Mirjam Künkler is a Research Professor at the Netherlands Institute for Advanced Study
Tine Stein is a Professor of Political Theory and History of Ideas at the University of Göttingen
Ernst-Wolfgang Böckenförde (1930-2019) was one of Europe’s leading thinkers on constitutional history, theory, and questions of Catholicism and public law. Incidentally, it is on the topics of religious freedom and individual conscience that he consolidated his profile as a proponent of inner-Catholic reform in the 1960s. As this blog series focuses on the 2019 Declaration Religious Freedom for the Good of All, issued by the International Theological Commission, a look back is in order at the document the Declaration is meant to update: Dignitatis Humanae, the 1965 Declaration on Religious Freedom promulgated during the final days of the Second Vatican Council, which reversed the Church’s long-standing rejection of the legitimacy of the secular state.
Dignitatis Humanae and Catholic Shift in Justifying Religious Freedom: Böckenförde’s View
In 1962, as the Second Vatican Council got underway, Böckenförde published an article titled “Religious Freedom as a Mandate for Christians: A Jurist’s Thoughts on the Discussions of the Second Vatican Council”, written to inform the ongoing discussions of the Council. The laity of Catholics had long accepted living in secular-governed, non-Christian states, sharing equal citizenship with non-Catholics and non-believers. But Böckenförde pointed out from the viewpoint of the Catholic magisterium that such positions were still untenable. According to the magisterium, Catholics were still required to live in Christian states, not just nominally Christian-majority states, but states where political authority was Catholic and where Catholic norms were implemented by state authority.
The Second Vatican Council was reconsidering all of this, putting long-standing Catholic doctrine to debate. As the Church’s continuing approach to religious freedom, Böckenförde’s article identified the tolerance theory of 1315, reaffirmed by Pope Pius XII as late as 1953, according to which “religious error had no objective right even to exist,” and as a consequence of which religious freedom was something to be tolerated but, in the final analysis, not to be accepted. What was more, Pope Leo XIII’s 1886 encyclical Immortale Dei had reaffirmed that only a state based on the Christian faith was truly legitimate and that religious liberty and freedom of conscience were illegitimate deviations from Christian natural law.
The position of the Church bewildered Böckenförde when it claimed freedom of religion for itself (e.g., in the concordats negotiated with various states in the 1920s and 1930s) but was not prepared to grant this to others. Applied as such, Böckenförde wrote, the tolerance theory was not a legal principle, but “a power principle”. Böckenförde wrote he had particular trouble comprehending this position as a jurist.
The election of Pope John XXIII in 1963, a champion of the equality of persons irrespective of religious conviction, facilitated a rethinking of these issues based on the theology of creation when he suggested, “We are all made in God’s image, and thus, we all share likeness with God.” For the first time, the 1965 Declaration Dignitatis Humanae grounded religious freedom in the dignity of the human person, which by implication would need to be extended beyond Catholics. The Church thereby abandoned the goal for Christians to live in a Christian public order and facilitated a vision of Christianity as a “religion of freedom.”
When Dignitatis Humanae was first published in the German translation of 1968, it was Böckenförde who was asked to write the introduction. In his introductory commentary, Böckenförde described the Declaration as nothing short of “the Church’s recognition, justification, and development of a principle that makes it possible for persons of different faiths to coexist in freedom under a system that is acceptable to all”.
From a doctrinal point of view, Dignitatis Humanae put the issue to rest that had triggered the confessional wars between Catholics and Protestants: namely, the question of tolerance and religious freedom, “the great path of suffering for western Christendom.” With the declaration, the Church reconciled the right of truth and the claim to individual freedom based on a person’s right to liberty, which is grounded in natural law and theology.
Looking back in 1979, Böckenförde regarded Dignitatis Humanae as the most important declaration among all of Vatican II. It enabled Catholics to embrace the secular state on substantive grounds, not being forced to merely tolerate it because one happened to live in it. As such, the Declaration fulfilled one of his earliest calls for reform, expressed in his 1957 article “The Ethos of Modern Democracy and the Church”. The Church accepted the fundamental principle of reciprocity and acknowledged that it could no longer demand privileges for itself from the public order that it was not also prepared to grant to others.
