THE FIRST AMENDMENT AND THE SUBSEQUENT LEGISLATION

From a UK perspective, law and religion issues in the US seem to be dominated by three pieces of legislation for which there are no obvious UK equivalents: the First Amendment to the Constitution, the Religious Freedom Restoration Act 1993 (‘RFRA’)Footnote ⁷ and the Religious Land Use and Institutionalized Persons Act 2000 (‘RLUIPA’).Footnote ⁸

As every reader will know, the First Amendment declares, inter alia, that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’: the ‘Establishment Clause’ and the ‘Free Exercise Clause’. The First Amendment was passed in the very particular circumstances of a new federation whose founders had to accommodate a very wide range of religious views: from the Anglicans of Virginia and the Roman Catholics in Maryland to the Puritans in Massachusetts and the Pennsylvania Quakers. A notable precursor was the Statute for Religious Freedom introduced into the Virginia General Assembly in 1779 and enacted in 1786, which disestablished the Church of England in Virginia and declared that:

The Religious Freedom Restoration Act 1993 was an attempt to moderate the impact of laws that, though intended to be religiously neutral, in reality might have unintended consequences for religious organisations. It was not, however, intended to bypass the provisions of the Establishment Clause; section 7 declares that:

In City of Boerne Footnote ⁹ SCOTUS held the RFRA unconstitutional as it applied to the states, ruling that the Act was not a proper exercise of Congress's power under section 5 of the Fourteenth Amendment ‘to enforce, by appropriate legislation, the provisions of this article’. But the RFRA continues to apply to the activities of the Federal Government. In an attempt to blunt somewhat the impact of City of Boerne and to bolster the Free Exercise Clause, Congress passed the RLUIPA. Inter alia, it moderated the effect of zoning laws on religious institutions if they imposed a substantial burden on the religious exercise of a person or religious organisation unless the Government could demonstrate that the burden was in furtherance of a compelling governmental interest and was the least restrictive means of furthering it. It also defined ‘religious exercise’ very broadly indeed to include ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief’.Footnote ¹⁰

HOBBY LOBBY AND EXMOOR

Hobby Lobby is a chain of retail arts and crafts stores constituted as a closely held company. Its proprietors objected on religious and moral grounds to having to comply with a regulation adopted by the US Department of Health and Human Services under the Patient Protection and Affordable Care Act 2010 that required employers to cover certain contraceptive provision for their female employees. Religious employers such as churches were exempt, as were religious non-profit organisations with religious objections; but before SCOTUS the US Government had argued that Hobby Lobby could not itself claim to have religious beliefs because it was a for-profit corporation. Though its owners, the Greens, held religious views, they and their corporation were separate entities in law and the rights and obligations of a company were different from those of its owners: very much the argument of HMRC in Exmoor.

By a 5–4 majority, however, SCOTUS disagreed, holding that the regulation violated the RFRA. Congress had included corporations within the RFRA's definition of ‘persons’:

This was very much the line taken by Tribunal Judge Mosedale in Exmoor, even though she upheld HMRC's decision on the facts:

But TJ Mosedale based her conclusion on the ECtHR's judgment in Pine Valley Developments,Footnote ¹³ which was about whether or not the Irish authorities’ failure to validate outline planning permission retrospectively or to provide compensation in lieu violated Article 1 of Protocol No 1 ECHR (property). Hobby Lobby was nowhere mentioned.

