2 Evolution of the Right to Freedom of Religion

Prof. Abhishek Sudhir

1. Learning Outcomes

The purpose of this chapter is:

• To give the student an understanding of how the right to freedom of religion and conscience has evolved over several centuries of human history;
• To help the students understand the manner in which the right to freedom of conscience and religion has developed gradually through political and apolitical discourses.

2. Introduction

During the course of human history, several wars have been waged, and continue to be waged, over the right of a group to freely profess its own religion. Nevertheless, the right of an individual to freely practice his or her religion has been given overt recognition over the centuries by State actors. Keeping this in mind, this module will chart the developments of the right to freedom of religion and conscience from the rule of Emperor Asoka to the First Amendment to the Constitution of the United States which forms the basis of a modern secular State.

3. Developments Pre-dating the American Revolution

3.1 Edicts of Asoka and Torda

The right to practice one’s religion has its origins on Indian soil, when Emperor Asoka, the ruler of the Mauryan Empire, had inscriptions carved on boulders and cave walls during his reign from 269 B.C. to 232 B.C. These inscriptions came to be known as the “Edicts of Asoka”, and it is in these inscriptions that one can find tangible evidence of Asoka’s efforts to promote religious tolerance.

After watching the bloodshed at battle of the Kalinga, Asoka converted to Buddhism and spent much of his life in propagation of the same. Asoka however was not prejudiced towards any religion and did not show any signs of intolerance towards non-Buddhists.

His edicts discussed the ideas of state morality, and private or individual morality. The former was based on his administration and what he thought would be befitting towards a more spiritual society while the latter being what he thought best for individuals to practice and with both of them inculcating Buddhist values of “compassion, moderation, tolerance and respect for all life ”. The duties of state were expanded to include in them the protection of all religions and an obligation to promote cordial relations between different religious groups. The process was institutionalized by setting up a department of religious affairs which looked after the affairs of various religious bodies and to encourage the practice of religion.

One of the most important Edicts of Asoka was Edict No. XII which went as follows:

“…avoid the extolling of one’s own religion to the decrying of the religion of another, or speaking lightly of it without occasion or relevance. As proper occasions arise, persons of other religions should also be honoured suitably. Acting in this manner, one certainly exalts one’s own religionists and also helps persons of other religions. Acting in a contrary manner, one injures one’s own religion and also does disservice to the religion of others. One who reverences one’s own religion and disparages that of another from devotion to one’s own religion and seeks to glorify it over all other religions does injure one’s own religion….”

In the western world, the Edict of Torda is celebrated as the first European declaration of expansive religious toleration. The first Edict was issue by King John Sigismund Zapolya of Hungary and was as follows:

“…in every place the preachers shall preach and explain the Gospel each according to his understanding of it, and if the congregation like it, well. If not, no one shall compel them for their souls would not be satisfied, but they shall be permitted to keep a preacher whose teaching they approve. Therefore none of the superintendents or others shall abuse the preachers, no one shall be reviled for his religion by anyone, according to the previous statutes, and it is not permitted that anyone should threaten anyone else by imprisonment or by removal from his post for his teaching.”

In 1557, King Zapolya’s wife Queen Isabella also passed two further edicts of toleration and officially recognized the two sects of Christianity Catholicism and Lutheranism. The liberty was extended to all as long as it did not interfere with liberty of other individuals and even instructed for a national synod to be convened as to reduce religious differences. Her son further expanded the liberty to include Calvinists and Unitarians (Christian sects) as well.

It is pertinent to note here only the Christian religions were officially recognized and other religions such as Eastern Orthodoxy, Judaism, and Armenianism were tolerated but not officially recognized. This is in contrast to Asoka’s edicts where Asoka had put all religions on an equal footing and not just the different sects of Buddhism.

3.2 Union of Utrecht and General Charter of Jewish Liberties

The Republic of United Netherlands was founded upon the treaty of Union of Utrecht, 1579. The treaty among other things provided the citizenry the right to profess their religious beliefs and a freedom from inquisition. However, this freedom was only limited to private practice of religion and right to public worship of different religious groups was not guaranteed under the treaty. The treaty nonetheless helped in creating an atmosphere of tolerance where different religious groups could coexist peacefully.

Another milestone with regard to freedom of religion was seen in Poland in the form of the General Charter of Jewish Liberties also known as Statute of Kalisz. The statute was promulgated in 1204 by the Duke of Greater Poland Boleslaus the Pious, which among other things granted exclusive jurisdiction over Jewish affairs to Jewish courts.

The statute did away with limit on property which a Jew could hold and also removed restrictions on occupations which they could practice. It also provided them the right to travel, to keep what they inherited, and conduct business including money lending. Jewish oaths were made admissible as evidence and the testimony of a Christian against a Jew was made admissible only if corroborated by a Jewish witness. Places of importance to Jews such as synagogues, Jewish cemeteries and schools were protected and people were forbidden from attacking them. Most importantly, Jewish children could no longer be forcibly baptized. The statute went a step further and rather than providing negative rights also imposed an obligation on Christian “neighbours” to help a Jewish person if he was attacked, failing which they would have to pay a fine.

