Hostname: page-component-cd9895bd7-jkksz Total loading time: 0 Render date: 2024-12-25T00:59:38.093Z Has data issue: false hasContentIssue false
  • English
  • Français

Chant Down Babylon: Freedom of Religion and the Rastafarian Challenge to Majoritarianism

Published online by Cambridge University Press:  24 April 2015

Derek O'Brien  and
Vaughan Carter
Get access Rights & Permissions [Opens in a new window]

Extract

‘ … to a very large extent power consists in the ability to make others inhabit your story of their reality.’

The accommodation afforded to religious differences within the legal systems of the common law world is as much a political as a legal concern. As such it is part of a much wider debate about the nature of democratic government within a pluralist society. The concern is that in so far as democracy is dominated by a majoritarian concept it may not be compatible with pluralism. Majoritarianism is predicated on the assumption that the will of the majority is absolute and is the final authority when defining the limits of individual rights and freedoms and how they are best respected and enforced. A pluralist conception of society, by contrast, requires that the rights of minorities must, on occasion, be allowed to take precedence over the wishes of the majority in order to encourage diversity, whether religious, racial or sexual, to flourish. The challenge for modern democracies is, therefore, to reconcile the demands imposed by majoritarianism within a pluralist framework.

Type
Articles
Information
Journal of Law and Religion , Volume 18 , Issue 1 , 2002 , pp. 219 - 248
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2002

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Gourevitch, Philip, We Wish to Inform You that Tomorrow we will be Killed with our Families: Stories from Rwanda 48 (Farrar, Straus & Giroux 1998)Google Scholar.

2. See Dworkin, Ronald, Freedom's Law 15 (Harv. U. Press 1996)Google Scholar.

3. For valuable discussion of current literature on this topic see Evans, Bette Novit, Interpreting the Free Exercise of Religion: The Constitution and American Pluralism ch. 9 (U. N.C. Press 1997)Google Scholar.

4. To avoid the possibility of confusion the authors throughout this article use the term “Rastafarianism” when referring to the religion as an entity distinct from its followers, who are referred to as Rastafari. However, it should be noted that followers of the Rastafari faith would not themselves approve of this terminology, as they do not recognise any form of “ism.”

5. The first Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Constitutions of the independent Caribbean Commonwealth countries are modelled on the European Convention on Human Rights. Section 11(1) of the Constitution of Antigua and Barbuda, which is typical of the majority of Caribbean Constitutions, provides:

Except with his own consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this section the said freedom includes freedom of thought and of religion, freedom to change his religion or belief, and freedom, either alone or in community with others, and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.

It is qualified by section 11(6)(a) which provides that:

Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision that is reasonably required … in the interests of defence, public safety, public order, public morality or public health.

Rights of religious freedom in the dependent territories in the Caribbean Commonwealth, such as the British Virgin Islands and the Cayman Islands are subject to the scheme of protection, that exist under the English common law.

6. This sentiment finds its most lyrical expression in Bob Marley's “Redemption Song”—“Emancipate from mental slavery, none but ourselves can free our minds.” See Re Chikweche, 1995(1) ZLR 235, 238 (citing H. Campbell, Rasta and Resistance: From Marcus Garvey to Walter Rodney); Taylor, Timothy B., Student Author, Soul Rebels: The Rastafarians and the Free Exercise Clause, 72 Georgetown L. J. 1605, 1607 (1984)Google Scholar.

7. See Smith, M.G., Augier, R. & Nettleford, R., Report on the Rastafari Movement in Kingston (Inst. Soc. & Econ. Research 1960)Google Scholar.

8. Id.

9. See Philosophy and Opinions of Marcus Garvey vols. I & II (Garvey, Amy Jacques ed., Arno Press 1986)Google Scholar and on pan-Africanism particularly, Campbell, H., Garveyism, Pan-Africanism and African Liberation in the Twentieth Century, in Garvey: His Work and Impact 167 (Lewis, Rupert & Bryan, Patrick eds., Inst. Soc. & Econ. Research & Dept. of Extra-Muiral Stud., U. W. Indies 1988)Google Scholar.

10. See Salewicz, C., Rude Boy—Once Upon a Time in Jamaica 131, 27 (Victor Gollancz 2000)Google Scholar, where reference is made to “‘mystical men of knowledge,” whose place in the Community was akin to that of priest or rabbi.

