By Niccolò Nobile, Student, Università degli Studi di Milano
Globalization may be defined as “the totality and velocity of connections and interactions – be they economic, political, social, cultural – that are sometimes beyond the control or even the knowledge of government and other authorities”[1]. So globalization is, first and foremost, a matter of interactions.
What about global interactions in the legal field? There is no doubt that globalization has fostered this kind of interactions nurturing the coexistence of different legal forms in the same social field, at both national and supranational level. Scholars tend to refer to this phenomenon as legal pluralism.
Closing his remarks at the National Defense University, Mr. Haas observed: “Globalization is a reality, not a choice or a policy. But how we respond to it is a matter of choice and of policy”[2] . It could be drafted an analogy between globalization and legal pluralism: the latter is, as a matter of fact, a reality that challanges legal systems at both national and supranational level.
The purpose of this essay is precisely to examine how national legal systems respond to this challenge. Part I offers an account of legal pluralism as a composite phenomenon that stresses conflictuality between different legal forms that operate in the same legal sphere and set out the stage for the core object of the essay. Part II is dedicated to the illustration of a comprehensive view of the conflicts that may rise between State and religious or cultural law, more often inside but also outside the Western legal tradition, while, in Part III, we will inquire the various solutions adopted by legal systems at both national and suprantional level. Conflicts involving State positive law and ethical claims from individuals, framed outside the realms of religious and ethnic rules, are not addressed in the essay[3], because of the lack of an omogenous normative ground to refer to.
- PART I: Legal Pluralism as a Pluralism of Legal Conflicts
Before attempting a more in-depth description of legal pluralism, it may be helpful to explain what we mean by “legal” and “pluralism”.
Defining concepts such as law, legal and legality it is itself challenging and “it must also be admitted that (…) one cannot escape completely from ethnocentric influences”[4]. The risk at task here is to go without a clear guidance into treacherous waters pertaining to philosophy of law. To achieve simplicity, we may endorse the multi-ethnocentric and quite circular definition of law elaborated by Brian Tamanaha: “law is whatever people identify and treat through their social practices as ‘law’ (or Recht, or droit, and so on)”[5]. That’s a definition that fits well within the complexity and the ontologically eterogenous nature of legal pluralism: it’s in fact capable of encompassing the most different sources of legal rules and legal formants.
The term pluralism is often fairly associated with the concept of substantive diversity, underlyining “the condition of having or being composed of differing elements”[6], such as, in a polity, “the state of having people who are different races or who have different cultures”[7]. So, pluralism, as globalization, could be mainly defined as a matter of interactions between different cultures and points of view. However, the concept of interactions may help to enlighten another feature of legal pluralism: conflict. Indeed, pluralism could still bear a less pleasant connotation. In fact, it could also mean disunity and so disagreement “about reality and the good and the reasons for cooperation in political life and action”[8], fostered by diversity itself. Disagreement usually gives rise to tensions and conflicts that, arising among the members of a polity, must be considered political ones. In addition, it may be argued that, in the context of contemporary constitutional democracies, a political conflict – especially a conflict about fundamentals framed in rights terms – is likely inclined to become a legal one, entailing both legislation and litigation.
So, what does it mean legal pluralism? The concept originated in the spheres of “legal anthropology and sociology to analyze overlapping normative orders within societies”[9]. It could be described as both a product and a tool of globalization: a product because of the growing of interactions between different cultures and different legal traditions that the globalization clearly favour; a tool becouse it “challenges” – in a way that is sometimes functional to the globalization of human rights standards and of constitutional law- “a perceived monopoly of the state in making and administering law”[10]. It may be tempting to label as legal pluralism the immediate product of a disunited political society, such as a legal system which struggles to find a balance between competiting bodies of rules, each claiming to be superior or equal to the others as to their binding force.
For the purpose of this essay, two distinct types of legal pluralism could be recognized, each of which is tied to the globalization phenomena in a unique way:
- legal pluralism within the State or “system-internal pluralism”[11], as to refer to coexistence of different legal forms in the same legal system at the State-level; we can refer to “the interplay of Western and non-Western laws in colonial and postcolonial settings”[12], but also to the interplay “between official and unofficial law more generally”[13] in Western societies.
