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Liberal Democracy and the Right to Religious Freedom

Published online by Cambridge University Press:  11 November 2009

Michael J. Perry
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Abstract

The Roman Catholic Church was famously late to embrace the right to religious freedom. Some have plausibly maintained that when, in 1965, the cardinals and bishops at the Second Vatican Council overwhelmingly adopted the Declaration on Religious Freedom—known by the first two words of its official Latin version: Dignitatis Humanae—the church betrayed one of its most traditional and established theological teachings. The right to religious freedom, according to international law, rests in part on respect for human dignity. Thus there is a prima facie link between the liberal democratic justification and the church's 1965 justification. But, as I will argue, the appeal to human dignity is not a preserve of modern liberal democracy. Indeed, we can imagine a government that limits religious freedom because it wishes to save souls, and this precisely out of a respect for human dignity. A similar view was held by the pre-Vatican II church. Thus the appeal to human dignity is not evidence of a fundamental shift by the church. What then does account for the church's undeniable change of direction? Human dignity by itself cannot provide the fundamental justification for the right to religious freedom. Another ingredient is needed: distrust, born of long historical experience, of government authority to adjudicate questions of religious truth. The church in Dignitatis Humanae accepted this lesson of history, a lesson available to believers of a variety of stripes as well as nonbelievers.

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Type
Research Article
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The Review of Politics , Volume 71 , Issue 4 , Fall 2009, pp. 621 - 635
Copyright
Copyright © University of Notre Dame 2009

Liberal Democracy and Religious Freedom

Democracy is committed to the right to political freedom—by which I mean principally the right to vote and the right to freedom of expression. No country is a genuine democracy unless it recognizes and protects, as a fundamental legal right, the right “[t]o vote … at genuine periodic elections which shall be by universal and equal suffrage and shall be by secret ballot, guaranteeing the free expression of the will of the electors” (Article 25 of the International Covenant on Civil and Political Rights [ICCPR]). Similarly, no country is a genuine democracy unless it recognizes and protects, as a fundamental legal right, the right to the freedoms of inquiry, speech, and press, which we may call, for the sake of simplicity, the right to freedom of expression. Obviously, a citizenry cannot participate meaningfully by voting or otherwise in the political life of its country unless it enjoys, as a matter of right, freedom of expression, which, according to Article 19 of the ICCPR, comprises “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of [one's] choice.” The right to freedom of expression is not—as a real-world matter it cannot be—absolute; according to Article 19, one's freedom of expression may “be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.”

Just as no country is a genuine democracy unless it is committed to—unless it recognizes and protects, as a fundamental legal right—the right to political freedom, no country is truly a liberal democracy unless it recognizes and protects, as a fundamental legal right, the right to religious freedom—the right to freedom of religious practice—which is a core liberal-democratic right. As I explain later in this article, the right to religious practice is the right, which of course is not absolute, to worship and otherwise practice and bear witness to one's religion in public, even to the point of proselytizing.

It is widely agreed that the right to religious freedom is a sine qua non of liberal democracy. But whereas the case for democracy's commitment to the right to political freedom is straightforward and familiar—“An informed citizenry,” said Thomas Jefferson, “is at the heart of a dynamic democracy”—the case (the rationale, the argument) for liberal democracy's commitment to the right to religious freedom, although not unfamiliar, is more complicated. In denying religious freedom to its citizens, is government violating its citizens? In doing some things to a human being—for example, in torturing him prior to executing him—we may safely assume that government is violating him implicitly if not explicitly, by doing to him what one would not do to him if one genuinely perceived him to have inherent dignity. However, as I am about to explain through a fable about a country named Elysium (which has much in common with the policy of the pre-Vatican II church), in denying religious freedom to its citizens, government is not necessarily violating its citizens even implicitly.

Elysium

Elysium, like Saudi Arabia, has a population of about 25 million. Approximately 80 percent of Elysians belong to a religion known as The One True Faith (TOTF); the other 5 million belong to various other religions. TOTF vigorously affirms, and gives a theological ground in support of, the morality of human rights: according to one of TOTF's fundamental teachings, every human being has inherent dignity and is inviolable because every human being is a beloved child of God and a sister/brother to oneself. Like many other religions, TOTF teaches that individuals cannot be coerced into accepting—truly accepting—a religion (religious beliefs) as their own religion; and, indeed, the Elysian constitution, inspired in part by an argument John Locke makes in his Letter Concerning Toleration, forbids government to try to coerce anyone into accepting TOTF as her religion.Footnote 1 Likewise, the Elysian constitution forbids government to prohibit anyone from practicing her religion in private.Footnote 2 Elysian statutory law specifies the private places where non-TOTFers may worship and otherwise practice their religion, including their own homes.

