Do we assume America is a free country? Do we assume religious freedom is guaranteed in America? Most of us learned this in school and have taken it for granted ever since. In other countries people might have to worry about whether and how they can practice their religion. Not here. This is America, after all.
Why do we think this way? In part because our law justifies it.
The founders and framers of our system of government met in Philadelphia in 1787 to draft the Constitution, to delineate and circumscribe the powers of government. They then submitted the Constitution to the people to ratify. But many people all over the country worried that the document they came up with didn’t do enough to protect our rights and liberties. And so one of the first things the First Congress did was to propose a Bill of Rights, which became the first ten amendments to the Constitution.
Not by accident did the First Amendment begin with religious freedom, protecting it from infringement in two ways: first, by prohibiting an official, governmentally sponsored religion (“Congress shall make no law respecting an establishment of religion’) and second, by protecting the people in their free exercise of religion (“or prohibiting the free exercise thereof.”).
What do these clauses mean? They don’t mean that Americans’ right to religious freedom is a right to believe whatever we want to believe. Even North Koreans have that right, because as a practical matter no one can force someone to believe or not to believe something. The free exercise of religion means the ability to act on those beliefs. To practice our religion in private or in public. To proclaim our religion to others, if we wish. To spend our money in furtherance of our own religion, and not in furtherance of anyone else’s. To promote what we think is moral, and not to promote anything we think is immoral. These are all necessary consequences of the idea of religious freedom.
But law without practice is a dead letter. Our faith in our American freedoms is also tied to our history.
The first English-speaking Catholics to come to these shores, led by Cecil Calvert (Lord Baltimore) in 1634, practiced religious toleration, a remarkable policy for its day. The general idea then in vogue was to create a homogeneous community where everyone was on the same page about everything. Catholic countries were supposed to be Catholic. Protestant countries (and colonies) were supposed to be Protestant.
Lord Baltimore bucked the trend. In 1649, the Maryland General Assembly enacted an Act of Religious Toleration, which promised to every self-described Christian that he or she should not “be troubled, molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof … nor any way compelled to the belief or exercise of any other religion against his or her consent.”
Roger Williams, the founder of Rhode Island who arrived at Puritan Boston in 1631, would go even further. Driven from the Massachusetts Bay Colony for his religious dissent, his colony would allow freedom of religion to everyone: Protestants, Quakers, Catholics, Jews, and Muslims. In 1658, the Rhode Island General Assembly reminded the other colonies in New England that “freedom of different consciences, to be protected from enforcements, was the principal ground of our Charter … which freedom we still prize as the greatest happiness that men can possess in this world.”
Abraham Lincoln had occasion to join his voice to the cause of religious freedom in the 1840s, a time when nativism was exhibiting its persistent anti-Catholic strain: “The guarantee of the rights of conscience, as found in our Constitution, is most sacred and inviolable, and one that belongs no less to the Catholic, than to the Protestant, and … all attempts to abridge or interfere with these rights, either of Catholic or Protestant, directly or indirectly, have our decided disapprobation, and shall ever have our most effective opposition.”
Shortly after Lincoln’s time, in 1887, James Cardinal Gibbons, Archbishop of Baltimore, went to Rome to take possession of his titular church, Santa Maria in Trastevere. He gave a famous sermon there celebrating the American tradition of separation of church and state. He said, “For myself, as a citizen of the United States, without closing my eyes to our defects as a nation, I proclaim, with a deep sense of pride and gratitude, and in this great capital of Christendom, that I belong to a country where the civil government holds over us the aegis of its protection without interfering in the legitimate exercise of our sublime mission as ministers of the Gospel of Jesus Christ.”
That Church in Rome where Cardinal Gibbons spoke contains the mortal remains of Cardinal Campeggio, a Renaissance prelate who had been sent to England to judge, along with Cardinal Wolsey, the annulment proceeding of Henry VIII against his wife Catherine of Aragon. This reminds us, of course, of the martyrs whose feast we celebrated last week, Saints John Fisher and Thomas More, who both gave their lives to protect the freedom of the Church when the King put himself in place of pope and bishops at the head of the Church in England, something that clearly violated the first article of Magna Carta, “that the English church shall be free, and shall have its rights undiminished and its liberties unimpaired.”
There are lots of moral lessons to be drawn from the story of Henry VIII. As a lawyer, I want to emphasize legal technicalities, and particularly the Magna Carta. Magna Carta guaranteed the rights of the Catholic Church in England. But the chief executive officer of the country tossed it away because he had the will to do so. He had the power to do so largely because not enough people stood up to him. Among those who did, John Fisher was made a cardinal by the pope, but as historians say, his head was off before the hat was on. There were thirteen other bishops in England at the time. Do you remember any of their names? Probably not, because when the winds blew their houses caved in. With the exception of Thomas More, many more lawyers and government officials heard what the lion wanted, and they gave it to him.
This fall we will commemorate the fiftieth anniversary of the opening of Vatican II, arguably the greatest religious event of the last century. In some ways the American contribution to the council is principally to be found in its Declaration on Religious Freedom, the handiwork of the American Jesuit John Courtney Murray, which solemnly affirmed: “the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, nor is anyone to be restrained from acting in accordance with his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.”
Now we are implicated in this battle over the HHS mandate concerning contraceptives, abortion-inducing drugs, and sterilization. It could’ve been another flashpoint. Denmark, for example, has just passed a law requiring the official state Lutheran church to solemnize same-sex weddings. In Ireland, the government is seriously proposing to abolish the centuries-old priest-penitent privilege, thus enabling the government to force priests to violate the sacred seal of confession, something that has been well-settled in the common law since the days of Henry II and St. Thomas Becket. In Nigeria, in what seems like a weekly ritual, Christians are being killed for attending church.
How fortunate we Americans are that we are not encountering any of these obstacles to living in accord with our consciences. Still, the threat to our religious freedom is real. When our government tells us we must pay for acts we believe and know to be immoral for everybody, our situation is comparable to what’s happening in these other places, even if it isn’t precisely similar. So what are we called upon to do?
Of course, we want to render to Caesar the things that are Caesar’s. But we must also render to God the things that are God’s. Conscience, as the voice of God within, is distinctly a resident of Our Father’s house. When the government tries to force conscience to bow to Caesar, we have no choice but to obey God rather than man.
When the authorities in Jerusalem ordered Sts. Peter and John to stop preaching about Jesus, they replied, “Whether it is right in the sight of God for us to obey you rather than God, you be the judges. It is impossible for us not to speak about what we have seen and heard” (Acts 4:19-20).
Note the context and the details. Peter and John didn’t say the authorities were illegitimate. They didn’t tell the authorities what they must believe. They even invite their listeners to judge for themselves according to their own consciences. But they stand their ground on one point: that they must do the will of God, no matter what anyone else—government included—says.
It’s a bit of a Paul Revere moment. Only this time it’s not the British that are coming. It’s Big Brother. Or, if you prefer, think of Rosa Parks. We can go along and sit quietly in the back of the bus, or we can stand up for human dignity and the rights of conscience. When it comes to our precious heritage of religious freedom, we must either use it or lose it.
Dwight Duncan is Professor of Law at the University of Massachusetts School of Law-Dartmouth. This essay was adapted from a speech delivered June 20, 2012, just prior to the Fortnight for Freedom’s beginning, and an abridged version appeared in the Boston Pilot.