December 1997 - © Copyright Alexandra Merrett
Part B: Footnotes and References
The Centre for East-West Cultural and Economic Studies,
Research Paper no. 5, December 1997
Religious Liberty as a Paradigm
For the Development of Human Rights
by Alexandra Merrett
Footnotes
1. Lewis P. Hinchman, "Origins of Human Rights", Western Political Quarterly 37 (1984), 7.
2. J. W. Bowker, "The Burning Fuse: The Unacceptable Face of Religion", Zygon 21 (1986), 417.
3. The substance of the United States Supreme Court Decision, Sherbert v Verner [374 US 398 (1963)], as stated in Angela C. Carmella, "Liberty and Equality: Paradigms for the Protection of Religious Property Use", Journal of Church and State 37 (1995), 576.
4. See further, Bowker, "The Burning Fuse".
5. Robert M. Baird, "Dworkin, Abortion, Religious Liberty and the Spirit of the Enlightenment", Journal of Church and State 37 (1995), 767.
6. From the Amsterdam Declaration by the First Assembly of the World Council of Churches, in Ninan Koshy, "The Ecumenical Understanding of Religious Liberty: The Contribution of the World Council of Churches", Journal of Church and State 38 (1996), 141.
7. Excerpt from the report of the North American Religious Liberty Conference [Los Angeles, 1983] in Franklin H. Littell, "The Ecumenical Commitment to Human Rights", Journal of Ecumenical Studies 29 (1992), 388.
8. Peter L. Berger, "The First Freedom", Commentary 86 (1988), 64.
9. Littell, "The Ecumenical Commitment to Human Rights", 383. Also, note Vatican II's Declaration on Religious Liberty: "to establish and strengthen peaceful relations and harmony in the human race, religious freedom must be given effective constitutional protection everywhere...." [Dignitatis humanæ (On the Right of the Person and Communities to Social and Civil Liberty in Religious Matters), December 7, 1965 II.15 in Austin Flannery (ed.), Vatican Council II: The Conciliar and Post Conciliar Documents (Dublin: Dominican Publications, 1975), 812]; "Freedom of religion is basic to the American concept of liberty" [Elder Witt (ed.), The Supreme Court A to Z (Washington: Congressional Quarterly, 1994), 331]; Religious liberty holds "primacy... in a catalogue of liberties" [Berger, "The First Freedom", 68]; "[A]mong the human rights most valued, religious liberty has a special rank. It holds the key place among the five liberties listed in the First Amendment to the USA Constitution. At the same time, it is the most sensitive right - the right most readily misused in destructive ways, the one that is the last to be recognized by traditional despots and the first to fall victim to contemporary dictators" [Littell, "The Ecumenical Commitment to Human Rights", 388].
10. Abbé Hugues-Félicité Robert de Lamennais in C. B. Hastings, "Hughes-Félicité Robert de Lamennais: A Catholic Pioneer of Religious Liberty", Journal of Church and State 30 (1988), 321.
11. Robert Audi, "The Separation of Church and State and the Obligations of Citizenship", Philosophy and Public Affairs 18 (1989), 265-66.
12. See for example, Paul J. Weithman, "Taking Rites Seriously", Pacific Philosophical Quarterly 75 (1994) at 272:
Religious toleration plays two very important roles in liberal thought. First, it serves as a reminder of past victories. Acceptance of the principle of toleration ended the religious wars and persecutions which had been a standing rebuke to the charity of Christian Europe. Since the principle's philosophical underpinning is distinctively liberal, philosophical liberals adduce religious toleration as their first and greatest triumph. Second, religious toleration seems the key to a liberal future. If liberalism is to make philosophical and political progress, it is argued, liberals must build on the success of the past and extend toleration beyond religion to other, non-religious areas of speech and conduct.
See also, Berger, "The First Freedom", 68-69:
[T]he protection of religious liberty, as a fundamental and irrevocable right, [protects the individual from the tyranny of the state] in a fundamental way. Religious liberty is not one of many benefits that the state may choose to bestow on its subjects. Rather, religious liberty is rooted in the very nature of man and, when the state recognizes it, the state thereby bows before a sovereignty that radically transcends every worldly manifestation of power. For the religious, this is the sovereignty of God; for the agnostic, it will be the sovereignty of that mystery within man that strives to go beyond the given - the mystery of human freedom.
See also R. J. Kilcullen <johnkilcullen@mq.edu.au>, "John Rawls: Liberty", <http://iliad.lib.mq.edu.au:8080/HPP/Ockham/y64113.html>: "one of the historical roots of liberalism was the development of various doctrines urging religious toleration"; Michael C. Smith, "Early French Advocates of Religious Freedom", Sixteenth Century Journal 25 (1994), 51: "denial of religious freedom in various countries in our time has been a precondition of political oppression (and its restoration has been the prelude to, or accompaniment of, retrieval of political freedoms)"; Douglas Sturm, "Natural Law, Liberal Religion and Freedom of Association: James Luther Adams on the Problem of Jurisprudence", Journal of Religious Ethics 20 (1992), 198: "At the center of genuine democracy, according to Adams, stands the principle of freedom of association, which in the West, emerges from the religious tradition"; William J. Everett, "Religion and Federal Republicanism: Cases from India's Struggle", Journal of Church and State 37 (1995), 63: "The question of our time is whether this kind of federal republican order can find root in cultures radically different from its Western religious soil".
Also, Leonard Swidler, "Separation of Religion and State: Progress or Regress?", Journal of Ecumenical Studies 33 (1996), 378:
[The] separation of religion and state is essential to the true, full functioning of both religion and state and to human progress to 'infinity'. In other words, the separation of religion and the state is a necessary, though not sufficient, cause of the unending creative development of humanity.
It should be noted that the general concept of separation of church and state is generally said to have two wings: the first, Audi in "The Separation of Church and State", calls the libertarian principle, wherein "the state permit[s] the practice of any religion, within certain limits" [at 262]. The second is the equalitarian principle [sic], "the principle that the state may not give preference to one religion over another" [at 262]. There is also the less recognised neutrality principle, that "the state should give no preference to religion (or the religious) as such...." [at 264]. The first two form the basic concept as it is understood in constitutional law - in American jurisprudence, they are called the free exercise clause and the establishment clause. See further Norman Redlich, Bernard Schwartz and John Attanasin, Understanding Constitutional Law (New York: Matthew Bender/ Irwin, 1995), chapter 15; and Witt, The Supreme Court A to Z, 331ff. For the situation in Australia, see Beth Gaze and Melinda Jones (eds), Law, Liberty and Australian Democracy (Sydney: LBC, 1990), chapter 7.
13. Smith, "Early French Advocates of Religious Freedom", 50.
14. Ibid, 29.
15. In Marijn de Kroon, "Martin Bucer and the Problem of Tolerance", Sixteenth Century Journal 19 (1988), 160.
16. Steve Bruce and Chris Wright, "Law, Social Change and Religious Toleration", Journal of Church and State 37 (1995), 104.
17. Mario Turchetti, "Religious Concord and Political Tolerance in Sixteenth- and Seventeenth- Century France", Sixteenth Century Journal 22 (1991), 18.
18. David Hollenbach, "Public Reason/ Private Religion? A Response to Paul J. Weithman", Journal of Religious Ethics 22 (1994), 42.
19. Bruce and Wright, "Law, Social Change and Religious Toleration", 104.
20. Littell, "The Ecumenical Commitment to Human Rights", 383.
21. Swidler ["Separation of Religion and State", 370] notes that while Christian writers were strong advocates of religious liberty in the early centuries of Christianity,
After the Constantinian embrace of the Christian religion in the fourth century, they quickly switched to the position that the state had the responsibility of seeing that the truth was protected and favored - and of course Christianity had the truth... With the development of medieval Christendom in the Western half of the former Roman Empire, almost everyone became Christian, with the exception of the Jews, who for the most part were allowed to continue a separate existence, often in ghettoes.
