Declaration on Religious Freedom
COMMENTARY
Rev. John Courtney Murray; S.J.
During the Council the schema on religious freedom was often called the "American schema." The adjective would be quite inappropriate with regard to the final form of the schema, the Declaration itself. It was approved by a definitive vote of 2308 to 70. It was, therefore, an act of the universal Church, like all the other conciliar documents. However, during the long course of its legislative history, the schema had the solid and consistent support of the American bishops, and their numerous interventions had considerable influence in determining its substance and language. There were those who said that the American bishops supported the schema simply for pragmatic reasons. But this is an inadequate view. Undoubtedly, the support derived its basic inspiration from the American experience, from which the Church has learned the practical value of the free-exercise clause of the First Amendment. At the same time, American Catholics have understood that the practical value of this constitutional provision derives from the truth of the principle that it embodies. It is apparent from their interventions that the American bishops made important theoretical contributions toward the illumination of the principle.
This study of .the relation between the Declaration and the First Amendment must be a bit rapid. There will be, for instance, a minimum of citation from constitutional sources. It is a matter of considering the object or content of the right to religious freedom, its foundation, and its extension, the argument for the validity of the right and the norms that limit its exercise.
The object or content of the right to religious freedom, as specified both in the Declaration and in the American constitutional system, is identical. An authority in the matter, Mr. Mark de Wolfe Howe, has emphasized the importance of the distinction between a right as an immunity and a right as a positive claim. When it is forgotten, he says, “we begin to use the word ‘rights’ and the phrase ‘civil liberties’ in misleading ways. Our rights, as the framers conceived them, were essentially certain specified immunities. They were not claims on, but assurance against, the government.” The right to religious freedom is essentially an immunity. Moreover, as Mr. Justice Roberts pointed out in the Cantwell case: “The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forbids, forestalls, compulsion by law of the acceptance of any creed or the practice of any form of worship. . . . On the other hand, it safeguards the free exercise of the chosen form of religion.” In the equivalent terms of the Declaration, religious freedom means “that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, nor is anyone to be restrained from acting in accordance with his own beliefs....” Nowhere in our Constitution, much less in the Declaration, is it implied that a man has a right to do what is evil or to say what is false, as if error and evil could be the object or content of a right. That would be moral nonsense. The constitutional content of freedom of religion is freedom from coercion in matters religious.
In the American view, religious freedom is, in the first instance, an assurance against government; in this sense it is properly a civil liberty. In the second instance, it is an assurance against coercions attempted by other powers in society; in this sense, it is a social freedom which will be vindicated by government. Some of the conciliar Fathers seemed unwilling to accept this conception of the problem. They wished to attribute the primacy to the social freedom. Hence they required that the definition of religious freedom, cited above, should read: “. . . and of any human power,” rather than: “. . . and of government.” The reasons were various. Earlier versions of the schema had been criticized on the ground that they manifested “too much preoccupation with government” or even “hostility to government.” The criticism, however, seemed to reveal a reluctance or a failure on the part of some of the Fathers to grasp the true theoretical, as well as practical, position of the problem.
It belongs to the very definition of religious freedom to say that it is, in the first instance, an immunity against restrictive use of the power of government (the aspect of immunity from restriction is the more crucial of the two aspects noted above). If there be any human power which has the right to restrict the scope of religious freedom, this rightful power can reside only in government, which possesses a monopoly of coercive force in society to be used for the common good. In its very concept, therefore, religious freedom includes the understanding that government has no such right (unless its existence can be proved in the particular case, as will be said). Only in these primary terms, as an assurance against government, can religious freedom, as an immunity from coercion, be properly defined.
This view of the matter is implicitly recognized elsewhere in the Declaration, where it is question of the care of religious freedom by government. In its definition, however, the Declaration is not as correct and clear as the Constitution on the central issue that the statute of religious freedom is essentially a self-denying ordinance on the part of government. For whatever reasons, certain bishops were too concerned to put forward the notion of religious freedom as social freedom. This concern was related to a disposition to shy away from the formally political aspects of the problem—a disposition to which reference will later be made. To note this nuance of understanding is not, of course, to imply a weakness in the Declaration. The notion of religious freedom as a properly civil right is altogether clear.
