The Blessings of Liberty John Witte, Jr

Cambridge University Press 978-1-108-42920-7 — The Blessings of Liberty John Witte, Jr. Index More Information

Index

Abington Township School District v. Schempp, Anglo-Saxon law, 25–26, 73 174–75 animal slaughtering, 277–82 abortion, 161–62, 293–94 Armenia, 237–38 accommodationism, 180–83, 185–87, 194–95 Ashley, Francis, 51 Achatzi, Markus, 272–73 association, freedom of Achbita v. G4S Secure Solutions, 266–67 in European Convention, 233, 234, 243, 250, Acton, Lord, 16 251 Adams, John in US Supreme Court cases, 178, 180 on American experiment, 155–56, 170 asylum, 282–85 on “blessings of liberty,” 1 n 2 atheists, 98, 113, 159, 241 on checks and balances, 141 Augsburg Confession, 77 on religious establishment, 112–15, 136–37 Australia, 292–93 on religious pluralism, 157 Austria, 272–73 role in Massachusetts state constitution, 64, autonomy. See religious autonomy 105–6, 107, 109, 111, 112, 125 n 69 Adams, Samuel, 112 Backus, Isaac, 110–11, 124, 125 African Charter on Human and People’s Rights Bahtiyar Fathi v. Predsedatel na Darzhavna (1981), 43 agentsia za bezhantsite, 283–85 African-Americans, 1, 190, 192–93, 294 bail, 65, 151 Aguilar v. Felton, 185 Bailyn, Bernard, 16 Ahmadis, 282–83 Baltimore, Lord, 62 Ahmet Arslan v. Turkey, 248–49 Bangladesh, 295 Alden, Noah, 120 baptism, 32 Althusius, Johannes, 16, 33, 97–100 Baptists. See also Anabaptism Alvare´, Helen, 293–94 exemptions in Maryland state constitution, American Convention on Human Rights (1969), 4, 147, 148 37, 43 opposed to incorporation of churches, 119 Amish, 183, 298 opposed to religious establishment, 90–91, Anabaptism, 31–32, 77, 78, 80, 89–91, 125 110–11, 125 Anglicanism Barnes v. Falmouth, 129–31, 133 and American founders’ view of religious Barth, Karl, 16, 76 establishment, 154 Bartholomew (Ecumenical Patriarch), 15 anti-Anglican provisions of Massachusetts state Bayatyan v. Armenia, 237–38 constitution, 113 Beale, Robert, 50–51 disestablished during English Revolution, 56 Beil, Kristin, 192 in Maryland, 147 Belgium, 266–67, 269, 277–81 origins of, 31, 77 Benedict XVI (pope), 17 and repression of other religions in England, 49, Beza, Theodore, 96, 101, 102, 103 98, 153 Bible. See also Decalogue

304

Index 305

foundational teachings on rights and liberty, capital punishment, 59, 65, 245 17–23 Casas, Bartolome´ de las, 28–29 ground of rights for early Protestants, 30–31, Cassin, Rene´, 36 33, 80 Catholicism. See also canon law; on just judgment, 73, 302 concordats moral teachings of Jesus, 21–22, 297 and employment discrimination cases, 192, on obedience to authority, 101, 111 271–72 promoted during Great Awakening, 32 anti-Catholicism in America, 113, 144, 197 read in US public schools, 174 anti-Catholicism in early modern Europe, 57, sola Scriptura, 80 98, 153 on taxes, 202–3 Catholic schools, 181, 184, 192, 254–55 versions in Elizabethan England, 49 charitable activities, 207 Bill of Rights (England), 61, 71, 104 conflict between same-sex rights and Catholic Bill of Rights (US). See also individual teaching, 293–94 amendments Protestant rejection of Catholic legal authority, and Magna Carta rights tradition, 71–72 30, 78–80 Christian and Enlightenment influences on, 35 rights and liberties in medieval Europe, 25–30 Christian precedents for, 16 Second Vatican Council, 1–3, 5 ratification of, 150–51 sex abuse scandal, 161, 232 Black. See African-Americans Centraal Israe¨ltisch Consistorie van Belgie¨ and Blackstone, William, 29–30, 47, 70 Others, 279–81, 288 Blaine Amendment, 151 Chang, Peng-chun, 36 Board of Education v. Allen, 182 Charles I (king), 51, 52, 55, 61, 102 Bob Jones University v. United States, 192–93, Charles II (king), 61 198, 224 charters. See also Magna Carta Bohatec, Josef, 16 Anglo-Saxon, 25–26 Bosnia and Herzegovina, 249–50 colonial, 61–70, 107 Bostock v. Clayton County, 193 medieval, 29–30, 47 Boston, 111, 121, 125 Chechnya, 295 Bougnaoui v. Micropole, 267–69, 287 children, rights of Bowdoin, James, 112, 127 biblical foundations of, 21–22 Brexit, 229, 230, 260 in Massachusetts Body of Liberties, 67 Bulgaria, 283–84 religious rights of students, 39, 40–41, 42, 181, Bundesrepublik Deutschland v. Y and Z, 282–83 239–42, 256 Burma, 295 Christ. See Jesus Christ burqa, 248, 268, see also religious dress Christian Legal Society v. Martinez, 162, Burundi, 295 179–80, 193 Burwell v. Hobby Lobby, 162, 168 Church Fathers, 12, 14, 20, 25, see also Tertullian Church of Lukumi Babalu Aye, Inc. v. City of Calvin, John, 16, 30, 33, 79, 93–96 Hialeah, 281 Calvinism. See also Puritans churches. See separation of church and state; Geneva as model of government, 77, 92–93 tax exemption for religious property; governance by consistories, 32 church–state relations on natural law and natural rights, 33, 92–104 church–state relations. See also separation of origins of, 77 church and state; establishment of persecution of Calvinists, 93, 98, 100, 153 religion tolerated after Peace of Westphalia, 31 and trends in Luxembourg Court canon law jurisprudence, 289 and human rights, 16 biblical foundations of, 22–23 biblical foundations of, 20 church rights defined in Magna Carta, 46, on due process, 73–74 48–49, 73 Protestant rejection of, 30, 78–80 early Protestant political theories, 30, 79–81 rights and liberties in medieval period, 26–29 early Protestant theories of, 92–93 Cantwell v. Connecticut, 158–60, 197 freedom of the Christian, 30, 79, 87