22. Beyond, that is, the Jewish issue, briefly discussed below. For a discussion of the persecution of Cathars and Albigensians, see Richard Shand <rshand@wimsey.com>, "An Age of Persecution", <http://marlowe.wimsey.com/~rshand/streams/gnosis/cathar.html> and Gilles C. H. Nullens <nullensg@dircon.co.uk>, "Catholics, Heretics and Heresy" <http://www.isabel.uk.com/menu1/htm>, 1997. For an excellent compilation of resources regarding medieval heresies in general, see Vic Froese, "Medieval Heresy", <http://www.ptsem.org/heresy/hernet3.htm>, 1996.
23. For example, Thomas Aquinas classifies religion as a moral, not theological virtue: Summa Theologica (tr. Fathers of the English Dominican Province) (New York: Benzinger Brothers, 1947), II-II 81.5 ad. 3.
24. Paul J. Weithman, "Rawlsian, Liberalism and the Privatization of Religion: Three Theological Objections Considered", Journal of Religious Ethics 22 (1994), 5. See, for example, Thomas on the use of death penalty:
Now every individual person is compared to the whole community, as part to whole. Therefore if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed in order to safeguard the common good, since "a little leaven corrupteth the whole lump" (1 Cor. 5:6) [Summa Theologica II-II 64.2 (emphasis added)].
And further, on heretics:
[T]hey deserve not only to be separated from the Church by excommunication, but also to be severed from the world by death. For it is a much graver matter to corrupt the faith which quickens the soul, than to forge money, which supports temporal life. Wherefore if forgers of money and other evil-doers are forthwith condemned to death by the secular authority, much more reason is there for heretics, as soon as they are convicted of heresy, to be not only excommunicated but even put to death [ibid, II-II 11.3].
For an example of the standard treatment for a heretic, see Canon 3 on Heresy of the Fourth Lateran Council (1215) which decreed:
We excommunicate and anathematize every heresy that raises against the holy, orthodox and Catholic faith... condemning all heretics under whatever names they may be known... Those condemned, being handed over to the secular rulers or their bailiffs, let them be abandoned, to be punished with due justice, clerics being first degraded from their orders. As to the property of the condemned, if they are laymen, let it be confiscated; if clerics, let it be applied to the churches from which they received revenues. But those who are only suspected, due consideration being given to the nature of the suspicion of the character of the person, unless they prove their innocence by a proper defense, let them be anathematized and avoided by all until they have made suitable satisfaction; but if they have been under excommunication for one year, then let them be condemned as heretics.
From H. J. Schroeder, The Disciplinary Decrees of the General Councils (St. Louis: B. Herder Book Co., 1937), 242-43.
25. Robert J. O'Donnell, "The Church Learning and the Church Teaching: Vatican II and the Liberal Tradition of Religious Freedom", Journal of Ecumenical Studies 29 (1992), 404.
26. R. Buick Knox, "A Scottish Chapter in the History of Toleration", Scottish Journal of Theology 41 (1988), 49.
27. Littell, "The Ecumenical Commitment to Human Rights", 385.
28. Robert Moore in Patrick Collinson, "Religion and Human Rights: The Case of and for Protestantism", in Olwen Hufton, Historical Change and Human Rights (New York: Basic Books, 1995), 34. Indeed, in some respects, this society provided the model for the civil religion of Machiavelli, Hobbes and Rousseau [see further Ronald Beiner, "Machiavelli, Hobbes, and Rousseau on Civil Religion", Review of Politics 55 (1993); Wilson Carey McWilliams, "Civil Religion in the Age of Reason: Thomas Paine of Liberalism, Redemption and Revolution", Social Research 54 (1987)].
29. Collinson, "Religion and Human Rights", 34.
30. For a brief example of the extent of Jewish persecution, see Collinson, "Religion and Human Rights", at 35:
It was... in the eleventh and twelfth centuries that the long agony of European Jewry began. The First Crusade, on its way to the East in 1096, visited appalling atrocities upon the Jewish communities of the Rhineland and other parts of Germany. Between May 25 and May 29, 1096, the Jewish community at Mainz was annihilated. This was the first pogrom in Western European history and it defies simple explanation. Other pogroms great and small followed. In March 1190 there was a big one in York. The Jews of the city were herded into Clifford's Tower and burned alive. One hundred years later, the Jews were expelled from England.
31. Smith, "Early French Advocates of Religious Freedom", 50. See above, page 8.
32. Innocent III, Letter on the Jews (1199), reproduced in Oliver J. Thatcher and Edgar Holmes McNeal (eds), A Source Book for Medieval History (New York: Scribners, 1905), 212-213. See also his Constitution for the Jews (1199), in which Innocent substantially repeated the contents of the Letter, adding: "If anyone, however shall attempt, the tenor of this decree once known, to go against it - may this be far from happening! - Let him be punished by the vengeance of excommunication, unless he correct his presumption by making equivalent satisfaction."
33. See for example Gregory's Letter Against the Blood Libel:
Since it happens occasionally that some Christians lose their Christian children, the Jews are accused by their enemies of secretly carrying off and killing these same Christian children and of making sacrifices of the heart and blood of these very children...
[W]e order that Jews seized under such a silly pretext be freed from imprisonment, and that they shall not be arrested henceforth on such a miserable pretext, unless - which we do not believe - they be caught in the commission of the crime. We decree that no Christian shall stir up anything new against them, but that they should be maintained in that status and position in which they were in the time of our predecessors, from antiquity till now.
From Brian Tierney, Middle Ages [Vol. I] (New York: Knopf, 1970), 259-60.
34. Gregory X in Tierney, ibid.
35. In Schroeder, Disciplinary Decrees of the General Councils, 78.
36. Eric Kolodner, "Religious Rights in China: A Comparison of International Human Rights Law and Chinese Domestic Legislation", Human Rights Quarterly 16 (1994), 457.
37. William J. Courtenay, "Inquiry and Inquisition: Academic Freedom in Medieval Universities", Church History 58 (1989), 180.
38. Ibid, 178.
39. Ibid, 181.
40. Ibid.
41. Ibid.
42. In the year 1415.
43. Marc Shell, "Marranos (Pigs), or From Coexistence to Toleration", Critical Inquiry 17 (1991), 322.
44. Benedict De Spinoza, Theologico-Political Treatise, Works of Spinoza (tr. R. H. M. Elwes) (2 vols) (New York: Dover, 1980), 1: 284.
45. Shell, "Marranos (Pigs), or From Coexistence to Toleration", 326.
46. Ibid, 324.
47. Ibid, 306.
48. See Shell, ibid; also Henry Kamen, "Toleration and Dissent in Sixteenth-Century Spain: The Alternative Tradition", Sixteenth Century Journal 19 (1988), 3.
49. Kamen, ibid, 4.
50. Shell, "From Coexistence to Toleration", 312.
51. Kamen, "Toleration and Dissent in Sixteenth-Century Spain", 4.
52. Ibid, 5-6.
53. Ibid, 6.
54. Ibid.
55. Ibid, 7.
56. Ibid, 8.
57. Ibid, 10.
58. Fredrique Furiò Ceriol, from his book, Council and Counsellors of the Prince (1559), published in Antwerp and dedicated to Philip. Quoted in Kamen, ibid, 17.
