Wednesday’s ruling was a significant and welcome re-affirmation of a principle that, we should hope, is firmly entrenched in American constitutional law.
Secular liberals and conservative opponents of political liberalism both see religious liberty as the product of the Reformation and the Enlightenment. According to the secular liberal narrative, religion—at least Christianity—is intolerant and prone to violence. Indeed, the modern state became the schoolmaster of faith precisely because its adherents had become so unruly and violent during the Reformation and subsequent wars of religion. Once religious pluralism became a fact and the state held the social monopoly on violence, European societies learned to embrace religious tolerance. Religious liberty and liberty of conscience came from enlightened reactions to religion, not religion itself.
Conservative critics of religious liberty agree, but see religious liberty’s Enlightenment roots as evidence of its cheapening of religion. They claim that religious liberty is an impossible attempt to be neutral about the highest human goods that ought to order a society; it is a cloak for religious or anti-religious commitments, or relativism.
Religious Liberty and Faith
Robert Louis Wilken argues directly against the secular liberal critique and by implication against the conservative illiberal one. In Liberty in the Things of God: The Christian Origins of Religious Freedom, the eminent historian of Christianity shows how the idea of religious liberty present in the earliest fathers of the Church was employed in the stormy debates of the Reformation and the American founding. Wilken argues that religious liberty’s critics get the story backwards: Religious liberty is the fruit of Christianity, not the Enlightenment or later secular thought, and was present in Christian thought from the very beginning. Over time, Christian thinkers came to consider religious freedom or liberty of conscience not only a matter of toleration (a policy of restraint toward objectionable beliefs) or an accommodation from ruling authorities, but “a natural right that belongs to all human beings.”
Wilken’s historical essay focuses on a collection of themes. First, religious faith is an inward disposition of the mind and heart, accountable to God alone, and for that reason cannot be coerced. Second, “conscience is a form of spiritual knowledge that carries an obligation to act.” And third, human society is governed by two powers, religious and political. He also argues that from the beginning, proponents of religious liberty advocated for the rights of communities to practice their faith publicly as well as the liberty of the individual conscience. Religious liberty was never only a private, individual freedom focused on belief, but a communal one focused on action.
Public practice was the original catalyst of the Christian argument for religious liberty. In the ancient world, there was no distinction between the secular or civic and the sacred. When Christians refused to participate in civic religious practices, they were prosecuted as enemies of the state. In response, they penned apologies in defense of their faith. The Romans wanted all citizens to perform the same religious practices, regardless of their personal convictions. In his Apology, the second-century writer Tertullian argued that religion arose from inner conviction and that different convictions would lead to the worship of different gods.
Persecution would foster not right religion, but irreligion, which was worse than idolatry. Let each man worship as he pleases, Tertullian wrote: “See that you do not end up fostering irreligion by taking away freedom of religion [libertas religionis] and forbid free choice with respect to divine matters, so that I am not allowed to worship what I wish, but am forced to worship what I do not wish. Not even a human being would like to be honored unwillingly.” This is the first usage of the phrase “freedom of religion” in the history of Western civilization.
A decade later, Scapula, the Roman proconsul in North Africa, ordered that Christians be suppressed. Tertullian wrote a short tract in response, arguing that the gods do not desire offerings from the unwilling. Lack of conviction makes religious practice vacuous. Neither differing convictions nor differing practices harm other members of society: “It is only just and a privilege inherent in human nature [humani iuris et naturalis potestatis] that every person should be able to worship according to his own convictions; the religious practice of one person neither harms or helps another. It is not part of religion to coerce religious practice, for it is by choice and not coercion that we should be led to religion.”
The Birth of Conscience
Tertullian also argues that Christians cannot participate in Roman religious rites because of “our conscience.” The idea of conscience came into Christian thought from Paul’s argument that while the Gentiles do not have the Jewish law, there is a law written in their hearts and their conscience bears witness to it, accusing or excusing their deeds (Romans 2:15). In his essay The Testimony of the Soul, Wilken writes, Tertullian calls conscience “‘the knowledge of the soul,’ an inner certainty that comes not from oneself but from God. . . . The testimony of conscience is not about being true to oneself, but about obedience to the voice of God.” Liberty of conscience gives the freedom necessary for following God’s commands.
Some decades later, Lactantius wrote the Divine Institutes, a major exposition of Christian teaching in light of philosophical opposition to Christianity and the violence of the Diocletian persecution. He notes that the Romans compel Christians to observe their public rites in a manner contrary to the “law of humanity and divine justice.” Instead of persuading by argument or appeal to divine revelation, they use violence.