However, TOTF teaches that no human being can achieve eternal salvation who does not freely embrace TOTF as the one true faith. It is not surprising, therefore, that TOTF is the politically/legally favored religion—in that sense, the established religion—in Elysium. Accordingly, the Elysian constitution forbids the government to enact any law or adopt any policy that is inconsistent with the teachings of TOTF. Nonetheless, because Elysians have taken to heart James Madison's Memorial and Remonstrance against Religious Assessments, the Elysian constitution embraces a part of Thomas Jefferson's Statute for Religious Freedom and forbids the government to require any citizen to support, financially or otherwise, TOTF.Footnote 3 So, the establishment of religion in Elysium is, in some respects, much less severe than it has been in other places at other times. The establishment of religion in Elysium is certainly less severe than it is in Saudi Arabia today.Footnote 4

We now come to the heart of the matter. John Locke wrote, in his Letter Concerning Toleration, that “the whole jurisdiction of the magistrate … neither can nor ought in any manner to be extended to the salvation of souls.”Footnote 5 The government of Elysium, however, disagrees with Locke. Elysian law bans any public practice of, and any proselytism on behalf of, any religion other than TOTF; it also bans any proselytism of positions, like atheism and agnosticism, that challenge theistic religion generally. The rationale for this policy is simple—and un-Lockean: By banning practices that will predictably cause some Elysians to abandon, and other Elysians not to embrace, TOTF, the policy is aimed at maximizing the number of Elysians who will achieve eternal salvation.Footnote 6

In denying to non-TOTFers freedom to practice their religion in public and to proselytize on behalf of their religion, are Elysian officials violating them, either explicitly or implicitly: explicitly, by denying that non-TOTFers have inherent dignity, or implicitly, by not acknowledging the inherent dignity of non-TOTFers? To the contrary, it is because they insist that all Elysians, non-TOTFers no less than TOTFers, have inherent dignity—that every Elysian is a beloved child of God—that Elysian officials are trying to maximize the number of Elysians who will achieve eternal salvation. In denying to non-TOTFers freedom to practice their religion in public and to proselytize, Elysian officials are acting out of a deep respect and concern for all Elysians; they are not violating non-TOTFers.

The Elysians obviously differ from the contemporary church in the extreme narrowness of their version of the doctrine extra ecclesiam nulla salus (outside the church no salvation). Elysian TOTFers believe that the denial of religious freedom is justified, and the suffering it causes, therefore, warranted as a loving effort to protect all Elysians, including non-TOTFers, from the worst fate, the most horrific fate, imaginable: the loss of eternal salvation.

However, we citizens of liberal democracy are not TOTFers. Even the Roman Catholic Church no longer subscribes to such a crabbed—literalist—reading of extra ecclesiam nulla salus. “For centuries it was the teaching of the Roman [Catholic] Church that the majority of human beings went to hell, and that only Catholics, and most likely only a minority of them, went to heaven. … Pope Boniface VIII concluded his Bull Unam Sanctam, 1302, with the words ‘We declare, say, define, and proclaim to every human creature that if they are to be saved they must of necessity be subject to the Roman Pontiff.’”Footnote 7 But in 1964, by contrast, Joseph Ratzinger, who is now Pope Benedict XVI, could proclaim in a sermon that “we are convinced that God is able [to save non-Christians] with or without our theories, with or without our perspicacity, and that we do not need to help [God] do it with our cognitions.”Footnote 8

Religious Freedom and Historical Experience

How can we understand the change in the church's stance toward religious freedom? Religious liberty scholar Douglas Laycock has observed that “in history that was recent to the American Founders, governmental attempts to suppress disapproved religious views had caused vast human suffering in Europe and in England and similar suffering on a smaller scale in the colonies that became the United States.”Footnote 9 It is easy enough to identify the kinds of serious human suffering that attend a war of any kind, including a war animated by religious differences—and the kinds of serious human suffering that attend the punishment government imposes on human beings, or threatens to impose on them, in consequence of their violating a criminal ban on one or more of their religious practices. But even in the absence of a religious war or other serious religious conflict, and even if no one violates the ban on religious practices, the ban, nonetheless, causes serious human suffering: the emotional suffering, often traumatic, that attends one's being legally forbidden to live a life of integrity—legally forbidden, that is, to live life in harmony with one's religious conscience, in harmony with one's convictions and commitments. The kind of suffering human beings endure in consequence of being legally forbidden to practice their religion consists of the disintegration of a central aspect of their lives. Why might government believe itself justified in imposing such suffering?