59. Famiano Estrada, quoted in Kamen, ibid, 19.
60. Kamen, ibid, 23.
61. Ingrid Creppell, "Locke on Toleration: The Transformation of Constraint", Political Theory 24 (1996), 200.
62. Kroon, "Martin Bucer and the Problem of Tolerance", 165-65.
63. Andrew Pettegree, "Michael Servetus and the Limits of Tolerance", History Today 40 (1990), 40.
64. Ibid, 45.
65. Ibid.
66. Ibid, 44.
67. Note, however, that this is not at all commensurate with modern notions bearing the same name: "the claim of liberty of conscience had virtually nothing to do with a claim to direct or manage ourselves. It was a claim to be free to submit to the governance of God rather than to any other authority... People could never have given such a power or liberty to the state since they did not possess such a power over or liberty in themselves...." [J. C. Davis, "Religion and the Struggle for Freedom in the English Revolution", Historical Journal 35 (1992), 515]. And further, "Modern liberation movements have tended to adopt the first phrase of ['Let my people go, that they may serve me in the wilderness....', Exodus 7:16] while dropping the second, but, in the seventeenth century, it is the second which is vital. Liberation was the precondition of a far from token submission, for it was submission in the service of a demanding God" [Davis, ibid, 518].
68. Smith, "Early French Advocates of Religious Freedom", 50.
69. 13 Elizabeth, c. 12 (clause 19).
70. 17 Car II, c. 2.
71. Bill Speck, "Religion's Role in the Glorious Revolution", History Today 38 (1988), 31. See further Edward Terrar, "Was There a Separation Between Church and State in Mid-17th-Century England and Colonial Maryland?", Journal of Church and State 35 (1993), 64.
72.Davis, "Religion and the Struggle for Freedom in the English Revolution", 528.
73. Although note, the brief "Catholic Experiment" [discussed below].
74. Speck, "Religion's Role in the Glorious Revolution", 31. Davis further states, "[t]he most obvious link [of liberty] with religion is in the struggle against popery and arbitrary government, seen as an inextricably fused menace throughout the [seventeenth] century" [Davis, "Religion and the Struggle for Freedom in the English Revolution", 509].
Rousseau baldly states the objections against Catholicism in "On Civil Religion" [Book IV.8 of the Social Contract (London: Penguin, 1968)] at 181:
[The] third and more curious kind of religion... giv[es] men two legislative orders, two rulers, two homelands, puts them under two contradictory obligations, and prevents their being at the same time both churchmen and citizens...
The third kind is so manifestly bad that the pleasure of demonstrating its badness would be a waste of time. Everything that destroys social unity is worthless; and all institutions that set man at odds with himself are worthless.
75. See further, Bruce Yardley, "George Villiers, Second Duke of Buckingham and the Politics of Toleration", Huntington Library Quarterly 55 (1992), 317.
76. John Spurr, "Church of England, Comprehension and the Toleration Act of 1689", English Historical Review 104 (1988), 935.
77. For an explanation of Parliament's, and particularly Cabinet's, support for this Declaration, see Yardley, "The Politics of Toleration", 325ff.
78. Yardley, ibid, 328. See further Speck, "Religion's Role in the Glorious Revolution", 30.
79. See particularly Spurr, "Church of England, Comprehension and the Toleration Act of 1689".
80. See Spurr, ibid.
81. Ibid, 943.
82. Ibid, 936.
83. David L. Wykes, "Religious Dissent and the Penal Laws: An Explanation of Business Success?", History 75 (1990), 42.
84. Ibid.
85. Ibid.
86. Spurr, "Church of England, Comprehension and the Toleration Act of 1689", 936.
87. Speck, "Religion's Role in the Glorious Revolution", 31.
88. Ibid.
89. Ibid, 35.
90. Ibid, 30. James had also desired the repealing of the Test Acts, but the Convention Parliament did not make such an enactment (indeed, the Test remained in force until 1828) [Mark Goldie, "John Locke's Circle and James II", Historical Journal 35 (1992), 557].
91. In Speck, "Religion's Role in the Glorious Revolution", 32.
92. James himself had been back-peddling following pressure from Archbishop Sancrof and colleagues. See further Speck, ibid, 34ff.
93. Speck, ibid, 35.
94. In Speck, ibid, 30.
95. Speck, ibid, 30.
96. David L. Wykes, "Friends, Parliament and the Toleration Act", Journal of Ecclesiastical History 45 (1994), 42.
97. Speck, "Religion's Role in the Glorious Revolution", 30.
98. G. B. V. Bennett, quoted in Speck, ibid, 35.
99. Wykes, "Friends, Parliament and the Toleration Act", 62.
100. Wykes, "Religious Dissent and the Penal Law", 52. Note, Queen Anne died the day the act was to come into force.
101. Ibid, 53.
102. See further G. M. Ditchfield, "Anti-trinitarianism and Toleration in Late Eighteenth Century British Politics: The Unitarian Petition of 1792", Journal of Ecclesiastical History 42 (1991), 39.
103. Speck, "Religion's Role in the Glorious Revolution", 31.
104. For an examination of the situation in Scotland, see Mark Goldie, "The Scottish Catholic Enlightenment", Journal of British Studies 30 (1991); Knox, "A Scottish Chapter in the History of Toleration"; Bruce and Wright, "Law, Social Change and Religious Toleration".
105. Knox, "A Scottish Chapter in the History of Toleration", 49.
106. See, for example, Smith, "Early French Advocates of Religious Freedom", 47: "In quick succession, legislators, and administrators sought to persecute the Reformers out of existence, then to reunite them with Catholics by conciliatory measures, then to tolerate them (or, in the case of some bolder minds, to afford them freedom)."
107. For example, statements drawn up in 1530 (The Tetrapolitan Confession: Memmingen, Lindau, Strasbourg, Constance), then in 1536 (Wittenberg Concord, the First Helvetic Confession), 1549 (Consensus Tigurinus), 1577 (the Formula of Concord), and 1581 (Harmony of Confessions).
108. Turchetti, "Religious Concord and Political Tolerance", 16.
109. Ibid.
110. Ibid, 17. It is interesting to note that the conflict between Catholics and Calvinists was an ongoing issue. See, for example, Turchetti, ibid, 16: "In France which enjoyed a large measure of religious tolerance because of the Edict of Nantes, methods were constantly being devised for the conversion or reconversion of Calvinists" and further at 16-17: "It is interesting to note that all the Protestant treatises advocating unity and reconciliation with the Catholics [were] always condemned by the Calvinist orthodoxy".
111. The Toulousain jurist of the late sixteenth century, Gerard Maynard, claimed French kings had accepted their duty "to supervise the true Catholic religion, to maintain the honours and ceremonies due to God, to defend His church, and to punish those who do it injury...." since the time of Charlemagne [in Jonathan Powis, "Gallican Liberties and the Politics of Later Sixteenth-Century France", Historical Journal 26 (1983), 521].
112. Turchetti, "Religious Concord and Political Tolerance", 15-16.
113. Smith, "Early French Advocates of Religious Freedom", 8.
114. Ibid, 29.
115. Turchetti, "Religious Concord and Political Tolerance", 18.
116. See further, Turchetti, ibid, 21ff.
117. In Turchetti, ibid, 18.
118. Ibid, 22.
119. In Turchetti, ibid.
120. Ibid, 23. These are, however, general characterisations. In 1579, for example, the Blois ordinances reaffirmed the principle that it was the duty of the crown to uphold the discipline of the church [see Powis, "Gallican Liberties and the Politics of Later Sixteenth-Century France", 522: "Provision was duly made - under the authority of the crown - for the rules of episcopal residence and visitation and article forty banned 'clandestine' marriages defined in the terms of earlier French legislation, not in those of the Tridentine decree Tametsi"].
121. Turchetti, "Religious Concord and Political Tolerance", 16.
122. Turchetti, ibid, 23.
123. See further, Turchetti, ibid.
124. Principal architect of the Edict of January 1562.
125. ["The excommunicate doesn't cease to be a citizen"] In Smith, "Early French Advocates of Religious Freedom", 36.
126. In Smith, ibid, 34 . This was the stance of bishop Pierre Du Chastel in the mid-1540s, at least with respect to imposing the death penalty on heretics.
