Topic 31 Analysis

Part III | Expanded Analysis

Category F | Doctrines

Topic 31 | Understanding limitations

While religious freedom is a universal right, it is not an absolute or unlimited right. A clear understanding of the boundaries of legitimate limitations on religious actions or manifestations is important. We can think of these principles as placing “limits on limitations” of religious freedom.⁸⁰⁶

General principles

International human rights instruments, as well as many nations’ laws, generally recognize that internal beliefs (forum internum) are absolutely protected from limitation. However, outward expressions or manifestations of belief (forum externum) may be subject to limitations.

International, regional, and national instruments, laws, and adjudicating bodies have set varying standards in determining when religious manifestations may be restricted or limited. Nevertheless, those standards do share commonalities, generally requiring that the government have a compelling or necessary reason for the limitation, that the limitation conforms to the rule of law, and that the limitation is the least burdensome means available to accomplish the government’s objective.

We often speak of permissible limitations on religious exercise, but the structure of limitations analysis may be better understood as placing “limits on the limitations” of religion that are legally permissible. The important question is whether the government’s limitations are lawful or not—that is, are the limits sufficiently limited?

Guiding principles in the United States

The U.S. Constitution protects religious freedom in its First Amendment, which states, “Congress shall make no law respecting an establishment of religion [Establishment Clause], or prohibiting the free exercise thereof [Free Exercise Clause] . . . .”

In the United States, determining whether a law can legitimately burden religious freedom is traditionally done through judicial review of individual cases under the Free Exercise Clause or similar provisions in state constitutions and legislation. Courts may review restrictive laws under different “standards of review,” depending on the type of law in question.

U.S. standards of review

Rational basis review. Courts employ “rational basis” review in reviewing neutral, generally applicable laws. “Rational basis” means that courts need only find that the government has a rational reason for a law limiting religious exercise. “Generally applicable” means the law as written and applied relates broadly to both religious and non-religious actions. “Neutral” means the law as written and applied does not target or disadvantage religious actions. Under this low-bar standard, most neutral, generally applicable laws that limit religious exercise are found to be constitutional.⁸⁰⁷

Strict scrutiny review. Laws that are not neutral and generally applicable and that impose a “substantial burden” on religious exercise are subject to “strict scrutiny” review under the “compelling state interest” test. Under this high standard, a limitation (1) must be imposed to further a “compelling” government interest and (2) be the least restrictive means possible to further that interest.⁸⁰⁸ In most U.S. states that have enacted a Religious Freedom Restoration Act (RFRA), courts may apply strict scrutiny review to any substantial burden on free exercise.⁸⁰⁹

U.S. approaches to limitations

Over the past 150 years, the U.S. Supreme Court has applied varying interpretive methods and standards for determining constitutional limitations on free exercise.

Belief/action dichotomy. Reynolds v. United States (1878)

In its first religious exercise decision, Reynolds v. United States,⁸¹⁰ the U.S. Supreme Court upheld a federal bigamy law despite the Latter-day Saint defendant’s claim that polygamy was a religious practice protected under the First Amendment. The rationale of the Court is known as the “belief/action dichotomy.” Under this framework, belief (forum internum) may not be regulated; however, manifestations of belief (forum externum) may be limited when they conflict with “the law of the land” established in the public’s interest.⁸¹¹

Compelling state interest test/strict scrutiny. Sherbert v. Verner (1963), Wisconsin v. Yoder (1972)

The U.S. Supreme Court introduced the compelling state interest test, also known as “strict scrutiny” review, in Sherbert v. Verner.⁸¹² Sherbert, a Seventh-day Adventist, was fired for refusing to work on Saturday, her Sabbath. She applied for unemployment compensation but was denied benefits because she lacked “good cause” for her failure to accept employment on Saturday. The Court reasoned that the denial of employment benefits constituted a burden on Sherbert’s religious beliefs because it forced her to choose between the precepts of her religion or forfeiting benefits. The Court articulated a “strict scrutiny” standard for free exercise claims explaining that, under this standard, the legislature must have passed the limiting law to further a compelling state interest and must have narrowly tailored the law to achieve that interest.