The second question concerns the extension of the right to religious freedom. In the Cantwell case, as often elsewhere, the Supreme Court made clear that the First Amendment “embraces two concepts—freedom to believe and freedom to act.” The same distinction appears in the Declaration. It emphasizes “one of the major tenets of Catholic doctrine that man's response to God in faith must be free; no one therefore is to be forced to embrace the Christian faith against his own will.” Or more broadly: "The act of faith is of its very nature a free act,” a statement which holds true of any act of ultimate religious commitment, even one that is atheist in tenor. (The Declaration does not explicitly advert to the atheist, despite the wishes of some conciliar Fathers that it should; nevertheless, its definition and doctrine of religious freedom clearly extends to him.) The principle of freedom of belief—what is correctly called freedom of conscience—inspires the strong condemnation of the "wrong" that is done “when government imposes upon its people, by force or fear or other means, the profession or repudiation of any religion....”
The more critical aspect of the question concerns freedom to act. In the American constitutional tradition, the free exercise of religion is conceived in the broadest possible terms, even to the defense of sheer religious eccentricity. The terms of the Declaration are generous, although they naturally lack the fullness of detail that litigation has produced in the United States since Terret vs. Taylor in 1815. The Council affirms that a man must be free to act according to his beliefs, “whether privately or publicly, whether alone or in association with others.” Moreover, corporate religious freedom is adequately described under use of a distinction—a bit blurred in the final text but still discernible—between the internal autonomy of the religious community and its external freedom of public action. This latter chiefly includes “public teaching and witness to their faith, whether by the spoken or by the written word.”
Furthermore, the Declaration is careful to bring within the scope of religious freedom various forms of religiously motivated utterance and action. In the words of John Coleman Bennett, religious freedom “should be the liberty of public teaching not only about religious matters in the narrow sense, but also about all social, economic, and political concerns about which there is a religious judgment.” The Declaration says the same thing more briefly: “In addition, it comes within the meaning of religious freedom that religious communities should not be prohibited from freely undertaking to show the special value of their doctrine in what concerns the organization of society and the inspiration of the whole of human activity.” Even contemporary history affords only too many examples of the readiness of governments to claim that religious teaching is politically subversive. The Declaration disallows this claim. Finally, religious freedom includes the social freedom of assembly, “the right of men freely to hold meetings and to establish educational, cultural, charitable, and social organizations, under the impulse of their own religious sense.”
After defining the object or content of the right to religious freedom, the Council declares that the right “has its foundation in the very dignity of the human person, as this dignity is known through the revealed word of God and by reason itself.” The right is therefore inalienable. In consequence, it must be “recognized in the constitutional law whereby society is governed,” and thus obtain the legal status of a “civil right.” The dignity of the person is not a legal or political principle; it is the foundation of all legal and political principles. So it is presented in the Declaration of Independence upon whose conception of man the whole of the American constitutional system is erected: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights....” A fair generalization is made by Joseph Costanzo, S.J., in his book, This Nation under God: “The substantive and procedural rights of the American Bill of Rights and of the Fourteenth Amendment are historical reassertions and juridical securities of man's personal dignity....” Happily, British history rather than French revolutionary theory lies behind the Bill of Rights. As the Supreme Court said in 1897, these rights are “guarantees and immunities which are inherited from our English ancestors.” It is true that even after the Glorious Revolution had overturned royal absolutism, our English ancestors notoriously failed fully to recognize that special immunity which is religious freedom. But this was an aberration in the organic development of the liberal tradition of the West, whose matrix was the Christian and medieval doctrine of man. “This medieval doctrine,” as Otto von Gierke said, “was already filled with the thought of the inborn and indestructible rights of the individual” which derive from his personal dignity as disclosed by the Christian revelation. The development was again set on its right course, and fuller formulation was given to the right to religious freedom, by the American constitutional system. Caught in the more disastrous aberrations derivative from the French Revolution, the Church long failed to recognize the validity of the American development of what was, in fact, her own tradition. The Declaration accords the belated recognition. The right to religious freedom is not the creature of expedience or even of history alone. It is not a gracious grant of government in concession to social circumstances. It is a requirement of the dignity of the human person.
In order to make clear this point that religious freedom is a matter of principle—the Declaration mounts a brief argument. It is not cast in the American style. In his classic study, The American Commonwealth, first published in 1888, Lord Bryce stated the terms of a problem which was felt, although never fully faced, in the drafting of the Vatican schema:
The abstention of the state from interference in matters of faith and worship may be advocated on two principles, which may be called the political and the religious. The former sets out from the principles of liberty and equality. It holds any attempt at compulsion by the civil power to be an infringement on liberty of thought, as well as on liberty of action, which could be justified only when a practice claiming to be religious in so obviously anti-social or immoral as to threaten the well-being of the community.
