Challenges to Religious Freedom

I.

My dear friends and fellow workers, I feel honored to have been introduced by Norberto Padilla. As a distinguished government official and founding member of the Argentine Council for Religious Freedom, he is an esteemed leader in the cause of international religious freedom, well appreciated among colleagues in the United States. His gracious introduction is therefore especially appreciated.

I feel privileged to address this distinguished audience on a subject of immense importance that is not sufficiently appreciated in the wider communities to which we belong.

As you know from the introduction, I am a leader in The Church of Jesus Christ of Latter-day Saints, known by many as the Mormons. We have no officially trained clergy. Our world leaders are called from various occupations to spend the rest of their lives as ordained ministers. Consequently, it is not unusual for me, as a lawyer, legal scholar, and former judge, to be a world leader in my Church.

My lifelong advocacy of religious freedom is grounded in my religious faith. I will serve you best by giving you a brief explanation of that faith so you will understand the position from which I speak.

One of the unique things about the doctrine of The Church of Jesus Christ of Latter-day Saints is our knowledge that God continues to call prophets to teach us and help us apply His commandments to our current circumstances. Speaking through a prophet nearly 200 years ago, God said that He inspired the Constitution of the United States “for the rights and protection of all flesh” (D&C 101:77). Thus it is our belief that what is now the oldest operating constitution in the world contains heaven-inspired principles relevant to the exercise of just and stable government power everywhere. I note that scholars have observed the influence of the United States Constitution on Argentina’s Constitution, although there are important differences in content and application.[1]

Mormons do not take this modern revelation as a heavenly endorsement of all the laws enacted under the United States Constitution or of the sometimes inappropriate actions of the United States government and its leaders. We consider that prophetic statement to be an endorsement of the fundamental principles of that Constitution. Foremost among those fundamentals is the vital founding principle that the government should not endorse or establish a particular religion and that the government should guarantee the free exercise of religion by all of its citizens. Consequently, we gratefully acknowledge that in a time when 77 percent of the world’s inhabitants live in countries with high or very high restrictions on religious freedom, the Western Hemisphere leads the way, along with countries in western Europe, in providing effective protections for this cherished right.[2]

II.

While I am familiar with issues of religious freedom and its exercise under the laws and culture of the United States, I am not well acquainted with these issues in Argentina or anywhere else in Latin America. So, while we share common values and concerns on the preservation of religious freedom, my presentation will make no specific recommendations on the application of these principles in the circumstances of your nation and culture.

I begin with a brief reference to religious freedom as established in the United States Constitution. As noted by many, that constitution treats freedom of religion as “a cornerstone of American democracy.”[3] This includes its provisions that there shall be no religious test for public office (Article VI) and that the government shall make no law establishing religion or prohibiting the free exercise of religion (First Amendment).

The British North American colonies were originally settled by people who, for the most part, came there for the freedom to practice their religious faith without persecution, and their successors deliberately placed religious freedom first in their nation’s Bill of Rights. The guarantee of religious freedom is also reflected in the constitutions of all 50 states, as well as in the constitutions of most other nations.

The “free exercise” of religion obviously involves both (1) the right to choose religious beliefs and affiliations and (2) the right to “exercise” or practice those beliefs without government interference. However, in a nation with citizens of many different religious beliefs, the right of each to act upon his or her religious beliefs must be qualified by the government’s responsibility to further compelling government interests, such as the health and safety of all. Otherwise, for example, the government could not protect its citizens’ persons or properties from neighbors whose religious principles involved practices that threatened the health or personal security of others. Lawmakers and judges have wrestled with this tension for many years, so we in the United States have considerable experience in working out the necessary accommodations.

Beyond the borders of the United States, the idea that the free exercise of religion must protect actions as well as beliefs (“the right of conscience”) was persuasively treated in the Second Vatican Council’s “Declaration on Religious Freedom” (1965). That great document persuasively declares that individuals do not practice their religion as a solitary act, but together with one another. A similar provision is set forth in Article 18 of the United Nations Universal Declaration of Human Rights. The right to the free exercise of religion must therefore apply when religious believers act as a community. As elaborated by a respected scholar, “the vitality of faith comes in its communal character, in the individual’s fellowship with others whose views support, inform, and refine his own,” including the right to undertake “educational, cultural, charitable and social” efforts as they choose.[4]

III.

