“A la carte” Spirituality and the Future of Freedom of Religion

WORKING PAPER VERSION

Jeremy PatrickLecturerCoordinator of Research and Research TrainingSchool of Law and Justice | Faculty of Business, Education, Law, and Arts

Introduction

This paper discusses the important emerging dilemma of what might be called

“freedom of religion at the margins.” The archetypal religious freedom claimant is a deeply

serious, long-standing member of a religious organisation who is faced with an agonizing

decision: to follow the dictates of God or the laws of man. When judges and legal scholars

think of religious freedom, they may think of such iconic issues as Jehovah’s Witnesses

refusing blood transfusions despite the risk of death,1 the Amish gaining an exemption for

their children from compulsory school attendance,2 or Jewish prison inmates demanding

kosher meals.3 With the sanctity of conscience given great weight, courts in major western

liberal democracies have developed expectations that those claiming protection in this

context must be sincere in their beliefs, that those beliefs must be recognizably religious, and

that, nonetheless, important government objectives may still trump.

These judicial expectations, in turn, are then reflected in the types of questions

claimants are asked and the types of evidence they are expected to provide. Of course, if the

idealized religious claimant has certain identifiable characteristics, it is also easy to imagine

1 See, e.g., M.L. Moore, Their Life is in the Blood: Jehovah’s Witnesses, Blood Transfusions, and the Courts, 10 (1983) 10 N. Ky. L. Rev. 281.2 See Wisconsin v. Yoder, 406 U.S 205 (1972).3 See, e.g., Abraham Abramovsky, First Amendment Rights of Jewish Prisoners: Kosher Food, Skullcaps, and Beards, (1994) 21 Amer. J. Crim. L. 241.

the opposite: litigants that will never succeed on a freedom of religion claim because their

beliefs in the relevant context have no religious connection whatsoever. The courts have

always made it clear that freedom of religious exercise is guaranteed, not a general freedom

to take actions that may be motivated by purely secular philosophies, political views, and so

forth. To go down this path would lead to anarchy, according to the U.S. Supreme Court,

because “the very concept of ordered liberty precludes allowing every person to make his

own standards on matters of conduct in which society as a whole has important interests.”4

Between traditional religious beliefs and clearly secular ones, however, there are

those that are much harder to label because they seem to contain elements of both. This may

seem the trite observation that in any process of legal classification, there will be difficult

cases. However, there is strong evidence to believe that the difficult cases are going to

become more and more common because the nature of religion and religious belief itself is

changing in the west. Although institutional religion continues on, there has been a dramatic

increase in the past twenty years in those who describe themselves as “spiritual but not

religious.”5 The common trait among so-called “SBNRs”6 is that they take an individualistic

approach to religion: picking and choosing particular beliefs from a wide variety of religious

traditions and then adding in, on an a la carte basis, notions from what may be derided by

many as folklore, pseudoscience, the New Age smorgasbord, or personal intuition.7 Legal

scholar Rebecca French calls this “grocery cart religion”8 and summarizes it well:

A grocery cart religious practice has only the rituals and ethical boundaries that the practitioner explicitly agrees to take on. Instead of following a revealed canon, the individual fits the interesting parts

4 Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972), quoted in Moore-King, 708 F.3d at 571.5 Linda A. Mercadante, Belief Without Borders: Inside the Minds of the Spiritual but not Religious (Oxford University Press, 2014).6 Ibid.7 See generally Mercadante, above n. ___, and Rebecca French, ‘Shopping for Religion: The Change in Everyday Religious Practice and Its Importance to the Law’ 51 Buffalo Law Review 127 (2003)8 French, above n. ___, 165.

of different religions together into a structured personal spiritual practice.9

Thus, SBNRs lack many of the criteria associated with traditional religious freedom

claimants. They may not belong to an organization, follow an authority figure, or have

easily-accessible or easily-articulated beliefs. They may change their beliefs frequently,

apply them in practice intermittently, or even describe those beliefs as constituting something

other than religion. Christopher Partridge calls this trend one of the most significant

developments in Western religion over the past fifty years, noting that:

There is in the West . . . a move away from traditional forms of belief, which have developed within religious institutions, towards forms of belief that focus on the self, on nature or simply on ‘life’ . . . There is a move away from a ‘religion’ that focuses on things that are considered to be external to the self (God, the Bible, the church) to ‘spirituality’—that which focuses on ‘the self’ and is personal and interior.10

The rise of this “new spirituality” presents challenges for the traditional application of

religious freedom principles in liberal democracies.11 The thesis of this study is that although

such beliefs are easily dismissed as “dilettantism” or “half-baked,” judges tasked with

adjudicating religious freedom claims should approach those beliefs with as much

compassion, respect, and deference as is given to more traditional forms of religion. If our

understanding of religious freedom remains static while religion itself continues to evolve,

one of the fundamental rights of liberal constitutionalism may gradually become hollow for

future generations of believers.

The three jurisdictions referred to in this paper (Canada, Australia, and the United

States) formally approach religious freedom quite differently. In the United States, the First

9 Ibid. 166. I refer to this phenomenon as the “new spirituality”, although, of course, religious syncretism has a long history prior to, and sometimes concurrent with, the rise of institutional religion.10 “Introduction” in Christopher Partridge, ed., Encyclopedia of New Religions 17 (Lion Publishing, 2004).11 The challenges involve, but extend far beyond, the familiar debate about how “religion” should be legally defined.

Amendment’s guarantee of “free exercise of religion” has been held not to apply to “valid

and neutral laws of general applicability.”12 That is, unless legislation singles out religion for

special disadvantage, no relief from an indirect burden on religious exercise will be granted.13

However, this general rule is riddled with exceptions that complicate and often undermine

it.14 In Canada, the guarantee of freedom of religion in the Charter of Rights and Freedoms15

is more advanced while maintaining clarity. A non-trivial burden on religious freedom, as

with a burden on any other right protected by the Charter, must be justified as “demonstrably

necessary in a free and democratic society.”16 The Supreme Court of Canada has given

content to this rule by setting out a multi-step balancing test.17 Australia is the wildcard in

this deck. Although the Commonwealth (federal) Constitution contains a guarantee of

religious freedom18 modelled quite closely on the First Amendment, subsequent interpretation

by the High Court of Australia has rendered it a virtual nullity,19 and no litigant has ever

successfully invoked it to obtain relief. However, the High Court has given content to the

meaning of the word “religion” in the Constitution that has often been adopted as

authoritative by courts interpreting statutory bills of rights and human rights/public

accommodation legislation.20

12 See Employment Division v. Smith, 494 U.S. 872, 879 (1990).13 See ibid.14 See below pp. ___.15 Canada, Charter of Rights and Freedoms s. 2(a).16 Ibid. s. 1.17 Sees R. v. Oakes, [1986] 1 S.C.R. 103.18 Australian Constitution, s. 116.19 See, e.g., Carolyn Maree Evans, Legal Protection of Religious Freedom in Australia (Federation Press, 2012) at 20 (“the protections in s 116 only have limited application and the cases decided under s 116 have given very little protection to those claiming religious freedom rights”); Reid Mortensen, ‘The Unfinished Experiment: A Report on Religious Freedom in Australia’ 21 Emory International Law Review 167, 171 (2007) (“Leaving the incontestable structural limitations in Section 116 to one side, it is effectively the High Court’s own interpretation of the provision that has almost read it out of Australian constitutional law.”).20 See Evans, above n. ___, at 53.

The goal of this paper is to analyse whether traditional notions of freedom of religion

apply to SBNRs as a step towards understanding the future legal evolution of this

fundamental right.

THREE TESTS

Despite their differences, courts in all three countries examining religious freedom

claims will usually consider the sincerity of the claimant, whether the claimant’s beliefs are

“religious” in nature, and whether an individual’s right to religious freedom is outweighed by

important governmental or societal concerns. These three considerations serve as the

framework in this paper for evaluating the application of traditional freedom of religion

principles to individual spirituality, and are thus worthy of an extended description.

Sincerity

Courts in Canada, Australia, and the United States expect that a litigant asserting a

claim premised on a constitutional or other guarantee of religious freedom sincerely holds the

religious beliefs that have led to a conflict with man-made law.21 However, a formal inquiry 21 For Canada, see Multani v. CSMB, [2006] 1 S.C.R. 256, 280 (“What an individual must do is show that he or she sincerely believes that a certain belief or practice is required by his or her religion.”); R. v. Jones, [1986] 2 S.C.R. 284, 295 (“a court is not precluded from examining into the sincerity of a religious belief when a person claims exemption from the operation of a valid law on that basis. Indeed, it has a duty to do so.”). In Australia, the inquiry is less structured due to a paucity of cases. For example, however, the sincerity of “rank-and-file” members’ beliefs in the tenets of Scientology was considered relevant by the High Court in its determination that Scientology is a religion. See Church of the New Faith v. Commission of Pay-Roll Tax, (1983) 154 C.L.R. 120, 141 (“lack of sincerity or integrity on [a leader’s] part is not incompatible with the religious character of the beliefs, practices and observances accepted by his followers”) (per Mason, ACJ & Brennan, J.); ibid. 148 (“We think an inference should be drawn . . . that the general group of adherents practice auditing and accept the other practices and observances of Scientology because . . . they perceive themselves to be giving effect to their supernatural beliefs”) (per Mason, ACJ & Brennan, J); ibid. 151 (“Some claims to be religious are not serious but merely a hoax, but to reach this conclusion requires an extreme case” (per Murphy, J.); ibid. 170 (stating that expert testimony was adduced to show that “the great majority of the Australian members of [the Church of Scientology] are sincere and genuine in their acceptance of current Scientology writings and practices.”) (per Wilson & Deane, JJ.). For the United States, see, e.g., Watts v. Florida Intern. University, 495 F.3d 1289, 1294 (11th Cir. 2007) (“To plead a valid free exercise claim, [the plaintiff] must allege that the government has impermissibly burdened one of his ‘sincerely held religious beliefs.’ In numerous decisions, beginning as far back as

into sincerity is not always necessary. Frequently, it will be quite clear from the

circumstances of the litigation that no claim would have been brought in the first place if the

claimant were not sincere; it is difficult to imagine why a non-Jew would litigate to wear a

yarmulke while in military service,22 or a non-believer subsidize the expense of a lawsuit just

to wear a Khalsa Sikh turban while a member of the Royal Canadian Mounted Police.23

However, when religious freedom claims are brought that would provide an exemption from

a widely-shared burden, or an advantage that is normally not provided to others, courts grow

understandably sceptical.24 An exemption for a limited number of sincere, religiously-

motivated pacifists from conscription may be manageable during wartime;25 but an exemption

from conscription for anyone who simply claims to be a pacifist could clearly lead to abuse

and undermine the war effort since the burden of military service is quite high.

