and-other-essays.
Roger Williams, “The Bloudy Tenent of Persecution”
The Edict of Milan came two years after the Edict of Toleration by Galerius and granted religious toleration within the Roman Empire.
References:
Reference needed here +
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").
References:
Britannica, T. Editors of Encyclopaedia. "Edict of Milan." Encyclopedia Britannica, August 8, 2019. https://www.britannica.com/topic/Edict-of-Milan.
Keresztes, Paul. “From the Great Persecution to the Peace of Galerius.” Vigiliae Christianae 37, no. 4 (1983): 379–99. https://doi.org/10.2307/1583547. +
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.
REFERENCES
“Global Restrictions on Religion.” Pew Research Center's Religion & Public Life Project, 30 May 2020, www.pewforum.org/2009/12/17/global-restrictions-on-religion/.
Human Rights Library- University of Minnesota, hrlibrary.umn.edu/edumat/studyguides/religion.html.
“International Religious Freedom Report for 2017.” Wilson Center, www.wilsoncenter.org/article/international-religious-freedom-report-for-2017.
“International Standards - Framework for Communications.” OHCHR, www.ohchr.org/EN/Issues/FreedomReligion/Pages/Standards.aspx.
Mark Weston Janis, “Religion and International Law.” ASIL, 17 Nov. 2002, www.asil.org/insights/volume/7/issue/13/religion-and-international-law.
U.S. Department of State, U.S. Department of State, 2009-2017.state.gov/j/drl/rls/irf/religiousfreedom//index.htm.
“You Can Be Put to Death for Atheism in 13 Countries around the World.” Humanists International, 1 Feb. 2019, humanists.international/2013/12/you-can-be-put-death-atheism-13-countries-around-world/.
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.
REFERENCES
Pellot, Brian. “The Worst Countries for Religious Freedom.” Index on Censorship, 3 Jan. 2014, www.indexoncensorship.org/2014/01/worst-countries-religious-freedom/. +
Freedom of religion is included in the First Amendment of the United States Constitution.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The right to free religious exercise was enshrined in the presence of several other noteworthy rights, and was complemented by what we refer to today as the Establishment Clause—a provision mandating the separation of stately matters and religion. Furthermore, the Free Exercise Clause was later expanded by proxy through the Due Process Clause of the Fourteenth Amendment.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Fourteenth Amendment established the process of Selective Incorporation, which extended the Bill of Rights to state governments. The extent of religious freedom guaranteed by the Constitution remains an open question, however, as the evolution of case law pertaining to the Free Exercise Clause and the Establishment Clause has gradually created a formula of exceptions and standards for governments and religious organizations alike.
Given that Constitutionally-protected rights must be manually incorporated to the states, the incorporation of the Free Exercise Clause by the Supreme Court in Cantwell v. Connecticut, 310 U.S. 296 (1940) represented a milestone for religious freedom. The arrest of several Jehovah’s Witnesses in New Haven, Connecticut due to their failure to obtain a religious solicitation license provoked a free exercise lawsuit against the city. Ruling for the Witnesses, the Court decried the “censorship of religion” based on its “right to survive” in a hostile environment (Justice Roberts, 1940). Despite their statements in support of religious freedom, the justices also used the Cantwell decision to imply different ways that religious expression can be regulated while acknowledging the government’s interest in maintaining public order.
In light of the Cantwell precedent, a strenuous situation unfolded between religious organizations and the government, given that the latter’s power to prosecute certain religious activities was both restricted and affirmed by the Court. This situation escalated following the adoption of the Sherbert-Yoder test. In Sherbert v. Verner, 374 U.S. 398 (1963), the Court ruled in favor of Adeil Sherbert, a Seventh-day Adventist in South Carolina who was fired—and denied unemployment benefits—for refusing to work on Saturday, which is viewed as a religious holiday by the Seventh-day Adventist Church. In Wisconsin v. Yoder, 406 U.S. 205 (1972), the justices struck down a Wisconsin statute mandating a public education for children under the age of 16 following a lawsuit from several Amish residents, who accused the law of infringing on their religious exercise.
