Religious freedom has often been referred to as the “first freedom” in America’s constitutional order, but some scholars have argued that liberalism requires that religious freedom not be treated as special or unique in the pantheon of human rights. In this post series, scholars and individuals from all different disciplines and faiths try to define religious freedom and explain why it is a right of particular importance.

By: Nicholas Wolterstorff

When thinking about the nature and importance of religious freedom, it’s important to keep in mind the distinction between the civil right to religious freedom and the natural human right to religious freedom; considerable confusion is engendered in discussions on religious freedom by failure to keep the distinction in mind.

The first amendment to the US Constitution declares, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Article 18 of the Universal Declaration of Human Rights (UDHR) declares, “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 former of these declarations stipulates that American citizens shall have the civil right to freedom of religion; the latter asserts that everyone has the natural human right to freedom of religion.

There are a number of reasons why it is important to keep in mind the distinction between the civil right to freedom of religion and the natural human right. If one believes that there is a natural human right to freedom of religion, then one will believe that citizens should enjoy the corresponding civil right as well. The converse does not hold. One might believe that the citizens of a certain state should enjoy the civil right to freedom of religion while disagreeing with the UDHR on its claim that there is a natural right to freedom of religion; one might have consequentialist reasons for holding that the state in question should grant to its citizens the civil right to freedom of religion.

Another reason for keeping the distinction clearly in mind is the following: if one believes that there is a natural human right to freedom of religion, then one will regard the civil right to freedom of religion that some state grants its citizens as a positivizing of the natural right. Different states positivize the natural right in somewhat different ways, however. There are at least two reasons for this. One reason is that the particularities of religion in a given society lead the laws and courts of that society to make somewhat different determinations concerning borderline applications of the terms “religion,” “exercise,” and “freedom” from how the laws and courts in another society make those determinations. Another reason is that the civil right to freedom of religion is never understood as an absolute right, nor (in my judgment) is the natural human right an absolute right. The civil right to freedom of religion is what philosophers call a prima facie right; it can be outweighed in a given case by other more weighty rights to health, security, and order. Since different societies make somewhat different judgments on these matters, the specific contour of the civil right to freedom of religion in the United States is somewhat different from what it is, say, in France.

One sometimes hears the argument that since each society has its own distinct contour of the civil right to freedom of religion, there is no such thing as the natural human right to freedom of religion. The argument is fallacious. If there is indeed the natural human right to freedom of religion, one should expect it to be positivized somewhat differently in different societies, for the reasons mentioned.

But why hold that there is a natural human right to freedom of religion? Around the time of the founding of the United States, it was commonly said that human beings have a (natural) duty to worship God in accord with their consciences; it is for that reason that they should have the civil right to do so. The line of thought underlying the UN documents is different. The right to religious freedom, like all the other rights the documents mention, is said to be grounded in the dignity of the rights-bearer. To deprive a person of freedom of religion is to treat the person in way that does not befit his or her dignity. The UN documents make no attempt to answer the obvious next question: what is it about human beings that gives them the dignity that grounds the right to religious freedom? I will have to postpone answering that question to another occasion. 

Nicholas Wolterstorff is the Noah Porter Professor of Philosophy Emeritus at Yale University and currently a senior research fellow at the Institute for Advanced Studies in Culture at the University of Virginia.

This piece was originally authored on March 31, 2014 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affairs.