Right/Freedom of Religion/Legal Codification

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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Yes, the freedom of religion is protected under several international human rights conventions, treaties, and decrees. This right is protected in article 18 of the UN’s 1948 Universal Declaration of Human Rights, article 18 of the 1966 International Covenant on Civil and Political Rights, and also in the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (United Nations Human Rights Office of the High Commissioner). The right is also protected by relevant articles within the following conventions and treaties: 1966 International Covenant on Economic, Social and Cultural Rights, the 1969 International Convention on the Elimination of All Forms of Racial Discrimination, the 1989 Convention on the Rights of the Child, the 1981 Convention on the Elimination of All Forms of Discrimination against Women, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the 1990 UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the 1951 Convention on the Prevention and Punishment of the Crime of Genocide and the 1951 Convention relating to the Status of Refugees. However, despite the writings and workings of all these conventions, treaties, and declarations, freedom of religion is still commonly suppressed in many areas of the world (Janis 2002). There is no effective international supervision of rights to religious freedom and diversity. However, regional European human rights law does in fact have tangible supervision of and consequences regarding the suppression of the freedom of religion. Article 9 of the 1950 European Convention on Human Rights and Fundamental Freedoms protects right to freedom of thought, conscience, and religion.

REFERENCES

“Global Restrictions on Religion.” Pew Research Center's Religion & Public Life Project, 30 May 2020, www.pewforum.org/2009/12/17/global-restrictions-on-religion/.

Human Rights Library- University of Minnesota, hrlibrary.umn.edu/edumat/studyguides/religion.html.

“International Religious Freedom Report for 2017.” Wilson Center, www.wilsoncenter.org/article/international-religious-freedom-report-for-2017.

“International Standards - Framework for Communications.” OHCHR, www.ohchr.org/EN/Issues/FreedomReligion/Pages/Standards.aspx.

Mark Weston Janis, “Religion and International Law.” ASIL, 17 Nov. 2002, www.asil.org/insights/volume/7/issue/13/religion-and-international-law.

U.S. Department of State, U.S. Department of State, 2009-2017.state.gov/j/drl/rls/irf/religiousfreedom//index.htm.

“You Can Be Put to Death for Atheism in 13 Countries around the World.” Humanists International, 1 Feb. 2019, humanists.international/2013/12/you-can-be-put-death-atheism-13-countries-around-world/.

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Freedom of religion is included in the First Amendment of the United States Constitution.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The right to free religious exercise was enshrined in the presence of several other noteworthy rights, and was complemented by what we refer to today as the Establishment Clause—a provision mandating the separation of stately matters and religion. Furthermore, the Free Exercise Clause was later expanded by proxy through the Due Process Clause of the Fourteenth Amendment.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Fourteenth Amendment established the process of Selective Incorporation, which extended the Bill of Rights to state governments. The extent of religious freedom guaranteed by the Constitution remains an open question, however, as the evolution of case law pertaining to the Free Exercise Clause and the Establishment Clause has gradually created a formula of exceptions and standards for governments and religious organizations alike.

Given that Constitutionally-protected rights must be manually incorporated to the states, the incorporation of the Free Exercise Clause by the Supreme Court in Cantwell v. Connecticut, 310 U.S. 296 (1940) represented a milestone for religious freedom. The arrest of several Jehovah’s Witnesses in New Haven, Connecticut due to their failure to obtain a religious solicitation license provoked a free exercise lawsuit against the city. Ruling for the Witnesses, the Court decried the “censorship of religion” based on its “right to survive” in a hostile environment (Justice Roberts, 1940). Despite their statements in support of religious freedom, the justices also used the Cantwell decision to imply different ways that religious expression can be regulated while acknowledging the government’s interest in maintaining public order.

In light of the Cantwell precedent, a strenuous situation unfolded between religious organizations and the government, given that the latter’s power to prosecute certain religious activities was both restricted and affirmed by the Court. This situation escalated following the adoption of the Sherbert-Yoder test. In Sherbert v. Verner, 374 U.S. 398 (1963), the Court ruled in favor of Adeil Sherbert, a Seventh-day Adventist in South Carolina who was fired—and denied unemployment benefits—for refusing to work on Saturday, which is viewed as a religious holiday by the Seventh-day Adventist Church. In Wisconsin v. Yoder, 406 U.S. 205 (1972), the justices struck down a Wisconsin statute mandating a public education for children under the age of 16 following a lawsuit from several Amish residents, who accused the law of infringing on their religious exercise.