EUROPE, THE US AND ESTABLISHMENT OF RELIGION

A bar on ‘an establishment of religion’ is obviously at odds with a system that accommodates an established Church of England, a national Church of Scotland with a special status and a Church in Wales that, in legal terms at least, still bears some of the marks of its previous establishment. So if there is any equivalent in UK law to the First Amendment, I would suggest that it is probably Article 9 of the European Convention on Human Rights, as applied by the Human Rights Act 1998, at least insofar as it guarantees

But there is nothing in Article 9 ECHR forbidding ‘an establishment of religion’ and, presumably, the original signatories to the Convention would never have contemplated any such notion, given that several of the member states of the Council of Europe have (or had) state churches. Moreover, in Darby Footnote ¹⁴ the European Commission on Human Rights (rather than the Court) ruled that

Similarly, an express exception for ‘granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause’ has no obvious resonance for a system which, for example, funds faith schools to the extent that, between them, the Church of England and the Roman Catholic Church educate some 1.8 million pupils in England and Wales. Even in secularist France, bastion of laïcité and the separation of Church and State,Footnote ¹⁶ the Loi Debré of 1959Footnote ¹⁷ (subsequently incorporated into the Code de l’éducation) provides for public financial support for the salaries of teachers of secular subjects and the general running costs of private, mostly Roman Catholic, schools that are prepared to enter into a contrat d'association with the French state.Footnote ¹⁸

In short, in matters of law and religion the US and the UK operate in rather different socio-legal contexts.

DO THE UK COURTS ROUTINELY CITE US CASES?

Academic commentators and the courts tend to have rather different perspectives on the utility of judgments from the US. In Religious Freedom in the Liberal State, for example, Rex Adhar and Ian Leigh cite numerous US cases, largely in relation to such general issues as defining ‘religion’, constitutional protections (which, in any case, are different in the US) and school curricula (in particular, creationism).Footnote ¹⁹ In Religion and Law: an introduction, Peter Edge discusses the US cases on the First Amendment, on religious drug use, on misconduct of religious professionals and on ‘sacred places’.Footnote ²⁰ In Law and Religion Russell Sandberg discusses Kuch,Footnote ²¹ in which the plaintiff claimed – unsuccessfully – a constitutional right to take drugs on the grounds that it was part of his religion.Footnote ²² However, an analysis of some of the major judgments touching on ‘religion’, broadly defined, over the past few years in the Civil Division of the Court of Appeal, the Inner House of the Court of Session, the House of Lords and the Supreme Court suggests that citation of non-UK/ECtHR/CJEU precedents appears to be less frequent than one might have expected, as the following list indicates.

1. i. In Mandla,Footnote ²³ about the right of Sikh schoolboys to wear turbans, Lord Fraser of Tullybelton cited a New Zealand case, King-Ansell,Footnote ²⁴ on the construction of the term ‘ethnic origins’;

2. ii. In A (Children),Footnote ²⁵ the decision on separating the conjoined twins ‘Jodie’ and ‘Mary’, the Court referred to three US cases – Scalia J in Cruzan,Footnote ²⁶ on the unknowability of the point at which life becomes ‘worthless’, Cardozo J in Schloendorff,Footnote ²⁷ on the principle of self-determination, and (in a passing reference) Holmes,Footnote ²⁸ about necessity being a possible justification for homicide – to a New Zealand case, Auckland Area Health Board,Footnote ²⁹ and to four Canadian cases, principally Perka,Footnote ³⁰ on the conflict between legal as opposed to moral duties, and Walker,Footnote ³¹ Morgentaler Footnote ³² and Nancy B;Footnote ³³

3. iii. In the House of Lords judgment in Pretty Footnote ³⁴ (which was about assisted suicide; it was appealed to the ECtHR), references in arguments about proportionality and the right to self-determination were made to the Supreme Court of Canada in Rodriguez,Footnote ³⁵ to the US Supreme Court in Vacco Footnote ³⁶ and Glucksberg Footnote ³⁷ and to a case from Zimbabwe, Nyambirai;Footnote ³⁸

4. iv. In ProLife Alliance,Footnote ³⁹ in which a registered political party challenged the broadcasters’ refusal to permit a party election broadcast in Wales which included ‘prolonged and graphic images of the product of suction abortion’, the House of Lords referred to the US Supreme Court in Pacifica Foundation,Footnote ⁴⁰ on the use of obscene language on sound radio, and to the US Court of Appeals for the District of Columbia in Becker, on the political uses of television for shock effect;Footnote ⁴¹