- legal pluralism at supranational or international level or “pluralism of systems”[14], as to refer to the globalization of human rights standards and to phenomenon of global constitutional law pertaining, more in general, to the Rule of Law and the relations between the States members of the same supranational or international community and the institutions or the rules of the given community.
Both a) and b) undermine the monopoly of making and administering the law, in liberal democracies traditionally held by the State, and hence the State sovereignty, in various ways and sometimes interplaying wich each other. Indeed, the alleged difficulty to reasonably assest the competiting claims of the different sources of law and morality trough the tool of legislation[15], has concurred to the rise of the so-called Juristocracy[16], at both state and supranational level. That’s to say the pretense of judiciary bodies to resolve, often invoking “evolving standards of decency”[17] imposed by the globalization of human rights, hard cases involving from both sides strong ethical concerns.
The goal of this essay is to investigate the conflicts that might be defined sub a), namely conflicts between State and non-State law, while also considering the vertical dimension – which falls sub b) – that these conflicts can take on in a particular supranational legal system – the latter corresponding to the normative sphere of the European Convention of Human Rights.
- PART II: Conflicts of laws: a comprehensive view
- Defining conflicts between State and religious law
According to Professor Berman, secularization began, with the Papal Revolution, as the “freedom of the clergy, under the pope, from emperor, kings, and feudal lords”[18]. However, it has since taken on a connotation that is generally less favorable to people of faith in today’s world. Secularization not only weakened the public role of religion in liberal democracies “in the sense the government now fills the role formely occupied by the church, embodying the hope of human well-being”[19]. It also frequently results in a “clash of orthodoxies”[20], as defined by Princeton scholar Robert P. George, i.e., a dramatic conflict between State positive law and the moral obligation demanded by religion upon the faithful.
Professor Hirschl has suggested a complex taxonomy of contemporary approaches to govern religion and state relations, ranging from atheism to theocracy. For the purpose of this essay, we won’t consider neither the atheist State model (e.g.: China Popular Republic, North Korea, Vietnam) nor the legal systems which entitle religion as constitutionally enshrined source of legislation (e.g.: Egypt, Iran, Pakistan) or which provide enclaves for secular law (e.g.: Saudi Arabia). In fact, these models reject the possibility of an adjudicable tension between State and religious law. The legal order nullifies religious claims in the former model; the religious claims of the minority are superseded by the religious commands of the majority in the latter models[21].
Furthermore, the essay is solely concerned with the difficulties that exist between state positive law and religious commandments that are binding on the worshippers’ consciences. Thus, we will not consider arguments relating to the establishment (or dis-establishment) of religion[22], but rather those pertaining to the free exercise of religion and its conflicts with state law. That is only conceivable in legal systems that take into account a variety of religious claims in some form.
- Defining conflicts between State and cultural or ethnic law
Another factor that contributes to tensions in pluralist societies is multiculturalism, defined here as the coexistence of different and sometimes divergent cultures in the same social field, rather than the peculiar way adopted by the British and Canadian legal systems to deal with different cultures (see infra). Secularization is a process that is particularly associated with Western countries; yet, multiculturalism is not a peculiar Western feature caused by globalization. We can speak of multiculturalism in the broader sense when considering the mosaic of cultures in several Middle-East and Central-Asian countries, such as Afghanistan. However, conflicts between state law and cultural norms are more likely to arise in non-Western countries that have recently adopted constitutionalism and are attempting to reconcile traditional values and claims with newly introduced human rights standards, or in Western countries that are experiencing mass immigration from former African and Asian colonies.
Indeed, multiculturalism in the broader sense may entail tension between State law and both religious and ethnic law. Sometimes, religious and ethnic rules seem to be intertwined. That is the case, for example, with male circumcision, which is both a religious (for Jews, Muslims, and Coptic Christians) and an ethnic (for many Subsaharian Africans) practice, as well as the Muslim feminine habit of wearing certain types of veils. In fact, the Quran and the Hadiths impose to women the generic rules of dress that the various religious and ethnic traditions specify differently.
