religious freedom essay

• Search Menu
• Advance Articles
• Editor's Choice
• Author Guidelines
• Submission Site
• Open Access Options
• Self-Archiving Policy
• About The American Journal of Jurisprudence
• About the Notre Dame Law School
• Editorial Board
• Advertising and Corporate Services
• Journals Career Network
• Dispatch Dates
• Journals on Oxford Academic
• Books on Oxford Academic

Why Religious Freedom is a Human Right

• Article contents
• Figures & tables
• Supplementary Data

Daniel Philpott, Why Religious Freedom is a Human Right, The American Journal of Jurisprudence , Volume 68, Issue 3, December 2023, Pages 177–194, https://doi.org/10.1093/ajj/auae003

• Permissions Icon Permissions

This essay presents a fresh defense of the human right of religious freedom. It addresses two versions of skepticism of this human right, one a liberal variant, which questions religious freedom’s distinctiveness, the other a post-modern variant, which questions religious freedom’s universality. The case for a universal and distinct human right of religious freedom rests upon the claim that religion is a basic human good, manifesting human dignity and warranting a human right. The essay details four respects in which religion fulfills the meaning of a basic human good. Religion is a purposive set of acts, or practices; is a definable phenomenon whose core meaning is right relationship with a superhuman power; entails both an intrinsic good and derivate goods; and is universal in its scope. Finally, crucial to the human right of religious freedom is religion’s interiority, that is, its critical involvement of will, mind, and heart.

Email alerts

Citing articles via.

• Recommend to your Library

Affiliations

• Online ISSN 2049-6494
• Print ISSN 0065-8995
• Copyright © 2024 Notre Dame Law School
• About Oxford Academic
• Publish journals with us
• University press partners
• What we publish
• New features  
• Open access
• Institutional account management
• Rights and permissions
• Get help with access
• Accessibility
• Advertising
• Media enquiries
• Oxford University Press
• Oxford Languages
• University of Oxford

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide

• Copyright © 2024 Oxford University Press
• Cookie settings
• Cookie policy
• Privacy policy
• Legal notice

This Feature Is Available To Subscribers Only

Sign In or Create an Account

This PDF is available to Subscribers Only

For full access to this pdf, sign in to an existing account, or purchase an annual subscription.

Berkley Center

Is religious freedom necessary for other freedoms to flourish.

By: Thomas Farr

August 7, 2012

America’s True History of Religious Tolerance

The idea that the United States has always been a bastion of religious freedom is reassuring—and utterly at odds with the historical record

Kenneth C. Davis

Wading into the controversy surrounding an Islamic center planned for a site near New York City’s Ground Zero memorial this past August, President Obama declared: “This is America. And our commitment to religious freedom must be unshakeable. The principle that people of all faiths are welcome in this country and that they will not be treated differently by their government is essential to who we are.” In doing so, he paid homage to a vision that politicians and preachers have extolled for more than two centuries—that America historically has been a place of religious tolerance. It was a sentiment George Washington voiced shortly after taking the oath of office just a few blocks from Ground Zero.

But is it so?

In the storybook version most of us learned in school, the Pilgrims came to America aboard the Mayflower in search of religious freedom in 1620. The Puritans soon followed, for the same reason. Ever since these religious dissidents arrived at their shining “city upon a hill,” as their governor John Winthrop called it, millions from around the world have done the same, coming to an America where they found a welcome melting pot in which everyone was free to practice his or her own faith.

The problem is that this tidy narrative is an American myth. The real story of religion in America’s past is an often awkward, frequently embarrassing and occasionally bloody tale that most civics books and high-school texts either paper over or shunt to the side. And much of the recent conversation about America’s ideal of religious freedom has paid lip service to this comforting tableau.

From the earliest arrival of Europeans on America’s shores, religion has often been a cudgel, used to discriminate, suppress and even kill the foreign, the “heretic” and the “unbeliever”—including the “heathen” natives already here. Moreover, while it is true that the vast majority of early-generation Americans were Christian, the pitched battles between various Protestant sects and, more explosively, between Protestants and Catholics, present an unavoidable contradiction to the widely held notion that America is a “Christian nation.”

First, a little overlooked history: the initial encounter between Europeans in the future United States came with the establishment of a Huguenot (French Protestant) colony in 1564 at Fort Caroline (near modern Jacksonville, Florida). More than half a century before the Mayflower set sail, French pilgrims had come to America in search of religious freedom.

The Spanish had other ideas. In 1565, they established a forward operating base at St. Augustine and proceeded to wipe out the Fort Caroline colony. The Spanish commander, Pedro Menéndez de Avilés, wrote to the Spanish King Philip II that he had “hanged all those we had found in [Fort Caroline] because...they were scattering the odious Lutheran doctrine in these Provinces.” When hundreds of survivors of a shipwrecked French fleet washed up on the beaches of Florida, they were put to the sword, beside a river the Spanish called Matanzas (“slaughters”). In other words, the first encounter between European Christians in America ended in a blood bath.

The much-ballyhooed arrival of the Pilgrims and Puritans in New England in the early 1600s was indeed a response to persecution that these religious dissenters had experienced in England. But the Puritan fathers of the Massachusetts Bay Colony did not countenance tolerance of opposing religious views. Their “city upon a hill” was a theocracy that brooked no dissent, religious or political.

The most famous dissidents within the Puritan community, Roger Williams and Anne Hutchinson, were banished following disagreements over theology and policy. From Puritan Boston’s earliest days, Catholics (“Papists”) were anathema and were banned from the colonies, along with other non-Puritans. Four Quakers were hanged in Boston between 1659 and 1661 for persistently returning to the city to stand up for their beliefs.

Throughout the colonial era, Anglo-American antipathy toward Catholics—especially French and Spanish Catholics—was pronounced and often reflected in the sermons of such famous clerics as Cotton Mather and in statutes that discriminated against Catholics in matters of property and voting. Anti-Catholic feelings even contributed to the revolutionary mood in America after King George III extended an olive branch to French Catholics in Canada with the Quebec Act of 1774, which recognized their religion.

When George Washington dispatched Benedict Arnold on a mission to court French Canadians’ support for the American Revolution in 1775, he cautioned Arnold not to let their religion get in the way. “Prudence, policy and a true Christian Spirit,” Washington advised, “will lead us to look with compassion upon their errors, without insulting them.” (After Arnold betrayed the American cause, he publicly cited America’s alliance with Catholic France as one of his reasons for doing so.)

In newly independent America, there was a crazy quilt of state laws regarding religion. In Massachusetts, only Christians were allowed to hold public office, and Catholics were allowed to do so only after renouncing papal authority. In 1777, New York State’s constitution banned Catholics from public office (and would do so until 1806). In Maryland, Catholics had full civil rights, but Jews did not. Delaware required an oath affirming belief in the Trinity. Several states, including Massachusetts and South Carolina, had official, state-supported churches.

In 1779, as Virginia’s governor, Thomas Jefferson had drafted a bill that guaranteed legal equality for citizens of all religions—including those of no religion—in the state. It was around then that Jefferson famously wrote, “But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.” But Jefferson’s plan did not advance—until after Patrick (“Give Me Liberty or Give Me Death”) Henry introduced a bill in 1784 calling for state support for “teachers of the Christian religion.”

Future President James Madison stepped into the breach. In a carefully argued essay titled “Memorial and Remonstrance Against Religious Assessments,” the soon-to-be father of the Constitution eloquently laid out reasons why the state had no business supporting Christian instruction. Signed by some 2,000 Virginians, Madison’s argument became a fundamental piece of American political philosophy, a ringing endorsement of the secular state that “should be as familiar to students of American history as the Declaration of Independence and the Constitution,” as Susan Jacoby has written in Freethinkers , her excellent history of American secularism.

Among Madison’s 15 points was his declaration that “the Religion then of every man must be left to the conviction and conscience of every...man to exercise it as these may dictate. This right is in its nature an inalienable right.”

Madison also made a point that any believer of any religion should understand: that the government sanction of a religion was, in essence, a threat to religion. “Who does not see,” he wrote, “that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?” Madison was writing from his memory of Baptist ministers being arrested in his native Virginia.

As a Christian, Madison also noted that Christianity had spread in the face of persecution from worldly powers, not with their help. Christianity, he contended, “disavows a dependence on the powers of this world...for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them.”

Recognizing the idea of America as a refuge for the protester or rebel, Madison also argued that Henry’s proposal was “a departure from that generous policy, which offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country.”

After long debate, Patrick Henry’s bill was defeated, with the opposition outnumbering supporters 12 to 1. Instead, the Virginia legislature took up Jefferson’s plan for the separation of church and state. In 1786, the Virginia Act for Establishing Religious Freedom, modified somewhat from Jefferson’s original draft, became law. The act is one of three accomplishments Jefferson included on his tombstone, along with writing the Declaration and founding the University of Virginia. (He omitted his presidency of the United States.) After the bill was passed, Jefferson proudly wrote that the law “meant to comprehend, within the mantle of its protection, the Jew, the Gentile, the Christian and the Mahometan, the Hindoo and Infidel of every denomination.”

Madison wanted Jefferson’s view to become the law of the land when he went to the Constitutional Convention in Philadelphia in 1787. And as framed in Philadelphia that year, the U.S. Constitution clearly stated in Article VI that federal elective and appointed officials “shall be bound by Oath or Affirmation, to support this Constitution, but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

This passage—along with the facts that the Constitution does not mention God or a deity (except for a pro forma “year of our Lord” date) and that its very first amendment forbids Congress from making laws that would infringe of the free exercise of religion—attests to the founders’ resolve that America be a secular republic. The men who fought the Revolution may have thanked Providence and attended church regularly—or not. But they also fought a war against a country in which the head of state was the head of the church. Knowing well the history of religious warfare that led to America’s settlement, they clearly understood both the dangers of that system and of sectarian conflict.

It was the recognition of that divisive past by the founders—notably Washington, Jefferson, Adams and Madison—that secured America as a secular republic. As president, Washington wrote in 1790: “All possess alike liberty of conscience and immunity of citizenship. ...For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens.”

He was addressing the members of America’s oldest synagogue, the Touro Synagogue in Newport, Rhode Island (where his letter is read aloud every August). In closing, he wrote specifically to the Jews a phrase that applies to Muslims as well: “May the children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other inhabitants, while every one shall sit in safety under his own vine and figtree, and there shall be none to make him afraid.”

As for Adams and Jefferson, they would disagree vehemently over policy, but on the question of religious freedom they were united. “In their seventies,” Jacoby writes, “with a friendship that had survived serious political conflicts, Adams and Jefferson could look back with satisfaction on what they both considered their greatest achievement—their role in establishing a secular government whose legislators would never be required, or permitted, to rule on the legality of theological views.”

Late in his life, James Madison wrote a letter summarizing his views: “And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Govt. will both exist in greater purity, the less they are mixed together.”

While some of America’s early leaders were models of virtuous tolerance, American attitudes were slow to change. The anti-Catholicism of America’s Calvinist past found new voice in the 19th century. The belief widely held and preached by some of the most prominent ministers in America was that Catholics would, if permitted, turn America over to the pope. Anti-Catholic venom was part of the typical American school day, along with Bible readings. In Massachusetts, a convent—coincidentally near the site of the Bunker Hill Monument—was burned to the ground in 1834 by an anti-Catholic mob incited by reports that young women were being abused in the convent school. In Philadelphia, the City of Brotherly Love, anti-Catholic sentiment, combined with the country’s anti-immigrant mood, fueled the Bible Riots of 1844, in which houses were torched, two Catholic churches were destroyed and at least 20 people were killed.

At about the same time, Joseph Smith founded a new American religion—and soon met with the wrath of the mainstream Protestant majority. In 1832, a mob tarred and feathered him, marking the beginning of a long battle between Christian America and Smith’s Mormonism. In October 1838, after a series of conflicts over land and religious tension, Missouri Governor Lilburn Boggs ordered that all Mormons be expelled from his state. Three days later, rogue militiamen massacred 17 church members, including children, at the Mormon settlement of Haun’s Mill. In 1844, a mob murdered Joseph Smith and his brother Hyrum while they were jailed in Carthage, Illinois. No one was ever convicted of the crime.

Even as late as 1960, Catholic presidential candidate John F. Kennedy felt compelled to make a major speech declaring that his loyalty was to America, not the pope. (And as recently as the 2008 Republican primary campaign, Mormon candidate Mitt Romney felt compelled to address the suspicions still directed toward the Church of Jesus Christ of Latter-day Saints.) Of course, America’s anti-Semitism was practiced institutionally as well as socially for decades. With the great threat of “godless” Communism looming in the 1950s, the country’s fear of atheism also reached new heights.

America can still be, as Madison perceived the nation in 1785, “an Asylum to the persecuted and oppressed of every Nation and Religion.” But recognizing that deep religious discord has been part of America’s social DNA is a healthy and necessary step. When we acknowledge that dark past, perhaps the nation will return to that “promised...lustre” of which Madison so grandiloquently wrote.

Kenneth C. Davis is the author of Don’t Know Much About History and A Nation Rising , among other books.

Get the latest History stories in your inbox?

Click to visit our Privacy Statement .

• Undergraduate
• High School
• Architecture
• American History
• Asian History
• Antique Literature
• American Literature
• Asian Literature
• Classic English Literature
• World Literature
• Creative Writing
• Linguistics
• Criminal Justice
• Legal Issues
• Anthropology
• Archaeology
• Political Science
• World Affairs
• African-American Studies
• East European Studies
• Latin-American Studies
• Native-American Studies
• West European Studies
• Family and Consumer Science
• Social Issues
• Women and Gender Studies
• Social Work
• Natural Sciences
• Pharmacology
• Earth science
• Agriculture
• Agricultural Studies
• Computer Science
• IT Management
• Mathematics
• Investments
• Engineering and Technology
• Engineering
• Aeronautics
• Medicine and Health
• Alternative Medicine
• Communications and Media
• Advertising
• Communication Strategies
• Public Relations
• Educational Theories
• Teacher's Career
• Chicago/Turabian
• Company Analysis
• Education Theories
• Shakespeare
• Canadian Studies
• Food Safety
• Relation of Global Warming and Extreme Weather Condition
• Movie Review
• Admission Essay
• Annotated Bibliography
• Application Essay
• Article Critique
• Article Review
• Article Writing
• Book Review
• Business Plan
• Business Proposal
• Capstone Project
• Cover Letter
• Creative Essay
• Dissertation
• Dissertation - Abstract
• Dissertation - Conclusion
• Dissertation - Discussion
• Dissertation - Hypothesis
• Dissertation - Introduction
• Dissertation - Literature
• Dissertation - Methodology
• Dissertation - Results
• GCSE Coursework
• Grant Proposal
• Marketing Plan
• Multiple Choice Quiz
• Personal Statement
• Power Point Presentation
• Power Point Presentation With Speaker Notes
• Questionnaire
• Reaction Paper

Research Paper

• Research Proposal
• SWOT analysis
• Thesis Paper
• Online Quiz
• Literature Review
• Movie Analysis
• Statistics problem
• Math Problem
• All papers examples
• How It Works
• Money Back Policy
• Terms of Use
• Privacy Policy
• We Are Hiring

Religious Freedom, Essay Example

Pages: 6

Words: 1663

Hire a Writer for Custom Essay

Use 10% Off Discount: "custom10" in 1 Click 👇

You are free to use it as an inspiration or a source for your own work.

