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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 , 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, 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, , 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 , when religious liberty did not exist in , Marsilius of , 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 , 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, 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. This, they held, was essential for the esse of th e true church. Th us, the u se of any for m of coercion in religion was opposed. “A Turk or a heretic,” Balthasar Hubmaier wr ote, “is not convinced by our act, either with the sword or with fire, but only with patience and prayer; and so we should await with patience t he judgm ent of God.”12 Writ ing a centur y later in En gland, in a book which boldly set forth for the first time in the English language the right of universal religious liberty, Thomas Helwys argued that the nature of religion removed it from the jurisdiction of the civil ruler: Our Lord the K ing is but an earthly King, and he hath no

authority as a King, bu t in ea rth ly causes, and if the Kin gs peop le be obe dien t & tr ue su bjects, obeying all h um ane lawes made by the King, our Lord the Kin g ca n re qu ire no m ore : for men’s religion to God, is be twixt God a n d t h em se lve s; t h e King shall not an swere for it, neither m ay th e King be jugd betwene God and Man. Let th em be h er et ike s, Turk s, J ew es, or wha tsoever it apperteynes not to the earthly power to punish them in the least m easur e.13

11. In his monum enta l study of the Radical Reforma tion, Geor ge H. William s concluded th at “almost a ll th e Radicals [i.e., Radical Reformers] insisted on the ut ter sep ar at ion of the chu rch from t he st at e a nd foun d in th e willi ng ne ss of th e Magisterial Reformer s [e.g., Mart in Lu th er, U lrich Zwingli, and J ohn Calvin] to use the coercive power of princes, k ings, a nd t own councilors an aber ra tion from apost olic Christianity no less grievous than papal pretensions.” See GEORGE HUNTSTON WILLIAMS, THE RADICAL REFORMATION 860 (1962). In t he American exper ience, this has bee n in te rp re te d t o mean that th e st at e m ay n ot u se r eligi on for th e accomplishment of a secular pu rpose and t he church may not use the state for the accomplishment of a religious purpose. 12. HENRY C. VEDDER, BALTHASAR HUBMAIER: LEADER OF THE ANABAPTISTS 86 (190 5); see also On Her etics an d T hos e Wh o Bu rn Them , in BALTHASAR HUBMAIER: THE OLOG IAN OF ANABAPTISM 62 (H . Wayne Pipk in & J ohn H. Yoder eds. & t ra ns., 198 9). 13. THO MAS HEL WYS , A SHORT DECLARATION OF THE MISTERY OF INIQUITY 69 (fac. re pr in t e d. (1 935 )). D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

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Similar ly, Leonard Busher, like Helwys an English Separatist, wrote in 1614 the followin g in opp osition to the u se of tem por al power in religion: “It is not only un merciful, but unnatural and abomina ble; yea, monstrous for one Christian to vex and destr oy another for difference a nd questions of religion.”14 The voluntary character of th e n ature of r eligion and belief, na mely th e concept of freedom of religion and conscience, has come to be increasingly recognized in contemporary political and r eligiou s t hough t. Affir mation of the voluntary character of religion has been clearly affirmed, for exam ple, in twentieth - century Ch ristia n ecu men ica l t hough t. Th e Wor ld Cou ncil of Churches has on various occasion s a cknowle dged religiou s liberty as int egra l to th e na tu re of religion a nd religious faith. “God’s redemptive dealin g with men is not coercive. Accordingly human at tem pts by legal ena ctment or by pr essu re of social custom to coerce or to eliminate faith are violations of the fundamental ways of God with men. The freedom which God has given . . . im plies a free response to God’s love . . . .”15 In the words of Vat ican II, “God calls m en to serve Him in spirit and in truth. Hence they are bound in conscience but they stand un der no compu lsion.”16 The heart of the matter is tha t for religion to be a ut hen tic, it must be a voluntary, personal, and free act, an d membership in a faith community is one of voluntary association. Faith is not fait h if it s volu ntary ch aracter is abr idged by coercion . As Augustin Leona rd, a Ca th olic theologian, wrote, “An imposed faith is a contradiction in t erm s . . . . Faith mu st be free if it is not to destroy itself.”17 In th e words of the lat e Spa nish scholar, A.F. Ca rrillo de Albor noz, who served for some years as the Secretary of the Secret ar iat on Religious Liberty of the World Cou ncil of Chur ches, “No intellectu al in genuit y, no orga nized

14. Leonard Bus her , R eligi ous : or a Plea for L iber ty of Con scien ce, in TRACTS ON LIBERTY OF CONSCIENCE AND PERSECUTION 1614-1661, at 1, 24 (Edward Bean Un de rh ill e d., 184 6). 15. S ta tem ent on Religious Liberty, in THE NEW DELHI REPORT: THE THIRD ASSEMBLY OF THE WORLD COUNCIL OF CHURCHES, 1961, at 159, 159 (196 2). 16. De Libertate Religiosa: A Delcar at ion of Religious Fr eedom , in THE DOCUMEN TS OF VATICAN II: ALL SIXTEEN OFFICIAL TEXTS PROMULGATED BY THE ECUMEN ICAL COUNCIL 1963-1965, at 675, 690 (Walter M. Abbott , S.J. ed. & J oseph Gallagher tra ns., 1966) [hereina fter VATICAN II ]. 17. Augustin Leona rd, Freed om of Faith an d Civil Toleration, in TOLERANCE AND THE CATHOLIC 113 (195 5). D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

484 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 institution, no kind of com pu lsion and n o power of persuasion can change the fact that God deals with men as with free and responsible beings and that he expects from them an uncoerced response.”18 Or, as Albert Hartmann expressed it, “A person’s one an d only mean s of learnin g God’s will is the voice of one’s conscience.”19 Th e r igh t to religiou s identit y a nd t o a person al religiou s faith, including association with others of like faith , requires voluntariness. Freedom of religion is thus underm ined and vitiated whenever any form of extern al coercion is superimposed on t he in dividual.

