Academic journal article Brigham Young University Law Review

The Relationship of Religious Liberty to Civil Liberty and a Democratic State

Academic journal article Brigham Young University Law Review

The Relationship of Religious Liberty to Civil Liberty and a Democratic State

Article excerpt

The principle of religious liberty may well lay claim to being the foundation of all civil liberties and a democratic state. The concept of religious liberty was the inevitable result of a way of thinking about the nature of religion, the nature of the human person, and the nature of the state. By "religious liberty" is meant the inherent right of a person to profess or not to profess a religious faith; to worship or not to worship, in public or in private, according to one's own conscience, understanding, or preferences; to witness to or to propagate one's faith or beliefs; to join in association with others of like faith or beliefs; and to change one's religious identity or beliefs-all without hindrance, molestation, or discrimination. In the words of Lord Acton more than a century ago, "Religious liberty. . . is possible only where the coexistence of different religions is admitted, with an equal right to govern themselves according to their own several principles."1 To express it in somewhat more restrictive terms, religious liberty requires the absence of discrimination based on one's religion or belief-namely the equality of all religions, as well as irreligion, before the law. It also requires that a citizen neither enjoy advantages nor suffer disadvantages because of one's religion or beliefs.2

I. RELIGIOUS LIBERTY IS INTEGRAL TO THE NATURE OF RELIGION

The concept of religious liberty is integral to the nature of religion. For this reason, religious intolerance, including any form of discrimination based on religion or belief, is antithetical to religion and is, indeed, religion's worst adversary. To believe is a voluntary act. To be true to itself, authentic religion must wait upon the voluntary responses of persons who are free from coercion. Recognition of this principle was conceded by the early church fathers. Near the close of the second century, Justin Martyr, who argued for the principle of the logos spermatikos, namely that the seed of the divine word is to be found in all humankind-even in those outside of the Christian tradition-perceptively wrote, "[N]othing is more contrary to religion than constraint."3 In the third century, when Emperor Septimus Severus issued a decree in A.D. 202 forbidding conversion to Christianity, Tertullian wrote that freedom of religion is a fundamental right. "It is a matter of both human and natural law," he declared, "that every man can worship as he pleases.... It is not in the nature of religion to impose itself by force," but "should be adopted freely."4 Almost a century later, and with considerable insight into the nature of religion, Athanasius declared, "It is not with the sword and spear, nor with soldiers and armed force that truth is to be propagated, but by counsel and sweet persuasion."5 Similarly, Lactantius, the tutor of Emperor Constantine's son, argued that "it is only in religion that liberty has chosen to dwell. For nothing is so much a matter of free will as religion, and no one can be required to worship what he does not will to worship. He can perhaps pretend, but he cannot will."6

During the Middle Ages, when religious liberty did not exist in Europe, Marsilius of Padua, a Catholic lawyer, eloquently argued that coercion is completely foreign to the nature of religion and that religious convictions by their very nature cannot be forced. No religious authority, he argued, has the right to exercise coercion for compliance with religious commandments: For it would be useless, for him to coerce anyone to observe them, since the person who observed them under coercion would be helped not at all toward eternal salvation .... For Christ did not ordain that anyone should be forced to observe in this world the law made by him, and for this reason he did not appoint in this world a judge having coercive power over transgressors of his law.7

"[E]ven if it were given to the bishop or priest to coerce men in those matters which relate to divine law," he wrote, "it would be useless. …

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