The Declaration on Religious Freedom
John Courtney Murray, S.J.
On December 7, 1965, in the section of his discourse directed to the statesmen of the world, Pope Paul VI spoke of the Declaration on Religious Freedom as "one of the major texts" of the Council. The characterization is correct, for a variety of reasons. It must be said, however, that the Declaration was, in the first instance, an exercise in aggiornamento in the strict sense. Its achievement was simply to bring the Church abreast of the developments that have occurred in the secular world.
The fact is that the right of man to religious freedom has already been accepted and affirmed by the common consciousness of mankind. Before the year 1947 it had been guaranteed in the constitutions of more than fifty nations. Since that time some fifty more nations—notably those which have recently emerged into statehood—have made constitutional acknowledgment of it. Moreover, the right was affirmed in the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in 1948. The Declaration was not at the time a legally binding international instrument. However, as Egon Schwelb has pointed out,1 the "recommendations" of the Declaration have gradually been acquiring the force of law—a sort of customary law—by reason of their general acceptance in civilized political communities throughout the world. The Declaration has inspired some twenty-three other instruments of world-wide or regional significance; in particular, the Convention of the Council of Europe, adopted in Rome in 1950, and the Charter of the Organization of African Unity, adopted in Addis Ababa in 1963. Pope John XXIII was entirely right when he spoke of the Declaration as "an act of the highest importance," which "represents an important step toward the juridical-political organization of the world community. For in it, in most solemn form, the dignity of the person is acknowledged to all human beings" (Pacem in terris, 173-177). Finally, the World Council of Churches has long set the weight of its authority behind the affirmation of religious freedom as a human right, notably in the Amsterdam Declaration of 1978 and in the New Delhi Statement of 1961.
Securus iudicat orbis terrarum. One must surely agree with the conclusion reached by Msgr. Pietro Pavan, after a review of the constitutional evidence, in his book, Libertà religiosa et pubblici poteri: "One must regard it as legitimate to conclude that religious freedom, understood and exercised as a right, answers to a universal conviction. And one must consider it to be a universal persuasion that the emergence of this right in the human consciousness marks a step forward in civilization." By the Declaration on Religious Freedom the Church assembled in Council also took a step forward, matching the step already taken by the civilized world.
Hence the Declaration was a major text of the Council for the initial reason that it was a major act of humility on the part of the teaching Church—an act of the humility that is always inherent in a willingness to learn. The Declaration was, in fact, the most striking proof offered by the Council of the disposition of the Church, noted in the Constitution on the Church in the Modern World, to recognize "how richly she has profited by the history and development of humanity. Thanks to the experience of past ages, the progress of the sciences, and the treasures hidden in the various forms of human culture, the nature of man himself is more clearly revealed and new roads to truth are opened. These benefits profit the Church too" (art. 77). So Vatican Council II profited by the secular experience of religious freedom, whereby the exigencies of human dignity have been more fully disclosed.
It was high time, of course, for the Church to take the step forward. The need for it could be amply demonstrated from the first and longer draft-text of chapter 9 of the first schema on the Church, composed by the Theological Commission during the preparatory phase of the Council. The chapter was entitled "On the Relations between Church and State and on Religious Tolerance." (A shorter text appeared later, entitled simply "On the Relations between Church and State.") The first text proposed, in somewhat mild form, the opinion that had come to be accepted in the canonistic school. It was based on a doctrinal distinction between "thesis" and "hypothesis," which was itself based on the historical distinction between the "Catholic state" and the "non-Catholic state." In the Catholic state the right to religious freedom in public life is neither acknowledged nor granted to those who do not belong to the one "religion of the state." Their lot is simply tolerance, or intolerance, in greater or lesser measure. In the non-Catholic state, on the other hand, the legal institution of religious freedom is defended as a lesser evil, to be accepted on grounds of necessity and expediency, in the interests of the Church, and for the sake of the public peace, which would be seriously disturbed by application of the thesis of legal intolerance.
