Professor

University of La Coruna

La Coruna, Spain 

Meanings and sources of religious liberty

                The modern concept of religious freedom as a right of citizens was recognized constitutionally for the first time in the First Amendment to the United States Constitution ratified in 1791: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .”

                Earlier, in 1776, the Bill of Rights of Virginia had provided for the transition from a system based on religious tolerance to a system of complete separation of state and church.

                Many European constitutions of the 19th century reflect their nations’ long traditions as confessional states.  They focus the right of religious freedom as a right of the citizen, or even as a right of the person as an individual.  Protestantism had fostered the growth of a liberal ideology (evident in those constitutions) which emphasizes the rights of citizens--the rights of persons. And some of those countries tried, through legislation, to make compatible religious freedom and the confessional state.

                However, in nations with strong Catholic traditions--confessional states such as Italy and Spain--the right of religious liberty was recognized only recently--in the 20th century. In 1965 the church included among the documents of the Second Vatican Council the Declaration of Religious Freedom. Until then, the Catholic monopoly allowed no more than lukewarm religious tolerance.

                Legal scholars gave the theory of subjective rights its basic formulation during the 19th century  in Germany, and then, in this century, in Italy. There emerged a more precise concept of religious liberty as a “public subjective right”--not only an individual right, but a collective right as well. As such, religious freedom (1) protects the immunity of the person; (2) entitles the person to specific behaviors such as the right of association and the right to practice a particular style of worship; and (3) requires the state, directly or indirectly, to provide assistance, including religious assistance, to people in public institutions such as hospitals and prisons.

                Today religious liberty is a right ergo omnes. The contemporary concept of religious liberty holds that it is a right not only inherent in the state, but also in the person. Religious liberty is a public right because the relationships deriving from it (not just among individuals but, basically, between the state and the person--the physical or juridical person) are considered a public good by the state. Religious liberty is a constitutional right, recognized as such by the general standards of constitutions. Religious liberty is protected judicially by the supreme courts of the states. Finally, religious liberty is a fundamental right protected not only by national constitutions, but also by international human rights covenants established since the Universal Declaration of Human Rights of December 10, 1948. And the Declaration itself has become the inspirational model for the many recent constitutions around the world.

                The Universal Declaration and the constitutions following its example speak of freedom of thought, conscience, and religion. Why this distinction? Is religious liberty one, single, global freedom with three different aspects? Or are there, formally, three different freedoms? From the 50s to the late 70s most Western European scholars favored the latter option, taking into account the concrete goal of religious liberty. But realistically, the notion tends to expand to the ideal of freedom of conscience. Freedom of thought relates to ideas or concepts about different aspects in life. Freedom of conscience relates to moral judgments. And freedom of religion and belief relates not just to personal opinions but to faith and conviction. What a person believes builds into a system of values. Thus the connection between freedom of conscience and freedom of religion is obvious.

                Freedom of religion has a double sense. In the positive, it is the protection of the right to believe (“theism,” for example). In the negative sense, it is the right not to believe (as in “atheism”). And here the idea of freedom of thought as a fundamental right has a clear meaning. In their legislation, many states recognize both senses in order  to avoid discriminatory attitudes against citizens.

                This point leads into the international and constitutional framework of religious freedom. The framework has two axes: (1) The principle of equality and of equal treatment under the law. (2) The principle of non-discrimination.  Like the two faces of the same coin, both are important when we speak about the collective right of religious freedom.  In practice it is very difficult to avoid discrimination among religious groups and communities because of historical, sociological, ethnic, or cultural reasons. Discrimination is a constant danger that must be avoided by all legislation.  Here the role of the courts--both ordinary and constitutional--is essential to guarantee non-discrimination for religious reasons and, at the same time, equal treatment under the law. Note that equal treatment under the law does not mean equalitarianism. It means we treat equally what is equal and unequally what is unequal. While this premise is clear in theory, it is, in practice, difficult to apply. So the role of the principle of non-discrimination is basic when the distinction between what is equal and what is unequal is unclear.

                What are the sources of religious liberty? We must consider the influence of John Locke and Jean Jacques Rousseau and the impact of rationalism and positivism on European tradition in the 18th century. But a century earlier, in 1636, on the American continent, Roger Williams became the first defender of religious freedom when he founded the colony of Rhode Island, establishing freedom of conscience as a rule of behavior. The essence of religious freedom is contained in Williams’ 1644 treatise The Bloudy Tenent of Persecution for the Cause of Conscience. Williams is the cornerstone of the American tradition of religious liberty upon which the Founding Fathers, inspired also by the British and French freethinkers of the 18th century, framed the Constitution and the Bill of Rights.

