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The modern era of freedom of religion began in the 17th century in 13 American colonies that later rebelled and became the United States of America. In the middle of the 20th century, “freedom of religion or belief” became a human right under international law after the United Nations (UN) was created. It is not a coincidence that generally it has taken secular legal systems to protect what many describe as “the right of conscience,” for religious organizations are generally more concerned with maintaining discipline among their members than with protecting their rights. This entry compares the meaning of religious freedom in the United States as well as in international law. It then examines the development of religious freedom in various religious communities and nations. Finally, the entry considers how the concept of the right of conscience has been shaped by federal legislation and judicial rulings in the United States.

Two Meanings: Religious Freedom in the United States and International Law

In the American tradition, religious freedom is defined by the First Amendment to the Constitution, which begins thus: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Religious freedom in American law has been described as the “separation” of church and state, although this language (attributed to Thomas Jefferson) is not in the Constitution. The First Amendment prohibits the federal government from establishing a particular religious tradition or practice, and after the Civil War the Due Process and Equal Protection Clauses of the Fourteenth Amendment were interpreted as applying to state governments the rights affirmed by the First Amendment.

The “freedoms” of the First Amendment, including the freedom of speech, freedom of the press, and the right to assemble and petition the government, are distinguished from the “civil rights” asserted in other amendments to the Constitution, which reflect the social contract theory of law that justifies governmental authority. The liberty rights of the First Amendment are affirmed as inalienable “natural rights” inherent in our humanity.

Article 18 of the 1948 Universal Declaration of Human Rights (UDHR) reflects this tradition:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

The International Covenant on Civil and Political Rights (ICCPR), which came into force in 1976 as the main treaty implementing the civil and political rights affirmed in the UDHR, asserts in Article 18.1,

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

Article 18.2 states, “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”

Five years later, the UN General Assembly approved the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. Article 1.1 of the 1981 Declaration reaffirms, “Everyone shall have the right to freedom of thought, conscience and religion.” Article 2.2 states,

For the purposes of the present Declaration, the expression “intolerance and discrimination based on religion or belief” means any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.

Freedom of religion or belief under international law differs from the U.S. right of religious freedom in two respects. First and foremost, international law does not prohibit a national state from having an established religion. In the middle of the 20th century, there were many European nations with established religious traditions that, without reservation, accepted the legal obligation to ensure nondiscrimination. Today, nations with an established religion by law or practice include largely Catholic countries in Europe and Latin America; several primarily Eastern Orthodox or Lutheran countries in Europe; a few, mostly Buddhist, countries in South Asia; and more than 30 Islamic countries in Africa, the Middle East, and South Asia.

Second, the freedom to change one’s religion is central to the U.S. tradition and was included in the UDHR because Protestant leaders persuaded the dominant Western governments that this assertion was required to protect the right of Christian missionaries to seek converts from every other religious tradition. Not surprisingly, the governments of many nations have sought to limit this freedom.

In the ICCPR and the 1981 Declaration, the affirmation of the UDHR that “this right includes freedom to change his religion or belief” has been replaced by statements prohibiting coercion, intolerance, and discrimination. This shift in language largely reflects the power of communist governments in the UN prior to the collapse of the Soviet Union and the increased number of nations with Islamic traditions that were admitted to the UN by the General Assembly between 1948 and 1981. Article 18.3 of the ICCPR and Article 3.1 of the 1981 Declaration each assert the following: “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”

International Religious Freedom Act

In response to reports of increasing religious persecution in other countries, in 1998 the U.S. Congress passed the International Religious Freedom Act (IFRA), which created the Office of International Religious Freedom in the Department of State to promote religious freedom as part of U.S. foreign policy.

As described on the U.S. Department of State website, the Office of International Religious Freedom seeks to

promote freedom of religion and conscience throughout the world as a fundamental human right and as a source of stability for all countries;
assist newly formed democracies in implementing freedom of religion and conscience;
assist religious and human rights nongovernmental organizations (NGOs) in promoting religious freedom; and
identify and denounce regimes that are severe persecutors of their citizens or others on the basis of religious belief.

