The Restriction and Accommodation of Religious Practices

• Author: Richard Moon
• Profession: Faculty of Law, University of Windsor
• Pages: 59-105

59

CHA PTER 3

THE RESTRICTION AND

ACCOMMODATION OF

RELIGIOUS PR ACTICES

A. INTRODUCTION

Freedom of religion, when understood as a liberty, precludes the state

from restricting a religious practice because it is believed to be errone-

ous — because it is the wrong way to worship God. The state must have

a public reason to restrict a religious practice, but any public reason may

be sucient. This was John Locke’s position and also the position taken

by the US Supreme Court in the case of Employment Division, Department

of Human Resources of Oregon v Smith.1

In Locke’s view, just “[a]s the magistrate has no power to impose by

his laws the use of any rites and ceremonies in any Church, so neither

has he any power to forbid the use of such rites and ceremonies as are

already received, approved, and practised by any Church.”2 The govern-

ment’s role, according to Locke, “is only to take care that the common-

wealth receive no prejudice, and that there be no injury done to any man,

either in life or estate.”3 It is permissible, said Locke, for the government

to prohibit a practice, such as animal slaughter, provided the prohibition

1 494 US 872 (1990) [Oregon v Smith].

2 John Locke, A Letter Concerning Toleration (1685; repr New York: Irvington Pub-

lishers, 1979) at 197–98.

3 Ibid at 198.

FREEDOM OF CONSCIENCE AND R ELIGION60

has a civic purpose and is not enforced exclusively against those who

engage in this practice for religious reasons.4

In Oregon v Smith, the US Supreme Court held that the free exercise

clause of the First Amendment did not require the state to exempt indi-

viduals from a law that restricted their religious practice if the law was

otherwise valid. In that case, two Indigenous men were dismissed from

their employment with a drug rehabilitation program after it was learned

that they had used peyote as part of a spiritual practice. Because the use

of peyote was contrary to the state’s criminal law, the state of Oregon’s

human resources department determined that the two men had been

dismissed by their employer for cause and were therefore ineligible to

receive unemployment insurance benef‌its. The men argued unsuccess-

fully that the legislative exclusion from unemployment insurance should

not be applied to them because the reason for their dismissal was that

they had engaged in a religious practice.5 Justice Scalia thought that to

4 Ibid at 199: “Whatsoever is lawful in the Commonwealth cannot be prohibited by

the magistrate in the Church. Whatsoever is permitted unto any of his subjects

for their ordinary use, neither can nor ought to be forbidden by him to any sect

of people for their religious uses. If any man may lawfully take bread or wine,

either sitting or kneeling in his own house, the law ought not to abridge him of

the same liberty in his religious worship; though in the Church the use of bread

and wine be very dierent and be there applied to the mysteries of faith and rites

of Divine worship. But those things that are prejudicial to the commonweal of a

people in their ordinary use and are, therefore, forbidden by laws, those things

ought not to be permitted to Churches in their sacred rites. Only the magistrate

ought always to be very careful that he do not misuse his authority to the oppres-

sion of any Church, under pretence of public good.”

For an example of this, see Church of the Lukumi Babalu Aye, Inc v Hialeah,

508 US 520 at 553 (1993), in which the US Supreme Court held that a munici-

pal ban on slaughtering “an animal in a public or private ritual or ceremony not

for the primary purpose of food consumption” breached the free exercise clause

of the First Amendment. The ban was put in place after the local council had

learned that a group practising Santeria, which involves ritual animal slaughter,

was planning to establish a church in the area.

5 The Court had to reconcile its conclusion in this case with earlier decisions in

which it seemed to grant exemptions to religious groups from laws of general

application, such as Wisconsin v Yoder, 406 US 205 (1972), in which the Court

held that Amish children should be exempted from the requirement that they

attend school until the age of sixteen. The Court in that case said at 220–21:

A regulation neutral on its face may, in its application, nonetheless oend the

constitutional requirement for governmental neutrality if it unduly burdens

the free exercise of religion . . . The Court must not ignore the danger that an

exception from a general obligation of citizenship on religious grounds may

run afoul of the Establishment Clause, but that danger cannot be allowed

to prevent any exception no matter how vital it may be to the protection of

values promoted by the right of free exercise.

The Restrict ion and Accommodation of Religious P ractices 61

exempt the men from the ordinary law would be “to make the professed

doctrines of religious belief superior to the law of the land, and in eect

to permit every citizen to become a law unto himself.”6

The US Congress responded to the Oregon v Smith decision, and

its narrow reading of the free exercise clause, by enacting the Religious

Freedom Restoration Act of 1993, which provides that the US government

“shall not substantially burden a person’s exercise of religion, even if the

burden results from a rule of general applicability” unless “it demon-

strates that application of the burden to the person (1) is in furtherance

of a compelling governmental interest; and (2) is the least restrictive

means of furthering that compelling governmental interest.”7

The Canadian courts, at least formally, have adopted a dierent

approach to the justif‌ication of limits on religious practice. According

to the Canadian courts, section 2(a) of the Canadian Charter of Rights

and Freedoms, which protects Canadians’ right to freedom of religion, is

breached any time the state restricts a religious practice in a nontrivial

way.8 Even when a law advances a legitimate public purpose, such as the

prevention of drug use or cruelty to animals or violence in the school-

yard, the state must justify, under section 1 of the Charter, the law’s

nontrivial interference with a religious practice.

Yet, despite the Supreme Court of Canada’s formal declaration that

the state must justify any nontrivial restriction of a religious practice,

the Court has given this requirement little substance. The Court appears

willing to uphold a legal restriction if it has a legitimate objective (other

than the suppression of an erroneous religious practice) that would be

noticeably compromised if an exception were made. In other words, even

though the courts have structured their approach to section 2(a) so that

it has the form of an equality right (drawing on human rights code and

See also Sherbert v Verner, 374 US 398 (1963), the facts of which were similar to

those in Oregon v Smith. Mrs Sherbert was dismissed from her sales job because

she was unable for religious reasons to work on Saturdays. The Court held that

the government could not ordinarily deny unemployment insurance to an indi-

vidual who was dismissed from her employment because of a conf‌lict between

her religious practice and the formal requirements of the job.

6 Reynolds v United States, 98 US 145 at 167 (1879), quoted by Scalia J in above

note 1 at 879.

7 Pub L No 103–141, 107 Stat 1488, s 3(a) & (b) (1993). A number of US states

have enacted similar laws. In Fulton v City of Philadelphia, 593 US (2021), the US

Supreme Court held that when an anti-discrimination rule allows for exceptions

to be granted to its application (at the discretion of an administrative actor), the

state cannot deny an exception to a religious actor without a compelling reason.

8 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982,

being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].