With all of that as background, I come to my first major point: religious teachings and the religiously motivated actions of believers are valuable to society and deserving of special legal protections. This of course rejects the assumptions of some secularists that religion is mostly a matter of history that has minimal significance in modern times. Far from relics of the past, religious principles and religious believers are a vital present and future force everywhere.

Current media attention to religion is focused on the atrocities of certain extremists purportedly acting in the name of Islam in a few parts of the world. While such perpetrators attempt to justify their actions on religious grounds, I see them as excesses on the fringe of anything that might claim to be “religion.” Many Muslim leaders have also condemned their actions.[5] Such atrocities and their perpetrators do not qualify for the protection of the religious freedom I advocate. Moreover, academic critics who condemn religion as the source of great atrocities through the ages must face the fact that the mass killings of the last century have not been done in the name of religion. The killings of the Holocaust, the Stalinist purges, the killing fields of the Khmer Rouge, and the ethnic cleansings in Central Africa have been primarily motivated by ethnic, political, or tribal differences, not by religious rivalries.[6]

In a lecture at a celebration of the Becket Fund for Religious Liberty in New York two years ago, I spoke of the value of religion and its practitioners. I quote those remarks here in the hope that they have relevance in your country as well as mine.

Our country’s robust private sector of charitable works originated with and is still sponsored most significantly by religious organizations and religious impulses. This includes education, hospitals, care for the poor, and countless other charities of great value to our country.

Many of the most significant moral advances in Western society have been motivated by religious principles and persuaded to official adoption by pulpit preaching. Examples include the abolition of the slave trade in England and the Emancipation Proclamation in this country. The same is true of the Civil Rights movement of the last half-century. These great advances were not motivated and moved by secular ethics or persons who believed in moral relativism. They were driven primarily by persons who had a clear religious vision of what was morally right.

Our society is not held together primarily by law and its enforcement, but most importantly by those who voluntarily obey the unenforceable because of their internalized norms of righteous or correct behavior. Religious belief in right and wrong is a vital influence to produce such voluntary compliance by a large number of our citizens. [The first president of the United States, George Washington,] spoke of this reality in his farewell address: “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports,” he said. “Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”[7]

Over 200 years later, in 1998, Congress enacted a law that formally declares: “The right to freedom of religion undergirds the very origin and existence of the United States.”[8] That law formally associates our nation with the truth voiced by Jonathan Sacks, [former] chief rabbi of the United Hebrew Congregations of the [British] Commonwealth.

“[Religion] remains the most powerful community builder the world has known. . . . Religion is the best antidote to the individualism of the consumer age. The idea that society can do without it flies in the face of history.”[9]

Even the agnostic Oxford-educated British journalist Melanie Phillips admitted that “one does not have to be a religious believer to grasp that the core values of Western Civilization are grounded in religion, and to be concerned that the erosion of religious observance therefore undermines these values and the ‘secular ideas’ they reflect.”[10]

As affirmed by the rabbi and the agnostic journalist, along with many scholars of sociology, economics, and government, I maintain that the teachings and free practice of religion are essential to a free and prosperous society. On an occasion similar to this one, in a law school lecture in the United States, I made this statement: “I submit that religious values and political realities are so interlinked in the origin and perpetuation of this nation that we cannot lose the influence of religion in our public life without seriously jeopardizing our freedoms.”[11]

Religious freedom is not just the concern of religious persons. Nonbelievers also have a strong interest in religious freedom, which is necessary for peace and stability in our pluralistic world. The protection of conscience is a vital ingredient for stability because it helps people from a wide spectrum of beliefs feel assured that their deepest concerns and values are respected and protected.

The extent to which and the manner in which these conclusions have value in Argentina is for Argentines to determine.

A further indication of the value of religion in a free society is the significant emerging interest in and promotion of religious freedom by various international institutions. Canada has established an Office of Religious Freedom. The European Union has published guidelines on freedom of religion.[12] The United Kingdom has an all-party parliamentary group on freedom of religion in the U.K. There is also a working group on freedom of religion or belief in the European Parliament. Similarly, I am advised that the Brazilian House of Representatives has just organized a parliamentary coalition for religious freedom. Interestingly, this organization is led by Moroni Torgan, a well-respected lawmaker who is a Mormon.

