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Freedom of Religion and the State The Catholic Lawyer Volume 11 Number 4 Volume 11, Autumn 1965, Number 4 Article 3 Freedom of Religion and the State Orio Giacchi Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Catholic Studies Commons This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. FREEDOM OF RELIGION AND THE STATE' ORIO GIACCHI* Introduction I WOULD LIKE TO BEGIN my treatment of the subject of religious liberty with a reference to an ancient text, the crude but picturesque lan- guage of which seems to express all the problems concerning the rela- tion between the State and religious freedom. The great King Nebuchadnezzar had three young Jews, Shadrack, Mishak and Abednego, thrown into a fire, but the flames did not harm them. Taken by surprise, impressed with the courage of the three young men, and in terror of a God more powerful than the King, Nebuchad- nezzar exclaimed: "Blessed be the God of Shadrack, Mishak and Abed- nego, He Who has sent His angel and freed His servants who, trusting in Him, have disobeyed the king and have risked their lives rather than serve or adore a God other than their own. I proclaim to all peoples and nations that all those who speak disrespectfully of the God of Shadrack, Mishak and Abednego be condemned and their homes be destroyed." In the first part of Nebuchadnezzar's brief statement, do we not recognize the language of the Edict of Constantine which praised the Christian heroes of the persecutions? Is there not also an obvious re- spect for courage such as that which inspired Napoleon to seek a Concordat with Pius VII? On the other hand, does not the second part of this discourse seem to suggest the undeniable oppression of religious liberties under the Christian Roman Empire and, later, under the Catholic princes of the Age of Absolutism? With respect to the history of religious liberty it is necessary, above all, to establish one essential fact. That is, there exist three different ways of understanding the principle of religious liberty and, if one confuses them, an understanding of the historical development of this great concept becomes impossible. t Paper delivered on the occasion of the Fifth International Congress of Catholic Jurists at Salamanca, Spain, September 8-12, 1965. Spanish Manuscript translated by Martin I. Solomon, B.A., Queens College; M.S., St. John's University; and Anthony J. Indence, Jr., B.A., University of Notre Dame; LL.B., St. John's Uni- versity School of Law. * Professor, Catholic University of Milan. 11 CATHOLIC LAWYER, AUTUMN 1965 These three interpretations of religious lib- dom is understood by Christianity. This erty are as follows: interpretation has been given very explicit and clear recognition, especially in the I. Religious liberty conceived as a encyclical Pacem in Terris. Furthermore, natural right of the human being to it is a point that is definitely implicit in search for and uncover the truth. the teachings of the Church. This natural right is to be accorded respect, free from any temporal In the second sense, the understanding power or authority that would seek of religious freedom is directed strictly to to force the individual to support the object of thought and of the faith. It or accept a faith other than that is understood, above all, as freedom for to which he has been led by an the truth. Thus it is that the exclusion of exercise of his free will. force from the spiritual domain is, at least in the first instance, merely the result of II. Religious liberty considered merely the need for a voluntary adherence to the as the right of a man to give public thought and the faith wherein is reflected or private expression to the doc- the one truth. Furthermore, it is understood trines of the one true religion, to- that tolerance is accorded unbelievers for gether with a tolerance for those this reason and by factors of an extrinsic who in good faith remain outside and contingent character, such as historical the truth simply because they have and local circumstances. never received it. There is also The third interpretation of religious lib- tolerance with regard to heretics erty is closely linked with a particular con- and schismatics, when such is re- cept of religion and of thought, i.e., the quired by historical or local cir- sceptical idea that either truth does not cumstances and, then, always with- exist or that it is unknowable; or that it in the limits of the common good. is at least not one, but rather composed of III. Religious liberty understood as the several parts no one of which contains the right of each man to think, believe, whole. pray and otherwise worship in the The history of religious freedom begins belief that he has chosen, inasmuch with the affirmation of the principle as as there exists no truth, one and understood in the first of the three senses immutable, or it is at least not referred to above. In the Acts of the Apos- possible to derive, in the temporal tles, the statements of the Fathers of the order, any consequence from its Church during and after the persecutions, existence. and also in the Edict of Constantine, it has It can be said that, in the first sense, re- always been declared necessary that man ligious liberty is understood ex parte sub- obey God rather than other men. It has jecti and is considered a consequence of been stated that this is the natural right of the spiritual freedom of the individual. a man quod putaverit colere that unus- Such an interpretation of religious liberty quique nulla servitatis necessitate adstric- rejects the intervention of any influence of tus, integrum habeat vivendi arbitrium. a temporal nature in the domain of the This correct understanding of the prin- spirit. It is in this sense that religious free- ciple of religious freedom was courageously CONGRESS OF CATHOLIC JURISTS affirmed by the Church throughout the faith considered to be the only truth, main- first centuries and also after the persecu- tained, as had the decadent pagans, that the tions. It has found an evident and direct mystery of invisible truth was so great echo in Pacem in Terris, after having been and so profound that no man could reveal obscured since the time when St. Augus- it nor could any earthly authority teach it. tine verified the apparent efficacy of the These were the Anabaptists, the Socinians, use of civil authorities against heretical and the Arminians. movements that destroy, along with the It was only natural that, having these faith, all moral principles, whether indi- convictions, these groups would ask for and vidual or social. With Augustine there proclaim freedom for all religions. Some of appeared a second and very different inter- these groups, somewhat incoherently, pretation of religious liberty, based funda- limited this propagation of religious liberty mentally on the concept of "freedom for to Christian cults. To these affirmations of the truth," together with a regard for free- religious liberty have been attributed, to a dom in the act of faith, for the good faith large extent, the credit for having first an- of those in error and for the exigencies of nounced the great principle of religious the common good. freedom. However, it is not difficult to see By means of certain theological doc- that these statements were the logical re- trines that grew out of the development sult of a particular opinion (i.e., that truth of canon law, this limited recognition of was not one), rather than a broad affirma- freedom for unbelievers was still more tion of the individual's natural right to strictly and rigorously interpreted during pursue the truth freely. the twelfth and thirteenth centuries. St. In addition to the syncretic movements Thomas Aquinas, at least in certain re- mentioned above, the principle of religious spects, reacted against this tendency toward liberty was broadly asserted by the English strict interpretation and repeated, with liberals and by the revolutionary move- particularly important consequences, the ment in the American colonies. For Eng- reasons for tolerance toward those outside lish Liberalism, beginning with John the faith. Locke, religious freedom was merely the The Renaissance and the Protestant result of the separation of the State from Reformation did not bring any change to religion and the consequent indifferentism the very strictly limited understanding of of the State with respect to spiritual religious liberty. What is more, Luther and matters. In the New World, on the other Calvin, in different ways, made their own hand, the principle was understood more contributions to the already general climate in relation to the liberty of the individual of persecution regarding those who did not and the natural rights of the human being, think and believe as did the majority of the without postulating in any way the im- populace. possibility of absolute truth or the indif- Among the numerous groups that were ference of the State with respect to it. born during the Reformation, or rather In this sense, the most concrete decla- from the consequences of the fracture and ration of the principle of religious liberty separation that it had brought, there were was that formulated by the first Catholic- some who, far from defending a particular American colony, Maryland, in its Act of 11 CATHOLIC LAWYER, AUTUMN 1965 Tolerance, dated April 21, 1649.
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