II. RELIGIOUS LIBERTY AND CIVIL LIBERT Y ARE ROOTED IN THE DIGNITY AND SANCTITY OF THE HUMAN PERSON The ult ima te bas is of religious liber ty, a s with all civil liberty, is found in the dignity and sanctity of the human person an d the in violability of the hu ma n conscience. This is what ultimately forms th e basis of const itu tional governm ent, a limited state, and a free and democrat ic . Th e Pr eam ble of the United Nat ions U niversal Declar at ion of Huma n Righ ts (1948) rightly speaks of “the inherent dignity . . . of all members of the human family” and “the dignit y and worth of the human person.”20 The Pr eamble, which is common to both the International Covena nt on Civil and Political (1966)21 and the International Covenant on Economic, Social, an d Cultural Right s (196 6),22 declares, “Th ese r igh ts d er ive from the in her en t dign it y of the human person.” The former affirms that “everyone shall have the right to freedom of thought, conscience, and religion”23 an d tha t “no one sh all be subject to coer cion wh ich wou ld im pa ir his freedom to have or to adopt a religion or belief of his choice.”24 Wh ile the sacredness of personhood is widely acknowledged as th e foundat ion of all

18. A.F. CARRILLO DE ALBORNOZ, THE BASIS OF RELIGIOUS LIBERTY 74 (1 963 ). 19. ALBERT HARTMANN, TOLERANZ UND CHRISTLICHER GLAUBE 5 (19 55). 20. Universal Declaration of H um an R ights, G.A. Res. 217A(111), at 71, U.N . Doc. A/810 (194 8) (en te re d in to fo rce Ma r. 23, 197 6) [h er ein aft er Universal Declar ati on]. 21. U.N. GAOR, 21st Sess., Supp. No. 16, at 71, U.N . Doc. A/6316 (1966) (entered into force Mar. 23, 1976) [hereina fter ICCPR]. 22. See 1 HUM AN RIGHTS: INTERNATION AL DOCUMEN TS 12 (J am es Aver y J oyce ed., 1978) [hereina fter ICES CR]. 23. Universal Declar ati on, supra note 21, ar t. 18(1 ). 24. Id. ar t. 18(2 ). D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

479] RELIGIOUS LIBERTY AND CIVIL LIBERTY 485 human rights, it ha s pa rt icular mea nin g in the exercise of one’s sense of the sacred, i.e ., on e’s religious faith or beliefs. Søren Kierkega ar d wrote with profound insight that “[m]an is himself prima rily a nd genu inely in h is free choice.”25 The intrinsic wor th of th e human person is simply too sacred to be violated by religious coer cion or an enforced conform ity of belief, either of which is a denia l of th e dignity and wor th of the h uman person . If r eligiou s liberty an d civil liberty are to have any existential meaning in the nation state, there must be legal r ecogn it ion on the part of the state of the ina liena ble righ t of every cit izen to decide m atter s of r eligiou s identit y and/or belief for oneself. As t he Wor ld Cou ncil of Chu rches affirmed at th e tim e of its founding almost fifty years ago, “The nature and d estin y of m an . . . est ablish lim it s beyon d which the cannot with im punit y go.”26 And Vatican II proclaimed, “The protection an d pr omotion of th e inviolable rights of man ranks among t he ess en tia l duties of govern ment .”27 Inextricably bound to the sanctity of the human person is the concept of freedom of conscience. Marsilius was perhaps the first to recognize the righ t of conscience both as a natural and a polit ica l right. Although freedom of religion in the modern world is usu ally rooted in religiou s or theological th ought , it stems from t he concept of “libert y of conscience,” a phrase of modern origin which came int o use after th e sixt eenth cent ur y. Even though the Protestant Reformation, by and large, did not espouse the principle of freedom of religion, it did represent a revolt against both established religious and established polit ica l authority and, in turn, fostered the emergence of new nation-states and a new national spirit throughout Europe and Great Brita in. The Reformat ion was, first of all, rooted in a revolt against established religious aut hority. When his views of Ch ristia n Scr ipture wer e ch allenged by t he eccles ia st ica l of his day, Mart in Luther proclaimed, “I cannot and will not recant, for it is neither safe nor honest to violate one’s

25. SØREN KIERKEGAARD, TRAINING IN CHRISTIANITY (1850), quoted in Niels H. Søe, The Theological Basis of Religious Liberty, 11 ECUM EN ICAL REV. 36, 41 (195 8). 26. THE FIRST ASSEMBLY OF THE WORLD COUNCIL OF CHURCHES: HELD AT AMSTE RDAM , AUGUST 22-S EPTEMBE R 4, 1948, at 97 (W.A. Visser ‘t Hooft ed., 1949) [hereinafter FIRST ASSEMBLY OF THE WORLD COUNCIL OF CHURCHES]. 27. VATICAN II, supra note 16, at 684. D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