306 Index

church–state relations (cont.) in Massachusetts Body of Liberties, 66 freedom of the church (libertas ecclesiae), 6, 26, in modern European law, 237–39, 240 27–28 in modern human rights documents, 40, 262 civil authority pacifism of Anabaptists, 90 abuses by English kings, 51–53, 70 consistories, 32 and people’s right to resist tyranny, 60, 72, 74, Constantine (emperor), 23, 24, 139 87–89, 97, 100–4 constitutions. See also charters; Massachusetts state early Protestant reformers on duties of constitution (1780); United States magistrates, 82–83, 85–86, 96 Constitution God as source of, 81, 82, 93, 111, 202 Australian constitution lacks a bill of rights, 293 power derived from people, 60 biblical precedent for, 20 role in covenant community, 60, 102 checks and balances in, 100 Civil Rights Act (1964), 1, 5, 190, 193, 267, 294 Christian and Enlightenment influences on civil rights movement, 1, 294 eighteenth-century constitutions, 35–36 clergy and ministers early Calvinist calls for, 99–100 as state officials under religious foundational principles in US state establishment, 205 constitutions, 145–49 excluded from political office, 143 and Magna Carta rights tradition, 70–72 freedom of churches to appoint their own Massachusetts Body of Liberties as early leaders, 40, 42, 58, 68, 113, 128–29 constitution, 69–70 ministerial exception, 191–92 proposed EU constitution, 231 rights of clergy in medieval canon law, 27–28 and special protection for religion, 156–57, 158, tax exemptions for, 204, 205 162–64, 293 Cochran v. Board of Education, 182 contraception, 162, 293–94 Coke, Edward, 47, 51–55, 61 Convention on the Rights of the Child (1989), Cold War, 229 41, 42 Committee for Public Education v. Nyquist, 184 Copenhagen Document (1990), 40, 42 common law Copts, 249 and tax exemption for religious property, 203–5, Corpus Iuris Civiliis, 24 215, 216–18 Council of Europe, 228–33, 255, 257 compiled in Massachusetts Body of Liberties, Court of Justice of the European Union. See 68–69 Luxembourg Court Magna Carta as rule for, 55 covenants Commons’ Protestation (1621), 52 biblical, 19–20 compelling state interest, 177–78, 188–89, 282 Calvinist theology of, 60, 102 Concordat of Bologna, 79 Massachusetts state constitution as, 115–16, concordats, 254, 289 125, 136 Congo, 295 COVID-19, 161, 171, 230 Congregacioń de Escuelas Pıás Provincia Betania Cranmer, Thomas, 30, 49, 79 contra Ayuntamiento de Getafe, 275–77, 289 creation, 17–18, 59, 72, 84, 174–75 Congregationalists. See also Unitarians; Cresco Investigation GmbH v. Markus Achatzi, Trinitarians 272–74, 288, 289 favored religious establishment in criminal justice system, 294–95 Massachusetts, 106, 111, 125 crucifixes, 242, 257–58 splintered into Trinitarians and Unitarians, 106, Cushing, William, 127 127, 133 Congress, 151–55 Dahlab v. Switzerland, 246 Connecticut, 146 Decalogue, 18–19 conscience. See liberty of conscience compatibility with human rights, 297 conscientious objection displayed in American public schools, biblical foundations of, 22 175 exemptions in US state constitutions, 147, foundation for positive law, 84–85, 86–87 148, 149 source of natural law and natural rights, 30–31, in Fundamental Agreement, 58 82, 84–85, 95–99