The archaism of this opinion and its remoteness from the political-social realities of the present moment are entirely evident. It exhibits the thought of the Church as imprisoned in a particular segment of history and in a limited geographical area—in the nineteenth-century conflict with continental European laicism, which had become a corrosive force in the Catholic nations, so called. On the basis of this received opinion there could be no dialogue between the Church and the peoples of the contemporary world, in whose personal and political consciousness the principle of religious freedom has taken firm root. If this opinion were to, be accepted as the permanent doctrine of the Church, Catholic thought would suffer its worst fate—that of being irrelevant to the world, and to that perennial problem of the world, which is the problem of the freedom of the human person.
Fortunately, in the early summer of 1963 the competence to draft a schema on religious freedom was finally accorded by Pope John XXIII to the Secretariat for the Promotion of Christian Unity. The move was made against strong opposition, at the courageous instance of Cardinal Augustin Bea, strongly seconded by the able secretary of the Secretariat, Msgr. Jan Willebrands.
The first two schemata prepared by the Secretariat were strongly influenced by the fact that they were conceived within the context of ecumenism. The first schema appeared as chapter 5 of the schema of ecumenism; the second, as a declaration appended to the schema. The result was a certain confusion between two distinct problems: the moral-ecumenical problem of relationships between Catholics and non-Catholics, and the juridical-political problem of religious freedom in its contemporary technical sense. Both schemata were, in effect, a declaration of the rights of conscience. They ventured into a treacherous problematic by asserting that the right to religious freedom is based on the dictates of conscience, and that its content is both positive and negative—action according to conscience and also immunity from coercion in such action. This doctrinal line was severely criticized by the Conciliar Fathers in the full discussion held September 23-25, 1967. In consequence, the third schema installed a new doctrinal line, which remained substantially unaltered through the three successive revisions of the schema.
The final Declaration has two essential doctrinal components, juridical and political. The juridical affirmation is that every man has a right to religious freedom—a right that is based on the dignity of the human person, and is therefore to be formally recognized as a civil right and protected by an armature of constitutional law. The political affirmation is that the powers of government are to be employed in the safeguard of this right and are not to be used to limit its free exercise, except in cases of proved necessity.
Affirmation, however, is one thing. The conception embodied in an affirmation is a matter for distinct consideration. In the first place, the Declaration presents the content or object of the right to religious freedom as simply negative, namely, immunity from coercion in religious matters. Thus the Declaration moves onto the solid ground of the constitutional tradition of the West, whose development, in what concerns religious freedom, was first effected by the Constitution of the United States in 1789 and by the First Amendment in 1791. The fundamental freedoms of the First Amendment, including the "free exercise of religion," were conceived to be not claims upon government or society, but assurances against government and society. They were, what the Fourteenth Amendment would later call them, certain specified "immunities of the citizens of the United States."
This is good juridical philosophy. It is proper to a juridical formula—such as the constitutional formulas of freedom of speech, press, religion, assembly and civic protest—that it should define the outside limits of a sphere of human activity and guarantee the integrity of this sphere against coercive intrusion from without, but that it should not enter, as it were, into the sphere itself, there to pass moral or theological judgments on the beliefs expressed, or on the actions performed, within the sphere. Such judgments are "unconstitutional," beyond the competence of purely juridical authority. In our case the juridical formula, "the free exercise of religion," contains no positive evaluation of the religious phenomenon in any of its manifestations. It simply defines the immunity of these manifestations from interference, as long as they remain within the outside limits of lawful freedom. Therefore the only matters of juridical relevance are, first, the definition of the limits beyond which the exercise of freedom is socially unacceptable and unlawful and, second, the duty of others, including government, to respect the integrity of action that goes on within these limits.
Here, of course, it is possible to see the vast difference between religious freedom in its contemporary juridical meaning and "freedom of conscience" and "freedom of cult" in the sense of nineteenth-century continental laicism, These latter formulas were not simply juridical; they were ideological. Inherent in them was the moral judgment that the individual conscience is absolutely autonomous, and the further theological-social judgment that religion is a purely private affair, irrelevant to any of the public concerns of the political community. In the laicist view, freedom of conscience and freedom of cult were instrumental concepts—but concepts instrumental to an ideological negation of the public status and of the social function of religion. On the contrary, in the contemporary constitutional conception religious freedom is still an instrumental concept, but instrumental simply to the freedom of religion as a public phenomenon, whose manifestations are of a transcendent order, and consequently of such high personal and public interest that no repressive coercion may be brought to bear upon them, unless there be some transgression of penal statutes which are necessary for the protection of fundamental social values against abuses of freedom.