The issue of sincerity comes to the foreground most clearly in cases involving so-

called “religious fraud”:26 instances where prosecutors assert that fraudsters have set up sham

religions as a means to prey on the gullible. The major American case in this respect is

United States v. Ballard,27 a Supreme Court decision stemming from a mail fraud

prosecution.28 The defendants in Ballard had established the “I Am” movement, in which

1955, the Supreme Court has used the phrase ‘sincerely held’ to describe the type of religious belief or practice eligible for protection under the Free Exercise Clause.”) (quoting Frazee v. Ill. Dep’t of Employment Sec., 489 U.S. 829, 834 (1989)).22 See Goldman v. Weinberger, 475 U.S. 503 (1986).23 See Grant v. Canada (A.G.), [1995] 1 F.C. 158.24 See, e.g., Church of the New Faith v. Commission of Pay-Roll Tax, (1983) 154 C.LR. 120, 149 (per Murphy, J.) (“In Australia there are a great number of tax exemptions and other privileges for religious institutions. Under numerous federal and state acts, regulations, and ordinances they are exempted from taxes imposed on the public generally. . . . Ministers of religion are exempted from military conscription. . . . There are many other state and federal laws which directly or indirectly subsidize or support religion. . . . Because religious status confers such financial and other advantages, the emergence of new religions is bound to be regarded with scepticism.”).25 See, e.g., United States v. Seeger, 380 U.S. 163 (1965).26 See generally, Stephen Senn, The Prosecution of Religious Fraud, 17 Fla. St. U. L. Rev. 325 (1990); Marjorie Heins, ‘Other People’s Faiths’: The Scientology Litigation and the Justiciability of Religious Fraud, 9 Hastings Const. L. Q. 153 (1981); Francis J. Conklin, Religious Fraud and the First Amendment, 2 Gonz. L. Rev. 35 (1967).27 322 U.S. 78 (1944). See Heins, supra note ___, at 158 (“The starting point of any discussion of religious fraud is the Supreme Court’s decision in United States v. Ballard”).28 See Ballard, 322 U.S. at 79.

they purported to be divine messengers able to communicate the words of “ascended

masters” such as Saint Germain, and stated that as part of their supernatural gifts they had the

power to heal otherwise incurable ailments.29 The defendants sold literature and solicited

donations from “I Am” believers before being charged.30 The trial court judge had instructed

the jury that the truth or falsity of the asserted claims was irrelevant, and that, instead, the

jury should consider whether the defendants “honestly and in good faith believe[d] those

things[.]”31 After the jury returned a guilty verdict and the defendants appealed, the Court of

Appeals ordered a new trial so that both the prosecution and defence could have an

opportunity to demonstrate whether the miraculous claims were, in fact, true.32 The Supreme

Court, however, held that the First Amendment prohibits the truth or falsity of religious

claims from being considered by the courts.33 In memorable words, the Court stated that:

Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law.34

The Court’s strong statement that the validity of religious beliefs is immune to legal

examination is reflected in other jurisdictions. Justice Murphy, for example, in the Australian

High Court’s Church of the New Faith case, wrote that “[t]he truth or falsity of religions is

not the business of officials or the courts. If each purported religion had to show that its

doctrines were true, then all might fail.”35 Similarly, the Supreme Court of Canada has stated

29 See id. at 79-80. A longer but very readable explanation of the group’s beliefs can be found in John T. Noonan, Jr., How Sincere Do You Have to Be to Be Religious? 1988 U. Ill. L. Rev. 713, 713-716.30 See Ballard, 322 U.S. at 79.31 See id. at 81.32 See id. at 83.33 See id. at 86.34 Id. at 86-87. The irony is that although this case was a major victory for religious freedom in general, the Ballards wanted a chance to prove that their religious beliefs were true; the Court’s holding effectively sustained their convictions. See Noonan, above n. __, at 717. However, an unrelated constitutional issue (the exclusion of women from the jury) ultimately led to the convictions being reversed later. See id.35 Church of the New Faith v. Commission of Pay-Roll Tax, (1983) 154 C.LR. 120, 150 (per Murphy, J.).

that “claimants seeking to invoke freedom of religion should not need to prove the objective

validity of their beliefs . . . nor is such an inquiry appropriate for courts to make.”36

When it determined that the veracity of religious claims could not be tested by the

legal system, the U.S. Supreme Court in Ballard left an implication that the sincerity of

religious claimants could still be examined.37 Although controversial to some,38 this

implication was accepted by lower courts in subsequent “religious fraud” cases.39 In United

States v. Rasheed,40 for example, the Ninth Circuit Court of Appeals examined a mail fraud

prosecution that was similar to that in Ballard in many respects. The defendant was the

founder of the “Church of Hakeem” and its “Dare to be Rich” program, one of the central

beliefs of which was “the law of increase, or the law of cosmic abundance, which provided

that if one gave freely one would receive returns greater than the initial gift.”41 In essence,

the Church of Hakeem proclaimed that any donations it received would be repaid four times

over after a set period of time (dependent on the size of the donation and “psychic birth

cycles”).42 In the eyes of prosecutors, this was simply a classic pyramid (or Ponzi) scheme

dressed up with religious language.43 In considering the defendants’ claim that their activities

36 Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 578. An interesting discussion of the issue in the English context, focussing on circumstances where the defendants wanted a chance to prove their supernatural powers in court, is in Peter W. Edge, Naturalism and Neutrality: Trying Miraculous Claims Fairly in English Courts, 44 J. Church & St. 521 (2002).37 See Conklin, supra note ___, at 37 (“The majority opinion does not expressly hold that the sincerity of a person’s religious beliefs is a proper subject of judicial inquiry. That such an inquiry is not precluded by the free exercise clause of the First Amendment seems, however, to be implied in the Ballard result.”); Heins, supra note __, at 163 (“The decision sidestepped the crucial issue of sincerity”); Seen, supra note __, at 334 (“As the [Supreme] Court has yet to reexamine the area of religious fraud, no definitive statement as to whether insincerity is an appropriate basis for a religious fraud conviction has been made.”).38 See United States v. Ballard, 322 U.S. 78, 95 (Jackson, J., dissenting) (arguing that inquiries into sincerity do not adjust for different degrees of commitment, and could lead to religious persecution); Heins, supra note __, at 182-189 (criticizing sincerity inquiries).39 See Senn, supra note __, at 334 (“Although the Supreme Court has not yet placed its imprimatur on religious sincerity testing in criminal fraud cases, lower courts have adopted this position. Moreover, courts have applied sincerity review in free exercise cases in a variety of noncriminal contexts”).40 663 F.2d 843 (9th Cir. 1981).41 Id. at 845.42 See id. at 845-46.43 See id. at 847.

were absolutely protected by the free exercise clause of the First Amendment, the Ninth

Circuit hewed closely to the distinction implied in Ballard: the truth of the “law of cosmic

abundance” could not be tested, but the defendants’ sincerity of belief in it certainly could

be.44 Because evidence demonstrated that the defendants knowingly lied about the true

source of the money they were distributing to contributors, the Court had no difficulty ruling

that their insincerity was clear and therefore the convictions should stand.45

The appropriateness of an inquiry into the sincerity of religious freedom claimants is

settled. What creates difficulty, however, is determining how that inquiry should proceed. In

other words, what questions are allowable, and what evidence is determinative? The task

must be handled carefully,46 lest it set standards that “mainstream” believers are not equally

held to or result in derision of seemingly strange or novel beliefs. In an article on religious

fraud, one writer named eleven different factors considered, at one time or another, by

American courts and legal scholars assessing sincerity.47 The types of evidence analyzed can

be sorted into three categories: (1) those pertaining to the individual believer; (2) those

44 See id. at 847 (“[T] issue in this case becomes whether [the defendants] had sincere religious beliefs in the allegedly fraudulent aspects of the ‘Dare to be Rich’ program. If they made assertions with knowledge of the falsity of those assertions, then they could not have been acting pursuant to sincere religious belief. It, therefore, is not a question of whether the ‘Dare to be Rich’ tenet is true or false. The focus is on the intent of [the defendants] in carrying out the program. It is this distinction that is critical in our First Amendment analysis.”).45 See id. at 848-49.46 See Senn, supra note __, at 336 (“Courts have routinely indicated that determination of religious sincerity is a sensitive undertaking warranting extraordinary caution.”).47 Senn, supra note ___, at 341-42. Senn’s excellent article helpfully includes a discussion of each factor. One can find discussion of similar relevant criteria in Australian and Canadian legal material as well. See, e.g., Wojciech Sadurski, On Legal Definitions of ‘Religion’, 63 Australian L. J. 834, 837 (1989) (“[T]here are a number of methods of measuring the sincerity of a claim for religious exemption: inter alia, the conformity of this claim with the written or empirically verifiable traditions and proscriptions of the religion or cult, congruence between the professed religious tenets and one’s actions, the willingness to undertake alternative duties and burdens, equally onerous but neutral from the point of view of that religion’s proscriptions, etc.”); Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 582 (“Assessment of sincerity is a question of fact that can be based on several non-exhaustive criteria, including the credibility of a claimant’s testimony, as well as an analysis of whether the alleged belief is consistent with his or her other current religious practices.”).

pertaining to the group he or she belongs to (if any); and (3) those pertaining to the beliefs

themselves.

