Free exercise of religion: a pragmatic and comparative perspective.

AuthorKende, Mark S.
PositionPresident of the Law Society of the Cape of Good Hope v. Prince - 2010 Symposium Issue
  1. INTRODUCTION

    Courts throughout the world have struggled with freedom of religion cases. (1) Typically, courts weigh a state's interests against the infringement of a person's religious liberty. This paper's thesis is that courts should utilize "constitutional pragmatism" because they will render superior decisions that reject formalism. The paper will support this thesis by comparing the most prominent free exercise cases from three countries: the United States, South Africa, and Canada. It will demonstrate that Canada's decision is the strongest and most pragmatic, followed by South Africa's decision. The most formalistic decision comes from the United States. One must be cautious in comparing judicial decisions from nations with different cultural, political and historical narratives. These constitutional democracies, however, have enough in common to allow for juxtaposition. Moreover, this is just a sampling of cases meant to highlight the value of pragmatism. It does not mean to imply that all Canadian cases, for example, in the religion area are better reasoned than their South African or United States counterparts.

    The preliminary question is how to define constitutional pragmatism when scholars such as Richard Posner (2) and Daniel Farber (3) disagree. This paper argues that pragmatism requires a court to understand every aspect of the factual and social context of a case, so that the judge can render the best result possible, based on likely consequences. Moreover, the Court must render a doctrinally coherent decision that often explicitly weighs competing interests. (4)

    The approach is frequently minimalist because that preserves the Court's reputation and prevents missteps. (5) Pragmatic reasoning is inductive and avoids grand theories as well as deductive syllogisms. (6) This paper therefore expands on the meaning of pragmatism by using case examples. Moreover, constitutional pragmatism still allows judges to rely on all the tools of the lawyer's trade including: the text, the framer's meaning, precedent, structural arguments, policy arguments, moral reasoning, consequences, etc. (7) But context is crucial above all.

    The paper has five sections. Part II examines the leading U.S. Supreme Court case, Employment Division v. Smith. (8) Part III discusses the key South African Constitutional Court decision, President of the Law Society of Good Hope v. Prince. (9) Part IV describes a major Canadian Supreme Court opinion, Multani v. Commission scolaire Marguerite-Bourgeoys. (10) Part V addresses some anti-pragmatist arguments and Part VI concludes that the Multani case is the most pragmatic.

  2. EMPLOYMENT DIVISION V. SMITH

    In Smith, the U.S. Supreme Court in 1990 ruled against the religious liberty claims of two Native American plaintiffs who used peyote as part of their religion. Oregon listed peyote as an illegal controlled substance. The plaintiffs were therefore fired from their jobs as drug counselors. Moreover, Oregon rejected their unemployment compensation filings because they had committed criminal acts. The plaintiffs argued that they should receive a religious exemption from the drug law, making them eligible for unemployment benefits.

    Justice Scalia authored the majority opinion. He faced a conflict as a conservative. He frequently supports pro-religion positions, (11) but he also supports the government m many criminal cases. (12) In Smith, he rejected the religious exemption and bolstered the criminal law. His opinion angered groups as diverse as the American Civil Liberties Union (ACLU) and the National Association of Evangelicals. (13)

    The First Amendment to the U.S. Constitution specifies that, "Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof[.]" The Smith Court ruled that a generally applicable law, that substantially burdens religious practices, should only receive rationality review. (14) Notice this principle's breadth. Justice Scalia suggested the criminal law would become like Swiss cheese if the government had to accommodate every religious minority. (15) This is admittedly a pragmatic concern. He also noted the state's powerful interest in fighting illegal drugs. He tried to reconcile his opinion with earlier Court decisions.