I have spoken of the value of and growing interest in religious freedom. Those who are interested in the related issue of whether it is appropriate to give special protections to religious freedom can profitably pursue that issue in a celebrated exchange of views by two notable scholars in the United States. Professor Brian Leiter is extremely negative toward religion in his book Why Tolerate Religion? published by the Princeton University Press (2010). He was answered—decisively in my view—by Professor Michael W. McConnell in a Yale Law Journal article titled “Why Protect Religious Freedom?”[13]

IV.

My assertions about the value of religion and religious teachings—and their qualification for special legal protection—may sound naïve and outdated to some in the United States and, I suspect, to some in Argentina. Mine is a nation that has moved strongly towards secularism, and I am told that yours has also. With secularism comes a disconnect from belief in God and the consequent reality of an absolute right and wrong. Faith in God and the idea of ultimate accountability to Him is replaced by moral relativism, which leads to a loss of respect for religion and even to anger against religion and the guilt that is seen to flow from it. More about that later, but I now turn to the issue of the decline of religion and religious liberty.

“By some counts,” an article in The Economist declares, “there are at least 500 [million] declared non-believers in the world—enough to make atheism the fourth-biggest religion.”[14] Others who do not consider themselves atheists also reject the idea of a supernatural power but affirm the existence of some impersonal force and the value of compassion and love and justice.[15] In the United States we see this in the diminished mention of religious faith and references to God in our public discourse. One has only to compare current rhetoric with the major addresses of our political leaders in the 18th, 19th, and the first part of the 20th centuries. Similarly, examine what President Abraham Lincoln said on key occasions about God and religious practices like prayer, and compare those reverent references with the edited versions of his remarks quoted in current history books.[16] It is easy to believe that there is an informal conspiracy to scrub out references to God and the influence of religion in the founding and preservation of the United States.

[17] At least one study suggests that this trend applies in Argentina.[18] For example, the percentage of young adults in the United States affiliated with any religious denomination now stands at 33 percent.[19] About half of the diminishing proportion who have no denominational affiliation—mostly young people—have “a genuine antipathy toward organized religion.”[20] Leading social scientists Robert Putnam of Harvard and David Campbell of Notre Dame have concluded that “the prospects for religious observance in the coming decades are substantially diminished.”[21]

The guarantee of free exercise of religion seems to be weakening as the tide of public esteem in favor of religion recedes. Religion is surely under siege by the forces of political correctness that seek its replacement by other priorities. A writer for the Christian Science Monitor predicts that the coming century will be “very secular and religiously antagonistic,” with intolerance of Christianity “ris[ing] to levels many of us have not believed possible in our lifetimes.”[22]

There are other disturbing signs that the significance of religious freedom is diminishing, at least in the United States. In 1990 the United States Supreme Court issued its most important free exercise decision in many years. The Smith vs. Employment Division case significantly narrowed the traditional protection of religion.[23] Happily, a pair of Supreme Court decisions in the last several years have signaled that the free exercise of religion remains vital in the United States.[24] Despite that reality, some U.S. scholars are contending that a religious message is just another message in a world full of messages, not something to be given unique or special protection. One author, in a book titled Freedom from Religion, takes the extreme position that religious speech should have even less protection than nonreligious speech.[25] As noted earlier, another author published a book titled Why Tolerate Religion?[26]

When the then-president of the U.S. Conference of Catholic Bishops, Cardinal Francis George, spoke at Brigham Young University a few years ago, he referred to “threats to religious freedom in America that are new to our history and to our tradition.” He gave two examples, one concerning threats to current religious-based exemptions from participating in abortions, and the other “the development of gay rights and the call for same-sex ‘marriage.’”[27] He also spoke of possible government punishments for churches or religious leaders whose doctrines lead them to refuse to participate in government sponsored programs.