11. As the 1960 Report on the Rastafari Movement in Kingston, Jamaica noted:

The brethren do not speak of people joining their cult. In their view the doctrine is in them at birth but unfolds and comes into consciousness when they recognise the Emperor as God and themselves become fully conscious. When this happens, the convert makes a private vow or pledge to his God, usually to a photo of the Emperor [Haile Sellasie].

Smith et al., supra n. 7, at 24.

12. Id.

13. See Salewicz, supra n. 10, at 65.

14. The 1960 Report also concluded that tlie ganja smoked by the Rastafari: “guards them against physical illnesses, curing all complaints and giving them wisdom, love and understanding.” Smith et al., supra n. 7. It is thus the negative aspects of ganja use that are regularly seized upon at the expense of any more positive perceptions. Yet, by way of contrast, the positive attributes of peyote seem to have been stressed over and above its similar negative connotations. See infra at n. 146 and associated text.

15. Id.

16. The UNIA, according to Martin, became the largest Pan-African movement in history. See Martin, Tony, Marcus Garvey, the Caribbean, and the Struggle for Black Jamaican Nationhood, in Caribbean Freedom: Society and Economy from Emancipation to the Present 359, 359 (Beckles, Hilary & Shepherd, Verene eds., Ian Randle Publishers 1993)Google Scholar. Amongst African liberation leaders influenced by Garvey were Patrice Lummumba and Kwame Nkrumah, who placed Garvey's symbol of the Black Star at the centre of the Ghanaian flag. See Campbell, supra n. 9, at 178-179.

17. See generally Smith et al., supra n. 7. Further evidence of the Rastafarian political agenda can be seen in Jamaica with the launch of a Rastafarian political party. See Thompson, N., Rastafarian Political Party Officially Launched, Jamaica Gleaner <http://www.jamaica-gleaner.com/gleaner/20011004/cornwall/cornwall1.html> (10 4 2001) (accessed Oct. 28, 2002)Google Scholar.

18. Id. at 17-18.

19. This diversity is neatly encapsulated by Gutzmore, a former lecturer at the University of North London:

Rastafari is an incredibly complex, contrary, even contradictory phenomenon within society. It is important to understand that it is a society that essentially consists of a number of different elements. Different perspectives on Sellassie, different perspectives on Jesus, on Ethiopia and so on. When you first encounter this, it might look as if you are in the middle of a confused movement. But the point is not that the movement is confused, but that it is so diverse. And it is the diverse elements that make up this very different and dynamic and quite radical reality.

Salewicz, supra, n. 10, at 176-177.

20. Cooper, Davina & Herman, Didi, Jews and Other Uncertainties: Race, Faith and English Law, 19 Legal Studies 339, 341 (1999)CrossRefGoogle Scholar.

21. Ital symbolises a belief in life and an avoidance of symbols of death. Individual dietary practices vary widely among Rastafari. In general, Rastafari do not eat meat, and almost universally refrain from eating pork. Most Rastafari abstain from alcohol and caffeine. Some Rastafari do not eat fish, and some refuse dairy products. Some refrain from eating any foods that have been processed, particularly canned food, believing that the can symbolises a coffin, or death. Rastafari also object to vegetables that have been treated with non-organic pesticides or fertilizers. See Bunny v. Coughlin, 593 N.Y.S. 2d 354 (App. Div. 1993).

22. Dawkins v. Crown Suppliers (Property Services Agency) (Employment Appeal Tribunal), The Times (29 04 1991)Google Scholar.

23. Reed v. Faulkner, 842 F.2d 960, 962, 963 (7th Cir. 1988).

24. Robinson v. Fotim, 527 F.Supp. 1111, 1113 (E.D. La. 1981).

25. See Chevannes, Barry, Rastafari: Roots and Ideology 20–33 (Syracuse U. Press 1994)Google Scholar.

26. Id. at 21.

27. More Philosophy and Opinions of Marcus Garvey 140 (Essien-Udom, E.U. & Garvey, Amy Jacques eds., Frank Cass & Co., Ltd. 1977)Google Scholar (emphasis supplied) (quoting Garvey, Marcus, The Redemption of Africa (Black Man 1929)Google Scholar).