486 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 conscience. I can do no other . . . . [F ]or I am more afraid of my own heart than the and all his cardinals.”28 Aided by th e humanism of the Renaissance, a bold new spir it of freedom in religion appea red, wh ich inevitably gave rise to the cr y, “fait h is free.” Gr adu ally the prin ciple of religiou s liberty was for thrigh tly a ffir med, leading fin ally to an insist en ce u pon “th e com peten cy of the in divid ual u nder God in all ma tt ers of religion.”29 Freedom of religion was proclaimed as bot h a natural and a divine right. Furthermore, it was argued, religiou s liberty demanded civil liberty an d civil liberty required liber ty of conscience. I n his semin al wor k in wh ich he argued again st restrict ion s on freedom of pr ess, J ohn Milton wrote, “Give me the liberty to know, to utter, and to argue freely a ccording t o conscience, above all libert ies.”30 In their plea for freedom of religion, th e Fr ee Chur ches h eld that freedom of conscien ce was, in fact, t he basis for freedom of religion . For th is reason, a s Fra nk lin H . Litt ell obser ved, “The most direct contribu tion of the F ree Ch urches to the individual citizen, whether church member or not, was in the establishment of liberty of conscience.”31 As generally used then and now, freedom of conscience held to th e inher ent righ t of each person to follow the dict ates of his or her own conscience without in ter fer en ce fr om civil a uthorit y or su bm ission to majority opinion. In his monumental and trenchant work, History of Freed om , Lord Acton, a prominent Catholic thinker in ninet eenth-century England, wrote that liberty of conscien ce is “the assura nce tha t ever y ma n sha ll be protected in doing what he believes [to be] his du ty a ga in st the in flu en ce of au th ority an d majorities, custom an d opinion.”32 In the Western world, freedom of conscience has been based upon two fu nda men tal prin ciples . Fir st , fr eedom of conscience is held to be a natural, inalienable , a nd s acred right of all persons, a domain which the true state must protect and into which it must not lightly intrude. Wh er ea s t he fin al a im of

28. 2 REFORMATION WRITINGS OF 155 (Ber tr am Lee Woolf ed., 195 6). 29. A phra se fre qu en tly us ed b y th e Ra dica l Refor me rs an d in th e con fess ions of faith by the Free Churches. 30. J OHN MILTON, AREO PAGI TICA 73 (164 4). 31. FRANKLIN H. LITTELL, THE FREE CHURCH 48 (195 7). 32. EMERICH & DALBERG-ACTON, supra note 1, at 3. D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

479] RELIGIOUS LIBERTY AND CIVIL LIBERTY 487 religion is truth, the ultimate goal of the state, as Baruch (Benedictus) Sp in oza argu ed, is freedom .33 The second a xiom is that because conscience is a natural and sacred right, innate and universa l, n o person is to be above another in the freedom of its exercise. All persons are equal in rights as in duties, which human authority cannot take a way in the case of the former, and to which it cannot add in the case of the latter. Recogn it ion of th e r igh t of freedom of conscience means the acknowledgment of one’s right to believe or not to believe a religious dogma; to worship one God or many or not to worship; to be a member of a r eligiou s a ss ociation or of non e; a nd t o enjoy the “free exe rcise” of religion , without civil disabilities, so lon g as su ch exercise is not deemed to be detr imen ta l to the basic fabric of society and the security of the state. By its ver y et ym ology, conscien ce refers to moral awareness or moral insight, by which one experiences the impulse to do righ t an d experiences rest ra int from doing wr ong. The very nature of religion requir es that it be rooted in conscien ce, w hich theologians have t er med a “gift” or t he “voice” of God. In the words of the Westminster Confession of Faith: “God alone is Lor d of the con scien ce; a nd h ath left it free from the doctrines and commandments of men, which ar e in anything contrary to His Word—or beside it, if matters of faith or worship. So that to believe such doctrines or to obey such commands out of conscience, is to betr ay t ru e liber ty of conscience . . . .”34 More than a half cen tury a go, U nit ed St ates Su pr em e Court Chief Harlan F. Stone, in his dissent in the 1940 Gobitis case, wrote th at if the Const itu tional guar an tees of liberty “are to have any meaning they must . . . be deemed to withh old from the st ate a ny a uthorit y t o compel be lief or the expression of it where that expression violates religious convictions.”35 For the state to intr ude on the inviolability of conscience is for the state to assu me a transcendency a nd a n ult im ate power that belon g

33. See BARUCH SPI NO ZA, TRACTATUS THEOLOGICA-P OLITICUS 237 -49 (1 670 ). Spin oza vigorously defended the principle of religiou s toleration and opposed any established form of re ligion . 34. Wes tm in ster Confession of Faith Section XX, Of Christian Liberty and Liberty of Con scien ce, qu oted in DOCUMEN TS OF THE CHRISTIAN CHURCH 347 (He nry Bett en son ed., 2d ed . 19 63). 35. Miner sville Sch . Dist . v. Gobitis, 310 U.S . 586, 604 (1940 ) (Stone, C.J., dis se nt in g). D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

488 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 only to the Divine. F reedom of religion can n ever be secure if the state and state institutions, even if supported by the collective will of m ajorit ies , a re a llowed to ign ore t he r igh ts of conscience, for recognition of freedom of conscience lies at the heart of a free and democratic societ y a nd is a check on polit ica l absolutism. As wrote more than a century ago, There will never be a r eally free and enlightene d Sta te un til

the St at e com es t o recognize th e in dividu al a s a higher and independent power, from wh ich all its own power and authorit y are der ived, and treat s him a ccordingly. I please m yself with imagining a State at last which can afford to be just to a ll m en . . . .”36

III. RELIGIOUS LIBERT Y IS THE CORNERSTONE OF ALL CIVIL LIBE RTI ES AND A DEMOCRATIC STATE Recogn it ion of freedom of religion an d conscience is int egra lly rela ted to all other civil liberties and to the maintenance of a fr ee and dem ocratic state.37 This rela tionship arises from the sanctity or intrinsic worth ascribed to the human person (even when personhood is defined in ra dically different ways as in the va riou s r eligiou s t radition s), wh ich ultimately form the basis of all human freedom. It is the sanctity or int rin sic worth of the per son, wh eth er explicitly acknowledged or not, that forms the basis of and constitutional government in which the concept of human rights is accepted as inaliena ble and, ther efor e, a s bin ding on government. Ea ch hum an being h as juridical rights because he or she possesses certain inalienable m oral rights as a person. And basic to all human rights are religious rights, without the guarantee of which all other human rights are in peril.

