Right/Freedom of Religion/Legal Codification
Freedom of Religion
History | Legal Codification | Philosophical Origins | Culture and Politics | Conflicts with other Rights | Limitations / Restrictions | Utilitarian / Fairness Assessments | Looking Ahead | Policy Recommendations
Is this right enshrined in international and regional human rights treaties? 🖉 edit
Yes, the freedom of religion is protected under several international human rights conventions, treaties, and decrees. This right is protected in article 18 of the UN’s 1948 Universal Declaration of Human Rights, article 18 of the 1966 International Covenant on Civil and Political Rights, and also in the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (United Nations Human Rights Office of the High Commissioner). The right is also protected by relevant articles within the following conventions and treaties: 1966 International Covenant on Economic, Social and Cultural Rights, the 1969 International Convention on the Elimination of All Forms of Racial Discrimination, the 1989 Convention on the Rights of the Child, the 1981 Convention on the Elimination of All Forms of Discrimination against Women, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the 1990 UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the 1951 Convention on the Prevention and Punishment of the Crime of Genocide and the 1951 Convention relating to the Status of Refugees. However, despite the writings and workings of all these conventions, treaties, and declarations, freedom of religion is still commonly suppressed in many areas of the world (Janis 2002). There is no effective international supervision of rights to religious freedom and diversity. However, regional European human rights law does in fact have tangible supervision of and consequences regarding the suppression of the freedom of religion. Article 9 of the 1950 European Convention on Human Rights and Fundamental Freedoms protects right to freedom of thought, conscience, and religion.
“Global Restrictions on Religion.” Pew Research Center's Religion & Public Life Project, 30 May 2020, www.pewforum.org/2009/12/17/global-restrictions-on-religion/.
Human Rights Library- University of Minnesota, hrlibrary.umn.edu/edumat/studyguides/religion.html.
“International Religious Freedom Report for 2017.” Wilson Center, www.wilsoncenter.org/article/international-religious-freedom-report-for-2017.
“International Standards - Framework for Communications.” OHCHR, www.ohchr.org/EN/Issues/FreedomReligion/Pages/Standards.aspx.
Mark Weston Janis, “Religion and International Law.” ASIL, 17 Nov. 2002, www.asil.org/insights/volume/7/issue/13/religion-and-international-law.
U.S. Department of State, U.S. Department of State, 2009-2017.state.gov/j/drl/rls/irf/religiousfreedom//index.htm.
“You Can Be Put to Death for Atheism in 13 Countries around the World.” Humanists International, 1 Feb. 2019, humanists.international/2013/12/you-can-be-put-death-atheism-13-countries-around-world/.
Is it contained in the US Constitution? 🖉 edit
Yes this right is protected in the First Amendment of the US Constitution. It permits that all people have the right to practice his/her own religion, or that they have the choice to practice no religion at all. There is no established religion in the US, and under the Establishment Clause of the First Amendment, the government is prohibited from advancing or advocating any religion in any way. Also, under the Free Exercise Clause, the government cannot penalize a person for choosing or not choosing to worship in any particular way (ACLU).
“Your Right to Religious Freedom.” American Civil Liberties Union, www.aclu.org/other/your-right-religious-freedom.
Has it been interpreted as being implicit in the US Constitution? 🖉 edit
The right is explicitly protected both in the Bill of Rights, but also in Article VI of the Constitution. This article prohibits religious discrimination in the formation of the government under the No Religious Test Clause. The clause, stating that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States,” promotes the freedom of religion and religious equality in all manners of life, starting from within the government itself (Brownstein and Campbell)
Alan E. Brownstein and Jud Campbell, “The No Religious Test Clause,” https://constitutioncenter.org/the-constitution/articles/article-vi/clauses/32
Are there any exceptions in American law to this right? 🖉 edit
Based upon the Constitution and the First Amendment, the federal government is, by law, not permitted to limit the exercising of one’s right to freedom of religion, but this specific clause did not apply at the state level (Lutz 2013). Eventually the Fourteenth Amendment was ratified, extending more religious freedoms as a guaranteed right to the states. However, in the actual application of the freedom of religion, the US relies upon Supreme Court decisions as a guide to the manner in which the right is exercised. In 1878, in the case of Reynolds v. United States, the Mormon Church legally challenged the 1862 Morrill Anti-Bigamy Act in efforts to continue their polygamist practices according to their beliefs and interpretations of their religion. The Supreme Court ruled in favor of the US, citing that the law did not interfere with religious belief nor did it selectively target religious practice. In essence, “while the freedom to believe is absolute, the freedom to act on those beliefs is not” (Freedom Forum Institute 2020). Chief Justice Morrison Waite wrote, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, permit every citizen to become a law unto himself” (Lutz 2013). This decision was later reinforced in 1990, with the case of Employment Division v. Smith. After Alred Smith was fired from his job for using peyote, a controversial and, at that time, illegal hallucinogenic plant used in some religious rituals within the Native American Church, he sued the employment division under the law’s protection of “free exercise” (Cornell Legal Information Institute 2020). The Court ruled in favor of the Employment Division citing that the reason for the termination was work-related misconduct. Scalia stated that, allowing this kind of exemption from the law “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.” Eventually in 1994, however, this decision was reversed with the passing of the H.R. 4230 amendment to the American Indian Religious Freedom Act which protected the use of peyote in religious ceremonies. Also notably, the Sherbert v. Verner case of 1963 established the four-part “Sherbert test.” This test is also referred to as