The Relationship of Religious Liberty to Civil Liberty and a Democratic State
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D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001 The Relationship of Religious Libert y to Civil Liberty and a Democratic State James E. Wood, J r. The principle of religious liberty m ay well lay claim t o being the foundation of all civil liberties and a dem ocratic state. The concept of religiou s libe rty wa s t he in evitable result of a wa y of thinking about the nature of religion, the nature of the hu man person, an d the na tu re of the stat e. By “religious liberty” is meant the in her en t righ t of a person to profess or not to profess a religious faith; to worship or not to worship, in public or in privat e, according t o one’s own conscien ce, u nderst anding, or preferences; to witness to or to pr opa gate on e’s faith or beliefs ; to join in ass ociation wit h other s of like fait h or beliefs ; and t o change one’s religiou s identit y or beliefs—a ll wit hout hindrance, molestation, or discrimin ation. In the words of Lord Acton more than a cent ur y ago, “Religious liber ty . is possible only where the coexistence of different religions is admitted, with an equal right to govern themselves according to their own several principles.”1 To express it in somewha t m ore r est rictive terms, religious libert y requ ir es the a bsen ce of discrim in ation based on one’s religion or belief—na mely t he equa lity of all religion s, as well as irreligion, before the law. It also requires that a citizen neither enjoy advantages nor suffer disadvan- tages because of one’s religion or beliefs.2 I. RELIGIOUS LIBERT Y IS INTEGRAL TO THE NATURE OF RELIGION The concept of re ligious liberty is integral to the nature of religion . For th is reason, r eligious int olera nce, includin g an y 1. J OHN EMERICH & EDWARD DALBERG-ACTON, THE HISTORY OF FREEDOM AND OTHER ESS AYS 152 (196 7). 2. This pr in cipl e was exp licit ly a ffirmed by the United Nations in its General Assembly Resolution on the Decla rat ion on t he E lim in at ion of al l For m s of I nt olera nce and Dis crim in at ion Ba sed on R eligi on or Bel ief, G.A. Res. 36/55, U.N. GAOR, 36th Sess ., Agenda Item 75, U.N. Doc. A/RES/36/55 (1981), which was adopted by unanimous consent by th e U.N. Gener al Assembly on November 28, 1981. 479 D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001 480 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 form of discr im in ation ba sed on religion or belief, is antithetical to religion and is, indeed, religion’s worst adversary. To believe is a volun ta ry act. To be tr ue t o itself, au th ent ic religion must wait upon the voluntary r espon ses of p er son s who are free from coer cion . Recognition of this principle was conceded by th e early church fathers. Nea r the close of the second century, Justin Martyr, who argued for the principle of the logos sperm at ik os, na mely that the seed of the divine word is to be found in all humankind—even in those outside of the Ch ristia n tr adition—perceptively wrote, “[N]othin g is more cont ra ry t o religion than constraint.”3 In the t hir d century, when Emperor Septimus Sever us issu ed a decree in A.D. 202 forbidding conver sion to Christianity, Tertullian wrote that freedom of religion is a fundamental right. “It is a matter of both human and natural law,” he declared, “that every man can worship as he plea ses. It is not in the n at ur e of religion to impose itself by force,” but “should be adopted freely.”4 Almost a century later, an d with considera ble insight int o the nature of r eligion , Athanasius declared, “It is not with the sword an d spear, nor with soldiers and armed force that truth is to be pr opagated, but by cou nsel a nd s weet persu asion.”5 Similarly, Lactantius, the tu tor of Emperor Const an tin e’s son, argued th at “it is only in religion that liberty has chosen to dwell. For nothing is so much a matter of free will as religion, and no one can be required to worship what he does not will t o wor sh ip. H e ca n per ha ps pretend, but he cann ot will.”6 During th e Middle Ages, when religious liberty did not exist in Europe, Marsilius of Padua, a Catholic lawyer, eloquently argued that coercion is complet ely foreign to the n ature of religion and that religious convictions by their very nature cannot be forced. No religious authority, he argued, has the righ t to exercise coercion for complia nce wit h religiou s commandments: 3. M. SEARLE BATES, RELIGIOUS LIBERTY: AN INQUIRY 137 (1945) (quoting J ust in Martyr). 