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Competing Concepts of Religious Freedom Through the Lens of Religious Product Authentication Laws
Published online by Cambridge University Press: 11 August 2011
Abstract
Religious product authentication laws, predicated on conceptions of doctrinal authenticity, risk curtailing the religious freedom of dissenting adherents engaged in non-orthodox forms of the regulated practice. They may also entail discrimination between, or even the ‘establishment’ of, competing doctrinal viewpoints within religions. This raises important constitutional and theoretical questions surrounding the conceptual necessity, to religious freedom, of state neutrality in religious controversies. Comparative church–state jurisprudence reveals strikingly different approaches to the question of the compatibility of religious product authentication laws with constitutional guarantees of religious freedom and state neutrality. The religion clauses of the United States Constitution preclude regulatory schemes incorporating doctrinal concepts of authenticity, whereas a failed constitutional challenge in Ireland (to a law regulating the sale of Mass cards in Ireland) rejected the contention that such laws denied constitutional guarantees of religious freedom and non-discrimination on religious grounds. This article argues that these contrasting approaches to the constitutionality of religious product authentication laws illustrate a deeper conflict surrounding the very concept of religious freedom. In particular, this comparative constitutional jurisprudence crystallises broader normative debates surrounding the competing claims of recognition and neutrality with regard to religion.
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References
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6 Greenawalt, K, Religion and the Constitution: establishment and fairness (Princeton, NJ, 2008), p 1CrossRefGoogle Scholar. In certain cases, it has been acknowledged that the values encompassed by the free exercise and establishment clauses may conflict, and need to be reconciled: ‘free exercise and establishment are in tension for a number of important issues, but in fundamental respects a principle of nonestablishment supports free exercise’ (ibid, pp 3–4). Greenawalt further states: ‘in its undisputed core, nonestablishment definitely promotes the free exercise of religion, but potential conflicts with aspects of free exercise exist at the outer edges of nonestablishment’ (ibid, p 6).
7 Everson at 40, Justice Rutledge, dissenting.
8 The Puritans, who generally practised a weak separation of church and state in the New England colonies, were ‘the heirs of the theology of religious liberty taught by European Calvinists’, which emphasised that ‘each person has the liberty to enter into a personal covenant relationship with God’, albeit within the terms imposed by the Bible. See Witte, The American Constitutional Experiment, p 25. Evangelical protestants believed that liberty of conscience required a more complete separation of church and state, rejecting benevolent as well as repressive governmental intervention in religion.
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14 Witte, The American Constitutional Experiment, p 74. In Abington School District, Justice Clark observed: ‘a further reason for neutrality is found in the Free Exercise Clause … the two clauses may overlap’ (at 222). Justice Douglas described the establishment clause as ‘serving the same goal of individual religious freedom’ as the free exercise clause (at 229). Justice Brennan observed: ‘the two clauses, although distinct in their objectives and their applicability, emerged together from a common panorama of history’ (at 238). He also alludes to ‘the role of the Establishment Clause as co-guarantor, with the Free Exercise Clause, of religious liberty’ (at 256). Justice Goldberg observed that ‘these two proscriptions are to be read together, and in light of the single end which they are designed to serve’ (at 305). Citing Schempp, the majority held in Lee v Weisman 505 US 577 (1992) that ‘The First Amendment encompasses two distinct guarantees … both with the common purpose of securing religious liberty’. Accordingly, Justice Rutledge stated in Everson at 31–32: ‘The [First] Amendment's purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion’ (emphasis added).
15 Witte, The American Constitutional Experiment, p 31. Nussbaum identifies a similar inspiration in the writings of Roger Williams, a seventeenth-century protestant theological proponent of religious freedom and non-establishment. ‘Law and force have absolutely no place’ in ‘the sphere of the soul and its safety’, in distinction to ‘the bodies and goods of subjects’ that is within the scope of civil authority (Nussbaum, M, Liberty of Conscience: in defense of America's tradition of religious equality (New York, 2008), p 59Google Scholar).
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20 Article 44.2.1°.