28. Examples of such laws, noted by Martin, supra n. 16, at 361, include Seditious Publications ordinances passed in several West Indian territories in the early 1920s and the Undesirable Persons (Prevention of Immigration) Ordinance 1924 introduced into Sierra Leone in anticipation of a projected African tour.

29. Shepperson, G., Ethiopianism: Past and Present, in Christianity in Tropical Africa 249, 249 (Bäeta, C.G. ed., Oxford U. Press 1968)Google Scholar.

30. Rev. Ernie P. Gordon, Garvey and Black Liberation Theology, in Garvey: His Work and Impact, supra n. 9, at 137.

31. Philosophy and Opinions, supra n. 9, at vol. 1, 44.

32. Id.

33. See generally Chevannes, supra n. 25, at 42-43.

34. Id. at 157.

35. See Ernle P. Gordon, Garvey and Black Liberation Theology, in Garvey: His Work and Impact, supra n. 30, at 138.

36. See Philip Potter, The Religious Thought of Marcus Garvey, in Garvey: His Work and Impact, supra n. 9, at 147; Lewis, R., Marcus Garvey: Anticolonial Champion 168 (London 1987)Google Scholar.

37. Num 6:5 (Douay-Rheims).

38. Rev 22 (quoted in Chevannes, supra n. 25, at 157).

39. Psalms 104 (quoted in Chevannes, supra n. 25, at 157).

40. Psalms 69:31 (K.J.V.).

41. Though it should be noted that framing their claim on the grounds of free exercise of religion did not result in more sympathetic treatment for Black Muslims, who also preach Black superiority.

42. Evans, supra, n. 3, at 46-47.

43. 380 U.S. 163 (1965).

44. Id. at 166.

45. Peñalver, Eduardo, The Concept of Religion 107 Yale L. J. 791, 798 (1997)CrossRefGoogle Scholar.

46. Tribe, Laurence H., American Constitutional Law 827 (Foundation Press 1978)Google Scholar (quoting Bonhoeffer, Dietrich, Religion Without Reservation 58 (1957)Google Scholar).

47. Wittgenstein, Ludwig, Philosophical Investigations (Anscombe, G.E.M. trans., Macmillan 1953)Google Scholar.

48. 592 F.2d 197, 209 (3d Cir. 1979).

49. Id. at 209.

50. 527 F.Supp. 1111 (E.D. La. 1981).

51. Id. at 1113 (emphasis added).

52. 496 N.Y.S.2d 258 (N.Y. App. Div. 1985).

53. 761 F.2d 921 (3d Cir.1985).

54. 593 N.Y.S.2d 354 (N.Y. App. Div. 1993).

55. 653 F.Supp. 965 (N.D. Ind. 1988).

56. Id. at 971 (emphasis added).

57. In a series of cases, Francis v. Keane 888 F.Supp. 568 (S.D.N.Y. 1995); Brown v. Daytop Village 613 N.Y.S.2d 1021 (N.Y. App. Div. 1994); and Jolly v. Coughlin 76 F.3d 468 (2d Cir. 1996), Rastafarianism's status as a religion was treated as a foregone conclusion.

58. 84 F.3d 1549 (9th Cir. 1996).

59. Id. at 1556.

60. This is because of the clauses contained in the constitutions of the independent Caribbean Commonwealth, which save the “existing” law at the time that the constitution was enacted: The “existing law” being the English common law. See Hailsham, Lord in Maharaj v. Attorney General of Trinidad and Tobago (1979) A.C. 385, 396Google Scholar. In that case Lord Hailsham, delivering the advice of the Board in connection with the Constitution of Trinidad and Tobago, declared that: “In order to construe the meaning and extent of the rights and freedoms protected by sections 1 and 2 … one must look first at the extent of these rights as they existed at the date of the commencement of the Constitution.” Id. at 403.

61. (1970) 3 All E.R. 886, 890.

62. The Times 44 (Apr. 29, 1991), and on appeal, Dawkins v. Crown Suppliers (Property Services Agency)(1993) TLR 44.

63. (1993) TLR at 45.

64. (1980) 3 All E.R. 918, 924.

65. Registrar General, 3 All E.R. at 892.

66. 1999 Cayman Islands Law Reports 307.