Sincerity Evidence48

Relating to the Individual

“actions inconsistent with professed beliefs” “willingness to bear adverse consequences of the religious belief” “alternative secular purpose” “intensity of the believer’s devotion” “defendant’s testimony and statements relevant to the defendant’s religious

sincerity” “coexistence of secular fraud” “previous case law on the defendant, the religious organization, or the religious

belief” “evidence of the defendant’s attempts to cover up embarrassing or questionable

activities”

Relating to the Organization

“size and history of the religious organization” “whether the challenged tenet is part of an organized faith of which the defendant

is a member”

Relating to Beliefs

“extent to which the claimed beliefs parallel traditional beliefs”

Reckless application of some of these factors could lead courts in a direction that is

not consonant with religious liberty. The first factor, for example, if applied too strictly,

could arguably lead to the vast majority of believers in even traditional religions being

disqualified: “Occasional deviation from Sabbath observance does not prove full-blown

hypocrisy, just as occasional indulgence at a non-kosher restaurant ought not to preclude all

claim of need for a kosher diet.”49 A strong case could also be made that some factors should 48 Each of the factors below is drawn directly from Senn, supra note ___, at 341-42, although the categorization is my own. We will see in the next section that some of these criteria are also considered by the courts in assessing whether a belief system should be classified as “religious” to begin with.49 Heins, supra note ___, at 185. Or as the great Saki wrote, “It is the golden rule of all religions that no one should really live up to their precepts; when a man observes the

simply not be considered at all: whether others believe the same things the claimant does, for

example, threatens to turn religious freedom from an individual right into a purely

associational one.50 Still, these are some of the considerations that must be addressed in

determining how religious freedom guarantees interact with individual spirituality.

Examining the list above, it becomes clear that SBNRs will struggle with many of

these factors. For example, it could be difficult to prove the “intensity” of their “devotion” to

spiritual beliefs that have changed (or “evolved”, in the believer’s eyes) multiple times in

recent years. There will not be, by definition, canonical statements of faith, established

ecclesiastical history, or fellow members of the organization to testify to the SBNR’s

sincerity, because there is no canon and no organization. There will (most likely) be no

previous case law or academic studies on the believer’s precise set of beliefs, though it is

quite possible that particular aspects of those beliefs can be traced to well-known origins.

The mutable mixture of the “supernatural” and the “secular” (or “scientific”) in the beliefs of

many SBNRs may strike judges as a tool of convenience that allows them to alter their faith

to fit their litigation needs. It may be that the best an SBNR can hope for is the strength of

their own credibility on the witness stand and, perhaps, that of friends or family members

who will testify that the SBNR takes their own beliefs seriously.

On the other hand, a judicial test of sincerity is not an inquisition,51 and the benefit of

the doubt is usually given to litigants unless there is clear evidence of bad faith. Even though

many of the “spiritual but not religious” may not express themselves with theological

principles of his religion too exactly he is in the immediate danger of founding a new sect.” Hector Hugh Munro, ‘When William Came’ in The Complete Stories of Saki (Wordsworth, 1993) at 548.50 Cf. Thomas v. Review Board, 450 U.S. 707, 715 (1981) (finding it irrelevant that another member of claimant’s religious sect did not share the belief in question).51 Sometimes referred to as the “no inquiry” principle, American courts hold that although the sincerity of religious claimants may be questioned, the “truth” or “validity” of their beliefs may not. See generally William P. Marshall, Smith, Ballard, and the Religious Inquiry Exception to the Criminal Law, 44 Tex. Tech. L. Rev. 239 (2011). The same rule exists in Canada. See R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, 779-780.

sophistication, their beliefs need not be eloquently stated nor even internally consistent in

order to be sincere.52 Although inevitably some scam-artists will use freedom of religion as a

shield and get away with it, my view is that the actions of the fraudulent few should not be

used as a reason to deny the obvious sincerity of millions of believers whose spiritual lives

depart from the norm of institutional religion.

The Definition of Religion

It is a truism that a valid religious freedom claim requires a belief or act with a nexus

to “religion.” The related guarantees in the First Amendment of the U.S. Constitution,

Section 2(a) of the Canadian Charter, and Section 116 of the Australian Constitution all

make use of the term in articulating the scope of the proclaimed freedom.53 Even apart from

constitutional claims, significant social and statutory benefits are available for belief systems

classified by the government as “religious” in nature.54 However, the provision of such

constitutional protections and statutory advantages requires a legal articulation of what type

of beliefs count as religious. The requirement of a legal definition of religion is driven both

52 See, e.g., Thomas v. Review Board, 450 U.S. 707, 715 (1981). The Court has often stated that the “centrality” (importance) of a particular belief within an individual’s religion is not a relevant factor for consideration. See, e.g., Employment Division v. Smith, 494 U.S. 872, 886-87 (1990).53 See U.S. Const. Amend. 1 (“the free exercise of religion”); Can. Charter s. 2(a) (“freedom of conscience and religion”); Aus. Const. s. 116 (“the free exercise of any religion”). See, e.g., Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 576 (“In order to define religious freedom, we must first ask ourselves what we mean by ‘religion.’ . . . since only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected by the guarantee of freedom of religion”); Thomas v. Review Board, 450 U.S. 707, 713 (1981) (“Only beliefs rooted in religion are protected by the Free Exercise Clause, which, by its terms, gives special protection to the exercise of religion.”).54 See, e.g., Ian Ellis-Jones, ‘What is Religion?’ (2008) 13 Local Government Law Journal 168, 168 (“Many statutes, in particular rating and taxing statutes, providing . . . exemptions and concessions to religious bodies or religious institutions”); Stephen A. Kent, ‘New Religious Movements’ in W.E. Hewitt, ed., The Sociology of Religion: A Canadian Focus (Toronto: Butterworths, 1993) 95 (“Most religiously ideological groups want other social institutions and the public to see them as either morally normative . . . or as tolerably deviant. Morally normative groups have the greatest access to societal resources, which include benefits such as non-profit registration, the right to issue tax-receipts to contributors, social prestige for their leaders, and the right to make moral pronouncements along with such established Canadian groups such as the Roman Catholic, Anglican and United churches.”).

by fidelity to constitutional and statutory text, but also by the pragmatic recognition that if

anything and everything is considered religious then the government’s ability to provide

special protections and advantages will be undermined.55 Unfortunately, the task of

articulating an acceptable definition of “religion” has proven to be a vexing one for courts56

and anthropologists57 alike. In a recent case deciding that Scientology should be considered a

religion under English law, Lord Toulson of the UK Supreme Court wrote:

There has never been a universal legal definition of religion in English law, and experience across the common law world over many years has shown the pitfalls of attempting to attach a narrowly circumscribed meaning to the word. There are several reasons for this—the different contexts in which the issue may arise, the variety of world religions, developments of new religions and religious

55 Cf. Heins, above n. ___. at 158 (“Whether parties asserting religious status satisfy the constitutional definition of religion must be the first inquiry. It is preliminary, of course, to determining whether or not First Amendment protection attaches, but it also is necessary to preserve the integrity of religion and conscience as constitutional and moral categories. No matter how difficult and value laden the application of a present-day constitutional definition of religion may be, courts cannot avoid it”); Jared Clements, ‘Section 116 of the Australian Constitution and the Jurisprudential Pillars of Neutrality and Action-Belief Dichotomy’ (2008) 11 International Trade and Business Law Review 225, 264 (“the definition must not be so wide as to allow for the inclusion of non-religious philosophy or fraudulent claims of a religious disposition”). A classic case involving a “sham” or “parody” religion is United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968). Heins, above n. __, at 177, summarizes Kuch nicely: “The defendant’s claim, that her use of marijuana was religiously inspired by the tenets of the Neo-American Church, was defeated simply by enumerating the church’s polices and doctrines: the ministers were called ‘Boo Hoos’; the symbol was a three-eyed toad; the bulletin was the ‘Divine Toad Sweat’; the church key was a bottle opener; the official songs were ‘Puff the Magic Dragon’ and ‘Row, Row, Row Your Boat’; the motto was ‘Victory over Horseshit!’” Kuch was specifically cited as raising the need for judicial vigilance in all three of the opinions in Church of the New Faith v. Commission of Pay-Roll Tax, (1983) 154 C.LR. 120. See id. at 132 (per Mason, ACJ & Brennan, J.); id. at 151 (per Mason, J.); id. at 171 (per Wilson & Deane, JJ.). A more recent and well-known parody religion is Pastafarianism, also known as the Church of the Flying Spaghetti Monster. See Dan Vergano, ‘”Spaghetti Monster” is Noodling Around With Faith’ USA Today (27 March 2006). Such examples also demonstrate how a sincerity inquiry often merges with a definition inquiry.56 See, e.g., Thomas, 450 U.S. at 714 (“The determination of what is a ‘religious’ belief or practice is more often than not a difficult and delicate task”); Adelaide Company of Jehovah’s Witnesses v. Commonwealth, (1943) 67 C.L.R. 116, 123 (per Latham, CJ) (“It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world.”); Clements, above n ___, at 264 (“The High Court struggles with a number of diametrically opposed concepts when formulating a definition of ‘religion.’”); M. Elisabeth Bergeron, Note, ‘New Age’ or New Testament?: Toward a More Faithful Interpretation of ‘Religion’, 65 St. John’s L. Rev. 365, 366 (1991) (“The formulation of a workable definition particularly confronts the judiciary with an unyielding conundrum”). 57 See Morton Klass, Ordered Universes: Approaches to the Anthropology of Religion (Boulder: Westview Press, 1995) 8 (discussing enormous disagreement on what counts as “religion”).

practices, and developments in the common understanding of religion due to cultural changes in society.58

Nonetheless, courts in the United States, Canada, and Australia have articulated legal

definitions of religion.59 Given the complexity of the task, it is not surprising that those

definitions vary, sometimes in quite significant ways. The definitions provided have been the

subject of great controversy, and legal scholars have not been shy about adding their own

contributions to the debate.60 Two major approaches to defining religion can be found in the

relevant jurisprudence and scholarship: a functional approach and a content-based approach.61

A functional approach looks at the role a certain set of beliefs play in the lives of those who

adhere to them, and asks whether that role is akin to that played by traditional religious

beliefs in the lives of their adherents. In contrast, a content-based approach extracts certain

hallmarks or features that are widespread among beliefs commonly understood to be religious

in nature, and asks whether the set of beliefs in question share all or many of those features.