Index 307

Declaration of Independence (1776), 1, 70 Egenberger v. Evangelisches Werk fur Diakonie Declaration of the Rights of Man and of the und Entwicklung eV, 269–71, 274, 288–89 Citizen (1789), 16, 35–36 Egypt, 295 Declaration on Religion or Belief (1981), 38, 39–41 Eighth Amendment, 71 Declaration on the Rights of Indigenous Peoples Elizabeth I (queen), 49, 50, 56, 74 (2007), 43 employment Dedham case, 133–34 in Strasbourg and Luxembourg Court cases, Delaware state constitution, 144 238–39, 245, 249, 254–55, 265–75 Dickinson, John, 143 in US religious schools, 189–92 dignity, human, 2, 3, 18, 37 Employment Division v. Smith, 281 discrimination, freedom from. See also racial Engel v. Vitale, 173–74 discrimination English Revolution, 16, 55–61 and autonomy of religious schools, 192–93 Enlightenment, 14, 15, 34–36, 73, 76, 299 biblical foundations of, 21, 298 entanglement, 184, 185, 186, 200, 201, 219 and equal access cases, 179–80 equal access, 176–80, 187–89 in modern human rights documents, 39 Equal Access Act (1984), 178 in Strasbourg Court case law, 238–39, 251 equal protection. See equal access; religious and tax exemption for religious property, equality 192–93, 198 equity law, 205–8, 211, 215, 218–19 and workplace discrimination cases, 191–92, Espinoza v. Montana Department of Revenue, 189 265–75 Establishment Clause divorce, 271–72, 285–86 applied in Cantwell and Everson, 158–59 Dogru v. France, 247 and Lemon test, 183–85 dominium, 24, 27 and objections to constitutional protection of Donahue, Charles, 17 religion, 163 due process. See also procedural rights and public education, 176, 177 in American state constitutions, 71 and religious schools, 182, 183–93 Christian foundations of, 73–74 strong reading by Supreme Court from in Civil Rights Act, 5 1971–1986, 275 compatibility with Christianity, 298 and tax exemptions, 197, 198–202, 220 and crimes by members of religious groups, 166 text of, 153–55, 158 in Fifth Amendment, 5, 71, 150–51 establishment of religion in Magna Carta, 46, 50, 51, 54–55, 63, 65, 73–74 in American state constitutions, 71, 144, 147, 208, origin of, 29 see also Massachusetts state constitution in Petition of Right, 52 (1780) Anabaptist teachings against, 90–91 Eastern Orthodoxy and US Constitution. See Establishment disadvantaged in Strasbourg Court Clause decisions, 257 disestablishment as foundational American migration to Western Europe, 230 principle, 143–45, 153–54 proselytism in historically Orthodox countries, in England, 53, 56, 203–5 245, 253–54, 256–57 in France, 98 theology of human rights, 12 Luther and Melanchthon’s positions on, 85–86 Edgar II (king), 26 in modern Europe, 233–34 Edict of Fontainebleau, 98 and tax exemptions in common law, 203–5, 216 Edict of Milan, 24, 139 Europe. See Council of Europe; Strasbourg Court; Edict of Nantes, 77, 98 European Union; Luxembourg Court education. See schools (public); schools European Convention on Human Rights (1950) (religious); homeschooling as international human rights norm, 4, 37, 43 Education Consolidation and Improvement Act on public manifestation of religion, 243–50, (1981), 186 279 Edward II (king), 26 referenced in EU Charter of Fundamental Edwards v. Aguillard, 174–75 Rights, 263 EEOC v. Abercrombie & Fitch Stores, Inc., 266–67 religious freedom provisions of, 227–28, 233–36

308 Index

European Convention on Human Rights (cont.) Fortescue, John, 59 on rights of religious groups, Fortin, Ernest, 16 250–54 Fourteenth Amendment on rights of thought, conscience, and belief, and civil rights movement, 1, 5 236–43 and equal access cases, 177 European Court of Human Rights. See Strasbourg and longstanding tradition, 221 Court Bill of Rights incorporated into, 158–59, 264 European Union, 259, 279, see also Strasbourg Fourth Amendment, 71 Court; Luxembourg Court France Charter of Fundamental Rights, 259, bans on religious dress, 248, 269 262–63, 279 French Revolution, 16, 35–36, 153 deference to preexisting status of churches, 262, legal authority of medieval church, 79 274–76, 289 persecution of Calvinists, 93, 98, 153 member countries, 260 Franklin, Benjamin, 151 origins of, 261–62 Franklin, Robert, 294 religious trends in, 228–33, 255–56 free exercise, 297 Evangelicals, 161 Free Exercise Clause Everson v. Board of Education, 158–60, 182, 197 applied in Cantwell and Everson, 160 evolution, 174–75 and discrimination, 193 Eweida and Others v. The United Kingdom, and equal access, 177–80, 187–89 238–39, 249 and ministerial exception, 191–92 ex post facto laws, 59, 71 and religious schools, 181, 183, 191–92 and tax exemptions, 197, 200, 220 facultas, 24, 25, 27 text of, 154–55, 157–58 family, 18, 30 free exercise of religion Farrington v. Tokushige, 181 and US Constitution. See Free Exercise Clause Fathi, Bahtiyar, 283–85 Calvinist theory of, 98, 103 Fernańdez Martıńez v. Spain, 254–55 compatibility with Christian principles, 298 Fifteenth Amendment, 1 in Copenhagen Document, 39–40 Fifth Amendment, 5, 71, 150 in EU Charter, 262 First Amendment as foundational American principle, 140–41, 144, ambiguous language on religious freedom, 154–55 153–55 in Universal Declaration, 39 applied at national level after 1940, 151–52, as qualified right, 39, 43–44, 98 158–59, 171–72, 197, 264–65 Strasbourg Court cases on, 243–50 balance between religious freedom provisions, Fundamental Agreement (1649), 55–61 157–58, 197 Commerce Clause, 199 n 11 Genesis, 17–18 conflict with privacy laws, 293 Geneva, 32, 77, 78, 92–93 drafts of, 151–55 Georgia (country), 253 Free Speech Clause, 178–80, 187, 222–23 Georgia (state), 149 narrowly focused on Congress, 151–52 Germany on free exercise of religion. See Free Exercise homeschooling laws in, 240–41, 256 Clause modern status of Christian churches, 269–70, on no establishment of religion. See 271–72, 274 Establishment Clause and Muslim divorce case, 285 on religious autonomy, 222–24 religious asylum in, 282–83 on religious speech, 178–80 religious pluralism after Protestant ratification of, 150 Reformation, 31 revisionist history of, 162–64 Gerson, Jean, 28 trends in recent Supreme Court cases, 160–61, Gierke, Otto von, 16 162, 168 Glorious Revolution, 61, 104 Folgerø and Others v. Norway, 241, 256 God. See also image of God Forest Charter (1216), 26, 54 and covenant relationships, 19–20, 60, 102, 115