67. Id.

68. Id. at 309.

69. Id. at 327-331 quoting expert testimony of Dr. Chevannes.

70. See Re Chikweche, 1995(1) ZLR 235.

71. Id. at 237. Section 19(1) provides that “no person shall be hindered in the enjoyment of his freedom of conscience, that is to say, freedom of thought and of religion … and … to manifest and propagate his religion or belief through worship, teaching, practice and observance.”

72. Re Chikweche, 1995(1) ZLR at 242 (Gubbay CJ) (quoting Pandey, J.N., Constitutional Law of India 197)Google Scholar.

73. In R v. Hines & King (1971) 17 W.I.R. 326, the Supreme Court of Jamaica applied a modified version of the “theistic” test when reviewing the refusal of a trial judge to permit the appellant to swear an oath in accordance with his Rastafarian beliefs. In upholding the appellant's constitutional right to swear an oath, affirming his belief in “King Rastafari,” the court confirmed the religious status of Rastafarians by comparing their beliefs with the belief of Sikhs who regard the founder of their religion, Wahi Guru, and each succeeding Guru as the representative of the Omnipotent on earth. Id. at 326, 330, 333. The court did not, however, consider whether there was also evidence of worship in the manner prescribed in Segerdal (1970) 3 All E.R. at 886.

74. Evans, supra n. 3, at 170.

75. 496 N.Y.S.2d 258 (N.Y. App. Div. 1985).

76. Id. at 259.

77. 888 F.Supp. 568 (S.D.N.Y. 1995).

78. Id. at 570.

79. Id. at 576 n. 8.

80. 653 F.Supp. 965 (N.D. Ind. 1988).

81. Id. at 972. Exactly the same argument had been used in a number of Black Muslim cases in which the prison authorities sought to justify the banning of their version of the Quoran on the grounds that it would stir up racial hatred in prison. Pierce v. La Vallee 293 F.2d 233 2d Cir. (1961) and Bryant v. Wilkins 258 N.Y.S.2d. 455 (Sup. Ct. 1965); rev'd and remanded, 265 N.Y.S.2d 995 (App. Div. 1965), appeal dismissed, Magette v. Wilkins, 215 N.E.2d 529 (N.Y. 1966) (Table).

82. 1999 Cayman Islands Law Reports 307.

83. Id. at 308.

84. (1983) 1 All E.R. 1062, 1062.

85. Grant, 1999 Cayman Islands Law Reports, at 307, 331.

86. 49 W.I.R. 371 (1995).

87. Id. at 403.

88. Id.

89. 76 F.3d 468 (2d Cir. 1996).

90. Id. at 471.

91. Id.

92. Id. at 480.

93. Id. at 472.

94. See discussion, infra accompanying n. 126.

95. See Evans, Malcolm D., Religious Liberty and International Law in Europe 307 (Cambridge U. Press 1997)CrossRefGoogle Scholar.

96. 322 U.S. 78 (1944).

97. Id. at 87.

98. 613 N.Y.S.2d 1021 (N.Y. App. Div. 1994).

99. Id. at 1025.

100. Id.

101. Id.

102. 527 F.Supp. 1111 (E.D.La. 1981).

103. Id. at 1113.

104. Id.

105. 842 F2d 960, 963 (7th Cir. 1988).

106. Id.

107. In overturning the decision of the District Court, Circuit Judge Posner described the evidence of the prison doctor as “distinctly odd” and “a law of nature of which we have never heard and find hard to credit.” Id. at 962.

108. 84 F.3d 1549 (9th Cir. 1996).

109. City of Boerne v. Flores, Archbishop of San Antonio, 521 U.S. 507 (1997).

110. Id. at 1559.

111. 322 U.S. 78 (1994).

112. Ballard, 322 U.S., at 93; see Tribe, supra n. 46.

113. Miller, Herbert S. et al., Special Issue: Tentative Draft of Standards Relating to the Legal Status of Prisoners, 14 Am. Crim. L. Rev. 508, 508 (1997)Google Scholar.

114. 258 N.Y.S.2d 455 (N.Y. App. Div. 1965).

115. Id. at 458.

116. Id. 459.

117. 403 U.S. 698 (1971).