In United States v. Seeger,62 the United States Supreme Court adopted a functional

approach63 when asked to interpret a statute allowing for conscientious objection from

military service. The Universal Military Training and Service Act allowed for exemptions

from service for those opposed to all wars on the basis of “religious training and belief.”64

This phrase was then defined elsewhere in the statute as meaning “an individual’s belief in

58 R v Registrar General, [2013] UKSC 77. See generally, Lorenzo Zucca, ‘A New Legal Definition of Religion?’ (2014) 25 King’s Law Journal 5.59 The primary cases discussed in this context will be United States v. Seeger, 380 U.S. 163 (1965), Church of the New Faith v. Commission of Pay-Roll Tax, (1983) 154 C.L.R. 120, and Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551.60 There is an enormous legal literature on defining “religion” in the United States, and a smaller but significant one in Australia. The discussion here only skims the surface of the issue.61 Helpful discussion of the advantages and disadvantages of functional versus content-based approaches can be found in Bergeron, above n. ___, at 379-80 and Richard O. Frame, Belief in a Nonmaterial Reality—A Proposed First Amendment Definition of Religion, 1992 U. Ill L. Rev. 819, 832-37. See also Sadurski, above n. ___, at 835-836 (contrasting U.S. functional approach with Australian content-based approach).62 380 U.S. 163 (1965).63 A thorough discussion of the evolution of various definitions of religion in U.S. law is provided in Frame, above n. ___, at 822-31.64 See id. at 165.

relation to a Supreme Being involving duties superior to those arising from any human

relation, but (not including) essentially political, sociological, or philosophical views or a

merely personal moral code.”65 The Court was faced with the task of applying the definition

to would-be objectors who each held what might fairly be summarized as individually-

formulated and idiosyncratic religious beliefs that did not include the concept of “God” in a

traditional sense.66 Because lower courts had interpreted the statutory phrase “belief in

relation to a Supreme Being” narrowly, the defendants had been denied exemptions and

convicted of failure to report for service.67 The Supreme Court reversed the convictions,

however, by holding that the statutory language must be understood in a functional sense:

Within that phrase would come all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent. The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition.68

There are sound reasons to limit the weight of Seeger. First, the Court was engaged in

statutory, not constitutional, interpretation, and drew heavily on past versions of the statute

and Congressional reports and debates in reaching its conclusion.69 Second, a close reading

of the case indicates that the Court did not provide a functional definition for “religious

training and belief” (which might allow for a useful analogy to Free Exercise Clause claims),

but instead a functional definition for “belief in a relation to a Supreme Being[.]” Thus, the

Court was able to take it for granted that the appellants’ beliefs were both sincere and

65 Id.66 See id. at 166-69 (summarizing beliefs of objectors).67 See id.68 Id. at 176. See also, id. at 184 (“[T]he test is simple of application. It is essentially an objective one, namely, does the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?”). The Court relied heavily on contemporary theology in reaching a functional definition, and discussed the works of Paul Tillich, John Robinson, and others. See id. at 180-83.69 See id. at 173-81.

religious in nature, and only had to decide whether those beliefs were, for statutory purposes,

equivalent to a belief in a Supreme Being. In a sense, this creates a problem of recursion,

because an argument exists that the distinction between religious and other beliefs is still not

articulated clearly. In other words, Seeger establishes that the non-theistically religious fall

within the statutory definition; it does not answer the question of what it means to have

“religious” beliefs in the first place. Third, and crucially, the Court was able to take it for a

given that all of the defendants were sincere in their beliefs and articulated those beliefs in

self-professed religious terms.70 The more difficult issue simply did not arise for decision.

Despite these caveats, commentators and lower courts have taken Seeger to stand for

the general proposition that, for constitutional and other purposes, “religion” has a functional

definition in U.S. law.71 When a question arises about what “religion” means, Seeger is a

favourite starting point for analysis.

In order to balance what could be an extremely broad definition, scholars and judges

are also prone to quoting a passage from a Supreme Court case decided seven years after

Seeger. In Wisconsin v. Yoder,72 the Supreme Court ruled that Amish parents had a

constitutional right to withhold their children from otherwise-compulsory high school

courses. The Amish parents’ opposition to secondary schooling was clearly based on deeply-

held beliefs, and there was no question that those beliefs were sincere and religious in

nature.73 In upholding their claim, the Court noted in passing that non-religious beliefs would

not require the same accommodation:

70 See id. at 176 (“all of the parties here purport to base their objection on religious belief”).71 See Heins, above n. ___, at 175 (“This ultimate concern, or functional view of religion, is now generally accepted by commentators and by courts.”); Bergeron, above n. ___, at 371-72 (“In United States v. Seeger, the Court introduced the concept of ‘ultimate concern’ as the dispositive criterion for determining the existence of religious belief. . . . The test . . . manifests the Court’s understanding of religion, statutorily and constitutionally, as grounded in [Paul] Tillich’s expansive conception.”).72 406 U.S. 205 (1972).73 See id. at 209.

[T]o have the protection of the Religion Clauses, the claims must be rooted in religious belief. Although a determination of what is a ‘religious’ belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau’s choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.74

Although dicta in the purest sense, the passage from Yoder creates tension with the

functional test announced in Seeger.75 If Seeger tells us to take a broad view of religion as

encompassing beliefs that fulfil the same role in believers’ lives as traditionally-understood

religious beliefs play in the lives of their adherents, but Yoder tells us that, nonetheless,

“philosophical and personal rather than religious” beliefs fall outside this definition, there is

clear ambiguity. This is precisely the apparent paradox relied upon by the Fourth Circuit a

few years ago when it determined that the veritable smorgasbord of beliefs held by a fortune-

teller named Psychic Sophie were not religious in nature.76

One can fruitfully contrast the functional definition provided under U.S. law with the

content-based definition favoured by the High Court of Australia in the 1983 Church of the

New Faith decision.77 As with the more recent U.K. Supreme Court case, the issue in Church 74 Id. at 215-16.75 See Frame, above n. ___, at 831 (“On one hand are the Seeger and Welsh cases, which establish an extremely broad view of religion. . . . On the other hand is Yoder, stating that purely philosophical and personal beliefs, such as those of Thoreau, are not religious. Numerous commentators have proposed resolutions to this uncertainty.”). At least one court has concluded that no judicial definition of religion is appropriate, and that instead the sole question is whether the individual subjectively believes that their beliefs are religious in nature. See Watts v. Florida International University, 495 F.3d 1289, 1298 (11th Cir. 2007). This would effectively subsume the definition inquiry under the sincerity inquiry.76 See Moore-King v. Chesterfield, 708 F.3d 560, 571-72 (4th Cir. 2013). The decision of the Indiana Supreme Court, overturned in Thomas v. Review Board, 450 U.S. 707, 714-15 (1981) is another good example of this difficulty. 77 Church of the New Faith v. Commission of Pay-Roll Tax, (1983) 154 C.L.R. 120. As one of the leading cases in the area, Church of the New Faith has been discussed extensively in the Australian legal literature. See, e.g., Evans, above n. ___, at 48-53; Ellis-Jones, above n. ___ at 178-82; Clements, above n. ___, at 261-63; Lynne Hume, ‘Witchcraft and

of the New Faith was whether Scientology should be considered a religion.78 In three

separate opinions, five members of the Court proffered legal definitions of the word.79

Unhelpfully, no single view gained majority acceptance.

The first opinion, written by Acting Chief Justice Mason and Justice Brennan,

explicitly rejected the functional approach adopted in the United States, stating that such an

approach focussed on the questions raised by a set of beliefs rather than the answers they

proposed, thus improperly allowing room for self-professed non-religious doctrines with no

relationship to the divine or supernatural to fall under the definition.80 Instead, Mason and

Brennan proposed an apparently simple content-based test: “We would therefore hold that,

for the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural

Being, Thing, or Principle; and second, the acceptance of canons of conduct in order to give

effect to that belief[.]”81

A second opinion, written by Justices Wilson and Deane, favoured an approach that

involved a non-exclusive list of indicia of religion “derived by empirical observation of

accepted religions.”82 In discussing the list, the two stated that “[i]t is unlikely that a the Law in Australia’ 37 Journal of Church and State 135, 137-141. Several decades prior to Church of the New Faith, Chief Justice Latham noted in Adelaide Company of Jehovah’s Witnesses v. Commonwealth, (1943) 67 C.L.R. 116, that for the purposes of Section 116 the concept of “religion” could not be limited by “opinions in the community as to the truth of particular religious doctrines, as to the goodness of conduct prescribed by a particular religion, or as to the propriety of any particular religious observance.” See id. at 123. Indeed, although not prescribing a definition of religion per se, Latham’s approach was sensitive to needs of religious minorities by interpreting “religion” broadly enough to meet the wide variety of beliefs they might hold. See id. at 124.78 Church of the New Faith, above n. ___, at 128 (per Mason, ACJ & Brennan, J.). See also id. at 131 (“It is desirable to grant special leave in order to expound . . . a concept of religion appropriate to discriminate in law between what is a religion and what is not.”).79 See id.80 See id. at 139.81 Id. at 136. Mason and Brennan justified the first element by stating that “[f]aith in the supernatural, transcending reasoning about the natural order, is the stuff of religious belief.” Id. at 134. The second element was justified by stating that “[R]eligious belief is not by itself a religion. Religion is also concerned, at least to some extent, with a relationship between man and the supernatural order and with supernatural influence upon his life and conduct . . . [t]he canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself[, but] unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterized as religious.” Id. at 134-135.82Id. at 173 (per Wilson & Deane, JJ.)