Index 309

and creation of the world, 17–18, 59, 72, 83–84 holy days, 40, 245, 272 duties owed to, 19, 30–31, 82, 112–13, 297 Holy Roman Empire, 79, 87, 93, 97, 98 giver of liberty, 94, 96 Holy See, 254, 275–76, 289 has sole prerogative to decide which religious homeschooling, 171, 183, 193, 240–41, 256 ﬂourish, 91, 141 Honore´, Tony, 17 source of legitimate authority, 81, 82, 93, 101, Hosanna-Tabor Evangelical Lutheran Church and 111, 202 School v. EEOC, 191–92, 198 source of natural law and natural rights, 59, 72, Huguenots, 33 95, 96–97 human rights. See rights and liberties sovereignty of, 85, 298 Humphrey, John Peters, 36 Golden Rule, 5, 27, 298 Hungary, 239, 243 Good News Club v. Milford Central School, Hunt v. McNair, 182 179, 187 Hus, John, 79 Goodman, Christopher, 60, 96–97 Goodman, Lenn E., 301–2 Illinois state constitution, 212 Grand Rapids School District v. Ball, 185 image of God, 5, 18, 33, 60, 84, 297 Grant, Ulysses, 210 incorporation of religious groups Great Awakening, 32–33 as modern human right, 44 Greece, 240, 244 and religious establishment in Massachusetts, Gregory VII (pope), 6, 27 118, 119, 124, 133, 135 Griswold v. Connecticut, 293 and religious personality in Europe, 250–51, 257 groups, rights of. See also incorporation of religious and tax exemptions, 196–97 groups India, 295 Calvinist defenses of, 103 Indigenous peoples, 28, 43, 159, 169 and foundational principles of American Indonesia, 295 liberty, 141 Inns of Court, 48–49 minority groups, 42–43, 253–54 Inquisition, 79, 98 in modern human rights documents, 41–43, 44 Internal Revenue Service (IRS), 192–93, 217 recognized in Edict of Milan, 25 International Covenant on Civil and Political and religious autonomy, 189 Rights (1966), 3, 5, 38–39, 42 in Strasbourg Court cases, 250–54, 257 International Covenant on Economic, Social, and student groups, 177–80 Cultural Rights (1966), 3, 5 Grzelak v. Poland, 241–42 International Religious Freedom Act, 169 guardians, 39, 40 IR v. JQ, 271–72, 273, 274, 289 Iran, 283–84, 295 habeas corpus, 52, 54, 71, 103 Iraq, 295 Habeas Corpus Act (1679), 48, 61, 71 Isidore of Seville, 25 Habermas, Ju¨ rgen, 164, 300–1 Islam halal, 277–80 animal slaughtering laws, 277–82 Hamidovic´ v. Bosnia and Herzegovina, 249–50 apostasy laws, 245 Hamilton, Alexander, 150 disadvantaged in Strasbourg Court Harvard College, 117, 128, 131, 134, 207 decisions, 257 Hauerwas, Stanley, 15, 291–92 divorce laws, 285–86 headscarves, 246–47, 266–69 Islamist terrorism, 161, 232 Helmholz, R. H., 16 Locke opposed toleration of, 98 Hemming, Nicolaus, 86 and Luxembourg Court’s application of heretics, 94 religious neutrality, 287–88 High Commission, 49, 50, 52 recent rise in Western Europe, 231–32, 269 Higher Education Facilities Act (1963), 182 repression of in the US, 169 hijab, 249, 266, 267–68, 287 rights of Muslim prisoners, 159 n 74, 242–43 Hobbes, Thomas, 16, 34 in US Supreme Court cases, 159 Hobby Lobby. See Burwell v. Hobby Lobby women’s head coverings, 246–50, 257, Holmes, Oliver Wendell, Jr., 5, 138, 221 266–69, 287 Holt, John C., 16 Israel (ancient), 19–20, 95

