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CHAPTER 2

John Locke and Religious Liberty

Abstract  Alzate analyzes John Locke’s theory of religious liberty found in A Letter Concerning Toleration to elucidate the individual’s right of religious belief and worship, as well as the origins, extent, and limitations of that right. Although freedom of religion is an individual right, it is necessarily a political issue. By examining this concept in conjunction with his broader political theory of the Second Treatise, Alzate discerns nine criteria that Locke argued were essential to balancing religious liberty against other rights and the political authority of government. The two most important of these criteria are government neutrality and equality under the law. Thus, in protecting the individual freedom of religion, the government must above all remain neutral and treat all citizens and religions equally. Keywords  John Locke · Political theory · Religious liberty Toleration · A Letter Concerning Toleration · Second Treatise Civil society · Religious society · Liberty of conscience Before we can determine the extent to which American society adheres to or deviates from the broader concept of religious liberty, we must first have a solid understanding of what that concept entails, including its limitations as well as its implications for other political matters. An examination of John Locke’s political theory of religious liberty provides us with such an understanding. Locke addresses the problem caused © The Author(s) 2017 E.B. Alzate, Religious Liberty in a Lockean Society, Palgrave Studies in Religion, Politics, and Policy, DOI 10.1057/978-1-137-58414-4_2

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by the tension between religion and politics by acknowledging the need for balance: between religion and politics, between the private and public spheres, and between individual rights and political authority. While Locke’s religious liberty privatizes religion to a great extent, it is unavoidably a political issue. This is due to the inherent overlap of interests between religion and politics: both deal in morality. His solution to the conflict between religion and politics is an extensive policy of toleration that provides a great deal of freedom to individuals in matters of religion. This freedom, though broad, is not without its limits. Political authority does not extend to most matters of internal belief and conscience, but it can regulate actions that stem from those beliefs when they impede government’s ability to do its job—to protect both society as a whole and citizens’ rights and freedoms individually. This chapter questions how far religious liberty extends and the degree to which government can legitimately regulate it. These questions do not have easy answers, considering the shared interest of the two realms in regulating human conduct. Locke acknowledged the inevitability for religion and politics to clash when he remarked in A Letter Concerning Toleration: A Good Life, in which consists not the least part of Religion and true Piety, concerns also the Civil Government: and in it lies the safety both of Mens [sic] Souls, and of the Commonwealth. Moral Actions belong therefore to the Jurisdiction both of the outward and inward Court; both of the Civil and Domestick Governor; I mean, both of the Magistrate and Conscience.1

Both religion and government aim at producing a “good life,” albeit in different ways and for different reasons. According to Locke, religion is interested in the “good life” for the individual to attain eternal salvation, while the government is interested in the “good life” in the sense of protecting the rights and liberties of its citizens. Both views entail the regulation of morality. Morality concerns the behavior of individuals and how it affects others around them. Since both religion and politics aim at influencing people’s behavior, a certain amount of tension between the two realms is unavoidable. An analysis of Locke’s theories of political authority and religious liberty reveals a broad set of criteria that can prove useful in facing this tension in our own society. Locke’s political theory provides general

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guidelines for assessing government authority, and combined with his statements specifically dealing with religious liberty, these criteria necessitate strict government neutrality and maintenance of equality before the law. Despite his desire to separate church from state and to confine religion to the private sphere to some extent, he did not intend for religion to be expelled from the public sphere altogether, nor did he intend for the state to be completely powerless over individual actions motivated by religious beliefs. The institutions of church and state and their respective powers are to be kept firmly separate. Religious beliefs permeating throughout society in the minds of individuals will still affect political decisions to an extent through the democratic process and rule of the majority, and according to Locke, this cannot and should not be extinguished. At the same time, safeguards are to be put in place to protect individuals from being illegitimately harmed by that majority. In developing this argument and the criteria for assessing religious liberty, this chapter will address the three key elements outlined in Chap. 1: religious liberty, government authority, and the balance between the two. The first section explains Locke’s argument for why religious liberty exists, as well as the nature of that liberty. The need for religious liberty arises out of the distinct natures of and the relationship between religious society and political society, with the individual right deriving from the unique origins and purpose of each society. The thrust of this argument comes from an analysis of A Letter Concerning Toleration, the work wherein Locke examines most directly the relationship between religion and politics. There is some disagreement in the literature as to Locke’s primary argument for religious liberty, however, so in presenting this argument, the first section provides an analysis of the Letter and justifies this particular view of religious liberty. The distinct natures of civil and religious society give rise to religious liberty and establish limitations for it. The second section examines what this freedom looks like. The legitimate bounds of religious liberty are drawn by the extent and limitations of political authority. Consequently, determining the nature of religious liberty requires a consideration of government’s obligations in tolerating religion and individual conduct motivated by religious beliefs. In this regard, the argument of A Letter Concerning Toleration will be supplemented with the general elements of political authority as found in Locke’s Second Treatise of Government. A consideration of this more indepth political theory provides us with answers to some of the more difficult questions of how and why Locke balanced government authority

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with individual religious liberty in the way that he did. Government’s power and restrictions with regard to religious liberty, as provided in the Letter, are perfectly consistent with his broader political theory found in the Second Treatise. Analyzing the Letter in conjunction with the Second Treatise allows us to derive the following criteria for assessing government actions with regard to religious liberty: 1. All government action must be directed only toward the public good; 2. Government must rule by established and known laws; 3. Laws must treat all citizens equally; 4. Laws must originate in the consent of the people; 5. Laws must originate in the body entrusted by the people with legislative authority; 6. Government must treat all religions equally before the law; 7. Government must not tolerate the intolerant; 8. Government must not tolerate any opinion or action that undermines civil society or its purpose; and 9. Government can restrict actions but not the religious intent behind them. Criteria 1 through 5 apply to government action and laws broadly, whereas criteria 6 through 9 apply specifically to what government must or must not tolerate with regard to religious liberty. Two criteria should be highlighted here. First, Locke requires that the end or purpose of all government action must be to secure the protection of society as a whole first and then, where possible, of all citizens individually. Locke considered this requirement of guiding and limiting government authority so important that he included it in the Second Treatise for assessing the legitimacy of laws and reiterated it in the Letter as a restriction on what government must and must not tolerate with regard to religious liberty. This first criterion may not in itself provide many definitive answers as to whether a particular policy is within the legitimate realm of government action regarding religious liberty, but ensuring that all government action aims at the public good is the essential first step toward making such an assessment. Second, Locke equally emphasized the necessity for strict government neutrality in both his general political theory and his theory of religious liberty. All individual citizens are to be treated equally before the law and subject to the same

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standards, and all religious societies must similarly be subject to the same government treatment. Taken together, these criteria tell us the ways in which government can legitimately limit religious liberty.

