Right/Freedom of Religion/Limitations - Restrictions

Freedom of Religion

History | Legal Codification | Philosophical Origins | Culture and Politics | Conflicts with other Rights | Limitations / Restrictions | Utilitarian / Fairness Assessments | Looking Ahead | Policy Recommendations

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In the United States, certain religious practices have been limited during times of disease. For example, during the COVID-19 pandemic, limitations on free religious exercise have been visibly witnessed, demonstrating how the right is subject to restrictions during a health crisis. This was observed in the beginning of the pandemic, when many houses of worship challenged their closures by state governments, arguing that such actions violated their rights to free religious exercise. Thus, witnessed through the closing of churches as a result of the COVID-19 pandemic, a disaster can alter the Supreme court’s constitutional interpretation of the Free Exercise Clause. The COVID-19 pandemic has caused many governments to limit religious gatherings. For example, at the outset of the pandemic, Maryland banned gatherings of more than ten people, including religious services (Pitts 2020). Terrorism has justified bans on Muslim veils in public places, a restriction on the free exercise of religion. From a 2019 piece by the London Schools of Economics’ Stuti Manchanda and Nilay Saiya: “Proponents of restrictions on Muslim veils make three main arguments. First, they claim that enveloping Islamic veils present a physical security threat, insofar as Muslim women might use these traditional Islamic garments to conceal weapons or explosives. ‘You could carry a rocket launcher under your veil,’ as the former President of Latvia, Vaira Vike-Freiberga, put it. Similarly, Paul Nuttall, former leader of the UK Independence Party, justified banning the burqa on similar physical security grounds: ‘Obviously we have a heightened security risk at the moment and for CCTV to be effective, in an age of heightened terror, you need to be able to see people’s faces.’ Finally, British Prime Minister, Boris Johnson, compared Muslim women in veils to letter boxes and bank robbers.” Israel has restricted Muslim practices to respond to terrorism. In 2017, due to a recent incident, Israel banned Muslim men under 50 from visiting the Western Wall (there is some conflicting reporting as to whether the ban extended to non-Muslim men as well). Israel has similarly restricted other sites during times of tension, such as Jerusalem’s Aqsa mosque (Baker 2017). Given that the Western Wall is a sacred site to Muslims, restricting access should be considered a restriction on Muslim practice. The ban still restricted the ability of people to freely worship even if it extended to non-Muslims. Certain US anti-terror policies, though stopping short of restricting Muslim religious practices, have significantly impacted Muslims. In Response to 9-11, Congress passed the USA Patriot Act. The act’s provisions included those designed to facilitate search warrants on suspected terrorists, enable increased surveillance, and prevent terrorists from exploiting the immigration system. These provisions and post-attack suspicion of Muslims have led law-enforcement agencies to disproportionately target them. A 2006 piece by Xavier University’s Kam C. Wong referred to Muslim-Americans’ situation as a “virtual internment camp” (194). Wong cites staggering data on Muslim-Americans between 2001 and 2005; using conservative estimates, 90,000 had been detained, raided, or questioned by the FBI. Similarly, the NYPD ran a controversial program after 9-11 surveilling Muslims. According to the ACLU, its methods included undercover officers in Muslim communities, tracking individuals who had changed their name, and recording information on people who attended Muslim services. The ACLU even claims that the program interfered with Muslim practice by instilling fear that religious doctrine may be misinterpreted by law enforcement (“Factsheet”). From the report: “The NYPD’s suspicionless surveillance has forced religious leaders to censor what they say to their congregants, for fear anything they say could be taken out of context by police officers or informants. Some religious leaders feel they must regularly record their sermons to defend themselves against potential NYPD mischaracterizations. Disruptions resulting from unlawful NYPD surveillance have also diverted time and resources away from religious education and counseling. Muslims have reported feeling pressure to avoid appearing overtly religious, for example, by changing their dress or the length of their beards.

