Varieties of Burden in Religious Accommodations

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of appreciation with respect to actions undertaken by the national authorities of its member states 2. Although there has been a considerable amount of scholarly literature on the propriety of religious. exemptions writ large as well as the difficulties associated with determining religious sincerity 3. there is less discussion on the other parts of this framework much less on how courts should assess. the substantiality of a burden, A recent spate of both decided and pending cases in various jurisdictions however is. beginning to place this question front and center In some cases the presence of a burden seems. clear For instance in 2016 the ECtHR held the rejection of a permit for applicants to use an. apartment as a place of worship to be interference as this rendered the members of the Jehovah s. Witnesses religious community unable to practice their religion 4 But in some cases it is not as. clear In Hobby Lobby v Burwell the U S Supreme Court deemed the contraceptive mandate. under the regulations promulgated by the Human and Health Services department to be a. substantial burden on the exercise of religion by the individual owners of the closely held. corporation Hobby Lobby 5 In particular the owners were concerned that providing full coverage. would force them to facilitate wrongdoing by employees who might use the insurance to purchase. forms of contraception despite the charge of the critics that the claim seems too attenuated to merit. protection The court deferred to the claims of the petitioners in determining whether the burden. was substantial enough to trigger the application of the Religious Freedom Restoration Act. RFRA and based its decision on the result of the proportionality analysis. Andreas Follesdal Appreciating the Margin of Appreciation in HUMAN RIGHTS MORAL OR POLITICAL. Adam Etinson ed 2017, See e g Anna Su Judging Religious Sincerity 5 OX J L REL 28 2016 Ben Adams Cynthia. Barmore Questioning Sincerity The Role of Courts After Hobby Lobby 67 STAN L REV ONLINE at 59. 2014 Nathan Chapman Adjudicating Religious Sincerity WASH L REV forthcoming. Association for Solidarity with Jehovah s Witnesses and Others v Turkey Eur Ct H R 2016. http hudoc echr coe int eng i 002 11178, Burwell v Hobby Lobby Stores Inc 134 S Ct 2751 2014. Page 2 of 35, Part of the difficulty has to do with conceptualizing what is a burden In theory any. government action that impacts religious exercise whether directly or indirectly is a burden For. example a mandatory voting law would be objectionable and deemed burdensome to someone. whose religious beliefs require abstention from politics Accordingly accommodations analysis. mandates an assessment of whether the imposed burden is serious or substantial Courts from. different jurisdictions have similar approaches despite differences in nomenclature Before the. Supreme Court of Canada it is required that the infringement on religious exercise be deemed. non trivial 6 To illustrate a requirement that all driver s license photos show the entire face. without any head covering is deemed a non trivial infringement to a member of a Hutterite. community woman who believes that such practice is objectionable according to the dictates of. her faith 7 In the jurisprudence of the European Court of Human Rights ECtHR implicit in its. assessment that interference is present in the exercise of rights secured by Article 9 of the. European Convention on Human Rights is the requirement that it be not de minimis though ECtHR. case law on this tends to subject practices under scrutiny less in recognizing interference compared. to its American counterpart 8 In a recent decision the court s judgment did take into account the. small amount of monetary impact on a Mormon church 9. Nonetheless even with this qualifier present judicial understandings of burden have been. inadequate to capture a wide range of impact that government acts and regulations have on the. individual or community practice of religion An oft cited example of this problem is the legal. Syndicat Northcrest v Amselem 2004 2 S C R 551, Alberta v Hutterian Brethren of Wilson Colony 2009 2 S C R 567 Can.
Stedman v United Kingdom App No 29107 95 23 Eur H R Rep 168 1997 The Court has never. had the opportunity to rule on a similar case so this Commission decision remains the authoritative. interpretation of Art, Case of the Church of Jesus Christ of Latter Day Saints v United Kingdom Eur Ct H R 2014. http hudoc echr coe int eng i 001 141369,Page 3 of 35. protection of indigenous sacred sites under the rubric of freedom of religion In a famous decision. Lyng v Northwest Indian Cemetery Protection Association the U S Supreme Court held that the. construction of a proposed road through a forest territory deemed sacred by Native Americans. would not violate the First Amendment regardless of its effect on the religious practices of the. respondents because it compels no behavior contrary to their belief 10Another example involves. complicity cases Laws and professional codes mandating effective referrals by physicians who. refused to participate in assisted suicide or abortion procedures have been recently challenged in. Australia Canada and the United Kingdom How immediate does the causal chain have to be in. order for a burden to be considered one under the relevant legislation or constitutional provisions. protecting freedom of religion These kinds of claims do not readily fall under existing categories. spelled out in case law 11 Accordingly many scholars readily come to the conclusion that there is. no burden involved if there is no issue of direct choice and does not involve some form of coercion. This paper is set against the background of this ongoing discussion in courts and within the. legal academy It suggests that there is not a single conception but a variety of burdens that courts. have to take into account in order provide some insights as to how substantiality can be assessed. It outlines three possible conceptions of burden namely 1 burden as coercion 2 burden as. impact and 3 burden as ratification and it evaluates each with respect to the central values. underlying religious accommodations Disaggregating burden in this way expands our frames of. understanding and allows courts to make better sense of the claims before them Significantly it. also allows courts to consider what Christopher McCrudden calls a cognitively internal point of. Lyng v Nw Indian Cemetery Prot Ass n 485 U S 439 1988. Cf Richard Moon Limits on Constitutional Rights The Marginal Role of Proportionality Analysis 50. Israel L Rev 49 67 2017 In section 2 a religious accommodation cases the courts have been quick. to find a breach of the right Any non trivial restriction on a religious practice will amount to a breach of. the section The SCC might be quick to find restriction but only when it comes to one particular type of. Page 4 of 35, view 12 that is to understand religion and its significance from the perspective of religious. believers when weighing accommodation claims This would inevitably require that any. evaluation of burden would have to take into account the system of beliefs from which these. perceived burdens emanate Although that would understandably raise questions as to the. propriety of courts evaluating theological issues 14 it is probably unavoidable to a certain extent. To understand how a law impairs a practice presupposes an understanding of what is important. and religiously significant about the practice In many cases courts already do this with respect to. the assessment of sincerity despite protestations to the contrary 15. This article undertakes a holistic examination of various kinds of cases before three high. courts American Canadian and the European Court of Human Rights in order to give us a. sense of the type of claims found along this spectrum Given the similarities found in the tests. articulated by these courts the suggestion in this paper provides some much needed guidance that. could prove to be workable across jurisdictions To reiterate acknowledging that religious. believers confront different kinds of burdens does not relieve courts of the responsibility to assess. whether these are indeed substantial enough to merit further balancing with legitimate government. objectives It does however go a long way into addressing the gaps that exist in current religion. related case law in the jurisdictions under consideration the foremost of which is to take religion. a lot more seriously than is currently done Before one can assess the gravity of a claim the court. has to find an a priori burden Religious believers may or may not win their claims in court but. Christopher McCrudden Catholicism and Human Rights in the Public Sphere 5 INT L J PUB. THEOLOGY 331 338 2011, Marc O DeGirolami Substantial Burdens Imply Central Beliefs 2016 U ILL L REV 19 21 A. burden on religious exercise is substantial if it interferes in a significant important or central way with. the claimant s religious system, See Samuel Levine The Supreme Court s Hands off Approach to Religious Doctrine An Introduction.