Since 2001, the Office of International Religious Freedom in the U.S. Department of State has issued an annual report on the status of religious freedom in each of the 195 countries (i.e., all countries other than the United States). U.S. embassies prepare initial drafts, gathering information from a variety of sources including government officials, human rights monitors, journalists, NGOs, religious groups, and scholars. The Office of International Religious Freedom consults with experts on issues of religious discrimination and persecution, religious leaders from diverse traditions, and experts on legal matters. The Department of State submits this annual report to Congress.

The IRFA authorizes the President to designate a nation that has “engaged in or tolerated particularly severe violations of religious freedom” as a Country of Particular Concern (CPC). The IRFA defines “particularly severe violations of religious freedom” as

systematic, ongoing, egregious violations of religious freedom, including violations such as torture, degrading treatment or punishment, prolonged detention without charges, abduction or clandestine detention, or other flagrant denial of the right to life, liberty, or the security of persons.

The president’s authority to designate CPCs has been delegated to the secretary of state. When noneconomic policy options are not effective in ending particularly severe violations of religious freedom, the secretary of state may impose economic sanctions on a CPC. A CPC designation generally lasts 2 years but may be ended at any time if the secretary of state certifies to Congress that the foreign government has “ceased or taken verifiable steps to cease particularly severe violations of religious freedom.” In the 2010 report, the secretary of state designated the following nations as CPCs: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan.

The Office of International Religious Freedom sponsors reconciliation programs for religious groups in conflict, offers educational programs for American religious communities, and collaborates with the Commission on International Religious Freedom (also created by the IRFA). The commission makes recommendations on international religious freedom to the president, the secretary of state, and Congress.

European Court of Human Rights

In 1998, the European Commission of Human Rights and the Court of Human Rights, which were founded in 1953 with authority to hear individual complaints concerning violations of human rights, were joined into the European Court of Human Rights (ECHR). In 2003, the ECHR ruled that member states of the Council of Europe should not recognize Islamic law (Shari’a) that violates religious freedom under international law, as asserted by the European Convention on Human Rights.

International Efforts

International efforts to resist religious intolerance include implementation of the ICCPR by the Human Rights Committee created by the treaty, the UN High Commission for Human Rights, and the UN Human Rights Council, which in 2006 replaced the UN Commission on Human Rights (UNCHR). Special rapporteurs have been appointed to assess problems and recommend ways of realizing the standards of the 1981 declaration. A 1998 report on the United States praised the free exercise of religion in general but criticized the lack of protection for Native American practices and land consecrated by religious ceremonies.

Religious Support and Resistance

Religious communities that are minorities in a country support the right to religious freedom for every group, but religious communities that represent the majority of a nation often claim preferential status. Thus, it is inaccurate to say simply that Christians support religious freedom, as the Orthodox Church in several countries and also many evangelical Protestants in the United States defend governmental support for their Christian beliefs. Furthermore, although many Jews support religious freedom, Israel is a Jewish state in which Orthodox rabbis regulate religious practice. Also, Muslim minority communities in Western nations generally support the human right to freedom of religion or belief, whereas Islamic states do not fully endorse this right.

Religious History

The Protestant Reformation asserted the right of conscience in opposition to Catholic authority, but reformers often suppressed dissent within their own communities. Religious freedom was not effectively institutionalized among Protestants until, in the middle of the 17th century, Roger Williams established Rhode Island as an independent colony. In the 18th century, many individuals who embraced the idea of “natural rights” (including religious freedom) were members of Protestant churches in Europe and the United Sates. The legal protection of civil and political rights, however, was largely the result of a successful political and economic rebellion and the experience of freedom that inspired and sustained it.

Protestants did take the lead in urging that the Charter of the UN and also the UDHR affirm human rights. Twenty years later, during Vatican II, the Catholic Church endorsed international human rights law, including the right to freedom of religion or belief. Of the nations with largely Muslim populations that were UN members in 1948, the pro-Western governments of Afghanistan, Iran, Iraq, and Pakistan voted for the UDHR. Saudi Arabia and Yugoslavia were unwilling to do so but were persuaded by Eleanor Roosevelt (who chaired the UDHR drafting commission) to abstain rather than vote against it.