The Sherbert-Yoder test mandated that strict scrutiny be applied to laws that potentially infringe on religious freedom. Specifically, the state must prove that the law in question is vital to achieving a compelling interest, and that no less restrictive alternatives exist. South Carolina’s refusal to accommodate Adeil Sherbert in spite of her “declared ineligibility” to work on Saturdays, for example, forced her to choose between her financial well-being and religious adherence—a reality that could have reasonably been accommodated by exceptions for practicing Seventh-Day Adventists (Justice Brennan, 1963). Comparatively, the Wisconsin Statute struck down by Yoder did not offer any religious exemptions to compulsory public school attendance. Due to the well-established nature of Amish primary education, such an exception could reasonably have been made in this case without compromising the state’s interest in ensuring an educated populace.
Despite the high standard created by strict scrutiny for the incidental suppression of religious exercise, the Court established clear exceptions for the Free Exercise Clause in Braunfeld v. Brown, 366 U.S. 599 (1961) and Goldman v. Weinberger, 475 U.S. 503 (1986), two cases that preceded and followed the Court’s adoption of the Sherbert-Yoder test, respectively (both cases predated the Smith test, which will be further discussed below). In Braunfeld, the constitutionality of a Pennsylvania Blue Law (ordinances that ban nonessential commercial activity on a certain day, most commonly Sunday) was challenged by Abraham Braunfeld, an Orthodox Jew who could not work on Saturdays due to his religion. Ruling for the state, the justices asserted that Pennsylvania’s attempt to create a “day of rest” represented one of many “important social duties” afforded to the state (Justice Warren, 1961). Given that religious exceptions would likely compromise the legitimacy of this effort by promoting typical commercial activities, no realistic alternative existed for Pennsylvania—a key difference from the situation in Sherbert. Finally, the Court gave its typical deference to “the professional judgment of military authorities” in Goldman (Justice Rehnquist, 1986). The justices ruled that Simcha Goldman, a United States Air Force captain who challenged the Air Force Dress Code due to its prohibition of religious garments, was not entitled to wear a yarmulke while serving in the military.
Despite the various examples of court-imposed limitations to religious activity evidenced by Braunfeld and Goldman, the Sherbert-Yoder test continued to provide a high bar for governmental intrusions on free exercise. The purview of this test was greatly limited, however, by the Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), in which the justices rejected a free exercise claim from the Native American Church in Oregon. Two adherents to the Church were fired from their jobs for ingesting peyote, a practice encouraged by their religion but outlawed in the state of Oregon. Like Sherbert, they were fired and denied unemployment benefits. Writing for the majority, Justice Scalia asserted that the Oregon statute was “generally applicable criminal law” that was not designed to infringe on the Native American Church—a stark departure from the Court’s rulings on supposedly secular laws in Sherbert and Yoder. Unlike both cases, however, an exception for Smith would have likely imperiled the legitimacy of Oregon’s drug control laws, thereby creating a problematic issue for public safety. Following this ruling, broad public outcry prompted congress to pass the Religious Freedom Restoration Act of 1993 (RFRA), which effectively mandated the reapplication of the strict scrutiny standard for all levels of government. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court curtailed the RFRA by limiting its purview to federal issues.
In Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), the court pivoted back to the least restrictive means test outlined in Sherbert and Yoder without explicitly overruling Smith. In response to a provision by the Affordable Care Act requiring for-profit corporations to provide funding for contraceptives as part of their insurance plans, the owners of Hobby Lobby filed suit, alleging the law violated the RFRA and the Free Exercise Clause. Ruling for Hobby Lobby, the Court asserted that any contraceptive mandate would compel the Burwell family to “facilitate access to contraceptive drugs or devices” that would violate their “sincere Christian beliefs” (Justice Alito, 2014). Furthermore, the justices contended that exemptions for closely-held for-profit companies such as Hobby Lobby would have represented a less restrictive measure—an argument that encapsulated the broader shift towards the Sherbert-Yoder test for certain cases.