36. Henry David Thor eau , Es say on C ivi l Di sobed ien ce in 4 THE WRITINGS OF HENRY DAVID THO REAU 356 , 38 7 (19 06). 37. There are those who ar gue t ha t t he ver y concept of civil liberty, like all human righ ts, is “inelimin ably r eligious.” See Michae l J. Per ry, The Idea of Human Rights: Is the Idea of Hum an R ights Inelim inably R eligious? in PROBLEMS AND CONFLICTS BETWEEN LAW AND MORALITY I N A FREE SOCIETY 55-116 (James E. Wood, Jr. & Der ek Da vis eds ., 1994). In th e word s of Per ry, “If the conviction that every human being is sacred is inescapably religious, it follows that the idea of human rights is ineliminably religious, because th e conviction is an essential, even foundational, con st it u en t of t h e i de a .” Id. at 79. D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

479] RELIGIOUS LIBERTY AND CIVIL LIBERTY 489

It was the principle of religious liberty th at gave bir th in the New Wor ld to the fou nding of “the first secular state of modern times.”38 As the founder of Rhode Island, Roger William s insisted th at th e aut hority of th e st at e is “not r eligious, Christian, etc., but natural, human [and] civil,” an d ther efore it is “imp roper” in p roscr ibing conscien ce or religious mat ter s. “All la wfu l magistrates in the world bot h before t he com in g of Christ Jesu s and since,” William s wr ote, “are but derivat ives and agents . . . serving for t he good of th e whole.”39 Williams’ close ass ocia te, J ohn Cla rke, w ho (having petitioned Charles II in 1662 for a charter for Rhode Island) is generally credited with being the “Father of Rhode Island,” argued that “a most flourish ing civil state may stand, yea, and best be mainta ined . . . with full liber ty in religious concernments.”40 The ra tification of the r eligion clauses of the First Amendment more than a century later would come to be widely regarded as constitu tin g th e cornerstone of th e Amer ican Bill of Rights. Today, it is wid ely conceded t hat freedom of religion is a basic civil libert y or hum an righ t. Therefore, it should not be surprising that virtually all types of throughout the world, even th e most totalit ar ian , profess to be democra tic , and a t lea st make the cla im of th eir giving legal recogn it ion to freedom of religion. It may well be said that freedom of religion ha s become a norma tive constit ut ional principle for virtually all modern nation states throughout the world. While there is a sense in wh ich all civil liberties, as with all human rights, both individual and social, may be said to be indivisible, religious libert y constit utes th e corner stone of all other civil liberties and all human rights. This is not in any way inten ded to diminish the critical r ole t o be played on behalf of economic and social rights, as well as civil and political rights, in the overall struggle for human rights, for all human rights are inextricably interrelated. Rather, what is being argued here

38. CARL BRIDENBAUGH, FAT MUTTON AND LIBERTY OF CONSCIENCE SOCIETY IN RHODE ISLAND 163 6-16 90, at 5 (19 74). 39. Roger William s, The Bloudy T enent of Persecut ion , discussed in A CONFERE NCE BETWEEN TRUTH AND PEACE (1644) in 3 THE COMPLETE WRITINGS OF ROGER WILLIAMS (Sa mu el L . Ca ldw ell ed ., 1963 ). 40. 1 ANSON PHELPS STOKES, CHURCH AND STATE IN THE UNITED STATES 205 (1950) (qu oti ng Records of th e Co lon y of Rh ode Is la nd an d P rovid en ce P la nt at ion s). D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

490 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 is that freedom of religion and conscience is fundamental and integral to the advancement of all other human rights because of th eir final grounding in the nature and sacredness of the human person. For this rea son, as is increasingly affirmed in modern and in m uch Christian ecumenical thought, freedom of religion and con scien ce is the cor ner st one of all civil liberties. As Franklin I. Gamwell ha s recent ly wr it ten in this rega rd, the prin ciple of r eligiou s fr eedom cannot be m er ely on e constitutional principle among others; all

im plica tion s taken into account, it is the only constitutional principle. One may even say that r eligious fr eedom is the cons tit ution , in the sense that other constitutional prescriptions are, properly speak ing, stipu lations necessa ry to the full and free politica l dis cour se th at re ligiou s fr eedom constitutes.41

On numerous occasions since Wor ld Wa r II, ecu men ica l conferences, including t hose held even outside th e West , ha ve affirmed that “‘the m ost funda men tal fr eedom is religiou s freedom.’”42 For many , too numerous to be expanded upon her e, fr eedom of religion and con scien ce is the fou nda tion of all other freedoms, and is fundamen ta lly interr elat ed to all other civil liberties . In the words of the Wor ld Cou ncil of Churches, “religious freedom is the condition and guardian of all tr ue freedom.”43 Without freedom of religion , fr eedom of speech, freedom of press, freedom of assem bly, and freedom of association ar e all endanger ed. Without recogn it ion of freedom of religion and conscience, the very right of dissent is seriously threatened, if not denied. In th e words of Cha rles Evan s Hughes, a former Chief Justice of the United States Supreme Cour t, “When we lose t he righ t to be different, we lose t he righ t to be free.”44 Resp ect for religious human rights is profoundly important in the state’s regard for other human rights a nd its view of th e

41. FRANKLIN I. GAMWELL, THE MEANING OF THE RELIGIOUS FREEDOM: MODERN POLITICS AND THE DEMOCRATIC RESOLUTION 162 (199 5). 42. Car rillo de Alborn oz, supra note 18, at 35 (quoting stat ement of the E aster n Asia Con fer en ce, B an gk ok, 194 9). 43. S ta tem ent on Religious Liberty, in MINUTES AND REPORTS , CENTRAL COMMITTEE OF THE WORLD COUNCIL OF CHURCHES 15 (194 9). 44. 2 Stokes, supra note 40, at 462. D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

