Let's Debate: State and Religious Freedoms in Canadian Democracy
0
Citation
0
Reference
20
Related Paper
Abstract:
The “veil” debate had crossed the Atlantic, and landed in Canada. The Supreme Court of Canada (SCC) ruling in N.S. bears all the potential for drawing a line in the sand regarding the status of religion in Canada, and for that matter – re-conceptualize its mosaic. N.S., a petitioner wearing a niqab (face veil revealing only the eyes) is accused a family member and a family friend of sexual assault during her childhood. An unexceptional sexual assault case, it had climbed up to the SCC on procedural grounds. Insisting on the right to visually face their accuser during trial proceedings to assess her demeanor as part of their defense, and determined to prove her religious piety a sham, the accused tossed a hot potato into the courts’ hands. Attracting negligible media and public attention, this serious – and substantive – matter possibly represents one of the more momentous constitutional challenges so far to the Canadian management of cultural diversity. Coinciding with the Conservative government’s newly created Office of Religious Freedom, the case – and the open-ended SCC judgment – stand to eventually intensify the debate concerning the place of religion in Canada’s democracy. It is a misconception to expect State-Church relations to lend themselves to neutral consideration, devoid of legal values, by any legal institution (court and government), society, or the individual person. Ultimately, the matter boils down to a determination of a moral choice.Keywords:
Petitioner
Piety
Establishment Clause
Constitutional right
Cite
The Supreme Court's controversial decision in Oregon v. Smith sharply departed from previous expansive readings of the First Amendment's religious freedom clause and ignited a firestorm of protest from legal scholars, religious groups, legislators, and Native Americans. Carolyn Long provides the first book-length analysis of Smith and shows why it continues to resonate so deeply in the American psyche. In 1983, Klamath Indian Alfred Smith and his co-worker Galen Black were fired as counselors from a drug rehabilitation agency for using peyote, a controlled substance under Oregon law, in a religious ceremony of the Native American Church. Both were subsequently denied unemployment benefits, which the State of Oregon claimed was permissible under its police powers and necessary in its effort to eradicate drug abuse. But Smith and Black argued that the denial of unemployment benefits constituted an infringement of their religious freedom and took their cases to court. Long traces the tortuous path that Smith followed as it went from state courts to the Supreme Court and then back again for a second round of hearings. A major event in Native American history, the case attracted widespread support for the Indian cause from a diverse array of religious groups eager to protect their own religious freedom. It also led to an intense tug-of-war between the Court and Congress, which fought back with amendments to the American Indian Religious Freedom Act (to protect the religious use of peyote) and the Religious Freedom Restoration Act of 1993, which protected religious freedom for all Americans. The Court subsequently ruled the latter act unconstitutional in Boerne v. Flores (1997). Long provides a lucid and balanced view of the competing sides in Smith. Drawing on interviews with Smith and his family, as well as with lawyers, judges, and congressional and group representatives involved in this struggle between Congress and Court, she takes the reader from the rituals of a peyote religious ceremony to the halls of government to reveal the conflicting interests that emerged in this key First Amendment case. She also clarifies how the Court reversed longstanding precedent by replacing the balancing test of compelling state interest and least restrictive means with a new reasonable basis argument that theoretically could be used to curtail religious practices well beyond those of the Native American church. Ultimately, the Supreme Court ruled that the First Amendment protection of religious freedom applies only to laws that specifically target religious behavior and that an individual's religious beliefs do not excuse one from complying with statutes that indirectly infringe on their religious rights. Engagingly written, Long's study highlights the resultant struggles, but without ever losing sight of the rich human dimensions of the story.
