The Tortuous Course of Religious Freedom

ABSTRACT This Essay, written for a conference at Notre Dame on Dignitatis Humanae, considers new challenges to and issues for religious freedom that have arisen recently in a world significantly changed from that of the 1960s, when the Declaration was first issued. INTRODUCTION Religious freedom is an ideal, understood in terms of what proponents take to be vital, timeless truths. Religious freedom is also a messy, ad hoc compromise worked out under conditions of prevalent error and potential oppression. Thus, a religious believer presumably would wish that all of humanity would come to embrace the saving truth. If the believer is a Christian, she might fervently pray that "every knee should bow, ... and every tongue confess that Jesus Christ is Lord." (1) But even someone who has no idea what the saving truth is might still wish that, if there is such a truth, everyone might come to know and accept it. If all of us converged on a single blessed truth, though, religious freedom would lose its importance: we might or might not have it, but we wouldn't really need it. Or at least we wouldn't need to talk about it, argue about it, fight for it, develop legal protections for it. We worry about religious freedom when and because people do not agree: they believe different and seemingly incompatible things. Some of these incompatible beliefs may be true; many (and perhaps all) of them are, it seems, less than the pure truth. And disagreement--and especially disagreement resulting from and reflecting the fact of widespread error--falls far short of being an ideal state of affairs. Those are the conditions under which religious freedom becomes relevant. Religious freedom seeks to make room to believe and live by higher truth in a world containing, and very likely dominated by, lower falsehoods; and it seeks to appeal to people who do not agree about what the truth is. As a result, religious freedom has--and probably always has had, and always will have--both a universalist but also a compromised, ad hoc, faintly grubby feel about it. That humans have intrinsic dignity, and that saving faith must be voluntary and genuine: these majestic propositions may perhaps be true in all times and places. But what mundane legal doctrine should declare, or how courts or legislatures should act: these are matters that may vary with the context. They may depend on, among other things, what sorts of errors happen to prevail and what sorts of injustices happen to threaten, and hence on what sorts of adjustments or compromises are needed to try to make room for truth to be believed, proclaimed, and lived. Dignitatis Humanae (2) reflects both the universalist and the local or contingent quality of religious freedom. Much of the Declaration has a categorical or universalist tone to it. When the Declaration asserts that people are "bound to adhere to the truth ... and to order their whole lives in accord with the demands of truth," (3) or when it declares that "[t]he act of faith is of its very nature a free act," (4) the Declaration seems to be asserting propositions that would presumably be as valid a thousand years ago or a thousand years hence as they were in 1965. But the Declaration also conveys a sense of trying to be in accordance with opinions or developments of its own period. Thus, the very first sentence in the document observes that "[a] sense of the dignity of the human person has been impressing itself more and more deeply on the consciousness of contemporary man." (5) Later, the Declaration observes that "men of the present day want to be able freely to profess their religion in private and in public," and it goes on to reference the acceptance of religious freedom in "international documents," including, presumably, the Universal Declaration of Human Rights. (6) In these respects, the Declaration has a sense of trying to be in tune with the times. And it gently acknowledges that its emphatic endorsement of religious freedom reflects a change--or perhaps a development, at least in articulation--from church teachings or at least practices in earlier times. …