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Religious Freedom Toolkit

Part III | Expanded Analysis

Category D | Human Rights

Topic 22 | Religious freedom as the grandparent of human rights

Religious freedom is sometimes referred to as the grandparent of human rights, reflecting both its early significance as the oldest internationally recognized human right and its relation to other basic human rights, including freedom of speech, freedom of the press, freedom of association, and freedom of assembly. Going back to rights documents as early as the Magna Carta (1215), some form of religious freedom has been recognized as a right. Recognizing religious freedom as a progenitor of the human rights family and preserving family ties to that grandparent right are necessary for all rights in the human rights family to flourish.588

Introduction  

The first phase of the history of religious freedom in the Western world can be traced back to the Peace of Augsburg (1555) and the Peace of Westphalia (1648.)589 These treaties recognized Lutheran and Reformed traditions (in addition to Catholicism) and allowed lay rulers, rather than ecclesiastical leaders, to designate the established churches in their lands.590 Though religious freedom for states and rulers broadened, individual rights remained restricted.591 Christians who did not practice the established religion, for example, were only permitted to practice their own religion privately or publicly within appointed times.592

A second phase led to greater protections for the religious freedom of minorities. The Treaty of Berlin (1878), for example, contained an antidiscrimination provision providing that “difference of religious creeds and confessions shall not be alleged against any person as a ground for exclusion or incapacity.”593

A third phase began with the end of World War II, which was largely fought over assaults on the rights of religious minorities, in particular the Holocaust, which targeted Jews. In response, the international community came together to define and protect a set of internationally recognized, fundamental human rights. The Universal Declaration of Human Rights (UDHR), adopted by the United Nations General Assembly in 1948, recognizes freedom of religion as one of these rights. Article 18 of the UDHR states,

"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."594

In these historical phases and struggles for religious freedom, many freedoms we understand as basic human rights were fought for and won as outgrowths or companions of religious freedom.595 That grandparent right—the right to religious freedom—is at its heart about individual freedom and autonomy, a genetic trait evident in nearly every other recognized human right.

Fundamental rights  

The struggle for several fundamental rights were won as concessions to religious people and religious interests. As a result, rights like freedom of speech, freedom of association, and freedom of assembly share a history with and manifest characteristics of their grandparent right, the right to freedom of religion or belief (FoRB). In the United States, these basic rights are all protected under the First Amendment of the U.S. Constitution.596

Freedom of speech or expression. The Universal Declaration of Human Rights states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”597 One scholar describes the intersection of the right of expression with the right to religious freedom as follows:

"Freedom to communicate is essential to religious life. When this liberty is respected, religious people are free to talk, argue, criticize, preach, publish, and use broadcast and other electronic media. This liberty permits publication of religious books and materials. It also allows for religious outreach and evangelism. This fundamental freedom also protects communications that criticize religious doctrines and activities."598

Even beyond this facilitative relationship between freedom of expression and religious freedom, the former owes much of its development to the latter. Historically, freedom of expression largely grew out of the effort to protect religious dissenters’ rights to express their contrary beliefs.599 The sixteenth-century Reformation, for example, was significant in allowing dissenting voices against the Catholic Church.600 During that formative period, “freedom of expression was treated primarily as an aspect of [the] wider issue . . . of religious toleration.”601

Freedom of the press. Freedoms of religion and of the press share a mutually reinforcing history. Johannes Gutenberg’s development of the movable-type printing press (circa 1440) allowed for a wider and faster dissemination of religious ideas, including the “radical” ideas of the Reformation. The Catholic Church attempted to quell the rise of Protestantism by restricting freedom of the press, and major historical players such as William Tyndale and Martin Luther were persecuted for their attempts to publish the Bible in unapproved languages.602 Nevertheless, the movement toward dissension from established churches and greater religious freedom both supported, and was supported by, a burgeoning free press.603

Freedom of association and assembly. The basic freedoms of association and assembly are inextricably intertwined with freedom of religion. Professor James W. Nickel explains,

"Religious activities are often group activities—ones in which the adherents of a religion gather together for fellowship, study, discussion, and worship. Freedom of association protects these activities. It also protects the liberty to meet with others to form a new congregation, denomination, or religion. The freedom to associate is also freedom to dissociate. This means that individuals are free to quit religious organizations. It also means that religious groups can exclude people from membership and leadership positions on grounds of belief and behavior. . . .