In the second place, the Declaration conceives religious freedom to be a twofold immunity. First, no man is to be coercively constrained into belief or action contrary to his own convictions; second, no man is to be coercively-restrained from action—that is, from public witness, worship, observance and practice—according to his own convictions. In distinguishing this twofold immunity, the Declaration indicates the structure of the problem, both historical and also theoretical.
Historically, the right of man not to be compelled to believe or to act in a manner contrary to his own convictions came to be acknowledged in the post-Reformation era as the iniquity of the territorial principle—that the religion of the prince is to be a religion of his people—came to be commonly recognized. Historically, however, the right of man not to be forcibly restrained from acting in a manner conformable to his own convictions, in public as well as in private, has not been so readily recognized. Among the Conciliar Fathers at Vatican II there were those who were still unwilling to recognize this right. They wished to defend the historic religious prerogative of the Catholic state—its right to repress public manifestations of non-Catholic belief and worship in the name of the common good, of which the religious unity of the people is an integral element, to be protected by the coercive force of law and government.
At that, the theoretical aspect of the problem is the more important. If an authority exists that is empowered to restrain men from public action in accordance with their religious beliefs, this authority can reside only in government, which presides over the juridical and social order. Therefore, in order to prove the validity of the moral claim of the human person to immunity from such restraint, it is necessary to show that no valid counterclaim can be entered by government. Here the political issue in the question of religious freedom appears. It is the crucial issue. It concerns functions and the limits of government in the order of religion. It may perhaps be doubted whether the Declaration manifests sufficient awareness that this political issue is the crucial issue. Fortunately, however, it states the two principles which avail for the solution of the issue. This will appear.
As the foundation of the right of man to the twofold immunity just described the Declaration proposes the dignity of the human person, as known by human reason and as more fully illuminated by the light of the Christian revelation. By this doctrine the Declaration makes contact with Catholic tradition. It also makes contact with the contemporary fact noted in the Introduction—that rising consciousness of human dignity which is prominent among the signs of the times. This new personal consciousness has shown itself particularly in the demand "that constitutional limits should be set to the powers of government, in order that there may be no encroachment on the rightful freedom of the person and of associations" (art. 1). Through the satisfaction of this political demand, religious freedom, as an idea and as an institution, became a reality in the modern world. Hence the dignity of the person is the primary locus of argument for the right of man to religious freedom. This brings us to the argument proposed in the Declaration. And two remarks are in order.
In the first place, it was altogether necessary that the Declaration should make an argument. Some of the Conciliar Fathers were unwilling that it should do so, chiefly on the ground that it is the function of a Council simply to affirm, not to argue. In this case, however, a simple affirmation of the right to religious freedom would not do. It was necessary to make clear that the affirmation was being made in principle, as a matter of truth, not as a concession, motivated by expediency, to historical circumstances. Furthermore, it was necessary to indicate that an argument for religious freedom can be made in terms of rational and Christian principle. Other men, in other times, and even today, have made the argument otherwise—in terms of skepticism with regard to religious truth, or of moral relativism, or of religious indifferentism, or of laicist or secularist conceptions of the functions of government. The Christian cannot acquiesce in these arguments; he must have his own argument, if his affirmation of religious freedom is to be authentically his own. Hence the Council made an argument. The first part of it was directed to the intelligent world at large, whether religious or nonreligious. The other part was directed to those who believe in God.
In the second place, however, it is not necessary to believe that the Conciliar argument is the best one that can be made. It did not pretend, in fact, to be apodictic, The Conciliar intention was simply to indicate certain lines that an argument might validly follow. Moreover, the doctrinal authority of the Declaration falls upon its affirmation of the human right to religious freedom, not on the arguments advanced in support of this affirmation. This has been traditional conciliar custom.
Hence it is legitimate to raise questions about the Conciliar argument. One might question, for instance, the prominence given to man's moral obligation to search for the truth, as somehow the ultimate foundation of the right to religious freedom. The notion occurs four times in the text. But behind this insistence on it, one may suspect, there lay a preoccupation that was rather more pastoral than theoretical. The concern was lest a divorce seem to be instituted between the juridical order of man's relationship to other men and to political authority and the moral order of man's relationship to the transcendent order of truth and to the authority of God. More briefly, the concern was lest religious freedom be misunderstood to mean a freedom from the claims of truth—in particular, as these claims are declared by the Church. This pastoral concern may well have been legitimate. But it seems to reveal that some of the Conciliar Fathers were still living in the long shadow of the nineteenth century. The fact is that this misunderstanding of religious freedom is impossible for anyone who grasps the twentieth-century state of the question.