Origins of Religious Liberty John Locke struggled with the social problem of religion throughout various aspects of his adult life, from his personal to professional dealings to his political affiliations and actions. Most of his writings speak to this issue in some regard, either directly or indirectly. Early writings show Locke to be more authoritarian in his views that religion should be strictly controlled by political authority, but his mature writings— including the Second Treatise of Government, Essay Concerning Human Understanding, The Reasonableness of Christianity, and Some Thoughts Concerning Education—demonstrate a shift in Locke’s views toward an embracing of individual liberty and limited government authority.2 A Letter Concerning Toleration of 1689, together with three subsequent letters clarifying the argument in response to critic Jonas Proast, represents Locke’s fullest analysis of religious liberty and both the problem of and solution to religion in politics. In A Letter Concerning Toleration, John Locke offers several justifications in arguing both for a policy of toleration and against religious persecution. Approaching the issue from diverse perspectives, these various justifications address the rights and duties of various actors in society: individuals, religious organizations and their leaders, and government officials. Among the variety of reasons given for why toleration is a better policy than persecution, Locke provides a principled argument for the individual right to freedom of religion. Freedom of religion incorporates a nearly absolute and inviolable liberty of conscience, together with a freedom of religious worship and action that can be restricted and regulated by the government under certain conditions for limited reasons. The range of arguments Locke included in the work has generated much debate among scholars as to the origin of religious liberty, the nature of that liberty (whether it originates in religious or secular principles and whether it amounts to an individual right or a moral duty to tolerate), and the power government has to regulate or impinge upon that liberty. The three greatest distinctions scholars highlight when trying to make sense of Locke’s various arguments are (1) whether he provides a principled or pragmatic argument; (2) how broad or generalizable he

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envisioned toleration to be; and (3) whether the weight of his argument rested on the right of the individual to religious freedom or on the moral duty of individuals, church authorities, and government to tolerate diversity in religion and abstain from persecution. Principled arguments are true or false. As long as they rest on accepted assumptions and follow valid reasoning, the principled argument holds and applies across all settings. An individual right to religious liberty is a principled argument. Individuals do or do not have the inherent inalienable freedom to believe and exercise religion, regardless of the society in which they live or the religion they practice. A right is not given by government but possessed by individuals by virtue of being human. If humans have the right to religious liberty, all individuals possess this right—from the United States to China—and the extent to which those governments respect and protect that right is a question separate from the existence of that right. Pragmatic arguments, on the other hand, only hold in a certain set of existing conditions. If the conditions are not met, the argument does not hold. Toleration is often justified on pragmatic grounds. Proponents of toleration believe it to be a good policy because of the benefits it brings. Some argue that toleration leads to public peace and stability, while others claim that persecution does not achieve the desired results (it does not actually save souls or minimize discord). For still others, toleration is based on skepticism: since the true religion is unknown or cannot be demonstrated, it would be immoral to impose one’s religion on others when it could end up endangering their eternal salvation. Whatever the end pursued, these are pragmatic arguments. Each relies on a certain set of conditions for toleration to be preferred over persecution. If it could be shown that persecution is more likely to lead to a peaceful and stable society than tolerating diversity; if there was a way to know and demonstrate to all that one religion is true and all the others are false; if coercion and threats actually did lead to eternal salvation, then there would be no reason for governments to tolerate dissenting religions. Limiting citizens’ freedom of religion would then be acceptable under those conditions. If the principled argument holds true, however, persecution would always be wrong regardless of the conditions in which we find ourselves. Individuals in that case would have the inalienable right to freedom of religion despite any potential negative social consequences to toleration. Even if persecution would bring a more lasting peace, individuals would still possess the right to determine their own form of worship.

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Unlike the principled argument for religious liberty, toleration arguments rely on power relationships. The person or religion in government must be convinced that the conditions hold to be persuaded to tolerate dissenters. For the principled argument, the government need not be persuaded of the benefits of religious toleration but only believe in the rights of individuals. Furthermore, a characteristic of toleration not present in religious liberty is judgment.3 Toleration is allowing something to exist that you believe to be morally wrong.4 You do not tolerate something that you like, only those things that you do not like. Saying that I “tolerate” ice cream has the connotation that I (1) do not like ice cream and (2) believe myself to be in a position of power to prevent others around me from eating it but that I am choosing not to. In my case, I do not “tolerate” ice cream because I think it is delicious. If I hate liver, on the other hand, I may be said to “tolerate” it if someone at my table wants to order it and I have chosen not to make a scene. In the case of religious toleration, the party in power believes dissenting religions to be morally wrong or even reprehensible but is willing to tolerate them under certain conditions (if doing so avoids or ends civil war, for instance). If those conditions change or the party in power changes its mind, toleration ceases to exist. The concept of religious liberty, however, allows for a measure of respect based on mutual humanity, separate from the state of judgment, not permissible by toleration. As an example of the difference between toleration and religious liberty as a right, consider the Edict of Nantes, which was passed in France by King Henri IV in 1600. The Edict granted toleration to the Huguenots (French Protestants), but this freedom fell quite short of full religious liberty in two ways. First, the newly granted freedom was limited, as the Huguenots still did not possess full rights equal to what their fellow Catholic citizens enjoyed. Second, as demonstrated by the later revocation by King Louis XIV in 1685, the monarchy always perceived itself in control of Huguenot freedom, something the kings had the power to grant or withhold according to their own judgment. Toleration under the Edict was not understood as a right possessed by the Huguenots but as a gift bestowed upon them by the king, which could be revoked on a whim. The distinction between the two different kinds of arguments is significant to understanding the role of religion in contemporary society. If we consider religious freedom in the United States in terms of toleration, it is something government can bestow and revoke at will. If this were the

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case, the question of how far toleration extends in our society would be easily answered: only as far as the government allows. Since those in government are decided by regular elections, American citizens can believe and worship how they want as long as a majority of them believes it to be important. If public opinion changes, the government would be able to legitimately pass laws that restrict or mandate religious behavior. But this is not how we discuss religious liberty in the United States. Religious freedom is not justified primarily on grounds of pragmatism and power but on principle, as a right that individual citizens have separate from and against the power of government. The question of whether Locke made an argument for toleration or religious liberty, then, is an important one and significant to how it is applied today. Some scholars interpret the Letter as providing a principled argument for the individual right to religious liberty and that government authority does not extend to interfering in religion,5 while others insist that Locke provided only a pragmatic argument for toleration, relying upon one or more conditions for it to hold.6 Of the former, David McCabe maintains that Locke established a principle of government neutrality, but that his principled argument fell short of strict separation of church and state.7 Of the latter interpretations, Paul Kelly and Robert Kraynak both argue that Locke’s main case for toleration was centered on achieving peace;8 J. Judd Owen claims that Locke bases toleration on his skepticism that any religious truth can be known or demonstrated in an argument drawn from an interpretation of Locke’s epistemology in the Essay Concerning Human Understanding;9 and Jeremy Waldron insists that Locke’s various justifications for toleration all boil down to an ultimately unsupportable claim that a policy of persecution is irrational.10 One way to examine toleration arguments is to consider the scope of Locke’s toleration claims. Scholars disagree as to who Locke intended to tolerate. An interpretation for broad toleration would encompass Christians and non-Christians alike. A narrow interpretation of toleration might apply only to Christians or, even narrower, only those Christian sects deemed socially acceptable at the time. One notable scholar maintains that Locke not only did not favor separation of church and state but rather desired a national church with a narrow policy of tolerating dissenting religions, dependent upon government approval.11 Others fall more into line with Micah Schwartzman’s interpretation of a broader policy of toleration but one that is grounded in and supported by Locke’s religious beliefs rather than secular premises.12 Under Schwartzman’s

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interpretation, one would only need to be tolerant to those who share those same convictions, a notion that would have quite a limited application in society. However, if toleration originates in secular, rational arguments that all humans could conceivably accept, we would only need to be rational to embrace a policy of tolerating diversity. Still other academics examine the actor associated with the different arguments, focusing on who has the right or duty in question. Principled arguments for religious freedom tend to focus on the individual’s right to believe and practice their religion of choice or on limited governmental authority not extending to areas of conscience.13 Other justifications for toleration focus not on the individual’s right to freedom but on the person doing the tolerating, arguing that a good person has a moral duty to tolerate others or that a good society has a moral obligation to tolerate diverse opinions. Susan Mendus, for instance, argues the latter, maintaining that Locke’s main argument in the Letter rests on classical notions of duties rather than modern notions of individual rights.14 With all these various interpretations of Locke’s arguments in the Letter and the nature of his concept of toleration, we must first analyze Locke’s A Letter Concerning Toleration to understand his argument before breaking it down to derive any usable criteria applicable to our society. For this, we must turn to Locke’s own words to make sense of his intent. An analysis of the Letter supports many of the above interpretations, despite their differences and sometimes contradictions. Locke provided several justifications for religious toleration, and it might almost appear to be a smorgasbord laid out before us to pick and choose whichever argument works best for us and leaving the rest. Upon closer examination, it becomes apparent that Locke did have a principled argument for religious liberty: that individuals have an inalienable right to freedom in matters of religion, that government authority is limited (although not prohibited entirely from acting) in matters of religion, and that, while liberty of conscience is extensive, actions stemming from them are open to much greater regulation. In the analysis that follows, I examine the various arguments in Locke’s A Letter Concerning Toleration and demonstrate his overarching concern for the individual right to liberty of conscience. The Letter opens with Locke’s acknowledgment of the question that had been posed to him, inquiring into his “Thoughts about the mutual Toleration of Christians in their different Professions of Religion.”15