Religious freedom
Freedom of Religion
Cite
Citations (10)
INTRODUCTION At 2008 Annual Meeting of American Association of Law Schools, program organized by Section on Law and Religion presented for consideration claim that the United States Supreme Court has shown an unwillingness to engage in deciding that relate to interpretation of religious and belief. (1) The Court, it was proposed, is--more and more--taking a approach to religious doctrine. (2) This proposal was, and remains, timely and important, as is illustrated by--to mention just a few, diverse examples--the ongoing property-ownership dispute between several breakaway Episcopal churches in Virginia, on one hand, and Episcopal Diocese of Virginia, on other; (3) by Supreme Court of Canada's recent ruling that an agreement regarding a religious divorce under Jewish law is enforceable in civil courts; (4) by a federal judge's ruling that Georgia Institute of Technology had unconstitutionally taken on task of instructing students about merits of various traditions' positions on sexual morality; (5) and perhaps even by Speaker of House's controversial pronouncements, on Meet Press, about Roman Catholic teaching with respect to abortion. (6) In each of these controversies, a government actor is being asked to decide a question, or has presumed to resolve a dispute, involving meaning or content of religious teaching. But, such examples notwithstanding, is proposed claim true? That is, is it really case that American courts are showing such an increasing unwillingness, and that they are doing so in accord with any identifiable principle or approach? (7) If there is, in Court's law-and-religion toolkit, something like a hands-off rule, then what are that rule's scope, content, and justifications? (8) Which feared harms does it protect against, and which goods does it promote? When it comes to matters that relate to interpretation of religious and belief, (9) why is Court doing, and should it be doing, what it is doing? I. Step back for a moment, seventeen centuries or so. As fans of Da Vinci Code are (in a way) aware, (10) in year 325, Arian Controversy was raging. (11) The Emperor Constantine, a convert to Christianity, was troubled by strife among Christians and--perhaps more acutely--by civil unrest that in many places accompanied their theological disagreements. (12) Accordingly, he asked Christian bishops from around world to gather for an ecumenical council, in present-day Turkey, to restore both religious concord and civil peace. Today, Constantine's move no doubt seems to most people a perfect example of that which political authority cannot do and, indeed, should have no interest in doing. Most of us probably think that for civil magistrate to inquire into--to even imagine right or competence to inquire into--the truth or falsity of religious claims and doctrines is, as Supreme Court put it in United States v. Ballard, (13) to enter a forbidden domain. (14) We are confident that disputes over doctrine--disputes such as, for example, fourth century argument over divinity of Christ--are, as Court insisted in Watson v. Jones, (15) strictly and purely ecclesiastical in ... character. (16) In every involvement or interference by government officials in controversies over religious doctrine and practice, (17) we think, hazards are ever present of inhibiting free development of religious doctrine and of implicating interests in of purely ecclesiastical concern. (18) Religion is, after all, a private matter. (19) But, is it really? Or, is it entirely? And, even if it is, so what? Presumably, with respect to particular controvers[y] over religious doctrine and practice (20) that occasioned first Council at Nicaea, Constantine was not mistaken in perceiving that his Christian subjects' strong views on matter--and their equally strong view that question did matter--were not unrelated to, and could not be neatly separated from, eminently secular about which he was quite, and appropriately, concerned. …
Establishment Clause
Free Exercise Clause
Cite
Citations (16)
Within the last five years, the Supreme Court of the United States has added decisions of greater importance to the case law of religious freedom than had been accumulated in all the years since the adoption of the Bill of Rights. The importance of two of these recent decisions rests upon the subordination of freedom of action based on sectarian beliefs to the restrictions of society as a whole. In one of the two cases, the law of society was a board of education order that school children participate in the flag salute exercise on pain of expulsion from the public schools;' in the other, it was peddlers' license tax ordinances.2 Because neither of these decisions has been accepted as a firmly rooted precedent, it will be well to examine them in the light of the history of the federally secured right of religious freedom and in the light of the immediate public reactions to them. A considerable proportion of the early emigration to the thirteen original colonies was undoubtedly due to a desire to escape religious persecution in England and on the Continent. Those colonists, however, were as insistent that their own particular form of religion be adhered to as their oppressors had been. The story of Roger Williams, who was expelled from the colony of Massachusetts because of his non-conformist views and who established the colony of Rhode Island as a sanctuary of religious tolerance, and that of Ann Hutchinson, who also was exiled from the Bay Colony for a like reason, are monuments to the intolerance of the Puritans. But by the time of the adoption of the Constitution, the principle of religious freedom which Roger Williams so stoutly advocated and put into practice in Rhode Island had gained such headway that its omission from the law of the land was at once protested; and, significantly, the first tenet of the so-called Bill of Rights was a cure of that want: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, ... . It will be observed that this declaration is an inhibition only on the federal government. It does not prevent the states from doing
