A Jurisprudential Defense of Freedom of Thought, Conscience, and Religion

Presented by Prof. William Wagner

to International Christian Professors

9 April 2025

Good morning, colleagues.  We come from over twenty nations with very different cultures, yet we are all brothers and sisters in Christ.

It is a distinct honor share this message with you today. As a fellow Christian and former judge, I stand before you not just with legal experience, but with a shared reverence for the One who authored both law and liberty.

The Apostle Paul tells us in 2 Corinthians, “Where the Spirit of the Lord is, there is liberty.” This declaration is more than poetry—it is a profound theological truth. True liberty is not conceived by governments or enshrined by courts; it is granted by God Himself.

Today, I want to speak to you about a liberty under siege—our sacred liberty to believe, to think, and to worship according to conscience. From pulpits to prisons, from courtrooms to classrooms, from the public sidewalk to the public square, this freedom is facing growing hostility.

Part I – Theological and Jurisprudential Foundations

Let us begin where all law should begin—with first principles.

From a Christian worldview, the human person is not a morally neutral being. Each of us is created imago Dei—in the image of God. That image includes the conscience. Romans 2 tells us that even the Gentiles, who do not have the Law, show that the requirements of the Law are written on their hearts. That moral conscience is sacred. It is not a creation of the state. It is not a construct of modern psychology. It is a gift of God. And because conscience belongs to God, it must be free to obey God. If the state compels belief, it violates not only human dignity but divine sovereignty.

Contrast this with secular legal philosophy. Where we see natural law, they see cultural construct. Where we affirm truth, they see power dynamics. As a result, freedom of religion becomes little more than freedom of private opinion—until it conflicts with the prevailing orthodoxy of the age.

We must reject this redefinition.

Part II – Historical Foundations

History affirms our claim.

The Magna Carta of 1215—one of the first legal charters of liberty—declares, “The English Church shall be free.” This was not a political afterthought. It was foundational. The Protestant Reformation, spearheaded by Luther and Calvin, emphasized the supremacy of Scripture and conscience over state-imposed orthodoxy. Luther stood before the Diet of Worms and declared, “My conscience is captive to the Word of God.” That declaration echoed through centuries. Fast forward to 1620. The Pilgrims, fleeing religious persecution, signed the Mayflower Compact—not merely a civil agreement, but a covenant rooted in the liberty to worship. My own U.S. Constitution—crafted with the wisdom of Christian statesmen—enshrines religious liberty in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  These words reflect a deep theological conviction that the state must not interfere with that which is sacred.

Part III – International Legal Protections

Now let us turn to the international legal landscape.

After the horrors of World War II, the world sought to enshrine human dignity in a legal framework. The Universal Declaration of Human Rights, adopted in 1948, affirms in Article 18:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community… to manifest his religion or belief in teaching, practice, worship and observance.”

The International Covenant on Civil and Political Rights, binding in nature, repeats this in Article 18 and makes it non-derogable—even during national emergencies. Article 18 explicitly provides that “[e]veryone shall have the right to freedom of thought, conscience and religion.” ICCPR, art. 18.

This right includes “freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” Id. (Emphasis added).

The ICCPR, and its Optional Protocol, also guarantee the free exercise of expression for individuals in signatory states. ICCPR, art. 19. In this regard, Article 19 expressly states that “[e]veryone shall have the right to hold opinions without interference,” and that “[e]veryone shall have the right to freedom of expression.” Id. This right includes the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, . . . or through any other media . . . .” Id.

The right to free expression should, at a bare minimum, mean that governments of free nations have no power to restrict a citizen’s expression due to its message, its ideas, its subject, or its content.

The very fact that speech may succeed in effecting social change will inevitably result in attempts by persons with vested interests to censor it. But this is the very reason for according it special protection.

Under the ICCPR, therefore, a country can only limit these rights by provisions “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” Id. art. 18, §3. – Government regimes, however, weaponize such laws by dishonestly rebranding freedom of religious conscience as conduct threatening public safety. 