The Autonomous Liberty of the Individual
With Dignitatis Humanae, the external right to religious freedom was now grounded in the dignity of the human person (ipsa dignitate personae humanae). Whereas all pre-Vatican II declarations (as well as the writings of most early Protestant thinkers) reduced man to an object of religious truth as administered by the Church, for the first time Dignitatis Humanae accepted the autonomous liberty of every individual irrespective of questions of religion. In this entirely new understanding on the part of the magisterium, the objective of state law was no longer to ensure individual salvation and the defense of eternal truths. Instead, state law became divorced from questions of religious truth and was seen as a necessary system to guarantee liberty and societal peace. The pathway to this new understanding was through the realization of reciprocity; the Church, while morally upholding its understanding of truth, signaled its readiness to relinquish the privileges it had traditionally enjoyed in Catholic countries, as these might hinder the secular state’s mission to guarantee religious freedom for all its citizens.
Böckenförde suggested that the impulses for such a radical change in dogma had to be found outside the Church.
When it comes to religious freedom . . . we owe its origins, not to the churches, or theologians, or even Christian natural law, but its theoretical preparation to the Christian Humanists and later to the Enlightenment thinkers, and its practical realization to the modern state, to jurists, and to secular rational law.
The 2019 Declaration and Dignitatis Humanae
The 2019 Declaration Religious Freedom for the Good of All is the fruit of four years of deliberations by the International Theological Commission, a commission of 30 members appointed by the Pope in consultation with the Congregation for the Doctrine of the Faith. One of its main tasks was to update the 1965 Declaration in light of the current dual challenges posed by the greater religious diversity that characterizes most societies around the globe, as well as the growing prominence of a-religiousness and anti-religiousness.
Overall, the 2019 Declaration reaffirms Dignitatis Humanae in all major points and emphasizes religious freedom as a universal freedom. More than its predecessor it points to the consequence that religious freedom must also extend to those criticizing the Church from within.
In addressing the challenges posed by religious diversity and the growing force of secularism, the document often parallels points Böckenförde made in earlier writings. This is particularly salient regarding three issues:
First, the 2019 Declaration places its trust for the protection of religious freedom in the state:
[I]t is up to the political authority, guardian of public order, to defend citizens, especially the weakest, against sectarian tendencies of certain religious claims (psychological and emotional manipulation, economic and political exploitation…) (para. 70).
With it, the 2019 declaration affirms the acceptance and justification of the secular state as the guarantor for religious freedom that was already undertaken in Dignitatis Humanae.
Second, the 2019 Declaration acknowledges that the application of religious freedom cannot be excluded from the realm of religious criticism. Thus, it acknowledges:
It is no longer a question of applying religious freedom only with respect to the religion of others, but also to the criticism of one’s own. This situation poses delicate problems of balance in the application of religious freedom (para. 80).
Böckenförde had dedicated several writings to the legitimate place of debate and critique in the evolution of church doctrine, addressing inter alia the authority of papal encyclicals in church law.
Third, the 2019 Declaration points to violations of religious freedom not only by confessional regimes but also by aggressive forms of secularism which “in fact, impose[..] the marginalization if not exclusion of religious expression from the public sphere” (para. 5). Böckenförde had repeatedly written about models of secularism in which he developed the notion of “open neutrality” of the state towards religion which permits the expression of religiosity in public life and does not banish it to the private sphere.
Böckenförde had developed a thorough justification for why the democratic state should accept religious expression in public life and outlined a differentiation of what this meant in different public spaces. In courtrooms, for example, where the neutrality of state law was being represented, religious symbolism had no place, whereas, in schools, religious symbolism ought to be accepted (such as teachers wearing the headscarf or necklaces with a cross), as respect for differences. This was an important societal value in democratic societies, which schools were meant to support and nourish.
Similar to Böckenförde and citing specifically Pope Benedict, the 2019 Declaration emphasizes the need for such positive secularity:
The State cannot be theocratic, atheistic, or neutral as if the claims of religious culture and religious affiliation were indifferent to the constitution of the real democratic subject. Above all, the State is called to exercise a ‘positive laicity’ (para. 86).