***
For the purposes of this essay, the conflicts between State interests and both religious and cultural laws will be discussed in one paragraph, with each paragraph devoted to how a different legal system handles them.
The apparent difficulty – as previously stated – in reconciling the competiting claims of the State and culture or religion through law has resulted in a disproportionate number of decisions by the jurisdictional authorities that, for the most part, have set the regulations. As a result, the majority of the discussion will be devoted to a cursory examination of judicial rulings.
- PART III: Five Models of Accomodation
- The U.S.A: Generally Applicable and
Neutral Laws v. Exceptions. Tribal Soverignity.
- The U.S. Bill of Rights enshrines religious liberty in the Free Exercise Clause of the First Amendment[23]. Although the main architect of the religious clauses among the Framers, James Madison, called religious beliefs “precedent, both in order of time and in degree of obligation, to the claims of Civil Society”[24], conflicts between State law and religious rules have been quite common since the second half of the 19th century. In 1990, the Supreme Court adopted[25], the view that generally applicable laws, that are hence not designed to target a religious belief, are constitutionally permissible under the First Amendment. The decision led the Congress to adopt the Religious Freedom Restoration Act, that reimposed to use of strict scrutiny to evaluate religious freedom claims. Later, the Court declared RFRA unconstitutional as applied against the States[26]; the Smith test is thus applied in most of religious liberty cases. However, the Court has generally recognized the so-called ministerial exception, meaning that discrimination laws don’t apply to labour relationship within religious institutions as to their ministers[27], and has recently narrowed Smith to public accomodations[28]. Furthermore, it has decided that the so-called “contraceptive mandate”[29]doesn’t apply to corporation if their owner objected to it on religious grounds[30] and that also religious for-profit organization are exempted[31]. Finally, the Court has declared that laws “treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available”[32]are uncostitutional. This is the criterion that, for example, the Supreme Court has recently applied to determine whether the state’s interest in preserving public safety during the SARS-COVID pandemic warranted restrictions on religious gatherings[33].
- Regarding the U.S. approach to cultural laws, it should be mentioned that, from the beginning of the Republic, the federal government continued the British “practice of recognizing tribal sovereignty. When the United States assumed the role of protector of the tribes, it neither denied nor destroyed their sovereignty”[34]. It stipulated, around the ending of the 19th century, treaties with some Native American tribes, which have been often nullified by the granting of statehood to the newly colonized territories[35]. However, the U.S. recognizes that the tribes “still possess their inherent soveignity”[36]: they are sui iuris communities that have the power to live according their own customs and legal rules within federal jurisdiction. Nevertheless, Indian tribes generally do not possess the power to regulate the activities of non-Indians even if those activities occur on Indian lands[37] and tribal courts do not have inherent criminal jurisdiction on non-Indians unless specifically authorized by law[38].
- France: Assertive secularism[39] and primacy of State interests. ECHR margin of appreciation doctrine.
If the U.S. approach to religious claims is marked by both neutrality and a certain amount of sympathy, clearly embodied by First Amendments provision, the same cannot be said regarding countries that establish an explicitly secular civic religion.
The historical roots for this approach in France can be traced back to the strong antireligious ideology of the French Revolution, which stressed the need to limit clerical and religious control over the state. However, the necessity of cohabiting with people from a wide range of non-secular cultural backgrounds, who arrived in France as a result of the decolonization process, has resulted in a particularly strict view of laicité, which is regarded as a core element of the modern nation and its members’ collective identity. As a result, France adopts the same assimilationist policy to its newer citizens as it did in the colonies. That’s the perspective that, e.g., led the French Council of State to uphold the denying of citizienship to a Maroccan woman who used to wear a burqua: the highest jurisdictional body stated that “une pratique radicale de sa religion, [est] incompatible avec les valeurs essentielles de la communauté française, et notamment avec le principe d’égalité des sexes; qu’ainsi, elle ne remplit pas la condition d’assimilation” stated by the Civil Code[40].
The French value-laden approach to religion does not end at ensuring the protection of the polity’s core values. It has also been extended to private citizens’ public displays of religious symbols. The Parliament amended the Code of Education in 2004 to prohibit the wearing of visible religious insignia in French public primary and secondary schools, regardless of religion[41]. The ban was challenged before the ECHR, which upheld the law applying the margin of appreciation doctrine[42], deferring to the State’s own model in dealing with different cultures and preserving the polity’s common good.
