1 IS IT A BREACH OF RELIGIOUS RIGHTS? Jane Foster Introduction Courts in New Zealand and beyond are increasingly asked to consider whether someone's religious rights have been breached. The Court's answer to that question depends heavily on the context in which it arises and involves value judgements. To demonstrate the variety and diversity of the circumstances in which this question can arise, this paper discusses some recent cases from New Zealand and overseas. The New Zealand cases considered in this paper involve: a Court witness wanting to give evidence while wearing a burqa; a superannuation plan for church employees seeking charitable status for tax purposes; and a bookshop illegally opening during the Easter trading ban. In the first instance, the European cases considered involve a school restricting its uniform to certain forms of Islamic dress, universities prohibiting students wearing headscarves and an application to dissolve the largest political party in Turkey because its activities were contrary to secularism. The North American cases considered involve a school prohibiting a student from wearing a kirpan (Sikh religious object resembling a metal dagger), a condominium association refusing to permit Orthodox Jewish unit­owners to build succahs (small enclosed temporary huts) on their balconies, and a state school requiring that students be taught intelligent design as an alternative to evolution. Freedom of Religion Before considering the cases it is useful to briefly background what religious rights are. The right to "freedom of religion" as recognised in New Zealand in the New Zealand Bill of Rights Act 1990 (NZBORA) and in the various overseas instruments encompasses a collection of associated rights. These are the right to: freedom of thought, conscience, religion and belief (section 13 of NZBORA); freedom of expression (section 14); freedom to manifest religion
2 Human Rights Research or belief in worship, observance, practice or teaching (sections 15 and 20); and freedom from discrimination on account of religious belief (section 19). 1 The principal modern rationales for the guarantee of freedom of religion are that individual autonomy demands the freedom to choose amongst religious beliefs without coercion and that religious diversity is to be valued and helps facilitate democracy. This accommodation of religious pluralism does not require the state to prescribe any particular significance to religion. Autonomy and diversity rather than religion itself are the underlying values. 2 The essence of freedom of religion is described by Dickson J in R v Big M Drug Mart Ltd 3 (the leading Canadian Supreme Court case) as follows: The essence of the concept of freedom of religion is the right to entertain such religious beliefs as the person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest belief by worship and practice or teaching and dissemination. But the concept means more than that. Freedom can primarily be characterised by the absence of coercion or restraint. If a person is compelled by the state or the will of another to a course of action or inaction, which he would not otherwise have chosen, he is not acting of his volition and cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or to refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience. 1 Relevant provisions of the International Covenant on Civil and Political Rights (19 December 1966) 999 UNTS 171 are articles 18, 19, 26 and 27. 2 See Paul Rishworth "Freedom of Thought, Conscience, and Religion" in Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Auckland, 2003) 277–279. 3 R v Big M Drug Mart Ltd 18 DLR (4th) 321, 353–354; see also 360 and 361.
Is It a Breach of Religious Rights? What may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of "a tyranny of the majority". Freedom of religion is however not an absolute right. In New Zealand those bound by NZBORA must not interfere unreasonably with an individual's right to religious freedom. 4 Any prima facie limit on NZBORA rights must be reasonable within the meaning of section 5 of NZBORA and provides the rights may be subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Section 5 reflects "the reality that rights do not exist in a vacuum, that they be modified in the public interest to take account of the rights of others and of the interests of the whole community". 5 The Courts when considering what constitutes a reasonable limit on the right to freedom of religion undertake a balancing exercise. In each case where there is a prima facie limit on an individual's right to freedom of religion, the Courts must weigh the importance of that right against other societal interests to determine whether the limit is justified. Given the importance of freedom of religion there must be a strict scrutiny of the reasonableness of limits. Where possible, there should be accommodations made to protect an individual's freedom of religion. 6 This approach to determining the reasonableness of limits is similar in international practice. It necessarily involves value judgements and the confrontation of difficult questions. 7 4 See Mendelssohn v Attorney­General [1999] 2 NZLR 268, 273, where the Court of Appeal held there was no positive duty on the Crown to protect Mr Mendelssohn's freedom of religion (he was a member of the Centrepoint community). 5 See Noort v MOT [1992] 3 NZLR 260, 283. 6 In Feau v Department of Social Welfare (1995) 2 HRNZ 528, Elias J found that the requirement that the appellant, a Seventh Day Adventist, attend a periodic detention centre on a one­off basis on a Saturday (his Sabbath) was, given his offending, a justifiable, moderate encroachment on his religious rights. However, Her Honour noted her concern that the periodic detention centre was somewhat inflexible in accommodating the appellant and she hoped it would be possible to accommodate him. 7 See R v Governors of Denbigh High School [2006] UKHL 15, para 30.