The Sherbert-Yoder test mandated that strict scrutiny be applied to laws that potentially infringe on religious freedom. Specifically, the state must prove that the law in question is vital to achieving a compelling interest, and that no less restrictive alternatives exist. South Carolina’s refusal to accommodate Adeil Sherbert in spite of her “declared ineligibility” to work on Saturdays, for example, forced her to choose between her financial well-being and religious adherence—a reality that could have reasonably been accommodated by exceptions for practicing Seventh-Day Adventists (Justice Brennan, 1963). Comparatively, the Wisconsin Statute struck down by Yoder did not offer any religious exemptions to compulsory public school attendance. Due to the well-established nature of Amish primary education, such an exception could reasonably have been made in this case without compromising the state’s interest in ensuring an educated populace.

Despite the high standard created by strict scrutiny for the incidental suppression of religious exercise, the Court established clear exceptions for the Free Exercise Clause in Braunfeld v. Brown, 366 U.S. 599 (1961) and Goldman v. Weinberger, 475 U.S. 503 (1986), two cases that preceded and followed the Court’s adoption of the Sherbert-Yoder test, respectively (both cases predated the Smith test, which will be further discussed below). In Braunfeld, the constitutionality of a Pennsylvania Blue Law (ordinances that ban nonessential commercial activity on a certain day, most commonly Sunday) was challenged by Abraham Braunfeld, an Orthodox Jew who could not work on Saturdays due to his religion. Ruling for the state, the justices asserted that Pennsylvania’s attempt to create a “day of rest” represented one of many “important social duties” afforded to the state (Justice Warren, 1961). Given that religious exceptions would likely compromise the legitimacy of this effort by promoting typical commercial activities, no realistic alternative existed for Pennsylvania—a key difference from the situation in Sherbert. Finally, the Court gave its typical deference to “the professional judgment of military authorities” in Goldman (Justice Rehnquist, 1986). The justices ruled that Simcha Goldman, a United States Air Force captain who challenged the Air Force Dress Code due to its prohibition of religious garments, was not entitled to wear a yarmulke while serving in the military.

Despite the various examples of court-imposed limitations to religious activity evidenced by Braunfeld and Goldman, the Sherbert-Yoder test continued to provide a high bar for governmental intrusions on free exercise. The purview of this test was greatly limited, however, by the Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), in which the justices rejected a free exercise claim from the Native American Church in Oregon. Two adherents to the Church were fired from their jobs for ingesting peyote, a practice encouraged by their religion but outlawed in the state of Oregon. Like Sherbert, they were fired and denied unemployment benefits. Writing for the majority, Justice Scalia asserted that the Oregon statute was “generally applicable criminal law” that was not designed to infringe on the Native American Church—a stark departure from the Court’s rulings on supposedly secular laws in Sherbert and Yoder. Unlike both cases, however, an exception for Smith would have likely imperiled the legitimacy of Oregon’s drug control laws, thereby creating a problematic issue for public safety. Following this ruling, broad public outcry prompted congress to pass the Religious Freedom Restoration Act of 1993 (RFRA), which effectively mandated the reapplication of the strict scrutiny standard for all levels of government. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court curtailed the RFRA by limiting its purview to federal issues.

In Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), the court pivoted back to the least restrictive means test outlined in Sherbert and Yoder without explicitly overruling Smith. In response to a provision by the Affordable Care Act requiring for-profit corporations to provide funding for contraceptives as part of their insurance plans, the owners of Hobby Lobby filed suit, alleging the law violated the RFRA and the Free Exercise Clause. Ruling for Hobby Lobby, the Court asserted that any contraceptive mandate would compel the Burwell family to “facilitate access to contraceptive drugs or devices” that would violate their “sincere Christian beliefs” (Justice Alito, 2014). Furthermore, the justices contended that exemptions for closely-held for-profit companies such as Hobby Lobby would have represented a less restrictive measure—an argument that encapsulated the broader shift towards the Sherbert-Yoder test for certain cases.

Contrary to the Free Exercise Clause, the Establishment Clause plays a more subtle role in matters pertaining to religious exercise. The question of whether freedom of religion includes the right to be free from religion has been debated since the inception of the Constitution, and several cases pertaining to the Establishment Clause have also created implications for free exercise. In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court established a standard for determining any governmental violations of the Establishment Clause, highlighted by its prohibition of activities that constitute “an excessive government entanglement with religion” (Justice Burger, 1971).

The ambiguity of this test was made clear by Kennedy v. Bremerton School District, 597 U.S. 507 (2022), in which the Court ruled in favor of a public high school football coach in Washington State who had been suspended for holding prayers with his students during school events. This decision replaced the Lemon test with the “historical practices and understandings” test, which asserted that Christianity can be treated as an American cultural phenomenon. This line of reasoning was previously implied in Van Orden v. Perry, 545 U.S. 677 (2005) and American Legion v. American Humanist Association, 588 U.S. ___ (2019), in which the presence of Christian religious symbols on public property (outside a courthouse and in a veterans' cemetery, respectively) were upheld for their cultural—rather than religious—significance. While the cultural importance of Christianity to American culture cannot be denied, this test does not deny that Christian exercises or objects within public property are inherently religious—a dilemma that has sparked fierce debate since the Kennedy ruling.

