This elegantly written volume is the latest of John Witte's many, many contributions to the study of law and religion. The Blessings of Liberty addresses the principal themes of his three decades of scholarship: “(1) that religion has long been a critical foundation and dimension of human rights; (2) that religion and human rights still need each other for each to thrive; and (3) that robust promotion and protection of religious freedom is the best way to protect many other fundamental rights today” (xi).
Much of the first part of the book is a vigorous response to the argument that human rights were invented in the twentieth century. Witte begins with the Bible—“filled with critical passages that have long inspired Christian writers in their reflections on . . . human rights” (17)—and fast forwards through Roman Law and Medieval Catholicism. Then he devotes more detailed attention to various strains of Protestant thinking, leading to what he describes as the “Protestant reformation of religion and law” (77).
In a sweeping volume that analyzes theological precepts and legal principles in the United States and Europe over many centuries, Witte looks primarily for consensus rather than dissent. He concludes, for example, that “most [early] Protestants championed basic rights to life, property, family, reputation and procedural justice,” even as they “differed on matters of religious freedom and church-state relations” (104).
Those differences about religion and law are resolved in the second major part, which focuses on America. Again, Witte looks for, and finds, common views, in this case among the nation's “founders” on (1) “liberty of conscience; (2) free exercise of religion; (3) religious pluralism; (4) religious equality; (5) separation of church and state; and (6) no establishment of religion” (139). These principles found their way into state constitutions, and, in a refreshing change from most church-state scholarship, Witte devotes far more attention to Massachusetts’ church/state history than Virginia's.
Those principles can also be found in the First Amendment. Although it “explicitly and embraced” just two (152), Witte finds them all embedded in the Constitution. In his discussion of the two religion clauses’ original meaning, Witte concludes that “the founders saw the principle of no establishment of religion as integral to the protection of . . . religious equality, liberty of conscience and separation of church and state” (155). Perhaps most importantly for Witte, was the “founders’ most elementary insight—that religion is special and needs special constitutional protection” (156). This “key to the enduring success of the American experiment in religious freedom” (156) is joined by two others: that “the constitutional process must seek to involve all voices and values in the community” (157), and that there will be a continuing need to “balanc[e] the multiple principles of religious liberty” (158). He then devotes a chapter to how the Supreme Court should do that balancing, and another to whether religious property should be exempt from taxation.
Witte eventually returns to Europe, where “traditional Christian establishments have been challenged by the growth of religious pluralism and strong new movements of ‘laicite’ and secularism” (227). He notes that many religious freedom issues now end up in the European Court of Human Rights in Strasbourg, which has emerged as “a hotspot for religious freedom claimants from all over Europe” (227). Witte summarizes the major cases and worries that the Court “has begun to use the concept of state ‘religious neutrality’ in a way that deprecates religious expression in public life and political discourse” (228).
Whereas the rulings of the Strasbourg Court are “soft law that depends on voluntary compliance,” the decisions of the Court of Justice of the European Union in Luxembourg are “hard law that binds the entire European Union” (259). In reviewing some of the recent decisions of this “new boss of religious freedom in Europe” (259), Witte is concerned that they resemble the US Supreme Court's 1970s and 1980s cases that “gave minority faiths and those with no faith something of a ‘heckler's veto’” (275).
Witte's volume is history on a grand scale and not the place to take up all the “but what abouts” that scholars will inevitably have, which should be directed to his detailed works on these various subjects. Moreover, it focuses primarily on the Protestant theologians, judges, and lawmakers who have, at least in principle, embraced the broad commitment to religious freedom Witte describes. Other volumes will need to ask whether those same Protestant elites have had the courage of their convictions in their dealings with other forms of religiosity, including witchcraft, the religions of enslaved peoples, indigenous religions, and Islam, during the many centuries covered by this book.
All in all, we can appreciate The Blessings of Liberty for its success in offering an accessible retrospective summarizing decades of influential scholarship, a valuable introduction to the current state of play at the intersection of religion and law on two continents, and a promising prolegomena to future volumes on these ever-evolving issues.
