On August 17, a Russian court held that the New World Translation of the Holy Scriptures published by the Jehovah’s Witnesses was “extremist” writing and banned it. One month earlier, the Russian Supreme Court declared the Jehovah’s Witnesses an “extremist” group and ordered the closure of their administrative center, along with 395 local chapters. The decision also bans the group’s 172,000 members from proselytizing or holding services and allows the government to confiscate church property.
According to the Levada Center, a non-governmental Russian polling and research organization, 79 percent of Russians support a ban on Jehovah’s Witnesses. A string of arsons at Witness houses of worship has followed the court decision, and Witnesses have been complaining for some time that teachers disparage and humiliate their children at school. The Moscow patriarchate of the Orthodox Church, deeply rooted in an establishment model of church–state relations, has expressed approval of the decision. Metropolitan Hilarion, head of the patriarchate’s department for external relations, told Russia-24, a state-owned Russian news channel: “I hardly doubt that sectarians will remain and continue their activity, but at least the fact that they will stop openly equating themselves with Christian confessions is for the better. . . . It’s a sect, and a totalitarian and harmful one at that.”
The likely issue is the Witnesses’ conscientious objection to nationalism. They refuse to serve in the military, take part in patriotic exercises, or celebrate national holidays. This runs against the grain in Vladimir Putin’s Russia. As a religion that has American origins and seeks to woo members from Russia’s thousand-year-old national church, they find little sympathy. Witnesses are an easy target. Most Christians say nothing about the persecution of this group that, because of its distinctive beliefs, denies the Trinity and refuses to celebrate Christmas or Easter.
This persecution is strange. It proceeds even though only 0.10 percent of Russians are Jehovah’s Witnesses and the Russian government has recently honored several Witnesses as outstanding citizens. The suppression has not stopped with confiscation of property and a ban on religious activity. Witnesses have now been ordered to prove that they have renounced their religion by joining combat units in the military. This made Yaroslav Sivulsky, the Witnesses’ Russia spokesman, wonder why “religious extremists” are being ordered to join, for example, the Strategic Missile Troops.
The history of the American founding is filled with affirmations of the right to follow one’s conscience, even when one errs.
The history of the American founding is filled with affirmations of the right to follow one’s conscience, even when one errs. Some of the most famous defenses of religious minorities come from people who elsewhere criticized their beliefs: Consider Thomas Jefferson, who made no secret of his contempt for organized religion, and his famous letter to the Danbury Baptists (1802). “Religion is a matter which lies solely between Man and his God,” he wrote, and “he owes account to none other for his faith or his worship.” The notion of a fundamental right to follow one’s conscience crystallized as early as 1776, with the drafting of the Virginia Declaration of Rights. George Mason’s initial draft granted the “fullest Toleration in the Exercise of Religion.” James Madison, 26 years Mason’s junior, insisted on changing that grant to a guarantee that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” The distinction, while subtle, is essential: the free exercise of religion is a fundamental right. It is part of every person’s DNA — not a gift from the state.
The Second Vatican Council endorsed the same fundamental right. In its Declaration on Religious Freedom, Dignitatis Humanae, it declared that religious freedom “has its foundation in the very dignity of the human person as . . . is known through the revealed word of God and by reason itself.” While affirming the universality of the gospel message and the obligations it imposes on all, the Council emphasized that “men cannot discharge these obligations in a manner keeping with their own nature unless they enjoy immunity from external coercion as well as psychological freedom.” Error has no rights, but people do. One of the most fundamental, the Council taught, is the right to exercise one’s faith free from coercion.
Despite these repudiations, the idea that “error has no rights” will not die. Even the United States Supreme Court flirted with it. In Minersville School District v. Gobitis (1940), two Jehovah’s Witness children — Lillian and William Gobitas — could not salute the flag or recite the pledge because they believed that would violate the Biblical injunction against idolatry. The state was unwilling to overlook such non-conformity. While the lower courts sided with the children, the Supreme Court did not. It reasoned that the Court had no business second-guessing a state’s efforts to “evoke that unifying sentiment without which there can ultimately be no liberties, civil or religious.” Adding insult to injury, the Court misspelled the Gobitas name — hence their place in history as the Gobitis family.
The idea that the state may coerce children’s consciences to “evoke” a “unifying sentiment” contrasts sharply with the Founders’ recognition that government must protect rights of conscience that predate and transcend anything political. With their consciences unworthy of state protection, Witnesses were branded traitors. A local Catholic parish led a boycott to ruin the Gobitas’s family store. In Maine, a mob of 2,500 burned a Kingdom Hall, or house of worship. Witnesses in Wyoming were beaten, tarred, and feathered.