479] RELIGIOUS LIBERTY AND CIVIL LIBERTY 491 worth of its individu al citizens. In deed, by respecting religi ous rights, the state is giving substantive expression to its regard for the dignity a nd worth of it s citizens. Su ch recogn it ion is not only an acknowledgment of th e st ate’s lim it ed polit ica l authority, as against the claims of the totalit ar ian stat e, but is likely to resu lt in giving far great er recognition to other human rights, both civil and political, and economic an d social. It is en tir ely rea son able to ar gue, a gain in the words of th e late A.F. Carr illo de Albornoz, that respect for t he high est v alu es of loya lties of m an (wh ich are

the re ligiou s on es ) will be the final “test” and also the best gua rantee of th e r espe ct for all oth er hum an va lues. If, for instan ce, a totalitarian state does not recognize even the most sacred sph ere of religion and the most intimate human autonomy, it will most pr obably n ot stop before other less important values and less intimate sph eres. In this sens e it seems per fectly correct to affirm th at , if society does not respect religion and its liberty, one does not have any security that th e rest will be respected.45

With the adopt ion of the Decla ration on the E lim in ation of All Forms of Intolerance and of Dis crim in ation Ba sed on Religion or Belief, th e Un ited Nations wen t out of its way to note th at such discrimina tion mu st be regarded not only as an “affront to human dignity,” but also a “disavowal” of the very principles of the Charter of the United Nations and a violation of the other freedom s guaranteed in the U niversa l De cla ration of Human Rights.46 Religious rights are not only individual, but also corporate and social, since they must include the right of religiou s association and the free exercise of religion within a social context . In su m, r ecogn it ion of freedom of religion and conscien ce is the corn erstone of all huma n r ights—civil, econ omic, and s ocial—and quintessentia l for the emer gen ce of a free an d dem ocrat ic sta te in which respect for both individual and social rights for all are assured.

45. Car rillo de Alborn oz, supra note 18, at 41. 46. Declar ati on on t he E limin ation of all Forms of Intolerance and Discrim in ati on Ba sed on R eligi on or Bel ief, GA Res. 36/55, U.N . GAOR, 36th Sess ., Supp. No. 51, at 171, U.N. Doc. A/36/51 (1981) [hereina fter Declarat ion on R eligi on or Bel ief]. D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

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IV. RELIGIOUS LIBERTY AS THE BASIS OF ALL CIVIL LIBERTY AND A DEMOCRATIC STATE IS TOD AY WIDELY RECOG NIZED IN INTERN ATIONAL LAW AND ECCLESIASTICAL PRONOU NCEM ENTS Dur ing the past half cen tury, fr eedom of religion and conscien ce has been given international recognition in the norms of international law and international agreements and in international ecclesiastical pronouncements. Indeed, this year marks the fiftieth anniversary of the adoption by the United Nations of The Universal Declarat ion on Hum an Right s, with its specific references to freedom of religion and conscience, preceded four months earlier by a decla ration on freedom of religion and con scien ce by t he Wor ld Cou ncil of Churches. In international la w, a s n oted ea rlier, fr eedom of religion and conscien ce wa s explicit ly a ffirmed by the United Nations as an international standard among signatory nation-states with The Universal Declaration of Human Rights (1948),47 The International Covenant on Civil and Political Rights (1966),48 The International Covenant on Economic, Social, and Cultural Right s (196 6),49 and The Declarat ion on the E liminat ion of All Forms of Intolerance and of Discrimination Based on Religion or Belief (198 1).50 In addition to these, The Principles of the 51 Helsinki Final Act (1975), an inter national agreemen t ratified by thirty-five signatories of Europe, a lon g with Canada and the United St ates, a lso in clu des con cer ns for freedom of religion and conscience in its human rights provisions. Although freedom of religion was long a dvocated by individua ls an d religious dissenters, who at least sought religiou s freedom for t hem selves, freedom of religion was nowhere legally realized unt il the modern era a nd, even toda y, is far from bein g a realit y in most of today’s world. As late as World War II, as one worldwide study declared, “[N]o writer asserts that there is a gen er ally accepted pos tula te of international law that eve ry State is under legal obliga tion to

47. Universal Declar ati on, supra note 20. 48. ICCPR, supra note 21. 49. ICES CR, supra note 22. 50. Declar ati on on R eligi on or Bel ief, supra note 46. 51. Con fer en ce on Security and Cooperation in Eur ope: Fina l Act (197 5), repr in ted in 14 I.L .M. 192 3 (19 75) [h er ein aft er Fi na l Act ]. D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

479] RELIGIOUS LIBERTY AND CIVIL LIBERTY 493 accord religious liberty with in it s jurisdiction.”52 Today, however, freedom of religion and con scien ce h as com e to be recognized as an accepted postulate in interna tional law. It is of profound historical sign ificance t ha t following t he orga niza tion of the U nit ed Na tion s in 1945, concer ted effor ts were soon direct ed towa rd both the formulation of the principle of freedom of religion and conscience as a fundamental right to which all member nations were to subscribe and recognition of the vital relationship of this principle to relat ions between states. As is well known, one of the basic principles included in the Charter of the United Nat ions is th at of “th e dignity a nd equality inherent in all human beings.”53 Therefore, all member nations “pledged themselves to take joint and separate action in cooperation with the Organization to promote and encourage universal respect for an observance of human rights and fundamental freedom s for all wit hout dist inction as to race, sex, lan gua ge, or religion.”54 Three years after its founding, the United Nation s General Assembly adopted Th e U niversa l De cla ration of Human Rights in which it gave specific atten tion to a person’s right to religion as a basic human right.55 Article 2 affirm ed tha t ever yone is entitled to all the rights and freedoms in the Decla ration without respect to religion .56 Article 18 declared, “Everyone has the right to freedom of though t, conscience, an d religion; this righ t includes freedom to cha nge his religion or belief, an d freedom , eit her alon e or in community with others and in public or private, to man ifest h is religion or belief in t eaching, practice, worship an d obser vance.”57 In various forms, this portion of the Decla ration has been in corporated into the national constitutions of many nations throughout the world, particularly in the n ations that have emerged since 1948. After more than three decades of ongoing consultation and negotiation, the United Nations Assembly in November 1981 adopted the Decla ration on the E lim in ation of all F orms of