5. v. In Williamson,Footnote ⁴² about corporal punishment in independent schools (discussed further below), Lord Walker cited Sachs J in Christian Education South Africa,Footnote ⁴³ in which the facts were very similar;

6. vi. In Copsey,Footnote ⁴⁴ on religious objection to Sunday working, the Court referred to two judgments of the Supreme Court of Canada, Simpson-Sears,Footnote ⁴⁵ on observance of the Seventh-day Adventist Sabbath, and Central Alberta Dairy Pool;Footnote ⁴⁶

7. vii. In Begum,Footnote ⁴⁷ about a school's refusal to allow a pupil to wear the long jilbab coat, the House of Lords referred to Christian Education South Africa and to the decision of the Supreme Court of Canada in Multani,Footnote ⁴⁸ on wearing a kirpan at school;

8. viii. In Helow,Footnote ⁴⁹ on whether or not a judge of the Court of Session who was a member of the International Association of Jewish Lawyers and Jurists should have recused herself from hearing an asylum appeal from a Palestinian, the House of Lords referred to the High Court of Australia in Johnson Footnote ⁵⁰ and to the Canadian Supreme Court in S (RD),Footnote ⁵¹ both on reasonable apprehension of bias;

9. ix. In P & Ors,Footnote ⁵² in which the House of Lords held that a blanket ban on joint adoption by unmarried couples violated their Article 8 ECHR rights, the Court referred to the South African Constitutional Court's judgment in Du Toit and Vos,Footnote ⁵³ which granted same-sex couples the ability to adopt jointly;

10. x. In Baiai,Footnote ⁵⁴ about the control of the right to marry by the Secretary of State by virtue of section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and whether or not it was a disproportionate interference with Article 12 ECHR, the House of Lords referred to SCOTUS in (the serendipitously titled) Loving,Footnote ⁵⁵ which invalidated laws prohibiting interracial marriage, and to the Constitutional Court of South Africa in Fourie,Footnote ⁵⁶ which upheld the constitutional right of same-sex couples to marry;

11. xi. In Ladele,Footnote ⁵⁷ in which a local authority registrar claimed that being obliged to conduct civil partnership ceremonies, contrary to her Christian beliefs about same-sex relationships, violated Article 9 ECHR, Neuberger MR cited Sachs J in Christian Education South Africa;

12. xii. In Purdy,Footnote ⁵⁸ where a claimant with a fatal degenerative disease sought clarification of the circumstances in which her husband might help her to go abroad for assisted suicide, Lord Phillips PSC cited the Supreme Court of Canada on assisted suicide in Rodriguez;Footnote ⁵⁹

13. xiii. In JFS,Footnote ⁶⁰ on whether or not the child of a mother whose conversion to Judaism was not recognised by the Office of the Chief Rabbi should be regarded as ‘Jewish’ for the purposes of admission to the school, Lord Clarke JSC made passing reference to the US Supreme Court in Bob Jones University,Footnote ⁶¹ upholding the removal of the university's tax-exempt status, while Lord Hope JSC cited the Supreme Court of Israel in No'ar K'halacha Footnote ⁶² and Bob Jones University;

14. xiv. In Eweida,Footnote ⁶³ about wearing a visible cross with the claimant's company uniform, Sedley LJ made passing reference to the US Supreme Court's judgment in Griggs,Footnote ⁶⁴ on discrimination against black employees;

15. xv. In Maga,Footnote ⁶⁵ about the Roman Catholic Church's vicarious liability for historic sexual abuse by a cleric, two Canadian cases on vicarious liability – Bazley Footnote ⁶⁶ and Jacobi Footnote ⁶⁷ – were cited, along with the judgment of the Irish Supreme Court in O'Keefe;Footnote ⁶⁸

