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Contrasting Views of Religious Liberty: Clarifying the Relationship between Responsible Government and the Freedom of Religion*

Published online by Cambridge University Press:  24 April 2015

Daniel R. Heimbach
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It is hard to have a casual discussion on the issue of “religious liberty” because discourse on the subject is often highly charged, and rightly so. The stakes involved are weighty, and they include such fundamentally important matters as the individual's personal and immediate accountability to God, the Church's mission to preach the gospel, and responsibility to maintain purity of conscience and conduct at all levels. One's views on religious liberty also affect the way one understands relations of morality and law, of ethics and human government, and tensions that arise between the moral purposes of government and moral limitations that should restrain the state's use of coercive power.

Upon examination, the term “religious liberty” includes several different foci that can, and very often do, result in contrary views regarding the concept itself. Thus, while they are debating or defending “religious liberty, ” it is easy for parties to talk past one another so completely they may find themselves agreeing or disagreeing, and supporting or opposing one another, for reasons unrelated to the actual circumstances with which they think themselves engaged. Lack of clarity at critical moments of negotiation can be embarrassing, but may even become dangerous, if mis-understanding by one party is used to manipulate acceptance of measures that should be opposed, or if blind assumptions obscure opportunities by which opposing factions might otherwise reach agreement. It is precisely because religious liberty concerns are so charged that the subject must be approached with a careful understanding of how the term is intended in a given circumstance.

Type
Articles
Information
Journal of Law and Religion , Volume 11 , Issue 2 , June 1994 , pp. 715 - 731
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1994

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Footnotes

*

This article is based on a paper read at a conference on religious liberty, held in May 1994 in Bucharest, Romania. That conference brought together leaders of the Baptist Union of Romania and Romanian government officials, most of whom claim membership in the Romanian Orthodox Church. The paper was focused on a debate in the Romanian Parliament, where the newly democratic government is still struggling to decide whether that nation will return the Romanian Orthodox Church to its pre-Communist state church status-with concomitant restrictions on other religious bodies—or will enact a policy of true religious liberty. Though it was inspired by stakes connected to this real world situation, the article offers a paradigm for understanding contrasting concepts of religious liberty that may be applied generally.

References

1. Gregory A. Wilis, in an unpublished paper, has done an excellent analysis showing how Baptists in America started with a concept of religious freedom that focused on ecclesiastical freedom to determine doctrinal matters and freedom to exercise discipline independent of state control. He goes on to document how, over time, many Baptists have shifted to a different notion of religious freedom, one that insists not on freedom for, but on freedom from, accountability and discipline. His paper is titled: “That Altar to Freedom: Freedom, Authority, and Southern Baptists.”

2. This situation is reported on the basis of direct personal contact with the parties affected. In addition to leaders of the religious bodies concerned, two key government officials working to shape the Romanian “law of religion” are Hie Fonte, Counselor to the President for Religious Affairs, a member of the Romanian Orthodox Church and author of Libertatea Religioasa in Lumea Contemporana (Institutul Roman pentru Drepturile Omului, 1994)Google Scholar and Petru Dugulescu, Member of Parliament, a Baptist and a key actor in events that sparked the Romanian revolution.

3. Gal 5:1.

4. For a more complete discussion see Murray, John Courtney S.J., Religious Liberty 140 and following (Westminster/John Knox Press, Hooper, J. Leon S.J., ed, 1993)Google Scholar.

5. Although I am using different terms, I am here following a distinction described by John Courtney Murray. Murray, , Religious Liberty at 97-113, 130–151 (cited in note 4)Google Scholar.

6. At Vatican II, the Roman Catholic Church moved from its historic commitment to religious idealism to officially embrace religious liberty. This commitment was promulgated in “Declaration on Religious Freedom: On the Right of the Person and Communities to Social and Civil Freedom in Matters of Religion” (Dignitatis Humanae). The text of this declaration is published in Abbott, Walter M. S.J., ed, The Documents of Vatican II 675–96 (America Press, Gallagher, Joseph trans, 1966)Google Scholar.