52. BATES, supra note 3, at 476 (quotin g NORM AN J. PADELFORD, INTERNATIONAL GUARANTEES OF RELIGIOUS LIBERTIES (194 2)). 53. U.N. CHARTER art. 56. 54. Id. 55. Universal Declar ati on, supra note 20. 56. Id. art . 2. 57. Id. art . 18. D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

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Intolerance and of Discrimination Based on Religion or Belief, 58 in which the r eligiou s r igh ts of Th e U niversa l De cla ration of Human Rights were reaffirmed and expanded. The 1981 Decla ration categor ica lly decla red that “no on e shall be subject to discr im in ation by a ny State, inst it ution , gr oup of p er son s or person on grounds of religion or other beliefs.”59 Such discrimination, the Decla ration went out of its way to note, must be rega rded n ot only a n “affr ont” to human dignity, but also a “disavowal” of the principles of the Charter of the United Nations and a violation of the freedoms guaranteed in the Universal Declaration of Human Rights. Thus, at long last, freedom of religion an d conscience was given explicit an d unequivocal recognition in the family of nations as an inviolable and sacred human right. The growing recogn it ion of freedom of religion and conscien ce in in ter nation al la w h as been accompa nied by broad ecumenical end orsement s of the pr inciple by the churches—Ca tholic, Pr otest an t, and Ort hodox. With the convening of the F irst Assembly of th e World Council of Churches in Amsterdam in 1948, a clea r voice for freedom of religion and conscience was sounded in a document titled Decla ration on Religious Liberty. The Declarat ion called on the churches to support ever y en dea vor t o secu re wit hin an int erna tion al bill

of rights adequate sa fegu ar ds for fr eedom of re ligion an d conscience, inclu din g rights of all men to hold and cha ng e the ir faith, to exercise it in w orship and practice, to teach and persuade oth er s, a nd t o de cide on th e r eligious ed ucat ion of their children.60

The Decla ration further ass er ted that religiou s liberty is “an essent ial element in a good international order . . . [t hat should be] everywhere secured. In plea ding for th is freedom,” th e Declaration declared, “[Christia ns] do not a sk for an y privilege to be granted to Christians that is denied to others.”61 Adopted unanimously, the Amsterdam Declaration remains a landmark in the history of freedom of religion and conscience and must be

58. Declar ati on on R eligi on or Bel ief, supra note 46. 59. Id. art . 2. 60. FIRST ASSEMBLY OF THE WORLD COUNCIL OF CHURCHES, supra note 26, at 97. 61. Id. D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

479] RELIGIOUS LIBERTY AND CIVIL LIBERTY 495 credited with having influenced the United Nations in its final adoption a few m onths later of Th e U niversa l De cla ration of Human Rights.62 Subsequent assemblies of the World Council of Churches have not only reaffirmed t he Amst erdam Declar at ion but h ave continued to give voice to the Council’s commit men t to religiou s rights and religious freedom. Likewise, t he endor semen t of freedom of religion and con science by th e Roman Ca th olic Church in Vatican II remains a significant chapter in the advancement of freedom of religion and conscience. Affirming bot h the natural right of corporate religious freedom as well as individual religious freedom, Vatican II declared that “the right to religious freedom h as its foundation in the very dignit y of th e human person” and that a person “should not be coerced to act against his own conscience, nor be impeded t o act a ccording t o this conscience” and religious communities “have the right not to be hinder ed from publicly teaching and testifying to their faith both by the written and the spoken word.”63 It is well to remember that historically, pleas for freedom of religion an d conscience have come primarily fr om religiou s minorities and dissenters, the religiously disenfranchised and persecuted, and not from religious majorities which enjoyed state patronage and support. At the same time, it should be noted that the m ajor advances towa rd t he r ecogn it ion of freedom of religion and conscience in the modern world have come not from religiou s con fessions of fa it h, ecclesia st ica l councils or synods, but from constitutions, legislat ive bodies, and courts of law. After the Middle Ages, the emergence of new nation-states and a new nation al spirit weaken ed the polit ica l power of old religious esta blishmen ts to a degr ee from wh ich they could generally not recover. In widely varying degrees, freedom of religion became in exor ably lin ked to the modern democrat ic state. In the twentiet h cen tury, a mong bot h communities of faith and nation-states throughout the world, a br oad consensus gradually evolved toward support of the

62. See generally OTTO FREDERICK NOLDE, THE CHURCH AND THE NATIONS 149-69 (1970) (setting forth the role of the churches in the formation of the United Nations and their influence in the Un ited Nat ions’ adoption of the Un iversa l Decla ra tion of Human Rig ht s in 194 8). 63. The Declar ati on on Rel igiou s Fr eedom , 11 POPE SPEAKS 84-9 4 (19 66). D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

