This chapter examines the influence of Magna Carta on the development of rights and liberties in the Anglo-American common law tradition. Originally issued by King John of England in 1215, Magna Carta and several later medieval sources set forth numerous prototypical rights and liberties that helped to shape subsequent legal developments in England, America, and the broader Commonwealth. Magna Carta inspired sixteenth-century Puritan dissenters in Elizabethan England and seventeenth-century English jurists like Sir Edward Coke and Puritan pamphleteers like John Lilburne, who advocated sweeping new rights reforms on the strength of the Charter. Magna Carta also inspired more directly the new bills of rights and liberties of several American colonies, including notably the expansive 1641 Body of Liberties of Massachusetts crafted by Nathaniel Ward, and many of the rights provisions in the American Declaration of Independence, the original state constitutions, and the US Constitution and Bill of Rights.

This chapter examines the influence of Magna Carta on the development of rights and liberties in the Anglo-American common law tradition. Originally issued by King John of England in 1215, Magna Carta and several later medieval sources set forth numerous prototypical rights and liberties that helped to shape subsequent legal developments in England, America, and the broader Commonwealth. Magna Carta inspired sixteenth-century Puritan dissenters in Elizabethan England and seventeenth-century English jurists like Sir Edward Coke and Puritan pamphleteers like John Lilburne, who advocated sweeping new rights reforms on the strength of the Charter. Magna Carta also inspired more directly the new bills of rights and liberties of several American colonies, including notably the expansive 1641 Body of Liberties of Massachusetts crafted by Nathaniel Ward, and many of the rights provisions in the American Declaration of Independence, the original state constitutions, and the US Constitution and Bill of Rights.B1:L8

The eighteenth-century American founders believed that religion is special and deserves special constitutional protection, and that all peaceable faiths must be drawn into the constitutional process and protection. The founders introduced six constitutional principles for the protection of religious freedom – freedom of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and no federal establishment of religion. Since the 1940s, the US Supreme Court has upheld these religious freedom principles in more 170 cases, albeit unevenly of late. Moreover, in recent years religious freedom has come under sharp popular and academic attack, particularly as religious pathologies have come to light and religious freedom claims have clashed with sexual liberty claims. This chapter calls for a return to the first principles of religious freedom for all, at home and abroad, and for a new balance between religious freedom and other fundamental rights claims.

The Supreme Court has devoted nearly a third of its religious freedom cases to questions of religion and education. While government has the power to mandate basic education for all children, the Court has held, parents have the right to choose public, private, or homeschool education for their minor children, and government may now facilitate that choice through vouchers and tax breaks. While the First Amendment forbids most forms of religion in public schools, it protects most forms of religion in private schools. While the First Amendment forbids government from funding the core religious activities of private schools, it permits delivery of general governmental services, subsidies, scholarships, and tax breaks to public and private schools, teachers, and students alike. While the First Amendment forbids public-school teachers from offering religious instruction and expression in public-school classes and events, it permits public-school students to engage in private religious expression free from coercion. The amendment further requires that religious parties have equal access to public facilities, forums, and funds that are open to their nonreligious peers.

In response to several contemporary scholars who criticize human rights paradigms as inadequate or incompatible with Christian faith and practice, these reflections argue that rights should remain a part of Christian moral, legal, and political discourse, and that Christians should remain a part of pluralistic public debates about the appropriate scope and substance of human rights and religious freedom protections.

This chapter analyzes the gradual and escalating development of human rights and religious freedom protections over the past two millennia. The chapter surveys the discovery and accumulation of rights and liberties in biblical texts and their interpretations over the centuries; in classical Roman law and the medieval civil, canon, and common law sources that built on the Bible and Roman law; in the Protestant Reformation and the Protestant–Catholic conflicts and revolts that followed; in Enlightenment liberalism and modern constitutional reforms born of democratic revolution; and in twentieth-century international human rights documents beginning with the 1948 Universal Declaration of Human Rights. Setting up the more detailed studies that follow, the chapter identifies several essential and enduring questions about the intersections of religion, human rights and religious freedom that still confront states and churches today.

This chapter traces the history of religious property tax exemptions, particularly in the Anglo-American common law and equity law traditions. It analyzes the perennial controversy around religious tax exemption in the history of America, and the constitutional defense of these exemptions that emerged with arguments from history, federalism, separatism, and the social benefits that exempt properties provide at ample state savings. Religious exemptions, however, are under fresh attack today, particularly for religious groups who maintain traditional sexual morality. The chapter reconsiders the constitutionality of such exemptions in light of recent First Amendment cases, and judges these exemptions still to be constitutionally valid and socially valuable, even if subject to legislative repeal.

Massachusetts was the last of the original thirteen American states to disestablish religion. Its 1780 constitution guaranteed freedom and equality to all peaceable private religions but also retained a “mild and equitable establishment” featuring (1) ceremonial public religious language, symbols, rituals, and oaths, (2) moral instruction in state schools, and 3) state collection of tithes and required religious worship. Lead draftsman John Adams crafted this approach as a political compromise between hardline establishmentarians and radical separationists in his day. But this view also reflected his belief that too little religious freedom is a recipe for hypocrisy and impiety, while too much religious freedom is an invitation to depravity and license. After 1780, this compromise fell apart as religious pluralism and political division over religion grew in the state. Amendments of 1821 and 1833 outlawed religious test oaths, mandatory worship, and state tithe collections, but the state retained its ceremonial and moral establishments.

The Introduction argues that religion has long been a critical foundation and dimension of human rights; that religion and human rights still need each other for each to thrive; and that robust promotion and protection of religious freedom is the best way to protect many other fundamental rights today, even though religious freedom and other fundamental rights sometimes clash and need judicious balancing. Human rights, however, are not a fundamental belief system. They are only middle axioms in our discourse, a means to the ends of achieving justice, order, and peace for all. Human rights ultimately depend upon the visions and values of human communities, including religious communities, for their content, coherence, and controlled application.

This chapter analyzes the gradual and escalating development of human rights and religious freedom protections over the past two millennia. The chapter surveys the discovery and accumulation of rights and liberties in biblical texts and their interpretations over the centuries; in classical Roman law and the medieval civil, canon, and common law sources that built on the Bible and Roman law; in the Protestant Reformation and the Protestant–Catholic conflicts and revolts that followed; in Enlightenment liberalism and modern constitutional reforms born of democratic revolution; and in twentieth-century international human rights documents beginning with the 1948 Universal Declaration of Human Rights. Setting up the more detailed studies that follow, the chapter identifies several essential and enduring questions about the intersections of religion, human rights and religious freedom that still confront states and churches today.

Massachusetts was the last of the original thirteen American states to disestablish religion. Its 1780 constitution guaranteed freedom and equality to all peaceable private religions but also retained a “mild and equitable establishment” featuring (1) ceremonial public religious language, symbols, rituals, and oaths, (2) moral instruction in state schools, and 3) state collection of tithes and required religious worship. Lead draftsman John Adams crafted this approach as a political compromise between hardline establishmentarians and radical separationists in his day. But this view also reflected his belief that too little religious freedom is a recipe for hypocrisy and impiety, while too much religious freedom is an invitation to depravity and license. After 1780, this compromise fell apart as religious pluralism and political division over religion grew in the state. Amendments of 1821 and 1833 outlawed religious test oaths, mandatory worship, and state tithe collections, but the state retained its ceremonial and moral establishments.