Law and Dis‐orderly Religion

Abstract

Abstract Thoughtful proponents of religious freedom throughout the centuries have never advocated an unlimited and unfettered right. This chapter makes a searching analysis of the Western tradition (Tertullian, Augustine, Luther, Calvin, Richard Hooker, Thomas Helwys, John Cotton, Roger Williams, William Penn, etc.) on the issue of the authority of the state versus sacred obligations of conscience. Four paradigms or types emerged. Two of them, the “duly ordered relationships” and the “levitical” paradigms, are conspicuously present in periods of religious oppression. In contrast, the “two kingdoms” and the “enlightenment” paradigms actively contributed to the development of religious freedom protections. In these, the state's argument is subjected to scrutiny (as opposed to a conclusive presumption in its favor) and, paradigmatically, the state has been accorded the least (if any) authority over matters of the first tablet of the Ten Commandments: the particulars of worship services, infractions against God, and the form and internal governance of God's church. Under the two kingdom's (and somewhat under the enlightenment) paradigm/type, the basic limiting premise of the free exercise clause is that its protection does not extend to religiously compelled actions which cause harm to the person, property, or privileges of citizenship of another. In these instances, the duty of the state to protect citizens from such harms is deemed paramount.