84 NOTRE DAME L REV 793 2009,Su supra note 3,Page 5 of 35. when they lose it should not be because the court has found they were not deemed to be burdened. in the first place,II The Role of Burden in Accommodations Analysis. 1 Justifying Religious Accommodations, That a select number of individuals and institutions could be exempted from generally. applicable laws or regulations on account of their religious beliefs is long considered to be a self. evident feature of liberal democratic societies But religious accommodations have been met by a. number of challenges in recent years principally the charge that religion is no different from other. deeply held moral commitments and as a result religion based exemptions are normatively. indefensible as a matter of law and policy 16 Skeptics view this as especially problematic because. of the costs it imposes on third parties 17 Nonetheless for a variety of reasons and underlying. values religion has remained to be a subject of distinctive treatment in almost all constitutional. orders Accordingly stating these values is important because they inform each step of an. accommodation analysis and they justify what some view as a departure from the rule of law More. importantly these values help define the contours of religious liberty. At the heart of the enterprise of religious exemptions lies the value of autonomy It allows. religious believers to hold and manifest their beliefs in ways contrary to what a generally. applicable law or regulation would mandate As a practical matter it is also not in the interest of. An early argument to this effect is in John Garvey Free Exercise and the Values of Religious Liberty. 18 CONN L REV 779 1986 Fred Gedicks An Unfirm Foundation The Regrettable Indefensibility of. Religious Exemptions 20 U A L R L REV 555 1998 For newer iterations see CHRISTOPHER. EISGRUBER LAWRENCE SAGER RELIGIOUS FREEDOM AND THE CONSTITUTION 2007 Micah. Schwartzman What if Religion Is not Special 79 U CHI L REV 1351 2013. See e g Ira C Lupu Hobby Lobby and the Dubious Enterprise of Religious Exemptions 38 HARV. J L GENDER 35 2015,Page 6 of 35, the state to put its citizens into a dilemma of having conflicting duties much less to turn its citizens. into martyrs by coercing them Hence Catholics could partake of sacramental wine during the. Prohibition era or Catholic clergy are exempt from performing same sex weddings Part and parcel. of liberal paradigm is for the state to respect the right of people to self determination as well as to. treat all people equally In religious exemption cases religious believers are effectively placed at. a disadvantage relative to those who do not subscribe to the same beliefs vis vis what the law. requires hence exemptions serve to level the playing field between religious and non religious. persons in fulfilling their duties For example a Sikh person who must wear a turban at all times. on religious grounds could conceivably ask for an exemption from mandatory motorcycle helmet. laws and indeed many jurisdictions such as some provinces in Canada and the United Kingdom. provide for this exemption 18, Another justification that undergirds religious exemptions is civil peace In Lemon v.
Kurtzman the U S Supreme Court singled out the divisive political potential of religion as a. justification for the separation of church and state 19 But this justification has a longer pedigree. The canonical philosopher of liberalism John Locke attributed all the bustles and wars that have. been in the Christian world upon account of religion 20 to the lack of toleration of those who have. different opinions This pragmatic formulation aims to reduce the causes of public conflict and is. intended for the benefit of both believers and nonbelievers living together. A third though less often employed justification suggested by scholars is the protection. and encouragement of the role of religious institutions and communities as intermediate. Motorcycle Safety Helmet Exemption Regulation B C Reg 237 99 Motor Cycle Crash Helmets. Religious Exemption Act 1976 c 62 1,Lemon v Kurtzman 403 U S 602 622 1971. JOHN LOCKE A LETTER CONCERNING TOLERATION 40 41 William Popple ed Bobbs Merrill 1955. Page 7 of 35, institutions This mediating function of religious institutions has two dimensions The first. dimension is a negative one in the sense that it serves as a check on the totalizing power of the. Varieties of Burden in Religious Accommodations Anna Su Religious accommodation analysis often takes the form of a tripartite test One of the factors in such a test is the presence of burden the current judicial understandings of which have been inadequate to capture a wide range of impact that government regulations have on the individual or community practice of religion This paper

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