4. Joseph Lecler , S.J ., Religi ous Freedom : An Hi storica l S ur vey , in RELIGIOUS FREEDOM 5 (Ne oph yt os E de lby & Te odor o J im en ez-U rr es ti , ed s., 196 6) quoting Ad Scapu lam at 2; 1 MIGNE, PATROL IA LATINA 699. 5. DIVINA INSTITUTA 54; 6 MIGNE, supra, note 4, at 1061. 6. LACTANTIUS, DIVIN A INSTITUTA, 1,5c 2 0; 6 MIGNE, supra note 4, at 516.54. D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001 479] RELIGIOUS LIBERTY AND CIVIL LIBERTY 481 For it would be useless, for h im to coerce an yone to observe them, since the person wh o observed them under coe rcion would be h elp ed not a t a ll tow ar d e te rn al sa lva tion . For Christ did not ordain th at an yone sh ould be forced to observe in th is wor ld t he law m ad e by h im , an d for t his reas on h e did not appoint in this world a judge having coercive power over transgressors of his law.7 “[E]ven if it were given to the bishop or priest to coerce men in those ma tt ers which rela te t o divine law,” he wrote, “it would be useless. For those who were thus coerced would not be helped at all toward etern al salva tion by such compu lsion.”8 As with ear lier voices for freedom of religion, Mar silius espoused religiou s liberty as a matter of principle and viewed religiou s liber ty a s a n essentia l fea ture of a uthen tic r eligion . Two cent ur ies la ter, Desiderius Er asmu s, the great Cat holic humanist and ir en icis t, wr ote sim ila rly t hat the u se of coer cion is contrary to the nature of religion and, therefore, he argued for th e “fut ility of per secution.”9 In a letter to John Carondolet, Erasm us wrote, When faith is in the mouth rather than in the heart, when the solid knowledge of Sacred Scriptur e fails us, neverth eless by terrorization we drive men to believe what they do not believe, to love what th ey d o not lov e, t o kn ow w hat th ey d o not k now. That wh ich is for ced can not b e sincer e, and that which is not voluntary cannot please Christ.10 7. MARSILIUS OF PADUA, DEFEN SOR PACIS 164 (Ala n G ewir th tr an s., 195 6). 8. Id. at 135. 9. ROLAND H. BAINTON, ERASMUS OF CHRISTENDOM 185 (196 9). 10. CONCERNING HERETICS: WHETHE R THEY ARE TO BE PERSECUTED AND HOW THEY ARE TO BE TREATED: A COLLECTION OF THE OPINIONS OF LEARNED MEN, BOTH ANCIENT AND MODERN 34 (Sebas tia n Ca ste llio ed. & Rolan d H. Bain ton tr an s., 1935) (quotin g letter from Erasmus to John Car ondolet (Ja n. 5, 1523), in 5 Opus epistolarum 11.362-81). Late r in 1519, in response t o Mart in Lu th er’s dram at ic public challen ge at Wittenberg of the Roman Catholic Church, Erasmus wrote to the ar chb ish op of Mainz, th e following: [I]f he is in noce nt , I s hou ld be sor ry to s ee h im over wh elm ed b y som e villainous faction; if he is wr ong, I would rather he were set right than destroyed; for this a grees bett er with the exa mple Chr ist ha s given us, who accor ding to the prophet quenched not th e smoking flax and did not brea k the bruised reed. Letter from E ra smus t o Archbish op Main z, in THE CORRESPONDENCE OF ERASMUS: LETTERS 993 TO 1121, 1519 TO 1520, at 111 (R.A.B . My nors tr an s., 198 7). D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001 482 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 Tribut e must also be given to the Radical Reformers who championed voluntarism in religion and its corollary the sepa ra tion of church and state, that is the den ia l of t he u se of temporal power by the church or, in religiou s matters, the state, pr edica ted on the separation of the in st it ution s of ch urch and state.11 Th e voices of the Radical Re formation for religiou s liberty were based upon the premise of the uncoerced response to the gospel.