On Religious Freedom and Natural Law

Religious freedom, as a civic right, has its foundation in the natural law:

“The believer has an absolute right to profess his faith and live according to its dictates.   Laws which impede this profession and practice of faith are against the natural law.” (Pius XI, Mit Brennender Sorge, 1937)

This basic right is closely linked to another right rooted in the natural law and mentioned by Pius XI in the same context: “Parents who are earnest and conscious of their educative duties, have a primary right to the education of the children God has given them in the spirit of their Faith, and according to its prescriptions.  Laws and measures which…fail to respect this freedom of the parents go against natural law, and are immoral.” (ibid.)  Such rights are correlative to duties belonging to all men (Catholic and non-Catholic) by virtue of the natural law that has been inscribed onto all hearts.  In this sense, St. Thomas teaches: “Man is directed to God by his reason, whereby he can know Him.  Hence a child before coming to the use of reason, in the natural order of things, is directed to God by its parents' reason, under whose care it lies by nature: and it is for them to dispose of the child in all matters relating to God.”  (S.T. ii-ii, 10, 12)  But must the temporal authority tolerate any kind of religious practice?  Here we must distinguish, following St. Thomas, the two kinds of religious practices.

Two Kinds of Religious Practices 

All men have a duty and corresponding right to obey the prescriptions of the natural moral law.  Therefore, all men have a natural right to civic religious freedom within the [due] limits of the objective moral order as expressed by the natural moral law.  In this sense, we may distinguish between two kinds of religious practices:

St. Thomas…rightly distinguishes two kinds of religious practices: there are those which go against reason and against God insofar as he can be recognized through nature and through the natural powers of the soul, e.g., the worship of idols, etc. Others are contrary to the Christian religion and to its commands not because they are evil in themselves or contrary to reason as, for example, the practices of Jews and even many of the customs of Mohammedans and such unbelievers who believe in one true God.  (Suarez, Tract. de Fide Disp. 18 Sect. III, n. 10)

Religious practices in violation of the natural moral law should not be tolerated by civil authorities unless greater evils would ensue.

Regarding the first, the Church may not tolerate them on the part of her own unbelieving subjects. But that is merely the general principle. It may happen often that Christian rulers cannot prevent even such practices without causing greater harm to the nation and to the Christian inhabitants. In that case, the ruler may tolerate such evil with a clear conscience on the basis of what Christ said to the servant who asked the master whether they should remove the weeds from the field. He replied, 'No, or perhaps while you are gathering the tares you will root up the wheat with them.' (idid. sect. IV, n. 9)

But what are we to think of the second type of non-Catholic religious practice that conforms to the natural law but not to divinely revealed truth?  At a first glance, it could seem tempting to follow the Jansenist error by condemning all that does not univocally conform to supernatural truth: “Everything which is not in accordance with supernatural Christian faith, which works through charity, is a sin.” (DZ. 1301)  Here we must distinguish the “believer” in relation to the supernatural Christian faith from the “believer” in relation to the natural law.  Thus, Suarez indicates those “practices of Jews and even many of the customs of Mohammedans and such unbelievers who believe in one true God.”  Additional light is shed on this distinction by Pope St. Gregory VII in his letter to King Anazir: 

Thou and We are bound therefore by this charity peculiar among us, compared to the remainder of the nations, that we believe in and confess one God, although in a different way, Who we praise and venerate daily as Creator of the ages and Ruler of the same world. (Pope St. Gregory VII, Ep. 21, to Anzir, King of Mauritania, PL 148, col. 451A)

Hanc itaque charitatem nos et vos specialibus nobis quam caeteris gentibus debemus, qui unum Deum, licet diverso modo, credimus et confitemur, qui eum Creatorem saeculorum et gubernatorem hujus mundi quotidie laudamus et veneramur. 