16. xvi. In Catholic Child Welfare Society,Footnote ⁶⁹ also about vicarious liability for sexual abuse of minors, the Court cited four Canadian cases – Bazley, Jacobi, Doe Footnote ⁷⁰ and Blackwater Footnote ⁷¹ – together with an Australian one, Lepore;Footnote ⁷²

17. xvii. In JGE,Footnote ⁷³ yet another case about historic sexual abuse and vicarious liability, four Canadian cases and one Australian case were cited: Montreal Locomotive Works,Footnote ⁷⁴ Bazley, Jacobi, Doe and Lepore;

18. xviii. In Bull,Footnote ⁷⁵ in which a husband and wife claimed that to be obliged to let a double room in their hotel to a same-sex couple violated their Article 9 ECHR rights, there were references to two decisions of the British Columbia Human Rights Tribunal and to a South African judgment, National Coalition for Gay and Lesbian Equality,Footnote ⁷⁶ which declared unconstitutional the common law offence of sodomy;

19. xix. In Hodkin,Footnote ⁷⁷ which concerned the definition of ‘religion’ for the purposes of registering a place of worship to solemnise marriages, Lord Toulson JSC referred to the judgment of Adams CJ in Malnak,Footnote ⁷⁸ concurring in a per curiam opinion of the US Court of Appeals 3rd Circuit, which had held unconstitutional the teaching of transcendental meditation in a course that included a ceremony (the puja) in which the students made offerings to a deity, but he appeared to give more weight to the judgment of the High Court of Australia in Church of the New Faith;Footnote ⁷⁹

20. xx. In Mba,Footnote ⁸⁰ a claim for constructive unfair dismissal by an Evangelical Christian who did not wish to work on Sundays, the only ‘foreign’ citation was a passing reference to Syndicat Northcrest,Footnote ⁸¹ in which Iacobucci J attempted to define freedom of religion under the Quebec Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms;

21. xxi. In Shergill,Footnote ⁸² which was ultimately about the degree to which the secular courts were prepared to involve themselves in adjudication in matters of religious doctrine where a claimant sought the enforcement of private rights and obligations that depended on religious issues, Lords Neuberger PSC and Sumption and Hodge JJSC referred to a fairly early ruling of the US Supreme Court on the doctrine of act of state in Underhill Footnote ⁸³ and to two Canadian cases, Bruker Footnote ⁸⁴ and Syndicat Northcrest;

22. xxii. In Nicklinson,Footnote ⁸⁵ about whether or not someone with ‘locked-in syndrome’ had the right to be helped to die, Lord Neuberger PSC cited Carter v Canada (AG),Footnote ⁸⁶ which declared unconstitutional the blanket ban on physician-assisted death in the Canadian Criminal Code – but only to dismiss it. Lord Mance JSC found some relevance in the majority reasoning of the US Supreme Court in Washington and Vacco. Lord Mance cited with approval Lord Reed's discussion in Bank Mellat Footnote ⁸⁷ of Dickson CJ's judgment in the Supreme Court of Canada in R v Oakes,Footnote ⁸⁸ and Lord Sumption JSC noted the relevance of Rodriguez to Pretty; and

23. xxiii. In Ross,Footnote ⁸⁹ an unsuccessful challenge under Article 8 ECHR to the Lord Advocate's refusal to publish specific guidance on the circumstances in which individuals would be prosecuted for assisted suicide, Lord Justice Clerk Carloway referred to the Supreme Court of Canada in Carter Footnote ⁹⁰ and to a South African case, Stransham-Ford.Footnote ⁹¹

DO THE US COURTS ROUTINELY CITE UK OR EUROPEAN CASES?

Any definitive quantitative assessment of the extent to which UK or European judgments are cited by the US courts is well beyond the reach of a journal article (there must be a couple of putative doctoral theses in it at the very least). Generally speaking, however, the superior courts in the US have taken a fairly conservative view of the relevance and/or helpfulness of foreign precedents.