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Locke begins, in keeping with the question, by addressing the issue of tolerating Christians specifically, arguing from several Scriptural sources that persecuting others for their religious beliefs is unchristian.16 Based on the particular question posed to him, Locke could have stopped there, considering the question fully answered. Instead, he took his argument a step further, highlighting that the root of the problem was not religion or Christianity but human nature. He pointed out that intolerance and a spirit of persecution “are much rather Marks of Men striving for Power and Empire over one another, than of the Church of Christ.”17 Those persecuting others may think that they have pure motives, but they are really only justifying their actions under a “pretence of Religion.”18 Their true motives, according to Locke, are passions inherent in human nature, such as pride, ambition, zeal, and desire for dominion over others.19 Locke reiterates this point later in the Letter, saying, “whilst they pretend only Love for the truth, … [they] betray their Ambition, and shew that what they desire is Temporal Dominion.”20 That Locke considered aspects of human nature to be the cause of social conflict was not unique to his Letter. He made a similar claim in the Reasonableness of Christianity, in which he confronted the claim that people acted immorally toward others out of ignorance. Locke objected to this view, stating that conflict in the world stemming from immorality resulted not so much from lack of adequate knowledge of morality but “in men’s necessities, passions, vices, and mistaken interests.”21 The fact that conflicts over religion and morality stem from natural aspects of humanity means that a religious answer grounded in Scripture and faith in Jesus will be insufficient to achieve any amount of peace and stability. In essence, the question initially posed to him spoke to a social issue that was in itself only a small piece of the real dilemma that humans naturally seek ways to justify dominating others. A political answer is needed to address the underlying root cause, and this political answer was religious liberty. Since the problem is one of human nature and not anything particular to religion, Locke broadens the scope of his answer to that narrow question of tolerating Christians that had been posed to him. Jesus tells his followers in the Gospels to be meek and kind, but one need not believe in the divinity of Jesus or the authority of the Scriptures to recognize the duty of toleration. Every individual has a right to religious liberty, as well as a corresponding duty to tolerate the religious belief and worship of those who differ from us. Unlike his previous argument, which rested

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on the authority of the Scriptures alone, this duality of right and duty is upheld by “the genuine Reason of Mankind” as well. The passions responsible for the problem of religious conflict in society “are Faults from which Human Affairs can perhaps scarce ever be perfectly freed.”22 Because we cannot escape from these natural passions, Locke maintains that we must understand and deal with them in the same way we deal with other problematic aspects of human nature that cause interpersonal conflict: by understanding the political implications, including the extent and limitations of individual rights as well as civil authority regarding religious concerns. For this reason, Locke claims, it is “above all things necessary to distinguish exactly the Business of Civil Government from that of Religion, and to settle the just Bounds that lie between the one and the other.” Without this understanding of the boundaries between the political and religious spheres, “there can be no end put to the Controversies that will always be arising, between those that have, or at least pretend to have, on the one side, a Concernment for the Interest of Mens [sic] Souls, and on the other side, a Care of the Commonwealth.”23 Notice that it matters not whether one’s rationalizations for persecution are real or “pretend.” Locke acknowledges the fact that we cannot read the minds of others, so we cannot know for certain whether others simply wish to control us or truly desire to save our souls. In any case, intent matters not. It is enough to know that, for many people, the passions of pride and ambition are driving the spirit of persecution. Distinguishing the religious from the political and placing religious issues largely within the realm of individual authority, according to Locke, resolves a political problem of the struggle for power and dominion. The concept of separation of church and state, then, arose out of the desire neither to empower religion nor to weaken and control it. It serves to preserve and enhance individual liberty to the extent possible. Religious liberty is less about religion than it is about individual freedom. Determining the extent of religious privatization and the appropriate role of politics requires a closer examination of religious society and civil society. In distinguishing between the two, Locke argues that each society has a particular purpose for which it exists, and this purpose delineates the limits of its authority. Civil society exists to protect “Civil Interests,” which Locke defines as “Life, Liberty, Health, and Indolency of Body [i.e., laziness, inactivity]; and the Possession of outward things, such as Money, Lands, Houses, Furniture, and the like.” The purpose

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of civil society, then, is to protect and provide for both internal (liberty, health, inactivity) and external (property) rights. The government can only use the “Force and Strength” of the community to enforce laws that serve that purpose, including limiting or taking away those very interests for which the society exists as a punishment for impeding the rights, freedoms, and interests of others.24 Accordingly, the civil magistrate can legitimately stipulate capital punishment for murderers, despite individuals having the right to life, because said murderers have first impeded on the rights of fellow citizens and thus pose a danger to other individuals as well as the community as a whole. Similarly, thieves can have their property or liberty taken away because they have first threatened the property rights of others. Rulers can only utilize the powers of civil society for the purpose of protecting those very civil interests, meaning they may not be used for any other reason, even the procurement of eternal salvation. Locke provides three justifications for this claim, although he reminds his reader that there are “many other” justifications he could have provided.25 First, Locke reminds us that civil society and its powers are derived from individual consent, so civil society has no authority over us except that to which we (would) consent. Why would we not consent to the government having authority over our eternal salvation? Locke claims that such a decision would be irrational. I cannot be certain that whoever will be in government (1) has the true religion or (2) has my best interests in mind. Given his earlier stated pessimism about human nature, it is doubtful that, even if those in government happened to come upon the true religion, they would care about and safeguard my soul as well as I could. Essentially, the only person I can trust with my eternal soul is myself. Additionally, the things we do consent to relinquish in joining civil society are given to society because of the danger posed to them by other individuals. Civil society is not created, according to Lockean political theory, to protect individuals from themselves. Rather, “Laws provide, as much as is possible, that the Goods and Health of Subjects be not injured by the Fraud or Violence of others; they do not guard them from the Negligence or Ill-husbandry of the Possessors themselves.”26 I consent to allow the government of civil society to regulate my property, and to repossess it if I break the laws or leave society, because my rights to that property are thereby more secure from invasion from other citizens and from foreign invaders. My eternal soul, on the other hand, is not in danger from other people but depends solely on my individual

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beliefs and morality. I am alone responsible for my salvation. “God himself,” says Locke, “will not save men against their wills.”27 For both these reasons, therefore, Locke argues that individuals would never rationally and voluntarily give control over their eternal souls to civil society.28 Second, Locke contends that civil society does not have authority over our souls because it is unnecessary and unrelated to the end of that society. Persecuting people to save their souls simply does not work. As mentioned above, the powers that civil society can use to induce citizens to follow the laws are the same ones they serve to protect: life, liberty, and property. However, Locke insists that threatening these civil interests will not directly change our internal beliefs, only our outward actions, while it is our internal faith that influences our salvation. Using “outward force” as punishment for dissenting religious beliefs may influence our outward actions but is in “no ways capable to produce such Belief” because “only Light and Evidence” (i.e., reason, rational argument) can change our beliefs, “which Light can in no manner proceed from corporal Sufferings, or any other outward Penalties.”29 As Waldron rightly points out, though, this is not exactly true. We have ample evidence of societies in history who have controlled the materials that citizens had access to and thereby controlled the beliefs of entire generations of citizens.30 This is also the rationale behind banning certain books in schools and teaching abstinence-only sex education. As we know from these examples, though, strictly controlling access to information people receive is not only very difficult but does not work in every case. It is also important to remember that Locke intended this argument to be one justification among many for why civil society lacks legitimate authority to control our beliefs and, through this, ostensibly protect our eternal souls. Even if persecution could produce the ends he denies, the argument that civil society does not have authority over people’s souls can still be justified on the grounds of his other points. Third, Locke points to the diversity of religions in the world to cast further doubt on the notion that individuals would voluntarily entrust their eternal souls to political leaders. He states, In the variety and contradiction of Opinions in Religion, wherein the Princes of the World are as much divided as in their Secular Interests, … one Country alone would be in the right, and all the rest of the world put under an obligation of following their Princes in the ways that lead to Destruction.31