We can easily imagine the powers that be declaring, “Certain religious teachings are true—for example, the teaching that one who embraces Christianity has a much better chance of being savedFootnote 10—and no government should lack authority to ban practices, religious or not, that may lead some people to reject those teachings.” We can also anticipate a secular version of the position: “Certain antireligious teachings are true—for example, the teaching that ‘religion is unscientific, superstitious, and an enemy of progress’Footnote 11—and no government should lack authority to ban practices, religious or not, that may lead some people to reject those teachings.” Neither the religious nor the secular version of this position is persuasive to those of us who, after reflecting on historical experience, concur in John Locke's judgment that “[n]either the right nor the art of ruling does necessarily carry along with it the certain knowledge of other things, and least of all true religion.”Footnote 12 (To Locke's “does necessarily carry,” we may add “or has ever carried.”) “The one only narrow way which leads to Heaven,” said Locke, “is not better known to the Magistrate than to private persons, and therefore I cannot safely take him for my Guide, who may probably be as ignorant of the way as my self, and who certainly is less concerned for my Salvation than I my self am.”Footnote 13 In our (Lockean) judgment, government is not to be trusted as an arbiter of religious (or antireligious) truth. Or, because we are talking here specifically about government in a liberal democracy, we may say that a political majority is not to be trusted as an arbiter of religious truth. As Locke put it, “the business of laws is not to provide for the truth of opinions, but for the safety and security of the commonwealth, and of every particular man's goods and persons.”Footnote 14

That is, government is not to be trusted as an arbiter of religious truth beyond a certain point. As I have explained elsewhere,Footnote 15 a liberal democracy is committed to the proposition that every human being has inherent dignity and is inviolable; in the political culture of a liberal democracy, this proposition is axiomatic. In a liberal democracy, government should act in accord with the proposition. Even in doing so, government is implicitly rejecting the position of some (e.g., racist) religions and thereby, in that limited sense, acting as an arbiter of religious truth. (“The world is one in which every human being has inherent dignity and is inviolable; if God exists and created the world, then the world created by God is one in which every human being has inherent dignity and is inviolable.”) Moreover, certain governmental interests are undeniably legitimate, and government must be legally free to serve such interests—for example, protecting the lives, health, and safety of the citizenry—even if in doing so government is sometimes implicitly rejecting the position of some religions and thereby, in that limited sense, acting as an arbiter of religious truth.

A court orders a state to desegregate its schools, the country goes to war, educational funds are made available equally to men and women. The government has implicitly rejected religious notions that (1) God wishes rigid racial separation, (2) all killing in war violates God's commandments, (3) all women should occupy themselves with domestic tasks. A vast array of laws and policies similarly imply the incorrectness of particular religious views.Footnote 16

But beyond that certain point, government is not to be trusted as an arbiter of religious truth. In particular, government need not act—and we are understandably and justifiably wary about its acting—as an arbiter of religious (theological) disagreements that do not implicate any legitimate governmental interest. We affirm, with Locke, that “the business of laws is not to provide for the truth of opinions, but [only] for the safety and security of the commonwealth, and of every particular man's goods and persons.”Footnote 17 Henceforth, when I say that government is not to be trusted as an arbiter of religious truth, I mean that government is not to be trusted as an arbiter of religious disagreements that do not implicate a legitimate governmental interest.

One can imagine the Roman Catholic Church of an earlier time replying to Locke that “so long as the state accepts the Catholic Church as the arbiter of religious truth, there is no problem, because the Catholic Church has ‘certain knowledge’ of religious truth.” By the time of the Second Vatican Council (1962–1965), however, the cardinals and bishops of the Catholic Church—a large majority of them—had come to accept that the era had ended during which the church could realistically expect to wield the kind of influence over a state—any state—it had once wielded over some states, and that the church too, therefore, should not trust any government, including any political majority in a liberal democracy, as an arbiter of religious truth.

Another imaginable, but illegitimate, claim of governmental interest is protecting the religious unity of society. We can easily imagine the power elite declaring, “In the long run, religious unity, understood as a kind of ‘glue,’ enhances the strength of a nation (‘strength’ as in ‘united we stand, divided we fall’); therefore, no government should lack authority to ban practices, religious or not, that over time may diminish the nation's religious unity and thereby weaken the nation.”Footnote 18 (In 1931, the fascist dictator of Italy, Benito Mussolini, proclaimed that “religious unity is one of the great strengths of a people.”Footnote 19) But that position, too, is belied by historical experience—not least, the historical experience of religious freedom in the United States. Indeed, given the suffering it causes and the divisiveness it precipitates, the coercive imposition of religious uniformity—if not necessary to serve some other, important governmental interest, such as protecting the lives, health, or safety of the citizenry—is more likely to corrode than to nurture the strength of a democracy, especially if the democracy is, as liberal democracies typically and increasingly are, religiously pluralistic.Footnote 20