Cantwell v. Connecticut, 310 U.S. 296 (1940) https://supreme.justia.com/cases/federal/us/310/296/

Sherbert v. Verner, 374 U.S. 398 (1963) https://supreme.justia.com/cases/federal/us/374/398/

Wisconsin v. Yoder, 406 U.S. 205 (1972) https://supreme.justia.com/cases/federal/us/406/205/

Braunfeld v. Brown, 366 U.S. 599 (1961) https://supreme.justia.com/cases/federal/us/366/599/

Goldman v. Weinberger, 475 U.S. 503 (1986) https://supreme.justia.com/cases/federal/us/475/503/

Employment Division v. Smith, 494 U.S. 872 (1990) https://supreme.justia.com/cases/federal/us/494/872/

City of Boerne v. Flores, 521 U.S. 507 (1997) https://supreme.justia.com/cases/federal/us/521/507/

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) https://supreme.justia.com/cases/federal/us/573/682/

Lemon v. Kurtzman, 403 U.S. 602 (1971) https://supreme.justia.com/cases/federal/us/403/602/

Kennedy v. Bremerton School District, 597 U.S. 507 (2022) https://supreme.justia.com/cases/federal/us/597/21-418/

Van Orden v. Perry, 545 U.S. 677 (2005) https://supreme.justia.com/cases/federal/us/545/677/

American Legion v. American Humanist Association, 588 U.S. ___ (2019) https://supreme.justia.com/cases/federal/us/588/17-1717/

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The right is explicitly protected both in the Bill of Rights, but also in Article VI of the Constitution. This article prohibits religious discrimination in the formation of the government under the No Religious Test Clause. The clause, stating that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States,” promotes the freedom of religion and religious equality in all manners of life, starting from within the government itself (Brownstein and Campbell)

REFERENCES

Alan E. Brownstein and Jud Campbell, “The No Religious Test Clause,” https://constitutioncenter.org/the-constitution/articles/article-vi/clauses/32

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Based upon the Constitution and the First Amendment, the federal government is, by law, not permitted to limit the exercising of one’s right to freedom of religion, but this specific clause did not apply at the state level (Lutz 2013). Eventually the Fourteenth Amendment was ratified, extending more religious freedoms as a guaranteed right to the states. However, in the actual application of the freedom of religion, the US relies upon Supreme Court decisions as a guide to the manner in which the right is exercised. In 1878, in the case of Reynolds v. United States, the Mormon Church legally challenged the 1862 Morrill Anti-Bigamy Act in efforts to continue their polygamist practices according to their beliefs and interpretations of their religion. The Supreme Court ruled in favor of the US, citing that the law did not interfere with religious belief nor did it selectively target religious practice. In essence, “while the freedom to believe is absolute, the freedom to act on those beliefs is not” (Freedom Forum Institute 2020). Chief Justice Morrison Waite wrote, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, permit every citizen to become a law unto himself” (Lutz 2013). This decision was later reinforced in 1990, with the case of Employment Division v. Smith. After Alred Smith was fired from his job for using peyote, a controversial and, at that time, illegal hallucinogenic plant used in some religious rituals within the Native American Church, he sued the employment division under the law’s protection of “free exercise” (Cornell Legal Information Institute 2020). The Court ruled in favor of the Employment Division citing that the reason for the termination was work-related misconduct. Scalia stated that, allowing this kind of exemption from the law “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.” Eventually in 1994, however, this decision was reversed with the passing of the H.R. 4230 amendment to the American Indian Religious Freedom Act which protected the use of peyote in religious ceremonies. Also notably, the Sherbert v. Verner case of 1963 established the four-part “Sherbert test.” This test is also referred to as the “compelling interest” test. The test’s four parts are that: “For the individual, the court must 1. determine whether the person has a claim involving a sincere religious belief, and 2. whether the government action places a substantial burden on the person’s ability to act on that belief. Next, if these two elements are established, then the government must prove that 1. it is acting in furtherance of a “compelling state interest,” and that 2. it has pursued that interest in the manner least restrictive, or least burdensome, to religion” (Freedom Forum Institute 2020). However, the test was undermined in the ruling of the Employment Division v. Smith case because of the court’s implication that one could not legally and successfully challenge an infringement upon free exercise if the unintended result was to break laws that were generally applicable to all (and it permitted that the government did not have to justify this infringement by proving a compelling state interest). Also, these rulings were all made at the federal level; many states still control the ultimate application of “free exercise,” and as a result, the interpretation varies in differing states. Another notable case is the 1968 case of Newman v. Piggie Park Enterprises (Justia 2020). This case backed anti-discriminatory statutes after a barbecue chain refused to serve black people with the justification of the owner being that his beliefs compelled him to segregate races within his restaurants. This case was monumental because it well-established the limit to freedom of religion that allows for the weaponizing of one’s rights against another man. The courts also uses other tests in determining decisions regarding freedom of religion. The three-part Lemon test from the 1971 decision Lemon v. Kurtzman (which prohibited state funding of religious schools) states that 1. a court must first determine whether the law or government action in question has a compelling state and secular interest, underlining the idea that government should only concern itself in civil matters and should interfere with matters of individual religion as little as possible. 2. The state action must be proved to have the primary effect of advancing or inhibiting religion. And 3. the court must consider whether the action in question excessively entangles religion and government (Pacelle Jr.). Although criticized by several Supreme Court justices, some courts still use this test in establishment-clause cases. However, in the 1997 decision Agostini v. Felton, the Supreme Court finally modified the Lemon test in that it combined the entanglement and primary effects prongs of the test. The endorsement test, proposed by Justice Sandra Day O’Connor in her concurring opinion in the 1984 case of Lynch v. Donnelly, asks whether a particular government action amounts to an endorsement of religion (Hudson Jr.). This test has sometimes been assumed to fall into the Lemon test. It is similar to the first two prongs of the Lemon test by subjecting the challenged government act to the criteria of having the purpose or effect of endorsing religion. This test typically is invoked where the government is involved in expressive activities such as graduation prayers, religious signs on government property, religion in the curriculum, etc. Under the coercion test, the government does not violate the establishment clause unless it provides direct aid to religion in a way that would establish a state church or unless it coerces people to practice a religion against their will (Vile). However, this test is subject to varying interpretations, as is demonstrated in the conflicting cases of Allegheny County v. ACLU in 1989 and the 1992 case of Lee v. Weisman, in which Justices Kennedy and Antonin Scalia, applying the same test, reached different results (FindLaw 2020). Although freedom of religion is well-protected by the Constitution, debates over its application, protections from/of, and limitations to the right are an ongoing debate in the legal and free world.