In Wisconsin v. Yoder,⁸¹³ members of the Amish community were convicted of violating Wisconsin’s compulsory school attendance law, which required school attendance until age 16. The Amish argued that requiring their children to attend public schools after the eighth grade would violate their right to free religious exercise, undermine their traditions, and threaten their community and even their salvation. The state argued that its interest in compulsory education was paramount. In this case, the U.S. Supreme Court applied a kind of “balancing” compelling interest test and considered whether a state’s interest is greater than the religious freedom interest of the claimant. The Court ruled that the individual right to worship freely outweighed the state’s compelling interest in compulsory education. The Court clarified that the inquiry into government limitations requires a particularized, fact-based inquiry into the state’s and claimants’ interests, rather than a comparison between broad, generalized interests.

Abandonment of the compelling state interest test. Employment Division v. Smith (1990)

Following Yoder, the U.S. Supreme Court declined to apply Sherbert’s compelling state interest test in a number of decisions, ultimately rejecting it in Employment Division v. Smith.⁸¹⁴ In Smith, religious claimants were fired from a private drug rehabilitation organization because they used peyote, a banned hallucinogenic drug, in Native American Church rituals. They were denied unemployment benefits because they were fired for cause. The Court held that the prohibition of peyote drug use was constitutional because the law was neutral and generally applicable—that is, it targeted all use of peyote, not just religiously motivated drug use. Invoking Reynolds, the Court reasoned it had never held that an individual’s religious belief excused noncompliance with an otherwise valid legal prohibition, and it declined to do so in Smith.

RFRA as a response to Smith. Religious Freedom Restoration Act of 1993

The U.S. Supreme Court’s decision in Smith was seen by many as a blow to religious freedom, since the compelling state interest test offered greater protections to manifestations of belief than the standard set in Smith. Under Smith, any neutral, generally applicable law burdening religion would likely be held constitutional. In response to Smith, the U.S. Congress overwhelmingly passed the Religious Freedom Restoration Act of 1993 (RFRA) to reinstate the compelling state interest test—this time through legislation.

U.S. Supreme Court’s response to RFRA. City of Boerne v. Flores (1997)

After the passage of RFRA (rif-ruh), many questioned whether Congress had power under the Constitution to impose a rule of decision on the courts. This issue was tested in City of Boerne v. Flores.⁸¹⁵ In Boerne (Ber-nee), city officials denied a church’s application for a permit to expand its building because the proposed plans did not conform to the local historical landmark ordinance. The church challenged the denial, citing RFRA. Rather than consider this claim, the U.S. Supreme Court considered the foundational issue of whether RFRA was appropriate remedial legislation to enforce the First Amendment of the Constitution. The Court’s concern was that in enacting RFRA, Congress had failed to maintain separation of branches (in attempting to define certain constitutional rights that only the Court has the power to define) and had failed to maintain federal-state balance (in curtailing state power and imposing on states “a heavy litigation burden”).⁸¹⁶ The Court concluded that the Act exceeded Congress’s constitutional power to enforce laws and intruded on state authority. As a result, the Court held that RFRA did not apply to the states.⁸¹⁷ The Court clarified in a later case that RFRA remains valid as applied to federal government action.⁸¹⁸

Smith standard today. Fulton v. City of Philadelphia (2021)

Although the U.S. Supreme Court has not always whole-heartedly applied the Smith standard, it is still the law today. In Fulton v. City of Philadelphia,⁸¹⁹ Philadelphia city officials terminated a long-standing contract with Catholic Social Services (CSS) to place children in foster care homes because CSS refused to consider same-sex couple as potential foster parents. The city claimed that CSS’s refusal violated a nondiscrimination provision in the contract; the city chose not to grant an exemption to CSS, although the contract’s terms allowed for exemptions at the city’s discretion. The Supreme Court decided that the city’s refusal to grant a religious exemption violated the Free Exercise Clause. The Court used Smith as a first step in its analysis, ultimately concluding that the presumption of legality under the Smith standard did not apply because, in granting the city power to adopt exemptions, the nondiscrimination provision was not neutral and generally applicable.