the “compelling interest” test. The test’s four parts are that: “For the individual, the court must 1. determine whether the person has a claim involving a sincere religious belief, and 2. whether the government action places a substantial burden on the person’s ability to act on that belief. Next, if these two elements are established, then the government must prove that 1. it is acting in furtherance of a “compelling state interest,” and that 2. it has pursued that interest in the manner least restrictive, or least burdensome, to religion” (Freedom Forum Institute 2020). However, the test was undermined in the ruling of the Employment Division v. Smith case because of the court’s implication that one could not legally and successfully challenge an infringement upon free exercise if the unintended result was to break laws that were generally applicable to all (and it permitted that the government did not have to justify this infringement by proving a compelling state interest). Also, these rulings were all made at the federal level; many states still control the ultimate application of “free exercise,” and as a result, the interpretation varies in differing states. Another notable case is the 1968 case of Newman v. Piggie Park Enterprises (Justia 2020). This case backed anti-discriminatory statutes after a barbecue chain refused to serve black people with the justification of the owner being that his beliefs compelled him to segregate races within his restaurants. This case was monumental because it well-established the limit to freedom of religion that allows for the weaponizing of one’s rights against another man. The courts also uses other tests in determining decisions regarding freedom of religion. The three-part Lemon test from the 1971 decision Lemon v. Kurtzman (which prohibited state funding of religious schools) states that 1. a court must first determine whether the law or government action in question has a compelling state and secular interest, underlining the idea that government should only concern itself in civil matters and should interfere with matters of individual religion as little as possible. 2. The state action must be proved to have the primary effect of advancing or inhibiting religion. And 3. the court must consider whether the action in question excessively entangles religion and government (Pacelle Jr.). Although criticized by several Supreme Court justices, some courts still use this test in establishment-clause cases. However, in the 1997 decision Agostini v. Felton, the Supreme Court finally modified the Lemon test in that it combined the entanglement and primary effects prongs of the test. The endorsement test, proposed by Justice Sandra Day O’Connor in her concurring opinion in the 1984 case of Lynch v. Donnelly, asks whether a particular government action amounts to an endorsement of religion (Hudson Jr.). This test has sometimes been assumed to fall into the Lemon test. It is similar to the first two prongs of the Lemon test by subjecting the challenged government act to the criteria of having the purpose or effect of endorsing religion. This test typically is invoked where the government is involved in expressive activities such as graduation prayers, religious signs on government property, religion in the curriculum, etc. Under the coercion test, the government does not violate the establishment clause unless it provides direct aid to religion in a way that would establish a state church or unless it coerces people to practice a religion against their will (Vile). However, this test is subject to varying interpretations, as is demonstrated in the conflicting cases of Allegheny County v. ACLU in 1989 and the 1992 case of Lee v. Weisman, in which Justices Kennedy and Antonin Scalia, applying the same test, reached different results (FindLaw 2020). Although freedom of religion is well-protected by the Constitution, debates over its application, protections from/of, and limitations to the right are an ongoing debate in the legal and free world.
A Brief History of Peyote, www.peyote.org/.
“Establishment Clause Overview.” Freedom Forum Institute, www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-religion/establishment-clause-overview/.
“FindLaw's United States Supreme Court Case and Opinions.” Findlaw, caselaw.findlaw.com/us-supreme-court/492/573.html.
David L. Hudson, Jr.. Endorsement Test, mtsu.edu/first-amendment/article/833/endorsement-test.
Lutz, Zak. “Limits of Religious Freedom.” Harvard Political Review, 6 Nov. 2015, harvardpolitics.com/covers/limits-of-religious-freedom/.
McGovern, Geoff. Lynch v. Donnelly, mtsu.edu/first-amendment/article/737/lynch-v-donnelly.
“Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968).” Justia Law, supreme.justia.com/cases/federal/us/390/400/.
Richard L. Pacelle, Jr.. Lemon Test, www.mtsu.edu/first-amendment/article/834/lemon-test.
“The No Religious Test Clause.” Article VI, The National Constitution Center, constitutioncenter.org/interactive-constitution/interpretation/article-vi/clauses/32.
Vile, John R. Coercion Test, www.mtsu.edu/first-amendment/article/899/coercion-test.
“What Does ‘Free Exercise’ of Religion Mean under the First Amendment?” Freedom Forum Institute, www.freedomforuminstitute.org/about/faq/what-does-free-exercise-of-religion-mean-under-the-first-amendment/.
Is this right protected in the Constitutions of most countries today? 🖉 edit
Most countries in the modern world protect freedom of religion in their constitutions; however, the extent to which the right is truly protected in practice ranges from state to state. The U.S. State Department names and publicly shames eight “Countries of Particular Concern” that systematically and consistently violate religious freedom rights within their borders: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan (Pellot 2014). The Freedom of Thought Report by Humanists International found that you can be put to death for expressing atheism in an astonishing thirteen countries. Also, in thirty-nine countries the law mandates a prison sentence for blasphemy, including six surprising western countries: Iceland (up to three months), Denmark (up to four months), New Zealand (up to a year), Poland (up to two years), Germany (up to three years) and Greece (up to three years). Although the right may be protected in many states' constitutions, freedom of religion is severely lacking in many countries around the world.
Pellot, Brian. “The Worst Countries for Religious Freedom.” Index on Censorship, 3 Jan. 2014, www.indexoncensorship.org/2014/01/worst-countries-religious-freedom/.