127. See Smith, ibid, 36ff.
128. Ibid, 38.
129. In Smith, ibid, 38.
130. See further the position of Estienne La Boëtie, in Smith, ibid, 38ff; Arnauld Du Ferrier, 40ff; Paul de Foix, 43ff; Jean de Monluc, 46ff, and Antoine Loisel, 48ff.
131. Turchetti, "Religious Concord and Political Tolerance", 19.
132. See Suzanne Desan, "Redefining Revolutionary Liberty: the Rhetoric of Religious Revival During the French Revolution", Journal of Modern History 60 (1988), 3ff.
133. In Diane Ravitch and Abigail Thernstrom (eds), The Democracy Reader (New York: Harper/ Collins, 1992), 55.
134. Essentially a tolerance of all religions, thereby amounting to a general freedom of religion.
135. Desan, "Redefining Revolutionary Liberty", 1.
136. Ibid, 5.
137. Ibid, 2.
138. Desan states, "[t]hey made their requests within the context, language and assumptions of the revolutionary discourse...." [ibid, 10].
139. Ibid, 8. See further at 13-14:
Lay Catholic protesters were very conscious of specific laws that guaranteed their religious rights. Sometimes the petitioners made very precise references to laws that had just been passed. A petition addressed to the legislature and to the minister of police by 'the citizens of different communes of the department of Yonne' in 1799 formally quoted the most important legislation on religious liberty, including the laws of 3 ventôse an III (February 21, 1795) and of 7 vendémiaire an IV (September 29, 1795) as well as article 354 of the Constitution of the year III.
140. Ibid, 10.
141. Lasting from 1795-1802. Even at the slightest distancing of the two, there was vigorous protest. For example, Abbé Hugues-Félicité Robert de Lamennais at one stage accused the French government of atheism, "not because its leaders were disbelievers, but because its laws [e.g., controlling education through the state universities] were 'neutral' or secular toward true religion": Hastings, "A Catholic Pioneer of Religious Liberty", 325.
Note, that following the abdication of Charles X in 1830, and the ascension of Louis Philippe to the throne, there were modifications made to the constitutional structure of France, which included the deletion of the article declaring Catholicism to be the religion of the state. A full separation of church and state, however, was not achieved in France until 1905; see further, Claude Fohlen, "American Catholics and the Separation of Church and State in France", Catholic Historical Review (1994).
142. Goldie, for example, states, "[i]n the face of the heavy demands of the American war and the French threat, the [Scottish] government was anxious to recruit Catholics into the army" ["The Scottish Catholic Enlightenment", 36].
143. "[T]he French Revolution rapidly changed Protestant sensibilities in regard to Catholicism. In the 1790s, thousands of émigré French priests found a welcome home in Britain": Goldie, ibid, 26.
144. Mead states for example that, in England, "[o]nce it was seen that uniformity was impracticable, two possible paths lay open before the churches: toleration, with a favored or established church and dissenting sects - the path actually taken in England - or freedom, with complete equality of all religious groups before the civil law" [Sidney Earl Mead, "From Coercion to Persuasion: Another Look at the Rise of Religious Liberty," Church History 57 (1988 Supp.), 78].
145. For example, the Catholic Experiment, above page 22.
146. Rudolph C. Blitz, "The Religious Reforms of Joseph II", Journal of European Economic History 18 (1989), 584.
147. Ibid, 588.
148. Goldie, "The Scottish Catholic Enlightenment", 37; see further: "Catholic men, said Hay, were 'ardent' to enlist; there was no Catholic of common sense who did not hold the American rebellion 'in abhorrence, and who would not willingly do his best to suppress it'. It was 'natural to suppose that the more indulgence they [the Catholics] receive, the more cordial they will be in his [the King's] service'....". Hay further stated that "if Catholics remained 'little better than the merest slaves,' then the government must not be surprised if those who might have become loyal troops became instead disenchanted emigrants" [in Goldie, ibid].
149. Carroll noted that during the revolutionary period:
The Jersey state was the first which, in forming her new constitution, gave the unjust example of reserving to protestants alone the prerogatives of government and legislation. At that very time, the American army swarmed with Roman-catholic soldiers, and the world would have held them justified, had they withdrawn themselves from the defense of state with so much cruelty and indifference... But their patriotism was too disinterested to hearken to the first impulse of even just resentment....
In Joseph M. McShane, "John Carroll and the Appeal to Evidence: A Pragmatic Defense", Church History 57 (1988), 307.
150. McShane, ibid, 308.
151. In Redlich, Schwartz and Attanasin, Understanding Constitutional Law, 431; see further the positions of Thomas Jefferson and Benjamin Franklin, discussed in, for example, Mead, "From Coercion to Persuasion", 85ff.
152. Bruce and Wright, "Law, Social Change and Religious Toleration", 105.
153. These documents are considered to be axiomatic to the development of modern concepts of human rights. See, for example, Ashmal: "All the major human rights developments in the world - from the Declaration of Independence and the Bill of Rights in the United States to the French Declaration of the Rights of Man and the Citizen...." [Kader Ashmal, "Democracy and Human Rights: Developing a South African Human Rights Culture", New England Law Review 92 (1992), 288].
154. "[T]he principle's philosophical underpinnings were distinctively liberal": Weithman, "Taking Rites Seriously", 272. Arguably the relationship between the two concepts was reciprocal; thus, while "one of the historical roots of liberalism was the development of various doctrines urging religious toleration" [Kilcullen, "John Rawls: Liberty"], it can also be said that "the rise of religious toleration and freedom [is described] in terms of the origin and development of liberal and tolerant ideas" [Bruce and Wright, "Law, Social Change and Religious Toleration", 105].
155. See Ricardo Blaug, "John Rawls and the Protection of Liberty", Social Theory and Practice 12 (1986).
156. Hinchman, "Origins of Human Rights", 9.
157. Indeed he was a keen advocate of a civil religion. See further, Beiner, "Machiavelli, Hobbes, and Rousseau on Civil Religion".
158. David C. Snyder, "John Locke and the Freedom of Belief", Journal of Church and State 30 (1988), 229.
159. John Locke, Two Tracts on Government (ed. Philip Abrams) (Cambridge: CUP, 1967), 120.
160. Snyder, "John Locke and the Freedom of Belief", 229.
161. Philip Abrams, "Introduction", in Locke, Two Tracts, 122-23. Indeed, Locke's main point of rebuttal was that there was no difference: "indifferent things of civil as well as religious concernment" are "of the same nature, and will always be so" [Locke, Two Tracts, 153]. See further:
Now as the indifferency of all things is exactly the same and on both sides we find the same arguments and indeed the same matter, the only difference being in the way they are viewed, there being no greater distinction than there is between a gown worn in the market-place and the self-same gown worn in church, it is clear that the magistrate's authority embraces the one type of indifferent things as much as the other" [ibid, 229].
162. Snyder, "John Locke and the Freedom of Belief", 229.
163. See Creppell, "Locke on Toleration", 221.
164. Locke, Two Tracts, 159. See further:
[N]or can a subject's vow or a private error of conscience nullify the edicts of the magistrate, for, if this is once granted, discipline will be everywhere at an end, all law will collapse, all authority will vanish from the earth and, the seemly order of affairs being convulsed and the frame of government dissolved, each would be his own Lawmaker and his own God [ibid, 226-27; see further at 154, 234, 237, 240].
165. Snyder, "John Locke and the Freedom of Belief", 230. See further Creppell, "Locke on Toleration", and R. J. Kilcullen <johnkilcullen@mq.edu.au>, "Locke, A Letter Concerning Toleration: Reading Guide", <http://iliad.lib.mq.edu.au:8080/HPP/Ockham/y67s20.html>, 1995.
