Justifying Religious Freedom: The Western Tradition

86 Pages Posted: 5 Oct 2010

Date Written: 2009

Abstract

Religious freedom is regarded as one of our most precious rights and an essential attribute of a free society. But why? Why does the First Amendment single out religion for special protection in our constitutional system? What, if anything, about religion merits unique constitutional rules? Those in the colonial and founding generations who participated in the theoretical articulation and political achievement of religious freedom believed that religion is special because it entails duties owed to God. Their principal justifications for religious freedom were derived largely from Christian thinkers in early modern England and Europe who presented an array of religiously-based arguments favoring religious toleration, freedom of conscience, and disestablishment. These advocates, in turn, discovered the fundamental ideas of religious toleration and freedom in third and fourth century Christian thought, which provided the first principled justifications for religious toleration that went beyond political expediency. While other arguments, both theoretical and pragmatic, were advanced to support religious freedom, the arguments for religious freedom based on the nature of God and of authentic faith were the predominant principled response to religious intolerance and persecution and the centerpiece of the intellectual offensive against state-imposed religious uniformity.

Modern legal scholarship has broadly covered the events surrounding the ratification of the First Amendment’s Religion Clause, but insufficient attention has been given to the rationales for religious toleration that emerged from sixteenth and seventeenth century England and Europe and formed the historical context and theoretical foundation for the American achievement of religious freedom. Neglect of these reasons has resulted in a Religion Clause jurisprudence that lacks the coherence and resonance of our eighteenth-century commitment of religious freedom.

“Justifying Religious Freedom: The Western Tradition” is the first in a trilogy of articles that examine the justifications on religious grounds for religious freedom’s special status in the First Amendment. The series will trace the religious justifications for religious freedom from their theoretical and historical origins, show their predominance during America’s colonial and founding periods, and explain why they must provide the principal intellectual and rhetorical underpinnings of modern Religion Clause jurisprudence. This article sketches the origins, loss, and recovery of the religious justifications for religious freedom in Western thought through the sixteenth century. Two future articles will complete the series: one will trace the influence of the religious justifications in developing America’s constitutional commitment to religious freedom; the other will examine the weaknesses of modern secular justifications for religious freedom and argue for recovering the religious justifications as the best apologetic for a Religion Clause jurisprudence threatened by both religious majoritarianism and skeptical secularism.

Keywords: religious freedom, religious liberty, Religion Clause, First Amendment

Suggested Citation

Wallace, E. Gregory, Justifying Religious Freedom: The Western Tradition (2009). Penn State Law Review, Vol. 114, No. 2, 2009. Available at SSRN: https://ssrn.com/abstract=1687244

E. Gregory Wallace (Contact Author)

Campbell University School of Law ( email )

225 Hillsborough Street
Raleigh, NC
United States

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