However, Lactantius argues, “religion cannot be imposed by force.” The will can be moved “only by words, not by blows.” Roman religion is only about external acts; real religion is a matter of convictions about God and a life of virtue. Wilken concludes: “In a nice flourish, Lactantius wrote that the hearts of men can be won not by ‘killing’ but by ‘dying.’ Only persuasion can lead free men to God.” These arguments inspired the Edict of Milan in 313, which granted freedom to “all men to follow whatever religion each one wishes.”
After the conversion of Constantine, religion still held society together—but now the Christians were in charge. Constantine established religious liberty for all citizens of the empire, but the establishment of Christianity meant the diminishment of other sects over time. For example, Augustine originally opposed using force against Donatist schismatics, arguing that “no one should be forced to the unity of Christ.” But when they began to assault Catholic bishops, Augustine concluded that only force could constrain the Donatists. For the first time, Wilken writes, “a prominent bishop offered a theological rationale for repressive measures by the state against a schismatic group.”
Still, most Christian leaders continued to teach that faith must be freely adopted. Persecution of the Jews became more frequent, but popes from Gregory the Great to Innocent III inveighed against forced baptisms. Charlemagne made the refusal to be baptized a capital offense among the conquered Saxons, but his teacher Alcuin of York protested: “Faith arises from the will, not from compulsion. . . . You can persuade a man to believe, but you cannot force him. You may even be able to force him to be baptized, but this will not instill the faith within him.” And later medieval authors such as Thomas Aquinas and Peter John Olivi argued that obedience to conscience could trump obedience to lawful authority.
The religious conflicts of the Reformation called into question the idea that religious unity was essential for public order and concord. In France, Michel de l’Hôpital argued that the Huguenots’ theological heresy did not constitute treason. It was the business of the crown to maintain the realm’s order, not its faith. Three decades later, the Edict of Nantes in 1598 acknowledged that religious pluralism might be a permanent feature of Christian societies.
Appeals to conscience became more pronounced as the religious divisions in societies increased. As German cities become Lutheran, religious communities become contested and persecuted. Nuns defended themselves and their way of life with appeals to conscience. Caritas Pirckheimer, abbess of a Franciscan convent in Nuremburg, wrote that the City Council “knew very well that we had always obeyed them before in all temporal things. But [in] what concerned our soul, we could follow nothing but our own conscience.”
During the Dutch Revolt against Spanish authority, Dutch authors argued that liberty of conscience meant public free exercise as well as private belief. They also for the first time argued that freedom of conscience is a natural right in the contemporary sense. This is clearest in an anonymous treatise entitled Good Admonition to the Good Citizens of Brussels (1579):
This freedom does not have its origin in the Pacification of Ghent, but properly belongs to an individual by nature and by natural right because religion is a bond that a person has with God. It is for this reason that he owes an account to no one besides God alone. This whole thing is well known and requires no proof. If people did not have the freedom to accept and hold such religion as they deem good according to conscience, then the Christian religion could never have gotten its start. On the contrary, our parents would have had to stay in the heathen religion which they had once accepted without ever being able to change it.
These ideas made their way across the Atlantic to the American colonies, where they influenced Philip Furneaux, James Madison, and Thomas Jefferson. In 1814 Jefferson purchased a copy of Tertullian, now in the Library of Congress. When Wilken opened it to Ad Scapulam’s passage on religious liberty, he found a large X marked in the margin.
Wilken ably proves his argument for the Christian roots of religious liberty against its secular critics. But since he began his research, more Christians have come to argue that society needs the unity of religious establishment and coercive force to direct its members to the right goods. They see the separation of religious and political power as a false aspect of the liberal political order. Yes, they would argue, Catholics like Thomas More appealed to conscience against swearing to the Act of Succession, but he grounded his conscience on the “general consail of Christendome.”
Worship Freely Given
Yes, John Calvin argued that in temporal matters Christians are subject to civil authority and only subject to God in matters of faith. But he came to believe that a well-ordered society required laws on religion: “No polity can be successfully established unless piety is its first cause.” The American Puritan John Cotton would argue that “it is not lawful to persecute any for Conscience sake”—as long as that conscience is “rightly informed.” The Indians could not be compelled to embrace the true faith, but the baptized could be compelled to the point of death to follow it. Error had no rights, whether it came from the pope or Roger Williams. Tertullian’s dictum about one man’s religion not harming another could only be true of private belief, not public practice.
Wilken offers no direct argument against Christian critiques of religious liberty, but such an argument is implicit in his work. Like other aspects of the liberal order, religious liberty and freedom of conscience exist in the West because Christians developed them from the truths they held. Those concepts should be understood rightly, not discarded. Perhaps our society could use a more robust religious foundation, but respect for human dignity and the worship the Christian God desires require religious liberty.
Physically compelling conversion or obedience to religious authorities is conducive to irreligion, not right religion. Tertullian and Lactantius were right on this question; John Cotton, John Calvin, and so many of their medieval forebears were wrong.