118. Id. at 703.

119. Id.

120. Id. at 702 (emphasis added). Ali himself put it much more pithily when asked by a reporter why he refused to fight in Vietnam: “Ain't no Vietcong ever called me nigger.” Id.

121. See Perry, Bruce, Malcolm: The Life of a Man who Changed Black America 3–5 (Station Hill Press 1991)Google Scholar, where he notes that Malcolm X's father was elected president of the Omaha branch of Garvey's Universal Negro Improvement Association.

122. See Lüpu, Ira C., Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv. L. Rev. 933, 954 (1989)CrossRefGoogle Scholar.

123. See Justice Scalia's comments in Employment Division v. Smith, 494 U.S. 872 (1990).

124. See People v. Woody, 394 P.2d 813 (Cal. 1964); Wisconsin v. Yoder, 406 U.S. 205 (1972).

125. 653 F.Supp. at 972.

126. 1999 Cayman Islands Law Reports, at 308-309. The Combsome branch of the Rastafarian movement did not wear their hair in dreadlocks. However, by the 1970s they had all but died out. See Chevannes, supra n. 25, at 158.

127. Tribe, supra n. 46, at 864.

128. Dworkin, supra n. 2, at 17.

129. McConnell, Michael W., Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1140 (1990)CrossRefGoogle Scholar.

130. 613 N.Y.S.2d 1021 (N.Y.Sup.Ct. 1994).

131. Id. at 1026-1027.

132. Id. at 1026.

133. The differing impact of grooming regulations on those religions with visible grooming requirements and those without is discussed in some detail in the dissenting opinions in Goldman v. Weinberger, 475 U.S. 503. The dissenting opinions referred to are those of Justice Brennan, joined by Justice Marshall, and the separate dissenting opinion of Justice Blackmun.

134. 494 U.S. 872 (1990).

135. Id. at 874.

136. Id.

137. Id. at 875.

138. Id. at 875.

139. Id. at 879-881.

140. Id. at 888.

141. Id. at 890.

142. McConnell, supra n. 129, at 1132.

143. Id. at 1128.

144. Id. at 1147.

145. See e.g. the treatment of Native American Indians by the Californian Supreme Court in People v. Woody, 394 P.2d 813 (Cal. 1964) and the treatment of the Amish by the United States Supreme Court in Wisconsin v. Yoder, 406 U.S. 205 (1972).

146. 394 P.2d at 817.

147. Id.

148. 494 U.S. at 907, 915 (quoting Dr.Bergman, Robert, Navajo Peyote Use: Its Apparent Safety, 128 Am. J. Psych. 695, 698 (1971)CrossRefGoogle ScholarPubMed.

149. Id.

150. Id. at 913.

151. Id. at 914 (emphasis added).

152. Id. at 918.

153. Id. (emphasis added).

154. Id.

155. Id.

156. 84 F.3d 1549 (9th Cir. 1996).

157. Id. at 1559.

158. 377 So.2d 648, 652 (Fla. 1979).

159. 475 U.S. 503 (1986).

160. Id. at 519.

161. Id. at 522.

162. Suit no. M44 of 1997, Supreme Court of Jamaica.

163. (1974) 2 All E.R. 840, 842.

164. Clark, J. Morris, Guidelines for the Free Exercise Clause 83 Harv. L. Rev. 327, 330–331 (1969)CrossRefGoogle Scholar.

165. See Justice Blackmun's dissenting judgment in Smith, 494 U.S. at 907.

166. Wilkinson, F., Human Rights Act will make Cannabis Legal, The Times Law 9 (02 20, 2001)Google Scholar.

167. Id.

168. In the United Kingdom, judges do not have the power to declare primary legislation unconstitutional. Under the Human Rights Act 1998, the height of the courts' powers is a declaration of incompatibility, leaving Parliament to dien take the necessary remedial action.

169. See Loveland, I., Religious Drug Use as a Human Right? 41 N.L.J. (01 19, 2001)Google Scholar and subsequent letters by Judge Gibson and Professor Loveland, 120 N.L.J. (Feb. 2, 2001).

170. Quoted in Wilkinson, supra n. 166.

171. For a summary of the Commission's recommendations, see Jamaica Gleaner (Aug. 16, 2001).

172. Grant, 1999 Cayman Island Law Reports, at 356.