REFERENCES:

Luke Baker, “Muslim men over 50 pray at Jerusalem's Aqsa mosque amid tight security”, October 31, 2014: https://www.reuters.com/article/us-mideast-palestinians-israel/muslim-men-over-50-pray-at-jerusalems-aqsa-mosque-amid-tight-security-idUSKBN0IK0PR20141031 “Factsheet: The NYPD Muslim Surveillance Program” https://www.aclu.org/other/factsheet-nypd-muslim-surveillance-program

Stuti Manchada and Nilay Saiya, “Why veil restrictions increase the risk of terrorism in Europe,” 12/17/2019: https://blogs.lse.ac.uk/europpblog/2019/12/17/why-veil-restrictions-increase-the-risk-of-terrorism-in-europe/

Jonathan M. Pitts, “Houses of worship ‘in no rush’ to reopen as Maryland eases restrictions on indoor gatherings,” Baltimore Sun, Jun 06, 2020: https://www.baltimoresun.com/coronavirus/bs-md-ci-churches-reopening-20200606-mgrlkn2kdjd77ealcnnu5lmsoe-story.html

Kam C. Wong, The USA Patriot Act: A Policy of Alienation, 12 MICH. J. RACE & L. 161 (2006). Available at: https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1111&context=mjrl

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The Supreme Court ruled in Employment Division v. Smith (1990) that the First Amendment does not provide for religious exemptions to a generally applicable law. In the case, a Native American was fired from his job and denied unemployment benefits for using Peyote, a substance sometimes smoked during religious ceremonies. The court had previously ruled in Sherbert v. Verner (1963) that the First Amendment does provide for that type of exception unless there is a compelling reason to enforce the law anyway (Munoz 2008, 1083). However, the Supreme Court’s ruling in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006) appears to undermine this ruling. In that case, a religious group claimed the right to use a drug called hoasca. The Supreme Court held that, under the Religious Freedom Restoration Act, the government is obligated to grant religious exemptions to general laws unless the government can demonstrate a compelling state interest in regulating the drug’s religious use (“Gonzales v. Centro”). Pandemic: The COVID-19 pandemic has caused many governments to limit religious gatherings. For example, at the outset of the pandemic, Maryland banned gatherings of more than ten people, including religious services (Pitts 2020). Ensuring Success of a Government Operation: In Goldman v. Weinberger (1986), the court upheld an Air Force ban on headgear, which was challenged by an Orthodox Jew seeking to wear a yarmulke while on duty. The court found that the Air Force had a legitimate interest in ensuring obedience and conformity (“Landmark”). Non-Discrimination Law (a notable non-exception): In a landmark case, Masterpiece Cake Shop v. Colorado Civil Rights Commission ( 2017), the Supreme Court decided that Colorado anti-discrimination law could not compel a baker to violate his religious beliefs by baking a cake for a same-sex wedding (“Masterpiece”).

REFERENCES:

Evaldo Xavier Gomes, “The Implementation of Inter-American Norms on Freedom of Religion in the National Legislation of OAS Member States,” BYU Law Review, 2009, Issue 3 Article 5, 9-1-2009

Muñoz, Vincent Phillip, The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress (2008). Harvard Journal of Law and Public Policy, Vol. 31, No. 3, pp. 1083-1120, 2008, Available at SSRN: https://ssrn.com/abstract=1150780

“Landmark”: https://billofrightsinstitute.org/cases/

“Gonzalez v. Centro”: https://www.oyez.org/cases/2005/04-1084

“Masterpiece”: https://www.oyez.org/cases/2017/16-111

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Government Favortism of Religions: Often, a government will claim a favored religion (“A Closer Look”), and this may come at the expense of other groups’ freedom. For example, Greece has an anti-proselytism law designed to protect the Greek Orthodox religion. Registration: Many countries require religious groups to register with a relevant agency to operate (“A Closer Look 2019”).

National Security: In 2017, Israel banned Muslim men under 50 from visiting the Western Wall (there is some conflicting reporting as to whether the ban extended to non-Muslim men as well). Israel has similarly restricted other sites during times of tension, such as Jerusalem’s Aqsa mosque (Baker 2014). Given that the Western Wall is a sacred site to Muslims, restricting access should be considered a restriction on Muslim practice. The ban still restricted the ability of people to freely worship even if it extended to non-Muslims.

Expression in Public: For example, many European countries ban religious dress in public places (“A Closer Look 2019”).

Blasphemy: 71 countries, spread between the Americas, Africa, Asia, and Europe, have anti-blasphemy laws (Bandow 2018).

REFERENCES:

Luke Baker, “Muslim men over 50 pray at Jerusalem's Aqsa mosque amid tight security”, October 31, 2014: https://www.reuters.com/article/us-mideast-palestinians-israel/muslim-men-over-50-pray-at-jerusalems-aqsa-mosque-amid-tight-security-idUSKBN0IK0PR20141031

Doug Bandow, “Anti‐Blasphemy Laws Are Blasphemous,” American Spectator (Online), June 24, 2018.