Contrary to the Free Exercise Clause, the Establishment Clause plays a more subtle role in matters pertaining to religious exercise. The question of whether freedom of religion includes the right to be free from religion has been debated since the inception of the Constitution, and several cases pertaining to the Establishment Clause have also created implications for free exercise. In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court established a standard for determining any governmental violations of the Establishment Clause, highlighted by its prohibition of activities that constitute “an excessive government entanglement with religion” (Justice Burger, 1971).
The ambiguity of this test was made clear by Kennedy v. Bremerton School District, 597 U.S. 507 (2022), in which the Court ruled in favor of a public high school football coach in Washington State who had been suspended for holding prayers with his students during school events. This decision replaced the Lemon test with the “historical practices and understandings” test, which asserted that Christianity can be treated as an American cultural phenomenon. This line of reasoning was previously implied in Van Orden v. Perry, 545 U.S. 677 (2005) and American Legion v. American Humanist Association, 588 U.S. ___ (2019), in which the presence of Christian religious symbols on public property (outside a courthouse and in a veterans' cemetery, respectively) were upheld for their cultural—rather than religious—significance. While the cultural importance of Christianity to American culture cannot be denied, this test does not deny that Christian exercises or objects within public property are inherently religious—a dilemma that has sparked fierce debate since the Kennedy ruling.
Cantwell v. Connecticut, 310 U.S. 296 (1940) https://supreme.justia.com/cases/federal/us/310/296/
Sherbert v. Verner, 374 U.S. 398 (1963)
https://supreme.justia.com/cases/federal/us/374/398/
Wisconsin v. Yoder, 406 U.S. 205 (1972)
https://supreme.justia.com/cases/federal/us/406/205/
Braunfeld v. Brown, 366 U.S. 599 (1961)
https://supreme.justia.com/cases/federal/us/366/599/
Goldman v. Weinberger, 475 U.S. 503 (1986)
https://supreme.justia.com/cases/federal/us/475/503/
Employment Division v. Smith, 494 U.S. 872 (1990)
https://supreme.justia.com/cases/federal/us/494/872/
City of Boerne v. Flores, 521 U.S. 507 (1997)
https://supreme.justia.com/cases/federal/us/521/507/
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014)
https://supreme.justia.com/cases/federal/us/573/682/
Lemon v. Kurtzman, 403 U.S. 602 (1971)
https://supreme.justia.com/cases/federal/us/403/602/
Kennedy v. Bremerton School District, 597 U.S. 507 (2022)
https://supreme.justia.com/cases/federal/us/597/21-418/
Van Orden v. Perry, 545 U.S. 677 (2005)
https://supreme.justia.com/cases/federal/us/545/677/
American Legion v. American Humanist Association, 588 U.S. ___ (2019)
https://supreme.justia.com/cases/federal/us/588/17-1717/
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.
REFERENCES
A Brief History of Peyote, www.peyote.org/.
“Establishment Clause Overview.” Freedom Forum Institute, www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-religion/establishment-clause-overview/.
“FindLaw's United States Supreme Court Case and Opinions.” Findlaw, caselaw.findlaw.com/us-supreme-court/492/573.html.
David L. Hudson, Jr.. Endorsement Test, mtsu.edu/first-amendment/article/833/endorsement-test.
Lutz, Zak. “Limits of Religious Freedom.” Harvard Political Review, 6 Nov. 2015, harvardpolitics.com/covers/limits-of-religious-freedom/.
McGovern, Geoff. Lynch v. Donnelly, mtsu.edu/first-amendment/article/737/lynch-v-donnelly.
“Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968).” Justia Law, supreme.justia.com/cases/federal/us/390/400/.
Richard L. Pacelle, Jr.. Lemon Test, www.mtsu.edu/first-amendment/article/834/lemon-test.
“The No Religious Test Clause.” Article VI, The National Constitution Center, constitutioncenter.org/interactive-constitution/interpretation/article-vi/clauses/32.
