Religious Freedom: Law-Breaking Or Law-Abiding?

Religious freedom is a fundamental human right, enshrined in the constitutions and laws of many countries, as well as in international human rights conventions. It guarantees the freedom to manifest one's religion or belief in teaching, practice, worship, and observance, as well as the right not to profess any religion. However, the question of whether religious practices and actions that conflict with secular law should be permitted in the name of religious freedom remains a subject of debate and has been addressed in numerous court cases worldwide.

In the United States, the Religious Freedom Restoration Act (RFRA) excuses religious believers and institutions from complying with any law that substantially burdens their religious exercise, unless it is the least restrictive means of serving a compelling government interest. This means that when a law significantly interferes with someone's religion, they may be exempt from obeying it. However, this does not give religious believers a “free pass” to ignore laws, and courts must decide whether a burden is substantial to uphold the rule of law.

The concept of religious freedom is not absolute and does not allow believers to break just any law. For example, in the United States, polygamy is prohibited for all, including those whose religious beliefs may permit it. Similarly, the use of psychedelic substances by Native American tribes for religious purposes has been restricted. While religious freedom is generally protected, it must be balanced with other rights and interests, such as public safety, order, health, and the fundamental rights and freedoms of others.

Religious freedom and the law

Religious freedom is considered a fundamental human right by many people and most nations. It is protected in all the most important international human rights conventions, such as the United Nations International Covenant on Civil and Political Rights, the American Convention on Human Rights, the European Convention on Human Rights, and the United Nations Convention on the Rights of the Child.

The concept of religious freedom includes the right not to profess any religion or belief, often called freedom from religion. It also includes the right to act or abstain from action in accordance with one's religious beliefs. However, crucial to the consideration of religious liberty is the question of whether religious practices and religiously motivated actions that would otherwise violate secular law should be permitted due to the safeguarding of religious freedom.

The United States Constitution and other federal statutes protect religious liberty. The Free Exercise Clause of the First Amendment to the US Constitution protects religious observers against unequal treatment. It prohibits the government from regulating, compelling, or punishing religious beliefs. The Supreme Court has held that the Free Exercise Clause protects not just the right to believe or worship but also the right to act in accordance with one's religious beliefs.

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the federal government from substantially burdening a person's exercise of religion unless the government can show that the burden is the least restrictive means of achieving a compelling government interest. RFRA applies to all actions by federal administrative agencies, including rulemaking, adjudication, enforcement actions, and grant or contract distribution and administration.

The Supreme Court has recognized that laws burdening religion generally will not violate the Free Exercise Clause if they are neutral and generally applicable. However, a law that imposes special burdens on religious activities or targets religious conduct may not be considered neutral and generally applicable and will trigger heightened scrutiny. For example, in Kennedy v. Bremerton School District, the Court ruled that a school district violated the Free Exercise Clause by suspending a football coach because he engaged in religious conduct—praying at the fifty-yard line after a football game.

In Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court held that a church that ran a preschool and daycare center could not be disqualified from participating in a Missouri program that offered funding to resurface playgrounds because of the church's religious affiliation. The Court concluded that Missouri's policy of excluding religious organizations from an otherwise available public benefit imposed an unlawful penalty on the free exercise of religion.

In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court struck down a set of ordinances enacted by a Florida city that had the impermissible object of targeting conduct motivated by religious beliefs. The Florida ordinances prohibited animal sacrifice, with certain exemptions for animals killed for food consumption, and were passed in response to the establishment of a Santeria church within the city and residents' concerns about the Santeria practice of animal sacrifice. The Supreme Court concluded that the ordinances were not neutral because they unconstitutionally sought to suppress Santeria religious worship and were not generally applicable because they selectively burdened only conduct motivated by religious belief.

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Court set aside state administrative proceedings enforcing Colorado's anti-discrimination laws against a baker who had refused to make a cake for a same-sex wedding. The Court held that the state had violated the Free Exercise Clause because the proceedings did not consider the baker's case with the religious neutrality that the Constitution requires.

