I recently posted a note on Exmoor Coast Boat Cruises Ltd v Revenue & Customs  UKFTT 1103 (TC), which upheld the refusal by HMRC to allow the company’s proprietor and sole shareholder to file its VAT returns on paper instead of electronically, on the grounds that he was not “a practising member of a religious society or order whose beliefs are incompatible with the use of electronic communications”. I contrasted this with the outcome in Blackburn & Anor v Revenue & Customs  UKFTT 525 (TC) in which, as I noted at the time, a husband and wife won the right not to file on-line VAT returns for their beekeeping business after claiming that to do so was contrary to their religious beliefs as Seventh-day Adventists, even though the Seventh-day Adventist Church does not require its members to avoid using electronic communications. My conclusion was that cases such as these are highly fact-sensitive and one cannot simply argue from one set of individual circumstances to another: in passing, the same is true of employment cases.
My note attracted a Tweet to the effect that I had made no mention of Burwell v Hobby Lobby Stores Inc 573 US (2014), to which I replied that it was quite hard enough trying to keep up with developments in the UK, the ECtHR and the CJEU without worrying about foreign jurisdictions. But US law is not my starter for ten; and I began to wonder whether my reluctance to engage with it was because the US context is so different from ours as to make it sui generis or whether I was just being bone idle.
The Establishment Clause and the RFRA
From a UK perspective, law and religion issues in the US seem to be dominated by two pieces of legislation for which there are no obvious UK equivalents: the First Amendment to the Constitution (“the Establishment Clause”) and the Religious Freedom Restoration Act 1993 (“RFRA”), codified in 42 US Code Chapter 21B.
As almost every reader will know, the First Amendment declares, inter alia, that:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
The Establishment Clause was passed in the very particular circumstances of a new federation whose founders had to accommodate a very wide range of religious views: from the Anglicans in Virginia to the Puritans in Massachusetts and the Quakers of Pennsylvania. A notable precursor was the Statute for Religious Freedom introduced into the Virginia General Assembly in 1779 and enacted in 1786, which disestablished the Church of England in Virginia and declared that:
“… no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion…”
The RFRA states at s 7 that:
“Nothing in this chapter shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion … Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this chapter…”
The RFRA was held unconstitutional as applied to the states in City of Boerne v Flores 521 US 507 (1997), the Supreme Court ruling that the Act was not a proper exercise of Congress’s enforcement power. But it continues to apply to the activities of the Federal Government.
Hobby Lobby and Exmoor
In Hobby Lobby the US Government had argued that the company could not itself claim to have religious beliefs because it was a for-profit corporation. Though its owners, the Greens, had religious views, they and their corporation were separate entities and the rights and obligations of a company were different from those of its owners: very much the argument of HMRC in Exmoor.
The majority disagreed. Congress had included corporations within RFRA’s definition of “persons”:
“But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company … And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies” [per Alito AJ].
Which was very much the line taken by Tribunal Judge Mosedale in Exmoor even though, on the facts, she upheld HMRC’s decision:
“… a company has human rights if and to the extent it is the alter ego of a person (or, potentially, a group of people). Therefore, it must be seen as being in the shoes of that person and must possess the same human rights because any other decision would deny that person his human rights.
Therefore, while it is ludicrous to suggest a company has a religion, or private life or family, nevertheless a company which is the alter ego of a person can be a victim of a breach of A[rticle] 9 (the right to manifest its religion) if, were it not so protected, that person’s human rights would be breached” [71 & 72].
But she was largely basing her conclusion on Pine Valley Developments Ltd & Ors v Ireland  ECHR 55. Whether or not she was influenced by Hobby Lobby we shall never know, because she didn’t mention Hobby Lobby even once.
Europe and establishment of religion
A bar on “an establishment of religion” is obviously at odds with a system that accommodates an established Church of England, a national Church of Scotland with a special status and a Church in Wales which in legal terms still bears some of the marks of its previous establishment. So if there is any equivalent in UK law to the Establishment Clause, I would suggest that it is probably Article 9 ECHR, as applied by the Human Rights Act 1998, at least insofar as it guarantees
“… the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”
But there is nothing in Article 9 ECHR forbidding “an establishment of religion” and, presumably, the original signatories to the Convention would never have contemplated any such notion, given that several of the member states of the Council of Europe have state churches. Moreover, in Darby v Sweden  ECommHR No. 11581/85 the European Commission on Human Rights (not the Court) ruled that
“A State Church system cannot in itself be considered to violate Article 9 … such a system exists in several Contracting States and existed there already when the Convention was drafted and when they became parties to it. However, a State Church system must … include specific safeguards for the individual’s freedom of religion. In particular, no-one may be forced to enter, or be prohibited from leaving, a State Church”. .