In Lawrence,Footnote ⁹² SCOTUS, in a 6–3 ruling, struck down the law in Texas (and, by extension, in thirteen other states) criminalising sodomy. Delivering the majority opinion, Kennedy J cited Dudgeon,Footnote ⁹³ in which the ECtHR had declared the criminal sanctions on homosexual acts in Northern Ireland incompatible with Article 8 ECHR (private and family life). In doing so, he gave rise to speculation that the opinion might herald a new departure in the jurisprudence of the Court. However, the propriety of citing foreign judgments as persuasive authority was, and remains, a matter of some controversy.

Richard Posner, who is both a judge of the US Court of Appeals for the Seventh Circuit and a Senior Lecturer at Chicago Law School, expressed trenchant opposition to the practice, which he described as ‘judicial fig-leafing, of which we have enough already’:

Austen Parrish, on the other hand, described such arguments as both inconsistent with a long history of practice and slightly xenophobic. In his view:

Likewise, David Seipp dismissed the matter in a single crisp sentence: ‘The objection to citation of foreign law in US Supreme Court decisions is bad history and bad law.’Footnote ⁹⁶

That said, however, analysis of five of the highest-profile SCOTUS cases about religious and moral issues in recent years – Hobby Lobby, Windsor,Footnote ⁹⁷ Town of Greece,Footnote ⁹⁸ Hosanna-Tabor Footnote ⁹⁹ and Obergefell Footnote ¹⁰⁰ – reveals that not a single non-US case was cited in any of them, whether by the majority or the minority. This suggests that, if Lawrence was indeed a new departure, in matters of religion and morality at any rate, the train has barely left the station.

Looking at the issue some fifteen years on from Lawrence, the late Justice Scalia (who dissented in Lawrence) and Justice Breyer (who joined in the majority opinion) agreed to disagree. Scalia, the arch-originalist, summed up his position like this:

Breyer took the view that, while a foreign judgment could never be more than persuasive, that was no reason for rejecting it outright:

So far as cases on religious manifestation and on moral issues with a religious dimension are concerned, the short answer to the question is probably twofold. First, the US has so many domestic jurisdictions of its own and such a large number of cases on religion every year that overseas precedents are generally regarded as superfluous. Second, because so many US religion cases relate back to the Establishment Clause, the Free Exercise Clause, the RFRA or the RLUIPA, overseas decisions are unlikely to be of much relevance in any event.Footnote ¹⁰³

A TENTATIVE CONCLUSION?

Even though all the US jurisdictions, with the partial exception of Louisiana,Footnote ¹⁰⁴ are based on common law, it would appear that, on matters of religion at any rate, their divergence from the UK and Europe is so great that a US case is usually only of interest for the UK when it sheds some light on a juridical or socio-legal principle of fairly general application – and vice versa. And when it comes to legal nuts and bolts, the foregoing analysis of recent high-profile law and religion cases would seem to suggest that, on balance (and making due allowance for the fact that a different list from mine might have produced somewhat different results), the UK courts are rather more likely to look to Commonwealth jurisdictions for parallels than to US ones – as the following examples suggest.

When the issue of the legality of prayers at town council meetings was tested in Bideford,Footnote ¹⁰⁵ Ouseley J cited the ECtHR in Buscarini Footnote ¹⁰⁶ – a challenge to the requirement for San Marino's MPs to take an oath referring to the Gospels – and the Grand Chamber judgment on the legality of crucifixes in state school classrooms in Lautsi.Footnote ¹⁰⁷ But he made no mention of the (admittedly somewhat equivocal) judgment of Calabresi J two years previously in the US Court of Appeals Second Circuit in Town of Greece,Footnote ¹⁰⁸ in which the plaintiffs had challenged the legality of opening town board meetings with prayer as a violation of the Establishment Clause – and which, as we have seen, went all the way to the Supreme Court. Possibly the reason for ignoring Town of Greece was that the challenge in Bideford was primarily about whether or not prayers at council meetings were ultra vires section 111 of Local Government Act 1972, not about constitutionality per se. Nor was the right to manifest under Article 9 ECHR a significant element except insofar as the second claimant, a former councillor, argued that the practice interfered with his Article 9 right not to hold religious beliefs.