In addition, a restriction on the wearing of face-covering headwear in public places was enacted in 2010, except in specific circumstances[43]. Despite the fact that the rule was not intended to target religious garb, as it also applies to masks, helmets, and other face-covering veils, it has resulted in a widespread prohibition of Muslim traditions such as the wearing of niqabs and burqas. The ECHR, confronted with the claim that the law violated several provisions of the European Convention on Human Right’s provisions, especially ones concerning freedom of religion and expression and the right to privacy,
stated that limitations on religious rights are allowed if “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”[44], thus applying again the margin of appreciation doctrine. Moreover, because the legislative intent was to protect public security, the law had not to be considered discriminating Muslim women. Finally, France authorized something akin to a syndicate on religious own institutions, empowering the Council of State to choose whether religious organizations qualify as “religious bodies”[45].
- The multiculturalist modelDue
to its colonial past, the United Kingdom has a long history of
immigration from the former colonies, and having rejected the views espoused by
MP Powell in his famous albeit very contentious speech of 1968[46], it has developed its own
unique approach to dealing with other cultures: multiculturalism. It
recognizes the authonomy within the UK legal order of specifical religion and
cultural traditions in certain legal areas, in a way slightly similar to US
recognizion of limited tribal soveirgnity. For example, the Arbitration Act
(1996) “provides for religious bodies (…) to act as mechanisms for dispute
resolution, provided that all parties have consented to the process”[47], leading to the
introduction of the Muslim Arbitration Tribunal in 2007, which provides a
viable alternative for the Muslim community seeking to resolve disputes in
accordance with Sharia. That’s seems to be a meaningful way to avoid
conflicts between positive law and religious rules, given that MAT’s
jurisdiction is not extendend to criminal matters and that, as Lord Gardiner of
Kimble has stated, “even where religious law considerations have been applied
to an arbitration, the resulting decisions are subject to review by the
national courts on a number of grounds”[48]. However it remains
controversial if MAT jurisdiction is extended to family disputes. Indeed, the
Government seems to be concerned with the parallel activity of so-called Sharia
councils, which have no official legal role and are formed to “solve the
matrimonial problems of Muslims living in the United Kingdom in the light of
Islamic family law”[49] and with the risk of
creating legal enclaves with the British legal system, fostering division and
inequality, undermining fundamental values.Although
the Churches of England, Ireland, Scotland and Wales have been established as
the official Churches of the UK, the 26 Bishops of the Church of England sit as
Lord Spirituals in the House of Lords and the Parliament has the power to reform
the Book of Common Prayer, the legal order endorses only a weak form of
religious establishment and British civil society seems to be an highly
secularized one today. That seems apparent in case, brought at first in front
of the UK Court of Appeal and later in front of the ECHR, concerning the British
Airway’s policy to prohibit the visible wearing of religious jewelry by their
employee. The Court of Appeal rejected the claim that such policy was
discriminatory, but the ECHR recognized that “in weighing the proportionality
of the measures taken by a private company in respect of its employee, the
national authorities, in particular the courts, operate within a margin of
appreciation. Nonetheless, the Court has reached the conclusion in the present
case that a fair balance was not struck”[50] and thus that the UK has
failed to protect religious liberty. The same day the ECHR dismissed another religious
liberty case involving the UK[51], reaching a different
outcome. The case involved the alleged religious discrimination of a registrar
who had had denied her request to be exempted to register same-sex civil unions
because she opposed same-sex relationship on religious grounds). The Court of
Appeal recognized that, as a public officer, she had a duty to carry out her
purely secular function and that, on the other hand, refusing to do so would
have resulted in discrimination against same-sex couples.[52]. The ECHR affirmed.