There is religious liberty to the documented sources on how it impacts every discussion input and their ability to understand every detailed historical analysis in America, which has led to controversial opinions. In the United States, the history of religion has seen it adopt and undergo many amendments to incorporate the establishment of diversified choices and show the importance of freedom development (Curtis 2016). The American religious society is still on a halt when pondering the main establishments in every clause of the existing religious beliefs and relative functions. The main question is relishing the existing establishment with a focus on understanding the importance of belief in religion to different human beings.

The declaration on the existing models states that someone’s belief in a religion should not be questioned on any grounds, and the declarations are only relative to function, and a unanimous decision can be handling the listed requirements on efforts planning and associational differences. A tussle in the court proved that it is important to understand a basic planning choice in understanding a positional requirement over the choices and options. Arguments by Murray shows that variated philosophical arguments can be essentially documented in a religious freedom context(Thomas, Jolyon Baraka 2019). In so making, the contented approach considers religious freedom as a natural law that protects human dignity

In Maryland, religious freedom and empowerment are used as a basic agenda in turning things around and analyzing major concepts, which serves as a philosophical concept in understanding and causing the emergence of western ideologies as a basic concept with development ideas. The state generational law is a relief system that brings firms’ belief into the proposition that the main declarations are prohibited from taking diversified state positions. The public office is a unanimous concept of position. Therefore any congress must make laws to understand the establishment of the diversified religious concepts that shall help redress the diversified differences in religious freedom. In understanding agenda, the United States safeguards interests in religion as the amendment provides freedom of expression belief and expression, and this makes the government request the damages and complaints, which has an indirect relationship right offering an establishment of religion having direct light access, which offers partial damages to complaints over religions and bars, anyone, from favoring religion against each other.

Religion is important and should be partial to all regardless of the relative social institutions. According to (Hurd, Elizabeth, and Shakman 2015), the admission selection in a school, for instance, was denied access from a radiotherapy class, which affected a major understanding of similar happenings, which questions everyone’s guiding principle as a regulated thought process and analysis. Similar happenings are observed as Dr. Doughterty tells Brandon that “religion is a field that requires to be exercised in another location.”Who guides this location addresses that religion cannot be practiced in any school despite the contributions that come with religion as a major undertaking into the required process. The major reason for undertaking various record labels is that an undertaking is anti-discriminatory, and every conscious choice is justifiable, which makes it entirely unconstitutional. Since every university should offer training to any qualified student regardless of their rational concept or choices, the federal court system calls for diversified cases on achieving this as a personal direction. This concept is key as every religious principal shall have a display showing the main regulated concepts in analyzing the main tools of practice as a major introductory element of success. This principle offers integrity when handling religion as it is direct from a morality of underlying principles of religion.

The morality concept underlies every meaning with a commitment to the underlying informational speech concept as a term for understanding the main laws of an individual as a justice system. Reiterating GeorgeWashingtons’ farewell analysis(Hurd, Elizabeth and  Shakman 2015) where every character is promoted as a promotional planning occurrence, the important requirements are offered as an object of interest, and the justice system is expressed as a tool of operation, which helps to build an analysis output. In his statement, He observed that religion could be a characteristic that operates on the minimum underlying principles as an objective planning agenda, and the expressions can be limited to options and choices. This can be a leading principle in understanding the morality of options when respecting the laws and the justice systems since everything is sustained in a built-in concept model where the sustainability of the main analysis impacts the choice planning model. The views and opinions are obligated to the religious freedom development concept where there should be existing regulations controlling the practice of religion.

According to ideals made in a court system, religious freedom should only be based on ideals, not concepts. The American government shows a morality of choice and operation when putting the decisions from self-regulated ideals on how religion can be conceived to show an end of an operation, and the basic survival skills can be a religious affiliation or adaptation to interest. A choice panel is a religious description of the ascertained interest in the program, which is ideal for any American system(Kaufman, Robert and Stephan Haggard 2019). The moral society observes a diversified conflict of interest, and this religion self affects the principled agenda from a pragmatic context, and the arguments are based on a religious operation.

The liberty of religion should be preserved as a necessary anchorage with a personal rule to the free will of choice and concept operation. This basic liberty agenda has tools for activity, and this is a liberation concept with an established choice of interest, which prohibits regional influence, and this is religion affliction which offers a free exercise of the regulated thought system(Thomas, Jolyon Baraka 2019). Moreover, the congress system should make no laws regarding the religious establishment. This can offer laws respecting religious establishment and planning, which offers confirmation of interest and prohibition of the choice model on a free exercise of the amendment with an average choice. The amendment observed in the constitutional affiliation offers a free exercise of will and planning; this makes everyone assemble

American technology follows the regulated knowledge gap and influences the prohibited choice of interest with a bridge freedom of speech and the right to understand amendment issues and criteria for the First Amendment in analyzing some of the religious affiliations as congress is limited from making any laws concerning having an establishment that affects comprehension of thoughts and ideas. The amendments and petitions are important in regulated awareness.

There are existing court cases, such as the Johnson and Gregory case, where the Republican conventional agenda protested the violation of interest held in Dallas. Moreover, in the Texas statute, the desecration of objectivity is venerated in defense of the  American flag, which was observed to be a religious emblem. Their reasoning was on a 5-4 basis, making it a religious symbolic speech(Thomas, Jolyon Baraka ,2019). In observation of the constitutional amendment is an offensive statement that suppresses the anger aroused solely based on apprehension, which is venerated in practices. The diversity observed in belief systems is conclusive feedback of the McCreary cases v.ACLU, which has led to the unconstitutional crisis, and this displays the ignorance of the political offices in some of the religious beliefs which led to the “establishment clause.”It prohibited access to religious beliefs, which happened to a different extent. Another case is a court examining the anti-bigamy statute in the First Amendment, which banned every regulated belief system which allowed the government to function regardless of the existing religious belief.

The American society, the statute shows that the religious practice in America is believed to be a public life crisis, and the federal government upholds this religious practice. The examination of plural marriage is a religious practice upheld in federal law courts(Lewis and Andrew., 2019). The republicans lament the religious trends in America, while the democrats hold a chain of mixed reactions over the issues. The gap issues show that religious activities in America are activity-based, and the dependence can only be manifested in a free-will organization that makes every one of the existing languages available (Kaufman, Robert R., and Stephan Haggard  2019). The religious basis is a religious belief, and organizations that seem to do good strengthen the religious organizations. American society believes that the republican institutions regulate religious institutions, making the parties have a highly regulated jurisdictional functional difference. The existing gaps are uniformly religious with a religious acumen under different religious Acumen, a religious role from a diversified societal outlook.

In conclusion, Religious Freedom in America can not be tolerated, and the amendments exist based on religious practice, which means discrimination cannot help different countries to diversify. However, a country can tolerate religion to a certain extent, which helps the government to speak against people’s discrimination with a regulated government belief. Altogether, the government should not discriminate against the existing religious difference since there exist establishment claws where there is supposed to be the authority with freedom of religion in the American government where the delegations have a standstill w with a civic authority. The constitutional basis is a provision on the amendment choices which prevents a vast majority of outcomes from any of their particular belief system, and this has been a destructive measure against involving the government in any of the existent affairs. The essential existence holds a diversified passion of existence holding a different position, but all the same, religious practice should be a liberty to every different individual.

Works Cited

Curtis, Finbarr. “The production of American religious freedom.”  The Production of American Religious Freedom . New York University Press, 2016. Curtis, Finbarr. “https://www.degruyter.com/document/doi/10.18574/9781479823734/html/

Hurd, Elizabeth Shakman. “Beyond religious freedom.”  Beyond Religious Freedom . Princeton University Press, 2015. https://www.degruyter.com/document/doi/10.1515/9781400873814/html/

Kaufman, Robert R., and Stephan Haggard. “Democratic decline in the United States: What can we learn from middle-income backsliding?.”  Perspectives on Politics  17.2 (2019): 417-432. https://www.cambridge.org/core/journals/perspectives-on-politics/article/democratic-decline-in-the-united-states-what-can-we-learn-from-middleincome-backsliding/1D9804407AAD81287AA0CA620BABDEA6/

Lewis, Andrew R. “The inclusion-moderation thesis: The US republican party and the Christian right.”  Oxford Research Encyclopedia of Politics . 2019. https://oxfordre.com/politics/display/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190228637-e-665/

Thomas, Jolyon Baraka.  Faking Liberties: Religious Freedom in American-Occupied Japan . Class 200: New Studies in Reli, 2019. https://books.google.com/books?hl=en&lr=&id=WQOHDwAAQBAJ&oi=fnd&pg=PR7&dq=Religious+Freedom+in+America&ots=5VZKkyalIz&sig=b_lBgP6LeB3Jq-h4kSz6qYPWajA/

Stuck with your Essay?

Get in touch with one of our experts for instant help!

Health Diary Project, Essay Example

Exploring the Benefits and Risks of Electronic Flight Bags, Research Paper Example

Time is precious

don’t waste it!

Plagiarism-free guarantee

Privacy guarantee

Secure checkout

Money back guarantee

Related Essay Samples & Examples

Voting as a civic responsibility, essay example.

Pages: 1

Words: 287

Utilitarianism and Its Applications, Essay Example

Words: 356

The Age-Related Changes of the Older Person, Essay Example

Pages: 2

Words: 448

The Problems ESOL Teachers Face, Essay Example

Pages: 8

Words: 2293

Should English Be the Primary Language? Essay Example

Pages: 4

Words: 999

The Term “Social Construction of Reality”, Essay Example

Words: 371

The state, religion, and freedom: a review essay of Persecution & toleration

• Published: 20 November 2020
• Volume 35 , pages 257–266, ( 2022 )

Cite this article

• Metin Coşgel   ORCID: orcid.org/0000-0002-1249-1535 1  

443 Accesses

5 Altmetric

Explore all metrics

Persecution and Toleration offers a novel and superb analysis of the birth of religious freedom. Rather than seek an ideational account of the rise of religious freedom, Johnson and Koyama investigate changes in the institutional environment that governed the relationship between religion and the state. These changes made it in the interest of policy makers in modern Europe to grant greater religious freedom by transitioning from identity rules to impersonal laws in maintaining order. The book introduces a new thought-provoking conceptual framework that can be extended to examine the complicated history of the state’s interaction with religion, comparative analysis of the relationship between state capacity and political legitimacy, and various other issues concerning the treatment of minorities and heterodox practices around the world.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Price includes VAT (Russian Federation)

Instant access to the full article PDF.

Rent this article via DeepDyve

Institutional subscriptions

Similar content being viewed by others

The Ideological Rhetoric of the Trump Platform and Edmund Burke’s Theory of a Generational Compact

Religious Extremism

Revisiting the islam-patriarchy nexus: is religious fundamentalism the central cultural barrier to gender equality?

Researchers have recently studied legitimizing relationship between political and religious authorities to study institutions, such as state religion, and puzzling phenomena, such as bans on technology. See, for example, Coşgel and Miceli ( 2009 ), and Coşgel et al. ( 2012 , 2018 ).

Coşgel, M. M., Miceli, T. J., & Rubin, J. (2012). The political economy of mass printing: Legitimacy and technological change in the ottoman empire. Journal of Comparative Economics, 40 (3), 357–371.

Article   Google Scholar  

Coşgel, M., Histen, M., Miceli, T. J., & Yildirim, S. (2018). State and religion over time. Journal of Comparative Economics, 46 (1), 20–34.

Coşgel, M., & Miceli, T. J. (2009). State and religion. Journal of Comparative Economics, 37 (3), 402–416.

Gill, A. (2008). The political origins of religious liberty . New York: Cambridge University Press.

Google Scholar  

Iannaccone, L. R. (1998). Introduction to the economics of religion. Journal of Economic Literature, 36 (3), 1465–1495.

Johnson, N. D., & Koyama, M. (2019). Persecution & toleration: The long road to religious freedom . New York: Cambridge University Press.

Book   Google Scholar  

North, D. C., Wallis, J. J., & Weingast, B. R. (2009). Violence and social orders: A conceptua framework for interpreting recorded human history . New York: Cambridge University Press.

Rubin, J. T. (2017). Rulers, religion, and riches: Why the west got rich and the Middle East did not . New York: Cambridge University Press.

Download references

Author information

Authors and affiliations.

Department of Economics, The University of Connecticut, Storrs, CT, 06269-1063, USA

Metin Coşgel

You can also search for this author in PubMed   Google Scholar

Corresponding author

Correspondence to Metin Coşgel .

Additional information

Publisher’s note.

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Reprints and permissions

About this article

Coşgel, M. The state, religion, and freedom: a review essay of Persecution & toleration . Rev Austrian Econ 35 , 257–266 (2022). https://doi.org/10.1007/s11138-020-00533-6

Download citation

Accepted : 15 November 2020

Published : 20 November 2020

Issue Date : June 2022

DOI : https://doi.org/10.1007/s11138-020-00533-6

Share this article

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

• Persecution and toleration
• Religious freedom
• State capacity
• Political legitimacy
• Legal order
• Identity rules
• General laws
• Heterodox practices

JEL classification

• Find a journal
• Publish with us
• Track your research

Arguments for the Human Right to Religious Freedom

Arguments for the human right to religious freedom 1.

John Courtney Murray, S.J.

The following article is the closest that the later Murray came to a "purely natural law," philosophical argument. As mentioned in the general introduction, Murray began his 1945 philosophical argument with "essential definitions" of key terms that he though relevant to that debate—terms such as "conscience," "law," "state," and "God." Here he is defining the term "human dignity" that serves as the philosophical foundation for the right to religious freedom. In doing so, however, he is not delineating a timeless essence. Rather, he is making explicit a notion that, he contends, has emerged within Western societies. After the mid-1950s, natural law had become for Murray a developing tradition of ideas, commitments, and procedures that course through the social and political thought of a secular society that is continuously on the move.

