Dr. Ben Vermeulen
Catholic University of Nijmegen, The Netherlands
delivered at the
International Coalition for Religious Freedom Conference on
"Religious Freedom and the New Millenium"
Washington DC, April 17-19, 1998
In this lecture I will only deal with the development of religious freedom in western Europe; however, I believe that most of my observations are also relevant for other countries, such as the United States.
The origin of the legal guarantees of freedom of conscience and religion in western-Europe are found in the civil wars of the 16th and 17th centuries. Western Europe was torn apart by religious strife caused by the Reformation, which disrupted the medieval religious unity of Catholicism. It should be stressed that the impact of these civil wars, raging in particular in France, England, the Netherlands, and Germany, was enormous. For instance, the Thirty Years War in Germany (1618-1648), fought between Catholic, Lutheran, and Calvinist princes, took the lives of millions. The German empire had 10 million inhabitants in 1618; in 1648 it had only 6 million left.
At least a partial solution to help end these horrible civil wars was brought about by treaties that secured religious peace. In these treaties the state declared itself neutral (at least to a certain extent) and guaranteed a certain minimum of religious freedom for every citizen. These peace treaties, such as the Union of Utrecht of 1579 (the Netherlands), the Edict of Nantes of 1598 (France), and the Treaty of Westphalia of 1648 (Germany) may be regarded as the first codifications of freedom of conscience and religion and even of human rights in general.
Historical Arguments in Favor of Religious Freedom
These peace treaties were not concluded for purely moral reasons. A most convincing argument was that the only way to end a civil war fought for religious motives between equally strong parties was to erect a superior power able to keep them apart and to establish and maintain peace by guaranteeing a minimum level of reciprocal tolerance. It is here that theories of political liberalism and enlightened absolutism merge: Only a strong state is able to guarantee religious freedom in a society torn apart by religious dissension. The major political philosophers of this period (Bodin, Grotius, Hobbes, Spinoza) all shared this point of view.
Of course, there were also moral arguments in favor of freedom of religion. These were based upon a combination of (a) epistemological skepticism, (b) the ideal of religious authenticity, and (c) a theological concept of conscience.
Whereas there is no objective test with regard to religious truth, it must be left to each individual to determine his road to salvation. This is the more so because religious belief is only worthwhile when it is adhered to voluntarily. Therefore, a religious belief should not be forced upon individuals: compulsory belief is in fact a contradiction in terms (John Locke).
Furthermore, in conscience man partakes in a divine reality; he grasps something of a transcendent truth, in that conscience (partially) manifests the orders of God. Therefore, freedom of conscience is the freedom to obey these orders, especially in the religious sphere. By intruding into this sphere the state would suppress conscience and would in fact intrude in the sphere of God (Pierre Bayle).
The Legal Protection of Religious Freedom
It took centuries to establish the institutions and mechanisms necessary to realize full religious freedom and tolerance. Only in the nineteenth century—after the final elimination of feudalism—did it become evident that the state should be the only institution endowed with public power. And only then it became clear that the state has but a limited task. It is not the task of the state to defend and guarantee a transcendent religious truth, but only to realize secular goals such as the maintenance of peace and order and the advancement of prosperity.
It took even more time to fully implement this point of view in effective legal institutions and principles. Only in our century has separation of church and state been instituted. The equality of the different religions was put into practice, and nonreligious convictions were put on a par with religious beliefs.
Religious freedom as a fundamental individual right was established somewhat earlier. Since the peace treaties of the sixteenth and seventeenth centuries, some basic elements of this freedom, often named freedom of conscience, were generally protected. These treaties and other legal documents, such as the constitutions of the eighteenth century, forbade the Inquisition and other means of invasion of the forum internum (inner freedom); they also guaranteed the right to worship God in one’s own house (the devotio domestica simplex). Full freedom of religion, not only for the majority but also for religious minorities, and comprising not merely the freedom to practice one’s religion in private but also in public (devotio publica), was realized in the 19th and 20th centuries.