21 Article 44.2.3°.
22 Article 44.2.5°–44.2.6°.
23 Article 44.2.4°.
24 Ibid.
25 Article 44.2.2°.
26 Campaign to Separate Church and State Ltd v Minister for Education [1998] 3 IR 321.
27 Article 44.1.2° was deleted by referendum through the Fifth Amendment (1972).
28 Article 44.1.3° recognised the ‘Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, as well as the Jewish congregations and the other religious denominations existing in Ireland at the date of the coming into operation of this Constitution’.
29 Hogan, Gand Whyte, G, JM Kelly: the Irish Constitution (fourth edition, Dublin, 2003), para 7.6.248Google Scholar.
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33 McCrea even states that the Constitution ‘defines its ultimate notion of the good in explicitly religious terms’: R McCrea, ‘The recognition of religion within the constitutional and political order of the European Union’, LSE ‘Europe in Question’ Discussion Paper Series, paper 10, September 2009, p 6.
34 Daly, ‘Re-evaluating the purpose of church–state separation’; Whyte, Church and State.
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36 Whyte, Church and State, p 31.
37 Daly, ‘Re-evaluating the purpose of church–state separation’.
38 See Board of Education v Allen 392 US 236 (1968); Committee for Public Education v Nyquist 413 US 756 (1973); Lemon v Kurtzman 403 US 602 (1971); Levitt v Committee for Public Education and Religious Liberty 413 US 472 (1973).
39 Campaign to Separate Church and State Ltd at 358–359.
40 See Daly, E, ‘Precarious religious liberties in education: the salience of demographic and social contingencies under a formally pluralist public philosophy’, in Bekerman, Z and Geisen, T (eds), International Handbook of Migration, Minorities and Learning (London, 2011 forthcoming)Google Scholar.
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43 Greenawalt, K, ‘Religious law and civil law: using secular law to assure observance of practices with religious significance’, (1997) 71 South California Law Review 782Google Scholar.
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45 This test was first formulated in Lynch v Donnelly 465 US 668 (1984).
46 Lemon at 612–613.
47 As Rosenthal notes, the secular purpose prong poses a ‘fairly low hurdle’ in establishment cases, given that the statute does not have to pursue an ‘exclusively secular’ purpose; therefore, ‘kosher laws easily clear this hurdle’ (Rosenthal, S, ‘Food for thought: kosher fraud laws and the religion clauses of the First Amendment’, (1997) 65 George Washington Law Review 959Google Scholar).
48 Greenawalt, ‘Religious law and civil law’, p 782.
49 294 F 3d 415 (2002).
50 Greenawalt, Establishment Clause and Fairness, p 245.
51 New York Agriculture and Markets Law s 201-a.
52 Ibid.
53 On the ‘excessive entanglement’ test, see Lemon.
54 86 A 2d 314, 17 NJ Super 540 (1952).
55 Lemon at 612–613.
56 Ran-Dav's County Kosher v State of New Jersey 608 A 2d 1353 (1992) at 1364.
57 Barghout v Bureau of Kosher Meat and Food Control 66 F 2d 1337 (1995) at 1341 n 5.
58 Rosenthal, ‘Food for thought’, p 951.
59 Greenawalt, Establishment Clause and Fairness, p 255.
60 See ‘ACLU lawsuit charges Georgia kosher laws are unconstitutional’, American Civil Liberties Union Press Release, 6 August 2009; ‘Georgia governor signs new law ensuring equality in kosher food labeling’, American Civil Liberties Union Press Release, 21 May 2010, both available at <http://www.aclu.org/religion-belief/>, accessed 16 June 2011.
61 Greenawalt, Establishment Clause and Fairness, p 243.
62 [2000] ECHR 27417/95.
63 See n 1 above.
64 See generally Hogan, G, ‘Church–state relations in Ireland from independence to the present day’, (1987) 35 American Journal of Comparative LawCrossRefGoogle Scholar 47, and Whyte, Church and State.