166. See Locke, Two Tracts, 155-56:
Who might not this way declaim government itself out of the world and quickly insinuate into the multitude that it is beneath the dignity of a man to enslave his understanding and subject his will to another's pleasure, to think himself so ignorant or imprudent as to stand in need of a guardian, and not to be as God and nature made him, to freely dispose of his own actions? To fight to support greatness and a dominion over himself, and rob his own necessities to maintain the pomp and pleasure of one that regards him not, to hold his life as a tenant at will and to be ready to part with his head when it shall be demanded, these and many more such are the disadvantages of government, yet far less than are to be found in its absence as no peace, no security, no enjoyments, enmity with all men and safe possession of nothing, and those stinging swarms of miseries that attend anarchy and rebellion.
167. Creppell, "Locke on Toleration", 208.
168. John Locke, A Letter Concerning Toleration (ed. James Tully) (Indianapolis: Hackett, 1983), 47. And further, "[t]he principal and chief care of everyone ought to be of his own Soul first" [ibid, 49].
169. Ibid, 31.
170. See further, Snyder, "John Locke on Freedom of Belief", 237ff.
171. Creppell, "Locke on Toleration", 220. See for example, Locke, Letter, 27:
The care of the Souls cannot belong to the Civil Magistrate because his Power consists only in outward force; but true and saving Religion consists in the inward perswasion of the Mind, without which nothing can be acceptable to God.
172. Locke, Letter, 26.
173. See further, Joshua Mitchell, "John Locke and the Theological Foundation of Liberal Tradition: A Christian Dialectic of History", Review of Politics 52 (1991), 64.
174. Mitchell, ibid, 65.
175. Creppell, "Locke on Toleration", 223.
176. See Locke, Letter, 31.
177. Ibid, 33.
178. Mitchell, "John Locke and the Theological Foundation of Liberal Tradition", 70.
179. Locke, Letter, 51.
180. Ibid, 67.
181. Ibid, 65.
182. Baird, "Dworkin, Abortion, Religious Liberty and the Spirit of the Enlightenment", 767.
183. Creppell, "Locke on Toleration", 219.
184. It is interesting to note Tully's assessment of Locke's earlier position: "Locke's analysis in the Two Tracts underwrites Charles' declaration of indulgence from Brade in April 1660 on purely pragmatic grounds", quoted in Creppell, ibid, 217.
185. Snyder, "John Locke and the Freedom of Belief", 238.
186. Locke, Letter, 33.
187. Ibid, 31.
188. It should be noted that Locke rejected any suggestion that the Dissenters were not Christian: Nibil I. Matar, "John Locke and the Jews", Journal of Ecclesiastical History 44 (1993), 47. See further, Michael S. Rabieh, "The Reasonableness of Locke, or the Questionableness of Christianity", Journal of Politics 53 (1991), 941: "The only necessary article of faith according to Locke is the belief that Jesus is the Messiah".
189. Matar notes, however, that Locke was "conversionist" to the Jews: "[W]hile Locke grew tolerant toward the dissenters and defended their rights, he became conversionist towards the Jews and considered them exclusively as potential Christians whose final place of residence was outside England" [Matar, "John Locke and the Jews", 46].
190. Matar, ibid, 52.
191. Goldie, "John Locke's Circle and James II", 586.
192. Contrary to the common view of the era, Locke argued a contractual view of citizenship thereby enabling people to change their nationality. See Locke, Two Tracts, 389:
This plain then, by the Practice of Governments themselves, as well as by the Law of right Reason, that a Child is born a Subject of no Country of Government. He is under his Fathers Tuition and authority, till he come to the Age of Discretion; and then he is a Free-man, at liberty what Government he will put himself under.
Resnick states:
[T]he problem of dual allegiance remains troublesome. Though Locke does not directly answer the objection that the newly naturalized Englishman would suffer from a divided loyalty, his understanding of the nature of citizenship offers a solution. This understanding represents a radical break with English tradition and involves a reconceptualization of the relationship between subject and sovereign.... [David Resnick, "John Locke and the Problems of Naturalization", Review of Politics 49 (1987), 379-80].
See further, Resnick, ibid, 381:
Locke's view of allegiance and political obligation suffered no such problems because he adopted a purely voluntaristic and contractual view of political obligation... Locke's view that allegiance was the result of individual choice rather than nature can easily be extended to the possibility of expatriation. In any case, he felt that the loyalty of naturalized citizens would present no greater problem than that of native born citizens.
See further, Joseph H. Carens, "Aliens and Citizens: The Case for Open Borders", Review of Politics 49 (1987), 251.
193. Creppell notes:
[O]ne cannot excuse Locke's anti-Catholicism and his fear of atheism completely as being the inevitable products of his age: others (e.g., Pierre Bayle [also Burthogge, see further Goldie, "John Locke's Circle and James II", 583ff]) had not excluded Catholics or atheists from toleration. To conjecture about what led Locke to adhere so closely to these common prejudices may be an interesting psychological exercise, but his commonness on these accounts should not cancel out the underlying implications of his defense of toleration. It is these implicit grounds that should occupy one's attention rather than the fact that Locke was not as far ahead of his time as moderns might expect [Creppell, "Locke on Toleration", 237 (emphasis mine)].
194. Jacqueline R. Hill, "Popery and Protestantism, Civil and Religious Liberty: The Disputed Lessons of Irish History 1690-1812", Past and Present 118 (1988), 113.
195. R. James Ferguson. Meeting on the Road: Cosmopolitan Islamic Culture and the Politics of Sufism (Bond University, Gold Coast: Centre for East-West Cultural and Economic Studies, 1996) 10.
196. For a discussion of this issue, see Bhikhu Parekh, "The Rushdie Affair: Research Agenda for Political Philosophy", Political Studies 38 (1990). With respect to issues of religious freedom within the Islamic religion, see generally: Mahmood Monshipouri, "Islamic Thinking and the Internationalization of Human Rights", Muslim World 84 (1994); Ferguson, Meeting on the Road; Bassam Tibi, "Islamic Law/ Shari'a, Human Rights, Universal Morality and International Relations", Human Rights Quarterly 16 (1994).
197. See further, Kolodner, "Religious Rights in China"; Jin Tian, "Complexities of Human Rights in Today's World", Beijing Review 33 (1990); Clyde-Ahmad Winters, "China's New Religious Freedom", Contemporary Review 247 (1985).
198. The other being Lafayette. Gary Kates, "From Liberalism to Radicalism: Tom Paine's Rights of Man", Journal of the History of Ideas 50 (1989), 587.
199. David Caute, "Man of Rights", New Statesman and Society 2 (1989), 14. Paine was, however, arrested in December 1793 by the Committee of Public Safety and Surety General and sentenced to death, although he did manage to escape. For a close analysis of The Rights of Man and the impact of the French Revolution upon Paine, see Kates, "From Liberalism to Radicalism: Tom Paine's Rights of Man".
200. Ferguson, Meeting on the Road, 10.
201. David M. Fitzsimons, "Tom Paine's New World Order: Idealistic Internationalism in the Ideology of Early American Foreign Relations", Diplomatic History 19 (1995), 585.
202. John W. Seaman, "Thomas Paine: Ransom, Civil Peace, and the Natural Right to Welfare", Political Theory 16 (1988), 123.
203. Ibid.
204. In Seaman, ibid, 135.
205. Seaman, ibid, 123.
206. McWilliams, "Civil Religion in the Age of Reason", 472.
207. David Caute, "Man of Rights", 12. McWilliams ("Civil Religion in the Age of Reason") notes at 473:
Paine does not intend to 'purify' Christianity. He does, however, attempt to dissociate Jesus from Christian faith, arguing that Jesus - who taught an 'excellent sort' of morality, including belief in the equality of man - never meant to found a new religion. Once Jesus' story is cleared of myth, Paine contends, he is revealed as a 'virtuous reformer and revolutionist,' put to death by Jewish priests and the Roman state.
208. In Caute, "Man of Rights", 13.
209. McWilliams, "Civil Religion in the Age of Reason", 478; see further, Rousseau, The Social Contract, at 182:
[T]he religion of humanity, or Christianity, not the Christianity of today, but that of the Gospel... is altogether different. Under this holy, sublime and true religion, men, as children of the same God, look on all others as brothers, and the society which unites them is not even dissolved by death.
