Routledge Handbook of Constitutional Law by Unknown

Author:Unknown
Language: eng
Format: epub
ISBN: 1244632
Publisher: Taylor and Francis

19.5 Limitations on religious freedom

While protections for freedom of religion or belief are broad and fundamental, they are not unlimited except in the narrow domain of forum internum. As a practical matter, it is the determination of the limits that becomes the critical freedom of religion issue in most legal systems. Whether such limitations are expressly stated in constitutional texts,24 or simply inferred in the process of constitutional interpretation (as in the United States), no system gives people the right to behave in full compliance with their religious beliefs regardless of the harm this may cause. Moreover, even where limitations are expressly spelled out, much still depends on the intellectual constructs that judiciaries develop (e.g. balancing, proportionality, compelling state-interest tests, narrow tailoring, etc.) in applying constitutional limitation provisions in specific cases.

A fundamental issue faced by every constitutional system is what happens when freedom of religion norms collide with the requirements of ordinary legislation. Is the legislative branch the only arbiter of constitutional values in this context, so that only the legislature can approve exceptions to general rules based on conscientious claims? Or can (at least some) judges determine (at least in some contexts) that the constitutional values prevail? If the latter, is the judicial action understood as a judicially crafted exception to legislation, or, on the contrary, as judicial contouring of normal legislation to preclude legislative exceptions to the general and overriding demands of the constitutional order? However this jurisprudential question is resolved, it is clear that one of the central constitutional debates involving religious freedom is whether and under what circumstances judges are authorized to craft exemptions (or contour legislation) to protect manifestations of religious freedom. In the United States, the Supreme Court has said that judges do not have this authority, at least with respect to general and neutral laws.25 Congress and a majority of the individual states in the United States have held that judges do have that authority (where the law in question is not supported by a compelling state interest or is not narrowly tailored to further such an interest).26 The result is considerable confusion and ongoing litigation.

The European Court of Human Rights frequently determines that particular legislation or governmental conduct violates provisions of the European Convention on Human Rights (ECHR), such as protection of freedom of religion under Article 9, but must leave correction of the problems to national governments. At the national level, most constitutional courts in Europe do address religious freedom claims, often using essentially the same type of proportionality analysis used by the Strasbourg Court. On the other hand, there are clearly jurisdictions where constitutional limitations have been construed to allow ordinary legislation to trump religious freedom claims,27 and there are still other jurisdictions where judicial review to enforce constitutional protections is not available (as in China) or is limited (as in France or Poland).

While specific limitation provisions are diverse, the fact that all but a handful of constitutions have been adopted since the adoption of the Universal Declaration of Human Rights (UDHR) has led to significant convergence in limitation provisions.

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