7. For example, the Romanian Orthodox Church demonstrated its commitment to religious idealism when in the Spring of 1994 it successfully pressured the government to cancel, on short notice, several Easter programs it had previously approved—programs that were sponsored by the Evangelical Alliance of Romania and had been scheduled for showing on the government owned and operated Romanian Television. This report is based on personal contact with individuals who were involved.

8. Documentation of this view can be found in Kelsey, John, Islam and War (Westminster/John Knox Press, 1993)Google Scholar. Especially see his chapters on “The Islamic View of Peace” and “Religion as a Cause of War.”

9. As an example of this view, Murray cites Pope Pius XII in 45 Ci riesce, Acta Apostolica Sedis 788–9 (1953)Google Scholar as follows: “That which does not correspond to the truth and the norm of morality has, objectively, no right either to existence or to propaganda or to action.” Murray, Religious Liberty at 134 (cited in note 4).

10. For example, the Pope, the Patriarch, the Caliphate (before its destruction), the Ayatollah, or the Communist Party Politburo of the former Soviet Union.

11. Murray explains “[t]he supreme juridical principle of the exclusive rights of truth, and its pendant distinction between thesis and hypothesis, establish a rule of jurisprudence with regard to intolerance and tolerance. This rule prescribes intolerance whenever possible; it permits tolerance whenever necessary.… The political criterion, whereby the issue of the possibility of intolerance or the necessity of intolerance is to be decided, is the public peace.” Murray, , Religious Liberty at 134 (cited in note 4)Google Scholar.

12. Many examples, both theological and philosophical, could be cited in defense of religious liberty. The Baptist minister Leonard Busher in 1614, in a petition to King James I of Great Britain, explained that Kings and magistrates are to rule temporal affairs by the swords of their temporal kingdoms, and bishops and ministers are to rule spiritual affairs by the Word and the Spirit of God, the sword of Christ's spiritual kingdom, and not to intermeddle one with another's authority, office, and function.

Stokes, Anson Phelps, 1 Church and State in the United States 113 (Harper & Brothers, 1950)Google Scholar.

John Leland, another Baptist minister, writing at the time of the American Revolution argued saying:

I now call for an instance, where Jesus Christ, the author of his religion, or the apostles, who were divinely inspired, ever gave orders to, or intimated, that the civil powers on earth, ought to force people to observe rules and doctrine of the gospels.… [T]here are many things that Jesus and the apostles taught, that men ought to obey, which yet the civil law has no concern in.

Green, L. F., ed, The Writings of John Leland 187 (Arno Press, 1969)Google Scholar.

In 1963, Pope John XXIII justified religious liberty in philosophical terms insisting: the dignity of the human person requires that a man should act on his own judgment and with freedom. Wherefore in community life there is good reason why it should be chiefly on his own deliberate initiative that a man should exercise his rights, fulfil his duties, and cooperate with others in the endless variety of necessary social tasks.… it is clear that a society of men which is maintained solely by force must be considered inhuman.

From 55 Pacem in terras, Acta Apostolica Sedis 265 (1963)Google Scholar. Also in Murray, , Religious Liberty at 137–138 (cited in note 4)Google Scholar.

13. Thomas Jefferson, author of the “Bill for Establishing Religious Liberty” passed by the State of Virginia in 1785, argued that:

the opinions of men are not the object of civil government, nor under its jurisdiction; [and]… to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; [thus]… it is enough for the rightful purposes of Civil Government for its officers to interfere when principles break out into overt acts against peace and good order.

Stokes, , 1 Church and State at 334 (cited in note 12)Google Scholar.