The Precarious Status of Religious Freedom Nowadays
Well into the 20th century the postulate of the secular character of the state and the recognition of religious pluralism and the equality of the various religions was not very problematic, while this plurality was embedded in a system of predominantly Christian values. However, secularization, individualization, and multiculturalism have transformed this established pattern of limited plurality into a radical diversity of belief systems. To a certain extent this plurality has made the freedom of religion a problematic and vulnerable right. I will raise a few questions.
One of the problems raised by the current religious and cultural diversity is that the concepts of “religion” and “freedom of religion” have lost their precision and clarity, in that their ambit has become unclear. Its consequence is that what nowadays counts as religion and religious acts has become unclear. Is Satanism a religion? Is Scientology a church? Can the use of drugs in a cultural ritual be regarded as a manifestation of a religion? Is the wearing of head scarves by women an act of (Muslim) faith? Does female circumcision fall within the ambit of the freedom of religion? Until now most constitutional and international provisions guaranteeing religious freedom have been interpreted in line with their historical roots. They are regarded as guarantees of the inviolability of the forum internum, the (inner) freedom of thought, conscience, and religion, just as the peace treaties and the constitutions in earlier centuries did. Furthermore, they protect the freedom to manifest one’s religion to the extent that manifestations “are aspects of the practice of a religion or belief in a generally recognised form” (European Commission of Human Rights). This implies in essence that these provisions only protect what from a traditional perspective “counts” as religion or conviction. The point of departure is the outward appearance of the expression, interpreted from the dominant view of what religion or belief “is.” This creates the danger that acts which spiritual minorities regard as essential elements of their religion nevertheless do not fall within the scope of the provisions on religious freedom, simply because they do not fit into the traditional concepts of religion or belief.
To a certain extent this problem may be mitigated by also accepting as expressions of a religion or belief those actions that have a sufficient resemblance to the known patterns of behavior of familiar spiritual traditions. In minor cases it may even be possible to give the applicant claiming that his behavior is covered by freedom of religion the benefit of the doubt. But of course there is a limit to such a “mild (broad) interpretation.” It will quite often be impossible to accept the subjective interpretation of the participants as a decisive criterion. A restrictive, historical interpretation seems to be unavoidable in the majority of cases. A legal system consisting of general rules cannot afford to leave the answer to the question whether a person manifests his religion or belief—and thus can appeal to the freedom of religion—to the subjective convictions of this person. Furthermore, the principle of equality also forbids taking the subjective interpretation of a minority group into account to such an extent that this group is favored disproportionately. Therefore, the legal system is often forced to answer this question on the basis of objective criteria, related to the recognizable appearance of the expression.
The current religious plurality not only has complicated the legal delimitation of what counts as (freedom of) religion; it also has complicated the question of its limits. Of course, freedom of religion is an important value that can only be restricted when other important values and interests are at stake. However, it is nowadays less evident what the result of the test balancing freedom of religion and contrary interests will have to be. In a relatively stable society there will in general be consensus with regard to restrictions of religious manifestations. The religious differentiation and multiculturalization of recent decades has eroded this consensus, in particular in the sphere of family values. For instance, until recently polygamy did not pose a legal problem in western European countries: it simply was forbidden. Nowadays, however, the question is raised whether Muslims on account of their faith should have the right to marry more than one woman.
The question of what are the legitimate restrictions of religious freedom is particularly complex when this freedom may collide with the fundamental rights of other individuals. To what extent should fundamentalist Christians or Muslims have the right to offend others on account of their religious opinions? Do orthodox believers have the right to offer their children a one-sided education in private religious schools, excluding all points of view that may conflict with their beliefs? To what extent does the government have to tolerate illiberal minorities?
Finally, secularization and individualization have weakened the moral status of the freedom of religion. At least in secularized countries like the Netherlands, religion has lost its theological foundation, in that the majority no longer regards it as a sacred sphere devoted to the worship of God but as merely an expression of subjective, purely personal feelings: Religion is trivialized. There is a strong tendency among liberal policymakers to question specific constitutional protections of religion. If religious views are but personal opinions, if religious acts are but manifestations of one’s subjective conviction, why then should they be protected more strongly than other, nonreligious views and acts? Should not the secular state put religious and nonreligious manifestations and organizations on a par? And if so, what is the use of the freedom of religion? Shouldn’t it be abolished, because it unjustifiably favors religious motives, rituals, and organizations above secular ones?