Cite
Citations (1)
This term, the U.S. Supreme Court will consider the most significant LGBT-rights case since it recognized marriage equality: Masterpiece Cakeshop v. Colorado Civil Rights Commission. While the case is framed as a First Amendment case—whether antidiscrimination law, as applied to secular, for-profit business with Christian owners who oppose same-sex marriage on religious grounds, violates the owners’ Free Exercise and Free Speech rights—there is a secondary and subordinate argument lurking just below the surface, one that presents a risk of great harm to LGBT Americans if it is not exposed and rejected by the Court. This essay exposes that argument as one that is nothing more than a modernized version of the “status-conduct” argument—an argument used three decades ago to justify the Court’s decision in Bowers v. Hardwick and to deny LGBT Americans the protection of the law in all realms of life. The Religious Right has modernized the status-conduct argument in the seemingly neutral garb of the exalted American values of free speech and religious freedom: Christian business owners are not discriminating based on the status of the gay or lesbian customers when refusing same-sex wedding goods and services, but rather are refusing to participate in conduct—the act of marriage. We should not be fooled: In using this old trope in new garb, the Religious Right is attempting to achieve what Professor Reva Siegel calls “transformation-through-preservation”—a dynamic through which a group that opposes civil rights reform modernizes its rhetoric after a civil rights victory in an effort to maintain unequal status regimes. The Religious Right’s modernized status-conduct argument attempts to hide its real goal—ushering in an era of Gay Jim Crow.The essay urges the Court to expose and reject the Religious Right’s attempt at preservation-through-transformation. Failure to do so will preserve anti-equality status regimes by denying formal equality to LGBT Americans and will undermine the legitimacy of the Court’s prior LGBT-rights cases and thus the legitimacy of the Court itself.
Cite
Citations (1)
Marriage is in the air at One First Street, N.E. Within the next few Terms, the Supreme Court seems likely to face head-on the question whether same-sex couples have a constitutional right to marry. Last Term, the Court faced a trilogy of cases skirting the edges of the question. In Hollingsworth v. Perry, the Court overturned a district court’s decision to allow closed circuit televising of the trial challenging California’s ban on same-sex marriage. In Doe v. Reed, the Court rejected a challenge to Washington State’s Public Records Act by opponents of Washington’s domestic-partnership law who wanted to keep private their signatures on a referendum petition. And in Christian Legal Society v. Martinez, the Court upheld a public law school’s refusal to fund a student group that restricted its membership to individuals who agreed that sexual intimacy was permissible – and that they would engage in it – only within a “marriage between a man and a woman.” Each time, the Court was sharply, indeed angrily, divided. None of these cases tells us directly how the Justices will resolve the marriage question bearing down upon them, although each offers some hints. But both before and after that question reaches the Court, it will shape, with a sort of gravitational pull, the development of constitutional law more broadly. Just as questions of racial justice provided a lens during the Warren and Burger Courts for viewing issues ranging from constitutional criminal procedure to the state action doctrine to the scope of libel law under the First Amendment, the Court’s confrontation with claims involving sexual orientation serves as a lens through which to view a variety of constitutional law issues – for example, television in the courtroom; standing doctrine; tthe distinction between facial and as-applied challenges; the scope of rationality review and of “exacting scrutiny”; the continuing vitality of antidiscrimination law and the relationship among status, conduct, and belief; and adherence to originalism as an interpretive method in the face of rapid social and technological change. Hollingsworth, Doe, and Christian Legal Society are not only cases about gay rights and how to reconcile the competing claims of supporters and opponents of marriage equality. They are also cases about technology. The rights to communicate about political issues, to associate with like-minded people, and to retain one’s privacy touch core constitutional values. The internet has transformed the nature of information, simultaneously enhancing and threatening these values and posing new problems for constitutional interpretation. Ironically, the interaction of rapid social and technological change meant that in all three cases the group invoking claims of constitutional protection was not gay people, but defenders of traditional sexual mores.
