Tuesday, August 10, 2021
Religious freedom plays a significant role in the American imagination. When asked what it means to be an American, many Americans will refer to freedom and equality, which speaks to our intuitive sense of the equal dignity of all people. But how we think of religious freedom can differ from one person to the next. The ideal of religious freedom may be summarized as “separation of church and state” and “the right to follow my conscience.” Many Americans will often think primarily in terms of human rights. Religion – belief and practice, ritual and worship, and perhaps expression and profession – is considered an object of human rights laws, that is, as something that the laws protect. The leading human rights instruments confirm this entirely reasonable, if not quite complete, way of thinking. For example: “Everyone has the right to freedom of thought, conscience, and religion,” the Universal Declaration of Human Rights (1948) proclaims, and political communities should “strive ... to promote respect for [this right]” and “to secure [its] universal and effective recognition and observance.” Similarly, the European Convention on Human Rights (1950) declares that its signatories resolve to “secure [this right] to everyone within their jurisdiction.” The Constitution of the United States frames the issue in terms of constraints on government. The government may not prevent the free exercise of religion, nor may it establish a religion. In other words, religious liberty is often framed negatively, as “freedom from,” rather than as something more aspirational, as “freedom for.”
But what, exactly, is this religious liberty that needs safeguarding? Despite general agreement that religious liberty is protected by the Constitution, the extent of those protections, and what constitutes true religious liberty at its core, is disputed. . . .