Similarly, an express exception for “[g]ranting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause…” has no obvious resonance in a system which, for example, funds faith schools to the extent that the Church of England and the Roman Catholic Church between them educate about 1.8 million pupils in England & Wales. Even in secularist France, bastion of laïcité, the Loi Debré 1959 (subsequently incorporated into the Code de l’éducation) provides for public financial support for the salaries of teachers of secular subjects and the general running-costs of private, mostly Roman Catholic, schools that are prepared to enter into a contrat d’association with the state.
Do the UK courts routinely cite US cases?
Academic commentators treat the US rather differently. In Religious Freedom in the Liberal State (OUP, 2nd edn 2013), for example, Rex Adhar and Ian Leigh cite numerous US cases – but they do so largely in relation to such general issues as defining “religion”, constitutional protections (which, in any case, are different in the US) and school curricula (in particular, creationism). However, turning to some of the cases touching on religion (broadly defined) over the past few years in the Civil Division of the Court of Appeal, the Supreme Court and House of Lords, citation of non-UK/ECtHR/CJEU judgments appears less frequent than one might have expected:
- in Greater Glasgow Health Board v Doogan & Anor  UKSC 68 no non-UK/ECtHR/CJEU case was cited;
- in R (Nicklinson & Anor)  UKSC 38
- Lord Neuberger cited Carter v Canada (AG)  BCSC 886 – only to dismiss it;
- Lord Mance  found some relevance in the majority reasoning of the US Supreme Court in Washington v Glucksberg 521 US 702 (1997)  and in Vacco v Quill 521 US 793 (1997);
- Lord Mance cited with approval  Lord Reed’s discussion in Bank Mellat v HM Treasury (No 2)  UKSC 39 of Dickson CJ’s judgment in R v Oakes  1 SCR 103; and
- Lord Sumption noted the relevance of Rodriguez v Attorney-General of Canada  3 SCR 519 to Pretty v United Kingdom (2002) 35 EHRR 1;
- in Shergill & Ors v Khaira & Ors  UKSC 33 Lords Neuberger, Sumption and Hodge referred to what they described as Mummery LJ’s misunderstanding of the reasoning in Buttes Gas and Oil Co v Hammer (No 3)  AC 888 and, in so doing, referred  to Underhill v Hernandez (1897) 168 US 250 on the doctrine of act of state: they also referred to two Canadian cases: Bruker v Marcovitz  3 SCR 607 and Syndicat Northcrest v Amselem  2 SCR 551;
- in R (Hodkin & Anor) v Registrar-General of Births, Deaths and Marriages  UKSC 77 Lord Toulson referred [39ff] to the judgment of Adams CJ in Malnak v Yogi 592 F 2d 197 (1979) concurring in a per curiam opinion of the US Court of Appeals 3rd Circuit; but he appeared to give more weight to the judgment of the High Court of Australia in Church of the New Faith v Comr of Pay-Roll Tax (Victoria) (1983) 154 CLR 136;
- in Bull & Anor v Hall & Anor  UKSC 73 there were references to two decisions [48 & 49] by the British Columbia Human Rights Tribunal and one  to Sachs J in National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6;
- in Methodist Conference v Preston  UKSC 29 no non-UK/ECtHR/CJEU case was cited;
- in Mba v London Borough of Merton  EWCA Civ 1562 the only non-UK/ECtHR/CJEU citation was a passing reference to Iacobucci J’s judgment in the Supreme Court of Canada in Syndicat Northcrest v Amselem (2004) 241 DLR;
- in R (London Christian Radio Ltd & Anor) v Radio Advertising Clearance Centre  EWCA Civ 1495 no non-UK/ECtHR/CJEU case was cited;
- in SS (Malaysia) v Secretary of State for the Home Department  EWCA Civ 888 no non-UK/ECtHR/CJEU case was cited;
- in Black & Anor v Wilkinson  EWCA Civ 820 no non-UK/ECtHR/CJEU case was cited;
- in X v Mid Sussex Citizens Advice Bureau & Anor  UKSC 59 no non-UK/ECtHR/CJEU case was cited;
