True Freedom: On Protecting Human Dignity and Religious Liberty
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Human freedom and obedience to divine law are not opposed to each other; rather they need each other for true human flourishing to occur. Another more prominent theologian, Fr. Servais Pinckaers, O. To be sure, there will be frequent and deep differences of opinion about what is true and thus about what constitutes the truly excellent use of freedom. Yet, when the intrinsic link between the search for truth and freedom is broken, and a culture erodes the fixed moral points of reference in human existence, such a culture becomes, not a marketplace of ideas but a cauldron of contention.
It becomes a place of colliding claims and counterclaims with government as referee. Then it is that our fundamental freedoms are endangered.
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The Obligation of Government to Promote and Uphold Human Dignity The third and final layer of this proverbial cake pertains to the role of government in promoting and upholding human dignity as described in the foregoing layers, that sovereign freedom of the human person rooted in Revelation and understood by human reason. Again, allow me a preliminary comment to get things started.
It cannot be denied that DH takes a tone very different than, let us say, the pontificates of the 19th century. Certainly DH recognizes the rise of democratic states and the varying situations in which believers find themselves the world over. Yocis, op. And this sets the stage for a few observations for outlining what DH says about the obligations of the State with respect to religious freedom.
At a minimum, the State should avoid all forms of coercion in religious matters.
Raising the bar just a bit, DH makes clear that the State should avoid other, more subtle forms of coercion, including the creation of an unfriendly cultural atmosphere in which it becomes very difficult for believers to profess and act on teachings that represent minority views in society, views that are distinctly countercultural. For example, those of us who maintain that marriage is between a man and a woman and has something to do with bringing children into the world now often find ourselves condemned to be in the ranks of racists and bigots, even though the high court allows that, for now, we are free to advocate for our views on marriage.
So, at a minimum, the government should not be involved in coercion against individuals who are believers or against religious, i.
DH, however, sees a constructive role for the State to play in religious freedom. It is the guarantor of God-given rights. Instead of exerting coercion, overt or subtle, against believers and their churches, the State has the responsibility of creating an atmosphere where the practice of religion can prosper and where individual believers and religious communities contribute to the common good. Indeed, in recognizing this claim as an intrinsic part of the human experience, the State more securely recognizes religious freedom as a universal right.
Paradoxically when the question of seeking for truth is left out of the equation, religious liberty, including freedom of speech and liberty of exercise, is vulnerable to the oppression of those who make claims, not on the basis of truth, but power. To sum up, DH makes clear that absent a threat to the common good of society believers and religious communities should have the freedom not merely to advocate for their teachings but to do so publicly, in the public square, as it were and indeed to put them into practice.
Conclusion Well, at length, a three layer cake has been baked, though quite imperfectly. You might wonder if the top layer Revelation should be the bottom layer inasmuch as Revelation is foundational to the teaching on religious liberty. So you may think that I have served you a pineapple up-side-down cake!
Thank you for listening! May God bless you and keep you in his love! A native of Louisville, Ky. Pius X in Erlanger, Ky. He was ordained to the priesthood for the Archdiocese of Washington in In addition to his responsibilities in the Archdiocese of Baltimore, Archbishop Lori serves as Supreme Chaplain of the Knights of Columbus and is the former chairman of the U. Lori Biography of Archbishop William E. The principle of universality of human rights is the cornerstone of international human rights law. This principle, as first emphasized in the Universal Declaration on Human Rights in , has been reiterated in numerous international human rights conventions, declarations, and resolutions.
The Vienna World Conference on Human Rights, for example, noted that it is the duty of States to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems. Some fundamental human rights norms enjoy universal protection by customary international law across all boundaries and civilizations. Human rights are inalienable. They should not be taken away, except in specific situations and according to due process. For example, the right to liberty may be restricted if a person is found guilty of a crime by a court of law.
All human rights are indivisible, whether they are civil and political rights, such as the right to life, equality before the law and freedom of expression; economic, social and cultural rights, such as the rights to work, social security and education , or collective rights, such as the rights to development and self-determination, are indivisible, interrelated and interdependent.