But this religion, having no specific connexion with the body politic, leaves the law with only the force the law itself possesses, adding nothing to it; and hence one of the chief bonds necessary for holding any particular society together is lacking. Nor is this all: for far from attaching the hearts of the citizens to the state, this religion detaches them from it as from all other things of this world; and I know of nothing more contrary to the social spirit.
Melzer summarises Rousseau's critique of Christianity as follows: "It destroys political unity and republican virtue, increases intolerance and clerical tyranny, weakens private morality, especially family morals, and, in doing all this divides the human soul" [Arthur R. Melzer, "The Origin of the Counter-Enlightenment: Rousseau and the New Religion of Sincerity", American Political Science Review 90 (1996), 358]. He describes "On Civil Religion" as, "in its candour and comprehensiveness, provid[ing] the single best statement of the underlying antireligious thrust of early modern philosophy as a whole... [It] is the clearest statement we possess of the political problem of Christianity" [at 344-45].
210. In Caute, "Man of Rights", 12.
211. In David Braff, "The Forgotten Founding Father: The Impact of Thomas Paine", The Humanist 47 (1987), 23.
212. In Braff, ibid, 38.
213. Religious freedom - encompassing the equalitarian principle (establishment clause) and the libertarian principle (free exercise clause) mentioned above n. 12, is enshrined in the first amendment.
214. See for example, the Treaty of Westphalia, "the first international agreement to provide protection to religious minorities, although it did not guarantee such freedoms to all minority groups" [in Kolodner, "Religious Rights in China", 457]. The Treaty provides for example,
That those of the Confession of Augsburg, and particularly the Inhabitants of Oppenheim shall be put in possession again of their Churches, and Ecclesiastical estates, as they were in the Year 1624. As also that all others of the said Confession of Augsburg, who shall demand it, shall have the free Exercise of their Religion, as well in publick Churches at the appointed Hours, as in private in their own Houses, or in others chosen for this purpose by their Ministers, or by those of their Neighbours, preaching the Word of God.
Article xxviii, as reproduced in <http://www.tufts.edu/departments/fletcher/mult/texts/historical/westphalia, txt>.
215. Ashmal, "Democracy and Human Rights", 290.
216. Although the "rights" tradition is more philosophical than legalistic, it is interesting to note the recognition of the role of religion in early international jurisprudence (more general rights are, however, also recognised by Grotius. See further his Introduction to the Jurisprudence on Holland; Gary D. Glenn, "Inalienable Rights and Locke's Argument for Limited Government: Political Implications of a Right to Suicide", Journal of Politics 46 (1984), 82ff). This is apparent when examining the developmental stages of the principles of humanitarian intervention - the right of one State to wage war against another for a cause not its own. As early as Gentili (1552-1608), it was acknowledged that "if subjects are treated cruelly and unjustly, [the] principle of defending them is approved" [in Theodore Meron, "Common Rights of Mankind in Gentili, Grotius and Suàrez", American Journal of International Law 85 (1992), 155]. Generally speaking, this was recognised in relation to religious oppression - a sign of the times, as the "founders of modern international law" (generally recognised to be Gentili and Hugo Grotius (1583-1645), although Francisco Suàrez (1548-1617) is also prominent) lived during the era of the Reformation and Counter-Reformation.
The Vindiciae contra tyrannos (1579), for example, states that "it is the right and duty of princes to interfere on behalf of neighbouring peoples who are oppressed on account of adherence to the true religion, or by any obvious tyranny...." [in Meron, ibid, 110 (footnote)]. Furthermore, Suàrez - a Jesuit scholar generally opposed to the principle of intervention - recognised the right when, "a state worshipping the one God inclines toward idolatry through the wickedness of its prince" [ibid, 113]. He went on to state that waging war would only be justified, "if the prince forcibly compelled his [presumably Christian] subjects to practice idolatry, but under any other circumstances, [there] would not be a sufficient cause for war, unless the whole state should demand assistance against its sovereign" [ibid].
217. Theo C. Van Boven, "Religious Liberty in the Context of Human Rights", Ecumenical Review 37 (1985), 347ff.
218. Van Boven states, "[i]nsofar as one may legitimately speak of human rights in that period [the seventeenth, eighteenth and early nineteenth centuries], the international community recognized those rights as primarily or even exclusively belonging only to Christians" [ibid, 345-46]; as such, "Originally, international treaties on religious liberty covered only the main Christian confessions. Later, smaller Christian churches were included, and the circle was enlarged to encompass Jews, Muslims, and adherents of other religions" [at 346]. He notes that Wilson's proposal to include an article on religious liberty of the Covenant of the League of Nations was rejected as "the majority of negotiators lost interest in Wilson's proposal as soon as Japan sought to link the idea of religious liberty with a provision on racial equality and the equality of states" [at 347]. This emphasises once again the importance of religious liberty in the founding of modern human rights doctrine: in large part, religious minorities were the first minorities to receive protection - well before racial, cultural or political minorities.
219. In Ravitch and Thernstrom, The Democracy Reader, 182. The four freedoms were : 1. "freedom of speech and expression..."; 2. "freedom of every person to worship God in his own way..."; 3. "freedom from want..."; and 4. "freedom from fear" [ibid].
220. Charter of the United Nations, art. 55(c) - note art. 56: "All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in article 55." See also art. 1, para. 2, 3; art. 13, para. 1(b) [Role of the General Assembly]; art. 62, para. 2 [Role of the Economic and Social Council]; art. 68; art. 76(c) [Objectives of the trusteeship system].
221. Ibid, preamble.
222. Ibid, art. 1, para. 3. See also para. 2: "To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples....".
223. Universal Declaration of Human Rights [U.D.H.R.], G.A. Res. 217, GAOR, U.N. Doc A/8II. For: 48; Abstained: 8 [Byelorussian S.S.R., Czechoslovakia, Poland, Saudi Arabia, Ukrainian S.S.R., U.S.S.R., Union of South Africa, and Yugoslavia]; Against: 0.
224. U.D.H.R., art. 3.
225. Ibid, art. 15.
226. Ibid, art. 4.
227. Ibid, art. 9.
228. Ian Brownlie, Basic Documents in International Law (4th Ed.) (Oxford: Clarendon, 1995), 262.
229. U.D.H.R., art. 62, para. 2.
230. [I.C.E.S.C.R. and I.C.C.P.R.], Annex to G.A. Res 2200 (XXI), 21 U.N. Supp. (No. 16) U.N. Doc. A/6316 (1966). The First Covenant came into force June 3, 1976, and the Second, March 23, 1976.
231. See Koshy, "The Ecumenical Understanding of Religious Liberty", at 141:
The [World Council of Churches' First] Assembly's call for an international bill of rights was in the context of active participation by the churches in the discussion on the draft of the Universal Declaration of Human Rights. Article 18 of the Declaration was the result of these efforts and closely reflected the principles of the Amsterdam Declaration.
232. U.D.H.R., art. 18.
233. See also art. 18, para. 3 of the I.C.C.P.R: (below at n. 240) and art. 1, para. 3 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief [D.R.I.D.] [G.A. Res. 36/55, UN GAOR, 36th Sess. Supp. No 51 Doc A/35/51].
234. See for example, the criteria laid down by the High Court of Australia in The Church of the New Faith v The Commissioner for Payroll Tax (Vic) (1983) 49 ALR 65, 74 [as discussed below at page 59ff].
235. See for example, art. 2: "If any of our earls or barons, or others holding of us in chief by military service shall have died, and at the time of his death his heir shall be of full age and owe 'relief' he shall have his inheritance on payment of the ancient relief..." [reproduced in Albert Beebe White and Wallace Notestein (eds), Source Problems in English History (New York: Harpers and Brothers, 1915) (emphasis mine)].