- in JGE v The Portsmouth Roman Catholic Diocesan Trust  EWCA Civ 938 the Court cited four Canadian cases and an Australian one: Montreal v Montreal Locomotive Works Ltd  1 DLR 161, Bazley v Currie (1999) 174 DLR, Jacobi v Griffiths (1999) 174 DLR (4th) 71, Doe v Bennett  1 SCR 436 and New South Wales v Lepore  HCA 4;
- in R (Rudewicz) v Secretary of State for Justice & Ors  EWCA Civ 499  EWCA Civ 499 no non-UK/ECtHR/CJEU case was cited;
- in Catholic Child Welfare Society & Ors v Various Claimants  UKSC 56 the Court cited four Canadian cases and an Australian one: Bazley v Currie, Jacobi v Griffiths, Doe v Bennett, Blackwater v Plint (2005) 258 DLR and New South Wales v Lepore;
- in Jivraj v Hashwani  UKSC 40 no non-UK/ECtHR/CJEU case was cited;
- in Quila & Ors v Secretary of State for the Home Department & Ors  EWCA Civ 1482 no non-UK/ECtHR/CJEU case was cited;
- in Raggett v Society of Jesus Trust of 1929 for Roman Catholic Purposes & Anor  EWCA Civ 1002 no non-UK/ECtHR/CJEU case was cited;
- in McFarlane v Relate Avon Ltd  EWCA Civ 880 no non-UK/ECtHR/CJEU case was cited;
- in Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church  EWCA Civ 256 Bazley v Currie and Jacobi v Griffiths were cited, along with the judgment of the Irish Supreme Court in O’Keefe v Hickey  IESC 72;
- in Eweida v British Airways Plc  EWCA Civ 80 Sedley LJ made passing reference  to Griggs v Duke Power Co US 424 (1971);
- in R (Ghai) v Newcastle City Council & Ors  EWCA Civ 59 no non-UK/ECtHR/CJEU case was cited;
- in R (E) v Governing Body of JFS & Anor  UKSC 15:
- Lord Clarke made passing reference  to Bob Jones University v United States 461 US 574 (1983);
- Lord Hope cited  the Supreme Court of Israel in No’ar K’halacha v Ministry of Education HCJ 1067/08 6 August 2009 and Bob Jones University ;
- in Ladele v London Borough of Islington  EWCA Civ 1357 Neuberger MR cited Sachs J’s judgment in Christian Education South Africa v Minister of Education (CCT4/00)  ZACC 11 [for which see below];
- in Uddin v Choudhury & Ors  EWCA Civ 1205 no non-UK/ECtHR/CJEU case was cited;
- in R (Purdy) v Director of Public Prosecutions  UKHL 45 Lord Phillips of Worth Matravers cited  Rodriguez v Attorney General of Canada 1993 CanLII 75; and
- in McConkey & Anor v The Simon Community  UKHL 24 no non-UK/ECtHR/CJEU case was cited.
Do the US courts routinely cite UK cases?
Any quantitative assessment of the extent to which UK judgments are cited by the US courts is well beyond the resources of this blog (there must be a couple of potential PhD theses in it at the very least); but, generally speaking, the superior courts in the US have taken a fairly conservative view of the relevance and/or helpfulness of foreign precedents. The propriety of citing foreign judgments as persuasive authority is itself a matter of some controversy: for the opinion of someone who is both an academic at Chicago Law School and a judge of the US Court of Appeals for the Seventh Circuit, see Richard A Posner, ‘No thanks, we already have our own laws‘ Legal Affairs (July/August 2004, while for the contrary view see Austen L Parrish, ‘Storm in a Teacup: The US Supreme Court’s use of foreign law‘ University of Illinois LR (2007)
When in Lawrence v Texas 539 US 558 (2003) the US Supreme Court, in a 6–3 ruling, struck down the sodomy law in Texas (and, by extension, in thirteen other states) it cited Dudgeon v United Kingdom  ECHR 5 – and in doing so, sparked off press speculation that this might herald a new departure in the jurisprudence of the Court. But analysis of four of the highest-profile SCOTUS religion cases in recent years – Burwell v Hobby Lobby, United States v Windsor 570 US (2013), Town of Greece v Galloway 572 US (2014) [for which see below] and Hosanna-Tabor Evangelical Lutheran Church and School v Equal Employment Opportunity Commission 565 US (2012) – reveals that not a single non-US case was cited in any of them, whether by the majority or the minority. Which suggests that if Lawrence was indeed a new departure, in matters of religion, at any rate, the train has barely left the station.