In Fulton v. City of Philadelphia, the Supreme Court held that a Catholic foster care agency was entitled to a constitutional exception from a city's nondiscrimination policy. The city had refused to sign a contract with the agency unless it agreed to a provision prohibiting discrimination on the basis of sexual orientation in the provision of services. The agency argued that this provision would impermissibly require it to certify same-sex foster parents in violation of its religious beliefs. The Supreme Court agreed, saying that the contract's nondiscrimination provision was not generally applicable because it allowed a city official to grant exceptions in their sole discretion.

In conclusion, while religious freedom is a fundamental right, it does not give religious believers a free pass to ignore laws that bind everyone else. However, religious freedom may, in certain circumstances, provide a defence to followers who break the law as a result of their sincerely held religious beliefs. The exact scope of this defence will depend on the specific laws and constitutional provisions of the relevant jurisdiction.

Religious freedom and government restrictions

Religious freedom is considered a fundamental human right by many people and nations. It is protected in all the most important international human rights conventions, such as the United Nations International Covenant on Civil and Political Rights, the American Convention on Human Rights, the European Convention on Human Rights, and the United Nations Convention on the Rights of the Child.

The concept of religious freedom includes the right to manifest religion or belief in teaching, practice, worship, and observance. It also includes the right not to profess any religion or belief or "not to practise a religion" (often called freedom from religion).

However, crucial to the consideration of religious liberty is the question of whether religious practices and religiously motivated actions that would otherwise violate secular law should be permitted due to the safeguarding of religious freedom. This issue has been addressed in numerous court cases, including the United States Supreme Court cases Reynolds v. United States and Wisconsin v. Yoder, and in the European law case of S.A.S. v. France, as well as numerous other jurisdictions.

In the United States, the Religious Freedom Restoration Act of 1993 prohibits the federal government from "substantially burdening" any aspect of religious observance or practice unless the imposition of that burden on a particular religious adherent satisfies strict scrutiny. This means that when a law significantly interferes with someone's religion, they are excused from obeying the law, unless the government shows that the law is the best way of achieving an exceptionally important government goal.

The First Amendment of the national constitution, part of the United States' Bill of Rights, also seeks to protect "the free exercise" of religion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...".

However, religious freedom is not absolute and does not allow believers to give themselves a free pass to ignore laws that bind everyone else. The freedom to act is not absolute, and religious freedom cannot imply freedom from the law. While religious beliefs need not be acceptable, logical, consistent, or comprehensible to others to merit protection, religious practices that violate secular law are not necessarily protected.

For example, while polygamy is permitted in Islam, it is prohibited in secular law in many countries, including the constitutionally secular United States. In the US, polygamy is prohibited for all. This was a major source of conflict between the US government and The Church of Jesus Christ of Latter-day Saints in its early days.

Similarly, the religious use of psychedelic substances by Native American tribes in the United States, such as by the Native American Church, has also raised debates on religious freedom. In the case of the Church of Lukumi Babalu Aye v. City of Hialeah in 1993, the US Supreme Court upheld the right of Santeria adherents to practice ritual animal sacrifice, stating that "religious beliefs need not be acceptable, logical, consistent or comprehensible to others in order to merit First Amendment protection" (quoted by Justice Kennedy from the opinion by Justice Burger in Thomas v. Review Board of the Indiana Employment Security Division 450 U.S. 707 (1981)).

In conclusion, while religious freedom is a fundamental human right that is protected by international conventions and national laws, it does not allow followers to break certain laws. The freedom to act and manifest one's religion is not absolute and is limited by secular law. The extent to which religious practices are protected depends on the specific laws and context of each country.

Religious freedom and social hostilities

Religious freedom is a fundamental right enshrined in the US Constitution and federal law. The Free Exercise Clause protects the right of all Americans to express their religious beliefs and perform or abstain from performing certain physical acts in accordance with their beliefs.

However, religious freedom does not allow followers to break certain laws. While the First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof", it does not allow individuals to break laws that are neutral and generally applicable.

The Supreme Court has recognised that laws burdening religion generally do not violate the Free Exercise Clause if they are neutral and generally applicable. However, laws that impose special burdens on religious activities or target religious conduct may be considered non-neutral and trigger heightened scrutiny. For example, in Kennedy v. Bremerton School District, the Court ruled that a school district violated the Free Exercise Clause by suspending a football coach for praying at the fifty-yard line after a game.

