5.4.3.2  Avoiding Conflict with Religious Law

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The law is seen as unworkable and/or unfair if it conflicts with religious law.  The opening clauses of the First Amendment to the American Constitution offer an example of a suitable safeguard:

€œCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof€�.[1]

It is an example of protecting freedom of religion by explicit neutrality.  €˜The Sherbert Test€™ was an important US Supreme Court ruling to determine whether legislation conflicts with this principle; it may be summarised as:

€œFor the individual, the court must determine

·      whether the person has a claim involving a sincere religious belief, and

·      whether the government action is a substantial burden on the person€™s ability to act on that belief.

If these two elements are established, then the government must prove that it is acting in furtherance of a "compelling state interest," and that it has pursued that interest in the manner least restrictive, or least burdensome, to religion.€� [2]

This test effectively protects all religions, including minority beliefs (and the ruling in Sherbert v. Verner confirmed that Seventh Day Adventists were protected by the First Amendment).  It is a useful set of criteria to apply when considering if and how to legislate on all contentious issues affecting religion.

In a pluralist society there would be continual conflict if the law were to specifically require irreligious behaviour, or if it were to prohibit practices that are expressly required by a religion (as distinct from cultural traditions that may have been permitted by what can be seen as historical interpretations).  In a society that allowed both religious law and State law to operate, the religious law would be internalised by those who had volunteered to be subjected to it and would, in their eyes, be more important than State law €“ even though in practice the latter would have to take precedence if there were a conflict between the two (5.3.3.2).

It is possible for one law to accommodate many religious beliefs if there is goodwill and if the judiciary is able to be flexible (5.2.2).  The English Court of Appeal ruling on Hindu cremations was a good example: it was able to reconcile the Hindu requirement to be burnt in the open air with the existing law that required a cremation to be in a building.[3]  The solution was to have a building with part of its roof open.

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