- A former British colony, Canada has adopted a multicultural model that combines formal separation of religion and state with an accomodationist approach to diversity and religious difference, rejecting both assimilationism and strict secularism[53]. The Canadian Charter of Rights and Freedom, adopted in 1982, protects freedom of religion, establishes the constitutional status of English and French bilinguism and enshrines multiculturalism and diversity as one of the linchpins of Canadian constitutional identity. However, the legal system in Canada is likewise grappling with competing claims of religious and cultural diversity. The Supreme Court, evaluating this kind of claims, tends to endorse balancing between the competiting interest of State, e.g. in public security[54] or in protection of property[55], and the religious or cultural claims of the given individual or community.
- Israel: between selective accomodation and endorsement of ethnocentric identity
The Zionist movement created the State of Israel in order to offer the Jewish people a new homeland. It should be highlighted that, while Judaism is essentially a religion, it may also be viewed as a cultural or, in some cases, ethnic element, due to the historical primacy of blood’s bounds, which has allowed Jewish people to maintain their communal identity despite persecutions throughout the centuries. However, the State of Israel is a religious and ethnical mosaic, as it is today: citizens are Jews of various cultural and ethnic backgrounds, as well as Palestinian Muslims, Druzes and Christians. Although the general State law is secular, Israel grants a degree of jurisdictional autonomy is granted to religious communities, primarely in matters of personal status and education. E.g.: marriage and divorce are under the jurisdiction of religious courts. Neverthless, conflicts between State-law and religious practices are likely to arise, e.g. regarding the ending of exemptions from military service for Haredi seminary students when the Supreme Court ruled that the law granting the exemptions was uncostitutional. In addition, the Knesset has adopted in 2018 the Basic Law: Israel as the Nation State of Jewish People. It defines the State of Israel as the nation-state of the Jewish people, seeming to endorse a particular ethnonational identity and leading some commentators to infer that it violates the Basic Law: Human Dignity and Liberty, to which the Israeli Supreme Court has granted a super-legal status[56]. However, the Supreme Court has recently uphold the constitutionality of the last-enacted Basic Law[57].
- South Africa: a struggle between
tradition and human rights
- Since the termination of apartheid era, South Africa has adopted, in 1996, a Constitution which tries to balance the respect for the traditional values held by the vast majority of the indigenous population with the human rights standards requested by the international community. The Supreme Court, which “has become a major forum for dealing with South Africa’s dark political past and (…) brighter political future”[58], has been soon receptive to traditional indigenous values. E.g. in the landmark decision that declared unconstitutional the death penalty, S. v. Makwanyane[59], the Court, in Justice Mokgoro’s opinion, recognize the role of the Zulu value ubuntu, described as “personhood and morality”. In a landmark case dealing with property and housing rights, Justice Sachs stated that “the spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffues the whole constitutional order. It combines individual rights with a communitarian philosophy”[60]. The coexistence of constitutionally recognized human rights and indigenous traditional values, however, is fraught with conflict. A case in which the Supreme Court reconciled the Constitution’s right to equality with the tribe’s ancient traditions of primogeniture is an example of this issue. The Court sided with the former chief’s sister mantaining the supreme value of the right to equality upon the tribe’s right to authonomy[61], also because the Constitution imposes to develop the customary law in accordance with the spirit, purport and aims of the Bill of Rights.
- South African Supreme Court have not yet heard a great amount of cases related to religious liberty. Though, confronted with the claim that a law that prohibited corporal correction in schools entailed a violation of the rights of parents of children at independent schools who, in line with their religious convictions, had consented to its use, the Court, in upholding the law, carefully balanced the value of human dignity with the risk of “putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law”[62].
Finally, we may conclude that the
South African Constitutional Court’s approach, which gives traditional values
weight without allowing them to jeopardize human rights, appears to be a
balanced method to resolve disputes between State positive law and entrenched cultural
and religious rules.
[1] R.N. HAAS, Remarks to the National Defense University, Washington DC, September 21, 2001. https://2001-2009.state.gov/s/p/rem/5508.htm.
[2] Ibidem.
