The Restriction and Accommodation of Religious Practices

AuthorRichard Moon
ProfessionFaculty of Law, University of Windsor
Freedom of religion, understood as a liberty, precludes the state from
restricting a religious practice on the grounds that it is erroneous the
wrong way to worship God. The state must have a public reason to re-
strict a religious practice, but any public reason may be suff‌icient. 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 Resour-
ces of Oregon v Smith.1 In Locke’s opinion, 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 government’s role, according to Locke, “is only to take
care that the commonwealth receive no prejudice, and that there be no
injury done to any man, either in life or estate.”3 The government may
prohibit a practice such as animal slaughter provided the prohibition
has a civic purpose and is not enforced exclusively against those who
engage in animal slaughter for religious reasons, as a form of worship:
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.
The Restrict ion and Accommodation of Religious P ractices 67
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 forbid-
den 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 different and be there applied to the mysteries of faith and rites of
Divine worship. But those things that are prejudicial to the common-
weal 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 oppression of any Church, under
pretence of public good.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 individuals,
who were engaged in a religious practice, from an otherwise valid law.
Two Aboriginal 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, they were found to have been dismissed by their
employer for cause and were therefore denied unemployment insurance
benef‌its. They argued unsuccessfully 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 prac-
tice.5 Justice Scalia thought that to exempt them from the ordinary law
4 Ibid at 199. For an example of this, see Church of the Lukumi Babalu Aye, Inc v Hia-
leah, 508 US 520 at 553 (1993), in which the US Supreme Court held that a muni-
cipal 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 plan-
ning 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 ap-
plication, for example 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 offend 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
would be “to make the professed doctrines of religious belief superior
to the law of the land, and in effect 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 demonstrates 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
The Canadian courts, at least formally, have adopted a different ap-
proach to the justif‌ication of limits on religious practice. According to
the Canadian courts, the Charter’s section 2(a) right to freedom of re-
ligion 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 schoolyard, the state must justify, under section 1 of the Charter,
the law’s nontrivial interference with a religious practice.9 In Alberta v
Hutterian Brethren of Wilson Colony, McLachlin CJ, writing for a major-
ity of the Supreme Court of Canada, said that a law that restricts a reli-
gious practice will be upheld only if it satisf‌ies the different elements of
to prevent any exception no matter how vital it may be to the protection of
values promoted by the right of free exercise.
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.
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].
9 For a valuable and inf‌luential discussion of the issue, see José Woehrling, “L’obli-
gation d’accommodement raisonnable et l’adaptation de la société à la diversité
religieuse” (1998) 43 McGill LJ 325. For a review of the caselaw dealing with the
obligation of private-sector employers to accommodate religious practices, see
Ontario Human Rights Commission, “Creed Case Law Review” Ontario Human
Rights Commission (May 2012), online:

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