The Social Hostilities Index (SHI) measures acts of religious hostility by private individuals, organisations, or groups in society. This includes religion-related armed conflict, terrorism, mob violence, and harassment over attire for religious reasons. According to the Pew Research Center, social hostilities involving religion declined globally in 2019, with a drop in the number of countries experiencing religion-related terrorism and fewer countries reporting mob violence and hostilities over proselytising.

While religious freedom is a fundamental right, it is not absolute. The government may restrict religious freedom in certain circumstances, such as when it is necessary to protect public safety or national security. The government may also impose neutral, generally applicable laws that incidentally burden religious conduct, as long as they do not target religious practices or beliefs.

In conclusion, while religious freedom is a fundamental right in the US, it does not allow followers to break laws that are neutral and generally applicable. The government may restrict religious freedom in certain circumstances, and individuals must abide by these restrictions. Social hostilities involving religion have declined globally in recent years, but it is important to continue working towards religious tolerance and coexistence.

Religious freedom and the workplace

Religious freedom is a fundamental right in the United States, and it is protected by federal law. This freedom extends to the workplace, where employers are prohibited from discriminating against employees on the basis of religion. Title VII of the Civil Rights Act of 1964 prohibits employers with 15 or more employees from discriminating on the basis of religion. This includes discrimination in any aspect of employment, such as hiring, firing, compensation, job assignments, and promotions.

Additionally, employers are required to provide reasonable accommodations for their employees' religious practices unless doing so would cause an "undue hardship" on the employer. This means that employers may need to make changes to workplace rules or policies, such as allowing for flexible scheduling, voluntary substitutions, or job reassignments. Reasonable accommodations also include allowing employees to wear religious clothing or head coverings, such as a hijab or a yarmulke, as long as it does not compromise workplace safety or impose significant costs.

Religious discrimination in the workplace can take many forms, including harassment, offensive remarks, or creating a hostile work environment. It is also considered discrimination to treat someone differently because of their association with an individual of a particular religion. If an employee feels that their religious freedom is being violated in the workplace, they can file a complaint with the U.S. Equal Employment Opportunity Commission or a comparable state or local agency.

Religious freedom and the education system

The role of religion in the education system has been a contentious issue in the US, with the Supreme Court issuing 76 cases on religious freedom and education as of 2022. While the First Amendment guarantees that the government shall not make any law respecting the establishment of religion or prohibiting its free exercise, the Supreme Court has had to clarify the boundaries of religious freedom in educational institutions.

The Supreme Court has addressed three main questions regarding religious freedom and the education system:

• What role may the government play in private religious education?
• What role may religion play in public (government-run) education?
• What religious rights do parents and students have in public and private schools?

The Evolution of the Government's Role in Religious Education

Historically, the role of government in private religious schools has been hotly contested, with 35 states passing constitutional amendments barring state funding of religious schools by 1921. The Supreme Court has shifted between accommodating religious education and strictly separating public and religious schools.

Accommodating Religious Education

In Pierce v. Society of Sisters (1925), the Supreme Court struck down an Oregon law requiring children to attend public school, upholding the rights of religious parents to choose where to educate their children and for religious schools to offer Christian education. The Court has generally held that private schools must meet minimum educational standards and can receive government-funded "secular" services and support, such as school bus rides, textbooks, and lab equipment.

Separating Public and Religious Schools

In Lemon v. Kurtzman (1971), the Supreme Court reversed course, adopting a strict policy against government aid to religious schools and cooperation between religious and public schools. The Court crafted a three-part test for challenges under the First Amendment's Establishment Clause:

• The challenged law must have a secular purpose.
• Its primary effect must neither advance nor inhibit religion.
• It must not foster excessive entanglement between church and state.

Accommodation and Equal Treatment of Religious Education

However, mandating strict separation proved unworkable, and the Supreme Court gradually moved back towards accommodating religious education. In Witters v. Washington Department of Services for the Blind (1986), the Court upheld a state program that provided funds for visually impaired students to pursue their chosen profession, including religious ministry. The Court held that the program served a secular purpose and that the decision to support religious education was made by individuals, not the state.