Summary of U.S. limitations

In sum, in the United States, government can limit religious exercise through a neutral, generally applicable law. If a law substantially burdens religious exercise and is not neutral and generally applicable (if it targets religion or allows for exemptions), then it is subject to strict scrutiny: it must (1) further a compelling government interest and (2) be the least restrictive means of furthering that interest.

Guiding principles in Europe and elsewhere

In Europe, Article 9 of the European Convention on Human Rights⁸²⁰ addresses the protection of the right to freedom of thought, conscience, and religion: clause 1 lists protected rights, while clause 2 (the “limitations clause”) lists the requirements for permissible government limitations on the manifestation of religion:

(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching practice and observance.

(2) 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.⁸²¹

Judicial review in Europe and elsewhere

To determine whether government limitations on religious exercise comply with Article 9, national and regional adjudicating bodies generally conduct an analysis analogous to the following⁸²²:

Inquiry 1: Whether the law interferes with the freedoms protected in Article 9, clause 1.

Inquiry 2: Whether the interference represents a permissible limitation on the manifestation of religion as set forth in the limitations clause (clause 2) of Article 9.

Inquiry 3: To be permissible, the interference must be (1) prescribed by law, (2) necessary in a democratic society, and (3) in the interests of an enumerated public need or to protect others’ rights and freedoms (per Article 9, clause 2).

Inquiry 4: For interference to be necessary, it must be (a) based on pressing social need, (b) neutral and impartial, and (c) proportionate, meaning that no less burdensome means is available to substantially accomplish the state’s objective.

“Proportionality” has become a key principle in constitutional adjudication throughout much of the world outside the United States. While roughly correlating to the “no less restrictive means available” element in U.S. strict scrutiny, it differs in being a highly fact-based assessment determined on a sliding scale.

Countries outside of Europe, including Canada and South Africa, have adopted standards of review similar to the European standard.

European and international approaches to limitations

Courts in Europe and elsewhere have conducted similar analyses to determine when government limitations on religious exercise violate Article 9 or similar provisions.

Permissible state aim, necessity/proportionality. Cha’are Shalom Ve Tsedek v. France (2000)

In Cha’are Shalom Ve Tsedek v. France,⁸²³ a Jewish association, representing a minority of Jews in France, was denied government approval to enter slaughterhouses to ensure stricter ultra- orthodox methods of slaughter. The association asserted that denial of its inspection request was a denial of the right to manifest its religion. It further claimed that the denial was not a justifiable interference or limitation under Article 9 because the limitation was not proportionate to the state’s objectives; it also claimed the limitation violated the European Convention’s nondiscrimination provision (Article 14).

The European Court of Human Rights (ECtHR) ruled that Article 9 had not been violated because the denial of inspection rights was not an interference with the Jewish association’s rights to manifest its religious belief; the Court reasoned that members could “easily” obtain the meat they required through other means. Evidence also indicated that the applicant could have agreed to make inspections under the authority of the incumbent Jewish association but had refused to do so for financial reasons. The Court found that the limitation was in pursuit of a legitimate state aim—namely, the protection of public health and order—and was proportionate to that aim. The Court also rejected the association’s Article 14 discrimination claim.

Permissible vs. pretextual state aims. Nolan & K v. Russia (2009)

In Nolan & K v. Russia,⁸²⁴ a missionary for the Unification Church was denied a visa to enter Russia, resulting in temporary separation from his infant son. The government’s denial was based on the ground that Nolan’s missionary activities represented a threat to national security, although there was no government report finding the missionary to be a security threat. The ECtHR held that the denial of the missionary’s reentry visa constituted interference with his rights under Article 9 and that the denial was an attempt to stifle the sharing of his religious belief. The Court stated that the “national security” rationale provided by the Russian government was unsupported by evidence and was essentially pretextual; thus, the state’s limitation was not directly related to a permissible state aim under Article 9. The ECtHR noted that immigration control is normally a right of a government unless the reason for exclusion from the country is designed to repress the manifestation of religion through missionary activities.