Vile, John R. Coercion Test, www.mtsu.edu/first-amendment/article/899/coercion-test.
“What Does ‘Free Exercise’ of Religion Mean under the First Amendment?” Freedom Forum Institute, www.freedomforuminstitute.org/about/faq/what-does-free-exercise-of-religion-mean-under-the-first-amendment/.
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)
REFERENCES
Alan E. Brownstein and Jud Campbell, “The No Religious Test Clause,” https://constitutioncenter.org/the-constitution/articles/article-vi/clauses/32 +
Government Favortism of Religions: Often, a government will claim a favored religion (“A Closer Look”), and this may come at the expense of other groups’ freedom. For example, Greece has an anti-proselytism law designed to protect the Greek Orthodox religion.
Registration: Many countries require religious groups to register with a relevant agency to operate (“A Closer Look 2019”).
National Security: In 2017, Israel banned Muslim men under 50 from visiting the Western Wall (there is some conflicting reporting as to whether the ban extended to non-Muslim men as well). Israel has similarly restricted other sites during times of tension, such as Jerusalem’s Aqsa mosque (Baker 2014). Given that the Western Wall is a sacred site to Muslims, restricting access should be considered a restriction on Muslim practice. The ban still restricted the ability of people to freely worship even if it extended to non-Muslims.
Expression in Public: For example, many European countries ban religious dress in public places (“A Closer Look 2019”).
Blasphemy: 71 countries, spread between the Americas, Africa, Asia, and Europe, have anti-blasphemy laws (Bandow 2018).
REFERENCES:
Luke Baker, “Muslim men over 50 pray at Jerusalem's Aqsa mosque amid tight security”, October 31, 2014: https://www.reuters.com/article/us-mideast-palestinians-israel/muslim-men-over-50-pray-at-jerusalems-aqsa-mosque-amid-tight-security-idUSKBN0IK0PR20141031
Doug Bandow, “Anti‐Blasphemy Laws Are Blasphemous,” American Spectator (Online), June 24, 2018.
“A Closer Look” https://www.pewforum.org/2019/07/15/a-closer-look-at-how-religious-restrictions-have-risen-around-the-world/ +
Universal Declaration of Human Rights: The UDHR provides for exceptions to human rights “determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” American Convention on Human Rights: Article 12-3 of the convention states that religious practice may “be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.” The relevant court has “recognized that a state can limit the exercise of free religious expression when there is a conflict with other rights or when such expression constitutes a threat to society or political stability” (Gomes 2009, 98). European Convention on Human Rights: Article 9-2 states that “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” The European Court of Human Rights has interpreted a right not to have one’s religious views insulted by the public and has condoned state action against blasphemy (Koev 2019). In Valsamis v. Greece (1996), the court ruled against a defendant seeking a religious a religious exemption from a school-sponsored activity (Koev 2019).
In Eweida and others v. UK (2013), the court ruled against civil servants who refused to register same-sex marriages (Koev 2019). In Sahin v. Turkey ( 2004), the court upheld restricts on beards and headscarves for Muslim university students to “reconcile the interests of various groups” (Koev 2019, 188). In SAS v. France, the court upheld a ban on public face coverings because the face coverings would intrude on concepts of secularism and liberty (because, the court argued, face coverings symbolize subservience).