3.2 Developments in the United States of America

3.2.1 Bushel’s Case

The Bushel case is an English case in which William Penn and William Mead were charged with unlawful assembly under the Conventicle Act, which forbade religious assemblies of more than five people outside the auspices of the Church of England .The jury refused to convict the accused considering the Act to be bad in law. This case led to William Penn becoming an advocate of religious freedom. His later work ‘The Great Case of Liberty of Conscience’, published in 1670 promoted religious freedom and harmony in his American colonies. He also promulgated a Charter of Privileges in his colonies which protected the religious profession of all people belonging to any religion.

Penn was also the founder of the Pennsylvania colony in America and due to his religious convictions, his strong political views with regard to religious freedom and in order to attract settlers to his colony, he promised people religious freedom not limited to Quakers (his own religion) but to other religious minorities as well. This was the first time that religious freedom was granted in an American colony.

3.2.2 The Maryland Toleration Act

The Maryland Toleration Act of 1649 extended the scope of religious freedom to Trinitarian Christians in Maryland to worship in public. The act is notable for using the phrase “free exercise thereof” which was later replicated in the First Amendment to American Constitution. Cecilius Calvert, the founder of Maryland colony was a Catholic at a time when England was dominated by the Protestant Anglican Church. He wanted to turn Maryland into a place of refuge for Catholics fleeing persecution from England. However, by the time act was passed, the population of Maryland was more Anglican than Catholic and the Act came to reflect Anglican tolerance for Catholics rather than other way round.

The text of the relevant clause was as follows:

“…[N]o person or persons whatsoever within this Province, or the islands, ports, harbors, creeks, or havens thereunto belonging professing to believe in Jesus Christ, shall from henceforth be any ways troubled, molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof.”

3.2.3 Virginia Statute for Religious Freedom

Thomas Jefferson, a founding father of the United States of America, and the original author of the Declaration of Independence, wanted to incorporate the principles of freedom, equality, and self-government in the laws of Virginia that he was tasked with drafting. His primary agenda was to overthrow established religion as it led to persecution of those belonging to minority religions. He proposed to do so by providing citizen the freedom of religious conscience and opinion and the separation of church and state.

In adherence to these two principles, he drafted the Virginia statute in 1777 in his capacity as a member of the Virginia State legislature and it finally became law in 1786. The preamble spoke of how “to compel a man to furnish contributions of money for the propagation of opinions, which he disbelieves, is sinful and tyrannical.” It argued that civil rights have no dependence on people’s religious opinions any more than people’s opinions on physics or geometry.

The enacting clause declared that no man shall be compelled to frequent or support any worship or suffer in any manner on account of his religious belief. It further provided that citizens are free to hold and exercise their opinions in matters of religion without affecting their civil capacities. In the final paragraph Jefferson declared the act to be irrevocable and any attempt to repeal or narrow the operation of the act to would be an infringement of the natural rights of human beings.

Thus, the Virginia Statute guaranteed every individual’s right to freedom of religion, thought and conscience with the following declaration:

“…no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion…”

3.2.4 – The First Amendment to the U.S. Constitution

The First amendment to the American Constitution is the most significant legislative instrument with regard to the development of religious freedom in the modern world of nation-states. It creates two religious rights; one is the ‘free exercise clause’ and other is in the form of ‘the establishment clause’.

The free exercise clause gives every citizen the right to hold whatever religious beliefs he or she chooses, and to exercise that belief by attending religious services, praying in public or in private, or by propagating these religious views. The establishment clause erects “a wall of separation between church and state” by prohibiting the Legislature from passing laws that will establish an official religion or preferring one religion over another.

The text of the First Amendment is as follows:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Summary

This module has demonstrated the historical development of the right to freedom of religion. Beginning with the Edicts of Asoka, and concluding with the First Amendment to the U.S. Constitution, one can see how the struggle to establish a wall of separation between religion and State has been an age-old one.

Reference

• Berman, Harold J. “Religion and Law: The First Amendment in Historical Perspective.” Emory LJ 35 (1986): 777.
• Brackney, William H., ed. Human Rights and the World’s Major Religions: Condensed and Updated Edition: Condensed and Updated Edition. ABC-CLIO, 2013.
• Gilmartin, David, and Bruce B. Lawrence, eds. Beyond Turk and Hindu: Rethinking Religious Identities in Islamicate South Asia. University Press of Florida, 2000.
• Modras, Ronald. The Catholic church and antisemitism: Poland, 1933-1939. Vol. 1. Psychology Press, 2000.
• Peterson, Merrill D., and Robert C. Vaughan, eds. The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History. Vol. 1. Cambridge University Press, 1988.