Legal commentator Hugh Hewitt described another of these threats:

For three decades people of faith have watched a systematic and very effective effort waged in the courts and the media to drive them from the public square and to delegitimize their participation in politics as somehow threatening.[28]

Powerful secular interests in the United States are challenging the way religious beliefs and the practices of faith-based organizations stand in the way of their secular aims. We are alarmed at the many—and increasing—circumstances in which actions based on the free exercise of religion are sought to be swept aside or subordinated to the asserted “civil rights” of officially favored groups.

As we seek to preserve religious freedom, we must also be sensitive to its relationship to free speech. We see this relationship in the United States, where the forces that would constrain the freedom of religion are also attacking religious leaders’ rights to free speech in the exercise of their religious ministry. This is evident in the current efforts to narrow the definition of religious expression and to expand the so-called civil rights of “dignity,” “autonomy,” and “self-fulfillment” of persons offended by religious preaching. This is part of an alarming trajectory of events pointing toward constraining the freedom of religious speech by forcing it to give way to the “rights” of those offended by such speech.

Other efforts seek to intimidate persons with religious-based points of view from influencing or making the laws of their state or nation. Such advocates should answer this question: How would the great movements toward social justice in the United States, such as the abolition of slavery or the furthering of civil rights, have been advocated and pressed toward adoption if their religious proponents had been banned from the public square by insistence that private religious or moral positions were not a rational basis for public discourse?

V.

What has caused the current public and legal climate of mounting threats to religious freedom? In this, my second major point, I urge that the weakening guarantees of the free exercise of religion are not attributable to causes that are legal but to changes in culture. The diminished value being ascribed to religious freedom stems from the ascendency of moral relativism and the expanding variety of intellectual orientations that I will refer to under that broad label. Today an increasing and influential group deny or doubt the existence of a God and insist that all rules of behavior are man-made, to be accepted or rejected as one chooses, because there is no such thing as right and wrong. We live in an increasingly godless and amoral society.

The denial of God or the downplaying of His role in human affairs, which began in the Renaissance, has become pervasive today. This glorifying of human reasoning has had good effects and bad. The work of science has made innumerable improvements in our lives, but it has also contributed to the rejection of divine authority as the ultimate basis of right and wrong by those who have substituted science for God. In contrast, many religious people are now asking why the viewpoints of any of the brilliant philosophers of the liberal tradition should be thought more relevant to moral decisions than the will of God.

Time does not permit an attempt to identify all of the various aspects of moral relativism or the extent to which they have entered the culture or consciousness of our respective nations and their peoples. But the following are some general observations of respected observers whose descriptions I find persuasive.

In his book Modern Times, the British author Paul Johnson writes:

At the beginning of the 1920s the belief began to circulate, for the first time at a popular level, that there were no longer any absolutes: of time and space, of good and evil, of knowledge, above all of value.[29]

Similarly, in her book, The De-moralization of Society, Dr. Gertrude Himmelfarb describes how the virtues associated with good and evil have been degraded into relative values.[30]

I believe that those who have used human reasoning to supersede divine influence in their lives have diminished themselves and cheapened civilization in the process. I agree with the observers I will quote who condemn the consequences of moral relativism and affirm the existence of God as the ultimate Lawgiver and the source of the absolute truth that distinguishes good from evil.

Rabbi Harold Kushner speaks of God-given “absolute standards of good and evil built into the human soul.”[31] He writes:

As I see it, there are two possibilities. Either you affirm the existence of a God who stands for morality and makes moral demands of us, who built a law of truthfulness into His world even as He built in a law of gravity. . . . Or else you give everyone the right to decide what is good and what is evil by his or her own lights, balancing the voice of one’s conscience against the voice of temptation and need.[32]

Rabbi Kushner also observes that a philosophy that rejects the idea of absolute right and wrong inevitably leads to a deadening of conscience.

Without God, it would be a world where no one was outraged by crime or cruelty, and no one was inspired to put an end to them. . . . There would be no more inspiring goal for our lives than self-interest. . . . Neither room nor reason for tenderness, generosity, helpfulness.[33]

Dr. Timothy Keller, a much-published Protestant pastor in New York, asks:

What happens if you eliminate anything from the Bible that offends your sensibility and crosses your will? If you pick and choose what you want to believe and reject the rest, how will you ever have a God who can contradict you? You won’t! . . .