Why should this be? The short answer is probably twofold: that the US has so many domestic jurisdictions of its own and such a large number of cases on religion every year that overseas precedents are regarded as superfluous and that, in any event, because so many US religion cases relate back to the First Amendment, overseas decisions are unlikely to be of much relevance. (The long answer, if there is one, is beyond my competence.)
A tentative conclusion?
Even though (with the partial exception of Louisiana) all the US jurisdictions are based on common law, it would appear that, on matters of religion at any rate, their divergence from the UK and Europe is so great that a US case is usually only of interest for the UK when it sheds some light on a juridical or socio-legal principle of fairly general application. And when it comes to legal nuts-and-bolts, the evidence of recent high-profile law and religion cases would seem to suggest that, on balance (and making due allowance for the fact that a different list from mine might have produced somewhat different results), the UK courts are rather more likely to look to Commonwealth jurisdictions for parallels than to US ones.
In R v Big M Drug Mart Ltd  1 SCR 295, 1985 CanLII 69 (SCC) Dickson J was distinctly unenthusiastic about the usefulness of US case-law to the Supreme Court of Canada in considering cases brought under the Charter of Rights and Freedoms in the Constitution Act 1982:
“In my view this recourse to categories from the American jurisprudence is not particularly helpful in defining the meaning of freedom of conscience and religion under the Charter. The adoption in the United States of the categories ‘establishment’ and ‘free exercise’ is perhaps an inevitable consequence of the wording of the First Amendment. The cases illustrate, however, that these are not two totally separate and distinct categories, but rather, as the Supreme Court of the United States has frequently recognized, in specific instances ‘the two clauses may overlap’ ” .
My suspicion is that what appears to be the case for Canada also holds true for the UK: that the overlap between the two categories of the Establishment Clause has something of a distorting effect on the case-law which diminishes its usefulness to other common law jurisdictions.
If, for example, the Canadian Supreme Court rules on a religion case against the provisions of the Charter, a Brit is on fairly familiar ground. The fundamental “freedom of conscience and religion” under s 2(a) of the 1982 Act is qualified by “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” under s 1 – from which it is not at all difficult to read across to Article 9 ECHR and its accompanying limitations. So providing that there is a reasonable parallel, a case in point from a Commonwealth jurisdiction might well be cited as a persuasive authority in the UK courts.
Lord Walker of Gestingthorpe’s speech in R (Williamson) v Secretary of State for Education and Employment & Ors  UKHL 15 is an example. The case was about the legality of corporal punishment in independent schools and [at 67 & 68] he cited Sachs J in Christian Education South Africa v Minister of Education (CCT4/00)  ZACC 11 on whether or not the South African ban on corporal punishment in schools contravened its constitutional provisions on privacy, education and freedom of religion, belief and opinion.
But there does not seem to be any obvious UK or European parallel either with the Establishment Clause or with the RFRA that would routinely lead UK courts to cite US cases based on them. So, for example, when the issue of the legality of prayers at council-meetings was tested in R (National Secular Society & Anor) v Bideford Town Council  EWHC 175 (Admin) (the subject, incidentally, of our first post) Ouseley J cited Buscarini v San Marino  ECHR 7 – a challenge to the requirement for elected MPs to take an oath referring to the Gospels – and Lautsi v Italy  ECHR 2412. But he completely ignored the parallel US case of Galloway v Town of Greece 732 F Supp 2d 195 (2010), in which the plaintiffs had challenged the legality of opening Town Board meetings with prayer as a violation of the Establishment Clause – and which, as noted above, went all the way to the US Supreme Court.
Similarly, though there are occasional domestic and ECtHR rulings on accommodating prisoners’ religious beliefs, it is difficult to imagine that we could ever have the seemingly-endless procession of prisoner free exercise cases that Howard Friedman reports with such regularity.
In short, a US religion case can sometimes be very interesting as a piece of legal reasoning; but I suspect that it’s not often going to be all that persuasive in a UK context.
[With thanks to Paul de Mello Jr for sparking off the original train of thought, to Norman Doe for commenting on a early draft and to Neil Foster for drawing my attention to Big M. None is in any way responsible for the result.]
Updated 21 January 2015
And that was Post 800. Criticisms/comments/corrections would be very welcome.
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