In contrast:
The second principle, embodying the more purely religious view of the question, starts from the conception of the church as a spiritual body existing for spiritual purposes and moving along spiritual paths. . . . Compulsion of any kind is contrary to the nature of such a body, which lives by love and reverence, not by law.
He adds:
Of these two views it is the former much more than the latter which has moved the American mind. . . . When the question arose in a practical shape in the early days of the Republic, arguments of the former or political order were found amply sufficient to settle it.
American constitutional history gives extensive evidence of the centrality of the principle of equality before the law as the essential basis of religious freedom. In another classic nineteenth-century work, Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union, the famous Judge Cooley asserted that the central intention of American state constitutions was “to guard against the slightest approach toward the establishment of an inequality in the civil and political rights of citizens which shall have for its basis only their difference of religious belief.” Thereafter, he adds, “the general voice has been that persons of every religious persuasion should be made equal before the law.” In the Schimpp case in 1963, Mr. Justice Clark recalled a century-old unpublished opinion of Mr. Justice Alphonso Taft in the Minor case, which affirmed the constitutional principle of the “absolute equality before the law of all religious opinions and sects.” (Cooley is more exact when he speaks of "persons," not of "opinions and sects.") Citations could be multiplied. And their common supposition is always clear. Apart from equality before the law, political freedom loses its meaning—and political freedom is the essence of the American proposition. Therefore, religious freedom, which is the first form of political freedom, finds its foundation in the principle of equality before the law—an equality, evidently, which rests on the deeper ground that “all men are created equal.”
In contrast, the appeal of the Declaration is to arguments that may fairly be characterized as religious in some broad sense—the moral obligation to seek the truth, the function of conscience in mediating the divine law, the social nature of man (which establishes a necessary link between the internal moral imperative and the external religious act), and the transcendent nature of the religious act. From these heights the argument descends to the political order only in the laconic statement that government “would clearly transgress the limits set to its power, were it to presume to command or inhibit acts that are religious.”
There were reasons why the Council followed this line. There was the view that it was not fitting for a Council to make “political” arguments—despite the fact that papal encyclical literature is full of them, as may be gathered from the title, “Documentos politicos,” of Volume II of Doctrina Pontificia, a valuable Spanish collection of papal statements from Pius IX to Pius XII. An intrinsically more valid reason lay in the fact that a serious effort to make the political argument for religious freedom would have carried the Council into the problem of “Church and State,” so called, a much broader and more complicated problem which the Council wisely wished to avoid. Finally and decisively, there was the dark spectre that brooded over the conciliar debates the historical and doctrinal spectre of religious indifferentism. The American constitutional principle of the equality before the law, in its application to freedom of religion, carries no connotations of this theological error. This fact was never attended to, or understood, by the apostolic hierarchy of the nineteenth-century Church in Europe. It may be doubted whether a general understanding of the fact prevailed at Vatican Council II. In any event, there is no question that vast confusion and opposition, compounding confusion and opposition already existent, would have arisen if the major political argument for religious freedom from the principle of equality before the law —had been pressed. Minds and emotions conditioned by the Continental experience of nineteenth-century laicism would surely have seen it as a concession to, if not an outright embrace of, the indifferentist principle of the equality of all religions before God.
As a matter of fact, trouble enough was occasioned by the Declaration's statement: "Finally, government is to see to it that the equality of citizens before the law, which is itself an element of the common good, is never violated, whether openly or covertly, for religious reasons." The inclusion of this cardinal principle—as a principle in itself, and especially as constitutive of the common good—was due to Anglo-American interventions, from bishops who had an understanding, whether sophisticated or intuitive, of the common-law tradition. The statement was opposed by bishops from the tradition of the Iberian peninsula. Its inclusion was altogether happy for at least two reasons. First, the principle is sound. Second, the commentator on the Vatican Declaration can find a footing in the text from which to enlarge its argument and to make a more balanced and convincing case for religious freedom by appealing to political as well as to religious or moral principle. To do this is entirely in order. It was not the intention of the Council to make the full case, but simply to indicate lines of argument whose fuller development would be left to theologians, political philosophers and constitutional historians.
The right to religious freedom is itself inalienable. Its exercise, however, is necessarily subject to limitation in particular cases. “Conduct,” said the Court in the Cantwell case, “remains subject to regulation for the protection of society.” Or, in the words of the Declaration, society “has the right to defend itself against possible abuses committed on pretext of freedom of religion. It is the special duty of government to provide this protection.” Government, however, is “not to act in an arbitrary fashion or in an unfair spirit of partisanship” (one may see here a veiled reference to governments which consider the Party to be the People). Its action must be governed by “juridical norms that are in conformity with the objective moral order.” American courts have never found it easy to define these norms. But the effort is constantly made.