    Justice Sandra Day O'Connor concurred but found Scalia's reasoning inconsistent with precedent. O'Connor explained that most of the earlier cases had imposed strict scrutiny, not rationality review, on any law that substantially burdened religion. (16) O'Connor, however, wrote that the state met strict scrutiny in Smith because controlling drugs was a compelling interest. (17) Notice the breadth of her support for a war on drugs. The fact that the federal and some state governments exempt peyote from their anti-drug laws did not change her mind. (18)

    Justice Blackmun dissented. He agreed with Justice O'Connor on precedent. He said Scalia engaged in the "wholesale overturning of settled law." (19) He supported strict scrutiny because, without an exemption, individuals like this would have to make the tragic choice between work and religion. (20) Moreover, the state lacked a compelling interest, as there was minimal illegal trading of peyote (21) due to undesirable side effects of the drug. (22) This limited exemption would not open the flood gates to drug trafficking. Oregon never criminally prosecuted the plaintiffs. (23) In addition, Blackmun criticized the majority for turning a "blind eye to the severe impact of a State's restrictions on the adherents of a minority religion." (24)

    There are many flaws in the Scalia opinion. First, his ruling is unnecessarily broad, as Justice O'Connor clearly states. (25) For example, he could have assumed that strict scrutiny applied, but still upheld the law as O'Connor did. Moreover, the case was about the use of peyote by the respondents, not all illegal drugs. (26) Justice Scalia has long advocated categorical methods over balancing tests. (27) Smith shows the weakness in such an approach.

    Second, the opinion's breadth meant he had to contort precedent, as Justice O'Connor suggested. For example, he discussed Wisconsin v. Yoder (28) where the Supreme Court ruled that the state could not force an Amish family to send their child to high school. Amish teens work at home rather than attend school. The Court used strict scrutiny, and said the law must provide an exemption because the Amish were an admirable religious community.

    Justice Scalia, however, distinguished Yoder because it involved plaintiffs who were relying on another fundamental right, besides religion. (29) The Yoder plaintiffs invoked the right of parents to raise their children. Justice Scalia said Yoder, unlike Smith, was a "hybrid" of free exercise rights and parents' rights to raise their children. (30) This reasoning fails, however, because it means that the non-religious fundamental right alone justifies strict scrutiny. Thus, Scalia essentially renders the free exercise interest insignificant.

    Justice Scalia also distinguished Smith from several unemployment compensation cases like Sherbert v. Verner, (31) where the Supreme Court ruled that the plaintiffs should receive exemptions. In Smith, Scalia explained that Sherbert involved "individualized governmental assessment of the reasons for the relevant conduct" in that "their eligibility criteria invite consideration of the particular circumstances behind an applicant's unemployment[.]" (32) Smith concerned a less troubling "across-the-board criminal prohibition on a particular form of conduct." (33) Justice O'Connor rejected Scalia's distinction:

    Given the range of conduct that a State might legitimately make criminal, we cannot assume, merely because a law carries criminal sanctions and is generally applicable, that the First Amendment never requires the State to grant a limited exemption for religiously motivated conduct. (34) Smith's ramifications are also puzzling because more mainstream religions can still dole out alcoholic communion to minors. Admittedly Scalia's non-exemption approach is easy to implement because the religious group generally loses. But that's not constitutional pragmatism, which is about context. Justice Scalia's formalist concern that exemptions would cause chaos only makes sense if lots of religious groups use outlawed drugs, which they do not.

    Justice O'Connor did not distort the scrutiny. But she also missed the context by focusing on the general war on drugs, not peyote in particular. (35) Only Justice Blackmun pragmatically dove into the specifics of how the case involved peyote, how the drug is unappealing, and how there had been no Oregon prosecutions. (36) The ACLU and conservative groups supported Blackmun.

  3. PRINCE

    The South African Constitutional Court arrived at the same result as Smith in a strikingly similar case, even though the constitutions are very different. The South African charter is one of the world's most progressive. (37) It specifies civil and political rights, yet also contains second generation rights (such as socioeconomic provisions) and third generation rights (such as the right to a clean environment). It promotes transformation, equality, diversity (among religions and cultures), and a communitarian ethos. (38) Numerous civil society groups and political parties drafted the document to redress apartheid's legacy. (39) By contrast, white British propertied males in the eighteenth century wrote and ratified the U.S. Constitution, which focused on commerce, liberty, and property rights. (40) The major similarities are the English historical ties, democracy, and the way that the nations tried to correct racial injustices. (41)

    South Africa created a strong Constitutional Court comprised of eleven Justices. (42) The President selects a Justice from a list of four nominees forwarded...

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