The World Council of Churches (WCC) has always promoted freedom of religion or belief and other human rights, and since Vatican II, the Catholic Church has supported international human rights law. Both of these Christian organizations support missions but reject proselytism. In 1961, the WCC asserted, “Witness is corrupted when cajolery, bribery, undue pressure or intimidation is used—subtly or openly—to bring about seeming conversion.” In 1965, the Catholic Church adopted a similar clarification: “Proselytism is a corruption of the Christian witness by appeal to hidden forms of coercion or by a style of propaganda unworthy of the Gospel. It is not the use but the abuse of the right to religious freedom.”

Nonetheless, international law does not make this distinction, and many Protestant missionaries do not abide by it. Therefore, to protect the public welfare against proselytizing that denigrates and undermines traditional religious practices, many countries impose restrictions on foreign missionaries.

Restraints on missionaries often conceal a double standard. India limits Christian activity in certain areas to protect indigenous traditions, yet groups promoting Hindu teachings take advantage of the right to proselytize in Western societies. Muslims in western Europe and North America expect protection for their right to seek converts in historically Christian societies, but Islamic governments deny non-Muslims the right to seek converts.

Religious Nationalism

Anger at proselytizing fuels nationalistic resistance to religious freedom. For many in central and eastern Europe, religion is inextricably related to culture and national heritage. This is very different from the Protestant conception of a religious community as a gathered congregation of individual believers, a notion that is reflected in the emphasis on the right of conscience in the U.S. tradition of religious freedom. Most Orthodox churches identify strongly with the particular ethnic and cultural history of a nation, and so an Orthodox national church expects the state that governs “its” people to promote the interests of the church.

For example, the 1990 Russian Law on Freedom of Conscience and Freedom of Religion was passed when U.S. influence on the new government of Russia was at its peak. In 1997, to limit missionary activities, the Moscow Patriarchate backed amendments to the 1990 law requiring registration and organizational requirements by foreign religious groups.

Nationalism, of course, is not limited to Orthodox confessions. The constitution of India mandates a secular government, yet there is considerable political support in India for a government that favors Hindu cultural and religious traditions. In Sri Lanka, the attempt by the majority Sinhalese community to create a political order reflecting its Buddhist tradition has been resisted violently by the minority Tamils, who are mainly Hindu. In Japan, Soka Gakkai fields political candidates espousing a Nichiren Buddhist vision of Japanese government. In the struggle to control the government in Sudan, conflict between tribes that are Muslim or Christian contributed to a protracted civil war.

Nationalist movements in some of the autonomous republics of the Russian Federation are hoping that new movements for democratic government will support the recovery of religious traditions that were suppressed under a half-century of Soviet rule. For instance, the Chuvash National Congress is promoting a return to the Chuvash pagan tradition and resisting efforts by the Orthodox Church to establish itself as the national religion. In Mari El, the parliament has legislated protection for traditional “religious cult zones” (sacred groves of trees). It is not hard to understand why these peoples now support laws, in the name of religious freedom, that give preference to their ancient religious and cultural heritage.

Islam, in theory, does not recognize any nationality but only the community of the faithful. In reality, Islam has been used to bolster nationalistic movements. Pakistan is an Islamic state, and criminal laws enforcing Islamic prohibitions are applied to Christian and Hindu Pakistanis as well as Muslim citizens. Hamas proclaims through the mosques of Gaza a jihad to achieve Palestinian national independence. The U.S. International Religious Freedom Report for 2010 confirms that there are numerous violations of religious freedom in Pakistan, but verifies that in the Occupied Territories administered by the Palestinian Authority (PA), where Islam is also the official religion, “the PA sought to protect religious freedom in full and did not tolerate its abuse by either governmental or societal actors.”

Religious Beliefs

Contemporary Jews assert that Pesach (Passover), Succot (Tabernacles), and Shavuot (Pentecost), the three major festivals in the Jewish year commemorating aspects of the exodus from Egypt, provide support for religious and political liberty. Purim (Lotteries), which recalls the danger to the Jewish people portrayed in the story of Esther, is said to affirm the rights of minority peoples. In remembering martyrs to their faith on Yom Kippur (Day of Atonement), Jews affirm the fundamental right of conscience.