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The religion that comes to dominate and become mainstream in any one society is fairly arbitrary, relying on, in Locke’s words, “either Ignorance, Ambition, or Superstition.” Very rarely are people rationally circumspect about the religion they adopt when raised in it from infancy, and the same is true for political leaders. Locke highlights the irrationality, even “absurdity,” of individuals placing their eternal salvation in the hands of someone who has no greater claim to the truth than they have themselves, concluding that “Men would owe their eternal Happiness or Misery to the places of their Nativity.”32 Of course, this line of reasoning is pragmatic, leaving open the possibility that, if it could be demonstrated that a political ruler has greater access to religious truth than her citizens, toleration may not be the preferred policy. In that case, the ruler may have the justifiable authority to force her subjects to adopt her religious beliefs if she could be certain that they would attain eternal salvation. This was one of the main objections made by Jonas Proast, the predominant critic of Locke’s religious liberty, who so pressured Locke on this point that Locke eventually admitted in his third response to Proast that an objective religious truth does exist and, were we able to provide demonstration of its truth, the political ruler may not be obligated to tolerate dissenting (and by definition, false) religions.33 When considered within the context of Locke’s broader argument regarding knowledge and what can and cannot be known by reason and faith, however, this objection does not actually undermine liberty of conscience. The if in the above statement—“if it could be demonstrated” which religion is true—is a pretty big if. Demonstrating with certainty that one religion has objective truth is, according to Locke’s arguments in the Essay Concerning Human Understanding and Reasonableness of Christianity, next to impossible given limited human rationality and the interference of our natural passions. In the Essay, Locke demonstrates the limitations of human understanding, and it is this limitation that leads to diversity of opinion and necessitates toleration. He underscores the inevitability of such diversity of opinion when he states, “it is unavoidable to the greatest part of Men, if not all, to have several Opinions, without certain and indubitable Proofs of their Truths.”34 Reason can conclusively demonstrate only so many things, and the precise nature of God and the universe is not among those. Faith, claims Locke, steps in where reason alone fails us, but the resulting beliefs we hold based on faith cannot be demonstrated

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with any certainty to those who deny the authority on which that faith is based. For example, Christians take as their religious authority the Bible as the word of God, but this is just a book to non-Christians, not a source of authority. Faith in the Bible as the word of God gives Christians answers that cannot be derived from human reason alone, but non-Christians will not hold the same beliefs because they do not acknowledge the same authority. Locke shows that reason uses deductions to discover “the Certainty or Probability of such Propositions or Truths,” whereas faith relies on “the Assent to any Proposition … upon the Credit of the Proposer, as coming from GOD, in some extraordinary way of Communication.”35 In order to have faith in something, I must agree to the proposition based on the authority of the person making the statement that it is divine. If I have faith in Jesus’ divinity, it is because I assent to the authority of the Gospels as having been communicated somehow from God, but others may not agree to this premise. Being based on one’s assent to the authority of the Gospel, it cannot be conclusively demonstrated as truth to people who do not provide the same assent. Consequently, the objective truth of a political ruler’s religion would never be conclusively demonstrated because such a demonstration would necessarily depend on the consent of all society’s citizens, not only to the authority of the proposer but also to the particular interpretation and implications of the propositions. It is this circular logic that leads Lee Ward to conclude that faith is not universal but particular to the person believing. By consequence, religious diversity “is in some sense natural.”36 Moreover, although Locke provided a proof for the existence of God,37 he was clear that the knowledge of God he demonstrated was limited. Beyond knowing that God exists and is eternal, the rest “exceeds our Comprehension.”38 Belief steps into fill in the gaps, but even though this plays an essential role in human activity and morality, we cannot demonstrate these beliefs for certain to others. In the Reasonableness of Christianity, Locke examines the Scriptures and derives only two minimum requirements for being a Christian: “faith and repentance, i.e., believing Jesus to be the Messiah and a good life.”39 In other words, the only requirements to be a Christian are assent to the authority of the Gospels and moral actions. Anything beyond these two conditions was not demonstrable based on the text of the Scriptures. All Christian religions stipulate dogmas and forms of worship beyond what Locke considered to be required by the Gospels. Far from being problematic,

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Locke considered this beneficial as it aided in the promotion of morality. However, Locke did not think it was possible to demonstrate the truth of one particular sect of Christianity over all the others to those not interpreting the Scriptures the same way, any more than it is possible to demonstrate the truth of Christianity to someone who denies the authority of the Scriptures. This once again shows that, for Locke, there could never be conditions in which the truth of the religion of any individual, ruler or subject, would be demonstrated. Although he ultimately admits to Proast that force would be appropriate in the salvation of people’s souls if the truth of the ruler’s religion could be demonstrated, Locke shows that such a demonstration would be impossible, thereby making Proast’s criticism invalid. Consequently, this argument for why civil society does not have authority over souls or individual conscience is less pragmatic than it at first seems and certainly rests on stronger and more principled foundations than for which Proast credited it. Diversity in religious beliefs is a natural component of humanity. This diversity leads Forster to argue that, for Locke, “no one has special access to knowledge,” even political rulers.40 Indeed, Locke maintains that, for purposes of religious liberty, political rulers are no different from other citizens, saying that “Neither the Right, nor the Art of Ruling, does necessarily carry along with it the certain Knowledge of other things; and least of all of the true Religion.”41 The ability or knowledge of political rule does not transfer religious knowledge. Building on this argument, Ward concludes with what he calls Locke’s radical idea of “the democratization of the mind”—the individual is the sole determinant of truth, not any political or religious leader or even the majority of society.42 Individuals retain sole sovereignty over their internal beliefs. Based on these reasons given in A Letter Concerning Toleration, Locke demonstrates that civil society was not created for the purpose of saving souls, and the authority it does have cannot be used to legislate on religious matters. As Locke states, “the business of the Laws is not to provide for the Truth of Opinions, but for the Safety and Security of the Commonwealth, and of every particular mans [sic] Goods and Person.”43 The tools of government have been given specifically to civil society for a particular purpose and therefore cannot be used by other societies. Individuals, in giving consent to civil society and the government that protects it, authorize the use of these tools—the use of force and penalties relating to life, liberty, and property—only in service of procuring and protecting these civil interests from others.