REFERENCES

A Brief History of Peyote, www.peyote.org/.

“Establishment Clause Overview.” Freedom Forum Institute, www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-religion/establishment-clause-overview/.

“FindLaw's United States Supreme Court Case and Opinions.” Findlaw, caselaw.findlaw.com/us-supreme-court/492/573.html.

David L. Hudson, Jr.. Endorsement Test, mtsu.edu/first-amendment/article/833/endorsement-test.

Lutz, Zak. “Limits of Religious Freedom.” Harvard Political Review, 6 Nov. 2015, harvardpolitics.com/covers/limits-of-religious-freedom/.

McGovern, Geoff. Lynch v. Donnelly, mtsu.edu/first-amendment/article/737/lynch-v-donnelly.

“Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968).” Justia Law, supreme.justia.com/cases/federal/us/390/400/.

Richard L. Pacelle, Jr.. Lemon Test, www.mtsu.edu/first-amendment/article/834/lemon-test.

“The No Religious Test Clause.” Article VI, The National Constitution Center, constitutioncenter.org/interactive-constitution/interpretation/article-vi/clauses/32.

Vile, John R. Coercion Test, www.mtsu.edu/first-amendment/article/899/coercion-test.

“What Does ‘Free Exercise’ of Religion Mean under the First Amendment?” Freedom Forum Institute, www.freedomforuminstitute.org/about/faq/what-does-free-exercise-of-religion-mean-under-the-first-amendment/.

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Most countries in the modern world protect freedom of religion in their constitutions; however, the extent to which the right is truly protected in practice ranges from state to state. The U.S. State Department names and publicly shames eight “Countries of Particular Concern” that systematically and consistently violate religious freedom rights within their borders: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan (Pellot 2014). The Freedom of Thought Report by Humanists International found that you can be put to death for expressing atheism in an astonishing thirteen countries. Also, in thirty-nine countries the law mandates a prison sentence for blasphemy, including six surprising western countries: Iceland (up to three months), Denmark (up to four months), New Zealand (up to a year), Poland (up to two years), Germany (up to three years) and Greece (up to three years). Although the right may be protected in many states' constitutions, freedom of religion is severely lacking in many countries around the world.

REFERENCES

Pellot, Brian. “The Worst Countries for Religious Freedom.” Index on Censorship, 3 Jan. 2014, www.indexoncensorship.org/2014/01/worst-countries-religious-freedom/.