In terms of the structure Murray established in "The Problem of Religious Freedom," this complex, secular notion of human dignity "converges" with the church's own, theologically-based judgments concerning the church's place in human history and its own freedom. That the secular society's and the church's judgments ought to converge is of course based in Murray's notion of Gelasian dualism (and concordia), as is his judgment that the church ought to affirm and defend human dignity as a social good. Since Murray is here simply trying to tone up Dignitatis's philosophical argument, the theological presuppositions of his earlier arguments recede into the background.

Here Murray strengthened his conciliar argument by adjusting the relative positions of the various principles that he had clarified in those conciliar discussions. The reader might especially note the positioning of the principle "as much freedom as possible" in this article, in contrast to its place in "Problem."

Yet a question remains: Is this what Western societies affirm when they proclaim commitments to human dignity? For Murray, the notion is intrinsically social and historical. It involves a view of the human person as constantly active within, and possessing responsibilities toward, the societies in which they live. Some criticisms of Western individualism do not find such a social notion of the human person at the heart of the Western experiment, while others find sociality there, but also a reticence to talk about those implied social commitments. Murray's understanding of human dignity also includes an intrinsic drive toward all that the human mind and heart can question, including the reality of God. Again, some criticisms of Western culture find at its core a constraining materialism. At the least, Murray's exposition perhaps can demonstrate that our alternatives are not simply between individualistic isolation and communitarian emersion, materialistic constriction and spiritualistic escapism. It might be possible to develop an understanding of the human person that preserves both the strong sense of personal integrity and worth of the individualist traditions, the social interdependence of more communitarian traditions, and a strong concern for material existence that is involved in commitments to social justice—Editor.

The Vatican Declaration " Dignitatis humanae personae " affirmed that the human person has a right to religious freedom. It showed that the concept of religious freedom is clear, distinct, and technically exact regarding both its ground and its object, and adequately developed concerning what it embraces. First I will reiterate what the council meant and what generally is meant by religious freedom. Then I will address the more difficult question of how to construct the argument—whether derived from reason or from revelation—that will give a solid foundation to what the Declaration affirms. For nearly four years the conciliar Fathers and experts vigorously debated this justification, eventually completing the brief argument found in the Declaration (n.2,3). Even so, it is fair to say that this argument has pleased or pleases no one in all respects.

We can legitimately debate how better to construct the argument. For the Council's teaching authority falls upon what it affirmed, not upon the reasons it adduced for its affirmation. The Council did not intend that the Declaration establish an apodictic proof. The Declaration was merely to outline certain arguments, mainly to demonstrate that the affirmation of religious freedom is doctrinal. 2 The church's affirmation is based upon arguments drawn both from human reason and from Christian sources. Please allow me, then, what you have allowed others: to discuss this whole matter briefly.

I. Civil Religious Freedom

To begin with, it will be useful carefully to delimit what we must argue. This will not be difficult if we keep in mind that the concept of religious freedom includes a two-fold immunity from coercion.

First, in the sphere of religion no one is to be compelled to act against his conscience. Nowadays this principle is one upon which all persons of judgement agree, unshakably. Enough, then, to recall that for us Christians this principle derives its strongest argument from the necessary freedom of the act of Christian faith, a doctrine licitly and necessarily extended to the profession of every religion.

Second, in the sphere of religion no one is to be impeded from acting according to his conscience—in public or in private, alone or in association with others. It is around this second immunity that the conciliar debate turned. This second immunity had long been a historical problem; it remains a theoretical or doctrinal problem. It will help to clarify the problem.

Discussion of the human right to religious freedom calls for further inquiry into the foundations of the juridical relationship among human beings in civil society. The concept of a juridical relationship properly includes the notion of a correspondence between rights and duties. To one person's right there is a corresponding duty incumbent on others to do or give or omit something. In our case, the human person demands by right the omission of all coercive action impeding a person or a community from acting according to its conscience in religious matters. Therefore, the affirmation that every person has a right to such immunity is simultaneously an affirmation that no other person or power in society has a right to use coercion. On the contrary all others are duty- bound to refrain from coercive action. The second immunity, then, requires a compelling argument that no other person can raise, as a right or duty, a valid claim against that immunity or, put positively, that all are obliged to respect that immunity. The whole matter hinges on this argument for the juridical actuality of the second immunity.

To clarify this point, let us suppose that there does exist in human society a power that possesses the right to prohibit religious practice. Such a power could only be the public power (the state). Certainly a right of this kind could not be possessed by any private person or intermediate social group. One could argue—indeed, many have so argued—that the public power does possess such a right because of its duty toward the good of society and because it has a monopoly on coercive power that it must exercise for the good of society either by means of legislation or of administrative action.

To establish, then, that the human person enjoys a right to full religious freedom, one must first establish that the public power has no right to restrict religious freedom but has rather the duty to acknowledge and protect it.

Such being the case, clearly our inquiry, although of its nature ethico-juridical, is nevertheless finally and formally political, or what is called constitutional. By this I mean that it deals with the duties and rights of the public power—their nature, their extent, and their limits.

The classic difficulty in this matter is well known. It begins in the human person's obligation to act intelligently, i.e., according to his conscience. Yet it sometimes can and often does happen that someone who acts according to his conscience can act contrary to the objective order of truth—for example, by practicing a form of public worship not wholly in agreement with the divine ordinance or by disseminating religious opinions not in conformity with divine revelation. Surely spreading religious errors or practicing false forms of worship is per se evil in the moral order. About this there is no doubt. But our inquiry is not about the moral but about the juridical order. Does the public power have the duty and the right to repress opinions, practices, religious rites because they are erroneous and dangerous to the common good?

The Vatican Council's Declaration denies that such duty and such right fall within the competence of the public power. Yet we still must ask: On what justifying argument does this denial rest? Why may the limitation placed on the public power in matters of religion be considered just and legitimate? Thus is the state of our question. I will now evaluate the various arguments that were put forward to confirm the person's right to freedom in religious matters.

II. Arguments for Religious Freedom

First we must note that the doctrine of the Declaration is today supported by the sense and near unanimous consent of the human race. This is also intimated at the very beginning of the Declaration. The Declaration also suggests that this consent does not rely upon the laicist ideology so widespread in the nineteenth century but upon the increasingly worldwide consciousness of the dignity of the human person. It relies, therefore, upon an objective truth manifested to the people of our time by their own consciousness. Before adducing other arguments, then, the presupposition obtains and prevails that the teaching of the Declaration is also true. Securus enim iudicat orbis terrarum . 3

From this it follows that the Council's sole purpose in adducing the argument in favor of the right to religious freedom is to clarify and strengthen under the light of both reason and Christian revelation the more of less confused contemporary consciousness of human dignity.

A: From Conscience

The first conciliar attempt to do so was laid out in the arguments of the first and second schemata. 4 The basis of that argument was the moral principle that in religious matters man in held bound to follow his conscience even if erroneous. From this moral principle the schema deduced, as if immediately, the moral-juridical principle that to man is due the right to be free in society to follow his conscience.

This moral argument if correctly expounded has its force. But ultimately it is defective because unable to demonstrate what, in line with our statements above, has to be demonstrated.

The moral principle is entirely valid that man is duty-bound always to follow his conscience. From this follows the moral-juridical principle that man has the right to fulfill his duty. No difficulty arises if the conscience in question is right and true. This is evident. But if the conscience in question is right but erroneous, it cannot give rise to a juridical relationship between persons. From one human being's erroneous conscience no duty follows for others to act or perform or omit anything. Some might insist that the first two schemata additionally presuppose that the public power lacks any right to prevent human beings in society from acting according to erroneous consciences. Perhaps it does, even though this is not immediately apparent from the text. Even so, the schemata's argument failed to demonstrate why the public power lacks this right.

This being the case, the argument fails to support that immunity upon which our whole inquiry hinges. Hence it is not surprising that the Council's third schema—entitled "corrected text"— abandoned this line of argument that would ground the right to religious freedom in the dictates of conscience. From the third schema down to the promulgation of the Declaration, the foundation for the right to religious freedom is placed in the dignity of the human person. Rightly and wisely.

I shall leave aside the justifying arguments found in the subsequent schemata and come at once to the final, definitive text. The text sets forth two main arguments and, to give completeness to the doctrine, a third additional argument based upon the faith. 5

B. From the Obligation to Search After the Truth

In keeping with the wishes of many council Fathers, the first argument attempts ontologically to ground religious freedom in the fact that all men "are impelled by their nature and are bound besides by a moral obligation to seek the truth, especially truth regarding religion. They are also bound, once they have learned the truth, to adhere to it and to regulate their whole lives according to its demands" (no.2). From this moral obligation the argument next deduces the human right to immunity from external coercion in fulfilling his obligations. The further assertion is made that "the exercise (of this right) cannot be impeded if the just public order is preserved."

Obviously this argument aims to vindicate the whole concept of religious freedom insofar as it imports the double immunity from coercion. What are we to think of this argument?

The argument is valid and on target. Undeniably the demand for freedom has its basis in man's intellectual nature, in the human capacity to seek, to embrace, and to manifest by his way of life the truth to which he is ordered. In no other way can he perform his duty toward truth than by his personal assent and free deliberation. What is more, from this single consideration it is already clear that no one is to be forced to act against his conscience or against the demands of the truth that he has in fact found, or at least thinks that he has found. If so forced, he would be acting against his intellectual nature itself.

Yet we may still ask whether this demand for freedom, which flows from the source just mentioned, has enough power to establish a true right in keeping with which no one is to be impeded from acting according to his conscience in religious matters. Put differently: Are man's natural and moral links to truth powerful enough to engender a political relationship between the human person and the public power so that the latter is duty-bound not to prevent the person from acting according to his conscience—whether the person acts alone or in association with others? It seems not.

Man is certainly impelled by his nature, and is obliged morally, to seek the truth so that he might conform his life to the truth, once found. Yet quite a few, either after searching for religious truth or not searching for it, actually cling to more or less false opinions that they wish to put into practice publicly and to disseminate in society. To highlight again the point upon which our investigation hinges, let us imagine public powers speaking to these erring people as follows:

"We acknowledge and deeply respect the impulse to seek truth implanted in human nature. We acknowledge, too, your moral obligation to conform your life to truth's demands. But, sorry to say, we judge you to be in error. For in the sphere of religion we possess objective truth. More than that, in this society we represent the common good as well as religious truth—in fact religious truth is an integral part of the common good. In your private and in your family life, therefore, you may lawfully act according to your errors. However, we acknowledge no duty on our part to refrain from coercion in your regard when in the public life of society, which is our concern, you set about introducing your false forms of worship or spreading your errors. Continue, then, your search for truth until you find it—we possess it—so that you may be able to act in public in keeping with it."

Is this proclamation imaginary? Hardly! Time and again over the centuries public powers have issued similar statements. And what answer can the poor people make who are thus judged to be living in error? None, certainly, if we stay within the principles laid down in the Declaration's first argument. For we can grant the premiss of those principles: that those in error have an obligation to seek the truth in order to learn it and act in keeping with it. But we deny that from those principles the conclusion follows that those in error have the right not to be impeded from acting in public according to their consciences. It seems correct to deny this conclusion, since it appears to extend beyond its premisses.

Assuredly those judged to be misguided would like to object that the public power has no right to issue judgements about objective truth in the religious sphere, that even less has it the right to transform those judgements into coercive legislation, thereby preventing its citizens from acting according to their consciences. This is as valid an objection as can be. But I ask: Does its validity proceed from the ontological basis of religious freedom as the Declaration claims and conceives that it does? It seems not.

For it may be said, and some at times have so claimed, that the right of civil power to repress false forms of worship or religious errors is compatible with man's moral obligation to seek the truth in order to act according to it. For such repression does not in the least prevent the quest for truth, nor does it prevent acting according to the truth. What it does prevent are public activities that proceed from a basis in error and that thus cause harm to the public good. This opinion is not to be scorned. It has even been widely received at times within the Church itself.

Admittedly it was mainly pastoral considerations that led the Fathers to accept this first argument in the Declaration, the argument that situates the ontological roots of religious freedom in the obligation to seek the truth. Some Fathers feared the establishment of a kind of separation between truth and freedom, or more exactly, a separation between the order of truth and the juridical order that equips man with right against others. Of course this was an entirely legitimate concern. Still, the speculative question remains: Is it correct to place the ontological ground for religious freedom in man's natural and moral relationships to truth? On this point doubt may be allowed.

C. From the Person's Social Nature

The same pastoral uneasiness apparently controls the second major argument in the Declaration. This argument begins with the divine law to which every human being is subject and in which his nature makes him a participant. From this premise the argument at once concludes to man's moral obligation to investigate what the precepts of the divine law might be. The point is made that this investigation ought to be conducted in a social manner. The argument then lays down another moral principle—that man perceives the dictates of the divine law through the mediation of his conscience, which he is therefore always bound to follow. After positing these moral principles, the argument proceeds to a conclusion that is juridical: that not surprisingly man has a right to the two immunities that form the object of the right to religious freedom.

I acknowledge the value of this argument, provided the following distinction is made that always must be made. Indisputably the argument validly shows that no one is to be forced to act against his conscience, for by so acting a person would be doing wrong. But the second question recurs. Does it follow from this argument that no one is to be prevented from acting in public according to his conscience? To establish immunity from this kind of coercion—and this is specific to religious freedom in its modern meaning—the argument appeals to the necessary connection between internal acts of religion and those outward acts by which, in keeping with his social nature, a human being displays his religious convictions in a public way. Given this connection, the argument runs as follows: A purely human power cannot forbid internal acts; it is therefore equally powerless to forbid external acts.

But does not the fallacy of begging the question somehow lurk in this argument? It supposes that in society no power exists with authority reaching far enough to warrant its legitimately forbidding public acts of religion, even acts that transgress objective truth or divine law or even the common good. This must be established; it is the very heart of the matter under discussion. It is not proved by stating that persons are morally obliged to obey divine law as known by them through the mediation of their consciences. Nor is it proved by stating that human nature is social and requires that people profess their religion in a public and communitarian manner.

D. From the Limits of Public Power

Finally, there remains the third argument of the Declaration. It does concern the limits of the public power. This argument is introduced with the word Praeterea ["Furthermore"]. This suggests that the argument is added as a complement to the argument so far presented, a complement to an argument that is presumed in itself sufficient to justify the human right to religious freedom in its double sense.

But if the state of the question about this human right is examined thoroughly, it is at once evident that this political argument is of primary importance. Without it any other argument would not sufficiently settle the question. For the very question concerns the limits of public power in religious matters.