REFERENCES:
Evaldo Xavier Gomes, “The Implementation of Inter-American Norms on Freedom of Religion in the National Legislation of OAS Member States,” BYU Law Review, 2009, Issue 3 Article 5, 9-1-2009
Dan Koev (2019) Not Taking it on Faith: State and Religious Influences on European Court of
Human Rights Judges in Freedom of Religion Cases, Journal of Human Rights, 18:2, 184-200, DOI: 10.1080/14754835.2019.1588715
Universal Declaration of Human Rights: https://www.un.org/en/universal-declaration-human-rights/
The Supreme Court ruled in Employment Division v. Smith (1990) that the First Amendment does not provide for religious exemptions to a generally applicable law. In the case, a Native American was fired from his job and denied unemployment benefits for using Peyote, a substance sometimes smoked during religious ceremonies. The court had previously ruled in Sherbert v. Verner (1963) that the First Amendment does provide for that type of exception unless there is a compelling reason to enforce the law anyway (Munoz 2008, 1083). However, the Supreme Court’s ruling in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006) appears to undermine this ruling. In that case, a religious group claimed the right to use a drug called hoasca. The Supreme Court held that, under the Religious Freedom Restoration Act, the government is obligated to grant religious exemptions to general laws unless the government can demonstrate a compelling state interest in regulating the drug’s religious use (“Gonzales v. Centro”). Pandemic: The COVID-19 pandemic has caused many governments to limit religious gatherings. For example, at the outset of the pandemic, Maryland banned gatherings of more than ten people, including religious services (Pitts 2020). Ensuring Success of a Government Operation: In Goldman v. Weinberger (1986), the court upheld an Air Force ban on headgear, which was challenged by an Orthodox Jew seeking to wear a yarmulke while on duty. The court found that the Air Force had a legitimate interest in ensuring obedience and conformity (“Landmark”). Non-Discrimination Law (a notable non-exception): In a landmark case, Masterpiece Cake Shop v. Colorado Civil Rights Commission ( 2017), the Supreme Court decided that Colorado anti-discrimination law could not compel a baker to violate his religious beliefs by baking a cake for a same-sex wedding (“Masterpiece”).
REFERENCES:
Evaldo Xavier Gomes, “The Implementation of Inter-American Norms on Freedom of Religion in the National Legislation of OAS Member States,” BYU Law Review, 2009, Issue 3 Article 5, 9-1-2009
Muñoz, Vincent Phillip, The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress (2008). Harvard Journal of Law and Public Policy, Vol. 31, No. 3, pp. 1083-1120, 2008, Available at SSRN: https://ssrn.com/abstract=1150780
“Landmark”: https://billofrightsinstitute.org/cases/
“Gonzalez v. Centro”: https://www.oyez.org/cases/2005/04-1084
“Masterpiece”: https://www.oyez.org/cases/2017/16-111
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” (Keen and Goldberg, 236-237). 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.
REFERENCES:
Keen, Lisa., and Suzanne B. Goldberg. Strangers to the Law : Gay People on Trial. University of Michigan Press, 1998.
Lupu, Ira C. “Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of Religion.” University of Pennsylvania law review 140, no. 2 (1991): 555–612.
Marshall, William P. “In Defense of Smith and Free Exercise Revisionism.” The University of Chicago Law Review 58, no. 1 (1991): 308–28. https://doi.org/10.2307/1599906.
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.
REFERENCES:
EEOC v. Abercrombie & Fitch Stores, https://www.oyez.org/cases/2014/14-86
EEOC v. Abercrombie & Fitch Stores, https://supreme.justia.com/cases/federal/us/575/14-86/
Sherbert v Verner, https://www.oyez.org/cases/1962/526
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. 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.