People should be free to assemble peacefully in large groups; governments may not prohibit meetings or restrict them to a few people. This gives religious groups the liberty to assemble for worship, study, pilgrimage, and protests."604

Freedom of assembly owes much of its development to minority religions’ historic fights for the right to gather for worship.605 In the last 50 years, the U.S. Supreme Court has held that the right to association includes the right of organizations and individuals to gather with those who share their beliefs to the exclusion of those who do not.606

Other rights  

Many other rights added to the canon of basic human rights are closely related to the right of freedom of religion and are threatened if the right to FoRB is not protected. Two examples are the right to adequate standards of living and the right to education.

Adequate standard of living. Though a challenge for governments to ensure, the right to an adequate standard of living is articulated in the International Covenant on Economic, Social and Cultural Rights (ICESCR).607 (The ICESCR has been signed but not ratified by the United States; it is legally binding on 173 other countries that have ratified it.608) Article 11 of the ICESCR states in part that

"[t]he States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent."

The taking of “appropriate steps” must include protecting freedom of religion. One study estimated that religious organizations contribute $1.2 trillion USD to the U.S. economy alone, including humanitarian efforts.609 To hinder the freedom of religious organizations and individuals to operate in and for society is to hinder their influence for good in a way that threatens rather than promotes an adequate standard of living for all.610

Education. The right to access education is articulated in the Universal Declaration of Human Rights.611 It is also enshrined in Article 13 of the ICESCR:

"The States Parties . . . recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups . . . ."

For governments to fulfill these treaty obligations to ensure access to education, religious freedom must be taken seriously.

The National Center for Education Statistics has reported the following statistics relative to private education in the United States:

"In fall 2015, of the 34,600 private elementary and secondary schools . . . , 20 percent were Catholic schools, 12 percent were conservative Christian schools, 9 percent were affiliated religious schools, 26 percent were unaffiliated religious schools, and 33 percent were nonsectarian schools. Of the 5.8 million students enrolled in private elementary and secondary schools, 36 percent were enrolled in Catholic schools, 13 percent were enrolled in conservative Christian schools, 10 percent were enrolled in affiliated religious schools, 16 percent enrolled in unaffiliated religious schools, and 24 percent were enrolled in were nonsectarian schools."612

Parochial schools comprise a significant percentage of private schools in other countries as well.613 Given these facts, it is clear that protecting religious freedom facilitates wider access to education.

Though not addressed here, other human rights affected by the right to religious freedom include rights to mental and physical health, property, and privacy—among all others.614

The danger of “cut-flower culture”  

Despite the relation of the right to FoRB to other rights, many in the world today see freedom of religion as unnecessary or even threatening. Though 97% of countries have FoRB-like provisions in their constitutions,615 nearly 30% of 198 countries have been found to have “high” or “very high” levels of government restrictions on religion.616 And nearly 23% have “high” or “very high” levels of social hostility relative to religion.617

Restrictions and hostilities toward religion and, by extension, religious freedom should be concerning to anyone who cares about human rights, whether they identify with a particular religion or not. As James Madison cautioned, “[I]t is proper to take alarm at the first experiment on our liberties.”618 This is especially true for freedom of religion, which is directly related to and supportive of so many other rights.

Governmental and social disregard (and worse) are evidence of “cut-flower culture”—a culture that can “enjoy[] something beautiful, after cutting it from its roots, without recognizing that cut flowers are destined to fade, wither, and soon die.”619 Those who would damage the sustaining taproot of freedom of religion and assume that the bouquet of other rights will thrive are mistaken. Brett G. Scharffs has written:

"If we are unwilling to protect religious speech, should we expect other types of speech to be protected, types of speech that may be less central to human identity and meaning? If we are unwilling to protect the freedom of the press for religious speech, should we expect other types of publications to be given robust protection? If freedom of association is denied for the religious, can we expect other types of association to be given legal protection?

I believe these questions answer themselves—if we are unwilling to protect religious freedom, which lies at the core of human identity and meaning, then we should not expect our political, legal, and social institutions to protect other important civil and political rights."620

Freedom of religion must be protected if we would not threaten other basic human rights we hold dear. Put another way, recognizing and preserving family ties to the grandparent right of the human rights family is necessary for all members (i.e., all rights) in that family to flourish.

Religious freedom is not a redundant right  

Some argue that because freedom of religion shares origins and characteristics with other rights, it is an ancillary right, encompassed by other rights, or a combination of rights and thus not necessary to be enumerated and protected separately.621 This is a misunderstanding of both the history and unique nature of religious liberty.