The Declaration makes the felicitous assertion that public power "must be said to exceed its limits if it should presume to direct or to impede religious acts" (n.3). Felicitous, I repeat, and altogether true. But it is a simple assertion for whose truth no reasons are brought forward. May I be permitted, as long as time allows, to develop this political argument. I proceed in outline form, schematically, by enumerating the principles without further development. The intention of the argument I offer is the same as that prefixed to the Declaration: "to develop the teaching of recent Popes about the inviolable rights of the human person and about the juridical ordering of society" (n.1).

The argument begins properly from a first principle: Every human person is endowed with a dignity that surpasses the rest of creatures because the human person is independent [in charge of himself, autonomous]. The primordial demand of that dignity, then, is that man acts by his own counsel and purpose, using and enjoying his freedom, moved, not by external coercion, but internally by the risk of his whole existence. In a word, human dignity consists formally in the person's responsibility for himself and, what is more, for his world. So great is his dignity that not even God can take it away—by taking upon Himself or unto Himself the responsibility for his life and for his fate. This in the Christian tradition, especially from the Greek Fathers on, is the dignity of the person conceived, fashioned in the image of God. The person's intellectual nature is a prior condition, the absence of which would render his assumption of responsibility impossible. Formally, however, human dignity consists in bearing this responsibility.

Now, from the first, ontological principle (the dignity or the human person), there follows a second principle, the social principle, which Pope Pius XII and later John XXIII began to develop somewhat fully. The social principle states that the human person is the subject, foundation, and end of the entire social life. 6

For our purpose, the chief force of the social principle lies in its establishing an indissoluble connection between the moral and the juridical orders. This connection must not be conceived in some abstract manner but in a wholly concrete way. For the connection is the human person itself, really existing, in the presence of its God and Lord, in association with others in this historic world, but in such wise that it transcends by reason of its end both society and the whole world. The human person exists in God's presence as a moral subject bound by duties toward the moral order and toward the historical order of salvation established by Jesus Christ. The human person exists with others in society as a moral-juridical subject furnished with rights that flow directly and altogether from human nature, never to be alienated from that nature. The juridical order cannot be sundered from the moral order, any more than the human person can be halved.

Evidently, in this subordinate place we can and ought to collect and situate those things that the Declaration said so beautifully about the natural human impulse to seek truth and about the person's moral obligation to live according to the truth once found. They do illustrate the first ontological principle and the second social principle. 7

Now, from the first and the second principles, the ontological and the social, taken together, there follows a third principle, the so-called principle of the free society. This principle affirms that man in society must be accorded as much freedom as possible, and that that freedom is not to be restricted unless and insofar as is necessary. By necessary I mean the restraint needed to preserve society's very existence or—to use the concept and terms of the Declaration itself—necessary for preserving the public order in its juridical, political, and moral aspects

Parallel with the third principle, a fourth issues from taking the first two, the ontological and the social, together. This principle is juridical and maintains that all citizens enjoy juridical equality in society. 8 This principle rests upon the truth that all persons are peers in natural dignity and that every human being is equally the subject, foundation, and end of human society.

Finally, there follows a fifth principle, the political principle. It is admirably expressed in the following words of Pius XII, later quoted by John XXIII. "To protect the inviolable rights proper to human beings and to ensure that everyone may discharge his duties with greater facility—this is the paramount duty of every public power." 9 This constitutes for the public power its first and principal concern for the common good—the effective protection of the human person and its dignity. This definition of the paramount function of public power rests clearly upon the first four principles.

Further, all five principles cohere with one another in such a way that they form a kind of vision of the human person in society and of society itself, of the juridical ordering of society and of the common good considered in its most fundamental dimensions, and finally of the duties of the public power toward persons and society. Upon this vision, which recent pontiffs have newly elaborated while working within the tradition, rests the whole doctrine of the Vatican Declaration on Religious Freedom. In other words, the five principles just enumerated taken together finally bring our whole investigation to a point of decision. For they are sufficient to constitute that relationship between the human person and the public juridical power. Together they fully characterize the notion of religious freedom.

They are also sufficient to confirm the other human and civil freedoms with which John XXIII dealt in an eminent manner in his Encyclical Pacem in Terris . Along with these freedoms religious freedom constitutes an order of freedoms in society. Religious freedom cannot be discussed apart from discussion of this whole body of freedoms. All human freedoms stand or fall together—a fact that secular experience has made clear enough.

This said, it is not difficult to construct an argument for the human right to religious freedom.

III. A needed Argument

The first thing to note is that the dignity and the freedom of the human person should receive primary attention since they pertain to the goods that are proper to the human spirit. As for these goods, the first of which is the good of religion, the most important and urgent demand is for freedom. For human dignity demands that in making this fundamental religious option and in carrying it out through every type of religious action, whether private or public, in all these aspects a person should act by his own deliberation and purpose, enjoying immunity from all external coercion so that in the presence of God he takes responsibility on himself alone for his religious decisions and acts. This demand of both freedom and responsibility is the ultimate ontological ground of religious freedom as it is likewise the ground of the other human freedoms.

Now, this demand is grounded upon the very existence of the human person, or, if one prefers, in the objective truth about the human person. Therefore it is revealed as a juridical value in society, so that it can impose upon the public power the duty to refrain from keeping the human person from acting in religious matters according to his dignity. For the public power is bound to acknowledge and to fulfill this duty by reason of its principal function, the protection of the dignity of the person. Once this duty is demonstrated and acknowledged, the immunity from coercion in religious matters demanded by human dignity becomes actually the object of a right. For the juridical actuality of a right is established wherever a corresponding duty is established and is acknowledged, once the validity of the ground for a right is assured and recognized.

Furthermore, the above mentioned principle of a free society—taken together with the principle of the juridical equality of all citizens—likewise sets the outer limits on just how far the public power must refrain from preventing someone from acting according to his conscience. The free exercise of religion in society ought not be restricted save insofar as it is necessary, that is, save when a public act ceases to be an exercise of religion because proven to be a crime against public order.

The following considerations will clarify this. The foundation of human society lies in the truth about the human person, or in its dignity, that is, in its demand for responsible freedom. That which in justice is preeminently owed to the person is freedom—as much freedom as possible—in order that society thus may be born toward its goals, which are those of the human person itself, by the strength and energies of persons in society bound together with one another by love. Truth and justice, therefore, and love itself demand that the practice of freedom in society be kept vigorous, especially with respect to the goods belonging to the human spirit and so much the more with respect to religion. Now this demand for freedom, following as it does from the objective truth of the person in society and from justice itself, naturally engenders the juridical relationship between the person and the public power. The public power is duty-bound to acknowledge the truth about the person, to protect and advance the person, and to render the justice owed the person.

Again, from this follows the conclusion that no one is to be prevented in the matter of religion from acting according to the demands of his dignity or according to his inmost religious convictions. Nor does this immunity cease except where just demands of public order are proven to have the urgency of a higher force.

Quod erat demonstandum. Or rather, this argument from the five principles mentioned is sufficient; nothing else is required.

IV. The Question of a Theological Argument

Of course there remains the argument for religious freedom as drawn from Christian revelation, but this is a lengthy question and my discussion has already been too long.

Suffice it to say that the line of argument that the Declaration follows is entirely valid and sound. It embraces three major statements. (1) The human person's right to religious freedom cannot itself be proven from Holy Scripture, nor from Christian revelation. (2) Yet the foundation of this right, the dignity of the human person, has ampler and more brilliant confirmation in Holy Scripture than can be drawn from human reason alone. (3) By a long historical evolution society has finally reached the notion of religious freedom as a human right. And a foundation and moving force of this ethical and political development has been Christian doctrine itself—I use "Christian" in its proper sense—on the subject of human dignity, doctrine illuminated by the example of the Lord Jesus.

Difficult and important questions remain. The primary one concerns the relationship between the Christian freedom proclaimed in Holy Scripture, especially by St. Paul, and the religious freedom we have been speaking of, to which our contemporaries lay claim. 10 On this question no consensus exists. According to some, these two freedoms are so different from their inception that only a limited harmony can exist between them. According to others, of whom I am one, in the very notion of Christian and gospel freedom—or, better—in free Christian existence itself—a demand is given for religious freedom in society. To demonstrate this is no mean task. Add to this the difficult historical question, as yet not investigated: Why has humanity had to travel so long a journey on so tortuous a course to reach at last a consciousness of its dignity and to bring to fulfillment in civil society all that that dignity demands?

Evidently these question belong to the ecumenical order. Equally evident and pressing is the need for us to enter into conversation with our separated brothers and even with our non-believing brothers. These have contributed much and still contribute toward the establishment and preservation in society of the full practice of freedom, including also religious freedom.

( 1 )This was delivered as a talk on September 19, 1966 and published in Latin as "De argumentis pro iure hominis ad libertatem religiosam." In Acta Congressus Internationalis de Theologia Concilii Vaticani II , edited by A. Schoenmetzer, 562-73. Rom, Vatikan, 1968.

( 2 )i.e., that it is not simply based in expediency—Ed.

( 3 )"The whole world concurs in this judgement," probably an allusion to Augustine, Contra ep. Parm., II, 10, 20. Parts of this argument find a parallel in 1966b: "The Declaration on Religious Freedom." In Vatican II: An Interfaith Appraisal , edited by John H. Miller, article, pp. 565-76, and discussion, pp. 577-85 (Notre Dame: Association Press, 1966). Certain points, such as the international political and ecclesiological support given to religious freedom, are more fully spelled out in that latter article—Ed.

( 4 )For a discussion of the various texts that preceded Dignitatis, the introduction to "The Problem" in this volume. By Murray's count there were five such texts, the third and fourth were of Murray's creation—Ed.

( 5 )The remainder of the article presents actually three philosophical arguments and a fourth based on faith. As we will see, Murray was unhappy with the first two "main arguments." (They both suggest an individualism (that often cloaks itself in abstraction) and an a-historicity that he found in the "conscience" argument.) He will here present a third argument that he considers core to the church's affirmation and to contemporary affirmations of human dignity. This third line had been primary in the third and fourth drafts of the Declaration (the ones Murray wrote), and had been reduced to an ancillary position in subsequent drafts and in the final document.

Since Murray's own numbering is off, I felt free, by way of headings, to grant to the "conscience" argument the status of first in a line of arguments. In fact, the language of the "rights of conscience" argument was not limited to the first two drafts. There remains some residual "rights of conscience" terminology in the Declaration, a fact used by some who want to argue that the Council did not advance beyond the "conscience" argument—Ed.

( 6 )Cf. Pius XII, Nunt. radioph. 24 dec. 1944, in: A.A.S. 37 (1945) p. 12; Ioannes XXIII Litt. enc. " Pacem in terris , in A.A.S. 55 (1963) p. 263; Dz.-S 3968.

( 7 )By situating the drive for truth within the second, social pole of the human person, Murray apparently thinks that he has escaped the individualism and abstraction of the Declaration's main argument. Within that second pole, the argument must take account of the structures and forces that are active within historical societies as well as of the transcendental openness of the human person.—Ed.

( 8 )Just as the first two principles call up the individual/social aspects of human nature, similarly for Murray these third and fourth principles have individual/social references. The third points to the creative powers of persons and subgroups in society, while the fourth focuses on the largest social reality, the state. Murray has attempted to highlight the intrinsic social aspects of the human person throughout the various levels of this argument—Ed.

( 9 )Pius XII, Nunt. radioph . 1 iun. 1941, in: A.A.S. 33 (1941)p. 200; Ioannes XXIII "Pacem in terris." ed. cit., p. 274; Dz-S 3985.

( 10 )Elsewhere Murray spelled out a broader list of freedoms that must be reconciled:

The Declaration therefore does not undertake to present a full and complete theology of freedom. This would have been a far more ambitious task. It would have been necessary, I think, to develop four major themes: (1) the concept of Christian freedom—the freedom of the People of God—as a participation in the freedom of the Holy Spirit, the principal agent in the history of salvation, by whom the children of God are "led" (Rom. 8, 14) to the Father through the incarnate Son; (2) the concept of the freedom of the Church in her ministry, as a participation in the freedom of Christ himself, to whom all authority in heaven and on earth was given and who is present in his Church to the end of time (cf. Matt. 28, 18. 20); (3) the concept of Christian faith as man's free response to the divine call issued, on the Father's eternal and gracious initiative, through Christ, and heard by man in his heart where the Spirit speaks what he has himself heard (cf. John 16, 13-15); (4) the juridical concept of religious freedom as a human and civil right, founded on the native dignity of the human person who is made in the image of God and therefore enjoys, as his birthright, a participation in the freedom of God himself.

This would have been, I think, a far more satisfactory method of procedure, from the theological point of view. In particular, it would have been in conformity with the disposition of theologians today to view issues of natural law within the concrete context of the present historico-existential order of grace. Moreover, the doctrine presented would have been much richer in content (1966c: "The Declaration on Religious Freedom," p. 4)—Ed.

Catholic Education

Religious liberty essay contest.

• @USCCBCatholicEd

Witnesses to Freedom 

USCCB Religious Liberty Essay Contest 2024

Share the story of a witness to freedom.  Choose one person (or group, such as an organization or community) who is important in the story of freedom.  Was there a key moment in the person’s life that bears witness to freedom?  Or was it the life as a whole?  Did the person articulate important concepts for religious freedom, and if so, what arguments did she or he make?  Why is this person a witness to religious freedom? What lessons can we learn from this person’s witness? 

Please include a bibliography.  Any reference style is acceptable as long as it is consistent throughout the document.  Essays should be no longer than 1,100 words . 

The first-place essay will be published  Our Sunday Visitor , and the author will be awarded a $2,000 scholarship.

Second place will receive a $1,000 scholarship, and third place will receive a $500 scholarship.

Submissions

Essays are due March 29, 2024 .  Winners will be announced in May.

Please complete the consent form and include with submission .

Email submissions  [email protected] .

See contest rules for details .

About OSV Institute

Our Sunday Visitor Institute seeks to Serve the Church by inspiring and encouraging innovative and effective Church-related programs and activities.  Learn more at www.osvinstitute.com .

Past Winners

First place:  Little Strokes Fell Great Oaks: The Story of the Littlest Witness , by  Sofia Cornicelli

Second place:  Joy at the Guillotine , by  Cara Magliochetti

Third place:  Saint Justin: Philosopher, Apologist, and Martyr , by  Margaret Nornberg

Highest participation: Bethlehem Catholic High School in Bethlehem, Pennsylvania

First place: Father Anthony Kohlmann: An Early witness to Religious Liberty , by  Elizabeth Bernadette Rudolph

Second place: St. Thomas Becket: The Witness in the Cathedral , by  John Douglas Hill

Third place: Nijole Sadunaite: A Radiance of Freedom , by  Paul Liulevicius

• Utility Menu

Pluralism Project Archive

Native american religious and cultural freedom: an introductory essay (2005).