The real difficulty, however, is that the argument from man's duty to search for the truth, whatever its value, does not deserve the fundamental place in the structure of a demonstration of the right to religious freedom. The reason is that it fails to yield the necessary and crucial political conclusion, namely, that government is not empowered, save in the exceptional case, to hinder men or religious communities from public witness, worship, practice, and observance in accordance with their own convictions. The classical Catholic government, for instance, or the contemporary communist government, for another instance, does not greatly bother about man's duty to search for the truth. They simply maintain that they already have the truth; that they represent the truth, which is also the good of the people; that consequently they are empowered to repress public manifestations of error. Against this conception of government as the representative of the truth, the argument from man's duty to search for the truth can make little headway.
A more cogent argument for the right to religious freedom can be constructed from the principles of the Declaration itself, assembled into an organic structure. The argument begins from the dignity of man as a moral, subject. Man is intelligent. Therefore he is capable of, and called to, an understanding of the sense of his own existence—its meaning and purpose, as these are accessible to reason in the total reality of human existence itself, and as they are more luminously declared in divine revelation. Man is free. Therefore he is called personally to realize, in love and through a lifelong process of choice, the sense of his own existence. Hence the mark of man as a person is his personal autonomy. Inseparable, however, from personal autonomy is personal responsibility. This is twofold. First, man is responsible for the conformity between the inner imperatives of his conscience and the transcendent order of truth. Second, man is responsible for the conformity between his external actions and the inner imperatives of conscience. These responsibilities are moral and altogether stringent. Man bears them as a moral subject, as he confronts, so to speak, his vertical relationship to the transcendent order of truth. However, on the horizontal plane of intersubjective relationships, and within the social order, which is the order within which human rights are predicated, man's fulfillment of his personal moral responsibilities is juridically irrelevant. The major reason is that no authority exists within the juridical order that is capable or empowered to judge in this regard. This is a matter of traditional jurisprudence. (It is recognized in the Declaration, where it is said that the right to religious freedom does not have its foundation "in the subjective disposition of the person"; subjective dispositions are juridically irrelevant.)
What is juridically relevant, however, and relevant in the most fundamental sense, is the personal autonomy which is constituent of man's dignity. More exactly, resident in man's dignity is the exigence to act on his own initiative and on his own responsibility. This exigence is of the objective order; it is simply the demand that man should act according to his nature. And this exigence is the basic ontological foundation, not only of the right to religious freedom, but of all man's fundamental rights—in what concerns the search for truth, the communication of opinions, the cultivation of the arts and sciences, the formation and expression of political views, association with other men for common purposes, and, with privileged particularity, the free exercise of religion.
All these rights are immunities from coercion. Given the exigence of the person to act on his own initiative and responsibility, coercion appears as a thing of no value to the person. No man can be endowed with moral worth from the outside, as it were, and under compulsion. What is more important, man's fundamental exigence to act according to his nature makes coercion an injury, an attempted intrusion into the sanctuary of personality, a violation of the inviolability that attaches to the moral subject. Hence the basic exigence of the person is for immunity from coercion, chiefly, as the Declaration says, in what regards the quest for the values proper to the human, spirit, and more particularly, in what regards the free exercise of religion in society. Religion has to do with man's relation to God. And this relation is personal. That is to say, it is immediate, directly between the finite moral subject and the infinite moral Subject; consequently, it is to be freely entered upon by both parties—by man in free response to the free and imperative initiative of God. Therefore, man himself must bear the responsibility for the acceptance or rejection of the divine demand of love, knowing that the penalty for rejection is the eternal loss of his own identity.
The argument so far is only preliminary and partial. It does not yet avail to constitute the right to religious freedom or to any other fundamental human right. It merely lays the foundation for a moral claim on others, that they should abstain from coercive action with regard to the human subject and respect his inner exigence to act on his own initiative and responsibility. To speak of a right, however, is to imply a juridical relationship, within which to the right of one there corresponds a duty on the part of others with regard to whatever the object of the right is—in our case, immunity from coercive action. A right, as a moral claim on others, is not fully constituted, until it is established that no one else may validly enter a counterclaim—in our case, legitimately to invade an asserted immunity.
