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Religious Freedom

The modern era of religious freedom began in the 17th century in 13 American colonies that later rebelled and became the United States of America. In the middle of the 20th century, “freedom of religion or belief” became a human right under international law after the United Nations (UN) was created. It is not a coincidence that generally it has taken secular legal systems to protect what many describe as “the right of conscience,” for religious organizations are generally more concerned with maintaining discipline among their members than with protecting their rights. This entry compares the meaning of religious freedom in the United States as well as in international law. It then examines the development of religious freedom in various religious communities and nations. Finally, the entry considers how the concept of the right of conscience has been shaped by federal legislation and judicial rulings in the United States.

Two Meanings: Religious Freedom in the United States and International Law

In the American tradition, religious freedom is defined by the First Amendment to the Constitution, which begins thus: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Religious freedom in American law has been described as the “separation” of church and state, although this language (attributed to Thomas Jefferson) is not in the Constitution. The First Amendment prohibits the federal government from establishing a particular religious tradition or practice, and after the Civil War the Due Process and Equal Protection Clauses of the Fourteenth Amendment were interpreted as applying to state governments the rights affirmed by the First Amendment.

The “freedoms” of the First Amendment, including the freedom of speech, freedom of the press, and the right to assemble and petition the government, are distinguished from the “civil rights” asserted in other amendments to the Constitution, which reflect the social contract theory of law that justifies governmental authority. The liberty rights of the First Amendment are affirmed as inalienable “natural rights” inherent in our humanity.

Article 18 of the 1948 Universal Declaration of Human Rights (UDHR) reflects this tradition:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

The International Covenant on Civil and Political Rights (ICCPR), which came into force in 1976 as the main treaty implementing the civil and political rights affirmed in the UDHR, asserts in Article 18.1,

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

Article 18.2 states, “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”

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