65 The recent crises for the Irish Catholic Church reached a zenith with the publication, in 2009, of a far-reaching report arising from a public inquiry on the treatment of children in ‘industrial schools’ administered by Catholic orders. See Report of Commission to Inquire into Child Abuse (Dublin, 2009).
66 Charities Act 2009, s 99(3).
67 Section 99(3) of the Act defines a Mass card as ‘a card or other printed material that indicates, or purports to indicate, that the Holy Sacrifice of the Mass (howsoever described) will be offered for (a) the intentions specified therein, or (b) such intentions as will include the intentions specified therein’.
68 P McGarry, ‘New law to regulate sale of Mass cards’, Irish Times, 31 July 2009.
69 ‘Priest who “signed” Mass card had been dead for two years’, Belfast Telegraph, 30 July 2009.
70 See n 62 above.
71 It was held in Campaign to Separate Church and State Ltd that Article 44 of the Irish Constitution implicitly prohibits the establishment of religion.
72 Continuing ‘… own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes’.
73 [2009] IEHC 573.
74 The ordinary jurisdictions of the High Court and Supreme Court have power to strike down unconstitutional legislation, vested by Article 34.3 of the Constitution.
75 I have argued that McNally was wrongly decided in Daly, E, ‘Regulating religious function: the strange case of Mass cards’, (2010) 9 Hibernian Law Journal 55–91Google Scholar.
76 It is arguable that the Act could be read subject to the presumption of constitutionality: in other words, that it would be a given a restricted construction as being confined to commercial activities only, as opposed to sincere religious actions. This might save the constitutionality of the Act while minimising its potential impact on freedom of religion. However, this might be to overstretch the scope of the presumption of constitutionality device. Section 99 of the Act makes clear that the criterion for the prohibition on the sale of Mass cards is the existence of an ‘arrangement’ with the named authorities, rather than the religious character of the activity that is restricted. Therefore, the Act does not appear to contain the ambiguity sufficient to sustain a double construction.
77 McNally v Ireland [2009] IEHC 573 at para 156.
78 Ibid at para 167.
79 See Senator Norris's contribution to the Seanad (Irish Senate) debates. He described it as ‘cracking a nut with a sledgehammer’: Seanad debates, vol 193, no 15, 17 February 2009. See also McGarry, ‘New law to regulate sale of Mass cards’.
80 McNally at para 167.
81 In The People (DPP) v Draper (1988) Irish Times, 24 March 1988, the Court of Criminal Appeal dismissed an appeal against the conviction of a man on a charge of malicious damage to two statues (he believed he had been sent by God). In dismissing the appeal, McCarthy J referred to the public order qualification included in Article 44.2.1°.
82 Corway v Independent Newspapers [1999] 4 IR 484 at 501, emphasis added. Similarly, in McGee v Attorney General [1974] IR 284 at 317–318, it held that, in ascertaining unenumerated constitutional rights with reference to ‘natural law’, the Courts could not ‘be asked to choose … between the different views of religious denominations’.
83 SI 2008/1277, rr 5(2)(a), 5(4)(a–b).
84 Consumer Protection Act 2007, s 43.
85 Section 99(2) states that ‘in proceedings for an offence under this section it shall be presumed, until the contrary is proved on the balance of probabilities, that the sale of the Mass card to which the alleged offence relates was not done pursuant to an arrangement with a recognised person’.
86 Ibid.
87 Ran-Dav's County Kosher Inc v State 129 NJ 141, 608 A 2d 1353 (1992) at 254.
88 See generally Daly, ‘Regulating religious function’.
89 See generally Hogan, G and Morgan, D, Administrative Law in Ireland (Dublin, 1998)Google Scholar, ch 7.
90 459 US 116 (1982).
91 Ibid at 126, quoting Watson v Jones 13 Wall. 679 (1872), 730.
92 Ibid at 125.
93 Barghout v Mayor of Baltimore, 833 F Supp 540 (1993) at 549, 856 F Supp 250 (1994), affirmed at 66 F 3d 1337 (1995), emphasis added.
94 McNally at para 133.
95 Ibid at para 135.
96 See n 28 above.
97 McNally at para 166, emphasis added.
98 [1979] ILRM 166.