Concurring opinion
Majority opinion
Precedent
Trial court
Constitutional right
Cite
Citations (0)
Since the 1940s, atheists have played an essential role in re-defining American religion. They have been directly responsible for abolishing sectarian religious education from American public schools. For removing prayer from public schools. For restricting the use of belief affirmations by Americans elected or appointed to federal office. For amending the federal government's definition of "religious training and belief " so that they too might excuse themselves from military service. They have also challenged the theological language of the Pledge of Allegiance, federal funding for faith-based social service programs, and prayer invocations at official legislative meetings. And even on their own, these seven examples tell an exceptional story about American Atheism. But they tell another one as well. Across the sixty-six years in which they were considered by the United States Supreme Court, the Court itself underwent an ideological turn. From "equal justice under law," to justice according to political principles. And from enforcing the separation of church and state, to defending religious establishments in the name of "tradition." By using the first to gauge the progress of the second, this article will tell these two stories.
Establishment Clause
Prayer
Religious organization
Constitutionality
Cite
Citations (0)
I. Introduction For decades, the United States Supreme Court stood as a national defender of the free exercise of religion. In the 1960s, the Court was unflinchingly adamant that [t]he door of the Free Exercise Clause stands tightly closed against any governmental regulation, (1) and reviewed any burden on religion through the searching inquiry of strict scrutiny. (2) However, in 1990 the Court abruptly turned its back on the Free Exercise Clause in Oregon u. Smith. (3) The Court refused to acknowledge the precedent of the 1960s and 1970s for what it was, and lowered the standard of review to mere rational basis for facially neutral, generally applicable legislation, regardless of the burden it placed on a religious entity. (4) The removal of federal protections still allows state courts to adopt the federal pre-Smith tests through the use of their state constitutions. Even by the time Smith was decided, state courts had rediscovered] [their] state constitutions and were becoming more and more accustomed to the role of state courts in the system of Federalism (5) in place following the Supreme Court's decision Michigan v. Long. (6) Some state courts immediately transitioned and quickly built a body of state constitutional case law providing heightened protections for free exercise. (7) Others were plunged into a state of uncertainty, and not define the protections of religion for decades. (8) It is the purpose of this article to articulate the state of state constitutional protections for free exercise of religion after Oregon v. Smith. The focus will start on the history of religious protections federally and will analyze the underlying rationale of the federal precedent. It will then analyze the role of state courts in the federalist system and describe how other state courts have interpreted constitutional provisions that mirror the strengthened language in New York State Constitution article I, section 3. Ultimately, it is concluded that Smith should be scrutinized by state courts, legislatures, and practitioners, and that these individuals and entities can and should employ a number of methods to restore the historic level of protection for religious liberties. II. The Federal History and Traditions The history of the Supreme Court's handling of the First Amendment's Free Exercise Clause is somewhat varied, although over the years certain trends emerge. In the late nineteenth century, the Court rejected two free exercise challenges to laws that directly targeted polygamy. The cases were heard over a decade apart, with the first, Reynolds v. United States, (9) decided in 1878, and the second, Davis v. Beason, (10) decided in 1890. In both cases, a unanimous Supreme Court upheld statutes criminalizing the Mormon practice. (11) In Beason, Justice Field drew parallels between bigamy and the practices of human sacrifice and sati (widow burning). (12) The Court ultimately dispelled with the free exercise challenge stating, [the crime of bigamy] is not the less odious because [it is] sanctioned by what any particular sect may designate as 'religion.' (13) In the decades that followed the Mormon polygamy cases, the Court struck similar chords with regard to free exercise. In United States v. Schwimmer, (14) the Seventh Circuit Court of Appeals held against a Hungarian-born Quaker, who in her application for citizenship, claimed that she would not take up arms personally in defense of the United States. (15) Her application was subsequently denied, and she eventually appealed to the Supreme Court. (16) A divided Court upheld the statute, with Justice Holmes dissenting. (17) Holmes, joined by Justice Brandeis, suggested that many citizens agree with the applicant's belief and that I had not supposed hitherto that we regretted our inability to expel them because they believe more than some of us do in the teachings of the Sermon on the Mount. (18) While glimmers of hope occasionally shone in an occasional dissent, (19) heightened protections for free exercise were not fully articulated until the mid-twentieth century. …
