Friday, September 30, 2011
Many thanks to Rick for highlighting the Sullivan book, The Impossibility of Religious Freedom. With all that is going on in the world, including the United States, the subject of religious freedom is highlighted by the persecution of and assaults on religious believers.
As Rick points out, the Sullivan thesis points to the role of the state in the protection of religious freedom through the notion of equality. But as Rick points out, there is more to religious freedom than equality.
Of course, religious freedom is protected by the Universal Declaration of Human Rights and international juridical instruments. Moreover, by some of these important agreements, religious freedom is a right which the state cannot derogate, even though many states, including our own do infringe do infringe upon it in various contexts.
In the context of Catholic legal theory, the right of religious freedom is important. But it is more than that. This right prompts the question in CLT regarding the role and authority of the state. In the context of the Mirror of Justice project, religious freedom is a right—like the human person, the family, and the non-derogable rights—that precedes the state. For the state to construct a theory of the right as one based on equality is an ultra vires exercise of its proper and limited authority. At most, the state is its protector by obligation, not its definer by right.
I will attempt to tackle some aspects of this issue at the February Nootbaar conference at Pepperdine on the competing claims of law and religion when I present my paper entitled “Render Unto Mao the Things that Are Mao’s...” which addresses the subject of religious freedom (or not) in China.