310 Index

Israel (modern), 295 law of nature (lex naturae), 27 Italy, 239, 242, 245, 257–58 Lee v. Weisman, 174 ius/iura Leiter, Brian, 164–65 in classical Roman law, 23, 24, 25 Leland, John, 90–91 Coke on ius and “right,” 55 Lemon v. Kurtzman, 183–85, 186 ius libertatis, 6, 24, 27 Leo XIII (pope), 2, 5 ius naturale. See natural law and natural rights liberty. See also liberty of conscience; rights and in medieval canon law, 27 liberties “blessings of liberty,” 1, 35, 146, 150 James I (king), 51, 61 biblical foundations of, 18, 20–21, 25 James II (king), 104 in classical Roman law, 24–25 Jefferson, Thomas, 25, 34, 138, 142, 143, 145, 199 freedom of the Christian, 30, 79, 87 Jehovah’s Witnesses freedom of the church (libertas ecclesiae), 6, 26, attacked in Georgia, 253 27–28 and data privacy laws, 264 gift of God, 94, 96 missionary activities of, 159, 244, 264 historical meaning of libertas, 6–7 objections to military service, 237–38, 240 in medieval Catholic law, 25–30 Jesus Christ, 5, 21–22, 202, 297 liberty of conscience John (king), 45, 53 as absolute right, 39, 97–98 John of Leiden, 89 Calvinist theory of, 97–98, 103 John Paul II (pope), 298 compatibility with Christianity, 297, 298 Judaism and divine sovereignty, 85, 97–98, 298 anti-Semitism in modern Europe, 230 as foundational American principle, 139–40, difﬁculties in qualifying for tax exemptions, 197 143, 144 Holocaust, 159 in EU Charter, 262 intolerance of Jews in early modern Europe, in Fundamental Agreement, 58 98, 153 in modern human rights documents, 38–40 kosher slaughtering laws, 279–81 in Strasbourg Court case law, 236–37 rights and duties in the Mosaic law, 18–20 and tax exemption for religious property, 209 judges, 73–74 Liga van Moskeee¨n en Islamitische Organisaties jury trial, 34, 59, 66, 67, 71, 72 Provincie Antwerpen VZW and Others, 277–78, 280–81 Kaser, Max, 17 Lilburne, John, 56–57, 100 King, Martin Luther, Jr., 302–3 Locke v. Davey, 187–89 King, Rufus, 129 Locke, John, 16, 34, 61, 98 Knox, John, 101, 103 Louisiana, 149 Kokkinakis v. Greece, 228, 244 Luther, Martin, 30, 33, 79, 81–83 Konrad and Others v. Germany, 240–41, 256 Lutheranism, 31, 77, 81–89 Korostelev v. Russia, 242–43 Luxembourg Court kosher, 279–81 animal slaughtering cases, 277–82 Kosteski v. The Former Yugoslav Republic of jurisdiction and authority, 259–61, 286–87 Macedonia, 245 Muslim divorce case, 285–86 overview of religious freedom cases, 263–65 labor. See employment references Strasbourg Court decisions, 263, 266, Ladele, Lilian, 238–39 280, 287 laı̈ cite´, 227, 228, 229, 260, 287 religious asylum cases, 282–85 Lamb’s Chapel v. Center Moriches Union Free tax exemption for religious school case, School District, 178–79, 187 275–77 Lambarde, William, 50 trends in jurisprudence, 259–60, 286–89 Langton, Stephen, 29, 45 workplace discrimination cases, 265–75 language, 42 Larissis v. Greece, 244–45 Madison, James Lathrop, Samuel, 134 on “blessings of liberty,” 1 n 2 Lautsi v. Italy, 242, 257–58 on importance of religion, 156

Index 311

on liberty of conscience, 25, 139, 143 McIntyre, Alasdair, 15 on religious equality, 142 McKeen, Joseph, 126 on religious pluralism, 141, 157 Melanchthon, Philip, 83–86 on separation of church and state, 143, 145, 150, Mennonites, 147, 148 209, 210 Milbank, John, 15 Magdeburg Confession, 87–89 military, 244–45, see also conscientious objection magistrates. See civil authority Miller, Perry, 16 Magna Carta Milton, John, 60, 100 Anglo-Saxon prototypes for, 25–26 minarets, 253 on rights of the church, 46, 48–49, 73 minister. See clergy and ministers compared with modern human rights norms, 47 ministerial exception, 189–92 drawn upon by American founders, 5, 70–72 Minorities Declaration (1992), 38, 42–43 on due process, 46, 50, 51, 54–55, 63, 65, 73–74 missionaries. See proselytize, right to echoed in colonial charters, 62–63, 65 Mitchell v. Helms, 186, 187 Puritan appeals to, 48–55 Morice, James, 50 as religious document, 73 Mornay, Philip de, 101 rights included in, 29, 45–46 Morrissey-Berru, Agnes, 192 Maitland, F.W., 16 Mosaic law, 18–20 Malik, Charles, 36 Moyn, Samuel, 17 Mamisch, Raja, 285–86 Mozer v. the Republic of Moldova and Russia, Mann Singh v. France, 248 242 margin of appreciation, 236–43, 246–48, 250, 257, Mueller v. Allen, 185, 187 287, 288 Mu¨ ntzer, Thomas, 89 Maritain, Jacques, 36–37, 300 Murray, John, 128–29 Marpeck, Pilgrim, 89 Muslims. See Islam marriage, right to, 67, 84 Marsilius of Padua, 28, 79 National Labor Relations Board v. Catholic Martıńez, Fernańdez, 254–55 Bishop, 190 Marty, Martin E., 166 Native American Indians, 28, 69, 159, 169 Maryland, 62, 147–48 natural law and natural rights Massachusetts. See also Massachusetts state American founders on, 72 constitution (1780) Anabaptist teachings on, 89–91 Body of Liberties (1641), 48, 64–70, 71, 103–4 Calvinist teachings on, 92–104 colonial seal, 70 complemented by duties, 95 founding of Massachusetts Bay Colony, 62 God as source of, 59, 72, 83–84, 95, 96–97 last American establishment state, 136–37 Isidore of Seville on, 25 royal colonial charter, 64, 107 Lutheran teachings on, 81–89 Massachusetts state constitution (1780) in medieval canon law, 27 amended to disestablish religion, 117–18, 127–35 modern Protestant suspicions of, 76 ceremonial, moral, and institutional summarized in Decalogue, 30–31, 82, 84–85, establishment of religion, 115–22 96–98 constitutional convention, 112, 120 necessity, 39, 41 court challenges to, 128–31 neoscholasticism, 5, 33 debates about religious establishment, 108–12, Netherlands, 97, 98, 239 122–26 neutrality. See religious neutrality failed 1778 constitution, 107–8 Nevada state constitution, 212 limited version of religious freedom, 112–15 New Hampshire state constitution, 149 ratification, 126–27 New Jersey state constitution, 147 shaped New England constitutionalism, 146 New York sources in Magna Carta rights tradition, 71 colonial charter, 63–64, 71 Masterpiece Cakeshop v. Colorado Civil Rights state constitution, 71, 148–49 Commission, 162, 168, 198 9/11, 159, 161 McCollum v. Board of Education, 173 97 Members of the Gldani Congregation of McFarlane, Gary, 238 Jehovah’s Witnesses & 4 Others v. Georgia, 253

