What is Religious Freedom Actually?

Introduction If you ask the average American on the street what religious freedom is, you will get all sorts of different ideas. Some places, you will hear: “keep your religion to yourself. Haven’t you heard of the separation of Church and State?” Others might answer: “People are free to believe whatever they want. Who am I to judge if they’re right or not?” Still others might claim that religious freedom means the ability to pray privately however you want. None of these are what religious freedom actually is specifically. But it should also be noted that the American constitutional notion of religious freedom is not precisely what the Catholic Church holds religious freedom to be. And, so, the object of today’s exploration is to look at what religious freedom is in the United States of America. Then, more importantly, to view what religious freedom is, in principle, as defined by the Catholic Church at the Second Vatican Council. Separation of Church and State The First Amendment of the Constitution of the United States, the first of the ten amendments which comprise the Bill of Rights, adopted on December 15, 1791, reads thusly: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” For our purposes we will focus on the first phrase: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” This is known as the Establishment Clause of the First Amendment. I do not have the time or space here to provide an exhaustive account of American jurisprudence on the matter of religious liberty. But, I do want to draw out a few key moments in American History where this question came up and which will give us a clearer view of what religious freedom is. Thomas Jefferson’s Danbury Letter In a letter to the Danbury Baptists, Thomas Jefferson wrote: “Gentlemen The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing. Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties. I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem (Danbury Letter).” He wrote this letter in response to a letter from the Danbury Baptists in order to explain his views on federalism and the meaning of the Establishment Clause. The main meaning of his “wall of separation between Church & State” is an assurance that the government would not interfere with the church of the Danbury Baptists or give special treatment to any particular religion or sect. Justice Hugo Black, an appointee of Franklin Roosevelt to the Supreme Court, would even refer later to the Danbury explanation as an “almost authoritative declaration” of the Founders’ intent for the Establishment Clause (cf. Bill of Rights Institute). Two days after sending this letter, though, Jefferson attended a religious service in the House of Representatives location in the Capitol. As Daniel Roeber notes: “Jefferson and others recognized the benefits of developing a national identity that transcended interdenominational division (Roeber).” Yet, since 1795, public worship was administered at the partially completed Capitol Building each Sunday at noon (cf. ibid). Religious liberty was the motivation of the Plymouth Pilgrims and many Catholics who settled in Maryland. However, the colonial period was far from united on religious matters. Protestant sects disagreed amongst themselves. Catholics were seen as untrustworthy papists of low social stature. Jewish people were tolerated, at best. The nascent country needed an identity which transcended these divisions. The importance of developing a national identity was something that would take over a hundred years more as most identified most readily with their own state. Lemon V. Kurtzman and the Three Pronged Test (1971) Let us now skip forward quite a bit to 1971. In that year, a case was brought to the Supreme Court in which the Court considered whether a law in Pennsylvania violated the Establishment Clause. The law reimbursed religious schools with state funds for textbooks and salaries for teachers for non-public, non-secular schools. The Court responded 8-0 with a three-pronged test for determining whether a given statute is constitutional. The government may assist religion only if: * The primary purpose of the assistance is secular * The assistance must neither promote nor inhibit religion, and * There is no excessive entanglement between church and state In this specific case, the Pennsylvania law was struck down because of excessive entanglement between church and state. It is worth noticing here what is implicit: there is nothing wrong, in the American understanding, with some implicit entanglement between Church and State. The issue, ultimately, is when the line is crossed towards “excessive.” Marsh v. Chambers (1983) The Nebraska legislature opened each of its sessions with a publicly funded chaplain offering a prayer. The Supreme Court, in Marsh v. Chambers (1983) determined that this was NOT a violation of the Establishment Clause. Though this instance does not pass the “Lemon” three-pronged test, the Justices argued that there is a long historical custom going back to the Continental Congress and the very Congress that resulted in the Bill of Rights. In the majority opinion, Chief Justice Warren Burger wrote: “In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an ‘establishment’ of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country (Citation: 463 US 783).” As we saw with the Capitol Building services, there is not a strict and non-transversable wall of separation of Church and State. Other Supreme Court Cases I now want to walk through several other Supreme Court cases that touched on religious liberty. Again, this list is not exhaustive, but it can help us round out our picture. Reynolds v. United States (1879) In 1879, in Reynolds v. United States, the Court upheld a federal law banning polygamy. They claimed that the Free Exercise Clause of the First Amendment forbids government from regulating belief but that government can nonetheless punish acts which it judges to be criminal, regardless of religious belief. Torcaso v. Watkins (1961) As of 1961, the State of Maryland had a requirement that a candidate for public office needed to declare that they believed in God in order to be eligible for… This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit www.gooddistinctions.com