“A Closer Look” https://www.pewforum.org/2019/07/15/a-closer-look-at-how-religious-restrictions-have-risen-around-the-world/

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Universal Declaration of Human Rights: The UDHR provides for exceptions to human rights “determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” American Convention on Human Rights: Article 12-3 of the convention states that religious practice may “be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.” The relevant court has “recognized that a state can limit the exercise of free religious expression when there is a conflict with other rights or when such expression constitutes a threat to society or political stability” (Gomes 2009, 98). European Convention on Human Rights: Article 9-2 states that “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” The European Court of Human Rights has interpreted a right not to have one’s religious views insulted by the public and has condoned state action against blasphemy (Koev 2019). In Valsamis v. Greece (1996), the court ruled against a defendant seeking a religious a religious exemption from a school-sponsored activity (Koev 2019). In Eweida and others v. UK (2013), the court ruled against civil servants who refused to register same-sex marriages (Koev 2019). In Sahin v. Turkey ( 2004), the court upheld restricts on beards and headscarves for Muslim university students to “reconcile the interests of various groups” (Koev 2019, 188). In SAS v. France, the court upheld a ban on public face coverings because the face coverings would intrude on concepts of secularism and liberty (because, the court argued, face coverings symbolize subservience).

REFERENCES:

Evaldo Xavier Gomes, “The Implementation of Inter-American Norms on Freedom of Religion in the National Legislation of OAS Member States,” BYU Law Review, 2009, Issue 3 Article 5, 9-1-2009

Dan Koev (2019) Not Taking it on Faith: State and Religious Influences on European Court of

Human Rights Judges in Freedom of Religion Cases, Journal of Human Rights, 18:2, 184-200, DOI: 10.1080/14754835.2019.1588715

Universal Declaration of Human Rights: https://www.un.org/en/universal-declaration-human-rights/

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The conflict of civil and religious rights has presented several exceptions to the right to free religious exercise. Specifically, stemming from the Supreme Court’s ruling in favor of marriage equality in 2015, many anti-discrimination laws have passed, restricting the right to unfettered religious exercise. Several scholars have argued in favor of these exceptions. In discussing the Supreme Court’s 2015 decision, Suzanne Goldberg states, “After many years of battles in which the religious right had hammered the message that gay people were somehow seeking “special rights” when advocating for laws prohibiting sexual orientation discrimination, the court added its authoritative view that the “special rights” rhetoric was meaningless” (Keen and Goldberg, 236-237). Emulated by Goldberg, as civil rights, such as marriage equality, are not “special rights", they must be protected equally to the First Amendment right to free religious exercise. Ultimately, Goldberg conveys the sentiment that within American jurisprudence, the right to free religious exercise is prima facie, and thus can be subject to numerous exceptions. Additionally, in regards to criminal law violations, William P Marshall of the University of Chicago Law Review supports the need for exceptions to the Free Exercise Clause. Furthermore, Marshall condemns the belief that religious activity, as protected by the Free Exercise Clause, should be exempt from criminal laws. In defending the Employment Division, Department of Human Resources of Oregon v. Smith decision, which confirmed the state’s ability to withhold unemployment benefits from workers fired for using illegal drugs for religious purposes, Marshall argues that if the Supreme Court were to permit religious exemptions to criminal laws, strengthening First Amendment Rights, they would have to engage in dangerous “constitutional balancing” (Marshall, 311). As explained by Marshall, this balancing would force the court to weigh the interests of religious groups against the interests of states, resulting in inconsistent rulings. Thus, presenting a clear exception to freedom of religion, Marshall argues that First Amendment rights, specifically the right to free religious exercise, do not exempt one from criminal prosecution. Between the positions of Marshall and Goldberg, lies Ira C. Lupu of the University of Pennsylvania Law Review. While Lupu dismisses the Smith decision, claiming religious rights should have been accommodated in that particular case, he still argues for limitations on religious expression, claiming, “every person may pursue religious freedom to the extent that it is fully compatible with the equal pursuit of religious freedom by others” (Lupu, 558). Similar to Goldberg, Lupu asserts that religious expression can be curtailed when it restricts the liberties of others. Thus, Lupu emphasizes that although certain religious practices should be exempt from the law, such as the peyote drinking incident in Smith, religious expression should not be left legally unrestricted.