I. No Word for Religion: The Distinctive Contours of Native American Religions

A. Fundamental Diversity We often refer to Native American religion or spirituality in the singular, but there is a fundamental diversity concerning Native American religious traditions. In the United States, there are more than five hundred recognized different tribes , speaking more than two hundred different indigenous languages, party to nearly four hundred different treaties , and courted by missionaries of each branch of Christianity. With traditional ways of life lived on a variety of landscapes, riverscapes, and seascapes, stereotypical images of buffalo-chasing nomads of the Plains cannot suffice to represent the people of Acoma, still raising corn and still occupying their mesa-top pueblo in what only relatively recently has come to be called New Mexico, for more than a thousand years; or the Tlingit people of what is now Southeast Alaska whose world was transformed by Raven, and whose lives revolve around the sea and the salmon. Perhaps it is ironic that it is their shared history of dispossession, colonization, and Christian missions that is most obviously common among different Native peoples. If “Indian” was a misnomer owing to European explorers’ geographical wishful thinking, so too in a sense is “Native American,”a term that elides the differences among peoples of “North America” into an identity apparently shared by none at the time the continents they shared were named for a European explorer. But the labels deployed by explorers and colonizers became an organizing tool for the resistance of the colonized. As distinctive Native people came to see their stock rise and fall together under “Indian Policy,” they resourcefully added that Native or Indian identity, including many of its symbolic and religious emblems, to their own tribal identities. A number of prophets arose with compelling visions through which the sacred called peoples practicing different religions and speaking different languages into new identities at once religious and civil. Prophetic new religious movements, adoption and adaptation of Christian affiliation, and revitalized commitments to tribal specific ceremonial complexes and belief systems alike marked religious responses to colonialism and Christian missions. And religion was at the heart of negotiating these changes. “More than colonialism pushed,” Joel Martin has memorably written, “the sacred pulled Native people into new religious worlds.”(Martin) Despite centuries of hostile and assimilative policies often designed to dismantle the structures of indigenous communities, language, and belief systems, the late twentieth century marked a period of remarkable revitalization and renewal of Native traditions. Built on centuries of resistance as well as strategic accommodations, Native communities from the 1960s on have vigorously pressed their claims to religious self-determination.

B. "Way of Life, not Religion" In all their diversity, people from different Native nations hasten to point out that their respective languages include no word for “religion”, and maintain an emphatic distinction between ways of life in which economy, politics, medicine, art, agriculture, etc., are ideally integrated into a spiritually-informed whole. As Native communities try to continue their traditions in the context of a modern American society that conceives of these as discrete segments of human thought and activity, it has not been easy for Native communities to accomplish this kind of integration. Nor has it been easy to to persuade others of, for example, the spiritual importance of what could be construed as an economic activity, such as fishing or whaling.

C. Oral Tradition and Indigenous Languages Traversing the diversity of Native North American peoples, too, is the primacy of oral tradition. Although a range of writing systems obtained existed prior to contact with Europeans, and although a variety of writing systems emerged from the crucible of that contact, notably the Cherokee syllabary created by Sequoyah and, later, the phonetic transcription of indigenous languages by linguists, Native communities have maintained living traditions with remarkable care through orality. At first glance, from the point of view of a profoundly literate tradition, this might seem little to brag about, but the structure of orality enables a kind of fluidity of continuity and change that has clearly enabled Native traditions to sustain, and even enlarge, themselves in spite of European American efforts to eradicate their languages, cultures, and traditions. In this colonizing context, because oral traditions can function to ensure that knowledge is shared with those deemed worthy of it, orality has proved to be a particular resource to Native elders and their communities, especially with regard to maintaining proper protocols around sacred knowledge. So a commitment to orality can be said to have underwritten artful survival amid the pressures of colonization. It has also rendered Native traditions particularly vulnerable to exploitation. Although Native communities continue to privilege the kinds of knowledge kept in lineages of oral tradition, courts have only haltingly recognized the evidentiary value of oral traditions. Because the communal knowledge of oral traditions is not well served by the protections of intellectual property in western law, corporations and their shareholders have profited from indigenous knowledge, especially ethnobotanical and pharmacological knowledge with few encumbrances or legal contracts. Orality has also rendered Native traditions vulnerable to erosion. Today, in a trend that linguists point out is global, Native American languages in particular are to an alarming degree endangered languages. In danger of being lost are entire ways of perceiving the world, from which we can learn to live more sustainable, balanced, lives in an ecocidal age.

D. "Religious" Regard for the Land In this latter respect of being not only economically land-based but culturally land-oriented, Native religious traditions also demonstrate a consistency across their fundamental diversity. In God is Red ,Vine Deloria, Jr. famously argued that Native religious traditions are oriented fundamentally in space, and thus difficult to understand in religious terms belonging properly tothe time-oriented traditions of Christianity and Judaism. Such a worldview is ensconced in the idioms, if not structures, of many spoken Native languages, but living well on particular landscapes has not come naturally to Native peoples, as romanticized images of noble savages born to move silently through the woods would suggest. For Native peoples, living in balance with particular landscapes has been the fruit of hard work as well as a product of worldview, a matter of ethical living in worlds where non human life has moral standing and disciplined attention to ritual protocol. Still, even though certain places on landscapes have been sacred in the customary sense of being wholly distinct from the profane and its activity, many places sacred to Native peoples have been sources of material as well as spiritual sustenance. As with sacred places, so too with many sacred practices of living on landscapes. In the reckoning of Native peoples, pursuits like harvesting wild rice, spearing fish or hunting certain animals can be at once religious and economic in ways that have been difficult for Western courts to acknowledge. Places and practices have often had both sacred and instrumental value. Thus, certain cultural freedoms are to be seen in the same manner as religious freedoms. And thus, it has not been easy for Native peoples who have no word for “religion” to find comparable protections for religious freedom, and it is to that troubled history we now turn.

II. History of Native American Religious and Cultural Freedom

A. Overview That sacred Native lifeways have only partly corresponded to the modern Western language of “religion,” the free exercise of which is ostensibly protected by the First Amendment of the U.S. Constitution , has not stopped Native communities from seeking protection of their freedom to exercise and benefit from those lifeways. In the days of treaty making, formally closed by Congress in 1871, and in subsequent years of negotiated agreements, Native communities often stipulated protections of certain places and practices, as did Lakota leaders in the Fort Laramie Treaty when they specifically exempted the Paha Sapa, subsequently called the Black Hills from land cessions, or by Ojibwe leaders in the 1837  treaty, when they expressly retained “usufruct” rights to hunt, fish, and gather on lands otherwise ceded to the U.S. in the treaty. But these and other treaty agreements have been honored neither by American citizens nor the United States government. Native communities have struggled to secure their rights and interests within the legal and political system of the United States despite working in an English language and in a legal language that does not easily give voice to Native regard for sacred places, practices, and lifeways. Although certain Native people have appealed to international courts and communities for recourse, much of the material considered in this website concerns Native communities’ efforts in the twentieth and twenty-first century to protect such interests and freedoms within the legal and political universe of the United States.

B. Timeline 1871 End of Treaty Making Congress legislates that no more treaties are to be made with tribes and claims “plenary power” over Indians as wards of U.S. government. 1887-1934 Formal U.S. Indian policy of assimilation dissolves communal property, promotes English only boarding school education, and includes informal and formalized regulation and prohibition of Native American ceremonies. At the same time, concern with “vanishing Indians” and their cultures drives a large scale effort to collect Native material culture for museum preservation and display. 1906 American Antiquities Act Ostensibly protects “national” treasures on public lands from pilfering, but construes Native American artifacts and human remains on federal land as “archeological resources,” federal property useful for science. 1921 Bureau of Indian Affairs Continuing an administrative trajectory begun in the 1880's, the Indian Bureau authorized its field agents to use force and imprisonment to halt religious practices deemed inimical to assimilation. 1923 Bureau of Indian Affairs The federal government tries to promote assimilation by instructing superintendents and Indian agents to supress Native dances, prohibiting some and limiting others to specified times. 1924 Pueblos make appeal for religious freedom protection The Council of All the New Mexico Pueblos appeals to the public for First Amendment protection from Indian policies suppressing ceremonial dances. 1924 Indian Citizenship Act Although uneven policies had recognized certain Indian individuals as citizens, all Native Americans are declared citizens by Congressional legislation. 1928 Meriam Report Declares federal assimilation policy a failure 1934 Indian Reorganization Act Officially reaffirms legality and importance of Native communities’ religious, cultural, and linguistic traditions. 1946 Indian Claims Commission Federal Commission created to put to rest the host of Native treaty land claims against the United States with monetary settlements. 1970 Return of Blue Lake to Taos Pueblo After a long struggle to win support by President Nixon and Congress, New Mexico’s Taos Pueblo secures the return of a sacred lake, and sets a precedent that threatened many federal lands with similar claims, though regulations are tightened. Taos Pueblo still struggles to safeguard airspace over the lake. 1972 Portions of Mount Adams returned to Yakama Nation Portions of Washington State’s Mount Adams, sacred to the Yakama people, was returned to that tribe by congressional legislation and executive decision. 1978 American Indian Religious Freedom Act Specifies Native American Church, and other native American religious practices as fitting within religious freedom. Government agencies to take into account adverse impacts on native religious freedom resulting from decisions made, but with no enforcement mechanism, tribes were left with little recourse. 1988 Lyng v. Northwest Indian Cemetery Protective Association Three Calif. Tribes try to block logging road in federal lands near sacred Mt. Shasta Supreme Court sides w/Lyng, against tribes. Court also finds that AIRFA contains no legal teeth for enforcement. 1990 Employment Division, Department of Human Resources v. Smith Oregon fires two native chemical dependency counselors for Peyote use. They are denied unemployment compensation. They sue. Supreme Court 6-3 sides w/Oregon in a major shift in approach to religious freedom. Scalia, for majority: Laws made that are neutral to religion, even if they result in a burden on religious exercise, are not unconstitutional. Dissent identifies this more precisely as a violation of specific congressional intent to clarify and protect Native American religious freedoms 1990 Native American Graves and Repatriation Act (NAGPRA) Mandates return of human remains, associated burial items, ceremonial objects, and "cultural patrimony” from museum collections receiving federal money to identifiable source tribes. Requires archeologists to secure approval from tribes before digging. 1990 “Traditional Cultural Properties” Designation created under Historic Preservation Act enables Native communities to seek protection of significant places and landscapes under the National Historic Preservation Act. 1993 Religious Freedom Restoration Act Concerning Free Exercise Claims, the burden should be upon the government to prove “compelling state interest” in laws 1994 Amendments to A.I.R.F.A Identifies Peyote use as sacramental and protected by U.S., despite state issues (all regs must be made in consultation with reps of traditional Indian religions. 1996 President Clinton's Executive Order (13006/7) on Native American Sacred Sites Clarifies Native American Sacred Sites to be taken seriously by government officials. 1997 City of Bourne v. Flores Supreme Court declares Religious Freedom Restoration Act unconstitutional 2000 Religious Land Use and Institutionalized Persons Act (RLUIPA) Protects religious institutions' rights to make full use of their lands and properties "to fulfill their missions." Also designed to protect the rights of inmates to practice religious traditions. RLUIPA has notably been used in a number of hair-length and free-practice cases for Native inmates, a number of which are ongoing (see: Greybuffalo v. Frank).

III. Contemporary Attempts to Seek Protection Against the backdrop, Native concerns of religious and cultural freedoms can be distinguished in at least the following ways.

• Issues of access to, control over, and integrity of sacred lands
• Free exercise of religion in public correctional and educational institutions
• Free Exercise of “religious” and cultural practices prohibited by other realms of law: Controlled Substance Law, Endangered Species Law, Fish and Wildlife Law
• Repatriation of Human Remains held in museums and scientific institutions
• Repatriation of Sacred Objects/Cultural Patrimony in museums and scientific institutions
• Protection of Sacred and Other Cultural Knowledge from exploitation and unilateral appropriation (see Lakota Elder’s declaration).

In their attempts to press claims for religious and cultural self-determination and for the integrity of sacred lands and species, Native communities have identified a number of arenas for seeking protection in the courts, in legislatures, in administrative and regulatory decision-making, and through private market transactions and negotiated agreements. And, although appeals to international law and human rights protocols have had few results, Native communities bring their cases to the court of world opinion as well. It should be noted that Native communities frequently pursue their religious and cultural interests on a number of fronts simultaneously. Because Native traditions do not fit neatly into the category of “religion” as it has come to be demarcated in legal and political languages, their attempts have been various to promote those interests in those languages of power, and sometimes involve difficult strategic decisions that often involve as many costs as benefits. For example, seeking protection of a sacred site through historic preservation regulations does not mean to establish Native American rights over access to and control of sacred places, but it can be appealing in light of the courts’ recently narrowing interpretation of constitutional claims to the free exercise of religion. Even in the relative heyday of constitutional protection of the religious freedom of minority traditions, many Native elders and others were understandably hesitant to relinquish sacred knowledge to the public record in an effort to protect religious and cultural freedoms, much less reduce Native lifeways to the modern Western terms of religion. Vine Deloria, Jr. has argued that given the courts’ decisions in the 1980s and 1990s, especially in the Lyng and Smith cases, efforts by Native people to protect religious and cultural interests under the First Amendment did as much harm as good to those interests by fixing them in written documents and subjecting them to public, often hostile, scrutiny.

