“Religious Freedom: The Foundation Freedom”

By Elder D. Todd Christofferson

J. Reuben Clark Law Society, UK & Ireland Chapter,
Second Annual Conference, Downing College, Cambridge University
August 11, 2017

I.

Introduction

Thank you for that warm welcome. I truly appreciate the invitation to be with you at this wonderful conference. I thank and congratulate Charlotte Steinfeld and her team in organizing the exceptional program of today’s conference. J. Reuben Clark Jr. was a gifted lawyer and an inspired Apostle of the Lord Jesus Christ. Your work as members and leaders of the UK and Ireland Chapter of the J. Reuben Clark Law Society is a fitting tribute to one of the great leaders of The Church of Jesus Christ of Latter-day Saints.

I am especially pleased to be at Cambridge University in a conference dedicated to understanding and celebrating the rule of law. The world owes the British people a tremendous debt for developing workable government institutions founded on the rule of law.

I’ve been thinking a lot lately about religious freedom and its connection to the rule of law and indeed to all the rights and liberties we cherish. To be clear, by “religious freedom” I do not mean just freedom from persecution based on religious belief or practice. Such freedom is crucial, of course, but it’s hardly enough. As I have explained previously, “A robust freedom [of religion] is not merely what political philosophers have referred to as the ‘negative’ freedom to be left alone. … Rather, it is a much richer ‘positive’ freedom—the freedom to live one’s religion or belief in a legal, political, and social environment that is tolerant, respectful, and accommodating of diverse beliefs.”^[1] Religious freedom, in short, “gives us all space to determine for ourselves what we think and believe—to follow the truth that God speaks to our hearts.”^[2]

I fear that some may not understand the place of religious freedom in the gospel of Jesus Christ. Our eleventh article of faith states, “We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may.”[3] Freedom of religion is thus a basic principle of the restored gospel. In the Doctrine and Covenants, one of our canonical books of scripture, there is a statement that places the highest priority on preserving religious freedom. There we are told that “rulers, states, and governments have a right, and are bound to enact laws for the protection of all citizens in the free exercise of their religious belief.”[4] In turn, when laws “[hold] sacred the freedom of conscience,” people of faith are bound to support the government.[5] These sacred truths, affirmed in Church scripture nearly two centuries ago, have never been as timely or needed as today.

But religious freedom does not exist in isolation. I also fear that many in our modern secular societies have forgotten that religious freedom undergirds and is inseparably connected to all the other freedoms we cherish. It is the core right in what might be thought of as an “ecosystem” of freedom. As religious freedom goes, so go many other precious rights.

And so my remarks today are entitled “Religious Freedom: The Foundational Freedom.” Along the way I will share some thoughts on how religious freedom and the rule of law are mutually supporting and essential to our fundamental human rights.

II.

Dividing the Powers of Church and State

Establishes the Basis for Limited Government and Freedom

I want to introduce my discussion of religious freedom by recounting a notorious event from English history that many of you will be familiar with.

In December 1170, four knights entered Canterbury Cathedral and stabbed to death the Archbishop, Thomas Becket, as he was climbing the stairs to the high altar.[6] A more violent act of desecration would be difficult to imagine: those knights, acting on a rash complaint of King Henry II, took the life of England’s archbishop as he stood in priestly robes during a worship service at one of Christendom’s great cathedrals. Henry’s complaint arose from numerous clashes with his old friend, Becket, over various issues that together raised a monumental question: Who would control the Christian church in England?