99 Ibid at 187, emphasis added.
100 McNally at para 142.
101 See notes 70–71 above.
102 See Rosenthal, ‘Food for thought’, pp 953–954.
103 Rosenthal notes: ‘there are over sixty kosher supervisory symbols. The abundance of symbols is confusing to the kosher consumers and opens the door to the possibility of abuse by vendors. Orthodox Jewish communities do their best to investigate kosher practices in their localities and to notify consumers about kosher fraud, yet these efforts are of limited value’ (ibid, p 955).
104 McNally at para 171.
105 For an elaboration of the test of proportionality in Irish constitutional law, see Heaney v Ireland [1994] 3 IR 593. See more generally Kenny, D, ‘A dormant doctrine of overbreadth: abstract review and ius tertii in Irish proportionality analysis’, (2010) 17 Dublin University Law Journal 24–50Google Scholar.
106 The New York State Kosher Law Protection Act 2004 requires producers, distributors and sellers of food sold as kosher to submit information, including the identity of the person or organization that certifies the products as kosher, to the Department of Agriculture and Markets. See New York Agriculture and Markets Law s 201-a.
107 McNally at para 171.
108 Ibid at para 184.
109 In Quinn's Supermarket v Attorney General [1972] IR 1, the Supreme Court, referring partly to the Irish language version of the Constitution, determined that the term ‘discrimination’ encompasses all ‘distinctions’, in legislation, on the prohibited grounds, and not merely ‘discrimination against’, in the sense of invidious or unfavourable treatment.
110 Casey, J, Constitutional Law in Ireland (Dublin, 2000), p 698Google Scholar.
111 The definition of religious ‘status’ within the terms of Article 44.2.3° was set out, in Mulloy v Minister for Education [1975] IR 88 at 92, as embracing not only distinctions ‘between lay and religious persons’ but also ‘all the different degrees and conditions of persons in the context of religion’, which would appear to include the distinction between different clerical positions, as well as between clerical and lay positions. This undermines the High Court's assertion in McNally at para 167, that ‘identification or differentiation [of clerical office] … [does] not constitute a discrimination’.
112 McNally.
113 Ibid at para 166.
114 Ibid.
115 Ibid at paras 167 and 169. However, this overlooked the judgment of Walsh J in Mulloy at 96, where he stated: ‘this reference to religious status … clearly refers to the position or rank of a person in terms of religion in relation to others either of the same religion or of another religion or to those of no religion at all’ (emphasis added).
116 McNally at para 169.
117 Serbian Eastern Orthodox Diocese v Milivojevich 426 US 696 (1976).
118 See note 64.
119 Quinn's Supermarket.
120 Ibid at 96.
121 Juries Act 1976, First Schedule, Part II.
122 [1974] IR 284.
123 Greenawalt, Establishment Clause and Fairness, p 342. See generally Estate of Thornton v Caldor, 472 US 703 (1985), and Texas Monthly v Bullock 489 US 1 (1989).
124 Greenawalt, Establishment Clause and Fairness, p 337.
125 Rosenthal, ‘Food for thought’, p 966.
126 Ibid.
127 <http://www.jewishireland.org/kosher_life.html>, accessed 2 June 2011; <http://www.islaminireland.com/halal_food_and_certification_by_ifi.html>, accessed 16 June 2011.
128 <http://www.kosher.org.uk>, accessed 2 June 2011.
129 Greenawalt, ‘Religious law and civil law’, p 788.
130 Rosenthal, ‘Food for thought’, p 962.
131 Consumer Protection Act 2007.
132 See Daly, ‘Regulating religious function’.
133 McNally at para 169.
134 Civil Registration Act 2004, s 49.
135 McNally at para 172.
136 This point is touched upon in ‘Foreword’, (2008) 2 Judicial Studies Institute Journal.
137 In Everson, it was noted that competition among religious sects for political and religious supremacy had occasioned considerable ‘civil strife … generated in large part’ by competing efforts to gain or maintain the support of government.