This, then, is the fundamental warrant for liberal democracy's commitment to the right to religious freedom: political majorities are not to be trusted (i.e., beyond a certain point) as arbiters of religious truth; moreover, the coercive imposition of religious uniformity is (beyond a certain point) more likely to corrode than to nurture the strength of a democracy. The warrant, which is rooted in historical experience, is fundamental in the sense that it is ecumenical: both citizens who are religious believers and those who are not can affirm the warrant. And that the warrant is ecumenical is ideal: liberal democracies are religiously pluralistic; the citizenry of a liberal democracy typically includes not only religious believers—indeed, religious believers of various stripes—but also nonbelievers. It is ideal that all citizens of liberal democracy—believers no less than nonbelievers—have the same basic reason to embrace the right to religious freedom.Footnote 21

Dignitatis Humanae

Again, the Roman Catholic Church was famously late to embrace the right to religious freedom. We are now in a position to see that when at last the church did embrace the right, it did so, contrary to what some have suggested, without abandoning any of its fundamental theological beliefs.Footnote 22 We can see, in particular, that it is not the case that the church suddenly began respecting the dignity of the human individual in 1965. The church embraced the right to religious freedom on the basis of substantially the same, ecumenical rationale based on historical experience that I have elaborated in this paper. The story of the church's conversion is worth recounting because the story powerfully illustrates that all citizens—Catholics no less than non-Catholics, Christians no less than non-Christians, believers no less than nonbelievers—can consistently with their core theological or nontheological beliefs affirm the rationale.

In 1965, the cardinals and bishops at the Second Vatican Council (1962–1965), by a vote of 2,308 to 70, adopted the Declaration on Religious Freedom, known by the first two words of the official Latin version, Dignitatis Humanae. Later that year, Pope Paul VI promulgated the Declaration as the teaching of the Roman Catholic Church. In Dignitatis Humanae, the church finally embraced the right to religious freedom as a right that, given the inherent dignity and inviolability of every human being, should be universally legislated.

The pre-Vatican II Catholic Church, notwithstanding its vigorous affirmation of the inherent dignity and inviolability of every human being, rejected the right to religious freedom as a right that should be universally legislated. Prior to 1965, the church rejected the claim that non-Catholics should everywhere have the same legal freedom Catholics themselves should have to practice their religion in public and to proselytize. As Michael Walsh has explained:

[In the 1940s,] Protestants had reason for their suspicion of Catholics. The “liberal” approach to the pluralism of religious practice found in the United States was certainly not replicated in Spain and some Latin American countries, or even, to some extent, in Italy. The Church had no problem with diversity of belief—it was accepted that no one could be coerced into Catholicism—but practice was a different matter. It was the duty of a Catholic state, the argument ran, to constrain public expression of religion other than Catholicism. Error, it was repeated mantra-like, has no right.Footnote 23

Unlike the pre-Vatican II Catholic Church, the post–Vatican II Catholic Church accepts—indeed, celebrates—the right to religious freedom. Walsh's article provides a good summary of the fierce debate among the cardinals and bishops at the Second Vatican Council that preceded what Walsh calls the Council's “u-turn” with respect to the right to religious freedom, namely, its adoption of Dignitatis Humanae.Footnote 24

Dignitatis Humanae's commitment to the right to religious freedom was—is—unmistakable and resounding. The human person is “not to be forced to act in a manner contrary to his conscience. Nor … is he to be restrained from acting in accordance with his conscience, especially in matters religious.”Footnote 25 “This right of the human person to religious freedom is to be recognized in the constitutional law whereby society is governed and thus it is to become a civil right.”Footnote 26 “Religious communities … have the right not to be hindered in their public teaching and witness to their faith, whether by the spoken or by the written word.”Footnote 27 “[G]overnment is to assume the safeguard of the religious freedom of all its citizens, in an effective manner, by just laws and by other appropriate means.”Footnote 28 Religious freedom “is to be recognized as the right of all men and communities and sanctioned by constitutional law.”Footnote 29 In its final section, Dignitatis Humanae declares, “The fact is that men of the present day want to be able freely to profess their religion in private and in public. Indeed, religious freedom has already been declared to be a civil right in most constitutions, and it is solemnly recognized in international documents. … This council [Vatican II] greets with joy [this fact] as among the signs of the times.”Footnote 30

In embracing the right to religious freedom, the church, in Dignitatis Humanae, abandoned a theocratic conception of political authority. According to Dignitatis Humanae, “[n]o merely human power can either command [acts contrary to one's religious conscience] or prohibit [acts in accordance with one's religious conscience].”Footnote 31 “Government … would clearly transgress the limits set to its power, were it to presume to command or inhibit acts that are religious.”Footnote 32