312 Index

Ninth Amendment, 151 drawn upon by American charters and niqab, 248, 268 constitutions, 63, 64, 70, 71–72, 138 nominalism, 16 drawn upon by Fundamental Agreement, 57, 59 Norway, 241 issued by Parliament, 52–53, 55, 103 Philips, Dirk, 89 O’Donovan, Oliver, 15 Pierce v. Society of Sisters, 181 oaths Pietists, 33 and political office, 109, 110, 113–14, 115–16, pluralism, religious 131–33, 142, 144, 147, 148 Althusius on, 98 exemptions for conscientious objectors, 113, 114, defended in Worcestriensis Number IV, 109 132, 133, 147, 148 as foundational American principle, 141, 144, 157 forced on English Puritans, 50, 58 in modern Europe, 227, 228–31, 255–56 Obergefell v. Hodges, 162, 193 as result of Protestant Reformation, 31 Oeuvre d’assistance aux beˆtes d’abattoirs, 278–79 and tax exemptions, 197–98, 225 officium, 27 and Universal Declaration of Human Rights, Oldendorp, Johann, 86 36–37 Orthodoxy. See Eastern Orthodoxy value for civil society, 300–2 Osmanogˇlu v. Switzerland, 247–48 valued by Strasbourg Court, 234, 236, 251 Ouardiri v. Switzerland, 253 Plymouth Colony, 62 Our Lady of Guadalupe School v. Morrissey-Berru, Poland, 239, 241–42 192, 198 political office Overton, Richard, 57 biblical ideals of, 298 in Massachusetts Body of Liberties, 67 pacifism. See conscientious objection oaths of office for, 109, 110, 113–14, 115–16, Pakistan, 282, 283, 295 131–33 Palmer, R.R., 16 polygamy, 89, 247, 253 papacy, 27, 30, 78–79, see also Holy See poor, rights of, 19, 21, 22, 29 parents, rights of, 39, 40–41, 42, 181, 233, 239–42, 256 positive law, 82–83, 85, 92 Parker, Isaac, 132, 133 potestas, 24, 27 Parkinson, Patrick, 292–93 Pragmatic Sanction of Bourges, 79 Parliament, 31, 49, 51–53, 55–56, 57–58, 61, 69, 78, Presbyterianism, 34, 55 98, 103–4 Presiding Bishop v. Amos, 190–91, 222 Parsons, Theophilus, 107–8, 128–31 press, freedom of, 32, 58, 297, 298 paterfamilias, 24, 30, 66 Prince, James, 131 Paul (saint), 21, 22–23, 24, 142, 202 Prince, Thomas, 57 Payson, Phillips, 110 prisoners, rights of, 159 n 74, 242–43 Peace of Augsburg, 31, 77, 89, 98 privacy, right to Peace of Westphalia, 5, 31, 77 compatibility with Christianity, 297 Penn, William, 62–63, 71, 140 conflict with religious freedom, 293–94 Pennington, Kenneth, 27 data privacy, 264 Pennsylvania, 62–63, 71, 146–47 in modern European law, 240, 254–55, 264 Perich, Cheryl, 191–92 procedural rights. See also due process persecution, religious in American state constitutions, 71 of Calvinists, 93, 100, 153 in classical Roman law, 23 criticized in New York state constitution, 148–49 compatibility with Christianity, 297 of early Christians, 6, 14, 25 in Fundamental Agreement, 58–59 in early modern Europe, 153 in Magdeburg Confession, 88 of English Puritans, 49, 74 in Magna Carta, 63 and modern European asylum protections, in Massachusetts Body of Liberties, 65–66 282–85 property rights, 51, 66, 70, see also tax exemption for Peter (saint), 21 religious property in modern world, 7, 15, 168–69, 295–96 prophets, 19 Petition of Right (1628) proportionality, 41, 272, 274 compilation of scattered rights, 69 proselytize, right to, 32, 159, 244–45, 257, 268