In Preston Footnote ¹⁰⁹ the core issue was whether a presbyter in the Methodist Church was a worker with employment rights or an office-holder: it was argued that, on being ordained into Full Connexion, ministers entered a non-contractual ‘covenant relationship’ with the Church rather than a contract of employment. Central to the dispute was Methodist ecclesiology and the self-understanding of the Church as a church. Hosanna-Tabor was not cited: presumably it was thought to be too remote from the situation in Preston to be relevant, even though it dealt with the rights of religious organisations in hiring personnel.

Why should this be? In Big M Drug Mart Footnote ¹¹⁰ – in which the Supreme Court of Canada held that the provisions of the Lord's Day Act 1906 violated the freedom of conscience and religion guaranteed by section 2(a) of the Canadian Charter of Rights and Freedoms in the Constitution Act 1982 – Dickson J was distinctly unenthusiastic about the usefulness and relevance to Canada of US case law in matters of religion:

My suspicion is that what appears to be the case for Canada also holds true for the UK: that the overlap has something of a distorting effect on US case law and diminishes its usefulness to other common law jurisdictions.

If, for example, the Canadian Supreme Court rules that there has been a contravention of the Charter in a matter of religion or belief, a commentator from the United Kingdom is on fairly familiar ground. The fundamental ‘freedom of conscience and religion’ provision in section 2(a) is qualified by ‘such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’ under section 1 – from which it is not at all difficult to read across to Article 9 ECHR and its accompanying limitations on the right to manifest in Article 9(2).

Similarly in South Africa, under the Constitution, rights – including ‘freedom of conscience, religion, thought, belief and opinion’Footnote ¹¹² – may be limited

So a case in point from an appropriate Commonwealth jurisdiction might well be cited as persuasive in the UK courts. Lord Walker of Gestingthorpe's speech in Williamson is an example. Williamson was about whether or not parents with a religious conviction about the efficacy of corporal punishment might delegate authority to beat their children to teachers in independent schools. Lord Walker cited Sachs J in the Constitutional Court of South Africa in a case with very strong factual similarities: Christian Education South Africa was about whether or not the statutory ban on corporal punishment in schools contravened the constitutional provisions on privacy, education and freedom of religion, belief and opinion.

In conclusion: a US religion case can sometimes be very interesting as a piece of legal reasoning, but I suspect that only very rarely indeed is it likely to be of assistance even as a persuasive precedent in a United Kingdom context.Footnote ¹¹⁴ There does not seem to be any obvious UK or European parallel with either the First Amendment, the RFRA or the RLUIPA that would routinely lead UK courts to cite US cases based on them, even where there might appear to be a superficial relevance.

There is also an issue about the perceived objectivity or otherwise of SCOTUS on religious and moral issues. The arguments about its place in the US Constitution and the extent to which it makes new law rather than merely interpreting it are beyond the scope of this article – though Geoffrey Hazard's thoughts on the matter almost forty years ago still make for salutary reading.Footnote ¹¹⁵ But be that as it may, of the five cases discussed above, only in Hosanna-Tabor was the Court unanimous; in the others, it divided 5–4, with Scalia, Thomas and Alito JJ consistently on one side of the argument and Ginsburg, Breyer, Sotomayor and Kagan JJ on the other. Looking back over the judgments of the Roberts Court on law and religion generally, DeGirolami concludes that

So might the justices’ conclusions on religious or moral issues be thought to proceed as much from a priori socio-political assumptions as from legal analysis and therefore not worth citing at all? Perish the thought …