                Today the recognition of human rights as a fundamental, originating in the natural and universal dignity of the human being, is promoted by every contemporary international declaration. And the first example of religious liberty as a human right is, of course, Article 18 of the Universal Declaration of Human Rights.          

Legal guarantees of religious liberty

                In the hard reality of every nation religious freedom is influenced, obviously, by its historical background.  Another factor is the country’s sensitivity to the avoidance of past prohibitions or restrictions of religious freedom.  Consider that the recent constitutions of former communist countries (except Albania) formally recognize the right of religious freedom. But in practice it is a right difficult, if not impossible, to exercise. The result: Attitudes of real persecution. Thus the formal recognition of religious liberty requires very real and very effective protections guaranteed by the state.

                There are general minimum standards that should apply to the content of religious liberty law--standards which must be endorsed and safeguarded by each state. Within contemporary formulations of religious liberty as a subjective right, an ergo omnes right, a public right, a constitutional right, and a fundamental right, the content of religious liberty tends to enlarge its original dimensions to preserve and respect as much as possible of the autonomy and the freedom of each person and each religious group. Accordingly, then, international laws and constitutional courts must guarantee the right of religious freedom in its external expressions. Here is a general framework:

                (1) As an individual right the content of religious liberty law must guarantee the freedom

                                (A) to profess or not to profess a religion or a belief;

                                (B) to receive or not to receive religious instruction;

                                (C) to participate or not to participate in any form of worship; nor to be compelled, directly or indirectly, to disclose personal religious convictions; and to have access to places of worship;

                                (D) to refuse to take any oath contrary to personal convictions;

                                (E) to express openly personal religious beliefs, or to maintain silence about such beliefs; and

                                (F) to decline the performance of military armed service contrary to one’s belief system, substituting instead the performance of humanitarian services.

                (2) As a collective right the content of religious liberty must guarantee the freedom of bodies

                                (A) to manifest convictions and to propagate their religious choices or beliefs, protecting each group and each person within a group, privately and/or publicly, from coercion; protecting the right to spread their convictions or beliefs; and to observe and practice their religion without interference or intervention;

                                (B) to associate themselves into religious organizations and to be accorded, where required, official recognition and registration in order to achieve juridical personality and legal status, for which registration the state can check only for the observance of formal observance of appropriate requisites;

                                (C) to acquire and maintain places for worship, and to conduct and to attend religious services and activities;

                                (D) to establish, maintain, and manage religious institutions, and to self-govern them; and to communicate freely with other national or international institutions;

                                (E) to produce, sell, buy, import, export, and distribute religious literature, printed materials, audiovisual materials, and other objects used for religious activities;

                                (F) to establish and administer private schools and to conduct educational, cultural, charitable, and/or other social activities; and

                                (G) to solicit and to receive voluntary financial aid from individuals and institutions.

                What warranties should the state provide to fulfill its guarantee of religious liberty? I would suggest seven.

                (1) The state should declare itself non-confessional, recognizing no official or established religion. This standard may not be easily reached because of national historical peculiarities. England is confessedly Anglican. Some of the Scandinavian countries are confessedly Lutheran. Even nations constitutionally non-confessional may possess a sociological confession rooted in history, as, for example, Italy or Spain. However, the minimum guarantee must be the balanced application of the principle of equality and non-discrimination between majority churches and minority churches: Neither may receive special state privileges; neither may exercise any political authority.

                (2) The state must allow individuals in public institutions--members of the military, patients in hospitals, inmates in prisons--to receive from their churches necessary spiritual assistance.

                (3) The state should exempt religiously purposed activities from taxation.

                (4) Public authorities should be prohibited from involvement in the selection of religious ministers and ecclesiastical officials and their roles; the structuring of religious organizations; and the sponsorship of worship or other religious rites.

                (5) State regulations must provide for reasonably accommodating citizen participation in religious festivals, and for the development of effective alternatives to civil service systems.

                (6) Constitutional, civil, and criminal law must protect the right of religious freedom, providing for the prosecution of unlawful action that damages or destroys religious objects or religion-owned property.

                (7) To facilitate the collective right of religious freedom, and with regard to the unique religious and sociological background of the country, the state could enter into signed agreements with religious organizations.

                Finally, what are the limits of religious liberty? Regarding the public expression of religious freedom the international standards are clear: the Universal Declaration of Human Rights (Article 29.2), the International Covenant on Civil and Political Rights (Article 18.3), and for member nations of the Council of Europe, the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (Article 9.2). States should align their legislation to these international standards--standards which set, in the first place, the fundamental rights and freedoms of others, and secondly, limitations prescribed by law as necessary to protect public safety, order, health, or morals. As the jurisprudence of each state develops criteria and precise guidelines, it must keep in mind that religious liberty remains a fundamental right. Any limitation, any restriction of religious liberty must not only be justifiable, but must fully respect its essential content.

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