A. First Amendment Since the 1790s, the First Amendment to the Constitution has held that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The former of the amendment’s two clauses, referred to as the “establishment clause” guards against government sponsorship of particular religious positions. The latter, known as the “free exercise” clause, protects the rights of religious minorites from government interference. But just what these clauses have been understood to mean, and how much they are to be weighed against other rights and protections, such as that of private property, has been the subject of considerable debate in constitutional law over the years. Ironically, apart from matters of church property disposition, it was not until the 1940s that the Supreme Court began to offer its clarification of these constitutional protections. As concerns free exercise jurisprudence, under Chief Justices Warren and Burger in the 1960s and 1970s, the Supreme Court had expanded free exercise protection and its accommodations considerably, though in retrospect too few Native communities were sufficiently organized or capitalized, or perhaps even motivated, given their chastened experience of the narrow possibilities of protection under U.S. law, to press their claims before the courts. Those communities who did pursue such interests experienced first hand the difficulty of trying to squeeze communal Native traditions, construals of sacred land, and practices at once economic and sacred into the conceptual box of religion and an individual’s right to its free exercise. By the time more Native communities pursued their claims under the free exercise clause in the 1980s and 1990s, however, the political and judicial climate around such matters had changed considerably. One can argue it has been no coincidence that the two, arguably three, landmark Supreme Court cases restricting the scope of free exercise protection under the Rehnquist Court were cases involving Native American traditions. This may be because the Court agrees to hear only a fraction of the cases referred to it. In Bowen v. Roy 476 U.S. 693 (1986) , the High Court held against a Native person refusing on religious grounds to a social security number necessary for food stamp eligibility. With even greater consequence for subsequent protections of sacred lands under the constitution, in Lyng v. Northwest Cemetery Protective Association 485 U.S. 439 (1988) , the High Court reversed lower court rulings which had blocked the construction of a timber road through high country sacred to California’s Yurok, Karok and Tolowa communities. In a scathing dissent, Harry Blackmun argued that the majority had fundamentally misunderstood the idioms of Native religions and the centrality of sacred lands. Writing for the majority, though, Sandra Day O’Connor’s opinion recognized the sincerity of Native religious claims to sacred lands while devaluing those claims vis a vis other competing goods, especially in this case, the state’s rights to administer “what is, after all, its land.” The decision also codified an interpretation of Congress’s legislative protections in the 1978 American Indian Religious Freedom Act as only advisory in nature. As of course happens in the U.S. judical system, such decisions of the High Court set new precedents that not only shape the decisions of lower courts, but that have a chilling effect on the number of costly suits brought into the system by Native communities. What the Lyng decision began to do with respect to sacred land protection, was finished off with respect to restricting free exercise more broadly in the Rehnquist Court’s 1990 decision in Employment Division, State of Oregon v. Smith 484 U.S. 872 (1990) . Despite nearly a century of specific protections of Peyotism, in an unemployment compensation case involving two Oregon substance abuse counselors who had been fired because they had been found to be Peyote ingesting members of the Native American Church , a religious organization founded to secure first amendment protection in the first place, the court found that the state’s right to enforce its controlled substance laws outweighed the free exercise rights of Peyotists. Writing for the majority, Justice Scalia’s opinion reframed the entire structure of free exercise jurisprudence, holding as constitutional laws that do not intentionally and expressly deny free exercise rights even if they have the effect of the same. A host of minority religious communities, civil liberties organizations, and liberal Christian groups were alarmed at the precedent set in Smith. A subsequent legislative attempt to override the Supreme Court, the Religious Freedom Restoration Act , passed by Congress and signed into law in 1993 by President Clinton was found unconstitutional in City of Bourne v. Flores (1997) , as the High Court claimed its constitutional primacy as interpreter of the constitution.

i. Sacred Lands In light of the ruling in Lyng v. Northwest Cemetery Protective Association (1988) discussed immediately above, there have been few subsequent attempts to seek comparable protection of sacred lands, whether that be access to, control of, or integrity of sacred places. That said, three cases leading up to the 1988 Supreme Court decision were heard at the level of federal circuit courts of appeal, and are worthy of note for the judicial history of appeals to First Amendment protection for sacred lands. In Sequoyah v. Tennessee Valley Authority , 19800 620 F.2d 1159 (6th Cir. 1980) , the court remained unconvinced by claims that a proposed dam's flooding of non-reservation lands sacred to the Cherokee violate the free excersice clause. That same year, in Badoni v. Higginson , 638 F. 2d 172 (10th Cir. 1980) , a different Circuit Court held against Navajo claims about unconstitutional federal management of water levels at a am desecrating Rainbow Arch in Utah. Three years later, in Fools Crow v. Gullet , 760 F. 2d 856 (8th Cir. 1983), cert. Denied, 464 U.S.977 (1983) , the Eighth Circuit found unconvincing Lakota claims to constitutional protections to a vision quest site against measures involving a South Dakota state park on the site.

ii. Free Exercise Because few policies and laws that have the effect of infringing on Native American religious and cultural freedoms are expressly intended to undermine those freedoms, the High Court’s Smith decision discouraged the number of suits brought forward by Native communities under constitutional free exercise protection since 1990, but a number of noteworthy cases predated the 1990 Smith decision, and a number of subsequent free exercise claims have plied the terrain of free exercise in correctional institutions. Employment Division, State of Oregon v. Smith (1990)

• Prison:Sweatlodge Case Study
• Eagle Feathers: U.S. v. Dion
• Hunting for Ceremonial Purposes: Frank v. Alaska

iii. No Establishment As the history of First Amendment jurisprudence generaly shows (Flowers), free exercise protections bump up against establishment clause jurisprudence that protects the public from government endorsement of particular traditions. Still, it is perhaps ironic that modest protections of religious freedoms of tiny minorities of Native communities have undergone constitutional challenges as violating the establishment clause. At issue is the arguable line between what has been understood in jurisprudence as governmental accommodations enabling the free exercise of minority religions and government endorsement of those traditions. The issue has emerged in a number of challenges to federal administrative policies by the National Park Service and National Forest Service such as the voluntary ban on climbing during the ceremonially significant month of June on what the Lakota and others consider Bear Lodge at Devil’s Tower National Monument . It should be noted that the Mountain States Legal Foundation is funded in part by mining, timbering, and recreational industries with significant money interests in the disposition of federal lands in the west. In light of courts' findings on these Native claims to constitutional protection under the First Amendment, Native communities have taken steps in a number of other strategic directions to secure their religious and cultural freedoms.

B. Treaty Rights In addition to constitutional protections of religious free exercise, 370 distinct treaty agreements signed prior to 1871, and a number of subsequent “agreements” are in play as possible umbrellas of protection of Native American religious and cultural freedoms. In light of the narrowing of free exercise protections in Lyng and Smith , and in light of the Court’s general broadening of treaty right protections in the mid to late twentieth century, treaty rights have been identified as preferable, if not wholly reliable, protections of religious and cultural freedoms. Makah Whaling Mille Lacs Case

C. Intellectual Property Law Native communities have occasionally sought protection of and control over indigenous medicinal, botanical, ceremonial and other kinds of cultural knowledge under legal structures designed to protect intellectual property and trademark. Although some scholars as committed to guarding the public commons of ideas against privatizing corporate interests as they are to working against the exploitation of indigenous knowledge have warned about the consequences of litigation under Western intellectual property standards (Brown), the challenges of such exploitation are many and varied, from concerns about corporate patenting claims to medicinal and agricultural knowledge obtained from Native elders and teachers to protecting sacred species like wild rice from anticipated devastation by genetically modified related plants (see White Earth Land Recovery Project for an example of this protection of wild rice to logos ( Washington Redskins controversy ) and images involving the sacred Zia pueblo sun symbol and Southwest Airlines to challenges to corporate profit-making from derogatory representations of Indians ( Crazy Horse Liquor case ).

D. Other Statutory Law A variety of legislative efforts have had either the express purpose or general effect of providing protections of Native American religious and cultural freedoms. Some, like the Taos Pueblo Blue Lake legislation, initiated protection of sacred lands and practices of particular communities through very specific legislative recourse. Others, like the 1990 Native American Graves Protection and Repatriation Act , enacted broad protections of Native American religious and cultural freedom [link to Troost case]. Culminating many years of activism, if not without controversy even in Native communities, Congress passed the American Indian Religious Freedom Act , signed into law in 1978 and amended in 1993, in order to recognize the often difficult fit between Native traditions and constitutional protections of the freedom of “religion” and ostensibly to safeguard such interests from state interference. Though much heralded for its symbolic value, the act was determined by the courts (most notably in the Lyng decision upon review of the congressional record to be only advisory in nature, lacking a specific “cause for action” that would give it legal teeth. To answer the Supreme Court's narrowing of the scope of free exercise protections in Lyng and in the 1990 Smith decision, Congress passed in 2000 the  Religious Land Use and Institutionalized Persons Act (RLUIPA)  restoring to governments the substantial burden of showing a "compelling interest" in land use decisions or administrative policies that exacted a burden on the free exercise of religion and requiring them to show that they had exhausted other possibilities that would be less burdensome on the free exercise of religion. Two other notable legislative initiatives that have created statutory protections for a range of Native community religious and cultural interests are the 1966 National Historic Preservation Act and the Native American Language Act legislation beginning to recognize the significance and urgency of the protection and promotion of indigenous languages, if not supporting such initiatives with significant appropriations. AIRFA 1978 NAGPRA 1990 [see item h. below] Native American Language Act Religious Land Use and Institutionalized Persons Act (RLUIPA)  2000 National Historic Preservation Act  [see item g below]

E. Administrative and Regulatory Policy and Law As implied in a number of instances above, many governmental decisions affecting Native American religious and cultural freedom occur at the level of regulation and the administrative policy of local, state, and federal governments, and as a consequence are less visible to those not locally or immediately affected.

F. Federal Recognition The United States officially recognizes over 500 distinct Native communities, but there remain numerous Native communities who know clearly who they are but who remain formally unrecognized by the United States, even when they receive recognition by states or localities. In the 1930s, when Congress created the structure of tribal governments under the Indian Reorganization Act, many Native communities, including treaty signatories, chose not to enroll themselves in the recognition process, often because their experience with the United States was characterized more by unwanted intervention than by clear benefits. But the capacity and charge of officially recognized tribal governments grew with the Great Society programs in the 1960s and in particular with an official U.S. policy of Indian self-determination enacted through such laws as the 1975 Indian Self Determination and Education Act , which enabled tribal governments to act as contractors for government educational and social service programs. Decades later, the Indian Gaming Regulatory Act formally recognized the authority of recognized tribal governments to engage in casino gaming in cooperation with the states. Currently, Native communities that remain unrecognized are not authorized to benefit from such programs and policies, and as a consequence numerous Native communities have stepped forward to apply for federal recognition in a lengthy, laborious, and highly-charged political process overseen by the  Bureau of Indian Affairs, Office of Federal Acknowledgment . Some communities, like Michigan’s Little Traverse Band of Odawa have pursued recognition directly through congressional legislation. As it relates to concerns of Native American religious and cultural freedom, more is at stake than the possibility to negotiate with states for the opening of casinos. Federal recognition gives Native communities a kind of legal standing to pursue other interests with more legal and political resources at their disposal. Communities lacking this standing, for example, are not formally included in the considerations of the Native American Graves Protection and Repatriation Act (item H. below).

G. Historic Preservation Because protections under the National Historic Preservation Act have begun to serve as a remedy for protection of lands of religious and cultural significance to Native communities, in light of first amendment jurisprudence since Lyng , it bears further mention here. Native communities seeking protections through Historic Preservation determinations are not expressly protecting Native religious freedom, nor recognizing exclusive access to, or control of sacred places, since the legislation rests on the importance to the American public at large of sites of historic and cultural value, but in light of free exercise jurisprudence since Lyng , historic preservation has offered relatively generous, if not exclusive, protection. The National Historic Preservation Act as such offered protection on the National Register of Historic Places, for the scholarly, especially archeological, value of certain Native sites, but in 1990, a new designation of “traditional cultural properties” enabled Native communities and others to seek historic preservation protections for properties associated “wit cultural practices or beliefs of a living community that (a) are rooted in that community’s history, and (b) are important in maintaining the continuing cultural identity of the community.” The designation could include most communities, but were implicitly geared to enable communities outside the American mainstream, perhaps especially Native American communities, to seek protection of culturally important and sacred sites without expressly making overt appeals to religious freedom. (King 6) This enabled those seeking recognition on the National Register to skirt a previous regulatory “religious exclusion” that discouraged inclusion of “properties owned by religious institutions or used for religious purposes” by expressly recognizing that Native communities don’t distinguish rigidly between “religion and the rest of culture” (King 260). As a consequence, this venue of cultural resource management has served Native interests in sacred lands better than others, but it remains subject to review and change. Further it does not guarantee protection; it only creates a designation within the arduous process of making application to the National Register of Historic Places. Pilot Knob Nine Mile Canyon

H. Repatriation/Protection of Human Remains, Burial Items, and Sacred Objects Culminating centuries of struggle to protect the integrity of the dead and material items of religious and cultural significance, Native communities witnessed the creation of an important process for protection under the 1990 Native American Graves and Repatriation Act . The act required museums and other institutions in the United States receiving federal monies to share with relevant Native tribes inventories of their collections of Native human remains, funerary objects, sacred objects, and objects of “cultural patrimony” (that is objects that were acquired from individuals, but which had belonged not to individuals, but entire communities), and to return them on request to lineal descendants or federally recognized tribes (or Native Hawaiian organizations) in those cases where museums can determine cultural affiliation, or as often happens, in the absence of sufficiently detailed museum data, to a tribe that can prove its cultural affiliation. The law also specifies that affiliated tribes own these items if they are discovered in the future on federal or tribal lands. Finally, the law also prohibits almost every sort of trafficking in Native American human remains, burial objects, sacred objects, and items of cultural patrimony. Thus established, the process has given rise to a number of ambiguities. For example, the law’s definition of terms gives rise to some difficulties. For example, “sacred objects” pertain to objects “needed for traditional Native American religions by their present day adherents.” Even if they are needed for the renewal of old ceremonies, there must be present day adherents. (Trope and Echo Hawk, 143). What constitutes “Cultural affiliation” has also given rise to ambiguity and conflict, especially given conflicting worldviews. As has been seen in the case of Kennewick Man the “relationship of shared group identity” determined scientifically by an archeologist may or may not correspond to a Native community’s understanding of its relation to the dead on its land. Even what constitutes a “real” can be at issue, as was seen in the case of Zuni Pueblo’s concern for the return of “replicas” of sacred Ahayu:da figures made by boy scouts. To the Zuni, these contained sacred information that was itself proprietary (Ferguson, Anyon, and Lad, 253). Disputes have arisen, even between different Native communities claiming cultural affiliation, and they are adjudicated through a NAGPRA Review Committee , convened of three representatives from Native communities, three from museum and scientific organizations, and one person appointed from a list jointly submitted by the other six.