Therefore, religious practices that are in conformity with the natural moral law must be tolerated for the sake of “greater benefits” or a superior good – natural liberty or the right to exercise responsible human freedom:

"Temporal government has its origin in divine government, and it must, therefore to the extent that it can, imitate it. God, however, though He is almighty and infinite, permits certain evils to occur on earth, even though He could prevent them from occurring. He does this because, first of all, by preventing evil in this manner He would deprive man of greater benefits and secondly, because therefore greater evils would result." (ST. ii-ii, 10, 11)

To this Bishop Ketteler adds the following commentary: “The greater benefits which St. Thomas had in mind here are not hard to determine. God would have to deprive a man of his liberty which is the highest endowment that man has, if He were to deny a man every possibility of abusing that liberty.  Applying that principle to temporal governments, St. Thomas concluded that they too must tolerate certain evils, and he stated finally: ‘Even though the non-believers sin because of their religious practices, these must nevertheless be tolerated, either because of the good that they still have in them, or because of the greater evil that would result.’” (Cf. Ketteler, Freedom, Authority and the Church)  In addition to the “greater benefits” of natural liberty required for moral action, we have to consider the [due] limits of temporal authority in the religious sphere as well as the [due] limits of ecclesiastical authority over those “not subject to the spiritual authority of the Church”:

“As regards the other religious practices of unbelievers which go contrary to Christian beliefs but not counter to natural reason, there is no doubt but that the unbelievers, even though they are subjects, may not be forced to abandon them. Rather the Church has to tolerate them.  St. Gregory addressed himself clearly to this problem regarding Jews, and he forbade anyone to deprive them of their synagogues or to prevent them from observing their religious practices therein. (Lib. I Epistol. 34) Elsewhere he reaffirmed that no one should prevent Jews from participating in their religious observances. (Lib. II. Ep. 15) The reason is that such observances do not in themselves violate the natural law, and therefore, the temporal power of even a Christian ruler does not confer a right to forbid them. Such action would be based on the fact that what is being done goes contrary to the Christian Faith, but that is not enough to compel those who are not subject to the spiritual authority of the Church. This opinion is also supported by the fact that such a ban would involve, to some extent, forcing people to accept the Faith; and that is never permitted.” (Suarez, op. cit.)

But what are the consequences of this in terms of the political organization of states?  The religious practices of the second type that conform to the natural moral law can give rise to two basic types of temporal regime depending upon the unity or plurality of faith convictions in the body politic (Cf. Journet, The Church of the Word Incarnate, Sheed and Ward, 1955, pp. 214-215).  The secular state is constituted on the basis of temporal affinities of nature whereas the sacral state is constituted also on the basis of supernatural bonds or unity of faith.

The Sacral State

The relational model between Church and State as it existed in the Middle Ages was constituted on the basis of supernatural bonds or unity in faith in addition to merely natural bonds (natural law + divine positive law).  In such circumstances there is virtually no distinction between the citizen of the civil society (state) and the member of the Mystical Body of Christ (Church).  In this context, full civic rights of citizenship (including religious freedom) are accorded on the basis of unity in faith and membership in the Church.  Such a model conforms to the teaching of Suarez insofar as all the citizens are morally and socially bound by the same faith convictions.  In this case, obedience to the natural law and the positive divine law is univocally applied to each member of civil society.  The "due limits" in such a social context necessarily excludes the spread of heresy that militates against public order and the common good in a society held together by common bonds of faith.  A member who renounces his Catholic faith or falls into formal heresy, in this civil context, violates the natural moral law insofar as he violates the norms of public order and the subjective norm of morality (conscience).  Such a state naturally treats heresy as an act of sedition that militates against public order and the common good of society held together by a common faith.  While non-Catholics were generally not accorded rights of citizenship in this context, the worship of non-Catholics legally residing in a territory was tolerated (privately and publicly) by the civil authorities to the extent that it conformed to the prescriptions of the natural moral law.       

The Secular State

With the advent of globalization the supernatural bonds of a common faith linking together the various members of civil society began to erode.  In this modern context the secular state is constituted exclusively on the basis of natural bonds (natural law) rather than supernatural ones.  In this scenario there is a clear distinction between membership in the supernatural society (Church) and citizenship in the natural and temporal society (state).  Civil rights are granted to all regardless of faith convictions and the various religious practices are tolerated according to the principles and within the [due] limits outlined above.  The Catholic who falls into formal heresy, while subjectively guilty of a serious sin, does not violate the [objective] moral order as expressed by the natural moral law nor does he pose a threat to public order in civil society.  In this context heresy, no longer punishable as a civil crime, is dealt with exclusively by ecclesiastical authorities.