138 Lemon at 688.
139 The requirements of the ‘neutrality’, ‘secular purpose’ and ‘general applicability’ of laws touching upon religion, in the United States establishment clause jurisprudence, might also apply in some form to Irish constitutional law, notwithstanding the McNally court's dismissal of any persuasive value in the US authorities. These may be identified in the light of the broader ethos, purposes and values that Article 44 imports – see generally Daly, ‘Re-evaluating the purpose of church–state separation’.
140 Board of Education of Kiryas Joel Village School District v Grumet 512 US 687 (1994) at 703.
141 Ibid at 702.
142 Ibid at 703.
143 Rosenthal, ‘Food for thought’, p 969.
144 Greenawalt, Establishment Clause and Fairness, p 337.
145 By analogy, where legislative classifications have been invalidated as unconstitutionally discriminatory within the terms of the Article 40.1 equality guarantee, it has been held that the courts cannot remediate this by extending a discriminatory benefit to those excluded, by virtue of the separation of powers. They may only strike out a discriminatory clause, rather than extend its application. See Casey, Constitutional Law in Ireland, p 451.
146 Article 44 was interpreted as implicitly precluding the ‘establishment’ of religion in Campaign to Separate Church and State Ltd.
147 McGrath and Ó Ruairc v Trustees of Maynooth College [1979] ILRM 166.
148 Greenawalt, Establishment Clause and Fairness, p 247.
149 McNally at para 165.
150 Indeed, in its seminal judgment in Quinn's Supermarket, the Supreme Court displayed no hesitation in receiving evidence from Jewish doctrinal authorities as determinative of the requirements of the Jewish religion.
151 This evokes Rawls' description of the conception, which he rejected, of the ‘fair value’ of basic liberties such as religious liberty – where this consists of claims to positive support in the exercise and pursuit of conceptions of the good – as distinct from the background social and institutional conditions necessary to the exercise of individuals' moral powers with respect to beliefs, etc. Rawls, J, Justice as Fairness: a restatement (Cambridge, MA, 2001), pp 150–151Google Scholar.
152 Daly, ‘Regulating religious function’.
153 Similarly, where Rosenthal argues that the US cases overturning authentication laws based on orthodox requirements are based on a ‘lack of understanding of the Jewish religion’ – and the actual state of intra-faith dispute surrounding kosher requirements – this very assertion implies that civil authorities such as courts are appropriately positioned to make such determinations. The salient question is not whether doctrinal disputes currently occur as a matter of objective fact but rather the broader truism that religious obligation must be regarded as inherently susceptible to contrasting interpretation between individuals. It is therefore insufficient for a court to undertake a survey or inquiry as to the state of relative consensus within a religion and to apply this as determinative of the appropriate degree of civil regulation of the contested practices. This rather over-optimistic assessment of the very ascertainability of intra-faith consensus on doctrinal requirements is also betrayed in his argument that ‘one should be especially reluctant to condemn an effective consumer protection standard … when there is no evidence that the alleged victim of the standard feels slighted by it in any way’ (Rosenthal, ‘Food for rhought’, pp 964 and 966).
154 Ibid.
155 Serbian Eastern Orthodox Diocese.
156 Daly, ‘Regulating religious function’.
157 Esbeck, ‘Establishment clause limits’, p 397.
158 Tribe, American Constitutional Law, p 1160.
159 Witte, American Constitutional Experiment, p 40. Similarly, Greenawalt, Establishment Clause and Fairness, p 9, argues that ‘full autonomy of choice is limited if the government “stacks the deck” in favor of one religion or all religions … by formal recognition of a religion … by other signs of favor, or by financial support’.
160 Witte, American Constitutional Experiment, p 46. Greenawalt, Religion and the Constitution, p 13 n 6, observes: ‘Principles of equality figure more directly and uncontroversially in the assumption that the religious clauses forbid discrimination among religions’ (emphasis in original).