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This means that religious society does not have access to these methods of punishment in serving its end. Locke shifts his focus, then, to examine the origins and purpose of religious society to see the scope of its authority and the methods appropriate to its use. He defines a church as “a voluntary Society of Men, joining themselves together of their own accord, in order to the publick worshipping of God, in such a manner as they judge acceptable to him, and effectual to the Salvation of their Souls.”44 According to Locke, the sole purpose to join a religious society is the salvation of the soul. He again emphasizes the complete control individuals have in choosing their own method of salvation by defining it as a voluntary society. If a religious member were to break the rules or regulations of the society, religious authorities cannot use the same arsenal of punishments as can the civil authorities (fines, imprisonment, death). The only weapons at the disposal of religious authorities are “Exhortations, Admonitions, and Advices,” and if these punishments are insufficient to correct the behavior of the wayward member, “the last and utmost Force” that can be used against that individual is to be “cast out and separated from the Society.”45 Religious societies cannot force members to stay or to hold beliefs or worship in ways that contradict individual conscience. Excommunication is the extent of their control over their members. The distinct purposes and origins of each society mean that liberty of conscience is a unique kind of freedom, different than others we have in society. Both societies may originate in voluntary consent, but they are different kinds of consent, each with important implications. Ward examines the voluntary nature of religious membership vis-a-vis citizenship and concludes that membership in the religious society is more purely voluntary. When joining civil society, individuals retain the right to life, but while inalienable, it “can be forfeited” through punishable conduct. Individuals therefore consent to create civil society “to ensure self-preservation, but this form of consent includes an implicit recognition that the right of self-preservation may be forfeited to civil governments.” Religious society, on the other hand, involves no equivalent forfeiture of liberty of conscience.46 Individuals join a religious organization to attain eternal salvation and not to protect their liberty of conscience from others, so there is no reason for this freedom of belief to be curtailed or regulated by religious society for any reason. If anything, that freedom is among those protected from other citizens in civil society. Locke underscores the individual’s control in this regard:

46  E.B. ALZATE The hopes of Salvation, as it was the only cause of his entrance into that Communion, so it can be the only reason of his stay there. For if afterwards he discover any thing either erroneous in the Doctrine, or incongruous in the Worship of that Society to which he has join’d himself, Why should it not be as free for him to go out as it was to enter? No Member of a Religious Society can be tied with any other Bonds but what proceed from the certain expectation of eternal Life.47

It is important to note that the “certain expectation of eternal Life” mentioned at the end is defined by each individual person for herself, not as understood by the ruler or majority of society. The kind of consent involved in civil society does not involve the same extent of freedom, since once an individual gives her consent, she loses the freedom to withdraw it without penalty. Her choices are restricted from the moment of consent. She may decide to leave and join another society, but in doing so, she forfeits the property she gave over to the society for protection. Conversely, membership in religious society, as Ward points out, “is more purely voluntary” because nothing is lost through membership. Since membership can be given up at any time without penalty, it is “arguably a freer association than political society.”48 The distinct origins and purposes of religious and civil society lead to two very different kinds of associations and respective powers. Civil society does not have authority over our souls, and religious society cannot hold us against our will and does not have access to the penalties of civil society to punish us for our sins. In essence, whether in civil or religious society, individuals maintain the freedom to choose their own religious beliefs and worship. Freedom of religion, then, arises out of the distinct natures of these two separate but coexisting societies. Once again, it is less about religion than it is about individual liberty. Understanding this origin allows us to extrapolate the extent and limits of that freedom.

Political Authority

and the

Liberty

Extent of Religious

If religious liberty exists due to the natures of civil and religious societies, does this mean that religious freedom is absolute and that people can do anything they want, as long as it is justified on religious grounds? To take the question one step further, must government laws take back seat to individuals’ religious views? Far from it. Although political authority

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cannot directly legislate on religious issues and religious authority cannot use the tools of civil society, the resulting individual freedom is not absolute. Religious liberty, as with all other rights and freedoms, can be restricted and regulated in society. Limitations on this freedom come largely from the political realm. Membership in the religious society is purely voluntary. Religious leaders have the authority to influence the beliefs and actions of their followers to an extent, but they are ultimately powerless over those who choose to leave the congregation. Political authority reaches farther, having at its disposal the full arsenal of civil punishments, which government uses to further its goal of preserving society. In order to understand the extent and limitations of political authority regarding religious liberty and the mutual obligations of individuals and government, we need to take a closer look at political authority itself. Doing so will shed more light on the nature of religious liberty and how it should be applied and protected in civil society. Civil society exists to protect the civil interests of its citizens. These civil interests include a variety of freedoms: speech, assembly, movement, life and career choices, disposal of property, and religion. All of these must be limited to some extent while living in a society with others. Locke acknowledges this fact when he remarks in the Essay, “No Government allows absolute Liberty: The Idea of Government being the establishment of Society upon certain Rules or Laws, which require Conformity to them; and the Idea of absolute Liberty being for any one to do whatever he pleases; I am as capable of being certain of the Truth of this Proposition, as of any in Mathematicks.”49 According to Locke, there are only a few things of which humanity can acquire absolute certain knowledge. Among these are mathematical propositions because they are based on a set of agreed upon assumptions. Locke equates that kind of absolute certainty with the knowledge that liberty in society must be limited and limitable. His certainty here is derived from the agreed upon assumption that government protects society through requiring conformity to laws. None of our rights are unlimited, including freedom of religion. One fundamental limitation that applies to all of our rights and liberties in society is that each is accompanied by corresponding obligations and duties to others. One person’s right to property and freedom to dispose of it how she wishes is dependent upon her acknowledgment of and respect for the same right and freedom of those around her. If she steals a car, the government can punish her theft by restricting her freedom of

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movement for a time and taking away some of her property, both without her consent. Religious liberty produces an obligation to tolerate the religious practices of others.50 The duty of toleration is the “Foundation of [our] own Liberty,” so we must embrace “Liberty of Conscience [as] every mans [sic] natural Right.”51 Citizens who refuse to respect others’ liberty of conscience forfeit their own right to be tolerated by the government. The requirement to tolerate others’ religion restricts our own freedom of action. The freedom of religion does not extend to the freedom to impose our beliefs or forms of worship on others. The duty of toleration applies to all relevant actors, not just individual citizens. Religious societies and their leaders, in order to be able to exercise their freedom and be tolerated in civil society, have the duty to peacefully coexist with other religious societies.52 Locke goes so far as to say that their duty extends beyond that of ordinary citizens. While individuals have the duty to refrain from interfering with others, clergy have the additional duty to take positive action. Clergy are in a position of authority for others, and this responsibility encompasses teaching toleration to their respective followers as part of their broader religious message: It is not enough that Ecclesiastical men abstain from Violence and Rapine, and all manner of Persecution. He that … takes upon him the Office of Teaching, is obliged also to admonish his Hearers of the Duties of Peace, and Good-will towards all men; towards those that differ from them in Faith and Worship, as well as towards those that agree with them therein: And he ought industriously to exhort all men, whether private Persons or Magistrates, … to Charity, Meekness, and Toleration.53

Intolerant religious leaders or societies who claim the right to impose their beliefs on others or otherwise restrict others’ freedom pose a danger to civil society and therefore are not to be tolerated. Religious leaders have authority over only those who voluntarily consent to that authority and, even then, cannot do anything to impact a member’s civil interests in order to control them. Government likewise has a duty of respecting religious liberty, its legitimate authority restricted by the “very considerable” obligation of toleration.54 Indeed, Locke’s concern with toleration predominantly centered on governmental authority rather than on the duties of individuals or even churches. That political authority was his central concern

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is demonstrated by the fact that he dedicates only about two pages to his discussion of the church’s duty to tolerate,55 two pages to the clergy’s duty,56 and a lengthy twenty-one pages to the magistrate’s duty.57 Locke’s overwhelming attention to the magistrate’s duty of toleration makes sense considering government is the guardian of our rights and freedoms. Furthermore, as the entity wielding the force of the community, government in many ways poses the biggest threat to individual liberties. Government’s duty of religious toleration is twofold. On the one hand, the government stands apart from citizens in society and adjudicates among them. In this sense, government’s role is to protect individuals from one another. At the same time, government actions themselves must be carefully calculated to avoid undermining the very rights and freedom it exists to protect. Locke’s lengthy message to government officials can be reduced to two basic principles. First, political authorities ought not to legislate directly on purely religious issues such as requiring membership in any particular church or stipulating which dogmas and forms of worship are allowable and which are prohibited.58 Second, the civil magistrate has a duty to treat all religious societies equally before the law.59 The magistrate’s duty of toleration extends to religious societies as much as it does to individuals of various religious beliefs. Civil authority can regulate individual actions, but accompanying this power is the duty to tolerate the religious beliefs of individual citizens equally and protect them from one another. Likewise, civil authority can regulate religious society to the same extent as they can any other voluntary association in society for the purpose of protecting the public good. Much of Locke’s counsel to government officials is dedicated to discerning legitimate and even necessary political action from the illegitimate restriction of freedom. As guidance in making this distinction, Locke distinguishes between internal belief (“Doctrines and Articles of Faith”) and external actions of worship (“the outward Form and Rites of Worship”).60 The conceptual difference between liberty of conscience and religious freedom is crucial. Religious freedom includes matters of internal belief and conscience but also extends to action, and as we know, actions affect other people. Opinions are protected to a much greater extent than are actions because opinions do not themselves directly affect other people. Our actions affect those around us and have the potential to impact their rights and freedoms. It is true that our actions are shaped by our internal opinions on matters, but action does not simply boil