Index 313

Protestant Reformation, 30–34, 77–81, see also religious freedom. See also liberty of conscience Lutheranism; Anabaptism; Calvinism; biblical foundations of, 18 Anglicanism as first freedom, 7, 167 Providence Plantation, 62 foundational for other human rights, 6–8, public office, 113–14, 115–16, 117, 131–33, 142, see also 166–68 civil authority freedoms included in, 6 punishment, cruel and unusual, 65, 72 fundamental American principles of, 58, 139–45, Puritans. See also Congregationalists 155–60 appeals to Magna Carta, 48–55 modern criticisms of, 160–70, 198–99 during English Revolution, 55–61 modern human rights norms of, 36–44, 233–36 moral values of, 116 religious neutrality, 260 persecuted in England, 49, 74 in Luxembourg Court cases, 269, 278–81, 287–88 theory of constitutional checks and in Strasbourg Court cases, 228, 234, 242, 257–58 balances, 100 in US Supreme Court cases, 174, 182, 191, 199–200, 201, 221, 224–25, 281–82 Quakers remedy, 51, 55, 71 charitable activities of, 207 Rhode Island, 62, 90, 146 exempted from military service, 147, 149 Riedemann, Peter, 89 exempted from oaths, 113, 114, 132, 133, 147, 148 rights and liberties. See also natural law and nat- intolerance toward, 144 ural rights; liberty quartering, 52, 70, 75, 103, 150 biblical foundations of, 17–23 Christian criticisms of human rights, 14–16, 76, racial discrimination, 1, 192–93, 294–95 291–96 Rawls, John, 164, 300–1 in classical Roman law, 23–25 Raymond of Penyafort, 73–74 compatibility of human rights with Christianity, religion 296–303 foundational for human rights, 7–8 complemented by moral duties, 35, 98–99 in modern Europe, 227–33, 255–56 development of human rights in twentieth legal definition of, 197–98, 217–18 century, 159, 290–91 requires special constitutional protection, different principles for church and state, 299 156–57, 158, 162–64, 293 in early modern Protestantism, 30–34, 97, as topic of public education, 174 102–3 value for civil society, 110–11, 160–70, 176–77, in Enlightenment era, 34–36 213–14, 225, 234, 300–3 foundational twentieth-century human rights religious autonomy documents, 1–6 and criticisms of religious freedom, 161, 163, 232 interdependence of human rights, 37–38 in First Amendment, 222–24 not invented by the Enlightenment, 14–16, 72, in Luxembourg Court cases, 260, 269, 270–71, 76–77, 299–300 273–75, 288–89 in medieval Catholicism, 25–30 in religious schools, 189–93 modern international norms of, 36–44 in Strasbourg Court cases, 250–54, 255 process of legal development of, 11–12 religious dress, 246–50, 257, 266–69, 287 religious freedom is foundational for other religious equality. See also equal access human rights, 6–8, 166–68 biblical foundations of equal protection, 21 Roemer v. Board of Public Works, 182–83 compatibility of equal protection and Christian Roman law, 17, 23–25, 26, 33, 83 principles, 298 Romeike family, 240–41, 256 as foundational American principle, 141–42, Roosevelt, Eleanor, 36 144, 159 Roosevelt, Franklin D., 38, 159 in Fourteenth Amendment, 177 Rorty, Richard, 300 in Massachusetts state constitution, 121–22, Rosenberger v. Rector and Visitors of the University 124–25, 128–29, 135 of Virginia, 179, 187 and nonreligious groups, 142 Rousseau, Jean-Jacques, 34 and tax exemption for religious property, 209–10, Russia, 242–43, 255 214–15 Rwanda, 295

314 Index

S.A.S. v. France, 248, 268 sexual freedom rights, 161–62, 193, 238–39, 256, Sacks, Jonathan, 19 293–94 S¸ahin v. Turkey, 246–47 Sikhs, 248 Salamanca, University of, 28, 33 Simons, Menno, 30, 32, 80, 89, 90 same-sex rights. See sexual freedom rights sin, 33, 81, 82, 84, 114 n 37 Santa Fe Independent School District v. Doe, 174 Sixteenth Amendment, 196 n 2 Santerians, 281 Sixth Amendment, 71 Saudi Arabia, 295 skullcap, 249–50 Sayouni, Soha, 285–86 Sloan v. Lemon, 184 Schleitheim Confession, 77, 91 n 39 Snagge, Roger, 49–50 schools (public) social contract, 34, 60, 146 and separation of church and state, 172–76 social teachings movement, 2, 5 Strasbourg Court cases on, 239–42, 246–48 social welfare rights, 20, 296 types of US schools, 171, 193–94 Soha Sayouni v. Raja Mamisch, 285–86 schools (religious) sola Scriptura, 80 accommodation of religious education, 180–83, Somalia, 295 185–87, 194–95 sovereignty argument for state support of, 130–31 divine, 85, 97–98, 298 compared to US public schools, 181 in US Bill of Rights, 151 employment in, 189–92, 254–55 Spain and equal access, 187–89 concordat with Holy See, 254, 275–76, 289 limits on autonomy, 192–93 legal authority of medieval church, 79 separation of church and state in, 183–85 religious intolerance in sixteenth century, 98 types of US schools, 171, 193–94 speech, freedom of Schwenckfeld, Caspar, 89 advocated during Great Awakening, 32 Scotus, John Duns, 28 compatibility with Christianity, 297, 298 Second Vatican Council, 1–3, 5 defended by Milton, 58 secularism in First Amendment, 178, 187, 222–23 favored by Strasbourg Court, 257 Sri Lanka, 295 as non-neutral belief system, 164, 176 Stoics, 34 policy in modern Europe, 228, 229, 233, 247, Stone v. Graham, 175 249 Strasbourg Court and value of religion for civil society, 300–1 cases on public manifestation of religion, Selden, John, 52, 53 243–50, 268–69, 287 self-defense, 60, 88, 101–2, 297 cases on religious groups, 250–54 self-determination, 42–43, 270 cases on rights of thought, conscience, and self-incrimination, 51, 59, 65, 72 belief, 236–43 separation of church and state. See also wall of jurisdiction and authority of, 227–29, 231, separation 233–36, 287 Anabaptist teaching on, 89–91 referenced in Luxembourg Court decisions, 263, Calvinist teaching on, 92–93 266, 280, 287 as foundational American principle, 142–43, trends in jurisprudence, 255–58 145, 163 Strauss, Leo, 16 in Massachusetts Body of Liberties, 68 Stubbs, William, 47 in New York state constitution, 148–49 Suarez, Francisco, 28 in US public schools, 172–76 Sudan, 295 in US religious schools, 183–85 Summenhart, Conrad, 28 and tax exemption for religious property, Supremacy Act (1534), 31, 78 199–200, 201, 210 Supreme Court. See United States Supreme Court S¸erı´fe Yig˘it v. Turkey, 252–53 cases servants, rights of, 67 Su¨veges v. Hungary, 243 Servetus, Michael, 94 Switzerland, 246, 247–48, 253, see also Geneva Sessa v. Italy, 245 Syllabus of Errors, 2 Seventh Amendment, 71 Syria, 285