3 4 Human Rights Research Recent New Zealand Cases Burqa in Court case: Police v Razamjoo 8 This case concerns whether two witnesses could wear their burqas while giving evidence for the prosecution in a minor criminal matter in the District Court. The accused (an Afghani man) was charged with intent to defraud and making an untruthful statement to the police – he had falsely represented that his car had been stolen. It was alleged the accused had taken his car to a fellow Afghani's house, and asked his friend to help him sell the car and that the accused then, unbeknown to the friend, claimed it had been stolen. To confirm aspects of the friend's account of events the police proposed to call the friend's wife and another woman who was living at the friend's house (who in fact was the accused's sister). Both women were Afghani and Muslim, and their beliefs required them to wear a burqa when in public, i.e. in Court, or in the presence of men other than very close relatives. Before the criminal trial began defence counsel objected to the two women wearing a burqa while giving evidence, on the basis it would not allow proper assessment of the demeanour and credibility of the witnesses. The Judge decided there should be a pre­trial hearing into this matter. There followed a two­day hearing where the Judge heard evidence from a number of witnesses, including from one of the women (who wore her burqa while giving the evidence) and expert evidence from Professor Paul Morris of Victoria University. The decision on this pre­trial matter is 45 pages long. The Crown submitted that the woman should be permitted to wear a burqa while giving evidence as wearing one did not breach the accused's rights to a fair trial in this case (there being no issue as to the identity of the witnesses). The Crown submitted that the ability to see a person's face while giving evidence was not per se necessary for a fair trial, as an assessment of facial demeanour was not an accurate guide of witness credibility. Further, the Crown said that even if there were any prejudice to the accused arising from being unable to observe facial demeanour, this was minimal, and outweighed by the right of the witnesses to wear a burqa as protected by NZBORA. In brief, the Crown submitted that since wearing a burqa did not breach the accused's fair trial rights, and as no other public interest was raised, there was no justification to acquire these women to remove their burqa. 8 Police v Razamjoo [2005] DCR 408.
Is It a Breach of Religious Rights? The Judge held he was "reluctantly forced to the conclusion that there could be a fair trial" even if the witnesses gave evidence wearing a burqa. (The authorities presented by the Crown were rather persuasive in challenging the long­held view that demeanour was a good window to credibility.) However, the Judge considered the focus on balancing the religious rights of the witnesses, against only the defendant's fair trial right, was too narrow. The Judge considered the public's right to the public and open administration of justice meant, in general, the public should be able to see and hear the participants. The Judge found that while the witnesses had the right to manifest their religious beliefs by wearing a burqa in public, this had to yield to the public's right and legitimate expectation that the trial would proceed by the normal processes. So the Judge ruled the preferable alternative was for the witnesses to remove their burqa and give evidence behind a screen while their faces could be observed by the Judge, counsel and Court staff (the latter being female), but not by the accused or the public. (In my view the public's right to open justice would have been better served by the public being able to see the witnesses giving evidence while wearing a burqa, as had occurred in this pre­trial hearing.) Mr Razamjoo was ultimately found guilty after a hearing in which both female witnesses gave evidence. Easter Sunday trading case: Department of Labour v Books & Toys (Wanaka) Ltd 9 This case concerns Books & Toys (Wanaka) Ltd, trading as Wanaka Paper Plus on Easter Sunday in clear breach of shop trading hours legislation. Paper Plus had opened on the Easter Sunday, as had nearby Pembroke Mall who had an exemption order that was granted because Wanaka is a tourist resort. Paper Plus pleaded guilty to breaching the legislation and the case therefore concerns only sentencing. The offence carries a maximum fine of $1,000. Paper Plus asked the District Court to declare that the ban on Easter trading was an unreasonable limit on its right to freedom of religion under 9 Department of Labour v Books & Toys (Wanaka) Ltd (2005) 7 HRNZ 931.