496 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 principle of freedom of religion and con scien ce, a t lea st in som e form. Legal recognition of freedom of religion and conscience has been particularly aided, both in principle and in practice, by international rela tion s t hat result ed in the r atifica tion of treaties between stat es. As one major study on religious liberty written fifty years ago declared, “[I]nternational law and religiou s liberty grew in intimate association.”64 The study found that a substantial majority of the writers of general treaties on international law following t he tim e of , long recognized for his work as a codifier of international la w, s pecifica lly referred to freedom of religion in th eir documents. In th e nin eteenth cent ur y, with sovereign states identified with different religious traditions, it became common in the drawing u p of t rea ties to in clu de pr ovis ion s granting the right of re ligiou s expression to the n ation als of each contracting party in the territory of the other. Since these foreign nationals wer e identifiable by both their nationality and th eir religion, it was in evitable that sp ecific sa fegu ards came to be provided for freedom of religion an d conscience, worship, and religiou s work “upon the same terms as nationals of the state of residence,” to use a phrase common to many of these int erna tional t reat ies wit h provisions of religious liber ty. There are many examples of th e r ole of inter nation al agreement in the a dvance of fr eedom of religion and conscience. The Treaty of Berlin in 1878 at the close of the Russo-Turkish War, with its p rovis ion s for the equ al r igh ts of r eligiou s minorities, ha s been called “the most importan t single exp ression of intern at ional agr eement for r eligious liberty” prior to the post-World War I era.65 Similar guarantees of religiou s freedom were embodied in t he General Act r elatin g to Africa n Possessions66 and the Minorities Treaties of 1919-23 following World War I.67 Of specia l h istorica l sign ifica nce is the

64. BATES, supra note 3, at 476. From t his stu dy, Bates observed, “[A] review of the forty-seven writers of the more importan t genera l treatises on international law, following t he t ime of Grot ius, sh ows th at [a] full thirty r efer t o religiou s liber ty.” Id. 65. Id. at 478. 66. General Act of the Ber lin Conference Respecting t he Congo, Feb. 26, 1885, 165 Consol. T.S. 485. 67. See RICHARD B. LILLICH & HURST HANNUM, INTERNATIONAL HUMAN RIGHTS D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

479] RELIGIOUS LIBERTY AND CIVIL LIBERTY 497

European Convention for the Protection of Human Rights and Fundamental Freedom s of 1953, w hich decla red that “ever yon e has th e right to freedom of thought , conscience, and religion.”68 Still later , thirty-five nat ion-states in 1975 signed the Helsinki Final Act (The F ina l Act of the Conference on Securit y an d Cooperation in Eu rope), in wh ich religious righ ts were made an integral part of a major international agreem ent between th irt y-five nations of Europe, Canada, and the United States. Principle 7 of the document gives special at tention to “respect for human rights and fundamental freedoms, in clu ding fr eedom of thought, conscience, religion, or belief.”69 Meanwh ile, m ore and more sta tes th roughout th e world volunt ar ily ent ered into constitutional and t rea ty com mit men ts t o secure fr eedom of religion an d conscien ce for th eir own citizens as w ell as for foreign residen ts. Wit h the in crea singly wid e ge ogr aph ica l dist ribu tion of adherents to th e world’s major religions, t he religion s themselves challenged those national policies that denied religious rights to their adherents and faith communities. Indeed, the principle of fr eedom of religion and con scien ce has increa singly becom e on e of t hose axiomatic commitments that is almost universally recognized. In at least some modified form, the principle of freedom of religion has come to be affirmed by virtually all national governments throughout the world. Even wh er e h igh ly r estrict ive, gu arantees of fr eedom of religion now a pp ea r in alm ost all n ation al con st it ution s throughout the world.70

324 (3d ed. 199 5). 68. Con ven tion for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 9(1), 213 U.N.T.S. 222. 69. Final Act, supra note 51, at 1295. 70. A somewh at ra ndom sam pling well illu str at es th is am ong th e following countr ies. EUROPE: CONST. BULG. art . 37 (199 1) (“Fre edom of conscien ce, fr eed om of thought, an d choice of religion or r eligious or atheis tic v iews ar e in viola ble. ”); CONST. F.R.G. ar t. 4 (19 91) (“Fre edom of fa it h a nd cons cien ce as well as freedom of creed, religious or ideological (wel ta ns cha ul ich ), ar e in viola ble. ”); Soviet La w on Fr eed om of Con scie nce and Religion art. 1 (1991) (“Esta blishes guara ntees of th e r ea liza tion of human righ ts t o freedom of conscience a nd fre edom of religion .”); CONST. SPAIN art. 16.1 (1978) (“Fr eedom of ideology, religion a nd cult of individuals and commu nities is gua ra nt eed . . . . ”). AFRICA AND T HE MID DLE EAS T: CONST. ALG. art. 36 (1 989 ) (“Th e fr eed om of cons cien ce an d t he fre edom of opin ion a re inv iola ble. ”); CONST. EGYPT art. 46 (1971) D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

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Nonetheless, freedom of religion and r espect for freedom of conscien ce remain far from realized in most of today’s world. While freedom of religion is a lmost universally recognized de jure, th e principle is by no mean s recognized de facto in most of today’s world. Ironically, the very century that has witnessed the em er gen ce of fr eedom of religion and r eligiou s h uman rights as norms in inter na tional law and in most of the constitutions of the world has been the very century in which religiou s rights and religious freedom ha ve repea tedly and flagrantly been violated on a wh oles ale s cale t hrough out much of the world. For the fir st tim e in human history a nd for much of th is cent ur y, numer ous govern men ts came int o power wit h a sworn hostility to religion and expressly dedica ted to the er adication of all r eligion . Meanwhile, in m ore r ecent years, new of both old and new nation-states have come int o being which recognize freedom of religion as crucial to a democratic state. This was seen most recently in th e debates on religious human rights surrounding the emer gin g de mocra cies of Ea stern or the New Europe. Throughout t he New Eu rope, for example,