236. U.D.H.R., art. 2: "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
237. The right to marry freely and to found a family.
238. U.D.H.R., art. 16, para. 1: "without any limitation due to race, nationality or religion".
239. Ashmal, "Democracy and Human Rights", states at 287:
[T]hree categories of rights... are now part of the patrimony of humankind - the traditional civil and political rights (the 'blue' rights) or first generation of rights; economic, social and cultural rights (the 'red' rights) deeply influenced by the socialist tradition of rights; and the third generation of collective or 'green' rights, the right to self-determination, to development, to peace and an environment free of pollution.
Generally speaking, the First Covenant may be said to contain the 'red' rights, the Second, the 'blue' rights, with subsequent international agreements concerned with the 'green' rights. The Second Covenant is therefore generally considered to deal with the "traditional rights" [per Ashmal, above] commonly indicated by the term "human rights".
240. I.C.C.P.R., art. 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.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The State Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
241. Ibid, art. 2, para. 1; art. 4, para. 1; art. 20, para. 2; art. 24, para. 1; art. 26; art. 27.
242. Ibid, art. 4, para. 1.
243. Ibid, art. 4, para. 2. The other articles reserved are article 6 ("Every human being has the inherent right to life..."); article 7 ("No one shall be subjected to torture...); article 8 [para. 1 ("No one shall be held in slavery...") and 2 ("No one shall be held in servitude."]; article 11 ("No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation."); article 15 ("No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence..."); and article 16 ("Everyone shall have the right to recognition everywhere as a person before the law").
244. Kolodner, "Religious Rights in China", 459.
245. Ibid, 479.
246. Van Boven, "Religious Liberty in the Context of Human Rights", 349. z
247. These are laid out in the Vienna Convention on the Law of Treaties [V.C.L.T.] [U.N. Doc. A/CONF, 39/27 (1969)]. See also art. 38 of the Statute of the International Court of Justice [U.N.T.S. xvi (1945)].
248. As of 1995, there were 185 member states [Brownlie, Basic Documents in International Law, 1].
249. Brownlie, ibid, 255.
250. "The Universal Declaration, as a projection of the U.N. Charter, and particularly as international customary law, binds all states", U.N. Doc E/CN. 4/1987/23 at 4-5 (1987). See also the Proclamation of Teheran: the declaration constitutes "an obligation for members of the international community" [23 GAOR, A/Conf. 32/41] and the non-governmental Montreal Statement, Review of the International Commission of Jurists 9 (1968), 96.
251. For example, Leslie Sohn, "The New International Law: Protection of the Rights of Individuals Rather than States", American International Law Review 32 (1982), 17. See also Renaldo Galindo Pohl, the U.N. Human Rights Commission's Special Representative in Iran, as quoted in Theodore Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford: Clarendon, 1989), 84.
252. Courts exercising national, provincial or local jurisdiction.
253. Filartiga Pena-Irala 630 F. 2d 876 (2d Cir. 1980); Rodriguez-Fernandez v Wilkinson 505 F. Supp. 787 (D. Kan 1980); Tel-Oren v Libyan Arab Republic 726 Fed. 2d 744 (DC Cir. 1986); Von Dardel v Union of Soviet Socialist Republic 623 F. Supp. 246 (DDC 1985); Forti v Suares-Mason 672 F. Supp. 1531 (1987) and a decision of the German supreme constitutional court, the Bundesvergassungsgericht, at 31 BvrgGE 58, 67-8 (1981).
254. Namibia Case (1971) ICJ 16, per Ammoun J. and United States Diplomatic and Consular Staff in Teheran (1980) ICJ 3 at 42.
255. I.C.E.S.C.R., art. 26, para. 2; I.C.C.P.R., art. 48, para. 2; more generally, V.C.L.T., art. 34 [note, however, art. 38].
256. Brownlie, Basic Documents in International Law, 262.
257. Art. 38 of the Statute of the International Court of Justice ["1. The Court... shall apply... (b) International custom, as evidence of a general practice accepted as law"].
258. Donna Sullivan, in Kolodner, "Religious Rights in China", 481.
259. D.R.I.D., art. 4, para. 2.
260. Kolodner, "Religious Rights in China", 461. See further at 480:
As one commentator noted, '[a]lthough only a declaration and not an obligatory treaty, the document... carr[ies] with it the considerable weight of representing... the agreed views of the organised international community...'. Another observer concurred that it is apparent 'that the United Nations General Assembly intended that [the D.R.I.D.] be normative and not merely hortatory'.
261. Indeed, the experience of the European Commission of Human Rights suggests that it is extremely difficult to enforce these rights: "by 1991, only two violations of article 9 [of the European Convention of Human Rights, the equivalent of art. 18 of the U.D.H.R.] had been found by the Commission, and the Court of Human Rights has ruled only once that there has been a violation of article 9 [in James T. Richardson, "Minority Religions, Religious Freedom, and the New Pan-European Political and Judicial Institutions", Journal of Church and State 37 (1995), 44 (emphasis in original)]. Richardson notes that complainants generally succeed under art. 10 (freedom of expression) or art. 14 (prohibition of discrimination). Indeed, art. 9 has been more frequently used to limit religious freedom (art. 9, para. 3 is substantially similar to art. 18, para. 4 of the I.C.C.P.R., placing limits on religions on the basis of "public order, health or morals" or "for the protection of the rights and freedom of others"). With respect to problems of the interpretation or enforcement of human rights and international covenants generally, see further Tom R. Farer, "Human Rights in Law's Empire: The Jurisprudence Law", American Journal of International Law 85 (1991).
262. Van Boven, "Religious Liberty in the Context of Human Rights", 348.
263. Tibi frequently refers to the European origin of these rights stating, for example, "[h]uman rights are individual entitlements that evolved from European modern thought on natural law" [Tibi, "Islamic Law/ Shari'a, Human Rights, Universal Morality and International Relations", 278], and further, "[i]ndividual human rights are clearly a cultural concept of morality, European in origin" [at 280]. See further, Van Boven, "Religious Liberty in the Context of Human Rights", 345ff; Collinson, "Religion and Human Rights"; Jin, "Complexities of Human Rights in Today's World"; William J. Everett, "Religion and Federal Republicanism: Cases from India's Struggle", Journal of Church and State 37 (1995).
264. See, for example, Audi, "The Separation of Church and State", and Swidler, "Separation of Religion and State".
265. For example, within three months of the announcement of the French separation of church and state (1905), Pius X pronounced a vigorous condemnation in the encyclical, Vehementer vos (see further, Fohlen, "American Catholics and the Separation of Church and State in France", 742ff). Despite the Declaration on Religious Freedom, the present Catechism still charges Catholics to "seek recognition of Sundays and the Church's holy days as legal holidays [Catechism of the Catholic Church (Australian/ New Zealand edition) (Homebush, N.S.W: St. Pauls, 1994), §2188 (emphasis mine)].
266. Through the implementation of the Shari'a (Islamic law). For a useful introduction, see Dennis J. Wiechman, Jerry D. Kendall and Mohammed K. Azaria, "Islamic Law: Myths and Realities", <http://www.acsp.uic.edu/OICJ/PUBS/CJI/120313.htm>.
267. "The Report of the Special Rapporteur on the Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief" noted, for example, that in Afghanistan, "Non-Muslims are strictly forbidden to prosyletize" [(1994) U.N. Doc. E/CN.4/1995/91: Special Rapporteur Abdelfattah Amor].
The issue of proselytising is interesting in itself. In a speech given in 1994, the Russian Orthodox Archbishop of Kerch, Anatoly Kuznetsov, effectively called upon other churches to respect the status of the Orthodox religion in the era of burgeoning religious freedom in the former Soviet Union:
The Russian Orthodox Church condemns proselytism and does not allow it in its own practice...