By raising that question dramatically, Becket’s martyrdom illustrates an important but often overlooked source of religious freedom. Religious freedom depends on the ingrained, structural division of powers between church and state. Centuries of conflict in Great Britain and elsewhere in the West have divided the powerful forces of government and religion, thereby limiting the powers that both government and religious institutions can exert over individuals. One scholar has written that “this separation is deeply imprinted in the Western historical experience, with such episodes as the martyrdoms of Becket and More [imparting] the lesson to succeeding generations.”^[7] This lesson has led Western democracies to follow a familiar pattern in church-state relations. That pattern, as another prominent scholar has written, “recognizes coexisting sovereigns: civil government, which concerns itself with the secular; and church, which deals with the sacred. These two structures have spheres of interest that partly overlap, of course, and ‘sacred’ does not mean that religious organizations are merely (or even mostly) focused on the hereafter, for they are highly visible institutions drawing considerable public attention and occupying real ground in the here and now.”^[8]

Dividing the authority of church and state had the powerful effect of establishing limits to the authority of both. Government came to be understood as inherently limited—its legitimate authority simply does not include matters of religious belief or practice, for those are matters of the soul. By the same token, while churches have legitimate authority over matters of religious belief and practice, they lack civil power over property or life. Governments do not rule churches, and churches do not rule governments; each has a limited sphere of competence, power, and legitimacy.

That is a profound notion that we often take for granted. It means that secular government is not divinely omnipotent and, conversely, that religious authority cannot act as an all-powerful government. There are inherent limits to both governmental and religious authority over society, and in the tensions and spaces created by those limits we find many of our freedoms.

The American Constitution follows the pattern of separating church and state by denying the government authority to make laws “respecting an establishment of religion.”[9] One scholar explained that “men of the eighteenth century who demanded a constitutional proscription of laws relating to religion did so because of the deep conviction that the realm of spirit lay beyond the reach of government.”[10] That insight applies outside the context of American law. The fact of church-state separation confirms that government acts illegitimately when it tries to control “the realm of spirit.”[11]

Separating church and state protects religious freedom by walling off questions of personal faith, religious doctrine, and ecclesiastical governance from government control. Thanks to that separation, we take for granted the freedom to adopt a religious faith or to change it, as dictated by individual conscience. With few constraints, we worship how, where, and what we choose. Where the powers of church and state are divided, the government has no power to compel its people to affirm a particular religious orthodoxy as the price of full citizenship. The government also generally lacks power to interfere in the internal ecclesiastical affairs of religious organizations. And, most significantly, the government lacks any rightful authority to persecute its people for their religious beliefs or practices.

III.

Religious Freedom and the Rule of Law

I believe this fundamental limitation on the power of government to control the realm of the spirit undergirds the rule of law. For if the power of the king is limited, then surely the power of the king’s magistrates must be too. It follows that there must be rules to guide and constrain the exercise of governmental power. I do not claim that the separation of church and state is the only source of the rule of law in modern Western civilization; no doubt there are many others, as the various scholars at this conference can attest. But the deeply embedded separation of church and state undoubtedly played an important role in establishing and fortifying the rule of law, which in turn has further protected and secured religious freedom from arbitrary governmental authority and persecution.

So what is the rule of law? The late Lord Bingham defined it as the principle “that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.”[12] Among the corollaries that he identified, Lord Bingham discerned that “questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.”[13] The reason for avoiding discretion, he explained, is that “arbitrariness … is the antithesis of the rule of law.”[14] Another key corollary is that “the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.”[15] As U.S. Supreme Court Justice Robert Jackson wrote, “There is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.”[16] Lord Bingham rightly called this “a pillar of the rule of law itself.”[17] And perhaps most importantly, the rule of law requires that “ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.”[18]

IV.

Religious Freedom and Other Essential Freedoms

Supported and sustained by the rule of law, religious freedom is foundational to numerous other cherished rights. The support religious freedom gives other fundamental rights was noted by Lord Acton, who insightfully wrote that “religious liberty is the generating principle of civil [liberty], and that civil liberty is the necessary condition of religious [liberty].”^[19] More recently, British philosopher Michael Oakeshott explained that the freedom we experience and value “lies in a coherence of mutually supporting liberties, each of which amplifies the whole and none of which stands alone.”[20] Foremost among these is religious liberty.

Religious freedom erects an effective shield for other freedoms. Religious freedom presumes there are important areas of life beyond the legitimate power of government. A government powerless to compel religious belief or exercise will be hard pressed to compel orthodoxy in other areas of life. Religious freedom protects the freedom of individual belief and expression in all areas of human activity. This enables people to develop and express their own opinions in matters of philosophy, politics, business, literature, art, science, and other areas, which naturally leads to social and political diversity.