14. Here I am following a distinction described by Michael Novak in The Catholic Ethic and the Spirit of Capitalism 93–99 (Free Press, 1993)Google Scholar. Novak identifies two contrary concepts of liberty in Chapter 4 titled: “The Second Liberty.” Although he approaches liberty as a component of economic philosophy, he nevertheless takes time to discuss its religious dimensions. Thus the distinction he makes between concepts of liberty does, in fact, pertain directly to the project addressed in this article.

15. Novak calls this the “Anglo-American” conception of liberty and quotes the English historian, Lord Acton, who said: “The Christian notion of conscience imperatively demands a corresponding measure of personal liberty. The feeling of duty and responsibility to God is the only arbiter of a Christian's actions. With this no human authority can be permitted to interfere. We are bound to extend to the utmost, and to guard from every encroachment, the sphere in which we can act in obedience to the sole voice of conscience, regardless of any other consideration” (emphasis mine). Novak, , Catholic Ethic at 94 (cited in note 14)Google Scholar. Originally from 3 Emerich, Lord JohnDalberg-Acton, Edward, Select Writings of Lord Acton 491 (Liberty Classics, 1988)Google Scholar.

16. Note here Lord Acton's representative statement: “With this no human authority can be permitted to interfere.” Novak, , Catholic Ethic at 94 (cited in note 14)Google Scholar.

17. The most succinct biblical statement of this doctrine is the bold response given by Peter and John to the ban imposed by the Sanhedrin against any further preaching in the name of Jesus. To this the apostles responded: “Judge for yourselves whether it is right in God's sight to obey you rather than God. For we cannot help speaking about what we have seen and heard.” Acts 4:19–20Google Scholar.

18. This view is outlined by Novak and contrasted with European nations whose legal traditions descend directly from the Roman system (as opposed to the Anglo-American common law tradition). Novak, , Catholic Ethic at 99–101 (cited in note 14)Google Scholar. Also see Berman, Harold J., Law and Revolution: The Formation of the Western Legal Tradition (Harvard U Press, 1983)Google Scholar.

19. Novak describes this as the Roman or Latin concept of liberty and refers to it by the Latin “liberte.” Novak, , Catholic Ethic at 99 (cited in note 14)Google Scholar. I have coined the term “autonomous liberty” because it is more descriptive of the concept.

20. Id.

21. Novak says that “those who live in Latin countries in particular are accustomed to thinking of liberte as lawless. In Latin countries, many early leaders of the liberal party prided themselves on being anticlerical, atheistic, not infrequently amoral, and metaphysical skeptics. … [Thus they] do not conceive of liberty as ordered by law, reason, and conscience, or recognize that, without law, liberty (in the Anglo-American sense) cannot be achieved.” Novak, , Catholic Ethic at 99 (cited in note 14)Google Scholar.

22. Here I develop an original paradigm that goes beyond what is found either in the work of John Courtney Murray or Michael Novak. I am indebted to Murray for his understanding of institutional as well as individual dimensions of religious liberty, and I borrow Novak's insight regarding differing concepts of liberty. But, considering the intersection of these distinctions is a work neither scholar has attempted.

23. This traditional assessment was expressed by George Washington, partly in a letter sent May, 1789, to the United Baptist Churches of Virginia, and partly in his “Farewell Address.” In the first he said:

If I could have entertained, the slightest apprehension, that the constitution framed in the convention, where I had the honor to preside, might possibly endanger the religious rights of any ecclesiastical society, certainly I would never have placed my signature to it. Stokes, , 1 Church and State at 495 (cited in note 12)Google Scholar. In the second he added:

Of all the dispositions and habits which lead to political prosperity, Religion and Morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labour to subvert these great pillars of human happiness, these firmest props of the duties of Men and Citizens. … Whatever may be conceded to the influence of refined education on minds of peculiar structure; reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

Id at 494-495.