Jewish scripture, however, is also used by many Jews to claim the land once governed by ancient Israel exclusively for the Jewish people and to interfere with the rights of Palestinians to live and practice their religious faith where their ancestors have lived for centuries. Members of an extremist Jewish Israeli group, the Gush Emunim Underground, even tried to blow up the Dome of the Rock, the sacred Islamic shrine in East Jerusalem. Other Jewish organizations, such as Rabbis for Human Rights, defend the human rights of Palestinians, as well as of every other human being, including the right to freedom of religion or belief.

Muslims affirm that their government has a responsibility to enforce the Islamic teaching that God alone is sovereign. Equality of rights regardless of skin color or ethnicity is a firm tenet in Islam, and for centuries, Muslims have been better at putting this ideal into practice than Christians. Religious freedom, however, has not historically been embraced in Islamic teaching, although Christians and Jews have had a protected status as “peoples of the book” because the Qur’an recognizes the revelations given to Moses and Jesus and thus reveres them as prophets.

When Asians or Africans from Hindu, Buddhist, or indigenous traditions argue that international human rights law embodies the principles of Western culture, they are making an accurate historical observation. When they claim that each culture has the right to practice its religious tradition in its own way, they are challenging the affirmation of international law that freedom of thought, conscience, and religion is a natural and universal right and must be protected by law to ensure the necessary social conditions for human dignity.

Right of Conscience

Before the 18th century, religious communities did not recognize freedom of conscience, and many today deny this right. This was the position of the Catholic Church until Vatican II, and it continues to be the policy of many Orthodox churches in eastern Europe. Native American leaders have gone to court to enforce tribal rights against the rights of individual members. All new religious movements affirm the right to religious freedom, but in practice, many deny freedom of conscience to their members.

Muslim teaching continues to reject the right of an individual to convert from Islam to another religion, on the grounds that God has constituted the Islamic community to rule on earth. To convert from Islam is seen as rejecting God and those charged to rule for God. Some Muslims support the right of conscience by pointing to the sura in the Qur’an that reads as follows: “Let there be no compulsion in religion.” The dominant historical interpretation of this text, however, is that no one should be compelled to convert to Islam.

Religious freedom in the United States presumes that protecting the right of conscience requires disestablishment. But establishment problems arise concerning the accommodation of religious practice (prayers in Congress, chaplains in the military and in prisons, etc.). Free-exercise claims challenge the government’s authority to enforce general laws that do not concern religion but adversely affect an individual’s religious practice.

The U.S. Supreme Court in Sherbert v. Verner (1963) emphasized the right of conscience in its ruling that the government may not “substantially burden” the exercise of religion unless it demonstrates a “compelling interest.” This was the legal standard until Employment Division v. Smith (1990), a decision involving the religious use of peyote by Native Americans. Smith holds that the free exercise of religion does not mean that “an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” Smith asserts the presumption that laws “of general applicability” do not deny the free exercise of religion.

This decision prompted the U.S. Congress in 1993 to pass the Religious Freedom Restoration Act (RFRA), which made the standard of Sherbert the law until the U.S. Supreme Court declared the RFRA unconstitutional in Boerne v. Flores (1997). At least five states have passed RFRA laws, but courts have reaffirmed the Smith standard.

International law asserting “freedom of thought, conscience and religion” presumes that states with established religious traditions are able, nevertheless, to ensure nondiscrimination. Everywhere, minorities within a country of every religious tradition claim their human right to manifest their religion “in teaching, practice, worship and observance.” Yet governments with established religious traditions—especially Eastern Orthodox churches, Orthodox Judaism, and Sunni or Shi’a forms of Islam—significantly restrict the exercise of the right of conscience.

Bibliography:

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Drinan, R. F. (2004). Can God and Caesar coexist? Balancing religious freedom and international law. New Haven, CT: Yale University Press.
Traer, R. (1991). Faith in human rights: Support in religious traditions for a global struggle. Washington, DC: Georgetown University Press.
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