Böckenförde, Religious Freedom and the Open Neutrality of the State

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”[1], 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.


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Religious Freedom and Ecclesial Illiberalism

Mikhail Antonov is a Professor of Law associated with the Law Faculty of the National Research University Higher School of Economics in Saint Petersburg

Similar changes in the world today urge different religious denominations to respond similarly. In recent years it was not uncommon for the Catholic Church and the biggest Orthodox Church—the Russian Orthodox Church (the ROC), all their theological differences notwithstanding, to come to close conservative conclusions in the matters of church-state relations, human rights, religious freedom, and some other key problems of political and legal philosophy.

As their credos presuppose the Absolute—the source of absolute truths and values—it comes as no surprise that both churches demonstrate their distrust with ideas and conceptions based on religious pluralism and ethical relativism which are often associated with liberal democracy.


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Neutrality and “Religious Freedom for the Good of All”

Jeremy Patrick is a Lecturer for the University of Southern Queensland School of Law and Justice

There are many laudable statements in “Religious Freedom for the Good of All.”  The document acknowledges the Church must exist in a pluralistic and multicultural society (para. 10), that individual freedom is the birthright of every human being (para. 37), that coercion is not a legitimate means of religious conversion (para. 41), that the existence of “intermediary bodies” (including religious associations) between the individual and the state is crucial for a well-functioning society (para. 52), and that the free exercise of religion should be limited only when the rights of others or the necessities of public order are infringed (para. 79).  These may not be new positions for the Catholic Church since 1965, but they certainly represent real progress in the Church’s understanding of religious freedom across its long (and in the document, carefully-elided) history (see, e.g., para. 27).

The irony is that they are all also quintessential elements of the self-professedly “neutral” secular liberal democratic state that is repeatedly castigated throughout the document. According to the document, the liberal state is (somehow) simultaneously indifferent to religion (and thus responsible for the rise of “religious radicalization”) but also actively hostile to religion (and thus responsible for a “soft totalitarianism”) (para. 4). The heart of the problem, we’re told repeatedly, is the false idol of state neutrality towards religion (para. 5, 62-65, and 86).


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