51 Pages Posted: 17 Nov 2012
Date Written: November 14, 2012
This essay takes a fresh look at the backdrop and structure of toleration and religious freedom in the Peace of Westphalia of 1648 and in the American Constitution, with special focus on a recent unanimous Supreme Court decision of first impression. That important decision protects inner church freedoms in ecclesiastical employment, the so-called "Ministerial Exception" to federal and state employment discrimination laws.
The Westphalian system of sovereign states spread widely after ending the Christian wars in Europe, beginning with the American Declaration of Independence. I ask whether there is any link between provisions for free exercise of religion in the Treaty and the Religion Clauses of the American Constitution and compare them structurally. The roots of religious tolerance worked out in the structure and practice of the Peace of Westphalia might have special relevance within the global community today, when ubiquitous tensions between liberty of conscience, secular ideology, and religion are faced by most sovereign states, certainly in the United States.
Keywords: ministerial exception, Peace of Westphalia, ecclesiastical employment, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, first amendment, freedom of religion
JEL Classification: K10, K19, K30, K39
Suggested Citation: Suggested Citation
Christenson, Gordon A., 'Liberty of the Exercise of Religion' in the Peace of Westphalia (November 14, 2012). Transnational Law & Contemporary Problems, Vol. 21, 2012; U of Cincinnati Public Law Research Paper No. 12-11. Available at SSRN: https://ssrn.com/abstract=2152628