The improvement of one right facilitates advancement of the others.
TRUE FREEDOM: On Protecting Human Dignity and Religious Liberty
Likewise, the deprivation of one right adversely affects the others. Although this methodology may have brought a clear protocol and transparency to the adjudication process, it can also generate some adverse impacts. The strong sense of rights, moral rights, is neither reducible to interests nor is correctly translatable in instrumental terms. Rights as trumps involve a non-instrumentalist approach and challenge the idea that adjudication is a matter of deciding about conflicting interests.
Aleinikoff , p. This is because. Under a balancing approach, the Court searches the landscape for interests implicated by the case, identifies a few, and reaches a reasonable accommodation among them. The consequence of the naturalization of balancing as the unique method for adjudicating free speech cases is the risk of losing the special richness of conceptual and philosophical construction that marked its existence. Balancing is a sensible method for resolving personal, social, and legal conflicts.
However, it is not true that it is always the only or the best method. The same conclusion is particularly true in many constitutional decisions concerning freedom of speech. To balance the interests is not simply to be candid about how our minds — and legal analysis — must work. To sum up: the American legal experience on freedom of speech offers many important lessons to be learned by new constitutional democracies in Latin America, such as Brazil. The long and rich history of judicial reasoning and theoretical reflection upon created a very rich repertoire of conceptual analysis and empirical data both about the instrumental and non-instrumental rationales usually invoked to support freedom of speech.
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We believe that some of the most relevant and insightful lessons are these:. American doctrine has tinkered a complex and refined analytical apparatus concerning the nature of language in different contexts. This is one of the most important outcomes of cases like Brandenburg.click
Religious Freedom, Cornerstone of Human Dignity | EWTN
The American experience on empirical data about the consequences of liberal decisions supporting free speech may help to avoid fast and shallow conclusions about the possible effects and causal connections of harmful speeches and violence, discrimination and silencing. In this sense, it can show useful data that could challenge hypothetical consequentialist arguments often found in Brazilian legal debate on free speech.
American history also shows an interesting context in which the functioning of the structural limits of free speech can be analyzed and criticized. This critique has led to special distinctions of special areas such as big media, employment contexts, academic contexts, which are rarely considered in a more refined way by Brazilian courts and doctrine. The American experience has produced a rich conceptual apparatus that helped to understand and analyze free speech controversies — among them the normative or interpretive nature of concepts such as democracy, autonomy, rights as trumps , public debate, insult, reckless disregard, actual malice, incitement, etc.
Besides, the American doctrine has for a long time challenged the mere harm as a sole basis for authorizing imposing limits to free speech. This conceptualization has also put new light in the criteria to be used to differentiate fighting words from offensive speech in public debate. It is clear that Brazilian case law and jurisprudence is still at risk of repeating the same mistakes American did in the past.
American exceptionalist experience in free speech debate has also created a powerful methodological antidote against naturalized balancing through proportionality test. The mantra of balancing and proportionality is pervasive in Latin American jurisprudence and Europe. Here is not the place to discuss its merits and correctness in general.
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I believe balancing is probably a very useful tool in many areas of law and plays an important role in free speech jurisprudence. However, it is not the exclusive and necessarily best method to decide free speech conflicts. Although the critique of balancing test is neither something restricted to free speech legal debate nor unknown outside US, it is a particularly interesting area in which it has occurred.
This is an important methodological lesson that free speech scholars should keep in mind. The US more strict and conceptual jurisprudence on this issue offers a powerful and democratic alternative to the naturalized and mechanical acceptance of the balancing model and represents a rich conceptual analysis still unknown by Brazilian courts.
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God's Servant First: Conscience and dignity
Rio Grande do Sul. Relator: Ministro Moreira Alves.
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Cambridge: Cambridge University Press, Private speech, public purpose: the role of government motive in First Amendment doctrine, 63 The University of Chicago Law Review , n. Free speech and its relation to self-government. York: Harper Bros. On Liberty. CreateSpace: Independent Publishing Platform, Sullivan, U. POST, Robert. Racist speech, democracy, and the First Amendment.