One of the characteristic features of discussions of freedom of religion or belief (FoRB) is the variety of terms used to describe the concept itself—as well as the set of rights that it includes. To begin to address what FoRB means in various contexts and countries around the Commonwealth and beyond, we propose the following definitions, with the knowledge that these are continually being reinterpreted and refined in both domestic and international contexts.
FoRB—Freedom of religion or belief (FoRB) is the concept that we have taken as our guiding framework at CIFoRB. It is grounded in the fundamental right to “freedom of thought, conscience and religion” expressed in Article 18 of Universal Declaration of Human Rights (UDHR) and reaffirmed in subsequent international declarations. FoRB is also reflected in the office of the United Nations Special Rapporteur on Freedom of Religion or Belief. The acronym FoRB has seen increasing use, particularly, in U.K. and European parliamentary discussions and associated organisations. See, for example, the European Union Intergroup on FoRB and Religious Tolerance (EUFoRB) and the International Panel of Parliamentarians for Freedom of Religion or Belief (IPPFoRB). In the U.K., these concerns are the purview of the All Party Parliamentary Group for International Freedom of Religion or Belief (Freedom Declared APPG), alongside the Commonwealth Initiative on Freedom of Religion or Belief (CIFoRB).
But far from being limited to the U.K. and Europe, variations on the Article 18 formulation of FoRB are reflected in constitutions around the world, including many parts of the Commonwealth. The Constitution of Belize (art. III,11) protects ‘freedom of conscience, including freedom of thought and of religion’. The Constitution of Nigeria (art. 38) secures ‘freedom of thought, conscience and religion’. While the Constitution of India proclaims the country to be a ‘sovereign socialist secular democratic republic’ (preamble), it also protects ‘freedom of religion’ (art. 25), or more specifically ‘freedom of conscience and the right freely to profess, practice and propagate religion’. While designating Islam to be the religion of the Federation (art. 3) the Federal Constitution of Malaysia’s main provision on ‘freedom of religion’ (art. 11) specifically protects the rights to ‘profess’, ‘practise’ and ‘propagate’ religion. The Constitution of Pakistan uses nearly the same ‘profess, practise and propagate’ as Malaysia in its key provision on ‘freedom to profess religion and manage religious institution’ (art. 20), significantly subjecting the freedom to ‘law, public order and morality’.
In addition to having widespread support in international law and constitutions throughout the Commonwealth, the FoRB formula has the advantage of recognising the thought and conscience rights of non-religious, humanist, and secular belief systems—the “nones” of the FoRB landscape, which are also said to be increasing globally. FoRB rights are thus not “religious rights” or “rights of the religious” but include a range of moral, ethical, and philosophical commitments. The progressive Constitution of the Republic of South Africa, 1996 (art. 15), takes the non-religious protection of FoRB a term further, in protecting ‘freedom of conscience, religion, thought, belief, and opinion’ in its bill of rights.
Religious Freedom—Religious freedom has been the standard term for FoRB particularly in the United States, and it is represented in the names of U.S. government bodies and legislation—most notably the United States Commission on International Religious Freedom (USCIRF) and the Office of International Religious Freedom (OIRF) in the Department of State. Both IRF bodies were created by the International Religious Freedom Act passed by the U.S. Congress in 1998. Within the Commonwealth, from 2013 to 2016, Canada also had an Office of Religious Freedom.
The religious freedom framework in the U.S. is set forth in the U.S. Constitution’s First Amendment, which proclaims that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Establishment Clause in that formulation inveighs against state religion or state endorsement of and entanglement with religion. The Free Exercise Clause protects the variety of ways in which religion is manifested and practiced. In 1993, the U.S. Congress enacted the Religious Freedom Restoration Act (RFRA), intended to refine and enhance religious freedom protections.
