Topic 31 Outline

Part II | Outline

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.

General principles

Internal and external fora. 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 by the state.

Limits on limitations. The structure of limitations analysis may be best 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?
- 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.

U.S. approaches to limitations

Judicial review under the 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.

Rational basis review. Courts employ “rational basis” review in reviewing neutral, generally applicable laws. Under this low-bar standard, most neutral, generally applicable laws that limit religious exercise are found to be constitutional.

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, a higher standard of review. Strict scrutiny requires that a limitation constituting a substantial burden on religious exercise (1) further a compelling government interest and (2) be the least restrictive means of furthering that interest.

Landmark cases. Over the past 150 years, the U.S. Supreme Court has applied varying interpretive methods and standards for determining constitutional government limitations on free exercise, including in the following cases:
- Reynolds v. United States (1878): Establishing the belief/action dichotomy
- Sherbert v. Verner (1963), Wisconsin v. Yoder (1972): Establishing the compelling state interest test/strict scrutiny and a variant thereof, respectively
- Employment Division v. Smith (1990): Abandoning the compelling state interest test
- City of Boerne v. Flores (1997): Responding to the Religious Freedom Restoration Act, passed in response to Smith
- Fulton v. City of Philadelphia (2021): Continuing to invoke Smith

Current state of U.S. law on limitations. These cases and others have resulted in the following state of U.S. law: Government may 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.

European and international approaches to limitations

EHRC Article 9. In Europe, Article 9 of the European Convention on Human Rights (EHRC) 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 manifestations of religion.

Judicial review under Article 9. To determine whether government limitations on religious exercise comply with Article 9, national and regional adjudicating bodies (including some outside of Europe) conduct an analysis analogous to the following:
- 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.

Illustrative cases. Courts in Europe and elsewhere have conducted similar analyses to determine when government limitations on religious exercise violate Article 9 or similar provisions.
- Cha’are Shalom Ve Tsedek v. France (ECtHR 2000): Addressing permissible state aims, necessity/proportionality
- Nolan & K v. Russia (ECtHR 2009): Addressing permissible v. pretextual state aims
- Multani v. Commission scolair Marguerite-Bourgeoys (Canada 2006): Addressing necessity/proportionality
- Prince v. President, Cape Law Society (South Africa 2002): Addressing necessity/proportionality

Summary tables. Although standards throughout the world for limitations on religious manifestations do vary, they 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. Understanding these similarities and differences can lend insight into what limitations are appropriate and how the right to freedom of religion or belief can be better protected. Tables summarizing relevant U.S. and international principles are included to serve as a helpful analytical tool.