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down to belief. Action is an act of will or intent. In speaking of beliefs, Locke says that the government cannot rightfully “take away these worldly things” from someone “for a cause that has no relation to the end of Civil Government; I mean, for their Religion; which whether it be true or false, does no prejudice to the worldly concerns of their FellowSubjects.”61 More simply stated, there is a distinction between belief and action. An opinion that others believe to be false “does no injury … to his Neighbor.”62 There are, however, some opinions that Locke says are not protected under liberty of conscience. Practical opinions are those which affect our actions and, therefore, impact other people. One category of practical opinions can be regulated by government. Despite their internal nature, Locke argues that opinions that undermine the fabric of human society must not be tolerated. Locke declares, “No Opinions contrary to human Society, or to those moral Rules which are necessary to the preservation of Civil Society, are to be tolerated by the Magistrate.”63 Examples of these would be if churches taught “that men are not obliged to keep their Promise,” encouraged their followers to obey a foreign prince, or claimed the right to force others to follow their method of worship.64 One of the most controversial examples that Locke gives of an opinion contrary to human society is atheism. Locke claims that atheism undermines human society because “Promises, Covenants, and Oaths, which are the Bonds of Humane Society, can have no hold upon an Atheist. The taking away of God, tho but even in thought, dissolves all.”65 According to Forster’s interpretation: Locke does not think that atheists have no rights at all; quite the contrary, he thinks that all people, atheists included, have the same human rights because they are all, atheists included, created by God. But these rights do not include the right to say things that are inherently dangerous to civil order, of which atheism is, for Locke, only one example among many.66

Civil society cannot be maintained when its citizens hold opinions that undermine civility and the very foundation of rights and freedoms. Consequently, such opinions are not included in the protections of liberty of conscience. The measure of legitimacy of any government action must be the impact such actions have on the public good; even things that we can all agree are sinful or immoral are beyond the scope of political authority

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if “they are not prejudicial to other mens [sic] Rights … [or] break the public Peace of Societies.”67 However, that means that practices that do affect others are encompassed within the purview of government authority and can legitimately be constrained. As long as the “Publick Good is the Rule and Measure of all Law-making,” government can regulate actions stemming from religious beliefs.68 In other words, government can restrict actions for the purpose of securing secular civil interests, but it cannot directly restrict the specifically religious nature of those actions. Locke provides two examples of sacrifice to illustrate this difference and shed light on what actions government can and cannot legislate. First, he indicates that government can forbid the sacrifice of infants because it is “not lawful in the ordinary course of life, nor in any private house,” so therefore it cannot be lawful “in the Worship of God, or in any religious Meeting.”69 There are a number of reasons for why the government can forbid such an action. First, any kind of human sacrifice undermines the ultimate purpose of civil society, which is to protect humans.70 Second, the law aims at achieving the “Temporal Good and outward Prosperity of the Society.”71 Third, the law is neutral with regard to religion, the action forbidden being the killing of infants, not the sacrifice per se. The second and third requirements go together. Even if the law aims toward the public good, it still must be framed in neutral terms and not target the religious practice specifically. Political authority governs action not intent. The second example he provides is that of animal sacrifice. Most people could readily understand government forbidding the practice of human sacrifice, but on what grounds can government legitimately forbid animal sacrifice without infringing on religious liberty? If we consider the three guidelines given above, a law banning animal sacrifice would not pass the first rule. Killing animals does not undermine the purpose of civil society, which according to Locke is to protect and safeguard the rights and liberties of humans.72 Locke raises the question of killing calves, saying “I deny that That ought to be Prohibited by a Law,” as long as the person owns the calf he kills. “For no Injury is thereby done to any one, no prejudice to another mans [sic] Goods. And for the same reason he may kill his Calf also in a religious Meeting.” The second requirement, that the law must aim toward a public good, can hold under certain circumstances. Locke imagines conditions in the state where disaster has struck and decimated the cattle population, and

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government needs to halt the slaughter of all cows for a time to increase it again. In this case, “the Interest of the Commonwealth” is at stake. He asks, “Who sees not that the Magistrate, in such a case, may forbid all his Subjects to kill any Calves for any use whatsoever?” Here is where the third requirement comes in again. The sustainability of the cattle population may be in the public interest, but a law forbidding killing them is only valid if “the Law is not made about a Religious but a Political matter: nor is the Sacrifice, but the Slaughter of Calves thereby prohibited.”73 Again, government can legitimately pass the law as long as it is neutral with regard to religion, targets only the action itself and not its intent, and aims at protecting public, secular interests. Killing cows may be prohibited for a time, even if religious members sincerely believe that sacrificing calves is an essential component for their salvation. Government would have legitimate authority to take an action that has the effect of limiting religious liberty. From the government’s perspective, neutral laws aiming at protecting the public and individual rights and liberties take clear precedence over religious worship. Notice that Locke is not taking a position on the rationality or sincerity of the opinion motivating the religious action, or the truth or falsehood of it. Taking a position on any of these would intrude upon the liberty of conscience. Although liberty of conscience is absolute and cannot be limited or regulated by government, the actions proceeding from those opinions can be regulated. Religious worship, as action, is not an absolute right. Locke’s guidelines for governmental authority in tolerating religion in civil society, as derived from A Letter Concerning Toleration, are as follows: 1. Government action must be directed to the public good; 2. Government must treat all religions equally before the law; 3. Government must not tolerate the intolerant; 4.  Government must not tolerate any belief or action that undermines civil society or its purpose; 5. Government can restrict actions but not the religious intent behind them. These guidelines govern the exercise of political authority but do not necessarily restrict individuals in society. The solution is clear from the government’s perspective, but the individual is placed in a seemingly

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untenable situation, forced to choose between religion and civil society. On the one hand, obeying what her conscience says is necessary for eternal salvation incurs punishment from the political authorities and may harm her individual rights or liberties. On the other hand, following the laws of society puts her in a situation that endangers her soul. What is an individual to do? Is it fair to force people to choose between their civil interests and their eternal soul? Locke response to this dilemma by admitting that, for the individual, the rational choice is to protect their souls. After all, eternal salvation is, well, eternal. Civil interests are only important during this short physical life, and one hundred years (if we are generous) does not begin to compare with forever. He notes, “The principal and chief care of every one ought to be of his own Soul first, and in the next place of the publick Peace.”74 This being the case, when an individual is forced to choose between obeying the law and obeying God, Locke concludes that, “such a private Person is to abstain from the Action that he judges unlawful.” This does not mean, however, that citizens can just pick and choose which laws to follow without penalty as long as they justify deviations on the basis of individual conscience. Despite Locke’s admission that eternal salvation should be our primary concern, the person who breaks a law to follow his conscience “is to undergo the Punishment, which is not unlawful for him to bear. For the private judgment of any Person concerning a Law enacted in Political Matters, for the publick Good, does not take away the Obligation of that Law, nor deserve a Dispensation.”75 Although individuals would rationally choose to protect their souls over civil interests, this choice is made with the consequences in mind: punishment for breaking a legitimate law of civil society. The law is not made illegitimate because one or more persons conscientiously object to it, and as long as the law is legitimate, objectors do not deserve exemptions from it. In fact, government cannot legitimately provide dispensations for individuals to ignore neutral laws in order to follow their consciences. To do so would give such individual greater freedom than fellow citizens. Granting exemptions from laws to individuals on the basis of religious conscience violates the third rule, the neutrality principle. This poses a problem not just for religious liberty but for the legitimacy of political authority itself. If government allows some people the freedom to disregard laws, it loses its authority over society, the consequence being it can no longer protect public welfare or individual rights. Society is only secure and free to the extent that laws apply equally to all citizens.