Necessity/proportionality. Multani v. Commission scolair Marguerite-Bourgeoys (2006)

In Multani v. Commission scolair Marguerite-Bourgeoys,⁸²⁵ a Canadian school board rejected an accommodation proposed for a Sikh youth to be able to wear a kirpan, a small metal sword, under his clothes in a sealed pouch at all times, including while attending public school. Multani claimed that the decision to forbid his wearing the kirpan deprived him of his right to attend public school and was an infringement on his right to freedom of religion. The school argued that an absolute ban on the kirpan was necessary because of the potential risk of harm to students and faculty. Canada’s Supreme Court ultimately held that the school board must accommodate the wearing of a kirpan under court-imposed conditions because absolute prohibition of the kirpan was not proportional to the public school’s safety objectives.

Necessity/proportionality. Prince v. President, Cape Law Society (2002)

In Prince v. President, Cape Law Society,⁸²⁶ Garreth Prince was denied a contract to perform community service that was required to becoming a lawyer in South Africa because he had two convictions for cannabis possession. Prince was a member of the Rastafari religion, which uses cannabis in religious worship, rituals, and customs. Prince claimed that legislation prohibiting the use and possession of cannabis infringed his constitutional right to practice his religion. The Constitutional Court of South Africa noted similarities between Prince and the U.S. Supreme Court case Smith. The Court also noted its unique charge under the South African Constitution to conduct a proportionality analysis involving “a nuanced and context-sensitive form of balancing.” In that analysis, the Court reasoned that the legislation in question served “an important purpose in the war against drugs” and that a religious exemption would substantially impair the state’s ability to enforce its drug legislation.

Conclusion

Freedom of thought, conscience, and religion is an internationally recognized fundamental right. Even so, it is not absolute. While the forum internum should receive absolute protection, limitations on the forum externum—religious actions and manifestations—are sometimes necessary. But determining the acceptable scope and use of limitations is difficult. In the United States, the Supreme Court and state legislatures have created standards of review and analytical tests for determining if a limitation is lawful under U.S. federal and state constitutions. The European Convention and European Court of Human Rights have developed similar but distinct standards and tests to determine whether limitations on religious manifestations are lawful in European countries. Many countries outside of Europe have adopted or adapted European standards to determine appropriate limitations. Understanding the standards in different countries and regions can lend insight into what limitations are appropriate and how freedom of religion or belief can be better protected.

U.S. guiding principles:
Determining limits on government limitations of religious exercise

Is there government action (aka "limitation") that substantially burdens religion?	If not, there is no free exercise violation.
Does the limitation attempt to limit beliefs?	Freedom of belief is absolute; any limitations violate free exercise
Does the limitation address actions?	Limitations on actions are subject to review.
Is the limitation that substantially burdens religious exercise part of a neutral and generally applicable law?	If not, the limitation potentially violates free exercise.
Is the limitation that substantially burdens religious exercise justified by a compelling state interest?	If not, the limitation is a violation of free exercise.
Is the limitation that substantially burdens religious exercise narrowly tailored to the state interest?	If not, the limitation is a violation of free exercise.
Is there a less restrictive way of achieving the state interest?	If there is, then the limitation is a violation of free exercise.

International guiding principles:
Determining limits on government limitations of religious manifestations

Does the limitation (aka "interference") attempt to limit beliefs?	Freedom of belief is absolute; any limitations violate the right of religious freedom and belief.
Does the limitation address actions?	Limitations on actions are subject to review.
Is the limitation prescribed by law?	Limitations must be enacted pursuant to rule-of-law requirements.
Is the limitation in furtherance of an enumerated basis for limitation?	Public safety, public order, public health, public morals, or the rights and freedoms of others are enumerated bases for limitations.
Is the limitation genuinely "necessary?" Is it based on pressing social need? Is it neutral and impartial (nondiscriminatory)? Is it proportionate (is there no less burdensome means to accomplish the state's objective)?	If not, on any count, then the state's interference with religious exercise is not legally justified. If so, on all counts, then the state's interference with religious exercise is legally justified.