Let me highlight a few ways that religious freedom is both foundational to other basic freedoms and also in turn supported by those freedoms.

Church autonomy, freedom of association, and mediating institutions. Let’s start with freedom of association—the right to freely assemble with friends and associates and to form voluntary, self-governing associations centered on shared values. This liberty is basic to any free and just society. It is also a direct offshoot of important religious freedoms.

Among the most significant aspects of religious freedom is what some scholars call “church autonomy.” By this I mean the autonomy of a church or other religious organization to determine its own theology and criteria for priesthood; to establish standards for membership, discipline, and removal; and to own and manage sacred properties.

Shielding churches and other religious organizations from the full brunt of government power is a principle at least as old as Magna Carta, which guaranteed that “the English church shall be free,” meaning that the monarch would not interfere in the church’s internal affairs.

This ancient principle of church autonomy is alive and well in Anglo-American law today. Indeed, the law of most Western nations recognizes some form of church autonomy. For example, in the 19th century the U.S. Supreme Court recognized that churches have autonomy to decide ecclesiastical issues free from governmental interference. The Court stated: “The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned.”[21] Church autonomy principles ensure that churches and other religious organizations have the authority to determine who is qualified to be a member[22] and that ecclesiastical authorities have the last word on questions of doctrine, priesthood, sacraments, worship, church administration, and ecclesiastical discipline.[23]

In keeping with this long tradition of respecting the autonomy of churches, a 2012 decision by the U.S. Supreme Court unanimously reaffirmed the right of religious organizations to govern their ecclesiastical affairs, ruling that the national government could not force a church-owned school to reinstate a teacher who was a “commissioned minister” in the church. The Court concluded that “it is impermissible for the government to contradict a church’s determination of who can act as its ministers”—even when that determination arguably conflicts with laws against discrimination.[24]

The laws of the U.K. and Ireland likewise have important limitations on the power of government to meddle in the internal ecclesiastical affairs of religious organizations. Thanks to those protections, our Church is perfectly free in those nations to define its doctrine and determine who may serve as bishop or stake president or who may take the sacrament or enter our temples.

Safeguarding the autonomy of churches and other religious organizations enhances freedom for everyone by establishing a right to freely associate in voluntary associations. For if that right must be recognized for nonprofit religious organizations, then equality and fairness dictate that a substantially similar right must be recognized to protect the associational freedom of nonprofit secular organizations.

More subtly but equally important, protecting church autonomy also enhances freedom by dispersing power. Religious organizations stand as bulwarks of freedom between the state and the unprotected individual.

Churches, like families, schools, and other voluntary associations, are often called “mediating institutions,” meaning, as Elder Bruce Hafen once put it, that they “[mediate] between the individual and the megastructures of contemporary government.”^[25] In their relationships with individual members, churches act as competing institutions of authority. By asserting their institutional prerogatives, churches ensure that the state does not exercise a monopoly on legitimate authority over the lives of individual citizens. In this respect, churches buffer and shield the individual from the power of the state and from complete dependency on its assistance.

For example, religious institutions offer charitable support for their members—and humanitarian aid for those in need—free of the entangling bonds of government authority or dependence. Long before there was a welfare state there were churches and voluntary associations. In fact, it was a voluntary association—the Society for Effecting the Abolition of Slavery—through which William Wilberforce and Thomas Clarkson worked to outlaw the slave trade in the British Empire.[26] Today, much of the social welfare delivered to vulnerable communities comes from the freewill offerings of churches and religious people. They give food to the hungry, shelter to the homeless, and jobs to the unemployed. A study released by Cinnamon Network, a religious charity, estimates that in 2015 religious organizations and charities provided goods and services worth over £3 billion and contributing over 288 million volunteer hours to assist 47 million beneficiaries in the UK.[27] Truly an impressive record of charity in action! Another report notes that the charitable works facilitate associations between people of diverse faiths. “Faith can act as a common denominator between organisations. Although rituals of worship and beliefs may be different between faiths, values are often shared, along with a dedication to the marginalised and vulnerable in society.”[28]

In short, the hard-won right of churches to autonomy in their ecclesiastical affairs has helped lay the groundwork for the right of all people—religious or not—freely to form and govern numerous social and cultural institutions that enrich our societies in so many ways.