In Zelman v. Simmons-Harris (2002), the Court upheld an Ohio school voucher program, allowing parents to choose between public and private (religious) education for their children. The Court reasoned that the program's primary effect was to enhance educational choice, and any advancement of religion was attributable to the independent choices of parents and students.

Recent Trends in the Court

In recent years, the Supreme Court has weighed in heavily in favor of religious freedom in education, strengthening constitutional protections and relaxing limits on government actions and funding for religious schools. In Trinity Lutheran Church v. Comer (2017), the Court held that denying a church-run school access to a state program reimbursing schools for playground resurfacing costs solely because of its religious status violated the Free Exercise Clause.

In Espinoza v. Montana Department of Revenue (2020), the Court widened this equal access logic, ruling that a state tax credit program excluding private religious school students from scholarships violated the Free Exercise Clause by discriminating against religion.

In Carson v. Makin (2022), the Court struck down a Maine tuition assistance program that excluded private religious schools from receiving public funds, citing religious discrimination and a violation of the Free Exercise Clause.

Religious Autonomy in Employment

The First Amendment gives "special solicitude" to the rights of religious organizations, protecting their "religious autonomy" and "bar[ring] the government from interfering" with internal decisions. Religious organizations are often exempt from labor, employment, and civil rights laws, including those prohibiting discrimination based on race, color, religion, sex, and national origin.

The "ministerial exception" in Title VII of the Civil Rights Act allows religious organizations to hire and employ only individuals of a particular religion to perform work connected with carrying out their activities. The Supreme Court affirmed this exception in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) and Our Lady of Guadalupe School v. Morrissey-Berru (2020), holding that religious groups have the right to shape their faith and mission and make internal decisions over membership and leadership.

However, this right of religious organizations to engage in religious line-drawing is not unlimited. In Bob Jones University v. United States (1983), the Supreme Court upheld the revocation of a Christian university's tax-exempt status due to its religious beliefs and practices that contravened federal policy on racial equality.

Religious Expression in Schools

The Supreme Court has drawn a distinction between officially sponsored religious speech and private religious speech by students, generally upholding the constitutionality of the latter while forbidding the former.

In Lee v. Weisman (1992), the Court invalidated a school-sponsored prayer led by an invited clergyman at a public school commencement, finding that graduating students were coerced to participate in a religious ceremony. However, student-initiated religious expression, such as praying before lunch or wearing religious clothing, is generally permitted.

Religion in the Curriculum

The Supreme Court has suggested that public schools may teach the Bible as literature or offer courses on comparative religion. However, courts have invalidated Bible study programs that teach the Bible as religious truth or are designed to inculcate religious sentiments.

Courts have also grappled with attempts by school boards to change the curriculum to promote or denigrate particular religious beliefs, notably in the debate between proponents and opponents of Darwin's theory of evolution. In Edwards v. Aguillard (1987), the Supreme Court struck down a Louisiana law requiring "balanced treatment" of evolution and "creation science," finding that it promoted a particular religious belief.

Rights of Teachers and Administrators

Public school employees retain their rights to free exercise of religion when off duty. However, when acting as representatives of a public school system, their rights are constrained by the Establishment Clause. Courts have generally upheld school districts' authority to regulate the religious expression of teachers during instructional hours, especially when students are required to be present.

Religious Activities and Equal Access

Evangelical Christians and other religious groups have successfully asserted their rights to equal access to meeting space and recognition in public schools, winning on free speech grounds. In Widmar v. Vincent (1981), the Supreme Court ruled that the University of Missouri could not exclude student groups from using university facilities for worship and Bible study.

In Board of Education v. Mergens (1990), the Court upheld the Equal Access Act of 1984, which requires public secondary schools receiving federal funding to allow student religious groups to access school facilities and funding.

While the Supreme Court's rulings on religious freedom and education have swung back and forth, they have consistently affirmed the rights of religious parents and students to choose private religious education and engage in private religious expression in public schools. The Court has also strengthened constitutional protections for religious schools and relaxed limits on government actions and funding. However, it has generally upheld the separation of church and state in public schools, forbidding officially sponsored religious activities and expression.

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