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In addition to the parameters set forth in the Letter addressing toleration, Locke further outlines in the Second Treatise a more general set of standards that laws must meet in order to be legitimate over citizens. Legitimate political authority governs by rule of law, meaning the laws bind everyone in the community, even members of the government.76 Laws, as well as any penalties for enforcing them, must: (1) be established and known, not arbitrary or absolute;77 (2) treat all citizens equally;78 (3) originate in the consent of the people;79 (4) remain with those individuals entrusted by the people with legislative authority;80 and (5) be directed only toward the public good.81 The second requirement is important for understanding the limitations on religious liberty. Laws should be equally applicable to all citizens, meaning there should be one general standard for all and not different standards “to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court, and the country man at plough.”82 Individual citizens have a right to be treated the same as all other citizens before the law. It would be irrational for someone to consent to political authority that could possibly restrict their freedom to a greater extent than their fellow citizens. Locke notes the ridiculousness of making distinctions among citizens to treat them differently before the law, such as “different Complexions, Shapes, and Features, so that those who have black Hair (for example) or gray Eyes, should not enjoy the same Privileges as other Citizens; that they should not be permitted either to buy or sell, or live by their Callings.” Not only does Locke think this sounds ridiculous, but he argues that impeding on people’s rights and liberties in this way is the fastest way to endanger the government’s position with society.83 This does not mean government should ensure equality of outcome to all citizens based on these distinctions, but laws should restrain all individuals equally. Further, the fourth requirement ensures that the laws are based on the consent of the people. Whomever the people have chosen to wield legislative power, their laws represent the will of the people. Locke calls this “fiduciary power,” since the supreme authority always rests with the people to reclaim it.84 The rules of the executive or any other body do not represent the people because society did not authorize them to provide laws. Finally, laws must be directed to preserve the public good. Locke argues, “the power of the society, or legislative constituted by them,

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can never be supposed to extend farther, than the common good.”85 Political authority is only legitimate if directed toward “the peace, safety, and public good of the people.”86 Locke defines the “public good” as “the preservation of the property of all the members of that society, as far as is possible.”87 Locke uses the term “property” here in a broad sense, referring not simply to land and goods but encompassing life and liberty as well.88 Individuals have property ownership in their lives, bodies, and freedoms. The only legitimate laws are those that have as their goal the “preservation of the society, and (as far as will consist with the public good) of every person in it.”89 As long as a law is directed to preserve the property of society and its citizens, originates in the consent of the people, and treats everyone equally, it is legitimate and can restrict the rights and liberties of individuals. This is true for all laws, even those that have the unintended effect of restricting religious liberty. Thus, although individuals may choose to disobey a law that violates their conscience, they must still pay the penalty for such disobedience as established in the law. The government may not legitimately exempt select persons from laws, even in the interest of freedom of religion. When we combine these general requirements for legitimate political authority from the Second Treatise with those specifically related to religious liberty outlined in A Letter Concerning Toleration, we get a set of nine Lockean criteria that determine the legitimacy of government actions with regard to religious liberty. 1. All government action must be directed only toward the public good; 2. Government must rule by established and known laws; 3. Laws must treat all citizens equally; 4. Laws must originate in the consent of the people; 5. Laws must originate in the body entrusted by the people with legislative authority; 6. Government must treat all religions equally before the law; 7. Government must not tolerate the intolerant; 8. Government must not tolerate any opinion or action that undermines civil society or its purpose; and 9. Government can restrict actions but not the religious intent behind them.

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Two standards stand out in their importance, for these are the ones that Locke reiterates in both works. Above all, neutrality and the public good should be the guiding forces for assessing the legitimacy of any law. The end or purpose of all government action, including laws and all use of force, must be to advance the public good, in other words the property of all citizens. Any law not pursuing these limited ends extends beyond the authority of the legislature. Furthermore, the government cannot be expected to tolerate any action that undermines this end, even if done in the name of one of our basic rights. Religion, according to Locke’s political theory, must be balanced between political authority and individual freedom. Saying that government may, and at times should, restrict individuals’ freedom of religion does not mean that religious discourse must be shunned from public space altogether. Government actions in a democracy are rooted in public opinions, and political opinions are derived from people’s religious views. And in spite of our best efforts to draw a marked line between religion and politics, they have a shared interest in the morality of society. Locke encouraged, according to Ward, “an inclusive conception of the public sphere that would provide for robust debate about morality and the public good among the institutions of civil society.”90 Despite calls from some contemporary liberal philosophers, such as John Rawls, for the complete secularization of political discourse,91 this is neither possible nor desired. Again, balance is key, and this is what Locke’s political theory provides. Religion should neither be imposed on nor eradicated from society. This balanced theory reveals the need for moderation in both religionists and secularists in political discourse. The list of government dos and don’ts extrapolated from Locke’s A Letter Concerning Toleration might make it seem as though government is the ultimate adjudicator of religious beliefs in society. Although government does, indeed, have to forbid actions and opinions that pose a threat to society, this is intended neither to restrict religion in society nor as a simple external rule imposed on individuals. Rather than viewing toleration as closing discussion, Ward says that Locke saw it “as a means to allow for the articulation of diverse beliefs and opinions in a framework of conscientious dissent and debate,” inclusive of minority beliefs.92 Toleration brings religious belief into public debate. Government laws and action do not prohibit citizens from discussion or disagreement but encourage it. “Far from precluding robust discourse, Locke’s conception of toleration envisions churches and civil government” and, I would add,

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individual citizens themselves, “in a process of discursive engagement relating to the nature of the public good and the proper scope of state power.”93 With the nine criteria outlined above as a guide to government action regarding religious liberty, we are able to evaluate particular examples to determine the legitimate and appropriate course of government action in a Lockean society. In most cases, these criteria will outline a range of acceptable alternatives, along with certain illegitimate alternatives, rather than one right answer and one wrong answer. Before using these standards to assess the three religious liberty cases outlined in Chap. 1—the government employee, the employer, and the independent business owner and service provider—we must first examine how these examples are part of the overall story of religious liberty in the United States. The next chapter will address this question by providing an overview of the relevant Supreme Court decisions and their rationale, as well as Congressional statutes that aim to protect religious freedom.

Notes





1. John Locke, A Letter Concerning Toleration, trans. William Popple and James Tully, ed. (Indianapolis: Hackett Publishing Company, 1983 [1689]), 46. Hereafter, references to Locke’s Letter will appear as follows: LCT, page number. 2. See J.W. Gough, “The Development of Locke’s Belief in Toleration,” in John Locke: A Letter Concerning Toleration in Focus, ed. John Horton and Susan Mendus (London: Routledge, 1991); Paul J. Kelly, “John Locke: Authority, Conscience and Religious Toleration,” in John Locke: A Letter Concerning Toleration in Focus, ed. John Horton and Susan Mendus (London: Routledge, 1991); Robert Kraynak, “John Locke: From Absolutism to Toleration,”American Political Science Review 74, no. 1 (1980); Lee Ward, John Locke and Modern Life (Cambridge: Cambridge University Press, 2010). 3. Perez Zagorin, How the Idea of Religious Liberty Came to the West (Princeton: Princeton University Press, 2003), 5–6. 4. For a more detailed discussion of the differences between religious liberty and toleration, see Susan Mendus and John Horton, eds., Aspects of Toleration: Philosophical Studies (London: Methuen, 1986); Susan Mendus, “Introduction,” in Justifying Toleration: Conceptual and Historical Perspectives, ed. Susan Mendus (Cambridge: Cambridge University Press, 1988).