collection of ideas and/or practices would properly be characterized as a religion if it lacked

all or most of them, or that, if all were plainly satisfied, what was claimed to be a religion

could properly be denied that description.”83 Five common characteristics of religion were

identified:

One of the more important indicia . . . is that the particular collection of ideas and/or practices involves belief in the supernatural, that is to say, belief that reality extends beyond that which is capable of perception by the senses. If that be absent, it is unlikely that one has a ‘religion’. Another is that the ideas related to man’s nature and place in the universe and his relation to things supernatural. A third is that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance. A fourth is that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups. A fifth . . . is that the adherents themselves see the collection of ideas and/or practices as constituting a religion.84

Justice Murphy, writing alone, offered the most inclusive definition of religion. He

rejected as “unacceptable” many of the criteria used by the Supreme Court of Victoria in

determining that Scientology was not a religion, including its commercial aspect, lack of

public acceptance, lack of a code of conduct, lack of consistency in beliefs, and willingness to

allow members to simultaneously be members of other faiths.85 Instead, Murphy stated that,

apart from obvious hoaxes, any group that professes to be religious should probably be

treated as such by the state:

The better approach is to state what is sufficient, even if not necessary, to bring a body which claims to be religious within the category. . . . On this approach, any body which claims to be religious, whose beliefs or practices are a revival of, or resemble, earlier cults, is religious. Any body which claims to be religious and to believe in a supernatural Being or Beings, whether physical and visible, such as the sun or the stars, or a physical invisible God or spirit, or an abstract God or entity, is religious. . . . Any body which claims to be religious, and offers a way to find meaning and purpose

83 Id. at 174.84 Id.85 See id. at 154-160 (per Murphy, J.).

in life, is religious. The list is not exhaustive; the categories of religion are not closed.86

The legacy of the three opinions in the Church of the New Faith case is unclear.87

Carolyn Evans states that the two-part Mason-Brennan test “is the one that has most

commonly been taken up in other legal contexts in which a definition of religion has been

required”88 and has become “the de facto definition for ‘religion’” when it comes to statutory

definition.89 In the recent English Scientology case, the multiple-indicia approach of Wilson

and Deane was favoured,90 reflecting the modern legal tendency to eschew bright-line “tests”

in favour of contextual analyses where various factors can be weighed. Justice Murphy’s

liberal approach is arguably the best suited to an age of tremendous religious diversity and

innovation, and one of the examples he provides is probably the most analogous to the issues

discussed in this paper: “if a few followers of astrology were to found an institution based on

the belief that their destinies were influenced or controlled by the stars, and that astrologers

86 Id. at 151. With its emphasis on religious self-identification, Murphy’s approach evokes a statement by the U.S. Supreme Court in Seeger, 380 U.S. at 184: “[I]t must be remembered that in resolving these exemption problems one deals with the beliefs of different individuals who will articulate them in a multitude of ways. In such an intensely personal area, of course, the claim of the registrant that his belief is an essential part of a religious faith must be given great weight.” A possible critique of Murphy’s approach is that surely some belief systems are religious in nature even if those professing that belief deny the fact. Wojciech Sadurski makes the point that a constitutional definition of religion made in a free exercise context will affect the powers of government in a non-establishment context. See Sadjurski, above n ___, at 834-35. One might raise the example of creationism or abstinence-only education in public schools. See, e.g., Kent, above n. ___, at 95 (“Occasionally, an ideological group will attempt to gain normative status by denying its religious nature . . . and instead insist that its teachings are scientific.”). One could perhaps avoid this problem by stating that self-identification is sufficient for legal recognition of religion, but not necessary.87 There is thus an irony insofar as the Court granted special leave to hear the case because “[t]he differing approaches of the judgments in the Full Court . . . manifest the need for an authoritative Australian exposition of the concept of religion.” Church of the New Faith, above n. ___, at 131 (per Mason, ACJ & Brennan, J.).88 Evans, above n. ___, at 53.89 Id. at 63.90 See R. v. Registrar General, [2013] UKSC 77, para. 57. See also, Zucca, above n. ___, at 5-6 (“[Lord Toulson] followed Wilson and Deane JJ of the High Court of Australia who suggested that at best a judge can formulate a set of guidelines, the important of which will have to be evaluated in the cultural context and on a case-by-case basis. A description is meant to be informative, but it cannot be used as a stringent legal test.”). Clements, above n. ___, at 264, also supports the indicia approach because it “gives the court wide enough scope to address the changing nature of ‘religion’ but also a discretion to deny fraudulent or insufficient claims of a religious character.”

can, by reading the stars, divine these destinies, and if it claimed to be religious, it would be a

religious institution.”91

An important element of both the Mason-Brennan test and the Wilson-Deane indicia

is whether the belief system involves the “supernatural.” As Wojciech Sadurski notes, “so

much hinges upon the concept of ‘supernatural’ in the Church of the New Faith case as the

test for discriminating between religious and non-religious beliefs, that we must have some

degree of clarity about what it means.”92 Sadurski suggests that the term as used in the case

“encompasses two related philosophical notions: a metaphysical concept of the

transcendental order, transcending the bounds of individuals and of the physical world, and

an epistemological concept of non-empirical (or extraempirical) cognition, available to

humans by means other than through the mediation of our senses and reason.”93 Sadurski

criticizes reliance on the concept of the “supernatural,” noting that many of the theologians

and belief systems embraced by a functional approach might fall outside its ambit.94

Turning to Canadian law, the Supreme Court of Canada has never squarely faced the

question of what constitutes a religion. The leading attempt, although dicta, comes from the

Court’s 2004 decision in Syndicat Northcrest:95

91 Church of the New Faith, above n. ___, at 151 (per Murphy, J.).92 Sadurski, above n. ___, at 837. See also, Ellis-Jones, above n. __, at 182 (“in the Church of the New Faith case four of the five High Court judges required, or at least strongly asserted the need for, a belief in the existence of a supernatural being and/or belief in the supernatural in order for there to be a ‘religion.’”).93 Sadurski, above n. ___, at 387.94 See id. at 837-39 (referencing the beliefs of Paul Tillich, John Robinson, and Vedantic Brahmanism). See also, Ellils-Jones, above n. ___, at 182 (“The definition does not readily accommodate a number of important belief systems that are generally regarded as being religious belief systems, even though they do not involve any notion of the supernatural in the sense in which the word is ordinarily understood.”). In R. v. Registrar General, [2013] UKSC 77, Lord Toulson also explicitly declined to apply the term “supernatural” in his analysis, stating that “it is a loaded word which can carry a variety of connotations.” Ibid. at para. 57. Nonetheless, he arguably embraced the same concept under the different label of “spiritual or non-secular.” Ibid. The natural-supernatural distinction can also be criticized from an anthropological perspective. See Klass, above n. __, at 27-28.95 Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551. Strictly speaking, the discussion is dicta as there was no live issue as to the religious nature of the appellants’ religion, Orthodox Judaism. There was an issue as to whether the appellants’ course of action was motivated by a sincere interpretation of religious tenets, and that issue was resolved in their favour. See id. at 589.

Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.96

Arguably, this definition contains elements of both a functional and a content-based

approach. In noting that the definition “is consistent with a personal or subjective conception

of freedom of religion, one that is integrally linked with an individual’s self-definition and

fulfilment and is a function of personal autonomy and choice,”97 the Court echoes somewhat

the role approach taken by the U.S. Supreme Court in Seeger. On the other, the repeated

reference that protected beliefs must be “spiritual” in nature or pertaining to the “divine”

might be seen as analogous to the requirement stated in some of the Church of the New Faith

opinions that religion requires belief in the “supernatural.”98

“Religion is one of those words people tend to feel they know the meaning of until it

comes to providing a precise definition that covers all cases of what one wants to call

religion, excluding everything else. Then it can be surprisingly difficult to define[.]”99

Nonetheless, jurists continue to strive to define the slippery concept of religion and their

96 Id. at 576. Lower courts since have relied on Amselem as the key Supreme Court of Canada precedent on the meaning of religion. See, e.g., Bennett v. Canada (AG), 2011 FC 1310 at ¶¶ 50-57, reversed by 2013 FCA 161; R. v. Karaghani, (2011) 268 C.C.C. (3d) 51 (F.C.A.) at ¶¶ 168-177.97 Amselem, above n. ___, at 577.98 In a recent book on freedom of religion in Canada, one scholar argues that “[t]his definition relates to monotheistic faiths such as Judaism, Islam, Sikhism, Baha’i, and Christianity. It is not inclusive of Aboriginal spirituality, polytheistic religions such as Hindusim, or non-theistic religions such as Buddhism.” Janet Epp Buckingham, Fighting Over God: A Legal and Political History of Religious Freedom in Canada 24 (McGill-Queen’s University Press, 2014). It is not clear to me why this would be so. Although the reference to “a particular and comprehensive system of faith and worship” in the Amselem definition could be problematic for faiths that are more “spiritual” and less “religious” in nature, nothing in the definition seems to require a particularly monotheistic understanding of religion.99 Robert S. Ellwood & Gregory D. Alles, eds., The Encyclopedia of World Religions 295 (Facts on File, Inc. 1998).

efforts must be grappled with in order to determine whether individual spirituality will be

protected by religious freedom guarantees.