Although Dignitatis Humanae succeeded in explaining, in clear terms consistent with earlier papal pronouncements, the church's traditional support for the right to freedom of religious belief,Footnote 33 it failed to explain in such terms—indeed, it was impossible to explain in such terms—the church's u-turn with respect to the right to freedom of religious practice.Footnote 34 (Why didn't the authors of Dignitatis Humanae forthrightly acknowledge in the text of the document the impossibility of such an explanation? “Reticence to reject the past by explicit reference to the rejected doctrine was, no doubt, the price paid for the unity finally achieved.”Footnote 35) One fierce critic of the church's reversal has complained:

The new year of 1995 marks thirty years since the close of the Second Vatican Council, and without a doubt the confusion, division and loss of faith within the Catholic Church can be directly attributed to some of the decrees and declarations of the Council, and the most destructive of the Catholic Faith after the Council, was the decree Dignitatis Humanae on Religious Liberty. … The reason this decree was the most controversial and the most destructive is that it explicitly taught doctrines previously condemned by past Popes. And this was so blatant that many conservative Council Fathers opposed it to the very end; while even the liberal cardinals, bishops and theologians who promoted the teachings of Dignitatis Humanae had to confess their inability to reconcile this decree with the past condemnations of Popes.Footnote 36

Nonetheless, the Catholic Church now embraces the right to religious freedom. “In a striking twentieth-century reversal,” writes Catholic historian R. Scott Appleby of Dignitatis Humanae, “the Catholic Church abandoned its previous claims to political privilege, renounced the theocratic model of political order, and became a powerful proponent of religious liberty.”Footnote 37 Appleby continues: “It is difficult to overstate the depth and scope of the ecclesial transformation that occurred over the course of the twentieth century.”Footnote 38 What led to that “striking reversal”? (Again, much of what Dignitatis Humanae says makes sense as an argument, not for the right to freedom of religious practice, but only for the right to freedom of religious belief.) What led the church in 1965 to abandon its theocratic conception of political authority?

I suggested in the preceding section of this paper that the fundamental warrant for liberal democracy's commitment to the right to religious freedom is rooted in historical experience. The same historical experience helps to explain Dignitatis Humanae; it helps to explain why in 1965 the Roman Catholic Church finally came round to embrace the very right to religious freedom to which liberal democracy is committed—and to embrace the right on substantially the same basis liberal democracy embraces it. An overwhelming majority of the cardinals and bishops at the council (2,308 to 70) accepted an argument the church had long rejected: liberal democracy's argument for the right to religious freedom.

In particular, they accepted liberal democracy's claim that government is not to be trusted as an arbiter of religious (or antireligious) truth. By the time of Second Vatican Council, the era had largely ended in which the church could realistically expect to wield the kind of influence over a state—any state—that it had once wielded over some states. Moreover, a new era was well under way, one in which Catholicism and other religions rightly feared for their freedom at the hands of militantly atheistic, totalitarian governments. Dignitatis Humanae notes and then denounces, “as only to be deplored,” the fact “that forms of government still exist under which, even though freedom of religious worship receives constitutional recognition, the powers of government are engaged in the effort to deter citizens from the profession of religion and to make life very difficult and dangerous for religious communities.”Footnote 39 Clearly, the claim that government is not to be trusted as an arbiter of religious truth was reinforced, for the cardinals and bishops at the Second Vatican Council, by “the negative experience of terrible totalitarian regimes.”Footnote 40

Moreover, “the positive experience of religious freedom under the American constitution”Footnote 41 made it much easier for the cardinals and bishops to accept the claim that government is not to be trusted as an arbiter of religious truth. The American experience demonstrated just how well religion—not least, Catholicism itself—can flourish where government is not trusted as an arbiter of religious truth—where, that is, religious freedom thrives. As John Noonan has recounted:

Above all, there were the example and influence of the United States. Where else had Christianity thrived so well as in this nation where freedom of religion and the separation of Church and State were enshrined in the constitution of the country? For the bishops of the United States, freedom of religion was their issue. A bloc, powerful in their resources, the bishops had an articulate advisor and draftsman in John Courtney Murray, a leading American Jesuit, silenced in the years preceding the council, then shoehorned into its advisors by Cardinal Francis Spellman, archbishop of New York. The lustre of the American experience was not lost upon the Fathers of Vatican II.Footnote 42