[3] A dramatic example of this kind may be find in the legal battles regarding abortion. Debates over abortion are sometimes framed as conflicts between a restrictive State law that imposes a “undue burden” (Planned Parenthood v. Casey, 505 U.S. at 877) and the woman’s freedom of choice; other times, the conflict is framed as a clash between the interest in the unborn’s life and in human dignity and a positive law that tilts in favour of a broad recognition of reproductive rights (for instance see: BVerfGE 39,1 – Schwangerschaftsabbruch I). Although religious morality is commonly used to justify abortion restrictions, it should be noted that philosophical and medical arguments can equally be used to support them, while some religious traditions claim to be neutral on the issue. In fact, the debate centers on the many conceptions of when the personhood begins, that are not inherently theist or atheist. So this kind of conflicts may be more properly addressed as moral conflicts rather than legal ones. Regarding abortion or, more broadly, the reproductive healthcare, conflicts between State and non-State law may occur (see infra Part II) when the State imposes a duty to perform the allegedly sinful act to religious individuals or religious-connotated institutions. See also L. TRIBE, Abortion: The Clash of Absolutes, Norton, 1992.
[4] F. v. BENDA-BECKMANN, Who’s Afraid of Legal Pluralism?, 47 J. Legal Pluralism & Unofficial L. 37, 54 (2002).
[5] Ibidem at 58 (internal citation omitted).
[6] Diversity. (n.d.) In Merriam-Webster’s collegiate dictionary. https://www.merriam-webster.com/dictionary/diversity.
[7] Ibidem.
[8] J.M. FINNIS, Unjust Laws in a Democratic Society: Some Philosophical and Theological Reflections, 71 Notre Dame L. Rev. 595, 596 (1995-1996).
[9] R. MICHAELS, Global Legal Pluralism, 5 Annu. Rev. Law Soc. Sci. 1, 3 (2009).
[10] Ibidem.
[11] BENDA-BECKMANN, at 63.
[12] MICHAELS, at 4.
[13] Ibidem.
[14] BENDA-BECKMANN, at 63.
[15] For a powerful counterargument see: G. WEBBER, P. YOWELL, R. EKINS, M. KOEPKE, B.W. MILLER, F.J. URBINA, Legislated Rights. Securing Human Rights trough Legislation, Oxford Univ. Press, 2018.
[16] R. HIRSCHL, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism, Harvard University Press, 2007; Professor Hirschl writes: “There is now hardly any moral or political controversy in the world of new constitutionalism that does not sooner become a judicial one”, ibidem at 1. See also R.H. BORK, Coercing Virtue. The Worldwide Role of Judges, American Enterprise Institute Press, 2003.
[17] Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).
[18] H.J. BERMAN, Law and Revolution: The Formation of the Western Legal Tradition, Harvard University Press, 1985.
[19] Priests for Life v. Dept. of Health & Human Serv., 808 F.3d 1 (D.C. Cir. 2015) (Brown, J. dissenting from denial of rehearing en banc).
[20] R.P. GEORGE, The Clash of Orthodoxies: Law, Religion and Morality in Crisis, Intercollegiate Studies Institute, 2002.
[21] Ironically, both atheist States and, sometimes, constitutional theocracies formally recognize freedom of religion. Regarding the preceding, China and Vietnam have granted religious liberty but, as a matter of fact, the government imposes strict burdens on its exercise, sometimes leading to persecution. As to Egypt, after the so-called Arab springs, the Constitution recognizes, in certain spheres, the autority of Jews and Christian religious leaders on their faithfuls, but the Islamic law (Sharia) is defined the main source of legislation, as in Lybia. Tunisia, often considered the brightest example of North-African constitutionalism, has declared Islam State’s religion and the Constitution has provided that the head of State should be a Muslim.
Other models of assessing religious claims that will not be discussed in the essay, according to Professor Hirschl, are: a) the one based on religious jurisdictional enclaves: in this case, the law is secular but religious communities are granted a degree of jurisdictional autonomy, primarily in matters of personal status and education; and b) the one based on formal separation with de facto pre-eminence of one denomination due its historical role in the country.