The European Convention on Human Rights, in Articles 9 and 10, also protects the freedom of religious conscience, but includes “limitations” that are increasingly weaponized in secular jurisdictions. The ECHR specifically guarantees the right to freedom of thought, conscience and religion, as well as the right to freedom of expression. Article 9 defines the right to freedom of thought, conscience and religion:

[T]his right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. (Emphasis added) ECHR, art. 9, § 1.

Article 10 of the Convention details the right to freedom of expression:

“[T]his right shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

ECHR, art. 10, § 1.

In Latin America, the American Convention on Human Rights affirms this liberty, while the UN’s Declaration on Religious Intolerance encourages member states to take concrete steps to prevent religious discrimination.

These and other treaties recognize the universal and inalienable nature of the two imperative human freedoms. A free and democratic society cannot remain so for long without protecting freedom of expression and the free exercise of religion.

But while the law may speak, the culture often shouts louder.

 

Part IV – Examples of Religious Suppression

Let me illustrate with some examples—both subtle and severe.

Consider the case of Ake Green, a pastor in Sweden, one of the first cases in which I participated. In 2003, Pastor Green preached a sermon quoting Scripture on the issue of human sexuality. He was charged under Sweden’s hate speech laws, convicted, and sentenced to prison. Though the conviction was eventually overturned by Sweden’s Supreme Court—citing the above European Convention protections—the message was clear: Christian preaching is no longer welcome if it offends secular sensibilities.

In the United Kingdom, Christian street preachers have been arrested for publicly reading from the Bible. Employees have lost jobs for refusing to use gender pronouns or affirm same-sex marriage. The state is redefining morality—and punishing dissent.

Meanwhile elsewhere, the threat is not merely legal—it is violent. Christian villages are burned, pastors murdered, and churches destroyed while government too often remains complicit through inaction. Christians worship underground. Surveillance cameras monitor pulpits. Children are banned from Sunday school. Pastors disappear. Scripture is retranslated to fit Marxist ideology. Mobs attack churches and anti-conversion laws imprison missionaries. And all of this with barely a whisper from international institutions. The persecution is real—and growing.

Government Prosecution of Religious Conscience Undermines Good Governance Under the Rule of Law

Arbitrarily enforcing vague penal provisions to suppress free expression of religious beliefs, undermines good governance under the rule of law. A principal precept of the rule of law is that it provides predictability for individuals in the conduct of their affairs. Vague penal provisions provide no such predictability and open the door for government authorities to decide what the law means after the conduct occurs. That which is prohibited becomes clear only after a government authority selectively enforces the vague law against a citizen—based upon the authority’s own morally relative construal of the ambiguous language. To be sure, the exercise of such discretion provides the means for an authority to efficiently advance a political agenda. The insidious consequences of doing so, however, include the deterioration of fundamental democratic principles and good governance under the rule of law.

In the case of a vaguely worded criminal statute, prosecution can, without prior notice of the conduct prohibited, lead to a citizen’s loss of liberty. Moreover, if the statute vaguely regulates free expression, an ominous chill on the exercise of fundamental freedoms accompanies its promulgation. Compelled by the piercing chill of an unpredictable potential prosecution, citizens cease exercising their basic liberties. They fear to assemble, pray, worship, or even speak.

In a pluralistic society, numerous conflicting points of view exist. Historically, therefore, the perpetuation of functional democracy requires free and open debate. The prosecutions of Pastor Green and the street preachers illustrate, however, just how efficiently government can use a vague criminal law to suppress free expression and the free exercise of religion. The potential for unpredictable prosecution chills future religious expression of all Christians and other religious groups with doctrines the value human life and biological truth. (e.g., Catholicism, Judaism, Islam and others). Fearing prosecution, religious leaders will inevitably self-censor sincerely held faith-based beliefs—and may even cease expressing anything at all.