Religious freedom and the rights of free speech, free expression, freedom of the press, and freedom to peaceably assemble. Religious freedom also supports other critical rights, such as free speech and expression, freedom of the press, and freedom to assemble peaceably. Why? Because guaranteeing meaningful religious freedom requires not only express protections for religious exercise within religious organizations but also robust protections for the right of believers to live openly and with dignity as equal citizens and participants in the life of the community. So while targeted legal protections for religious freedom are vital, in its fullest sense religious freedom requires legal protections for a range of rights. I have previously spoken about the interconnectedness of religious rights with a host of other vital rights: “We use our freedom of religion and belief to establish our core convictions, without which all other human rights would be meaningless. How can we claim the freedom of speech without being able to say what we truly believe? How can we claim the freedom of assembly unless we can gather with others who share our ideals? How can we enjoy freedom of the press unless we can publicly print or post who we really are?”[29]

These “mutually supporting liberties,”[30] as Oakeshott called them, mean that religious freedom is not just a benefit for religious people and institutions alone. Religious liberty often acts as a catalyst in protecting many other rights. Partly that is so because each fundamental right touches on some aspect of religious freedom. But it is likewise true that protections for religious freedom coincide with protections for other rights. Courts have implicitly recognized that rights must protect both religious believers and nonbelievers. The freedom of speech, for instance, embraces the right to speak about God but also to speak about one’s personal opinions on matters of politics, art, literature, history, morality, or virtually any other topic.

Lord Acton’s point about the generative power of religious freedom is borne out in history. Milton’s defense of freedom of the press had as much to do with the freedom to print religious tracts as political ones.[31] And William Penn’s prosecution for preaching on Gracechurch Street in London contributed much to the rights of free speech and peaceable assembly.[32] One historian records that “every Quaker in America knew of the ordeal suffered by the founder of Pennsylvania and its bearing on freedom of religion, of speech, and the right of assembly. Every American lawyer with a practice in the appellate courts was familiar with it.”[33]

This is all to say that our basic freedoms tend to rise and fall together. Courts that protect religious freedom tend to protect the freedom of speech and press, while courts that allow the government to infringe religious freedom tend to allow the infringement of other basic rights. I think, in particular, of the contrast in American history between World War I, when laws were upheld prohibiting dissent, and periods of heightened protection for speech and press that coincided with vigorous protections for religious freedom. Heightened protection for religious freedom in the United States during the 1970s tended to accompany heightened protections for other kinds of freedom—such as the freedom of conscientious objection during wartime, which protected sincere pacifists with no connection to a formal religious denomination or belief system during the Vietnam War.^[34]

Protecting religious freedom is fundamental to protecting other personal rights because conflicts over religious freedom are the focal point where the state either safeguards or invades the space necessary for liberty. If the state can be convinced (or compelled) to leave space for religious dissent, it will almost surely leave space for other forms of dissent. If the state does not respect religious freedom, it is unlikely that it will respect other freedoms.

Religious freedom and the morality of freedom. A legal regime that respects religious freedom also affirms the moral basis for all human rights and thereby makes all rights more secure. The very idea of human rights rests on a religious conception of human nature. American President Calvin Coolidge explained that freedom of religion and other fundamental rights arise from “the recognition of the dignity and worth of the individual, because of his possession of those qualities which are revealed to us by religion. It is this conception alone which warrants the assertion of the universal right to freedom.”^[35] The Bible teaches that each person has an innate dignity because God created human beings in His image—“male and female created he them.”[36] Modern revelation supplements that truth by declaring that “the worth of souls is great in the sight of God.”[37] Coolidge was right, then, in saying that “equality, liberty, popular sovereignty, [and] the rights of man … have their source and their roots in the religious convictions.”[38] Our essential rights are inalienable because they are the gifts of God. No state could grant them. Accepting that fundamental truth lays the foundation for all other freedoms. And the first recognition of that truth—historically and morally—has come from acknowledging that the state must respect religious conscience.