One issue is that (whether or not it should be relevant) courts and legislatures often pay

particular attention to whether an individual’s beliefs are shared by a like-minded community

of believers that that individual associates with. In this vein, Ian Barbour writes that “[a]

religious tradition is not just a set of intellectual beliefs or abstract ideas. It is a way of life

for its members. Every religious community has its distinctive forms of individual

experience, communal ritual, and ethical concerns.”100 For example, the statutory exemptions

from fortune-telling laws in most American statutes only applied to individuals who were

members in good standing of incorporated religious associations.101 Spiritualism, an

organized institutional faith that has existed for over a century and includes temples, tenets,

and regular worship services, now fits very clearly into most judges’ ideas (and most legal

definitions) of a “religion,” and activities done under its auspices will likely satisfy this

aspect of the three-part test of freedom of religion. But an SBNR who draws inspiration

from, for example, so-called New Age beliefs will be in a far different situation:

A major difficulty with understanding New Age is that it does not conform to traditionally understood forms of religious organization. It is neither church, sect, cult nor denomination. While the various forms of established religious models may apply to particular groups or organizations that identify with the movement, they remain unsuitable for describing the movement as a whole. . . . There is no list of New Age creeds and no registrar of membership.102

We generally think of freedom of religion as both an individual right and an

associational one: it is an individual right in that it allows each person to manifest their

innermost conscience through outward words and actions, and it is an associational right in

that it allows believers to come together openly and worship publicly. One of the oft-ignored

implications of different judicial definitions of religion is the way they can implicitly skew

100 Ian G. Barbour, Religion and Science: Historical and Contemporary Issues (HarperCollins, 1997) at xiii.101 See pp. ___- ___ above.102 York, above n. __, at 308.

the right towards individualistic or associational understandings. The U.S. Supreme Court’s

definition in Seeger, for example, was strongly individualistic as it dealt with whether an

individual’s beliefs functioned subjectively as religion in that person’s life; meanwhile, the

“empirically derived” indicia of religion developed by Justices Wilson and Deane in the

Australian Church of the New Faith case included multiple factors leaning towards the

associational dimension, such as whether adherents of the belief formed an identifiable group

and considered themselves a religion.103 Whether the idiosyncratic spiritual beliefs of an

individual are considered “religious” in any given case may depend on whether the test

applied is rooted in institutional, associational understandings of religion or whether it has

been given a more expansive interpretation. It is easy for lawmakers and judges to recognize

a “church” when they see one; it is far harder for them to understand a loose “movement” like

New Age or, even harder still, a purely idiosyncratic set of “spiritual but not religious” beliefs

like that adopted by many who have distanced themselves from organized religion.

A related issue of importance involves the way in which a person has come to adopt a

set of beliefs. Judicial understandings of freedom of religion evolved in a context wherein

religion consisted of tenets handed down through generations of believers and then

formalized by governing bodies into articles of faith. Although subtle doctrinal differences

might not be grasped by lay worshippers, the core principles of a faith are widely shared by

its membership. Indeed, the defining characteristic of many religions is the adoption of a

particular belief or set of beliefs: we assume, for example (unless shown otherwise in a

particular case), that Catholics believe in the doctrine of apostolic succession, and that

Seventh-Day Adventists believe that Saturday is the Sabbath. These formalized, commonly-

held beliefs are usually widely accessible to outsiders, as most religions are quite happy to

share their beliefs with others. When a judge looks upon a religious freedom claimant from a

mainstream faith, it is easy for the judge to see that the beliefs in question are not just that 103 See above pp. ___.

person’s beliefs, they are the beliefs of an entire body of believers that have been handed

down through a traceable institutional legacy. And for mainstream religion, the common

assumption is that membership is a sort of “package deal”: believers do not get to choose

some tenets of the faith and discard others based on personal preference. This “all in” style

of believing and belonging can give judges assurance that a person is “bound” by the tenets

of their religion and have not cynically adopted a particular one as a litigation strategy.

All of these common societal and judicial assumptions are thrown out the window

when the beliefs of adherents of the New Age and the self-described “spiritual but not

religious” come under examination. As one scholar writes,

Most of these spiritual philosophies aren’t very systematic, but instead appear as a patchwork of ideas eclectically assembled from a variety of disparate sources. Whereas most religious writings utilize vocabulary created by centuries of shared theological tradition, unchurched traditions are more idiosyncratic and tend to imitate faddish trends in popular culture.104

Another explains:

The fluid organization or even non-organization of New Age makes it actually more of a consumer phenomenon than anything that could be understood as traditionally religious. It is, in fact, this non-institutional nature and marketing choice of New Age that appears to be its underlying appeal. The New Age is a spiritual consumer supermarket that . . . affirm[s] and celebrat[es] free spiritual choice.105

The beliefs of SBNRs have not been formalized by any governing body, cannot be

uniformly traced to a particular historical tradition, may appear immature or unsophisticated,

and might be “swapped out” for other beliefs with some frequency. To adapt an oft-repeated

analogy, if religion were food then traditional churchgoers order the “combo meal” from the

same restaurant every time, whereas SBNRs prefer buffets and frequently change restaurants.

Often, discussions of the difference between adherents of traditional religions and SBNRs

carry implied (and sometimes explicit) criticisms of the latter group as shallow, narcissistic,

104 Fuller, above n. __, at 161.105 York, above n. __, at 309.

and flighty. We should resist this lazy urge to stereotype since it is a manifestation of

religious bias on “how believers should act” and serves to obscure more important issues.106

Let us move from the abstract to the concrete with a discussion of the case of Psychic

Sophie. Psychic Sophie (Patricia Moore-King) is a self-described spiritual counsellor in

Pennsylvania.107 As her activities were defined as “fortune-telling” under a county ordinance,

she was required to obtain a business license which involved (1) the payment of a $ 300 fee

and (2) approval from the chief of police, which, because fortune-telling was a “regulated

occupation and service”, required a criminal background check.108 Psychic Sophie refused to

obtain the license, and instead challenged the constitutionality of the county ordinance as

imposing an undue burden on her freedom of religion.109 Both a federal district court and the

Fourth Circuit Court of Appeals dismissed her challenge, finding that her beliefs, although

sincere, were not religious for the purposes of the Free Exercise Clause.110

Before going further, it is reasonable to stop for a moment and ask: why do we care

about this case? Does it really matter if a fortune-teller in Pennsylvania does or does not

have to get a business licence? The answer is that it matters because the judicial reasoning

demonstrated in Moore-King could be transplanted to a host of other contexts and used as the

basis for rejecting claims by the “spiritual but not religious” that their beliefs are worthy of

protection. Psychic Sophie, whose individual and idiosyncratic set of beliefs are drawn from

a wide range of sources including New Age, the Kabbalah, quantum physics, Christianity,

astrology, and much more, can be thought of as a stand-in for the typical SBNR. Given the

large and increasing percentage of people in the West who identify as SBNRs, decisions like

106 In her recent excellent book on the topic, which was written after interviews with over 100 self-described SBNRs, Linda Mercadante shows that the vast majority are serious, conscientious seekers of spiritual truth. See Mercadante, above n. ___.107 See Moore-King v. County of Chesterfield, 708 F.3d 560 (2013).108 See ibid. at 563-64.109 See ibid. at 564-65.110 See ibid. at 572; Moore-King v. County of Chesterfield, 819 F.Supp.2d 604 (E.D. Va. 2011).

the one made in Moore-King could have significant implications for both “spiritual

counsellors” specifically and SBNRs more generally.

The judicial reasoning used to deny Psychic Sophie’s freedom of religion claim can

be summarized quickly. First, the crucial passage of the district court’s opinion:

In this case, Psychic Sophie states on her website: “I am very spiritual in nature, yet I do not follow particular religions or practices, and ‘organized’ anythings are not for me. I pretty much go with my own inner flow, and that seems to work best.” Although that statement leaves room for interpretation, one thing seems clear—Moore-King follows no religion. It is not as if she claims the mantle of Buddhism, but engages in practices in the name of Buddhism that no other Buddhist believes central to the religion. It is as if she is Lutheran one day, Buddhist the next, and an ad hoc spiritualist the day following—only, on any given day, she may be all three at once, or none at all. . . . Indeed, the sheer number and variety of interests that Moore-King invokes casts serious doubts upon her claim to religion. . . . Such a panoramic potpourri of spiritual and secular interests does not appear to add up to a religion that can be manifested in practice. This eclectic mix comprises an overall lifestyle, not a belief system parallel to that of God in a traditional religion.111

Similarly, the Fourth Circuit wrote:

Cognizant that defining the borders between the personal and philosophical on one side, and the religious on the other “present[s] a most delicate question,” we conclude that Moore-King’s beliefs more closely resemble personal and philosophical choices consistent with a way of life, not deep religious convictions shared by an organized group deserving of constitutional solicitude. Yoder teaches that Moore-King must offer some organizing principle or authority other than herself that prescribes her religious convictions, as to allow otherwise would threaten “the very concept of ordered liberty.” Yet Moore-King forswears such a view when she declares that instead of following any particular religion or organized religious faith, she “pretty much goes with [her] inner flow, and that seems to work best.” That a wide variety of sources—the New Age movement, the teachings of Jesus, natural healing, the study of metaphysics, etc.—inform and shape Moore-King’s “inner flow” does not transform her personal philosophical beliefs into a religion any more than did Thoreau’s commitment to Transcendentalism and idealist philosophy render his views religious.112

Moore-King reflects the tension in American law between cases like Seeger on the

one hand (which offers a functionalist definition of religion, which Psychic Sophie’s beliefs

seem to fill in her life) and warnings from cases like Yoder that not every deeply-felt belief

111 Moore-King, 819 F.Supp.2d at 622-23 (emphasis in original).112 Moore-King, 708 F.3d at 571 (first two quotations from Yoder).

should be considered “religious” for the purposes of freedom of religion. The crux of the

reasoning here, although drawn from U.S. Supreme Court authorities, reflects a dilemma that

is an inescapable part of constitutional guarantees of freedom of religion worldwide: how to

protect and value the demands of conscience while, simultaneously, not allowing believers to

become a “law unto themselves.”

Would Psychic Sophie fare any better elsewhere? The answer is a frustrating one: it

is unclear.

The Canadian definition of “religion” in Syndicat Northcrest contains some elements

that would militate against finding that SBNR beliefs are religious beliefs (“religion typically

involves a particular and comprehensive system of faith and worship”) and some language

that would support the opposite conclusion (“religion is about freely and deeply held personal

convictions or beliefs connected to an individual’s spiritual faith and integrally linked to

one’s self-definition and spiritual fulfilment”).