161 Engel at 431.
162 See n 2 above.
163 Greenawalt reasons: ‘if a person is required to worship in a particular fashion … she does not enjoy freedom of religious conscience. The denial is real, though less severe, if she may worship as her convictions tell her, but suffers penalties or denials of opportunities as a consequence.’ Establishment Clause and Fairness, pp 7–8.
164 Nussbaum, Liberty of Conscience, p 11.
165 Lynch v Donnelly 465 US 668 (1984) at 687.
166 See Abington School District; Lee.
167 Lee at 629.
168 See n 4 above.
169 Lee at 589.
170 Ibid at 618, emphasis added.
171 Everson at 16, emphasis added.
172 Campaign to Separate Church and State Limited at 358–359.
173 Lautsi v Italy [2011] ECHR 30814/06, concurring judgment of Judge Bonello, para 3.5.
174 The idea of a ‘right to denominational education’, which would counterbalance the negative freedom from religious participation of non-religionist children, was articulated at a rudimentary level in Greally v Minister for Education [1999] 1 IR 1 and Campaign to Separate Church and State Ltd.
175 Rawls, Justice as Fairness, pp 150–151.
176 Abington School District at 225–226, emphasis added.
177 McCollum at 216.
178 See, for example, Craycraft, K, The American Myth of Religious Freedom (Dallas, TX, 1999)Google Scholar. This echoes Fish's broader argument surrounding the liberal misapprehensions of illiberal thought systems that underpin the idea of religious liberty: ‘All of liberalism's efforts to accommodate or tame illiberal forces fail, either by underestimating and trivializing the illiberal impulse, or by mirroring it’ (Fish, S, ‘Mission impossible: setting the just bounds between church and state’, (1997) 97 Columbia Law Review 2255CrossRefGoogle Scholar).
179 Ravitch, ‘Masters of illusion’, p 80.
180 Lee at 645.
181 See generally Markell, P, Bound by Recognition (Princeton, NJ, 2003)Google Scholar.
182 See generally Sandel, M, Liberalism and the Limits of Justice (Cambridge, 1998)CrossRefGoogle Scholar.
183 Rapport d'information au nom de la mission d'information sur la pratique du port du voile intégral sur le territoire national (Paris, 2010), pp 25–40Google Scholar.
184 Quinn's Supermarket at 25, emphasis added.
185 Rawls, Justice as Fairness, p 154.
186 Rapport d'information.
187 Indeed, its lack of consistency and rigour has become notorious. See Ravitch, ‘Masters of illusion’.
188 Rawls, J, Political Liberalism (Cambridge, MA, 1999), p 110Google Scholar.
189 Ibid.
190 Rawls, Justice as Fairness, p 166.
191 Kahn, P, ‘La laïcité est-elle une valeur?’ (2007) 39 Revue de Recherches en Éducation, p 29CrossRefGoogle Scholar.
192 Rawls, Justice as Fairness, p 21.
193 An exception to this is found in the recent judgment in Temple Street v D [2011] IEHC 1. While ordering the administration of a blood transfusion to a critically ill child despite the religious objections of his parents, who were Jehovah's witnesses, Hogan J stated that a ‘secular court cannot possibly choose in matters of this kind … can the State be prescriptive as to what shall be orthodox or conventional in such matters’.
194 McNally.
195 Ibid at para 135. This suggests, primarily, that the state may recognise and support the requirements of particular religions.
196 As already noted, the ruling in Zorach v Clauson supported an ‘accommodationist’ reading of the establishment clause, allowing the ‘public service’ to accommodate ‘the religious nature of our people … [which] expresses the best traditions of our people’ (at 314). However, this did not extend to permitting legislative incorporation of doctrinal requirements as such, but rather the lifting of regulatory burdens on religion.
197 This may be contrasted with the rejection, in the US jurisprudence, of any idea of the Constitution as expressing a shared religious ethos as the ultimate constitutional legitimation or bedrock of constitutional identity. In West Virginia Board of Education v Barnette 319 US 624 (1943) at 641, for example, the Supreme Court affirmed that ‘here is no mysticism in the American concept of the State or of the nature or origin of its authority’.
198 [1984] IR 36 at 64.