The Church in turn must accept its equality with other social actors in working towards the common good. “Faithfulness to the spirit of the Covenant does not consist in a privileged election that exempts one from the demands of economic justice, the common good, reciprocal respect, and togetherness.” (para. 57)
At the same time, Böckenförde would be reluctant to use the concept of totalitarianism quite as lightly as the Declaration appears to do. The Declaration speaks of the risks of a “soft totalitarianism” of aggressively secularist regimes that “renders the state particularly vulnerable to the spread of a nihilistic ethic in the public domain” (para. 4). Like the International Theological Commission, Böckenförde favors a model of open encompassing secularism over one of strict separationist secularism, but he would guard himself against the inflationary use of references to totalitarianism which require intensive forms of despotism, not merely the “spread of a nihilistic ethic in the public domain” (if that charge is justified in the first place).
Overall, with its affirmation of the secular state, of the role of natural law as an individual ethos instead of a basis for state law, its rejection of exclusionary and aggressive forms of secularism, its views of the role of the state as being entrusted with securing the common good and protecting religious liberty, and its embrace of freedom of conscience, Böckenförde would have welcomed the 2019 Declaration and viewed it as largely congruous with his own calls for inner-church reform stretching six decades from 1957 to 2017.
 “Religionsfreiheit als Aufgabe der Christen. Gedanken eines Juristen zu den Diskussionen auf dem Zweiten Vatikanischen Konzil,” Stimmen der Zeit90:9 (1964), pp. 199–212.
 “A maxim of law applies by its nature universally, not only for me, but also against me. A legal principle that seeks to exclude this mutuality is not a legal principle but a power principle.” Chapter IV, “Religious Freedom between the Conflicting Demands of Church and State” in Ernst-Wolfgang Böckenförde: Religion, Law, and Democracy. Selected Writings. Oxford University Press, 2020, 115-137, here p. 126. See also Ernst-Wolfgang Böckenförde “Die Bedeutung der Konzilserklärung über die Religionsfreiheit. Überlegungen 20 Jahre danach”, Stimmen der Zeit, 5 (1986), pp. 303– 312.
 Ernst- Wolfgang Böckenförde, “Einleitung zur Textausgabe”, in Erklärung über die Religionsfreiheit(Latin and German) (Münster: Aschendorff, 1968), pp. 5– 21, partly reproduced in Chapter IV, Böckenförde 2020 (note 2), pp. 115-137.
 Böckenförde 2020 (note 2), p. 116.
 Chapter I “The Ethos of Modern Democracy and the Church” in Böckenförde 2020 (note 2), pp. 61-76.
Böckenförde 2020 (note 2), p. 121. Towards the end of the article, Böckenförde also treated the topic of doctrinal change in the Church. See also John W. O’Malley, “Does Church Teaching Change? Church Doctrine at Trent, Vatican I, and Vatican II”, Commonweal, 31 July 2019, Does Church Teaching Change? | Commonweal Magazine.
 Chapter XII, “On the Authority of Papal Encyclicals: The Example of Pronouncements on Religious Freedom” in Böckenförde 2020 (note 2), pp. 288-307.
 Chapter VIII, “The Secularized State: Its Character, Justification, and Problems in the Twenty- first Century”, in Böckenförde 2020 (note 2), pp. pp. 220-237, and Chapter VI “The Fundamental Right of Freedom of Conscience” in Böckenförde 2020 (note 2), pp. 168-198.
 Ibid. This certainly concerns the individual’s right to religious expression in the classroom; thus, he endorses teachers’ individual rights to wear the headscarf or jewellery with a cross pendant, for example. Böckenförde has not written anywhere explicitly that he would extend this to crucifixes on the wall, but Ute Sacksofsky interprets his work as endorsing the position that whether crucifixes should be tolerated in classrooms is up to individual schools to decide, thus disagreeing with the First Senate of the German Constitutional Court which in 1995 decided that crucifixes in classrooms violate the Basic Law’s guarantee of religious freedom, Bundesverfassungsgericht, Judgment of May 16, 1995. See Ute Sacksofsky, Ernst-Wolfgang Böckenförde’s Oeuvre on Religious Freedom Applied to Recent Decisions of the European Court of Human Rights, in German Law Journal, 19(2), pp. 301-320.
 For an overview of this work, see Mirjam Künkler, “Freedom in Religion, Freedom in the State: Ernst-Wolfgang Böckenförde on Religion, Law, and Democracy”, in Böckenförde 2020 (note 2), pp. 1-45.