REFERENCES:

Keen, Lisa., and Suzanne B. Goldberg. Strangers to the Law : Gay People on Trial. University of Michigan Press, 1998.

Lupu, Ira C. “Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of Religion.” University of Pennsylvania law review 140, no. 2 (1991): 555–612.

Marshall, William P. “In Defense of Smith and Free Exercise Revisionism.” The University of Chicago Law Review 58, no. 1 (1991): 308–28. https://doi.org/10.2307/1599906.

Should this right be limited when limiting it would jeopardize democratic norms?

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Government authorities have often viewed freedom of religion as a threat.

In the modern era, it is generally agreed that all people should be able to practice religion freely, as the liberty is enshrined in Article 18 of the Universal Declaration of Human Rights. However, governments continue to restrict certain aspects of the right if they find it to be intimidating. In many cases, legislation has pointed to a government feeling uneasy about aspects of religious freedom; in France for example, the legislature passed Act No. 2010-1192, which banned face coverings in public places. According to writer Heraa Hashmi, this targeted Muslim women who wore the niqab or burqa in an attempt to protect public order and to ensure others’ rights and freedoms,” (Hashmi 2022) pointing to the government’s concerns about religious expression. In other cases, simply refusing to protect religious rights, or doing so in an extremely selective manner, can indicate that a government authority is threatened by a certain faith and/or its expression. According to the US Embassy in Saudi Arabia, the country’s laws contain “no legal recognition or protection of freedom of religion” (US Embassy to Saudi Arabia 2021). However, blasphemy of Islam has been criminalized, and the Basic Law states that “the duty of every citizen is to defend Islam,” (US Embassy to Saudi Arabia 2021). In addition, scholars have argued that “where [Crown Prince Mohammed bin Salman] has truncated the power of the religious establishment, it is to consolidate power into the central state and specifically, to boost his own control” (Hoffman 2022). On top of that, there is “a comprehensive effort by the state to eliminate all independent or dissenting religious voices capable of challenging MbS’s desired monopoly on Islam in Saudi Arabia” (Hoffman 2022). This would indicate that Saudi leadership is heavily connected to Sunni Islam, and therefore the existence of other religions is viewed as a threat.

In some cases, states may see freedom of religion as a threat due to negative impacts on public health. In California, the state legislature passed Senate Bill No. 277, which eliminated exceptions to mandatory vaccinations based on personal beliefs. This decision was made based on the findings of a government report which had shown that “when belief exemptions to vaccination guidelines are permitted, vaccination rates decrease” (Brown v. Smith 2018, 5) leading to difficulty controlling the spread of contagious viruses. While it is worth noting that the idea of “personal belief exemptions” are not exclusively related to religion, and thus the elimination of such exemptions are not specifically targeting faiths, some California parents understood this law as a restriction on their religious freedoms due the the fact that they “describe themselves as Christians” who were therefore “opposed to the use of fetal cells in vaccine” (Brown v. Smith 2018, 11). Other parents saw the law as suppression of their “sincerely held philosophic [and] conscientious…beliefs” (Brown v. Smith 2018, 6), and allied with those opposing the Bill based on their faith, eventually taking their complaints to the California Court of Appeals. While the coalition of parents eventually won the case, it was not based on violations of religious freedom. The Court quoted previous case law discussing faith and health such as Prince v. Massachusetts, which explained that “the right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death” (Brown v, Smith 2018, 11). This indicates that freedom of religion is not all-encompassing in the United States; there are limitations. As a result, if a group such as the plaintiffs in Brown v. Smith refuses to comply with laws such as Senate Bill No. 277, they are threatening the interests of the state to protect public health and safety.

Governments have also felt threatened by religious freedom when it is perceived as hazardous to public safety and or morality. In Iran, state authorities have restricted the rights of the Baha’i faith group, as well as other religious minorities, for these reasons. According to reports from the US State Department, in 2022 many such individuals were systematically jailed and accused of having membership in organizations that “disrupt national security,” or “agitating the public consciousness” (US Department of State 2022, 22). Independent media outlet Iranwire has also reported that several Baha’i preschool teachers were detained by Iranian intelligence officers and accused of being spies, a charge that has been leveled against members of the faith for years (Sabeti 2022). According to the news outlet Reuters, Iranian authorities have also been carrying out “propaganda missions to propagate Baha’i teachings” and “infiltrat[ing] various levels of the education sector” (Reuters 2022). Members of the faith are punished and restricted from religious expression because the government feels that they threaten national security and disseminate incorrect teachings.