[22] Under this profile, we can refer to cases involving the State’s interest in endorsing religious activities in the public domain, such as public prayers; in granting public benefits to (or to attend) religious schools; in displaying religious symbols in public places, such as crosses, crucifixes or ten commandments tables. However, as to the public displaying of crucifixs, it’s worth to note that in the Lautsi case the ECHR applied to Italy the “margin of appreciation” doctrine (see infra) in way more favourable to religious claims than in other cases, considering the crucifix a traditional symbol and not a tool of religious indoctrination. The U.S. Supreme Court has decided in a slightly similar way, regarding the public display of a Latin cross, in American Legion v. American Humanist Association (588 U.S. ___ (2019)). However, it should be observed that, altough the Court didn’t overrule Lemon v. Kurtzmann (403 U.S. 602 (1971)), a plurality of the Justices expressed their views, rejecting the so-called Lemon test regarding the Establishment Clause of the First Amendment. During the current term, the U.S. Supreme Court will hear Shurtleff v. City of Boston, a case that may lead to the overulling of Lemon. On the other hand, more recently the Italian Corte di Cassazione has adopted a more restrictive approach regarding the display of the crucifix in public schools. It has opted for a “reasonable accomodation” approach, ruling that should be the school board to interpret the normative dispositions on the matter. See: Cass. Sez. Unite civ., sentenza n. 24414, 9 settembre 2021.
[23] § Congress shall make no law (…) prohibiting the free exercise thereof.
[24] J. MADISON, Memorial and Remonstrance (1785). See https://billofrightsinstitute.org/primary-sources/memorial-and-remonstrance.
[25] Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 879 (1990. The case concerned the Oregon’s prohibition on the use of peyote, which was part of Native American religious cerimonies.
[26] City of Boerne v. Flores, 521 U.S. 507 (1997).
[27] Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012).
[28] Fulton v. City of Philadelphia (2021), a case concerned with the denial by the City of Philadelphia of a contract to a Catholic foster-care agency because of its refusal to provide services to same-sex couples. The Court held City’s refusal uncostitutional without overruling Smith. It has to be observed that a majority of the Justices, concurring in Fulton, have signaled their dissatisfaction with Smith’s holding.
[29] We are referring to the provision of the Affordable Care Act that mandates female contraceptive coverage for all employers and educational institutions, thus compelling religious people and institutions to facilitate allegedly sinful acts.
[30] Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).
[31] Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U.S. ___ (2020).
[32] Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. (2020) (Gorsuch, J., concurring) (internal reference to Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993)). In the cited case, the Court held unconstitutional an ordinance that forbidden the killing of “an animal in a public or private ritual or ceremony not for the primary purpose of food consumption”. Compare with CJEU’s approach to prohibition of ritual animal slaughter, infra.
[33] The Court has settled a mixed record; compare South Bay Pentecostal Church v. Newsom, 592 U. S. ____ (2021), to Roman Catholic Diocese of Brooklyn and Tandon v. Newsom, 593 U.S. __ (2021). For a comprensive view of COVID-related cases involving religious liberty, see J. BLACKMAN, The Essential Free Exercise Clause, Harv. J.L. & Pub. Pol’y, Vol. 44, 2021.
[34] Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
[35] However, recently the Supreme Court ruled that much of the territories of Oklahoma remains tribal land and hence tribal court have jurisdiction on the crimes there commited by Native Amerucans. See McGirt v. Oklahoma, 591 U.S. ___ (2020).
[36] Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 (8th Cir.1956).
[37] Montana v. United States, 450 U.S. 544 (1981).
[38] Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
[39] Until recently, another legal system, which has adopted militant secularism, has been Turkey, in accordance with Kemalist ideology. E.g. Turkey banned the wearing of headscarves by women who work in the public sector. The ECHR upheld the law in Leyla Şahin v. Turkey (2004) applying the margin of appreciation doctrine, which consent to the States their own model in dealing with religious and cultural traditions.
[40] Conseil d’Etat, 27 juin 2008, n° 286798, Faiza M.
[41] Loi n. 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics.
[42] Dogru v. France, [2008], ECHR 27058.
[43] Loi n. 2010-1192: Loi interdisant la dissimulation du visage dans l’espace public. Similar bans have been enacted in the Netherlands (2012), Austria (2017; the law was later declared unconstitutional), Denmark (2017), and Luxemburg (2018); other European countries that have adopted bans directly prohibiting the wearing of burqas in public or restricting the wearing of other Islamic headscarves in all or some public spaces.