I. International Law and Human Rights Agreements At least since 1923, when Haudenosaunee Iroqois leader Deskaneh made an appeal to the League of Nations in Geneva, Native communities and organizations have registered claims and concerns about religious and cultural freedoms with the international community and institutions representing it in a variety of ways. Making reference to their status as sovereign nations whose treaties with the U.S. have not been honored, frustrated with previous efforts to seek remedies under U.S. law, concerned with the capacity for constitutional protection of what are typically “group” and not individual rights, and sometimes spurned by questions about the rightful jurisdiction of the U.S., Native organizations have sought consideration of their claims before the United Nations and engaged in its consultations on indigenous rights. After years of such appeals and efforts, a nearly unanimous  United Nations General Assembly passed the United Nations Declarations on the Rights of Indigenous Peoples The 1996  Declaration of the Rights of Indigenous Peoples includes reference [article 12] to the “right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of ceremonial objects,; and the right to the repatriation of human remains.” Importantly, the Declaration does not exclude those communities whose traditions have been interrupted by colonization. Indigenous peoples are recognized as having “the right to maintain, protect and develop the past, present and future manifestations of their cultures as well as the right to the restitution of cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, traditions and customs.” Also specified are their rights to their languages. An offshoot of the American Indian Movement, the International Indian Treaty Council is one such organization that has shifted its attention to the international arena for protections of indigenous rights, including those of religious and cultural freedom.]]

J. Negotiated Agreements and Private Transactions Many if not most Native claims and concerns related to religious and cultural freedoms have been and will continue to be raised and negotiated outside the formal legal and regulatory structures outlined above, and thus will seldom register in public view. In light of the career of Native religious and cultural freedoms in legislative and legal arenas, Vine Deloria, Jr., has suggested the possibilities of such agreements to reach Native goals without subjecting Native communities to the difficulties of governmental interference or public scrutiny of discreet traditions (Deloria 1992a). Still, the possibilities for Native communities to reach acceptable negotiated agreements often owe to the legal and political structures to which they have recourse if negotiations fail. The possibilities of such negotiated agreements also can be shaped by the pressures of public opinion on corporate or governmental interests. Kituwah Mound Valley of the Shields/Weatherman’s Draw

IV. Selected Past Native American Religious and Cultural Freedom Court Cases

A. Land Sequoyah v. Tennessee Valley Authority 620 F. 2d 1159 (6th Cir. 1980) . Dam’s Destruction of Sacred River/Land Badoni v. Higginson 638 F 2d 172 (10th Cir. 1980) . Desecration of Rainbow Arch, Navajo Sacred Spot in Utah Fools Crow v. Gullet 706 F. 2d. 856 (8th Cir. 1983), cert. Denied, 464 U.S. 977 (1983) . State Park on top of Vision Quest site in S. Dakota Wilson v. Block 708F. 2d 735 (D.C. Cir. 1983) ; Hopi Indian Tribe v. Block; Navajo Medicine Men Assn’ v. Block Expansion of Ski Area in San Francisco Peaks, sacred to Navaho and Hopi Lyng v. Northwest Cemetery Protective Association 485 U.S. 439 (1988) Logging Road in lands sacred to Yurok, Karok, and Tolowa

B. Free Exercise Bowen v. Roy 476 U.S. 693 (1986) Native refusal of Social Security Number U.S. v. Dion 476 U.S. 734 Sacramental Eagle Hunt contra Endangered Species Act Frank v. State 604 P. 2d 1068 (Alaska 1979) Taking moose out of season for potlatch *Native American Church v. Navajo Tribal Council 272 F 2d 131 (10th Cir. 1959) Peyotists vs. Tribal Gov’t Prohibiting Peyotism People v. Woody 61 Cal.2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964) Groundbreaking recognition of Free Exercise exemption from State Ban. Employment Division, State of Oregon v. Smith 484 U.S. 872 (1990) Denial of Peyotist’s unemployment compensation held constitutional

C. Prison cases involving hair *Standing Deer v. Carlson 831 F. 2d 1525 (9th Cir. 1987). *Teterud v. Gilman 385 F. Supp. 153 (S. D. Iowa 1974) & New Rider v. Board of Education 480 F. 2d 693 (10th Cir. 1973) , cert. denied 414 U.S. 1097, reh. Denied 415 U.S. 939 *Indian Inmates of Nebraska Penitentiary v. Grammar 649 F. Supp. 1374 (D. Neb. 1986)

D. Human Remains/Repatriation *Wana the Bear v. Community Construction, Inc. 180 Cal Rptr. 423 (Ct. App. 1982). Historic Indian cemetery not a “cemetery.” *State v. Glass 273 N.E. 2d 893 (Ohio Ct. App. 1971). Ancient human remains not “human” for purposes of Ohio grave robbing statute

E. Treaty Rights Pertaining to Traditional/Sacred Practices *U.S. v. Washington 384 F. Supp. 312 (W.D. Wash. 1974) aff’d 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). Boldt Decision on Salmon Fishing *Lac Court Oreilles Band of Lake Superior Chippewa Indians v. Voight, 700 F. 2d 341 (7th Cir.) Cert. denied, 464 U.S. 805 (1983) 653 F. Supp. 1420; Fishing/Ricing/Gathering on Ceded Lands Minnesota v. Mille Lacs Band of Chippewa Indians 124 F 3d 904 affirmed. (1999) Fishing/Ricing/Gathering on Ceded Lands

V. References & Resources

Brown, Michael, Who Owns Native Culture (Cambridge, Mass: Harvard University Press, 2003). Burton, Lloyd Worship and Wilderness: Culture, Religion, and Law in the Management of Public Lands and Resources (Madison: University of Wisconsin Press, 2002).

Deloria, Vine, Jr., “Secularism, Civil Religion, and the Religious Freedom of American Indians,” American Indian Culture and Research Journal 16:9-20 (1992).

[a] Deloria, Vine, Jr., “Trouble in High Places: Erosion of American Indian Rights to Religious Freedom in the United States,”in The State of Native America: Genocide, Colonization, and Resistance , ed. M. Annette Jaimes (Boston: South End Press, 1992).

[b] Echo Hawk, Walter,  In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided ( Fulcrum Publications , 2010) . Fine-Dare, Kathleen, Grave Injustice: The American Indian Repatriation Movement and NAGPRA (Lincoln: University of Nebraska Press, 2002).

Ferguson, T.J., Roger Anyon, and Edmund J. Ladd, “Repatriation at the Pueblo of Zuni: Diverse Solutions to Complex Problems,” in Repatriation Reader , ed. Devon Mihesuah (Lincoln: University of Nebraska Press, 2000) pp. 239-265.

Gordon-McCutchan, R.C., The Taos Indians and the Battle for Blue Lake (Santa Fe, New Mexico: Red Crane Books, 1991).

Gulliford, Andrew, Sacred Objets and Sacred Places: Preserving Tribal Traditions (Boulder: University Press of Colorado, 2000).

Johnson, Greg, Sacred Claims: Repatriation and Living Tradition (Charlottesville: University of Virginia Press, 2007).

King, Thomas F., Places that Count: Traditional Cultural Properties in Cultural Resource Management (Walnut Creek, Calif: Altamira Press, 2003).

Long, Carolyn, Religious Freedom and Indian Rights: The Case of Oregon v. Smith (Lawrence: University of Kansas Press, 2001).

Maroukis, Thomas A., Peyote Road: Religious Freedom and the Native American Church (Norman: University of Oklahoma Press, 2010)

Martin, Joel, The Land Looks After Us: A History of Native American Religion (New York: Oxford University Press, 2001).

McLeod, Christopher (Producer/Director), In Light of Reverence , Sacred Lands Film Project, (Earth Image Films, La Honda Calif. 2000).

McNally, Michael D., "Native American Religious Freedom Beyond the First Amendment," in After Pluralism ed. Courtney Bender and Pamela Klassen (New York: Columbia University Press, 2010).

Mihesuah, Devon A., ed., Repatriation Reader: Who Owns American Indian Remains (Lincoln: University of Nebraska Press, 2000).

Nabokov, Peter, A Forest of Time: American Indian Ways of History (New York: Cambridge University Press, 2002).

Sullivan, Robert, A Whale Hunt (New York: Scribner, 2000).

Trope, Jack F., and Walter Echo-Hawk, “The Native American Graves Protection and Repatriation Act: Background and Legislative History,” in Repatriation Reader , ed. Devon Mihesuah (Lincoln: University of Nebraska Press, 2000), pp. 123-168.

Wenger, Tisa, We Have a Religion : The 1920s Pueblo Indian Dance Controversy and American Religious Freedom (Chapel Hill: University of North Carolina Press, 2009).

Home — Essay Samples — Literature — Thomas Paine — The Importance of Religious Freedom in Contemporary Society

The Importance of Religious Freedom in Contemporary Society

• Categories: Thomas Paine

About this sample

Words: 639 |

Published: Mar 1, 2019

Words: 639 | Page: 1 | 4 min read

Cite this Essay

Let us write you an essay from scratch

• 450+ experts on 30 subjects ready to help
• Custom essay delivered in as few as 3 hours

Get high-quality help

Prof Ernest (PhD)

Verified writer

• Expert in: Literature

+ 120 experts online

By clicking “Check Writers’ Offers”, you agree to our terms of service and privacy policy . We’ll occasionally send you promo and account related email

No need to pay just yet!

Related Essays

3.5 pages / 1676 words

3.5 pages / 2123 words

7 pages / 3092 words

6 pages / 2729 words

Remember! This is just a sample.

You can get your custom paper by one of our expert writers.

121 writers online

Still can’t find what you need?

Browse our vast selection of original essay samples, each expertly formatted and styled

Related Essays on Thomas Paine

In times of crisis, the words of Thomas Paine have proven to be both powerful and persuasive. As a revolutionary thinker and prolific writer, Paine's work has left a lasting impact on history, particularly in times of turmoil. [...]

Thomas Paine emerges as a seminal figure, whose written works galvanized the populace during the crucible of revolution. Not merely content to argue for independence through straightforward prose, Paine skillfully wielded [...]

The title year of George Orwell's most famous novel is nineteen years past, but the dystopian vision it draws has retained its ability to grip readers with a haunting sense of foreboding about the future. At the heart of many of [...]

In the novel Nineteen Eighty-Four, Orwell uses several literary techniques to develop the theme that totalitarianism is destructive. He does so by using extensive imagery, focusing on the deterioration of the Victory Mansions, [...]

Offred and Winston, the main protagonists of the two strikingly similar dystopian fictions, The Handmaid’s Tale and 1984, have disparate fates in the endings of the novels. Julia’s fate, however, is undetermined, as (like the [...]

The fear of a dystopian future that is explored in both Fritz Lang’s film Metropolis and George Orwell’s novel Nineteen Eighty Four is reflective of the values of the societies at the time and the context of the authors. As [...]

Related Topics

By clicking “Send”, you agree to our Terms of service and Privacy statement . We will occasionally send you account related emails.

Where do you want us to send this sample?

By clicking “Continue”, you agree to our terms of service and privacy policy.

Be careful. This essay is not unique

This essay was donated by a student and is likely to have been used and submitted before

Download this Sample

Free samples may contain mistakes and not unique parts

Sorry, we could not paraphrase this essay. Our professional writers can rewrite it and get you a unique paper.

Please check your inbox.

We can write you a custom essay that will follow your exact instructions and meet the deadlines. Let's fix your grades together!

Get Your Personalized Essay in 3 Hours or Less!

We use cookies to personalyze your web-site experience. By continuing we’ll assume you board with our cookie policy .

• Instructions Followed To The Letter
• Deadlines Met At Every Stage
• Unique And Plagiarism Free

This website uses cookies.

By clicking the "Accept" button or continuing to browse our site, you agree to first-party and session-only cookies being stored on your device to enhance site navigation and analyze site performance and traffic. For more information on our use of cookies, please see our Privacy Policy .

• Journal of Economic Literature

Religion and Discrimination: A Review Essay of Persecution and Toleration: The Long Road to Religious Freedom

• Article Information

Additional Materials

• Author Disclosure Statement(s) (43.26 KB)

JEL Classification

• Z12 Cultural Economics: Religion

• Election Integrity
• Immigration

Political Thought

• American History
• Conservatism
• Progressivism

International

• Global Politics
• Middle East

Government Spending

• Budget and Spending

Energy & Environment

• Environment

Legal and Judicial

• Crime and Justice
• Second Amendment
• The Constitution

National Security

• Cybersecurity

Domestic Policy

• Government Regulation
• Health Care Reform
• Marriage and Family

Religious Liberty

• International Economies
• Markets and Finance

Why Does Religious Freedom Matter?

Select a Section 1 /0

Religious liberty and a thriving religious culture are defining attributes of the United States, characterizing the American order as much as its political system and market economy. [1] From the earliest settlements of the 17th century to the great social reform causes led by religious congregations in the late 19th century and again in the 20th century, religion has been a dominant theme of American life.

Today, almost 90 percent of Americans say that religion is at least “somewhat important” in their lives. [2] About 60 percent are members of a local religious congregation. [3] Faith-based organizations are extremely active in providing for social needs at home and in sending aid abroad.

Why does religious liberty matter—to America and to the world?

Freedom of religion is a cornerstone of the American experiment. That is because religious faith is not merely a matter of “toleration” but is understood to be the exercise of “inherent natural rights.” As George Washington once observed: “[T]he Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.” And “what is here a right towards men, is a duty towards the Creator,” James Madison wrote in his 1786 Memorial and Remonstrance . “This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.”

The model of religious liberty brilliantly designed by Madison and the other American Founders is central to the success of the American experiment. It is essential to America’s continued pursuit of the ideals stated in the Declaration of Independence, the ordered liberty embodied in the Constitution, and peace and stability around the world.

The key to America’s religious liberty success story is its constitutional order. The Founders argued that virtue derived from religion is indispensable to limited government. The Constitution therefore guaranteed religious free exercise while prohibiting the establishment of a national religion. This Constitutional order produced a constructive relationship between religion and state that balances citizens’ dual allegiances to God and earthly authorities without forcing believers to abandon (or moderate) their primary loyalty to God.

This reconciling of civil and religious authorities, and the creation of a Constitutional order that gave freedom to competing religious groups, helped develop a popular spirit of self-government. All the while, religious congregations, family, and other private associations exercise moral authority that is essential to maintaining limited government. The American Founders frequently stated that virtue and religion are essential to maintaining a free society because they preserve “the moral conditions of freedom.” [4]

Religion and good morals are the only solid foundation of public liberty and happiness. – Samuel Adams October 16, 1778

Today, the religious roots of the American order and the role of religion in its continued success are poorly understood. One source of the confusion is the phrase “separation of church and state,” a phrase used by President Thomas Jefferson in a widely misunderstood letter to the Danbury Baptist Association of Connecticut in 1802. [5] Many think this means a radical separation of religion and politics. Some have gone so far as to suggest that religion should be entirely personal and private, kept out of public life and institutions like public schools.

