Title: Religion: Individual Expression or Intertwined with Culture? Free Exercise Jurisprudence in the United States and Great Britain
Abstract: In contemporary Western society, an individual's freedom to believe or believe in any particular religion is considered a fundamental human right. (1) Part of an individual's religious belief includes the ability to express that belief through the individual's interactions with the greater society. (2) However, it is also accepted that states reserve the right to restrict an individual's expression of his or her belief in order to facilitate societal benefits, such as public safety, order, health, or morals or the fundamental rights and freedoms of others. (3) The tension between these two fundamental beliefs is articulated through the different ways national judiciaries work out systems of discerning the pivotal moment when a government's interest in its citizens' benefits as a whole allows the government to intervene and restrict an individual's expression of his or her religious beliefs. (4) Moreover, the way in which a country's judiciary chooses to draw the line between an individual's free expression and the government's right to intervene provides an illustration of how that nation characterizes the fundamental nature of religious beliefs. The United Kingdom and the United States share a common legal system and a common heritage, as Great Britain served as the parent from which the United States was born. The two countries' background of protection for free expression of religion and the judicial structures for preserving that freedom are, however, very different. The United States has a long history of seeking to protect both religious belief and expression from state control. These freedoms were inscribed into the U.S. Constitution, (5) commented on in writings by the Founding Fathers, (6) and supported by the U.S. Congress. (7) The United States' dual court system containing both federal and state courts, as well as the evolution of Supreme Court jurisprudence as a result of various compositions of the Court's bench, have produced a complex system for protecting free expression. Most importantly, the American system has evolved to focus on an individual's self-expression of religion. American courts have specifically chosen to attempt to determine what constitutes a religious belief or practice. (8) A religious belief may be acceptable, logical, consistent, or comprehensible, (9) and it may be held by other adherents to that religion. (10) The courts, however, have considered any inquiry into the legitimacy of the belief as being not within the judicial function and judicial competence. (11) Once a petitioner has claimed a violation of the First Amendment's freedom of expression clause, the court may only determine whether the individual's action is one which has crossed the line into an area governed by a compelling state interest. (12) In contrast, the United Kingdom views religion and religious beliefs as intimately tied to culture, ethnicity, and a larger religious community of believers. (13) The United Kingdom does possess a written constitution guaranteeing any form of human rights or freedoms. (14) Issues of freedom of belief, religious expression, or any other human right must be resolved by reference to U.K. legislation, general common law, European Union law, or the European Convention on Human Rights (ECHR). (15) Prior to the establishment of the European Union, and the adoption of the ECHR, freedom of expression claims could only come before British courts if they were based on some form of statutory authority, generally the Race Relations Act of 1976. (16) The use of the Race Relations Act to resolve free expression cases resulted in the British court making determinations about the authenticity and validity of the plaintiff's claim religious expression. (17) The court adopted this form of judicial inquiry to determine whether the disputed religious expression could be protected as an aspect of a particular ethnic or racial group. (18) The British statutory system offers a different view of the nature and function of religion, seeing it as an element that binds a particular community together and thereby is protectable under the same statutory regime that protects communities bound by other elements such as language, race or ethnicity. …
Publication Year: 2013
Publication Date: 2013-01-01
Language: en
Type: article
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