[44] S.A.S. v. France, [2014] ECHR 695. See also Dahlab v. Switzerland, [2001] ECHR 42393.
[45] The case concerned the denial of an application for a permit to conduct ritual slaughter of animals to an orthodox-Jew association because the applicant could not be considered a “religious body” within the meaning of a previous decree which permits exemption from the obligation to stun animals before they are slaughtered (as requested by Jewish orthodoxy) only in the case of ritual slaughter carried out by ritual slaughterers authorised by an approved religious body. It should be observed that the ECHR upheld the denial stating that the ability for orthodox-Jews to manifest religion was not impaired because they could anyway obtain the preferred meat. See Cha’are Shalom ve Tsedek v. France, No. 27417/95, ECtHR (Grand Chamber), 27 June 2000. More generally regarding European laws which prohibits or restricts the practice of animals ritual slaughter, see Centraal Israëlitisch Consistorie van België e.a. and Others v. Vlaamse Regering, Case C-336/19, CJEU (Grand Chamber), 17 December 2020. The European Court of Justice, adopting an evolutive view of the Nice Charter, stated that the freedom of religion right, protected by the Charter itself, is not endagered by the State’s interest in protecting animal welfare if the interference resulting from the law is limited to one aspect of the specific ritual act of slaughter, and that act is not, by contrast, prohibited as such.
[46] E. POWELL, Rivers of Blood speech (1968). See https://www.telegraph.co.uk/news/0/enoch-powells-rivers-blood-speech/.
[47] D. TORRANCE, Sharia law courts in the UK (2019). See https://researchbriefings.files.parliament.uk/documents/CDP-2019-0102/CDP-2019-0102.pdf.
[48] See https://publications.parliament.uk/pa/cm200708/cmhansrd/cm081124/text/81124w0012.htm.
[49] https://www.islamic-sharia.org/.
[50] Eweida v. United Kingdom [2013] ECHR 37.
[51] Ladele v. London Borough of Islington [2009] EWCA Civ 1357.
[52] Lord Dyson’s opinion stated also that “Ms Ladele’s objection was based on her view of marriage, which was not a core part of her religion” (ibidem). Despite the fact that the court’s decision appears to be indisputable due to the lack of express religious exemptions in the law regarding the solemnization of same-sex relationships, the Court’s inquiry into the orthodoxy of the plaintiff’s religious views appears to endorse a value-laden view of religion, which is at odds with the deference granted to the MAT in religious matters. Compare this statement with U.S. Justice Thomas’ one concurring to the denial of certiorari in Davis v. Ermold (592 U. S. ____ (20__)), a case with a slightly similar background: “Due to Obergefell [Court’s decision that recognize a constitutional right to same-sex marriage] those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws. It would be one thing if recognition for same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law”. Finally, it’s also noteworthy that the Court of Appeal devoted itself to a comparative examination of foreign court judgments in religion-realted cases.
[53] Regarding the establishment of religion, the Canadian Supreme Court has recently endorsed a form of strict neutralism in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, holding that the reciting of prayers during city council sessions are unconstitutional.
[54] Multani v Commission scolaire Marguerite‑Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6, in which the Court held that the administrative ban against a non-violent Sikh student carrying a kirpan (a knife whose wearing is part of Sikh religion requirements) in school entailed a violation of religious freedom rights, because it was not proportionate to the objective of securing school’s sefety.
[55] Syndicat Northcrest v Amselem [2004] 2 S.C.R. 551. The Court held that conflicting property and security rights were marginally impaired by erection of sukkhas, a Jewish practice, and thus do not outweigh freedom of religion under the Quebec Charter of Human Rights and Freedoms.
[56] HCJ 6821/93 United Mizrahi Bank v. Migdal Cooperative Village.
[57] HCJ 5555/18 Hason v. Knesset.
[58] HIRSCHL, Towards Juristocracy, at 28.
[59] CCT 3/94.
[60] Port Elizabeth Municipality v. Various Occupiers (CCT 53/03) [2004].
[61] Shilubana and Others v Nwamitwa (CCT 3/07).
[62] Christian Education South Africa v. Minister of Education, (CCT4/00) [2000].