The COVID-19 pandemic has caused many governments to limit religious gatherings. For example, at the outset of the pandemic, Maryland banned gatherings of more than ten people, including religious services (Pitts 2020). Terrorism has justified bans on Muslim veils in public places, a restriction on the free exercise of religion. From a 2019 piece by the London Schools of Economics’ Stuti Manchanda and Nilay Saiya: “Proponents of restrictions on Muslim veils make three main arguments. First, they claim that enveloping Islamic veils present a physical security threat, insofar as Muslim women might use these traditional Islamic garments to conceal weapons or explosives. ‘You could carry a rocket launcher under your veil,’ as the former President of Latvia, Vaira Vike-Freiberga, put it. Similarly, Paul Nuttall, former leader of the UK Independence Party, justified banning the burqa on similar physical security grounds: ‘Obviously we have a heightened security risk at the moment and for CCTV to be effective, in an age of heightened terror, you need to be able to see people’s faces.’ Finally, British Prime Minister, Boris Johnson, compared Muslim women in veils to letter boxes and bank robbers.” Israel has restricted Muslim practices to respond to terrorism. In 2017, due to a recent incident, Israel banned Muslim men under 50 from visiting the Western Wall (there is some conflicting reporting as to whether the ban extended to non-Muslim men as well). Israel has similarly restricted other sites during times of tension, such as Jerusalem’s Aqsa mosque (Baker 2017). Given that the Western Wall is a sacred site to Muslims, restricting access should be considered a restriction on Muslim practice. The ban still restricted the ability of people to freely worship even if it extended to non-Muslims. Certain US anti-terror policies, though stopping short of restricting Muslim religious practices, have significantly impacted Muslims. In Response to 9-11, Congress passed the USA Patriot Act. The act’s provisions included those designed to facilitate search warrants on suspected terrorists, enable increased surveillance, and prevent terrorists from exploiting the immigration system. These provisions and post-attack suspicion of Muslims have led law-enforcement agencies to disproportionately target them. A 2006 piece by Xavier University’s Kam C. Wong referred to Muslim-Americans’ situation as a “virtual internment camp” (194). Wong cites staggering data on Muslim-Americans between 2001 and 2005; using conservative estimates, 90,000 had been detained, raided, or questioned by the FBI. Similarly, the NYPD ran a controversial program after 9-11 surveilling Muslims. According to the ACLU, its methods included undercover officers in Muslim communities, tracking individuals who had changed their name, and recording information on people who attended Muslim services. The ACLU even claims that the program interfered with Muslim practice by instilling fear that religious doctrine may be misinterpreted by law enforcement (“Factsheet”). From the report: “The NYPD’s suspicionless surveillance has forced religious leaders to censor what they say to their congregants, for fear anything they say could be taken out of context by police officers or informants. Some religious leaders feel they must regularly record their sermons to defend themselves against potential NYPD mischaracterizations. Disruptions resulting from unlawful NYPD surveillance have also diverted time and resources away from religious education and counseling. Muslims have reported feeling pressure to avoid appearing overtly religious, for example, by changing their dress or the length of their beards.
REFERENCES:
Luke Baker, “Muslim men over 50 pray at Jerusalem's Aqsa mosque amid tight security”, October 31, 2014: https://www.reuters.com/article/us-mideast-palestinians-israel/muslim-men-over-50-pray-at-jerusalems-aqsa-mosque-amid-tight-security-idUSKBN0IK0PR20141031
“Factsheet: The NYPD Muslim Surveillance Program” https://www.aclu.org/other/factsheet-nypd-muslim-surveillance-program
Stuti Manchada and Nilay Saiya, “Why veil restrictions increase the risk of terrorism in Europe,” 12/17/2019: https://blogs.lse.ac.uk/europpblog/2019/12/17/why-veil-restrictions-increase-the-risk-of-terrorism-in-europe/
Jonathan M. Pitts, “Houses of worship ‘in no rush’ to reopen as Maryland eases restrictions on indoor gatherings,” Baltimore Sun, Jun 06, 2020: https://www.baltimoresun.com/coronavirus/bs-md-ci-churches-reopening-20200606-mgrlkn2kdjd77ealcnnu5lmsoe-story.html
Kam C. Wong, The USA Patriot Act: A Policy of Alienation, 12 MICH. J. RACE & L. 161 (2006). Available at: https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1111&context=mjrl
Originalists disagree on the proper interpretation of the Free-Exercise Clause. In Employment Division v. Smith (1990), Justice Scalia, who was one of the legal community’s foremost originalists, issued the opinion of the court, arguing that the clause does not provide for religious exceptions to generally applicable law. In the case, a Native American was fired from his job and denied unemployment benefits for using Peyote, a substance sometimes smoked during religious ceremonies. The court had previously ruled in Sherbert v. Verner (1963) that the First Amendment does provide for that type of exception unless there is a compelling reason to enforce the law anyway (Munoz 1083). As Munoz argues, the Continental Congress’s deliberations may settle this dispute. The Congress considered and rejected a constitutional right not to join state militias for religious reasons, indicating opposition to religious exceptions to general laws (1085). Scalia in Employment Division v. Smith: “We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.” Originalists tend to take a narrow view of the establishment clause. According to Middle Tennessee State University, Scalia believed the clause “only bars official activities that may promote the activities of a particular sect.” He believed the government may, therefore, promote religion over nonreligion, and that government acknowledgment and accommodation is acceptable (Curry and Hudson 2017). In Lee v. Weisman (1992), a prayer-in-schools case, Scalia issued a dissenting opinion in which he argued that whether a practice was acceptable early in the nation’s history should help inform whether or not it violates the Establishment Clause. In this case, he viewed prayer in schools as acceptable in part because of the long tradition of prayer in government-sponsored gatherings. Scalia in Lee v. Weisman: “In holding that the Establishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Court—with nary a mention that it is doing so—lays waste a tradition that is as old as public-school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.” In a case from this June, Espinoza v. Montana Dept. of Revenue, Justice Thomas went even further, arguing that, “As I have explained in previous cases, at the founding, the Clause served only to ‘protec[t] States, and by extension their citizens, from the imposition of an established religion by the Federal Government”’ (p. 2).