This further step in the argument is easily taken with regard to the first immunity claimed by the human person in religious matters, that is, immunity from compulsion to believe against one's will or to act in a manner contrary to one's religious beliefs. Obviously, no human power can rightfully compel such action. The assertion of an empowerment to do so would instantly be rejected by the common consciousness of mankind. The first immunity is absolutely inviolable, and to the moral claim to it there corresponds a universal duty on the part of others, including government, to respect the claim.
A difficulty, however, arises with regard to the second immunity: not to be forcibly restrained from acting in accordance with one's religious beliefs. The fact is that in so acting a man may, in all good faith, be doing what is wrong—spreading religious errors or performing religious actions that are not consistent with the divine law. Here the political dimension of religious freedom, comes to view. The question is, whether some special characteristic or attribute attaches to government that empowers it to repress erroneous religious opinions or practices from public life. And if not, on what principle is this power denied to government?
The Declaration supplies two principles. Both of them are rooted in the dignity of the person, and each of them is intimately related to the other. The first is the political principle of the free society: "Let there be as much freedom as possible, and only as much restraint as necessary." Or as the text puts it, "The usages of society are to be the usages of freedom in their full range. These require that the freedom of man be respected as far as possible, and curtailed only when and insofar as necessary" (art. 7). This principle follows directly from the conception of the human person as a moral subject, who can achieve his perfection only by love of the truth and by free obedience to its demands, not by coercive constraints or restraints. By incorporating this principle the Declaration importantly fulfills its promise to advance still further the development of the Church's socio-political doctrine that has been going on under recent popes.
It has always been traditional doctrine that human society is to be based on truth, directed toward justice, and animated by love. Pius XII brought the tradition to a new perfection of understanding and statement by his teaching that the truth upon which human society is to be based is the truth about the human person; that justice to the human person is the goal of society; that love is the basic principle of social unity, since it is the proper bond among persons, which alone can lift their living together above the level of sheer coexistence. Then to the traditional trinity of social values John XXIII added the fourth—freedom. The truth about the human person is that his fundamental exigence is to act on his own initiative and responsibility. The truth therefore requires that in society there should be as much freedom as possible. Moreover, that which is primarily due in justice to the human person is his freedom—as much freedom as possible. Finally, love of the human person and love among human persons require that the freedom of each and of all should be respected as far as possible, and not curtailed except when and insofar as necessary.
Freedom, therefore, is the political method par excellence. Only by the usages of freedom in their full range can society, like the human person, make progress toward the equal justice that is its goal, toward that "more human equality (of rights)" of which Pacem in terris speaks. Furthermore, freedom is not only the primary method of politics; it is also the highest political goal. So it was once most truly written: "We, the People . . ., in order to . . . secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution. . . ."
Cognate with the political principle of the free society, and inseparable from it, is the juridical principle of equality before the law. As the Declaration puts it, speaking of the duties of government: "Finally, government is to see to it that the equality of citizens before the law, which is itself an element of the common welfare, is never violated for religious reasons, whether openly or covertly" (art. 6). The principle of equality before the law has its foundation in the metaphysical and theological truth stated in Pacem in terris, that "all men are equal by reason of their natural dignity" (articles 44, 78, 89, 132). This truth, the Pope notes, has come to pervade, and to be firmly established in the consciousness of men today. Its juridical consequence—what the Fourteenth Amendment calls the "equal protection of the laws"—has always been capital in the constitutional tradition of the West, as the complement of the principle of the free society. There is no freedom in society unless there is equal freedom for all, recognized as equally due in justice to all, and equally protected by law.
These two principles, political and juridical, furnish the solution to the political issue raised by the question of religious freedom as the immunity of the person from coercive restraint of action in accordance with his own beliefs. Together they require that government should be "constitutional." In the case, this means four essential things.