A leading definition, frequently cited, was given in the case of Watson vs. Jones in 1872: “In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine, which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all.” In Davis vs. Beason in 1890, the last of these limiting norms is again laid down, in the statement that action in the name of religion may claim protection only when it is “not injurious to the rights of others.” In the same case—one of the famous Mormon cases—the moral norm is also adduced: “Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. . . . To call their advocacy a tenet of religion is to offend the common sense of mankind.” The application of these two norms in the concrete case may be difficult; but their validity as norms is beyond question.
Other norms of less well defined tenor have also been used. In one of the Jehovah's Witnesses' cases, Jones vs. City of Opelika in 1942, the Court refers to the “preservation of peace and good order” as norms limiting religious efforts at what is called “the enlightenment of the community.” Again, in the Cantwell case the Court defends the right of a state to “safeguard the peace, good order, and comfort of the community.” And in the same case, the Court attempts a definition of the elusive concept of the public peace: “The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts, but acts and words likely to produce violence in others. . . . When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace or order appears, the power of the State to prevent or punish is obvious.” These citations, and others available, reveal some imprecision of concept and vocabulary. In particular, “peace” and “order” are used with seeming synonymity or equivalence. At the same time, they reveal the felt judicial need for a norm which will cover a “great variety of conduct” which cannot be permitted, for the valid reason that it entails some manner of “violence” done to the public.
The Declaration makes an effort at synthesis and precision. “Public order” is made the generic concept. In order to give it a firm moral basis, it is first related to the higher and more inclusive concept of the common welfare of which it is the "basic component." So basic is the value of this component that it may and must be protected, if necessary, by the use of coercion. The indispensable requirement of society is that it should be a civilized order in which crime is met by prevention or punishment. The further conciliar intention was to give a substantive content to the concept of public order. It includes three elemental social "needs," three indispensable social values—juridical, political, and moral. The juridical need is for "effective safeguard of the rights of all citizens," the political need is for "an adequate care of the public peace," and the moral need is for "a proper guardianship of public morality." When there is serious trespass upon one or other of these basic social values, coercive repression of the trespass is legitimate.
There was objection, notably by the Polish hierarchy, against the use of the concept of public order as being liable to abuse by governments hostile to religion. On the other hand, the concept has status in constitutional law, even though it is more often used than defined. It was therefore adopted, and the effort was made to surround it with qualifications that would preclude abuse, as far as possible. A similar effort to preclude abuses of governmental power has constantly been made in the American constitutional tradition. Both the Declaration and the Constitution have in common the intention of laying down strict and narrow criteria for the limitation of freedom of religion, since the exercise of a human right is at stake. Here a comparison is interesting.
In the Declaration it is simply specified that public order is to be "just," that its exigencies must be in accord with justice. The trouble is that the concept of justice, like that of order, is liable to abuse, as we know full well today. The Declaration is concerned to state the moral requirement without further detail. The American constitutional tradition is more satisfactory. Public order, or the public peace, will be just if their demands are enforced in accord with the requirements of the Fourteenth Amendment—that due process of law be observed and that the equal protection of the laws be extended to all. These procedural safeguards are matters of justice. Moreover, public order will be just in a substantive sense if it remains always an order of due and rightful freedom. Freedom always remains the supreme value protected by the First Amendment: "In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom" (Cantwell). There is no real clash of claims here. On the contrary, the higher principle always holds that the primary thing due in justice to the people is their freedom.
The Declaration stops short of these matters of procedural and substantive moment. Fortunately, however, it lays strong stress on freedom as a protected value in society, together with the value of justice, even though the two values are not explicitly related. The conclusion of the paragraph on the regulation of the free exercise of religion reads: "For the rest, the usages of society are to be the usages of freedom in their full range; that is, the freedom of man is to be respected as far as possible and not to be curtailed except when and in so far as necessary." This is the traditional rule of jurisprudence in the liberal tradition of politics. It is also the basic principle of the free society—the highest principle that controls the action of "free government." From the point of view of the American tradition, the significance of its inclusion is obvious. But its significance is even more weighty from the standpoint of the universal Church and of human society in general. For the first time, in terms even stronger than the precedental terms of Pacem in Terris, the Declaration on Religious Freedom, by its statement of this principle, aligns the Church firmly and irrevocably with the movement of the historical consciousness of contemporary men—with "those desires in the minds of men" which are "greatly in accord with truth and justice," from which this epochal document takes its start.