V.

Religious Freedom and Civic Virtue

My final point is that religious freedom is critical because it allows religion to inculcate the virtues and habits necessary for a free society.

French political scientist Alexis de Tocqueville perceived this critical point in the early years of the American Republic. While visiting America during the 1830s to better understand what was then still a precarious experiment in democracy, he reported that Americans considered religion indispensable to freedom. “I stop the first American whom I meet,” Tocqueville wrote, “and ask him if he thinks religion is useful for the stability and the good order of society; he immediately responds that a civilized society, but above all a free society, cannot subsist without religion. Respect for religion, in his eyes, is the greatest guarantee of the stability of the state and the security of individuals.”[39]

That is a profound insight. Freedom requires a people capable of living freely and in peace with each other. Without virtuous citizens, the coercive powers of government must be exercised to keep the peace. Burke famously stated that “men are qualified for civil liberty in exact proportion to their disposition to put moral chains on their own appetites. … Society cannot exist unless a controlling power upon will and appetite be placed somewhere, and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things, that men of intemperate minds cannot be free. Their passions forge their fetters.”[40]

True religion encourages the virtues and habits of good citizenship that are necessary for a free society. Honesty. Duty. Moral self-discipline. Sacrifice for family and country. Compassion and service toward others. Civic engagement.

A society where these civic virtues prevail has a robust version of what Lord Moulton called the “realm of the unenforceable.”[41] By this he meant those areas of life governed by a self-enforced code of conduct that “signifies the doing [of] that which you should do although you are not obliged to do it.”[42] Harvard business professor and former Seventy Clayton Christensen put the point this way:

“The ethic of obedience to the unenforceable was established by vibrant religions, and some of these teachings have become a part of our culture. As a result, today there are many Americans [and I would add, many in the UK and Ireland] who are not religious, who still voluntarily obey the law, comply with contracts, value honesty and integrity and respect other people's rights and property. This is because certain religious teachings have become embedded in our culture.”[43]

Our cherished rights and freedoms—including religious freedom—are rooted in a specific religious, moral, and political tradition. Oakeshott suggested that without that tradition such rights become unrecognizable and ultimately unsustainable:

“Moral ideals [and I would add, basic human rights] are a sediment; they have significance only so long as they are suspended in a religious or social tradition, so long as they belong to a religious or a social life. The predicament of our time is that the Rationalists have been at work so long on their project of drawing off the liquid in which our moral ideals were suspended (and pouring it away as worthless) that we are left only with the dry and gritty residue which chokes us as we try to take it down.”[44]

Rabbi Lord Jonathan Sacks echoed that insight when he wrote that “we are in grave danger of forgetting the moral basis of society. It is all too easy to move from claiming, ‘I have a right to do this,’ to saying, ‘I am right to do this’; that whatever is not forbidden by law is morally permissible and therefore morally reasonable.”[45] What is merely legal cannot define what is moral, or we will lose the moral and religious tradition by which all our freedoms are preserved. Protecting religious freedom ensures that religion can continue to play its essential role of inculcating the virtues that we all need to live freely, and without which our freedoms cannot survive.

What can we do to cultivate a society where religion is respected and the rule of law remains a reality? I believe that it is the “small and simple things”[46] that matter most. We must live by the truths that we profess. We must be better husbands and wives, fathers and mothers. We must be kinder neighbors and coworkers. We must be better informed about the world around us and take a more active role in our communities as citizens. We must teach principles of gospel living to our children. And we must defend what is right—including freedom of religion and the rule of law.

VI.

Conclusion

In closing, I want to reiterate that religious freedom undergirds other freedoms. Religious freedom, along with other “just and holy principles,” such as the rule of law, were established by God “for the rights and protection of all flesh.”[47] These principles exist for our good as a glorious reflection of the reality that, as the Book of Mormon states, God “loveth his children.”[48]

Thank you.