First, the powers of government are limited by a higher order of truth and justice—the truth about the human person, the justice due to the human person and the respect or love also due to the human person—which requires reverence for the basic exigence of human dignity, which is to act on one's own initiative and responsibility. This exigence, therefore, brings into being a juridical relationship. The immunity of the person from coercive restraint emerges as the object of a strict right, to which there corresponds on the part of government a strict duty to recognize the right and to respect its free exercise. Second, not only are the powers of government limited by the higher order of the rights of the person; they are also to be primarily employed "to secure these rights" (in the phrase of the Declaration of Independence) against invasion by others. Third, the protection and vindication of these rights are to be carried out by government in accord with the principle of equality before the law. This principle forbids classification of citizens according to their religious beliefs or lack thereof. Hence government may not recognize the right of some citizens to immunity from coercive restraint of action in accordance with their religious beliefs, and deny this right to other citizens. Fourth, the equal freedom of the people in the exercise of their rights in religious matters is to be respected as far as possible, and is not to be restricted except when and insofar as necessary. In principle, the freedom of the citizen is in possession. It is not to be restricted except in cases of proved necessity. And the onus rests on government to prove the necessity in the particular case. This requires a legal showing that there is question in the case of a violation of public order, a civil offense which the force of law must necessarily prohibit or punish.
In its quest for a juridical criterion narrow enough to warrant limitations of the free exercise of religion the Declaration finally adopted, after some hesitation and in spite of some opposition, the concept of public order. The concept of the common good, and—what is much the same—the concept of the purpose of society, had been advanced in the first two Conciliar schemata. Neither of them was acceptable, given the notion of society and government adopted in the Declaration from the doctrine of Pius XII. In this doctrine the common good itself and the purpose of society require the fullest possible free exercise of all human and civil rights, and government has the primary duty, not of limiting, but rather of promoting the freedom of the human person as far as possible.
In principle, the criterion for the restriction of freedom must be the necessity of such restriction. And the concept of public order meets this test of principle. The formula itself has broad constitutional status, even though it seems to lack full constitutional definition, commonly agreed on. The Declaration, therefore, gives it as clear and precise a definition as may be possible. Public order is the fundamental component of the common good. The common good is the broader concept that embraces the totality of those conditions of social life and the entire complex of those realized social values whereby men, as human persons, may achieve their proper perfection with all possible fullness and ease. Public order, in contrast, embraces only those fundamental social values that are necessary for the sheer coexistence of the citizenry—values without which society would cease to be an order and verge toward conditions of chaos. Three such socially necessary values are commonly distinguished in the constitutional tradition: the value of justice, which consists in the effective safeguard of the equal rights of all citizens; the value of public peace, which is the work of justice, achieved when means are available for the pacific settlement of conflicts among the citizenry; and the value of public morality, in the measure in which morality can be realized by the coercive discipline of law. In three cases, therefore, the exercise of the right of religious freedom may be legitimately restrained by coercive measures, mainly, when there is a violation of the rights of others, or a serious disturbance of the public peace, or a grave offense against public morality. In these three cases the exercise of freedom becomes in fact an abuse of freedom, and restraint becomes a matter of public necessity. The concept of public order, thus defined, satisfies the demands of moral, political and juridical principle.
The conclusion is that the doctrine of the Declaration forms an organic whole. All of it hangs suspended from the supreme principle of the dignity of the human person. Inherent in this dignity is the exigence that a man should act on his own initiative and responsibility, not under coercion, but from inward motivation, by his sense of duty toward the transcendent order of truth and morality. This exigence in turn founds the political principle that the freedom of the person is to be respected as far as possible and restricted only in cases of necessity. The equality of this exigence in all men, who are equal in their dignity as human persons, founds the further juridical principle of the equality of all citizens before the law. And from these two principles in conjunction two sets of conclusions follow with equal immediacy. The first juridical conclusion is that the full immunity of the human person from coercion in religious matters is the object of a genuine human right. The corresponding first political conclusion is the duty of government itself to respect this right and to ensure respect for it in society. The second juridical conclusion is that the exercise of the right to religious freedom is to be as free as possible. And the second political conclusion is that governmental or legal limitation of the exercise of the right is warranted only by the criterion of necessity.
Much further comment would need to be made on the Declaration. It raises a number of serious issues. And it is fraught with theological significance in ways that go far beyond the narrow context of the single problem with which it deals. This essay, however, was concerned simply with showing the organic wholeness of its central doctrinal content.