Government obligations to protect a state’s majority religion have also caused regimes to see the practice of minority faiths as a threat. In Sri Lanka, the constitution states that “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e)” (Constitution of Sri Lanka 1978, art. 9), which include the freedom of conscience, religion, and thought, as well as “the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice and teaching” (Constitution of Sri Lanka 1978, art. 14(1)(e)). In practice, this has meant that the government has limited the actions of religious minorities. For example, in 2003 a Roman Catholic Order submitted a request to incorporate to the government of Sri Lanka, which was enacted by passing it into law. This bill allowed the Order to “to spread knowledge of the Catholic religion” and “to impart religious, educational and vocational training to youth,” (UNCHR 2004, 4). However, a private citizen claimed that this statute was unconstitutional given that it allowed the Order to proselytize and did not sufficiently protect Buddhism. The case was eventually taken to the Sri Lankan Supreme Court, which sided with the objector and stated that “the propagation and spreading Christianity as postulated in terms of clause 3 [of the Bill] would not be permissible as it would impair the very existence of Buddhism or the Buddha Sasana” (UNCHR 2004, 5). The judicial body thus limited the ability of Catholics to express their faith and proselytize in order to protect the majority religion; however, the United Nations Human Rights Committee objected to this reasoning in Sister Immaculate Joseph v. Sri Lanka, claiming that it violated the Optional Protocol to the International Covenant on Civil and Political Rights (UNCHR 2004, 11).

References

Brown v. Smith (2018) 24 Cal. App. 5th 1135. https://law.justia.com/cases/california/court-of-appeal/2018/b279936.html

Constitution of Sri Lanka (Rev. 2015), 1978. Art. 9. https://www.parliament.lk/files/pdf/constitution.pdf

Hashmi, Heraa. 2022. “Niqab and the Religious Freedom Violations in France.” UC Davis Journal of International Law and Policy. March 9, 2022. https://jilp.law.ucdavis.edu/blog/posts/niqab-and-the-religious-freedom-violation-in-france.html#:~:text=In%202010%2C%20France%20passed%20a,particularly%20impactful%20for%20many%20people.

Hoffman, Jon. 2022. “The Evolving Relationship Between Religion and Politics in Saudi Arabia.” Arab Center Washington D.C. April 20, 2022. https://arabcenterdc.org/resource/the-evolving-relationship-between-religion-and-politics-in-saudi-arabia/

Reuters. 2022. “Iran arrested Baha’i citizens, accuses them of Israel links - state media.” August 1, 2022. https://www.reuters.com/world/middle-east/iran-arrested-bahai-citizens-accuses-them-israel-links-state-media-2022-08-01/

Sabeti, Kian. 2022. “Baha’is Arrested for Instigating ‘Sedition’ and Protests.” Iranwire. October 18, 2022. https://iranwire.com/en/politics/108702-bahais-arrested-for-instigating-sedition-and-protests/

UNHRC, Communication No. 1249/2004, Sister Immaculate Joseph v. Sri Lanka, UN Doc CCPR/C/85/D/1249/2004

United States Department of State. 2022. 2022 Report on International Religious Freedom: Iran. https://www.state.gov/reports/2022-report-on-international-religious-freedom/iran/#:~:text=Since%201999%2C%20Iran%20has%20been,redesignated%20Iran%20as%20a%20CPC.

US Embassy in Saudi Arabia. 2022. 2022 Report on International Religious Freedom for Saudi Arabia. https://sa.usembassy.gov/2022-report-on-international-religious-freedom-for-saudi-arabia/#:~:text=Since%202004%2C%20Saudi%20Arabia%20has,severe%20violations%20of%20religious%20freedom.