The idea that the state may coerce children’s consciences to ‘evoke’ a ‘unifying sentiment’ contrasts sharply with the Founders’ recognition that government must protect rights of conscience that predate and transcend anything political.
Just three years later, in West Virginia State Board of Education v. Barnette (1943), the Supreme Court corrected itself. This time a West Virginia school board imposed a similar flag-salute mandate, threatening to ratchet up its coercive power — all the way to jailing the children’s parents — until Witness students complied. It explained: “Failure to conform is ‘insubordination’ dealt with by expulsion. Readmission is denied by statute until compliance. Meanwhile, the expelled child is ‘unlawfully absent’ and may be proceeded against as a delinquent. His parents or guardians are liable to prosecution, and if convicted are subject to fine not exceeding $50 and jail term not exceeding thirty days.” The Court held that the state could do no such thing, reasoning that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” The right to practice one’s religion does not depend on the preferences of the powerful.
It would be comforting to suppose that the notion that “error has no rights” is endorsed today only by those most distant from Madison’s insight, Vatican II’s breakthrough, and Barnette’s holding. Many strains of Islamic thought, for example, divide societies into either the “House of Peace” (countries with Muslim governments ruled by sharia) and the “House of War” (all other countries), with the latter subject to jihad. And it is unsurprising that Russia’s ban of an entire organized religion coincides with its efforts to distance itself from the West.
But intolerance is not so easily cabined. Those promoting the new sexual orthodoxy express a similar attitude by opposing religious-liberty protection for those holding traditional views. In his Obergefell dissent, Justice Samuel Alito warned that the majority’s decision, which compared “traditional marriage laws to laws that denied equal treatment for African-Americans and women, . . . will be exploited by those who are determined to stamp out every vestige of dissent.” George Weigel and Rod Dreher have both identified the battle cry of “error has no rights” in the harsh treatment of Christians in the wedding industry, doctors who question gender-transition surgery, and employers who refuse to cover abortifacients in their insurance plans.
Just as the U.S. Supreme Court’s Gobitis decision and the Russian Supreme Court’s recent decision sparked reprisals against Jehovah’s Witnesses, Obergefell has emboldened those who say that the opposition is so despicably wrong that it has forfeited its rights. Mega-millionaire LGBT political mastermind Tim Gill recently declared: “We’re going to punish the wicked.” This explains LGBT activists’ treatment of former North Carolina governor Pat McCrory, who signed the statute that enforced traditional bathroom etiquette. It was not enough that the NCAA, Lionsgate, Maroon 5, and Itzhak Perlman boycotted the state. It was not enough that the North Carolina legislature repealed the bathroom law. It was not enough that the sexual Left defeated Governor McCrory. So, when he dared to attend the presidential inauguration, he and his wife were chased through the streets and alleys by an angry mob screaming on a bullhorn, “Shame on you, you antigay bigot! Shame. Shame.” When error has no rights, “heretics” must be crushed.
In his history of liberty of conscience, John Plamenatz noted the sad reality that powerless minorities who eloquently call for freedom too often take up the oppressor’s mantle as soon as they gain power. Thus, the Puritans in England called for toleration, while those in Massachusetts, “when they found themselves a majority, . . . became as eager as Calvin had been to use the civil power to make their Church supreme.” Now, it is the sexual activists who once called for toleration in the form of repeal of the laws that banned abortion, sodomy, and same-sex marriage. Having achieved those goals and acquired political power, they now demand that Christian employers provide insurance coverage for abortifacients and contraceptives, that Christian wedding vendors help celebrate same-sex weddings or be fined and undergo diversity training to develop better “attitudes,” that Christian physicians and Catholic hospitals provide gender-reassignment surgery, and that Christian psychologists be barred from helping gender-dysphoric clients align with their biology.
Sidney Mead writes of the truce between Christian sects during the constitutional period. “Each wanted the complete freedom to propagandize its own view” until it “became obvious to them that the only way that each could get such freedom for itself was to grant it to all others.” So it is. Diversity, without slipping into totalitarianism, must start with freedom of conscience.
— L. Martin Nussbaum advocates for religious institutions and their liberty. John N. Thorpe is a student at the Sandra Day O’Connor School of Law at Arizona State University.