Gary Doxey is Associate Director of the International Center for Law and Religion Studies at the J. Reuben Clark Law School, Brigham Young University.
On the occasion of this First Annual Forum on Law and Religion of the Southern Cone, I would like to address the following question: What should a constitution contain in regard to religious freedom? It is timely to consider this issue since the Republic of Chile is currently drafting a new constitution.
I must emphasize that I speak from an international perspective. I am not Chilean, although Chile is a country very dear to my heart. I deeply respect the responsibility of Chileans, beginning with the honorable members of the Constitutional Convention, to choose the provisions of their constitution. As a foreigner, I merely offer my observations as a student of this subject in the hope that they may be of benefit.
I will begin by recognizing an important problem that exists in today’s world. The threat to religious freedom is real: Religious freedom is in decline throughout the world, and the commitment to religious freedom is diminishing even in modern liberal democracies such as ours, which have historically defended it.
You’ve seen the headlines. Attacks on Christian churches, attacks on mosques, attacks by Hindu nationalists, attacks on synagogues by white supremacists, armed bands of militants in Myanmar massacring Rohingya Muslims and expelling more than 700,000 from their homes, centuries-old Christian communities being depopulated in the Middle East due to violent persecution, Boko Haram murdering and kidnapping thousands in Nigeria, the Yazidi people in Iraq suffering genocide at the hands of ISIS, more than a million Uighur Muslims imprisoned and tortured in concentration camps by authorities in western China, and the list goes on.
Serious violations of religious freedom are occurring in many countries. Since many of the countries where religious freedom is not respected have large populations, it is estimated that about 6.6 billion people, or 85 percent of the world’s population, are living in countries with high or very high levels of religious restrictions .
However, in the Americas, we have been blessed with significant freedom of religion and belief. Despite this, we are observing worrying trends. The clouds begin to appear on the horizon and warn us that a storm is approaching.
According to Pew Research Center’s comprehensive annual reports on the status of religious freedom throughout the world, the largest and fastest increases in governmental harassment with regards to religion have occurred in Europe and the Americas in recent years. The latest report from the Pew Research Center, published last month, reveals that the governments of 89 percent of all countries in the Americas “harassed religious groups in some way in 2019,” and 80 percent interfered with religious worship .
It’s important to note that these statistics do not take into account government restrictions on religious activities in connection with the pandemic. The data analyzed in Pew’s latest report are from 2019, that is, prior to the pandemic.
Given this reality, now is not the time to be complacent about the protection of religious freedom in the new constitution. It is essential that Chile’s new constitution continue to uphold the enlightened traditions of Western democracy by recognizing and protecting religious freedom.
What are Chile’s core commitments to religious freedom that should be recognized in the constitution?
We can begin by recalling Chile’s international responsibilities. According to the instructions provided to the Constitutional Convention, “the drafting of the new Constitution shall respect … the existing international treaties ratified by Chile.” Regarding religious freedom, Chile is a state party to several treaties and conventions, mainly the International Covenant on Civil and Political Rights, which states in article 18, paragraph 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 .
This broad declaration prepared by the United Nations is binding for Chile and almost all other countries in the world, although not all countries comply with their obligations under the Covenant. The Covenant further states that freedom of religion is non-derogable, that is, that it cannot be suspended even in exceptional situations .
The American Convention on Human Rights adopted by the member states of the Organization of American States is another binding treaty that recognizes religious freedom in similar terms .
International treaties also prohibit coercion with respect to religion. Similarly, they recognize the right of parents to have their children receive religious and moral education that is in accordance with their own convictions.
At a minimum, the new constitution must therefore recognize and protect religious freedom in a way that is explicit and consistent with the protections in these treaties. This would fulfill the duty that the Constitutional Convention has to “respect existing international treaties.” On the other hand, I believe that it would be a breach of this duty if the Convention were to decide to dispense with religious freedom, assuming that it is already included in the broader right of freedom of conscience. In fact, the treaties are explicit about religious freedom and the constitution must also be explicit.
These international protections are echoed in all the national constitutions of the American hemisphere and the vast majority of other countries in the world. These constitutions provide explicit protection for religious freedom, each in some way protecting the right to hold a religious belief and to express it or voice it in accordance with the personal judgment each person may hold.
However, religious freedom has limitations just like all other rights. For example, religious freedom does not include and has never included a license to injure other people.
What are the acceptable limitations with respect to human rights that Chile has pledged to uphold? Article 18, paragraph 3, of the International Covenant on Civil and Political Rights provides a very appropriate summary:
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.
The United Nations Human Rights Committee notes that this paragraph “is to be strictly interpreted: restrictions are not allowed on grounds not specified [in this paragraph], even if they would be allowed as restrictions to other rights protected in the Covenant … ” .
It is therefore appropriate that the new constitution set out some type of limit in accordance with the strict limitations mentioned in the international treaties. It is not enough to state in the constitution that limitations on freedom of religion may be prescribed by law, that is, that the right to manifest one’s religion is subject to legislation. A constitutional right that is subject to legislation is no right at all. In order to be a constitutional right, it must be above legislation.
Furthermore, it is imperative that the new constitution recognize a healthy degree of separation between Church and State. This protects both the State and religion. History proves its importance. As our Chilean friend, Professor Jorge Precht, said, “Intolerance, persecution, and discrimination are the fruit of a denomination being used as an instrument of the State” .