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Under international human rights law, freedom of religion is a fundamental and generally protected right, with exceptions. Though states have their own rules and regulations curtailing the right to freedom of religion, they often fall under reasons that are generally viewed as legitimate by the international community, with those that do not being subject to scrutiny. There are a small, but prominent number of states that, despite this international pressure from intergovernmental organizations and other nations, restrict freedom of religion for reasons that do not fall under that category, most notably those with an authoritarian style of government (Majumdar and Villa 2020) . The UN’s Special Rapporteur on Freedom of Religion and Belief has also noted that there are governmental authorities that obstruct freedom of religion under the pretense of using generally accepted limitations, such as public safety, without clear evidence, using the “excuse to limit the rights of persons belonging to a religion or belief community that it finds inconvenient” (United Nations Human rights Council 2023, 27). While the majority of nations curtail freedom of religion for reasons that are widely viewed as permissible, there are various instances where these reasons are abused and the actions taken exceed international norms, with a small number of states consistently restricting the right for reasons regarded as unjustified. Article 1 of the United Nation’s Declaration on the Elimination of All Forms of Intolerance sets the international standard for permissible limitations to the right to freedom of religion as those that “are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others” (UN General Assembly 1981, 3). The United Nations further clarified these restrictions in paragraph 12 of the Commission on Human Rights resolution 2005/40 and paragraph 14 of the Human Rights Council resolution 6/37, stating that these limitations must be “applied in a manner that does not vitiate the right to freedom of thought, conscience and religion,” only being applied for its intended purpose, in a proportionate manner.

The Pew Research Center (PRC), a nonpartisan American think tank, produces annual reports analyzing the extent to which governments and societies around the world impinge on religious beliefs and practices, including countries that curtail the right for reasons not justified under international human rights law. It noted that “the global median level of government restrictions on religion – that is, laws, policies and actions by officials that impinge on religious beliefs and practices – [has] continued to climb” since PRC began tracking the data in 2007. It labeled 56 countries as having “high” or “very high” levels of government restrictions, or “28% of the 198 countries and territories included in the study” (Majumdar and Villa 2020, 5). The report looked at government laws, policies, and actions, as well as acts of religious hostilities by private individuals, organizations, or group societies, finding that “most of the 56 countries with high or very high levels of government restrictions on religion are in the Asia-Pacific region (25 countries, or half of all countries in that region) or the Middle East-North Africa region (18 countries, or 90% of all countries in the region)” (Majumdar and Villa 2020, 3-6). The scores states received depended in part on a series of questions that determined how governmental authorities handled religious freedom, including whether they were discriminatory towards certain religions in law and/or practice, used physical force, or passed laws that impeded the right. The 56 countries designated as having high or very high levels of governmental restrictions were found to curtail freedom of religion excessively, often for reasons that are not viewed as permissible under international human rights law, such as accusing religious practitioners of inciting dissent, engaging in blasphemy, or practicing an unpopular religion in the state, among others (Majumdar and Villa 2020, 10-11).

The Pew Research Center’s report, titled "In 2018, Government Restrictions on Religion Reach Highest Level Globally in More Than a Decade, named China and Iran as having the highest level of government restriction on religion. In China’s case, the report cited the government’s continued “detention campaign against Uighurs, ethnic Kazakhs and other Muslims in Xinjiang province, holding at least 800,000 (and possibly up to 2 million) in detention facilities ‘designed to erase religious and ethnic identities,’ according to the U.S. State Department,” as well as its prohibition of certain religious practices (Majumdar and Villa 2020, 8). The United States Commission on International Religious Freedom further denounced the Chinese government’s implementation of its “sinicization of religion” policy which demands that “religious groups support the Chinese Communist Party’s (CCP) rule and ideology,” punishing those that did not (United States Commision on International Religious Freedom 2022, 1). Iran was similarly criticized for its persecution of religious minorities, including the Iranian government’s continued usage of “antisemitic rhetoric to incite intolerance against Jews”, the sentencing of Christian “on national security grounds”, and repression of Sunni Muslims for arbitrary reasons (United States Commision on International Religious Freedom 2022, 27). These acts have received international backlash, drawing the concern from intergovernmental agencies like the UN, as well as other nations. The other 54 states listed as having high or very high governmental restrictions followed similar trends, making up 28% of the states and territories that were included in the study.