The cardinals and bishops at Vatican II brought to bear the lessons of historical experience, both negative and positive; they—and, ultimately, Pope Paul VI—concluded that there was much to be gained and little if anything to be lost by joining the growing movement for universal religious freedom. (John Courtney Murray said that “the Church came late to a war that was already won.”Footnote 43) The small minority of cardinals and bishops at the council who refused to bow to the lessons of historical experience—who continued to reject liberal democracy's twofold argument for the right to religious freedom—“appear[ed] to be creatures from a cave where sunlight had never penetrated.”Footnote 44

Dignitatis Humanae demonstrates just how powerfully subversive a teacher historical experience can be: What “had [been] taught as the doctrine of the Church was now gone beyond recall. What had been folly for [earlier popes] now earned the praise of pope and council in 1965.”Footnote 45

The principal reason the magisterium of the Roman Catholic Church finally embraced, at the Second Vatican Council, the right to religious freedom—embraced it, that is, as a right to be universally legislated—was not specifically Christian, much less Catholic. That is not surprising because, again, all citizens of liberal democracy—Catholics no less than non-Catholics, Christians no less than non-Christians, believers no less than nonbelievers—have the same basic reason to embrace the right to religious freedom: Government—a political majority—is not to be trusted (beyond a certain point) as an arbiter of religious truth; moreover, the coercive imposition of religious uniformity is (beyond a certain point) more likely to corrode than to nurture the strength of a democracy. Religious believers do not have less reason than nonbelievers—instead, religious believers and nonbelievers have the same basic reason—to insist that government not ban (or otherwise impede) a religious practice unless the ban is necessary to serve a legitimate governmental interest, the weight of which is proportionate to the weight of the burden imposed by the ban.

References

1 Locke's Letter was published in 1689. Earlier in the seventeenth century, on a different continent, another prophet of religious toleration—Roger Williams—was pressing, with more passionate rhetoric, the same message. See Eberle, Edward J., “Roger Williams' Gift: Religious Freedom in America,” Rogers Williams University Law Review 4 (1999): 425Google Scholar, 441–42, 443.

2 Cf. Eberle, “Roger Williams' Gift,” 444–45: “[For Roger Williams, m]atters of conscience extend beyond questions of belief. ‘By persecution for cause of conscience, I … mean either for professing some point of doctrine which you believe in conscience to be the truth, or for practicing some work which you believe in conscience to be a religious duty.’ For Roger Williams, it is clear that conscience encompasses both belief (‘professing some point you believe on conscience to be the truth’) and action (‘practicing some work which you believe in conscience to be a religious duty’).”

3 In his Memorial and Remonstrance against Religious Assessments, which bears the date June 20, 1785, James Madison wrote: “[W]e hold it for a fundamental and undeniable truth, ‘that religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence’ [Virginia Declaration of Rights, Art XVI ]. The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.”

Thomas Jefferson drafted the Virginia Statute for Religious Freedom, but it was James Madison who secured its adoption by the Virginia legislature in 1786. The statute remains a part of present-day Virginia's constitution. The part of the statute embraced by the Elysian constitution states: “We the General Assembly of Virginia do enact that no man shall be compelled to frequent or support any religious worship, place, ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief.”

4 See U.S. Department of State, Country Reports on Human Rights Practices for the Year 2003, http://www.state.gov/g/drl/rls/hrrpt/2003/27937pf.htm. For more on the lack of religious freedom in Saudi Arabia, see U.S. Department of State, International Religious Freedom Report for 2003, http://www.state.gov/g/drl/rls/irf/2003/24461.htm. For a report on (inter alia) the depressing state of intellectual life in Saudi Arabia, see Rubin, Elizabeth, “The Jihadi Who Kept Asking Why,” New York Times Magazine, March 7, 2004Google Scholar.

5 Locke, Letter, 3.

6 Cf. Smith, Steven D., “What Does Religion Have to Do with Freedom of Conscience?” University of Colorado Law Review 76 (2005): 911Google Scholar, 921: “[S]uppression of heretical belief has typically been calculated not so much to induce genuine belief in the heretics themselves (though religious authorities have no doubt hoped for that result) as to prevent heretics from infecting others who if spared the exposure will continue to hold a sincere, untroubled belief rather than being led astray. These heretical beliefs have been compared to a contagious disease, or to counterfeit currency, which the state ought to control and suppress. And there is no reason to suppose that coercion can achieve that end, at least under some conditions.”