REFERENCES:
Curry and Hudson:https://www.mtsu.edu/first-amendment/article/1356/antonin-scalia
Employment Division v. Smith: https://mtsu.edu/first-amendment/article/364/employment-division-department-of-human-resources-of-oregon-v-smith
Espinoza v. Montana: https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf
Lee V. Weisman: https://supreme.justia.com/cases/federal/us/505/577/
Muñoz, Vincent Phillip, The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress (2008). Harvard Journal of Law and Public Policy, Vol. 31, No. 3, pp. 1083-1120, 2008, Available at SSRN: https://ssrn.com/abstract=1150780
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.
REFERENCES:
Liu Jinguang, “The Tolerance and Harmony of Chinese Religion in the Age of Globalization,” Procedia - Social and Behavioral Sciences 77 (2013) 205 – 209
Robert Cummings Neville, “Confucianism and Toleration.” Journal of East-West Thought, 4/3 (September 2014). Pp. 25-38.
Kenneth Winston. 2005. THE INTERNAL MORALITY OF CHINESE LEGALISM. Singapore Journal of Legal Studies (12): 313-347
Aristotle 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).
Aristotle’s views inspired the Thomistic 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).
References:
Aristotle on Politics and Religion, Austin Cline, Dotdash Learn Religions, 2019 New York.
Justifying Religious Freedom: The Western Tradition, E. Gregory Wallace, 537-538, Faculty Scholarship at Campbell University School of Law, 2009 Raleigh. +
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).
References:
Bowing: https://oll.libertyfund.org/titles/bentham-the-works-of-jeremy-bentham-vol-9-constitutional-code
Crimmins, James E. “Bentham on Religion: Atheism and the Secular Society.” Journal of the History of Ideas 47, no. 1 (1986): 95–110. https://doi.org/10.2307/2709597. +
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 (Borchert 10, 2016).
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 Buddhist 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).
REFERENCES
Borchert, Thomas, “Buddhism and Religious Freedom: a sourcebook.” Berkeley Center at Georgetown, 2016. https://berkleycenter.georgetown.edu/publications/buddhism-and-religious-freedom-a-sourcebook-of-scriptural-theological-and-legal-texts
Somseen Chanawangsa, “A Buddhist Perspective on Freedom of Religion,” The Journal of the Royal Institute of Thailand, Volume III, 2011
Freiberger, Oliver. “How the Buddha Dealt with Non-Buddhists.” In Religion and Identity in South Asia and Beyond: Essays in Honor of Patrick Olivelle, edited by Steven E. Lindquist, 185–96. Anthem Press, 2011. http://www.jstor.org/stable/j.ctt1gxp99q.12.
Mutsalim Khareng et. al., “Freedom of Religion in Islam and Buddhism: A Comparison Study of the Barriers That Determines the Freedom of Religion,” Asian Social Science; Vol. 10, No. 22; 2014