Religious Liberty at Home and Abroad: Reflections on Protecting This Fundamental Freedom
Hatch, Orrin G., Brigham Young University Law Review
I am a Utahn and a United States Senator. I am also a Christian man and a devout member of the Church of Jesus Christ of Latterday Saints. As a Christian, I appreciate the virtue of humility, a virtue which teaches us the imperfection of man, and, by inference, man's society. As a member of the Church of Jesus Christ, I know of the failures of the state to protect the faithful. I am a member of a faith that, in this Republic's short history, was brutally, murderously persecuted.1 Joseph Smith, the first prophet of our faith, never saw Utah, having been martyred in 1844 in the state of Illinois.2 In our relatively short modern history, Mormons have known persecution.
As we exchange ideas during this Symposium about religious freedom in our various countries, I recognize that we in the United States are still working to advance these protections. Respect for the exercise of conscience and religion is a fundamental aspect of a universal understanding of human rights.
II. THE U.S. CONSTITUTIONAL APPROACH: THE POLITICAL PHILOSOPHY OF THE FIRST AMENDMENT AND FREEDOM OF RELIGION
The First Amendment to the United States Constitution explicitly prohibits Congress from making laws "respecting an establishment of religion, or prohibiting the free exercise thereof."3 The First Amendment encompasses the view that there is a distinction between society and the state and that the state with its legal monopoly of police power must be limited to ensure the liberty of its citizenry. This liberty encompasses the right of the people to a certain degree of autonomy, which, in essence, means to be free from coercive interference in private matters, such as the family, work, social life, and matters of belief and conscience.
We should not forget that the Founders of the Republic believed that there was a direct relationship between liberty and religion.4 It was believed-and I strongly believe this to be true today as wellthat a Republic could only survive if its citizenry had the capacity to engage in civic virtue.5 In other words, a republic would flourish only when its people were moral. And, to the Founders, it was religion that established morality.6 As such, the government was prohibited from-in the words of the Constitution-"prohibiting the free exercise of religion."7
All of this is certainly not to suggest that the Framers invented these ideas. As practical men, the Framers were aware of history.8 Indeed, one cannot understand the Constitution without an appreciation that many of the rights contained therein-such as the First Amendment's freedoms-are the result of historical prescription. The Framers saw in Britain and in the states of Europe the establishment of state religions and the suppression of competing beliefs.9 This coercion appalled them.10
Indeed, many members of dissenting religions, such as the Puritans from Anglican England, fled to America to escape religious persecution.11 The new Americans argued initially for toleration of the differing Christian sects, and finally for legal protection of all faiths.12 As such, freedom of conscience was protected in what we refer to as the Free Exercise Clause, and a state religion supported by tax revenue was prohibited by the Establishment Clause.13
Exactly how the free exercise of religion and the prohibition against establishment of an official religion were defined and enforced has become part and parcel of America's constitutional, cultural, and legal debate.14 Each generation of Americans has fought over these values, and our courts, in particular, have struggled to apply eighteenth-century language and precepts of liberty to modern problems.15
III. AMERICANS' VIEW OF RELIGIOUS LIBERTY ABROAD
For the historical reasons just described, Americans have a deep interest in the protection of religious freedom around the world. As Americans, we appreciate and celebrate our Constitution's core commitment to religious liberty. …