There is considerable variety among the systems of separation of Church and State. Each country must define its own system. What is important is to avoid extremes. At one extreme, there is no separation. A given denomination becomes an instrument of the State and all other denominations are collectively suppressed. At the other extreme, the State is hostile to all religions. In this case, secularism becomes the religion of the State. In either of these two extremes, religious freedom does not exist. Between these two extremes, and well removed from either of them, is where religious freedom is found.
In the best practice, a State may find ways to protect, accommodate, and respect the beliefs, practices, and religious organizations of its people in a neutral manner, without favoring any specific denomination and without interfering with them except to the limited extent necessary to legally regulate associations and enforce criminal laws against actions that threaten public safety.
Unfortunately, in Western democracies a growing number of voices are expressing their exasperation with religious freedom and with religion itself. They want to limit religion to private homes and places of worship. They regard religious freedom as an undesirable license to discriminate. They want religion out of the public sphere. They want it out of the constitution, arguing that freedom of conscience is sufficient protection for all, believers and nonbelievers alike. They increasingly equate religion with fanaticism and believe that religious freedom fosters intolerance and is therefore at odds with the rule of law. They view it as an impediment to progress. A few years ago, I heard a debate at the General Assembly of the Organization of American States in which a diplomat coolly suggested that religious freedom is the principal obstacle to the advancement of civil rights. Somehow, they have forgotten that civil rights are themselves the product of religious values and the sacrifices of religiously motivated people, driven by the fundamental belief that we are all equal before God, that we are all brothers and sisters, members of the same human family.
Of course, under no circumstances should we condone intolerance or discrimination—let that be clear. However, we must reconcile laws prohibiting discrimination with other fundamental rights, such as freedom of the press, freedom of expression, and freedom of conscience and religion. Balance is necessary. Rights and freedoms belong to everyone. The carefully worded limitations on religious freedom contained in international treaties serve to protect this balance. They are worthy of being emulated in the new constitution.
In summary, I have suggested four points in response to the following question: What should a constitution contain in regard to religious freedom?
First, in today’s world religious freedom is under threat. This crisis is real and growing, even in the Americas. Continuing to protect religious freedom in Chile’s new constitution is essential.
Second, Chile has an international responsibility to uphold its obligations in accordance with binding treaties on religious freedom. It should do so by explicitly including religious freedom in its new constitution. It is not enough to assume that religious freedom is already included in a broader category of rights, such as freedom of conscience, and therefore does not deserve special protection.
Third, it is important to recognize that religious freedom is not without limits, but these limits are strict. They must take into account other rights. The new constitution should include strict limits that are in line with those established in international treaties.
Fourth, it is essential that the new constitution recognize a healthy degree of separation of Church and State for the protection of both the State and religion.
I will conclude with a brief general reflection on religious freedom that is the result of many years spent studying the issue: Religious freedom is linked to being able to live together peacefully and to the effective functioning of a democratic and pluralistic society.
Religion is often blamed for wars, xenophobia, homophobia, fanatic intolerance, racism and terrorism. Indeed, religion has often been used throughout history for political purposes to suppress dissent and preach intolerance. We call this the instrumentalization of religion, that is, the use of religion by rulers and states to achieve a political objective. When religion becomes an instrument of the state, bad things usually happen. However, this misuse of religion is not a consequence of religious freedom. Rather, this has happened in history when the principles of religious freedom are absent. Strong religious freedom is the safeguard that protects us from the instrumentalization of religion by the State.
Likewise, religious freedom is fundamental to pluralism being able to prevail and democracy being able to function. Religious freedom protects diversity. It validates dissenting views, be they of believers or nonbelievers. It insists on respect for all. When religious diversity is respected, respect for other types of diversity also increases. In short, religious freedom gives us the power to live together peacefully in a world full of diverse opinions, which is paramount for the functioning of democracy.
It is important, even essential, to protect religious freedom in the new constitution.
 See Pew Research Center’s annual reports on the status of religious freedom around the world available at pewresearch.org, including the latest report in the series: Pew Research Ctr., Globally, Social Hostilities Related to Religion Decline in 2019, While Government Restrictions Remain at Higher Levels (30 September 2021).
 Ibid. at 13.
 International Covenant on Civil and Political Rights, adopted and opened for signature, ratification, and accession by the General Assembly Resolution 2200A (XXI) of 16 December 1966, article 18.1. The article states in full,
- 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.
- No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
- 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.
- The States 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.
 International Covenant on Civil and Political Rights, article 4, paragraph 2, explains that the preceding provision, which allows derogation of covenant obligations under certain exigencies, does not allow derogation of article 18, which recognizes freedom of thought, conscience, and religion.
 Article 12 of the American Convention, Freedom of Conscience and Religion, states,
- Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one’s religion or beliefs, and freedom to profess or disseminate one’s religion or beliefs, either individually or together with others, in public or in private.
- No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs.
- Freedom to manifest one’s religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.
- Parents or guardians, as the case may be, have the right to provide for the religious and moral education of their children or wards that is in accord with their own convictions.
 Human Rights Committee, General Comment No. 22, CCPR/C/21/Rev. 1/Add. 4, para. 8 (27 September 1993).
 Jorge Enrique Precht Pizarro, Hacia una laicidad compartida: El pensamiento pontificio sobre laicidad y laicismo de Gregorio XVI al Papa Francisco 6 (2017).