Though we have been taught that all moral values are relative to individuals and cultures, we can’t live like that. In actual practice we inevitably treat some principles as absolute standards by which we judge the behavior of those who don’t share our values. . . . People who laugh at the claim that there is a transcendent moral order do not think that racial genocide is just impractical or self-defeating, but that it is wrong.”[34]

My esteemed fellow Apostle, Elder Neal A. Maxwell, asked: “How can a society set priorities if there are no basic standards? Are we to make our calculations using only the arithmetic of appetite?”[35] He followed with this practical observation:

Decrease the belief in God, and you increase the numbers of those who wish to play at being God by being “society’s supervisors.” Such “supervisors” deny the existence of divine standards, but are very serious about imposing their own standards on society.[36]

Elder Maxwell also observed that we invariably increase the power of governments when people do not believe in absolute truths and in a God who will hold them and their government leaders accountable.[37]

The ascendancy of moral relativism weakens religious freedom because it encourages the proliferation of rights that claim ascendency over the constitutionally guaranteed free exercise of religion.

VI.

An esteemed scholar and friend of religious liberty has stated the goal with which I wish to conclude. At the close of his notable article on international diplomacy and religion, Professor Thomas F. Farr endorsed religious freedom as a means to protect human dignity and bolster civil society. “It means,” he concludes, “the durable and mutual accommodation of religion and the state within the boundaries of liberal democracy.”[38]

Achieving this goal will require extensive international cooperation, including many of the kinds of national and multinational organizations mentioned earlier. The enormous challenges facing religious freedom are beyond what can be achieved by any one government. As our good friend Pasquale Annicchino observes, “The key to making this move [to strengthen religious freedom] genuinely efficacious rather than merely symbolic will be multilateral and multi-sector collaboration.”[39]

The involvement of nations and multinational organizations in support of religious freedom is necessary and valuable but not sufficient. The preservation of religious freedom depends upon public understanding of and support for this vital freedom. It depends upon the value the public attaches to the teachings of right and wrong in churches, synagogues, and mosques. Believers and nonbelievers must be helped to understand that it is faith in God—however defined—that translates religious teachings into the moral behavior that benefits the nation. As more and more citizens believe in God, or at least in the importance of the moral absolutes taught by religious leaders, the importance of religious freedom will be better understood and supported. Many will also be persuaded that religious leaders, who preach right and wrong, make a unique contribution to society and should therefore have special legal protection.

In the United States we are seeing important efforts to strengthen religious freedom. We are cheered by the rising concern and vigorous advocacy of many influential religious leaders. The U.S. Conference of Catholic Bishops has created an ad hoc Committee for Religious Freedom. We also have the influential voices of Protestant evangelical leaders, such as Pastor Rick Warren, who has stated his belief that “religious liberty is going to be the civil rights issue of the next decade.”[40] We all agree with Cardinal Francis George, who said:

In the coming years, interreligious coalitions formed to defend the rights of conscience for individuals and for religious institutions should become a vital bulwark against the tide of forces at work in our government and society to reduce religion to a purely private reality.[41]

Religious leaders and believers must unite to strengthen our freedom to teach what we have in common, as well as to teach and exercise our very real religious differences. Leaders of different faiths and philosophies must walk shoulder-to-shoulder on the same path in order to secure our freedom to pursue our separate ways when that is necessary according to our distinctive beliefs. This proposal that religious leaders unite more effectively does not require any examination of the doctrinal differences among Christians, Jews, and Muslims, or even an identification of the many common elements of our beliefs.

All that is necessary for unity and a broad coalition to defend and promote religious freedom is a common belief that human beings are endowed with conscience, the critical faculty that guides our understanding of the standards of right and wrong in human behavior that we believe have been established by a Supreme Being. All who accept that fundamental should unite more effectively to preserve and strengthen the freedom to advocate and practice our religious beliefs, whatever they are.

As we work together to protect religious freedom, we should be examples of civility. We should love all people, be good listeners, and show concern for the sincere beliefs of others. We should be wise in explaining and pursuing our positions and in exercising our influence. We should seek the understanding and support of nonbelievers. And we must also enlist the official actions of governments and appropriate multinational bodies. All of this is necessary to preserve the great good that religious organizations and believers can accomplish for the benefit of all humanity.