24. The rights of conscience have received critical attention in the defense and affirmation of religious liberty precisely because conscience is deemed to entail obligation to an authority beyond human control and ability to shape or determine. Reinhold Niebuhr, referring to human conscience, calls it “the sense of moral obligation laid upon one from beyond oneself and of moral unworthiness before a judge.” Niebuhr, Reinhold, The Nature and Destiny of Man 131 (Scribner's, 1941)Google Scholar. Similar to Niebuhr, I contend that conscience is a sense, or awareness, that our actions are known and judged from a standpoint beyond ourselves, beyond our social community, and beyond the realm of contingent reality itself. It is an awareness, at the edges of consciousness self-understanding, that our lives, including every particular thought and action, are being examined from a transcendent perspective, by an authority we do not control but cannot ignore because we are in some way being held accountable whether we like it or not.

25. In contemporary terms, this tendency was illustrated by the atrocious behavior of roving bands of zealous ethnic cleaners in Bosnia, who seemed unrestrained by any sense of moral obligation other than that which they had established within and for the interests of their own ethnic and religious group.

26. This understanding is clearly in view in the 1866 edition of McGuffey's fifth reader as follows:

Religion is a social concern; for it operates powerfully on society, contributing, in various ways, to its stability and prosperity. Religion is not merely a private affair; the community is deeply interested in its diffusion; for it is the best support of the virtues and principles, on which the social order rests. Pure and undefiled religion is, to do good; and it follows, very plainly, that, if God be the Author and Friend of society, then, the recognition of him must enforce all social duty, and enlightened piety must give its whole strength to public order.

McGuffey, William H., ed, McGuffey's New Fifth Eclectic Reader 306 (Wilson, Hinkle & Co, 1866)Google Scholar.

27. One of the finest biblical examples of such witness is found in the life and ministry of the prophet Jeremiah.

Then Jeremiah said to all the officials and all the people: “The LORD has sent me to prophesy against this house [i.e., the king] and this city all the things you have heard. Now reform your ways and your actions and obey the LORD your God. Then the LORD will relent and not bring the disaster he has pronounced against you. As for me, I am in your hands; do with me whatever you think is good and right. Be assured, however, that if you put me to death, you will bring the guilt of innocent blood on yourselves and on the city and on those who live in it, for in truth the LORD has sent me to you to speak all these words in your hearing.”

Jer 26:12-15.

28. This view of religious liberty comports with complete anarchy; and, should a government grant this view full protection under law, it would soon find itself helpless to maintain order at any level. Criminals could justify any action as a matter of pressing personal and self-defined religious conviction, while shifting their convictions as may seem convenient for each circumstance.

29. Government simply has no way to render judgment between an authoritative or counterfeit experience of spiritual revelation. For example, government has no basis of meaningful authority by which to judge the validity of the vision reported by the apostle Paul to evangelize Macedonia [Acts 16:9] as compared to the visions of Joseph Smith, founder of the Mormon religion. That one might be true and the other false, or that both may be true or both false, are surely conceptual possibilities. But that determination is beyond the competence of government to prove or decide.

30. For example, government cannot genuinely discern by external observation when an objection to participating in war is truly a matter of a claimant's submission to higher moral authority, and when it is actually a matter of fear and self-interest cloaked in moralistic rhetoric. That such a distinction exists is clear enough. But where the difference is not readily apparent, the government is bound to grant claimants the benefit of a doubt or risk a serious violation of a genuine moral conviction.

31. For example, in early American society differences regarding contrary claims of conscience were for the most part limited to those that could be evaluated within the larger conceptual framework provided by the Judeo-Christian worldview. Hazardous though it might be, government efforts to determine sincerity of conscience in such circumstances is much easier than in settings that must evaluate conscience claims made by Buddhists, secularists and New Agers, as well as Anglicans, Baptists and Mennonites.

32. For example, government is not able to distinguish in a reliable way between persons who smoke peyote, which contains a narcotic, because they are genuinely convinced it is a necessary religious exercise, and persons who make religious claims merely as a stratagem to justify a desire for the drug's narcotic effect.