5 6 Human Rights Research NZBORA. 10 The provision at issue was section 3(1)(b) of the Shop Trading Hours Act 1990 that prohibits trading on Easter Friday and Sunday and Christmas Day (all central Christian festival days) as well as Anzac Day morning. Paper Plus relied on a leading Canadian Supreme Court decision that found the Lord's Day Act 1970 that prohibited Sunday trading was inconsistent with freedom of religion. 11 The Court found that Act worked as a form of coercion inimical to the spirit of the Canadian Charter and dignity of all non­Christians, and that the religious content of the legislation that was founded on the Christian faith lent a subtle and constant reminder to religious minorities of their differences and alienation from the dominant religious culture. The Crown strongly objected to the District Court making the declaration sought by Paper Plus on the basis that Court did not have jurisdiction to make such declarations. The Judge accepted he did not have jurisdiction. Further, the Judge said he would have declined to make the declaration as Paper Plus had only opened on Easter Sunday for economic reasons and not on the basis that the Act infringed its religious rights. However, the Judge discharged Paper Plus without any financial penalty. Part of his reasons for so doing was that he found the trading ban on certain Wanaka shops to be anomalous historically and geographically, and offending the freedom provided under NZBORA. Church tax case: Hester v Commissioner of Inland Revenue 12 In this case the Court of Appeal had to determine whether a superannuation plan that provided benefits for employees of the Church of Latter Day Saints (the Mormon Church) was for a "charitable purpose" and therefore income tax exempt. 10 The New Zealand Bill of Rights Act 1990, s 29 provides that the provisions of the Act apply, so far as practicable, for the benefit of all legal persons as well as for the benefit of all natural persons. 11 R v Big M Drug Mart Ltd, above n 3. 12 Hester v Commissioner of Inland Revenue [2005] 2 NZLR 172 (CA).
Is It a Breach of Religious Rights? The Court relied on previous authority that concerned a superannuation fund established by the Presbyterian Church to provide benefits to ministers of religion. In that case it was accepted that superannuation­style plans that had the dominant purpose of providing for ministers of religion and their families were for a charitable purpose, notwithstanding they also provided private benefits to the ministers. The Court found the plan in this case was not for a charitable purpose as it extended beyond clergy to church employees generally. For example gardeners, clerical workers, cafeteria workers and teachers could be covered by this plan. Part of the argument the trustees of the plan relied on was religious rights under NZBORA. The trustees argued the tax system preferred "mainstream churches" that had paid clergy. The Mormon Church does not have clergy as such, as the belief is that ministers of God should not work for hire. The Court held that it would not be right for the tax system to discriminate in that way between churches. However, it did not accept that that was what was being done here. The Court held that provided the dominant purpose of the scheme or plan was to provide superannuation­style benefits for clergy, or those who are analogous to clergy, it would be charitable, but that this plan was too widely drawn. The Supreme Court denied the trustees leave to appeal; it did not accept there was any breach of NZBORA rights, finding the scope of the plan far too broad. 13 Overseas Religious Attire Cases Uzbekistan headscarf case: Hudoyberganova v Uzbekistan 14 In this case, determined in January 2005, the United Nations Human Rights Committee found the prohibition on the wearing of headscarves at Tashkent State Institute in Uzbekistan was a breach of religious rights under Article 18 of the International Covenant on Civil and Political Rights (ICCPR). The Institute imposed new regulations in 1998 prohibiting students from wearing religious dress. The claimant insisted on wearing a headscarf. She was asked to leave lectures and eventually excluded from the university. She 13 Hester v Commissioner of Inland Revenue [2005] NZSC 21. 14 UN Human Rights Committee "Communication 931/2000: Hudoyberganova v Uzbekistan" (18 January 2005) CCPR/C/82/D/931/2000.
