In honor of the fiftieth anniversary of Dignitatis Humanae, Cornerstone asks its authors to address the question of how to interpret and define Dignitatis: What is the core teaching of the document as it relates to religious freedom? To what extent should Dignitatis be read as a declaration on individual freedom, the freedom of religious communities, or both? How does this teaching relate to, and develop, earlier teaching by the Catholic Church on religious freedom?
By: Richard Garnett
The Declaration on Religious Freedom famously affirmed, “the right to religious freedom…has its foundation in the very dignity of the human person as this dignity is known through the revealed word of God and by reason itself.” This aspect of Dignitatis Humanae is familiar. Another theme, though, is more often overlooked but crucially important today.
Consider, first, this passage:
“Since the common welfare of society consists in the entirety of those conditions of social life under which men enjoy the possibility of achieving their own perfection in a certain fullness of measure and also with some relative ease, it chiefly consists in the protection of the rights, and in the performance of the duties, of the human person. Therefore the care of the right to religious freedom devolves upon . . . government [.]”
Next, this one:
“The protection and promotion of the inviolable rights of man ranks among the essential duties of government. Therefore government is to assume the safeguard of the religious freedom of all its citizens, in an effective manner, by just laws and by other appropriate means. Government is also to help create conditions favorable to the fostering of religious life, in order that the people may be truly enabled to exercise their religious rights and to fulfill their religious duties[.]”
And, finally, a third:
“Government therefore ought indeed to take account of the religious life of the citizenry and show it favor, since the function of government is to make provision for the common welfare.”
Taken together and in context, these passages propose what probably is for many Americans an intriguing claim: It is the business and duty of governments to promote and secure the “common good” of society and this task includes not only preventing violations of persons’ rights but also helping to create conditions that are “favorable to the fostering of religious life.” A government that is doing its job, in other words, is not blind or indifferent to the existence and the flourishing of religious life. Instead, such a government will, again, “take account of the religious life of the citizenry and show it favor[.]”
Is there room for this claim in the American law and tradition of religious freedom? What about, for example, James Madison’s famous insistence that “Religion is wholly exempt from [the] cognizance” of government? What about the black-letter requirements of the Supreme Court’s “Lemon test” that all state actions have a “secular purpose,” that public policies not “advance” or “support” religion, and that laws and regulations not excessively “entangle” government and religion (or, perhaps, the “religious life of the citizenry”)? What about the “wholesome” but still “strict neutrality” that, according to Justice Clark in his 1963 school-prayer opinion, the First Amendment commands?
It turns out, I think, that governments and officials in the American tradition are notrequired or even asked to be “neutral” with respect to the good of religious freedom, even if they are charged with a duty of evenhandedness among and between religious believers, institutions, and communities. Yes, the state should remain “neutral” with respect to theological questions—primarily because the resolution of such questions is outside the jurisdiction, and not just the competence, of civil authorities—but it may and should affirm enthusiastically that religious freedom is a good thing that should be protected and nurtured in law and policy.
To be clear: It is not that the “secular” authority is charged with the direct care of true religion itself or obliged to “defend the faith.” In the Declaration, as in the American tradition, the government’s function with respect to religion is “secular.” It is, in John Courtney Murray’s words, “confined to a care of the free exercise of religion within society—a care therefore of the freedom of the Church and of the freedom of the person in religious affairs.” This task is, again, “secular,” because—as Murray said—“freedom in society [is] a secular value—the sort of value that government can protect and foster by the instrument of law.”
How, in practice, might secular, political authorities “foster” this “value”? Certainly, they should broadly and generously accommodate religious commitments and religiously motivated activity, through exemptions and otherwise. We might add to the list policies such as generous tax-exemptions for religious institutions, financial assistance to parents who desire but cannot afford to send their children to religious schools, and the provision of chaplains and religious services in prisons and in the armed forces. In addition to these and other specific policies, governments should—as I have argued at length elsewhere—build, maintain, and nurture the “infrastructure” of religious freedom, which includes a rich array of thriving, distinctive, and self-governing institutions. It turns out that the political community can protect religious freedom appropriately only if there are at work in society associations and authorities that are not merely political.
The Declaration itself does not have much to say about the “conditions” in which religious freedom thrives. However, other documents of the Second Vatican Council—including Gaudium et Spes, which was promulgated on the same day—brimmed with references to the importance of “culture.” These references are important, and sobering. In a recent essay, my colleague Prof. Gerard Bradley reminds us that “religious liberty is a cultural achievement.” And, he suggests, it is one that “history and current events show to be uncommon and fragile.” A culture that has uncritically absorbed and that too enthusiastically promotes the view that religious freedom consists only of those concessions that cause no inconvenience and is not, instead, what is owed by a political community to human dignity is probably not one in which the “conditions” are “favorable” for religious life. It seems, however, that, increasingly, it is the culture that we have.
Richard Garnett is Associate Dean for Faculty Research and Professor of Law and Concurrent Professor of Political Science at the University of Notre Dame Law School.
This piece was originally authored on December 15, 2015 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.