The Russian Church is not against witnessing to Christ by these evangelists from abroad, but we would like them to keep contact with their Orthodox brothers and sisters, so as to witness to Christ among the Orthodox population by leaving these people within their own Orthodox Church, not by leading them through artificial means into a new denomination.
Anatoly Kuznetsov, "Ecumenism, Evangelization and Religious Freedom in Russia", Journal of Ecumenical Studies 33 (1996), 23).
268. Article 8.a of the "Religion in the Public Schools: A Joint Statement of Current Law", <http://www.louisville.edu/~tnpete01/church/jnt_sta.htm>, 1995.
269. See Audi, "The Separation of Church and State", 264: "It is difficult to say whether the neutrality principle prohibits allowing conscientious objector status only to people with appropriate religious objections to war, and not on moral grounds alone".
270. For example, the reports of 1995 [United States Department of State, "Germany: Human Rights Practices, 1995", <http://www.gdn.org.ftp/US_State_Department/Human_
Rights_Report_1995/germany.txt>, 1996] and 1996 [United States Department of State, "Germany: Human Rights Practices, 1996", <http://www.state.gov/
www/issues/human_rights/1996_hrp_report/germany.html>, 1997].
271. "Report of the Special Rapporteur", at 10ff.
272. The Special Rapporteur noted that, for example,
In March 1992, the administrative director of the State capital Dusseldorf is said to have distributed a list naming firms employing Scientologists and in particular the Director-General of Dusseldorf Fair Ltd. In March 1992, it is alleged that the city of Dusseldorf published an order against the Director-General of the Kempe Ltd., real estate company and cancelled the right of Mr and Mrs Kempe to recruit apprentices to learn the trade of estate agent because of their religion [ibid].
273. As reported in "Germany: Human Rights Practices, 1996".
274. As reported of Bavaria, ibid.
275. Ibid. See further, "Germany: Human Rights Practices, 1995". In sum, the report notes:
Members of the Church of Scientology continue to allege both social and government-condoned harassment, such as being fired from a job or expelled from (or not permitted to join) a political party. Major German political parties exclude Scientologists from membership, arguing that Scientology is not a religion but a for-profit organization, whose goals and principles are inconsistent with those of the political parties. Business firms whose owners or executives belong to the Church of Scientology may face boycotts and discrimination, sometimes with governmental approval. Artists have been prevented from performing or displaying their works because of their Scientology membership. Public criticism of Scientologists by leading political figures increased during the year, with one Cabinet member publicly stating that Scientologists were unfit to serve as teachers, police officers, or professors. Scientologists continued to take such grievances to court, and the courts have frequently ruled in their favor.
276. "Germany: Human Rights Practices, 1996".
277. See for example, Richardson, "The New Pan-European Political and Judicial Institutions", 52ff.
278. See the extensive list of decisions as citied in B. Koreen <koreenb@aol.com>. "German Court Decisions", <http://superlink.net/user/mgarde/koreenb.txt>, 1996 [note, this is not merely restricted to German decisions].
279. The Church of the New Faith v The Commissioner for Payroll Tax (Vic) (1983) 49 ALR 65, 74.
280. Expertise by Jacques Robert (Professor of Public Law and President of Paris University 2), cited in Koreen, "German Court Decisions".
281. Scientology Mission of Frankfurt v City of Frankfurt, Administrative Court of Frankfurt/ Main, No. IV/2 E 2234/86.
282. Notably Germany but other nations as well:
This year [1995], German courts have stripped Scientology of its religious status and its tax exemption. They have ordered Scientology to reregister as a business and to pay its staff a proper wage... The French too have withdrawn tax exemption and religious status. The Danes have withdrawn missionary status. A major prosecution is about to occur in Spain, following another in Italy. In Canada, Scientology has recently been forced to pay $3 million in the largest libel award in the history of that country.
In Jonathan Caven-Atack, "Scientology: Religion or Intelligence Agency?", <http://www.xs4a11.n1/~kspaink/cos/comments/jaberlin.html>, 1995.
283. There are 27 "levels" of Scientology: Atack, ibid.
284. "Germany: Human Rights Practices, 1995".
285. Claudia Nolte, Minister of Family Policy, in "Germany: Human Rights Practices, 1996".
286. The term used by the court.
287. Sentencing Memorandum in U.S.A. v M.S.H. et al., U.S. District Court for the District of Columbia, criminal case no. 78-401 (1978), at 1-4, 14 [emphasis mine].
288. Such a purpose test may be analogous to the long standing rule of characterisation in constitutional law. See, for example, Leask v Cth of Australia (1997) 140 ALR 1 as the latest example of this test in Australia (note particularly the judgment of Brennan C.J.).
289. See, for example, Atack, "Scientology: Religion or Intelligence Agency?".
290. John P. O'Donnell, "Predicting Tolerance of New Religious Movements", Journal for the Scientific Study of Religion 32 (1993), 356.
291. Thomas, Summa Theologica I-II 9.5 ad. 3 and I-II 14.1, ad. 3.
292. See for example J. S. Mill, On Liberty (London: Penguin, 1985), especially chapter 1.
293. Particularly given the limitation with respect to "morals" [I.C.C.P.R., art. 18, para. 3] or "the just requirements of morality" [U.D.H.R., art. 29, para. 2].
294. Or, alternatively, religions sufficiently closely associated with those churches to enjoy their benefits.
295. Shah Bano Begum v Mohammed Ahmed Khan AIR 1985 SCR 945. With respect to this case, see further: Ali Asghar Engineer (ed.), The Shah Bano Controversy (Hyderabad: Orient Longman, 1987) and Arun Shourie, India Controversies: Essays on Religion in Politics (New Delhi: ASA Publications, 1993); Bruce Lawrence, "Woman as Subject/ Woman as Symbol: Islamic Fundamentalism and the Status of Women", Journal of Religious Ethics 22 (1994); and Kavita R. Khoury, "The Shah Bano Case: Some Political Implications", in Robert S. Baird (ed.), Religion and Law in Independent India (New Delhi: Manohar Publishers, 1993), 121-38.
296. Code of Criminal Procedure 1872 (revised 1898, 1978), s. 125.
297. Using the short form (talaq al-bida) which is "usually rejected by Muslim legal scholars": Everett, "Religion and Federal Republicanism", 72.
298. Everett, ibid, 64.
299. Muslims, for example operate under the Shariat Act (1937) and the Muslims Marriage Act (1939), while Christians are governed by the Indian Divorce Act (1869), the Christian Marriage Act (1872) and the Indian Succession Act (1925).
300. Everett, "Religion and Federal Republicanism", 71.
301. Ibid, 73.
302. Ibid. Everett further states, "As a result of a last minute amendment, the bill allowed women to sue under the provisions of the criminal code only if they received prior permission from the husband to do so, hardly a likely event".
303. Everett describes this as "a transparent effort to transfer their custody to [the husband], even before the customary ages when children revert from their infantile custody by their mother to their adolescent custody by their father" [ibid].
304. I.C.C.P.R., art. 27 states:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
305. Everett, "Religion and Federal Republicanism", 74.
306. Shah Bano, after enormous pressure, lodged notice with the Supreme Court that she would not seek to claim the maintenance which had been awarded to her. The new legislation is such that a Muslim woman in India would not be able to proceed even this far.
307. See especially articles 2, 7 and 30 of the U.D.H.R and the I.C.C.P.R., articles 2, 5, 14, 16, 23 (para. 4: "State Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution...."), 26. Particularly note art. 30, of the U.D.H.R. (identical to art. 5, para. 1 of the I.C.C.P.R.):
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
308. Note for example, the early difficulties for municipal courts created by non-theist religions. See particularly the judgment of Justice Black in Torasco v Watkins 367 US 488, especially n. 11. A line must be drawn between non-theist religions and merely life codes based upon philosophical viewpoints.
309. U.D.H.R., art. 29, para. 92.
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