Index 315

Talmud, 19, 33 and Magna Carta rights tradition, 71–72 tax exemption for religious property on “blessings of liberty,” 1, 35, 150 and charitable use, 205–8, 211, 213–15, 219, 221–22, largely silent on religion, 149–50 224–26 United States Supreme Court cases in common law, 203–5, 215, 216–18 applied First Amendment as national law after and discrimination, 192–93, 198 1940, 151–52, 158–59, 171–72, 197, 264–65 in equity law, 205–8, 211, 215, 218–19 on employment discrimination, 191–92, 266–67 longstanding tradition of, 200–1, 202–3, 221 on privacy rights, 293–94 in modern European law, 275–77 references to Magna Carta, 45 n 4 and religious autonomy, 222–24 references to Strasbourg Court, 228 and religious use, 201, 208, 215, 219, 221–22, and religious neutrality, 257–58, 281–82 224–26 on religious schools, 180–95 state constitutional challenges to, 208–12 on role of religion in public schools, 172–80, 194 US Supreme Court cases on, 199–202, 220–24 strong reading of Establishment Clause from underlying tensions, 196–202 1971–1986, 275 taxes. See also tax exemption for religious property on tax exemption for religious property, 199–202, Anabaptist arguments against religious taxes, 91 220–24 biblical teachings on, 202–3 Universal Declaration of Human Rights (1948), 3, and consent of English Parliament, 51, 52 5, 36–38, 47, 237, 290–91 federal income tax, 196 n 2, 217 Universalists, 128–29 “no taxation without representation,” 70, 111 Uzbekistan, 295 and religious establishment in Massachusetts, 111, 118–22, 124–25, 126, 127–35 Valsamis v. Greece, 240 and religious schools, 159, 185–87, 189 n 52 Va´zquez de Menchaca, Fernando, 28 religious taxes in Maryland, 147–48 Vienna Concluding Document (1989), 38, 41–42 Ten Commandments. See Decalogue Villey, Michel, 16 Tenth Amendment, 151, 188 Virginia terrorism, 161, 232 Declaration of Rights (1776), 35, 146 Tertullian, 6, 25 state constitution, 144 Thirteenth Amendment, 1 Virginia Company Charter (1606), 61 Tierney, Brian, 16, 27 Vitoria, Francisco de, 28 Tilton v. Richardson, 182 voluntarism, religious, 32, 91, 135, 139 Toleration Act (1689), 31, 48, 61, 71, 104 vote, right to, 67, 94, 298 total depravity, 84, 114 n 37 Voting Rights Act (1965), 1, 294 Treaty of Amsterdam (1997), 262, 269, 275, 289 Trent, Council of, 98 wall of separation Trinitarians, 106, 127, 133, 134 in Anabaptist theology, 32, 90, 91 Trinity Lutheran Church v. Comer, 188–89 Jefferson on, 143 Tuck, Richard, 16 in New Testament, 23, 142 Tuckerman, Joseph, 132 in US Supreme Court jurisprudence, 145, 160, Turkey, 229, 232, 246–47, 248–49, 252–53, 255, 269 173, 185 Tutu, Desmond (archbishop), 18 Wallace v. Jaffree, 174 two kingdoms theology, 81, 83 Walwyn, William, 57 tyranny, right to resist, 60, 72, 74, 87–89, 97, 100–4 Walz v. Tax Commission, 199–202, 220–22 Ward, Nathaniel, 33, 48, 64, 69, 103 Union of Utrecht, 77 Washington, George, 140 Unitarians, 106, 121, 127, 128–29, 134 Webster, Daniel, 132 United Kingdom, 238–39, 249 Weil, Simone, 292 United Nations Weiler, Joseph, 257–58 Commission on Human Rights, 36–37 West, Samuel, 110 n 17 foundational documents on human rights, 3–4 Westside Community Schools v. Mergens, 178 Human Rights Committee, 237 Widmar v. Vincent, 177–78, 180, 187 United States Constitution. See also individual William of Ockham, 28 amendments Williams, Roger, 62, 90, 140

316 Index

Wilson, James, 150, 151 worship, duty of, 112–13, 118, 122–24 Winthrop, John, 64, 69 Wortman, Tunis, 142 Wisconsin v. Yoder, 183 Wycliffe, John, 79 Witters v. Washington Department of Services for the Blind, 185–86, 187, 188 Y and Z, Bundesrepublik Deutschland v., 282–83 Wolterstorff, Nicholas, 17 Yemen, 295 women, rights of, 24, 66, 190, see also religious dress Worcestriensis Number IV, 109–10 Zelman v. Simmons-Harris, 186–87, 188 workplace. See employment Zobrest v. Catalina Foothills School District, World War II, 3, 36, 159, 262, 291 186, 187