The definitions offered in the Australian Church of the New Faith case are likewise

unhelpful. Under the two-part Mason/Brennan test, SBNR beliefs would satisfy the first

prong (“belief in a supernatural Being, Thing, or Principle”) but potentially falter under the

second prong (“acceptance of canons of conduct in order to give effect to that belief”)

depending on how strictly “canons of conduct” was interpreted. If “canons of conduct” are

externally-imposed, hierarchically-evaluated rules, then SBNR beliefs would fail. But, if

“canons of conduct” can include self-imposed, self-evaluated rules, then SBNR beliefs would

meet the definition. Under the Wilson/Deane multi-factor test, SBNR beliefs clearly do

include a “collection of ideas and/or practices involve[ing] belief in the supernatural” and that

the ideas are “related to man’s nature and place in the universe and his relation to things

supernatural.” However, as under the Mason/Brennan test, it is unclear whether SBNR

beliefs would satisfy the “standards or codes of conduct” factor, and the fourth and fifth listed

factors, involving “adherents . . . constitute[ing] an identifiable group” and “the adherents

themselves see[ing] the collection of ideas and/or practices as constituting a religion” may be

the ones most unlikely for SBNR people to satisfy. Only under Justice Murphy’s expansive

definition would someone like Psychic Sophie’s beliefs definitely be found to be religious in

nature. As the legal literature exhaustively indicates, the limitations of judicial “definitions”

of religion quickly become apparent when applied in concrete cases.

In an important recent paper, legal scholar Mark Movsesian discusses the Psychic

Sophie case and whether SBNRs (which he refers to as “Nones” based upon how they’re

usually categorized in surveys) should be included under the umbrella of freedom of

religion.113 Movsesian quite adroitly presents the arguments both for and against inclusion.

On the “pro” side, he lists the foundational principle of state neutrality in matters of religion,

the need to prevent discrimination against new and numerically inferior faiths, and societal

commitment to respect individual believers and their beliefs.114 Movsesian writes:

To prevent a believer from exercising his religion thus injuries him in a profound way. And the injury occurs whether the believer is part of an organized faith tradition or, like Psychic Sophie, an individual practitioner. For a None, following one’s inner flow might be equally as compelling, equally as essential to integrity and self-respect, as a Catholic’s conforming to the magisterium of the Church.115

On the other hand, he notes that the conventional meaning of the word “religion” has

a shared, communal dimension and not a purely individualistic one, that SBNR beliefs are far

more difficult to assess for sincerity and seriousness than traditional religious beliefs, and that

courts could be pressed to offer exemptions in circumstances that devalue societal respect for

freedom of religion overall.116 Movsesian explains:

[T]he liberal state protects religious exercise in part out of respect for the dignity and happiness of individual believers. Religious commitments are often crucial to a believer’s sense of himself and the world, and the state wishes to avoid the

113 See Movsesian above, n. ___.114 See ibid. at 10-12.115 Ibid. at 12.116 See ibid. at 12-16.

psychological damage that may occur if it forces the believer to choose between his religious commitments and civic obligations. This assumes, though, that the believer’s commitments are sincere and serious. . . . People cannot expect to receive exemptions on the basis of each passing whim. . . . A sole religious practitioner like Psychic Sophie may be sincere . . . But how is one to know, really, whether she is following her inner flow, as she says, or simply seeking to escape county zoning and licensing rules? And what if her inner flow were to change direction tomorrow?117

My view is that, although there are risks to including the beliefs of SBNRs as

“religious” for the purpose of constitutional guarantees of freedom of religion, those risks

must be taken. The liberal commitment to fundamental rights demands that we give SBNRs

the benefit of the doubt and acknowledge and protect their beliefs in the same way and to the

same extent as more conventional religious beliefs. Rights like freedom of religion should be

offered in a generous spirit, not a begrudging one, and our understanding of the nature and

scope of rights is necessarily an evolving one. To “lock in” freedom of religion as only

applying to conventional organized religions means that the right will gradually lose

importance if demographic trends continue on their present course, and this would do a

serious disservice to the millions of sincere, even if unorthodox, believers in a spiritual

dimension to humanity. Because judicial systems move slowly and on a case-by-case basis,

the system will have time to recognize and ameliorate any problems that manifest from

allowing the “spiritual but not religious” to find shelter under the umbrella of freedom of

religion.

Balancing

The concept of freedom of religion can be usefully divided into two aspects: freedom

to believe, and the freedom to act on those beliefs. The former can be understood of as an

absolute right: one’s inner thoughts are as sacrosanct as any interest protected by law. The

latter, however, inevitably comes into conflict with other values and goals promoted by the

117 Ibid. 15.

state. Thus, the free exercise of religion is a right that, formally or in practice, is often

balanced against other government interests. When courts are faced with a demand to

enforce a religious guarantee, they inevitably, if not openly, ask “but at what cost?” This

delicate balancing of rights against legitimate state ends underlies the modern approach to

rights protection reflected in international law118 and constitutions enacted in recent decades

such as that of Canada119 and South Africa.120 Countries with older rights guarantees, such as

the United States and Australia, do not have explicit constitutional directions to balance

religious freedom rights with other government interests, but courts in each country still do so

in particular legal contexts.

In Canada, the formal legal framework for determining if the right to religious

freedom has been infringed is straightforward. The first question is whether the state is

responsible for burdening an individual’s freedom of religion in a way that is not “trivial or

insubstantial.”121 In its first major articulation of the right to freedom of religion under the

Charter, the Supreme Court of Canada in R. v. Big M Drug Mart122 provided an expansive

articulation of how freedom of religion could be infringed by state action:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or

118 See, e.g., International Covenant on Civil and Political Rights Art. 18(3) (“Freedom to manifest one’s religions or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights or freedoms of others.”); Universal Declaration of Human Rights Art. 29(2) (“In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”).119 See Canadian Charter of Rights and Freedoms s. 1 (guaranteeing rights “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”)120 See Constitution of the Republic of South Africa s. 36(1) (“the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including . . .”).121 See, e.g., Alberta v. Hutterian Brethren, [2009] 2 S.C.R. 567, 587 (stating that “’trivial’ or insubstantial’ interference is interference that does not threaten actual religious beliefs or conduct.”)122 [1985] 1 S.C.R. 295.

reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that. Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state . . . to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. . . . Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, [it] includes indirect forms of control which determine or limit alternative courses of conduct available to others.123

The Court uses, interchangeably, the terms “coercion,” “interference,” and “burdens”

on religious practice interchangeably124 and broadly125 as forming the trigger for shifting

responsibility to the government to justify its actions under Section 1 of the Charter, which

guarantees rights “subject only to such reasonable limits prescribed by law as can be

demonstrably justified in a free and democratic society.”126 The onus on the government to

show that its restriction of an individual’s right to religious freedom is a “reasonable limit”

under Section 1 requires two demonstrations: first, that the government has a “pressing and

substantial objective” in enacting the law or taking the action that restricts the right; second,

that the severity of the restriction is proportional to the importance of that objective.127

Although the formal framework is simple, the balancing process can be complex and

divisive in practice because it requires difficult judgments to be made about the importance of

government objectives, the availability of alternative policies, and the severity of burdens

posed to religious practice. For example, the Court unanimously upheld the right of a young

Sikh boy to carry a kirpan (ceremonial dagger) to school, despite the government’s strenuous

123 Ibid. at 336-37.124 See ibid. (“coercion”), Alberta v. Hutterian Brethren, above n. ___, at 587 (“interfer[ence]”); R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, 758 (“burdens”).125 See Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, para. 72-73 (“a broad interpretation of the right has been preferred, leaving competing rights to be reconciled under s. 1 analysis elaborated in [Oakes]”). 126 Canadian Charter of Rights and Freedoms s. 1.127 R. v. Oakes, [1986] 1 S.C.R. 103. The proportionality inquiry has been further divided into three parts. See Buckingham, above n. ___, at 22; Mike Madden, ‘Second Among Equals? Understanding the Short Shrift that Freedom of Religion is Receiving in Canadian Jurisprudence, 7 J.L. & Equality 55, 62-63 (2010).

arguments that doing so would threaten school safety;128 but in another case it split 4-3 in

holding that the government’s desire to prevent identity theft was sufficient to outweigh a

Hutterite’s refusal to have a photograph of his face on his driver’s license.129 The fact-

intensive nature of the cases can mean it is still difficult to predict how the competing claims

of citizen and state will be resolved within the settled balancing framework.

The legal framework in the United States is far more complicated. Between 1963 and

1990, the Supreme Court applied a form of balancing test similar in nature to that expressed

in Section 1 of the Canadian Charter: a substantial burden on an individual’s free exercise of

religion was unconstitutional unless the government proved it had a compelling interest and

chose the least intrusive method reasonably available to achieve that interest.130 To use an

example already mentioned, in the 1972 case of Wisconsin v. Yoder,131 the Court held that the

State of Wisconsin’s “interest in universal education” was not “of sufficient magnitude to

override” an Amish community’s rejection of high school education for their children due to

religious precepts, especially as the community prepared them for adulthood through other

means.132 “The values underlying [freedom of religion],” the Court said, “have been

zealously protected [in our constitutional tradition], sometimes even at the expense of other

interests of admittedly high social importance.”133

In 1990, this doctrine was upended when the Court, in a case called Employment

Division v. Smith,134 held that the Constitution’s guarantee of free exercise of religion did not

apply to “valid and neutral laws of general applicability.”135 That is, under the new standard,

unless a religious group or religious practice was intentionally targeted by legislation, there

128 Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256.129 Alberta v. Hutterian Brethren, [2009] 2 S.C.R. 567. Madden, above n. ___, criticizes this decision at 67-75.130 See Sherbert v. Verner, 374 U.S. 398 (1963).131 406 U.S. 205 (1972).132 Id. at 214, 215.133 Id. at 215.134 494 U.S. 872 (1990).135 See id.

would be no need to apply the former “compelling interest” test.136 However, this broad rule

quickly became littered with exceptions. Cases involving freedom of religion along with

another constitutional right (so-called “hybrid” cases)137 are still subject to the compelling

interest test, as are legislative schemes that already provide for individual exemptions.138

Some States continue to interpret the freedom of religion guarantees in their own

constitutions as demanding the higher standard.139 Internal church decision-making is

protected more stringently than “regulation of only outward physical acts[.]”140 Perhaps most

importantly, Federal legislation, the Religious Freedom Restoration Act,141 mandates the

compelling interest test for burdens on religious freedom caused by the Federal

government.142 For our present purposes, the combination of the general rule with the

exceptions means that generalizing about whether divergent belief systems are protected by

religious freedom guarantees in the United States is difficult.

