5.4.3.2 Avoiding Conflict with Religious Law
A conflict with religious law could be seen as totally unacceptable by those affected, because it would constitute an impossible dilemma.
As described earlier (5.3.3), there are various ways in which religious law can be fitted into a national legal system. Whatever broad approach is used, however, there can be issues with a particular sect and new challenges arise as the mix of the population changes. Every religious believer, including new arrivals, wants the law to let them practise their religion.
The opening clauses of the First Amendment to the American Constitution offer an example of a suitable safeguard:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.
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. A ThoughtCo article, Sherbert v. Verner: Case, Arguments, Impact, summarised it as having “three prongs”:
“1. The Court must decide whether the act burdens the individual’s religious freedoms. A burden can be anything from withholding benefits to imposing penalties for religious practice.
2.The government may still “burden” an individual’s right to free exercise of religion if:
The government can show a compelling interest to justify the intrusion
The government must also show that it cannot achieve this interest without burdening the individual’s freedoms. Any government intrusion on an individual’s first amendment freedoms must be narrowly tailored.
Together, “compelling interest” and “narrowly tailored” are key requirements for strict scrutiny, a type of judicial analysis applied to cases where a law may be infringing on individual freedoms.”
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 conflict with religious law if it were to specifically require irreligious behaviour, or if it were to prohibit practices that are expressly required by a religion. 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).
The BBC report, The Islamic veil across Europe, provides examples of conflicts arising from government attempts to ban the wearing of the veil. Muslims in several countries protested that they were being discriminated against, but they were overruled by legislatures. Challenges, based on human rights, failed – partly because the wearing of a veil is optional under Islamic law, as noted earlier (4.4.4.2). These legal decisions can result in political problems, though, as reviewed later (6.7.4.3), and they partly explain Why France sparks such anger in Muslims: “A 2011 law banning face veils made Muslims feel stigmatized”.
It is possible for one law to accommodate many religious beliefs if there is goodwill and if the judiciary can be flexible (5.2.2). The English Court of Appeal, for example, 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. The solution was to have a building with part of its roof open, as reported by the BBC: Hindu wins Northumberland funeral pyre battle.
This page is intended to form part of Edition 4 of the Patterns of Power series of books. An archived copy of it is held at https://www.patternsofpower.org/edition04/5432a.htm