7 Kenny, Anthony, What I Believe (London and New York: Continuum, 2006), 62–63Google Scholar.

8 Joseph Ratzinger, “Are Non-Christians Saved?”: http://www.beliefnet.com/story/209/story_20936.html.

9 Laycock, Douglas, “Religious Liberty as Liberty,” Journal of Contemporary Legal Studies 7 (1996): 317Google Scholar.

10 See “Other Faiths Are Deficient, Pope Says,” The Tablet [London], February 5, 2000, p. 157: “The revelation of Christ is ‘definitive and complete,’ Pope John Paul affirmed to the Congregation for the Doctrine of the Faith, on 28 January. He repeated the phrase twice in an address which went on to say that non-Christians live in ‘a deficient situation, compared to those who have the fullness of salvific means in the Church.’” Nonetheless, “[Pope John Paul II] recognised, following the Second Vatican Council, that non-Christians can reach eternal life if they seek God with a sincere heart. But in that ‘sincere search’ they are in fact ‘ordered’ towards Christ and his Church.”

11 See Breen, Lawrie, “A Chinese Puzzle,” The Tablet [London], March 5, 2005Google Scholar (reporting that “new regulations confirm that Beijing perceives religion as unscientific, superstitious and an enemy of progress”). “Last year a secret document, issued by the Central Committee's Propaganda Department, called for a new drive to promote Marxist atheism.”

12 John Locke, Letter Concerning Toleration (1689), translated (from a less familiar to a more familiar English) by William Popple, http://www.constitution.orgt/jl/tolerati.htm, 10. Cf. Perry, John, “John Locke's America: The Character of Liberal Democracy and Jeffrey Stout's Debate with the Christian Traditionalists,” Journal of the Society of Christian Ethics 27 (2007): 227Google Scholar.

13 Locke, Letter. See Madison, James, Memorial and Remonstrance against Religious Assessments (1785)Google Scholar (explaining why “We the subscribers, citizens of the said Commonwealth [Virginia],” reject the proposed “[b]ill establishing a provision for Teachers of the Christian Religion”).

14 Locke, Letter.

15 See Perry, Michael J., The Political Morality of Liberal Democracy (Cambridge: Cambridge University Press, forthcoming, 2010)Google Scholar.

16 Greenawalt, Kent, “Five Questions about Religion Judges Are Afraid to Ask,” in Obligations of Citizenship and Demands of Faith, ed. Rosenblum, Nancy L. (Princeton: Princeton University Press, 2000)Google Scholar, 196, 199.

17 Locke, Letter.

18 See McConnell, Michael W., “Establishment and Disestablishment at the Founding, part 1: Establishment of Religion,” William & Mary Law Review 44 (2003): 2105Google Scholar, 2182: “Machiavelli, who called religion ‘the instrument necessary above all others for the maintenance of a civilized state,’ urged rulers to ‘foster and encourage’ religion ‘even though they be convinced that is it quite fallacious.’ Truth and social utility may, but need not, coincide” (quoting Machiavelli, Niccolo, The Discourses, ed. Crick, Bernard R. and trans. Walker, Leslie J. [1520; Penguin, 1970], 139Google Scholar, 143). Cf. “Atheist Defends Belief in God,” The Tablet [London], March 24, 2007, p. 33: “A senior German ex-Communist has praised the Pope and defended belief in God as necessary for society. … ‘I'm convinced only the Churches are in a state to propagate moral norms and values,’ said Gregor Gysi, parliamentary chairman of Die Linke, a grouping of Germany's Democratic Left Party (PDS) and other left-wing groups. ‘I don't believe in God, but I accept that a society without God would be a society without values. This is why I don't oppose religious attitudes and convictions.’”

19 Quoted in Noonan, John T., Jr., A Church That Can and Cannot Change (Notre Dame, IN: University of Notre Dame Press, 2005), 155–56Google Scholar.

20 High Commission for Human Rights, The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, declares, “[T]he disregard and infringement of … the right to freedom of thought, conscience, religion or whatever belief, have brought, directly or indirectly, wars and great suffering to mankind” (November 25, 1981). Cf. Cruickshank, Paul, “Covered Faces, Open Rebellion,” New York Times, October 21, 2006Google Scholar.

21 This is not to say, of course, that every citizen embraces the right, or that every citizen who embraces the right does so for the same reason as every other citizen. In particular, to say that all citizens have the same basic reason to embrace the right to religious freedom is not to deny that some citizens may have an additional, religiously specific reason to embrace the right—for example, “It is God's will that everyone should enjoy the right to religious freedom.” Nor is it to deny that a religiously specific reason may be, for some citizens, the dominant reason.

22 It is implausible to claim that a literalist reading of extra ecclesiam nulla salus was one of the church's fundamental theological teachings. See n. 8 above and accompanying text.