The situation in Australia is much clearer, albeit in a distressing way for rights

advocates. High Court jurisprudence has gutted the Australian Constitution’s guarantee of

religious freedom by interpreting the provision to apply only if the Federal Parliament were 136 A good example of a case where the Supreme Court, post-Smith, did find that legislation targeted a religious group and was thus subject to the compelling interest test is Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), in which a city ordinance prohibiting ritual animal slaughter was held to have been targeted specifically at local practitioners of Santeria.137 See Employment Division v. Smith, 494 U.S. 872, 881 (1990). See generally, Hope Lu, Comment, Addressing the Hybrid-Rights Exception: How the Colorable-Plus Approach Can Revive the Free Exercise Clause, 63 Case Western Reserve L. Rev. 257 (2012).138 Smith, 494 U.S. at 883-84. See generally, Richard F. Duncan, Free Exercise and Individualized Exemptions: Herein of Smith, Sherbert, Hogwarts, and Religious Liberty, 83 Nebraska Law Review 1178 (2005).139 See Christine M. Durham, ‘What Goes Around Comes Around: The New Relevancy of State Constitution Religion Clauses’ 38 Valparaiso University Law Review 353, 366 (2004) (stating that at least ten American states have interpreted their own constitutions as providing higher levels of protection than the Smith test). See also, Paul Benjamin Linton, ‘Religious Freedom Claims and Defenses Under State Constitutions’ (June 20, 2013) (unpublished manuscript) available at: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2282787 > (state-by-state analysis). 140 See Hosanna-Tabor v. EEOC, 132 S.Ct. 694, 707 (2012).141 42 U.S.C. § 2000bb et seq.142 The Supreme Court has explained that “the Religious Freedom Restoration Act of 1993 . . . prohibits the Federal Government from substantially burdening a person’s exercise of religion, unless the Government ‘demonstrates that application of the burden to the person’ represents the least restrictive means of advancing a compelling interest.” Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 423 (2006).

to pass a law with the specific purpose of infringing an individual or group’s free exercise of

religion.143 This is purely a symbolic guarantee, as the Court has never found legislation to

have such a purpose, Parliament lacks constitutional power to pass legislation of that type in

the first place, and, if it did, presumably only a tone-deaf legislature would fail to effectively

articulate some sort of otherwise legitimate purpose for the law. Regardless, under this

doctrine, there is no constitutional context in which religious freedom rights are to be

balanced against legitimate government interests.

It may be worth noting, nonetheless, that there are some non-constitutional

protections for religionists in Australia in certain contexts. Most Australian jurisdictions

have religious discrimination laws applicable to government (as well as private) employers,

and some of these legislative schemes require the balancing approach of a reasonable

accommodation inquiry.144 In addition, the State of Victoria and the Australian Capital

Territory have statutory charters of rights that include religious freedom and a balancing

143 See Kruger v. Commonwealth, (1997) 190 C.L.R. 1. See, e.g., Clements, above n. ___, at 269-70; Evans, above n. ___, at 76-77; Mortensen, above n. __, at 175-77. This Cyclopsian focus on legislative purpose can be traced to the State Aid case. See AG (Victoria) v. Commonwealth, (1981) 146 CLR 559. Some earlier religious freedom case law arguably did incorporate notions of balancing, albeit in dicta. See Adelaide Company of Jehovah’s Witnesses v. Commonwealth, (1943) 67 CLR 116, 131 (per Latham, CJ) (“There is . . . full legal justification for adopting in Australia an interpretation of s. 116 which . . . leaves it to the court to determine whether a particular law is an undue infringement of religious freedom. It is possible, however . . . to decide the present case upon a narrower principle which escapes the criticisms to which that interpretation may be open.”); ibid. at 149-50 (per Rich, J.) (“The peace, good government and order of the Commonwealth may be protected at the same time as the freedom of religion is safeguarded. Freedom of religion is not absolute. It is subject to powers and restrictions of government essential to the preservation of the community. . . . Any competition between governmental powers and liberty under the Constitution can be reconciled and made compatible.”); ibid. at 155 (per Starke, J.) (“[T[he liberty and freedom of religion guaranteed and protected by the Constitution is subject to limitations which it is the function and duty of the courts of law to expound. And those limitations are such as are reasonably necessary for the protection of the community and in the interests of social order.”).144 See Mortensen, ‘Unfinished’, above n. ___, at 191; Reid Mortensen, ‘Rendering to God and Caesar: Religion in Australian Discrimination Law’ (1994-1995) 18 U.Q.L.J. 208, 213-14 [hereafter, Mortensen, ‘Rendering’].

process.145 The Victorian Charter, for example, echoes Section 1 of the Canadian Charter of

Rights and Freedoms by stating:

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including (a) the nature of the right; and (b) the importance of the purpose of the limitation; and (c) the nature and extent of the limitation; and (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.146

Neither of these two charters are entrenched and neither cannot directly invalidate

legislation, but they do place some pre- and post- enactment requirements on the legislative

branch to consider whether bills are in conformity with the charter,147 and they instruct courts

to interpret ambiguous legislation with a conscious regard for the civil liberties provided.148

Applying the Balancing Test

It is vital to remember that for the purposes of religious freedom, the word “burden” is

best thought of as akin to “interference” or “hindrance”, and does not have to rise to the level

of an absolute restriction. In other words, laws that make the exercise of religious beliefs

more expensive, time-consuming, frustrating, and so forth can be burdens for religious

freedom purposes even if those laws do not constitute a total ban. Courts rarely apply the

145 See Victoria, Charter of Human Rights and Responsibilities Act 2006; Australian Capital Territory, Human Rights Act 2004. See generally, Mortensen, ‘Unfinished’, above n. ___, at 179-183 (discussing ACT act); Simon Evans & Carolyn Evans, ‘Legal redress under the Victorian Charter of Human Rights and Responsibilities’ (2006) 17 Pub. L. Rev. 264.146 Victoria, Charter of Human Rights and Responsibilities Act 2006 s. 7(2). A similar limitations clause is in Australian Capital Territory, Human Rights Act 2004 s. 28.147 Each Charter requires pre-enactment scrutiny by the legislature and allows for judicial declarations of incompatibility which then require a written response from the legislature or relevant minister. See Mortensen, ‘Unfinished’, above n. ___, at 182-83 (ACT) and Evans & Evans, above n. ___, at 270-71 (Victoria).148 See Australian Capital Territory, Human Rights Act 2004 s. 30; Victoria, Charter of Human Rights and Responsibilities Act 2006 s. 32.

exception for “trivial or insubstantial” burdens (in Canadian terms)149 in a broad way: after

all, a petitioner would have had to already show some sort of injury or special interest in the

issue to satisfy judicial tests of “standing” that are operative in each of the three countries

evaluated in this paper.

A particular issue faced by SBNRs under this test is that, because their beliefs are

often perceived as lightly chosen and easily changed, courts may conclude that a legal

restriction isn’t really burdening the individual at all. For example, courts sometimes

(erroneously) apply the burden test as if only the exercise of religious activities “mandated”

or “required” by an individual’s religion were protected by the guarantee of freedom of

religion. In the American case of Krafchow v. Woodstock,150 for example, the Court found

that a city ordinance prohibiting the plaintiff from telling fortunes did not burden his freedom

of religion because the plaintiff’s sincere religious belief in teaching the Kabala to others did

not have to be done through Tarot-card based spiritual advice.151 Similarly, in In re Bartha,152

a self-described Wiccan high priestess who believed she was divinely-granted the gift of

divination and that she could not refuse a request for spiritual advice was told that a city

ordinance banning fortune-telling for profit did not burden her religious beliefs because those

beliefs did not require her to become a professional fortune-teller. These holdings seem

clearly erroneous in light of the well-established principle (in both the United States and

Canada) that freedom of religion protects religiously-motivated conduct even if that conduct

is not mandated or required by that religion.153 What matters is that there is a clear “nexus”

between the religious belief and the conduct.

149 See Alberta v. Hutterian Brethren, [2009] 2 S.C.R. 567, 587 (defining “trivial or insubstantial” interference as “interference that does not threaten actual religious beliefs or conduct.”).150 62 F.Supp.2d 698 (N.D.N.Y. 1999).151 Krafchow, 62 F.Supp.2d at 713.152 63 Cal.App.3d 584 (1976).153 See, e.g., Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at para. 47 (“It is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection.”).

From a legal realist point of view, the biggest hurdle SBNRs face in this context isn’t

so much the formal doctrinal process of balancing, but the practical difficulty of convincing

some judges that idiosyncratic spiritual beliefs aren’t trivial—that they are important and

worthy of protection. If judges don’t believe these beliefs are serious, they won’t conclude

that an individual is burdened when those beliefs are restricted. This an area where it is not

so much legal principles that need to be changed, but court and community perceptions of

SBNRs.

Conclusion

This paper has analysed, from a comparative perspective, the current state and future

prospects of judicial protection of individualistic, idiosyncratic spiritual beliefs. These

beliefs challenge the mainstream understanding of “freedom of religion” by forcing a re-

evaluation of how religion is defined, how sincerity is understood, and how balancing is

conceptualized. If it is true that, demographically speaking, SBNRs are becoming more and

more present and visible in the West, then liberal democracies will have to consider how to

accommodate them.

The author’s conclusion is that SBNRs can and do have a legitimate claim for their

activities to be protected by constitutional and statutory guarantees of freedom of religion.

Their beliefs, although unorthodox and more mutable than mainstream religious ones, are no

less sincere and no less worthy of protection than anyone else’s. In the spirit of tolerance and

generosity that motivates the principle of religious freedom, we should include idiosyncratic

spiritual beliefs under its rubric.