First, the right to FoRB must be protected based on its history as progenitor in the development of other rights. The right to religious freedom is “simply too foundational for other civil rights and liberties to be in any way deprecated.”622 In a system of human rights wherein all rights are “indivisible, interdependent, and interrelated,”623 failing to protect this foundational freedom puts all others at risk.

Second, the right to FoRB must be protected because of the depth to which religious beliefs are held by individuals. “Religious claims are among the most heartfelt and most morally serious claims made by human beings, since they not only appeal to deeply held conscientious beliefs, but also often appeal to what God asks or demands of them.”624 Indeed, because religious freedom “lies at the core of human identity and meaning,” it is worthy of our utmost efforts to protect it.625

Third, the right to FoRB must be protected due to the inadequacy of other rights to properly protect manifestation of belief. Despite religious freedom’s shared DNA with other rights, those other rights do not in themselves provide adequate exemptions or accommodations based on thought, conscience, and religion. A right to freedom of expression or a right to equality—even if rigorously defended—would be inadequate to fully protect, for example, the right to wear religious head coverings in the military (an exemption from military uniform regulations), the right to not work on a religious holiday (a workplace accommodation), or the right to conscientiously object to military service based on religion or belief (an exemption from conscription). Only a robust defense of the right to religious freedom can secure exemptions and accommodations based on our innermost convictions.

Two law and religion scholars have argued that the U.S. Constitution’s Free Exercise Clause is an example of the type of robust defense needed, comparing its explicit religious freedom protections to a “multi-layered shield . . . for religious claimants.”626 They explain how other rights protections are simply inadequate for religious claims:

"[N]either statutory nor free speech protections of religious liberty can ultimately substitute for a more rigorous free exercise clause. . . . After all, speech is only one form of religious exercise, and equality is only one principle that the free exercise clause protects. Even generously defined, “speech” cannot embrace many forms of individual and corporate religious exercise . . . . Even expansively interpreted, “equality” and nondiscrimination norms cannot protect the particular and special needs of religious individuals and religious groups. These needs were traditionally protected by the principles of liberty of conscience and were traditionally reflected in the exemptions and exclusions countenanced and created by the free exercise clause."627

Conclusion

Freedom of religion or belief is the grandparent of human rights, having paved the way for—and having passed along its characteristic gene of autonomy to—other human rights. For the enjoyment and flourishing of all rights, the grandparent or taproot right of freedom of religion or belief must be protected. If we do not want to risk losing the freedoms we enjoy, they cannot be severed from their roots.

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References

588. Toolkit Topic 22 (Religious freedom as the grandparent of human rights) was originally drafted by Jennifer Trogden, 2023 ICLRS Summer Fellow.

589. W. COLE DURHAM, JR. & BRETT G. SCHARFFS, LAW AND RELIGION: NATIONAL, INTERNATIONAL, AND COMPARATIVE PERSPECTIVES 80 (2d ed. 2019).

590. Id.

591. Id.

592. Id.

593. Id.

594. G.A. Res. 217 A (III), Universal Declaration of Human Rights, at art. 18 (Dec. 10, 1948) [hereinafter UDHR], https://www.un.org/en/about-us/universal-declaration-of-human-rights.

595. See generally Brett G. Scharffs, Why Religious Freedom? Why the Religiously Committed, the Religiously Indifferent, and Those Hostile to Religion Should Care, 2017 BYU LAW REVIEW 957 (2018), https://digitalcommons.law.byu.edu/lawreview/vol2017/iss4/10.

596. U.S. CONSTITUTION amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”)

597. UDHR, supra, art. 19.

598. James W. Nickel, Who Needs Freedom of Religion?, 76 UNIVERSITY OF COLORADO LAW REVIEW 941, 946 (2005).

599. Scharffs, Why Religious Freedom?, supra, at 960.

600. Id. at 960 n.10.

601. Joris van Eijnatten, In Praise of Moderate Enlightenment: A Taxonomy of Early Modern Arguments in Favor of Freedom of Expression, in FREEDOM OF SPEECH: THE HISTORY OF AN IDEA 19, 20 (Elizabeth Powers ed., 2011).

602. Scharffs, Why Religious Freedom?, supra, at 960 n.11 (citing DAVIE DANIELL, WILLIAM TYNDALE: A BIOGRAPHY 83–133, 374–84 (1994); SCOTT H. HENDRIX, MARTIN LUTHER: VISIONARY REFORMER 13–14, 240 (2015)).

