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Published online by Cambridge University Press: 11 November 2009
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.
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).