Free Exercise Clause
Scrutiny
Standard of review
Cite
Citations (0)
In Christian Legal Society v. Martinez, a sharply divided Supreme Court upheld an order of the Ninth Circuit that officials at a public law school in California may require an on campus religious group to admit all-comers from the student body, including those who disagree with its beliefs as a condition of becoming a recognized student organization. Put another way, the Court declared that the government, through university officials, may now force religious groups to choose between compromising their values and receiving benefits that other student groups receive as a matter of constitutional right. The question remains slightly open because the Court remanded for consideration of whether law school officials applied the all-comers policy selectively to the Christian Legal Society. Christian Legal Society is a victory for those who believe that no student should experience discrimination in any form. Yet, Christian Legal Society is a serious setback for freedom. As the Wall Street Journal noted, “under the guise of nondiscrimination, the school would actively suppress the convictions of certain groups and their ability to express their views.” Moreover, as the Los Angeles Times observed, Christian Legal Society represented a departure from the Court’s “theme” of protecting the First Amendment rights of “unpopular” groups. This Article explores the Supreme Court’s decision in Christian Legal Society and its implications. Part I reviews the facts in Christian Legal Society as well as the Opinion of the Court, the two concurrences, and the four Justice dissent. Part II of this Commentary addresses the fundamental change in the Court’s limited-public forum jurisprudence, its evaluation of equality over freedom, and the significant impact that Christian Legal Society has on student organization jurisprudence.
Dissent
Free Exercise Clause
Concurring opinion
Dissenting opinion
Constitutional right
Cite
Citations (0)
The idea that the U.S. Supreme Court’s jurisprudence might take unique account of religious minorities has, by and large, come to pass. In recent years, the Court has repeatedly recast religion-clause cases as sounding in religious discrimination. This is far from surprising given the continued application of the Court’s 1990 decision, Employment Division v. Smith, which interpreted the Free Exercise Clause as only prohibiting laws that fail to be neutral and generally applicable with respect to religion. Put in the inverse, where laws abide by such non-discrimination standards—they satisfy the demands of neutrality and general applicability—then the Free Exercise Clause affords no protection. But in applying these twin standards of neutrality and general applicability in recent years, the Court has both bolstered and expanded the category of religious discrimination—a move that speaks to the concerns of religious minorities who often lack the political power to shield themselves from the inequalities that can persist in the political process. How will the prevailing politics in the early days of the Biden administration impact the Court’s free exercise doctrine? Is the Court willing to branch out beyond the confines of the religious discrimination paradigm and address head on culture-war dilemmas? The Court can broaden the umbrella of religious liberty protections significantly without expressly overruling Employment Division v. Smith or explicitly discarding the religious discrimination paradigm. Under such circumstances, one can see the political allure of continuing to adjudicate even the most challenging religious liberty cases without signaling a jurisprudential sea change. And with the specter of President’s Supreme Court Commission lurking, one can see why we are unlikely to see a constitutional revolution with respect to religious liberty under the Biden administration. The religious discrimination paradigm—and all its attendant flexibility—seem to do just fine.
Free Exercise Clause
Establishment Clause
Neutrality
Adjudication
Equal Protection Clause
Cite
Citations (0)
The Pilgrims who departed from Harwich England on the Mayflower in September 1619 were fleeing persecution and religious wars. The colonial government that they established at Plymouth would co-exist with their church. The Framers, almost two centuries later, fashioned the First Amendment which protected the free exercise of religion against government intrusion, and prohibited government regulation or support of religions. The Supreme Court has engaged in the difficult task of drawing boundaries between religion and civil authority ever since. In the 2013 Term the Court favored religion over civil authority in two significant cases: in the Galloway case the Court allowed a town-sponsored Christian prayer at the beginning of a town meeting; in the Hobby Lobby case the Court decided that a federal mandate to provide insurance that paid for contraception could not prevail over certain individual religious objections. The article reviews the opinions in these two 5-4 cases. It also briefly reviews: the opinions of the Framers; the case law under the two clauses of the First Amendment; the intrusion of Congress into the arena and finally thoughts about the implications of these two important decisions.
Hobby
Cite
Citations (0)