603. See HENDRIX, supra, at 13–14 (“Beginning in 1518, an astounding number of people agreed with Luther, left behind the religion of their ancestors, and rallied to his side. Rome, however, did not buckle, and what ensued from 1520 to 1525 was a war of words . . . . The war was made possible by a new, cheaper, and faster technology—printing with movable type. Luther’s facility with words . . . fed a burgeoning printing industry that gave Luther a distinct advantage in the competition to sway religious opinion.”)

604. Nickel, supra, at 946–47.

605. Scharffs, Why Religious Freedom?, supra, at 960–61, 961 n.12 (citing John D. Inazu, The Forgotten Freedom of Assembly, 84 TULANE LAW REVIEW 565, 575–76 (2010) (discussing the influence of the Quakers, who protested restrictions on minority rights to assemble imposed by the Church of England)).

606. See Boy Scouts of America & Monmouth Council v. Dale, 530 U.S. 640, 648 (2000) (“The forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints. . . . But the freedom of expressive association, like many freedoms, is not absolute. . . . [T]he freedom could be overridden by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” (internal quotation marks omitted)); Roberts v. United States Jaycees, 648 U.S. 609, 623 (1984); Runyon v. McCrary, 427 U.S. 160, 176 (1976).

607. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights.

608. International Covenant on Economic, Social and Cultural Rights, UN TREATY COLLECTION, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4 (last visited Dec. 2024) (listing country signatories and parties to the ICESCR).

609. Brian J. Grim & Melissa E. Grim, The Socio-economic Contribution of Religion to American Society: An Empirical Analysis, 21 INTERDISCIPLINARY JOURNAL OF RESEARCH ON RELIGION 2, 24 (2016).

610. See generally Elizabeth A. Clark, The Impact of Religion and Religious Organizations, 49(1) BYU LAW REVIEW 1 (2023), https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=3463&context=lawreview.

611. UDHR, supra, art. 26.

612. NATIONAL CENTER FOR EDUCATION STATISTICS, SCHOOL CHOICE IN THE UNITED STATES: 2019, ch. 3 (Private Schools and Enrollment), https://nces.ed.gov/programs/schoolchoice/ind_03.asp (last visited Dec. 2024).

613. See, e.g., Helen Whittle, Has Germany’s State Education System Failed?, DEUTSCHE WELLE (Dec. 23, 2023), https://www.dw.com/en/has-germanys-state-education-system-failed/a-67781684 (discussing the rising rates of enrollment in private schools in Germany, including Catholic schools); Schools: Data on Government and Non-government Students, Staff and Schools, AUSTRALIAN BUREAU OF STATISTICS (last visited Dec. 2024), https://www.abs.gov.au/statistics/people/education/schools/latest-release (showing nearly 20% of Australian students were enrolled in Catholic schools in 2024).

614. See Toolkit Topic 21 (Human rights are universal, indivisible, interdependent, and interrelated).

615. David S. Law & Mila Versteeg, The Declining Influence of the United States Constitution, 87 NEW YORK UNIVERSITY LAW REVIEW 762, 773 (2012).

616. Samirah Majumdar, Number of Countries with “Very High” Government Restrictions Increases in 2022, PEW RESEARCH CENTER (Dec. 18, 2024), https://www.pewresearch.org/2024/12/18/number-of-countries-with-very-high-government-restrictions-increases-in-2022.

617. Id.

618. James Madison, Memorial and Remonstrance Against Religious Assessments, [ca. 20 June] 1785, NATIONAL ARCHIVES: FOUNDERS ONLINE, https://founders.archives.gov/documents/Madison/01-08-02-0163 (last visited Dec. 2024).

619. Scharffs, Why Religious Freedom?, supra, at 964.

620. Id. at 965.

621. See generally Nickel, supra.

622. JOHN WITTE JR. & JOEL A. NICHOLAS, RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT 92 (5th ed. 2022).

623. Vienna Declaration and Programme of Action, UN OHCHR I.5 (June 25, 1993), https://www.ohchr.org/en/instruments-mechanisms/instruments/vienna-declaration-and-programme-action.

624. Scharffs, Why Religious Freedom?, supra, at 965.

625. Id.; see also WITTE & NICHOLAS, supra, at 92 (“Religion [is] simply too vital and too valuable for individual flourishing and social cohesion to be left unguarded on any side.”).

626. WITTE & NICHOLAS, supra, at 171 (citing Cantwell v. Connecticut, 310 U.S. 296, 310 (1940)).

627. Id. at 162.