That is incorrect: Jefferson wanted to protect states’ freedom of religion from federal government control and religious groups’ freedom to tend to their internal matters of faith and practice without government interference generally. Unfortunately, Jefferson’s phrase is probably more widely known than the actual text of the Constitution’s First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The American model of religious liberty takes a strongly positive view of religious practice, both private and public. While it does not mean that anything and everything done in the name of religious liberty is not subject to the rule of law, it does mean that the law ought to make as much room as possible for the practice of religious faith. Far from privatizing religion, it assumes that religious believers and institutions will take active roles in society, including engaging in politics and policy-making and helping form the public’s moral consensus. In fact, the American Founders considered religious engagement in shaping the public morality essential to ordered liberty and the success of their experiment in self-government.

Defying predictions that political and social progress would eventually marginalize religion, religious belief and practice remain widespread and vibrant around the world.

“The very things that were supposed to destroy religion—democracy and markets, technology and reason—are combining to make it stronger,” write the authors of a book about religion’s persistence in culture and politics around the world. [6]

In this era—as in all prior human history—God has occupied the thoughts of man. Conscience, the mystery of existence, and the prospect of death challenge every human being to grapple with questions of transcendence and divine reality.

Religious freedom recognizes the right of all people to pursue these transcendent ends. This right is granted not by government but by the Creator. By respecting it, a government acknowledges that such ultimate issues are outside its jurisdiction, and that conscience is answerable to a higher authority than the law of the land. Individuals and institutions should be free to believe and to act in response to divine reality.

Because religious liberty is the bedrock for all human freedom, it provides a sturdy foundation for limited government. Liberty of conscience demands, and ultimately justifies, limited government.

Conversely, limited government requires individual responsibility. Freedom engages the moral responsibility of each and every person. In a free society, religion is an ally of good government as it forms the moral character of individuals and communities.

Religious freedom is a fundamental human right that ought to be enjoyed by the people of all nations. This principle has been recognized in the 1948 Universal Declaration of Human Rights and subsequent international agreements. Despite widespread recognition, many people are unable to exercise this basic liberty.

Even with religion’s global prevalence, religious freedom is far from universally respected. About a third of the world’s nations restrict religion to a high or very high degree, according to the Pew Forum on Religion & Public Life. Seventy percent of the world’s population lives in these countries. [7]

In some cases, totalitarian governments have oppressed religious individuals and groups generally. In others, statist regimes built on an established religion have persecuted religious minorities.

Countries designated by the U.S. State Department as “countries of particular concern” because they restrict religious freedom (such as North Korea, Iran, and Burma) suffer in other ways as well. They also tend to have the least economic liberty—and some of the worst economic outcomes.

On the other hand, governments that respect religious liberty tend to respect other freedoms as well. Religious freedom is strongly related to political liberty, economic freedom, and prosperity. As one researcher of international religious liberty notes, “[W]herever religious freedom is high, there tends to be fewer incidents of armed conflict, better health outcomes, higher levels of earned income, and better educational opportunities for women.” [8]

The 1998 International Religious Freedom Act made religious liberty an official part of U.S. foreign policy. The United States committed to promote freedom of religion as “a fundamental human right and as a source of stability for all countries” and to “identify and denounce regimes” that engage in persecution on the basis of religion.

Condemning and curtailing religious persecution is a critical goal, but religious freedom includes much more. Our vision of religious liberty must be robust.

Attempts to relegate religion to private life or to prevent religious institutions from conducting their business according to their beliefs threaten this fundamental freedom. Religious individuals and institutions should be free to exercise their religious belief within their private spheres as well as to engage publicly on the basis of religion. Believers should be free to persuade others to embrace their beliefs. Individuals should be able to leave or change their religion without fear of reprisal, and all should have the right to protection under the rule of law regardless of belief.

The church must be reminded that it is not the master or the servant of the state, but rather the conscience of the state. It must be the guide and the critic of the state, and never its tool. – Martin Luther King, Jr. 1963

The most secure and consistent protection for religious liberty needs to be rooted in constitutional government. U.S. public diplomacy can support the development of such robust religious freedom by telling America’s success story.

That requires that U.S. policymakers understand and be able to articulate the role of religion in the American constitutional order. In the 21st-century war of ideas, U.S. public diplomacy must rely on the bedrock of American founding principles in the fight against potent ideologies that present strong, coherent, and deeply misguided explanations of the nature and purpose of human existence. Evaluating religious dynamics around the world should become a regular function of analysis, and articulating the role of religion in the U.S. should be a consistent feature of communications strategy.

Religion and traditional morality continue to play a significant role in American public life. Most Americans continue to attach great significance to religious faith and practice, marriage, family, and raising children in a morally rich and supportive environment—values shared in many highly religious societies around the world.

Religious freedom is the birthright of all people, but too few governments around the world acknowledge it and far too many people have never enjoyed it.

One of the gifts of providence to the United States is a Constitution that has successfully safeguarded this fundamental right. It is a gift Americans should cherish and a model for all throughout the world.

Jennifer A. Marshall is Director of the Richard and Helen DeVos Center for Religion and Civil Society at The Heritage Foundation .

Enduring Truths

• George Washington, Letter to the Hebrew Congregation at Newport, Rhode Island The first president’s letter to this Hebrew Congregation—and by extension to one of the most persecuted religious groups in world history—eloquently articulates the American position that religious liberty is not merely a matter of tolerance but is an inherent right to be guaranteed by government.
• Gerard V. Bradley, Religious Liberty in the American Republic In this monograph, Bradley explains the Founders’ view of the relationship between religion and politics, and demonstrates how the Supreme Court radically deviated from this view in embarking on a project aimed at the secularization of American politics and society.
• J. D. Foster and Jennifer A. Marshall, “ Freedom Economics and Human Dignity ” The way we talk about freedom in the economic sphere tends to overlook the aspects of human experience that transcend the material. This essay explains how economic freedom helps order our lives together in a way that reflects the nature of man, the purpose of human life, and the satisfying of material needs and wants.

Current Issues

• PROMOTING RELIGIOUS LIBERTY. Thomas Farr, Ph.D. and Ambassador Terry Miller, “ Diplomacy in an Age of Faith: How Failing to Understand the Role of Religion Hinders America’s Purposes in the World ,” December 17, 2008. Farr and Miller argue that the American foreign affairs establishment has failed to grasp the significance of the resurgence of public religion around the world. As a result, it has missed an opportunity to incorporate the advancement of international religious freedom and the promotion of religious liberty into the general freedom agenda. This missed opportunity has harmed our interests.
• DEFAMATION OF RELIGION. Steven Groves, “ Why the U.S. Should Oppose ‘Defamation of Religions’ Resolution at the United Nations ,” November 10, 2008. The United Nations, with the backing of the Organization of the Islamic Conference, seeks to promote the concept of “defamation of religion,” which would establish an international ban on any speech that would insult, criticize, or disparage any religion. But the First Amendment to the Constitution protects the freedom of religion, which includes the right both to follow a faith and to criticize it. Groves demonstrates that the U.S. must oppose any effort to make “defamation of religion” part of U.S. law, and must resist spread of this concept inside the U.N. system.
• PUBLIC DIPLOMACY. Jennifer A. Marshall, “ Religious Liberty in America: An Idea Worth Sharing Through Public Diplomacy ,” January 15, 2009. U.S. public diplomacy seeks to impart to foreign audiences an understanding and appreciate of American ideals, principles, and institutions. In the United States, religious freedom is compatible with a positive and public role for religion. This is an American success story that should be told around the world. Marshall shows that, if public diplomacy is to play its full role in advancing American interests and ideals, it must systematically address both the role of religion and religious audiences.

Download the Report:

• PDF (Black and White)
• PDF (Color)

[1] Michael Novak, The Spirit of Democratic Capitalism (New York: Madison Books, 1991), p. 16.

[2] Pew Forum on Religion & Public Life, “U.S. Religious Landscape Survey: Religious Beliefs and Practices: Diverse and Politically Relevant,” June 2008, p. 22, at http://religions.pewforum.org/pdf/report2-religious-landscape-study-full.pdf (November 16, 2010).

[3] Pew Forum on Religion & Public Life, “U.S. Religious Landscape Survey: Religious Beliefs and Practices: Diverse and Politically Relevant,” pp. 36 and 39.

[4] Thomas G. West, “Religious Liberty,” Claremont Institute, January 1997, at http://www.claremont.org/writings/970101west.html (November 16, 2010).

[5] Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State (New York: New York University Press, 2002).

[6] John Micklethwait and Adrian Wooldridge, God Is Back: How the Global Revival of Faith is Changing the World (New York: Penguin, 2009), p. 12.

[7] Pew Forum on Religion & Public Life, “Global Restrictions on Religion,” December 2009, at http://pewforum.org/Government/Global-Restrictions-on-Religion.aspx (December 6, 2010).

[8] Brian Grim, “Religious Freedom: Good for What Ails Us?” The Review of Faith & International Affairs , Vol. 6, No. 2 (Summer 2008).

Former Senior Visiting Fellow

The moral and religious beliefs of individuals and organizations should be respected in law.  

Learn more policies that protect right of conscience in everyday living with Solutions .

Download Our “What You Need To Know About Religious Freedom” Guide Here .

COMMENTARY 2 min read

LEGAL MEMO About an hour read

COMMENTARY 3 min read

Subscribe to email updates

© 2024, The Heritage Foundation

• Regional News
• National News
• The Catholic Mirror
• Watch Real to Reel
• Diocese of Springfield
• Calendar of Events

• Real to Reel
• Catholic Mirror
• Diocesan Calendar

March 8, 2024

US bishops’ annual religious freedom essay contest opens for high schoolers

National by osv news.

Sun shines through a statue of Jesus Christ on a grave marker alongside an American flag at St. Mary Catholic Cemetery in Appleton, Wis., in this 2018 photo. (OSV News photo/Bradley Birkholz)

WASHINGTON (OSV News) — High school juniors and seniors are invited to enter an annual religious liberty essay contest hosted by the U.S. Conference of Catholic Bishops’ Committee for Religious Liberty, along with the USCCB Secretariat of Catholic Education and Our Sunday Visitor Institute.

The contest, titled “Witnesses to Freedom,” asks entrants to “share the story of a witness to freedom.”

“Participants should choose one person or group, such as an organization or community, who is important in the story of religious freedom,” according to the contest rules, posted on the USCCB’s website.

Essays are due March 29 and can be submitted via email: [email protected] . Participants also must include with the entry a completed consent form; links to the consent form and contest rules can be found at usccb.org/religious-liberty-essay .

Winners will be announced in May. The first-place essay will be published by Our Sunday Visitor, the newspaper of OSV (the parent company of the OSV News wire service), and the author will be awarded a $2,000 scholarship.

Second place will receive a $1,000 scholarship and third place will receive a $500 scholarship.

“Who are the people that inspire us? Religious freedom is a fundamental right. But the truth of religious freedom has needed, and continues to need, witnesses,” said a USCCB announcement on the contest. “Philosophers and statesmen have articulated key principles and ideas. Advocates have stood up for the freedom of others. Saints have suffered persecution and even martyrdom.”

“These witnesses to freedom,” it said, “show us what it means to promote religious freedom and what it means to be truly free.”

Participants are asked to answer these questions in their essay: “Was there a key moment in the person’s life that bears witness to freedom. Or was it the life as a whole?” “Did the person articulate important concepts for religious freedom, and if so, what arguments did she or he make?” “Why is this person a witness to religious freedom?” “What lessons can we learn from this person’s witness?”

Editor’s Note : A link to the USCCB essay contest is here: https://www.usccb.org/religious-liberty-essay

CATHOLIC COMMUNICATIONS CORP., 65 ELLIOT ST., P.O. BOX 1730 SPRINGFIELD, MA 01102-1730

CONTACT | LEGAL | PRIVACY

413-732-3175 / [email protected]

© Copyright 2024 Catholic Communications Corporation

• Knowledge Base
• General Essays

Religious Freedom Essay

• Author StudySaurus
• Category General Essays

Disclaimer: This paper has been submitted by a student. This is not a sample of the work written by professional academic writers.

Any opinions, findings, conclusions or recommendations expressed in this work are those of the authors and do not necessarily reflect the views of StudySaurus.

Topic: The importance of religious freedom

Every year, I sit down to enjoy a Thanksgiving meal with my extended family. We share memories, joy, and laughter just like the Pilgrims did over 400 years ago. That is a memory every family can relate to, although most people have never thought about or don’t even know why they are there. The reason is simple: if the Pilgrims would not have stood up for their freedom and took a dangerous journey to the “New World” to get their religious freedom back, we would not have a Thanksgiving. If it was not for this, history-and Americans lives-would be completely different.

In England, there was one church- The Church of England. The Pilgrims were part of the Separatists, who wanted the freedom to worship God in their own way, but they did not have the freedom to. If you were found practicing a different religion, you would be thrown into jail. So, the Pilgrims merely took a journey to be able to just get back their religious freedom. 45 of the 102 passengers died on the journey. Would you be able to risk your life for religious freedom?

The Pilgrims left behind England to come to America, a land with religious freedom. In the 27 amendments of the Constitution, religious freedom is the first. It says this about freedom of religion, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” To me, those are the most beautiful words ever written. We are one of the few countries that have religious freedom and are able to do one of the most important things to me, attend a Catholic school. Catholic schooling is so important to me because the environment is safe, and I will not be bullied because of my faith. While we get this opportunity, however, other countries are not. In fact, they getting any opportunity except the ones their leader wants.

North Korea is rumored as the worst country to be a Christian in. Many Christians worship secretly, but many are found. Consequently, they are taken to a political camp where they are tortured with extra-judicial killing, extermination, enslavement/forced labor, forcible transfer of population, arbitrary imprisonment, torture, persecution, enforced disappearance, rape, and sexual violence. Other cases go as far as hanging on a cross over a fire, crushed under a steamroller, herded off bridges, and trampled underfoot, according to CSW. Nevertheless, 300,000 to 500,000 people still worship secretly. Still, these Christians probably spend their days waiting to be killed. That is exactly why I am so grateful to live in America. People would have so much bravery to be a Christian in North Korea. But, they knew what was waiting for them-Heaven.

I believe Religious Freedom is definitely important enough to be the first amendment in America. The mistreatment that goes on daily in other countries because you practice religion is something that I have honestly never thought about until now. Thinking about what the other people have gone through, I think if the opportunity calls, I would give my life as Jesus did, and never turn back.

Was this material helpful?

Related essays, about studysaurus, community. knowledge. success..

StudySaurus is run by two uni-students that still get a kick out of learning new things. We hope to share these experiences with you.

Ideas ,  concepts ,  tutorials,   essay papers  – everything we would’ve liked to have known, seen or heard during our high-school & UNI years, we want to bring to YOU.

Privacy & Cookies Policy Terms and Conditions DMCA Request