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5.  Elissa Alzate, “From Individual to Citizen: Enhancing the Bonds of Citizenship through Religion in Locke’s Political Theory,”Polity 46, no. 2 (2014); Ingrid Creppell, “Locke on Toleration: The Transformation of Constraint,” Political Theory 24, no. 2 (1996); Greg Forster, John Locke’s Politics of Moral Consensus (Cambridge: Cambridge University Press, 2005); John Horton, “Introduction,” in John Locke: A Letter Concerning Toleration in Focus, ed. John Horton and Susan Mendus (London: Routledge, 1991); David McCabe, “John Locke and the Argument against Strict Separation,”Review of Politics 59, no. 2 (1997); Ward, John Locke and Modern Life; Anthony G. Wilhelm, “Good Fences and Good Neighbors: John Locke’s Positive Doctrine of Toleration,”Political Research Quarterly 52, no. 1 (1999). 6.  Kelly, “John Locke: Authority, Conscience and Religious Toleration”; Kraynak, “John Locke: From Absolutism to Toleration”; David J. Lorenzo, “Tradition and Prudence in Locke’s Exceptions to Toleration,”American Journal of Political Science 47, no. 2 (2003); J. Judd Owen, “Locke’s Case for Religious Toleration: Its Neglected Foundation in the Essay Concerning Human Understanding,”Journal of Politics 69, no. 1 (2007); Micah Schwartzman, “The Relevance of Locke’s Religious Arguments for Toleration,”Political Theory 33, no. 5 (2005); Ian Shapiro, “Introduction: Reading Locke Today,” in Two Treatises of Government and A Letter Concerning Toleration, ed. Ian Shapiro (New Haven & London: Yale University Press, 2003); Jeremy Waldron, “Locke: Toleration and the Rationality of Persecution,” in Justifying Toleration: Conceptual and Historical Perspectives, ed. Susan Mendus (Cambridge: Cambridge University Press, 1988); “Locke: Toleration and the Rationality of Persecution,” in John Locke: A Letter Concerning Toleration in Focus, ed. John Horton and Susan Mendus (London: Routledge, 1991). 7. McCabe, “John Locke and the Argument against Strict Separation.” 8.  Kelly, “John Locke: Authority, Conscience and Religious Toleration”; Kraynak, “John Locke: From Absolutism to Toleration.” 9. Owen, “Locke’s Case for Religious Toleration.” 10. Waldron, “Locke: Toleration and the Rationality of Persecution.” 11. Maurice Cranston, “John Locke and the Case for Toleration,” in John Locke: A Letter Concerning Toleration in Focus, ed. John Horton and Susan Mendus (London: Routledge, 1991), 87–88. 12.  Schwartzman, “The Relevance of Locke’s Religious Arguments for Toleration.” 13. Alzate, “From Individual to Citizen: Enhancing the Bonds of Citizenship through Religion in Locke’s Political Theory”; Forster, John Locke’s Politics of Moral Consensus; McCabe, “John Locke and the Argument

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against Strict Separation”; Ward, John Locke and Modern Life; Wilhelm, “Good Fences and Good Neighbors: John Locke’s Positive Doctrine of Toleration.” 14. Susan Mendus, “Locke: Toleration, Morality and Rationality,” in John Locke: A Letter Concerning Toleration in Focus, ed. John Horton and Susan Mendus (London: Routledge, 1991). 15. LCT, 23. For a more in-depth analysis of Locke’s Letter, see also Alzate, “From Individual to Citizen: Enhancing the Bonds of Citizenship through Religion in Locke’s Political Theory.” 16. LCT, 23–24. 17. LCT, 23. 18. LCT, 25. 19. LCT, 25. 20. LCT, 35. 21. John Locke, The Reasonableness of Christianity, as Delivered in the Scriptures (Washington, DC: Gateway Editions, Regnery Publishing, Inc., 1997 [1695]), p. 138, par. 241. Hereafter, references to Locke’s Reasonableness will appear as follows: RC, page, paragraph. 22. LCT, 25. 23. LCT, 26. 24. LCT, 26. 25. LCT, 28. 26. LCT, 35. 27. LCT, 35. 28. LCT, 26. 29. LCT, 27. 30. Waldron, “Locke: Toleration and the Rationality of Persecution.” 31. LCT, 28. 32. LCT, 28. 33. John Locke, “A Third Letter Concerning Toleration,” in The Works of John Locke (London: Thomas Tegg, 1823 [1692]), Vol. 6 of 10, 242–243. 34. An Essay Concerning Human Understanding, ed. Peter H. Nidditch (Oxford: Clarendon Press Oxford, 1975 [1689]), IV.XVI.4.659. Hereafter, references to Locke’s Essay appear as follows: ECHU, Book, Chapter, Section, Page. 35. ECHU, IV.XVIII.2.689. 36. Ward, John Locke and Modern Life, 221. For more detailed analysis of these passages of the Essay and the implications for Locke’s political theory, see also Forster, John Locke’s Politics of Moral Consensus, 105–119; Ward, John Locke and Modern Life, 212–223; Nicholas Wolterstorff, John Locke and the Ethics of Belief (Cambridge: Cambridge University Press, 1996), 60–86.

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37. ECHU, IV.X.all.619–630. 38. ECHU, IV.X.19.630. 39. RC, 102.72 40. Forster, John Locke’s Politics of Moral Consensus, 71. 41. LCT, 36. 42. Ward, John Locke and Modern Life. 43. LCT, 46. 44. LCT, 28. 45. LCT, 30. 46. Ward, John Locke and Modern Life, 234. 47. LCT, 28. 48. Ward, John Locke and Modern Life, 235. 49. ECHU, 4.3.18.550, emphasis in original. 50. LCT, 30–31. 51. LCT, 51. 52. LCT, 31–35. 53. LCT, 33–34. 54. LCT, 35. 55. LCT, 31–33. 56. LCT, 33–35. 57. LCT, 35–56. 58. LCT, 39–45. 59. LCT, 39. 60. LCT, 39. 61. LCT, 48–49. 62. LCT, 46. 63. LCT, 49. 64. LCT, 49–50. 65. LCT, 51. 66. Forster, John Locke’s Politics of Moral Consensus, 20. 67. LCT, 44. 68. LCT, 39. 69. LCT, 42. 70. LCT, 49. 71. LCT, 48. 72. At least according to Locke’s view of political society. Some animal rights philosophers might disagree, viewing civil society as including, or at least not necessarily excluding, animal participants. In this case, animal sacrifice might indeed undermine the intent of such a society. Such an argument is clearly outside the scope of our purposes here. 73. LCT, 42. 74. LCT, 49.

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75. LCT, 48. 76. John Locke, Second Treatise of Government (Indianapolis: Hackett Publishing, 1980 [1689]), XI.135. Ed. C.B. Macpherson. Hereafter, references to Locke’s Second Treatise will appear as follows: ST, chapter and Section. 77. ST, IX.124, XI.135–137, 142. 78. ST, XI.142. 79. ST, XI.134, 138–139. 80. ST, XI.134, 141. 81. ST, XI.131. 82. ST, XI.142. 83. LCT, 52. 84. ST, XIII.149. 85. ST, IX.131. 86. ST, IX.131. 87. ST, VII.88. 88. ST, IX.123. 89. ST, XI.134. 90. Ward, John Locke and Modern Life, 212. 91. John Rawls, Political Liberalism (New York: Columbia University Press, 1993). 92. Ward, John Locke and Modern Life, 212. 93. Ward, John Locke and Modern Life, 249.

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