Religious Liberty—Alongside the term “religious freedom,” the term “religious liberty” is historically and increasingly heard in the U.S. context. In one sense, this reflects the dual mandate of the First Amendment religion clauses to protect the free exercise of religion and to protect both religious and non-religious individuals and organization from any interference by the state that would tend to endorse religion or establish a state religion. In the U.S., there is a longstanding historical background in the difference of emphasis between the ‘religious freedom’ pronouncements of Thomas Jefferson and the somewhat greater emphasis on ‘religious liberty’ in the language of James Madison—two early American presidents whose writings on religious freedom were particularly influential. A recent hearing of the House Judiciary Committee of the U.S. Congress on ‘The State of Religious Liberty in America’ conveys a sense of how the term is being used.
Within the Commonwealth, the Constitution of Ghana (art. 21(1), with some other West African nations, closely follows the formula of the U.S. First Amendment protections of speech, expression, assembly and association—notably also protecting academic freedom and a right to information. It does not containing a clause on state establishment of religion, it protects ‘freedom of thought, conscience and belief’’ and ‘freedom to practise any religion and to manifest such practice’. The term ‘liberty’, however, is only used twice in the Ghanaian Constitution and in connection with personal liberty from unlawful criminal prosecution (art. 14(1)). In fact, ‘liberty’ tends to be used in this way throughout much of the world to describe the bodily liberty of the individual vis-à-vis the state in a human rights sense—with religion, expression association and related rights falling more into the category of fundamental ‘freedoms’.
Freedom of Conscience—As is evident in the debate over ‘religious freedom’ and ‘religious liberty’ in places like the U.S., there can be differences of emphasis depending on whether one’s claim is for a positive right to free exercise of religion (religious freedom) or a negative right from interference by the state (religious liberty). And yet, as we have seen in the select survey of Commonwealth constitutions, variations on the Article 18 protection of ‘freedom of thought, conscience and religion or belief.
But ‘conscience’ also has another, more specialised meaning in the FoRB arena. Specifically, recent debates over perennially fraught issues such as abortion, euthanasia, and homosexuality, in the U.K., Australia and other parts of the Commonwealth, have raised questions of ‘conscience’ in new and robust ways that have as much to do with rights of groups as the rights of individuals. In the U.S., ‘religious liberty’ debates have centered on whether religions and religious groups, in a corporate sense (as in the U.S. Hobby Lobby case), have a right to religious liberty from laws to do with contraception and same-sex marriage. In the Commonwealth, Australia has also grappled with this question of corporate conscience right in its recent parliamentary debates over same sex marriage.
But in a broader sense, both globally and across the Commonwealth, conscience arguments have adhered more to the more internationally accepted Article 18 sense of the term, hinging on the importance of non-coercion by the state or other actors. At times, conscience has been the clarion call of progressive dissidents even within religious faiths. Globally, it is also often tied to questions of apostasy, blasphemy, and conversion, issues which raise particular questions about intra-religious diversity and the permissibility of people diverging from or leaving faith, speaking critically of religion, and in some cases opting to convert to other religions, all of which are significant FoRB issues today.
Freedom of Religion, Religious Rights, Rights of God—The term “freedom of religion” is often interchangeable with “religious freedom” in global contexts. However, it is also has a significant association with Islamic declarations on these rights, as understood in parts of the Muslim world. For example, the key provision on “right to freedom of religion” in the Universal Islamic Declaration of Human Rights, drafted in 1981 by the Islamic Councils of Paris and London states: “Every person has the right to freedom of conscience and worship in accordance with his religious beliefs.” Other provisions of the Islamic Declaration protect “religious beliefs” and “religious feelings” from offence and ridicule. The Qur’anic declaration that there can be “no compulsion in religion” protects the “religious rights” of non-Muslims in Islamic states. Rights to equality and nondiscrimination, and to asylum, association and conduct of family life are also connected to and protected on the basis of religious belief. Even so, how far these “religious rights” or “rights of God” extend to nonbelievers or those of different belief within a religious tradition remain contested. Subsequent Islamic rights statements, such as the Organisation of the Islamic Conference’s 1990 Cairo Declaration on Human Rights in Islam, and the League of Arab States’ 2004 Arab Charter on Human Rights show similar linkages between rights and religion.
This is a brief summary of concepts and terminology that are in routine use in discussions of FoRB, but these terms are far from static, and instead subject to constant contestation and evolution in global human rights discussions over FoRB and the nature and scope of the rights to which FoRB gives rise.