While a minority of governmental authorities actively curtail the right to freedom of religion for reasons that are not viewed as permissible by the international community, there is a larger number of states that do so for generally acceptable reasons but apply it in a manner inconsistent with international human rights law. The UN’s Special Rapporteur on Freedom of Religion and Belief delivered a report to the UN General assembly raising the concern that “the precise extent of such limitations in specific circumstances has become a salient topic in many countries,” with many governmental authorities obstructing freedom of religion under the pretense of using generally accepted limitations (United Nations Human rights Council 2023, 27). The Special Rapporteur recognized the “need to protect public safety and public order” but warns “there is a risk that States will cite them to justify restrictions on [freedom of religion or belief] imposed for reasons tantamount to national security interests, by arguing that a [religious or belief] group is engaged in political activities that endanger public safety and order” (Special Rapporteur 2018, 8). The report asserts that “laws on apostasy or blasphemy, which are often framed as ‘anti-incitement legislation’, [and] exist in at least 69 States, reflect the idea that the expression of certain views within a society may create ‘discontent’, subvert ‘national unity’ or undermine public order and public safety” (Special Rapporteur 2018, 9). They further mention that some “states have also adopted measures to address concerns that some religious publications (both online and off), including sacred texts, may constitute a threat to peace and security”, which can lead government authorities to ban or censor certain religious materials (Special Rapporteur 2018, 9). Critics have recently accused France of engaging in such activity, citing the “controversial Reinforcing Republican Principles Bill, also known as the Anti-Separatism Law,” passed by the National Assembly in 2021 (Freedom House 2022). Freedom House, a nonprofit organization that conducts research, reported that “claiming to combat ‘religious separatism,’ the law allows the government to dissolve religious organizations, increases the surveillance of mosques and Muslim associations, and requires the latter to sign a contract of ‘respect for Republican values’ when applying for state subsidies. Critics have warned that it particularly stigmatizes Muslims and could increase Islamophobic sentiment” (Freedom House 2022). Though the state’s reasoning for limiting religious freedom may be viewed as permissible (national security concerns, public safety, etc.), these same limitations may become overextended and used in an oppressive manner.

Freedom of religion is protected under international human rights law, which allows for exceptions when limitations are needed to “protect public safety, order, health or morals or the fundamental rights and freedoms of others” (UN General Assembly 1981, 3) . Most states curtail the right for these reasons, however, there is a smaller percentage of countries that do not do so, acting in a more restrictive manner. Additionally, there are states that use the reasons that are generally viewed as permissive but apply it in a manner inconsistent with international human rights law.

References:

Freedom House."France: Freedom in the World 2022 Country Report." 2022.

Majumdar, Samirah, and Virginia Villa. "In 2018, Government Restrictions on Religion Reach Highest Level Globally in More Than a Decade." Pew Research Center, 2020.

Special Rapporteur. "Interim report of the Special Rapporteur on freedom of religion or belief." United Nations General Assembly, 2018.

UN General Assembly. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. OHCHR, 1981.

United Nations Human rights Council. "Rapporteur"s Digest on Freedom of Religion or Belief" United Nations. 2023. https://www.ohchr.org/sites/default/files/Documents/Issues/Religion/RapporteursDige stFreedomReligionBelief.pdf.

United States Commision on International Religious Freedom. "2022 Annual Report." 2022.

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Private companies have often been found to institute policies that restrict employees’ rights to religious freedom. Such policies directly violate Title VII of the Civil Rights Act, a provision meant to bolster religious freedom by prohibiting employment discrimination on the basis of religion (EEOC). Such discriminatory policies were observed in EEOC v. Abercrombie & Fitch Stores. Furthermore, the case revealed Abercrombie’s “Look Policy”, which involved discriminatory hiring procedures towards Muslim individuals (Oyez). Affirmed by the Supreme Court, this policy was a direct violation of the Civil Rights Act, Justice Scalia upholding Title VII claiming, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions” (Justia Law). Demonstrated by the court’s decision, one’s entitlements to religious freedom in the workplace, as upheld by Title VII, are curtailed by discriminatory hiring practices such as the “Look Policy”. In addition to violating their Title VII entitlements, many individuals argue that their employers’ practices restrict their First Amendment rights to free religious exercise. For example, in Sherbert v. Verner, Adell Sherbert argued that her firing due to her refusal to work Saturdays, her Sabbath day, was a violation of the Free Exercise Clause of the First Amendment (Oyez). The Supreme Court concurred with Sherbert, emphasizing that the firing restricted Sherbert’s ability to freely practice her religion. Emphasized by the case, firing someone on the basis of their religion, in addition to likely being a violation of the Civil Rights Act, is a direct breach of the First Amendment. Thus, witnessed by instances such as those that precipitated Sherbert, First Amendment religious rights are often infringed upon by employment policies.

REFERENCES:

EEOC v. Abercrombie & Fitch Stores, https://www.oyez.org/cases/2014/14-86

EEOC v. Abercrombie & Fitch Stores, https://supreme.justia.com/cases/federal/us/575/14-86/

Sherbert v Verner, https://www.oyez.org/cases/1962/526