23 Walsh, Michael, “U-turn on Human Rights,” The Tablet [London], December 14, 2002Google Scholar. See also Appleby, R. Scott, The Ambivalence of the Sacred: Religion, Violence, and Reconciliation (Lanham, MD: Rowman and Littlefield Publishers, 2000)Google Scholar (quoting David Hollenbach's summary of the pre-Vatican II church's rationale), 44: “The Roman Catholic faith is the true religion. It is good for people to believe what is true. The state is obliged to promote Catholic belief, and wherever possible to establish Catholicism as the religion of the state. Advocates of religious freedom are denying one of the cardinal premises of Roman Catholicism: they are rejecting the absolute truth of Catholic Christianity.”

24 See, in addition to Walsh's “U-turn on Human Rights,” Coleman, John A., “Religious Liberty: Unfinished Items from the Council,” America, November 28, 2005, 9Google Scholar.

25 Dignitatis Humanae: Declaration on Human Freedom, section 3.

26 Ibid., section 2.

27 Ibid., section 4. Dignitatis Humanae goes on to say: “However, in spreading religious faith and in introducing religious practices everyone ought at all times to refrain from any manner of action which might seem to carry a hint of coercion or of a kind of persuasion that would be dishonorable or unworthy, especially when dealing with poor or uneducated people. Such a manner of action would have to be considered an abuse of one's right and a violation of the right of others.”

28 Ibid., section 6.

29 Ibid., section 13.

30 Ibid., section 15.

31 Ibid.

32 Ibid.

33 That is, the right to freedom of religious belief for “the nonbaptized.” See Noonan, John T. Jr., The Lustre of Our Country: The American Experience of Religious Freedom (Berkeley: University of California Press, 1998)Google Scholar: “As a review of history, [Dignitatis Humanae] failed badly. … It mentioned only the freedom traditionally accorded the nonbaptized. It never acknowledged the long record of coercing the baptized when they were considered to be in heresy” (150).

34 See generally, A Church That Can and Cannot Change, 145–58; Noonan, The Lustre of Our Country, 348–53.

35 Noonan, A Church That Can and Cannot Change, 158.

36 Mark A. Pivarunas, “The Doctrinal Errors of Dignitatis Humanae,” http://www.cmri.org/95prog2.htm. For a taste of earlier papal condemnations of Protestantism and the idea of religious freedom, see Witte, John Jr., “The Serpentine Wall of Separation,” Michigan Law Review 101 (2003): 1869CrossRefGoogle Scholar, 1899–1900.

37 Appleby, The Ambivalence of the Sacred, 42.

38 Ibid., “Until 1965 Roman Catholicism had legitimated the denial of civil and other human rights to non-Catholics by teaching, in effect, that ‘theological error has no rights’ in a properly governed (i.e., Roman Catholic) state” (43).

How far has the church come? Consider this: “In Italy, where there is an ongoing debate about the place of 900,000 Muslims in Italian society, reciprocity has become an issue. Should Muslim children be taught the Qur'an in Italian schools, as Catholic children are taught Christianity? Cardinal Renato Martino, head of the Pontifical Council for Justice and Peace, said this: ‘[S]ign of human respect’ should not be regarded as something to barter, to improve the treatment of Christians in Muslim countries. He was right, for respect for the religious rights of Muslims is required by Catholic teaching. He presumably has the Pope's ear on this matter.” Editorial, “Religious Freedom Is Universal,” The Tablet [London], Mar. 15, 2006.

39 Dignitatis Humanae, section 15.

40 Noonan, A Church That Can and Cannot Change, 158. Cf. Abdullah An-Na'im, in his new book: “The fundamental defect of the idea of the Islamic state is that the logic of the invocation of religious or moral authority can very easily be inverted, so that instead of regulating political power by religious authority, religion itself becomes subordinated to power.”

41 Noonan, A Church That Can and Cannot Change, 158.

42 Ibid., 155. See also Campbell, Francis, “No Future in the Ghetto,” The Tablet [London], February 1, 2008Google Scholar: “At the start of the twentieth century, Catholicism had a very ambivalent attitude to democracy. … Experience changed the stance of the Catholic Church towards democracy and religious freedom—the positive experience of Catholic minorities living in countries like the United States and other English-speaking countries, coupled with the negative experience of Catholics in Nazi Germany and Fascist Italy.”

43 Quoted in Coleman, “Religious Liberty,” 10.

44 Noonan, A Church That Can and Cannot Change, 158.

45 Ibid. Cf. editorial, “The Challenge for Islam,” The Tablet [London], July 8, 2006: “A hundred years ago, convinced that the modern world was a threat, the [Catholic] Church then—like fundamentalist Muslims now—was implacably opposed to democracy, religious tolerance, and human rights. Now, thanks to the teachings of the Second Vatican Council and Pope John XXIII, it has no hesitation in standing up for them” (2).