(“The Sta te sh all gua ra nt ee th e freedom of belief and t he fre edom of pra ctice of religious rit es. ”); CONST. ISR. (1949 ) (sta tin g Is ra el “will g ua ra nt ee fr eed om of r eligi on, conscience, language, edu cat ion, an d cu ltu re ”); CONST. NIG. art. 35 (1979) (“Every person sh all be e nt itl ed t o fre edom of th ough t, con science an d r eligi on.”); CONST. S. AFR. art. 15.1 (1993) (“Every one ha s the ri gh t t o freed om of con science , re ligion , thought, belief an d opinion .”). ASIA AND O CE ANI A: CONST. AUSTL. ch. V (198 6) (“The Com mon wea lth sh all not make an y la w for esta blishin g any religion, . . . or for prohibiting the free exercise of an y religi on . . . .”); CONST. INDI A art. 15. 1 (19 50) (“ Th e St at e sh all not dis criminate aga ins t a ny citi zen on gr oun ds on ly of religi on . . . .”); CONST. INDON. art. 29.2 (1945) (“ The State shall guaran tee the freedom of the people to profess and to exercise t heir own re ligion .”); CONST. JAPAN art. 20 (1947) (“Fr eedom of religion is guara nteed to a ll.”); CONST. S. KORE A arts. 19, 2 0.1 (1988) (“All cit izen s sh all en joy fre edom of conscien ce”; “All citize ns sh all en joy fre edom of re ligion .”); CONST. SRI LANKA art. 10 (19 45) (“Eve ry per son is e nt itl ed t o fre edom of th ough t, con science and re ligion . . . . ”). AMERICAS: CONST. BRAZ. art. 5. 6 ( 19 88 ) (“[ F ]reedom of conscience and of belief is inv iola ble . . . .”); CONST. CAN. art. 2 (1982) (“Ever yone ha s . . . fr eed om of cons cien ce and r eligion . . . .”); CONST. CHILE art. 19 (1 980 ) (affi rm in g “[f]re edom of conscience, ma nifest at ion of all creeds , and th e free exercise of all cul ts ”); CONST. CUBA art. 55 (1 992 ) (“Th e St at e . . . r esp ect s a nd guar an te es t he fre edom of cons cien ce an d r eligi on”); CONST. ECUADOR art. 19. 5 (19 95) (affi rm ing “freed om of cons cien ce an d r eligi on, i nd ividua lly a nd collect ively ”); CONST. PARA. art. 24 (1992) (“Freedom of religion, worship, a nd ideology is he re by r ecogn ized wit hou t a ny restrictions oth er th an th ose es ta bli sh ed in th is C onst it ut ion an d t he la w.”). D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

479] RELIGIOUS LIBERTY AND CIVIL LIBERTY 499 constitutional reform commissions ha ve been involved in addressing questions of freedom of religion and conscience, alon g with a broad range of other human rights. In some countries, per ma nent stan ding commit tees h ave been na med by parliaments to address question s r ela tin g t o new la ws on religion on an ongoing basis. While th ere are many complex and difficult questions yet to be resolved in th e face of counter forces of resistance, t he subject of freedom of religion and con scien ce has becom e, a s n ever before, a subject that is coming to be viewed, at least by some, as crucial to the movements of nations toward democracy and freedom. Among the questions inext ricably intertwined wit h freedom of religion and conscien ce is one of ethnic id en tit y, which in many countries throughout the world is virtually conterminous with the rights of religious minorities.

V. CONCLUSION The issue of religious and civil liberty is one of growing sign ifica nce in today’s world. The growth of cultural and religiou s pluralism is wor ldwid e a nd con st it utes one of the major challenges facin g vir tually all n ation s a nd throughout the wor ld toda y. Religiou s libe rty h as becom e particularly crucial with t he emergen ce of religious plu ra lism throughout most of the world. As one scholar recently wrote, “[R]eligious freedom legit im ates an in deter min ate plu ralit y of religions.”71 The increasing pr esen ce of mu ltiple faiths in increasingly secula r societ ies makes religiou s isolation impossible and inter faith en counters inevitable. The worldwide dist ribu tion of faith commu nities of virtua lly all of the major religiou s tr aditions ha s exacerba ted th e concern of virt ua lly all nations an d religions for gua ra ntees of freedom of religion and the pr otect ion of the r eligiou s r igh ts of on e’s own adher ent s in part icular an d for religious minorities in gen era l. The call for th e recognition of religious liberty in th e world community needs to be sounded not only by nation-states, based upon instruments of national and international law, but also by th e religions themselves. The in ter nation al dim en sion of

71. GAMWELL, supra note 41, at 153. For a r ecen t con st ru cti ve t he ologica l understanding of this phenomen on, see JACQUES DUPUIS , S.J ., TOWARD A CHR ISTI AN THEOLOGY OF RELIGIOUS PLURALISM (199 6). D:\ 1998-2\ FINAL\ WOO-FIN.WPD Ja n. 8, 2001

500 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 the major world religions holds the promise of effecting important gains not only for the advancement of freedom of religion , but also for genuine interfaith dialogue and colla bor ation on b eh alf of freedom of religion for all and th e building of a world commun ity. Religious libert y, like world peace, is not only a moral imperative worthy of universal support of nation-states and religions around the world, it also needs to be seen as essential for the emergence of civil liberty and the creation of a world community that may well prove to be crucial to the survival of the human family. It is to be ferven tly h oped t hat the words of the Charter of Paris for a Ne w E urope, sign ed by t hir ty-fou r mem ber nation s of the Helsinki Final Act in which freedom of religion and other fundamental freedoms are made “the birthright of all human beings . . . inalienable, guaranteed by la w,” m ay be come realized throughout the world.72

72. Char ter of Par is for a New Eur ope, A New Era of Democracy, Peace and Un ity, Nov . 21 , 19 90, 30 I .L. M. 1 93 (1 990 ).