Prosecution of people exercising religious conscience also communicates an ominous admonition to political leaders, journalists, academics, and anyone expressing a point of view different from that held by the local government authority. To maintain comity between those of differing viewpoints and ensure public order, all governments must first recognize the universal freedoms of speech and religion. We should respectfully demand that Courts preserve these freedoms so fundamental for the future of good governance under the rule of law.

Part V – A Christian Response

So what is our response?

First, moral clarity. We must affirm that truth exists. And when truth speaks, it often offends. But offense is not oppression. It is the cost of freedom. Second, legal vigilance. We must support legal defense organizations that uphold Christian liberty in courts and legislatures around the world. Third, global Christian solidarity. We must pray. Yes. But we must also act. Educate and intercede on behalf of the persecuted Body of Christ. Let us remember the words of Dietrich Bonhoeffer: “Silence in the face of evil is itself evil.”

My friends, the liberty of conscience is not merely a right. It is a stewardship.

If we do not defend it—who will?

If we do not speak—who will hear?

If we do not stand—who will remain?

Let us uphold, defend, and proclaim religious liberty -- not as a concession of the state, -- but as a gift from our Creator—a sacred liberty, entrusted to us for such a time as this.

Prof. Wm Wagner serves as the WFFC Distinguished Chair for Faith & Freedom at Spring Arbor University Foundation.  He is a former federal judge in the United States courts and holds the academic rank of Distinguished Professor Emeritus (Constitutional Law)

Sources

Biblical References:

2 Corinthians 3:17: "Where the Spirit of the Lord is, there is liberty."

Romans 2:14-15: "Indeed, when Gentiles, who do not have the law, do by nature things required by the law, they are a law for themselves, even though they do not have the law. They show that the requirements of the law are written on their hearts..."

Historical Foundations:

Magna Carta (1215): "The English Church shall be free."

Diet of Worms (1521): Martin Luther's declaration, "My conscience is captive to the Word of God."

Mayflower Compact (1620): A covenant rooted in the liberty to worship.

U.S. Constitution, First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

International Legal Protections:

Universal Declaration of Human Rights (1948), Article 18: "Everyone has the right to freedom of thought, conscience and religion..."

International Covenant on Civil and Political Rights (ICCPR), Article 18: "Everyone shall have the right to freedom of thought, conscience and religion..."

European Convention on Human Rights (ECHR), Article 9: "Everyone has the right to freedom of thought, conscience and religion..."

American Convention on Human Rights: Affirms the liberty of religious conscience.

Examples of Religious Suppression:

Case of Ake Green - Pastor in Sweden charged under hate speech laws for preaching on human sexuality.

Incidents in the United Kingdom - Arrests of Christian street preachers and job losses for refusing to use gender pronouns.

China - Uyghur Muslims: The Chinese government has been accused of detaining over a million Uyghur Muslims in re-education camps, where reports indicate forced labor, abuse and indoctrination; Christian Churches: Many underground churches face harassment, with some being demolished and leaders arrested.

North Korea - Christian Persecution: Christians are often imprisoned, tortured, and even executed for practicing their faith. The regime strictly controls religious activities and punishes those who defy these restrictions2.

Saudi Arabia - Non-Muslim Worship: Public practice of any religion other than Islam is prohibited. Non-Muslims face severe penalties for worshipping openly2.

Iran - Baha'is: The Baha'i community faces systematic persecution, including arrests, denial of education, and destruction of property; Christian Converts: Converts from Islam to Christianity are often arrested and face harsh penalties.

India - Anti-Conversion Laws: Several states have enacted laws that restrict religious conversions, often targeting Christian missionaries and Muslim communities; Violence Against Minorities: There have been numerous incidents of mob violence against religious minorities, including Muslims and Christians3.

Nigeria - Boko Haram: This extremist group has targeted Christians, attacking churches and killing worshippers; Fulani Herdsmen: There have been reports of attacks on Christian villages by Fulani herdsmen, leading to significant loss of life and property3.

Religious Restrictions Around the World, PewResearch.com; Religious Persecution around the Globe, CATO.org; Copilot assisted