7 8 Human Rights Research was told that if she changed her mind about the headscarf she could return. Subsequent to these events a new national law was enacted prohibiting the wearing of religious dress in public places. The aim of that law was stated as being to ensure the right of every person to freedom of worship and religion. The claimant took a case domestically alleging her religious rights had been breached and was unsuccessful in both the District Court and Supreme Court in Uzbekistan. The Human Rights Committee upheld the claim, however, as the state party had not provided any specific justification for the regulations or specified what exact kind of attire was worn. Accordingly, in the absence of any justification, the Committee found there had been a violation of the claimant's religious rights. The Committee, however, makes it clear that to prevent the wearing of religious attire in public or private may constitute a breach of religious freedoms, and that those rights are not absolute and may be subject to limitations necessary to protect public safety, order, health, morals or the fundamental rights and freedoms of others. In my view, the Committee was unwillingly compelled to find a breach of religious rights given the lack of justification provided. Given the Committee's discussion of the matter, it appears it would not have been difficult for the state party to provide sufficient justification for the prohibition, thereby allowing the Committee to find there was no breach, as was found in the Turkish headscarf case discussed below. It is noteworthy that there were three dissents and one member specifically referred to the Turkish case. Turkish headscarf case: Sahin v Turkey 15 This is a decision of the European Court of Human Rights given on 10 November 2005, finding that the prohibition on the wearing of Islamic headscarves at Istanbul University was not a breach of the applicant's religious rights. The applicant was a medical student at Istanbul University who considered she had a religious duty to wear an Islamic headscarf. In early 1998 the University prohibited the wearing of the Islamic headscarf and the applicant was refused access to examinations, lectures and ultimately was not 15 Sahin v Turkey (2005) 19 BHRC 590 (Grand Chamber, ECHR).
Is It a Breach of Religious Rights? permitted to enrol. The Administrative Court and the Supreme Administrative Court in Turkey dismissed the student's application that they find her rights under the European Convention had been breached. The European Court of Human Rights agreed with the Turkish Courts. Of the 17 judges only one dissented. The majority reasoned that in democratic societies where several religions co­existed, it might be necessary to restrict religious freedom to reconcile the interests of various groups and ensure everyone's beliefs were respected. This was because pluralism, tolerance and broadmindedness were the hallmarks of a democratic society. The Court found that depending on the domestic context the relationship between the state and religions may differ widely, particularly when it came to regulating the wearing of religious symbols in educational institutions, and that therefore the national decision­making body had to be given special importance. The Court discussed the diversity of approaches taken by national authorities across Europe when it comes to prohibiting religious attire – some permit it, while others do not. The Court noted that the meaning or impact of the public expression of religious belief would differ in different countries and it all depended on the domestic context at the time. In this case the Court emphasised the principle of secularism as the paramount consideration underlying the ban, it being a fundamental principle of the Turkish state and recognised in its constitution. The Court noted that the regulations took several years to implement and were accompanied by a wide debate within Turkish society and the teaching profession. The one dissenting Judge equally considered secularism an essential principle but noted that religious freedom was also a founding principle of democratic societies. This Judge found the ban on headscarves was not shown to be necessary in a democratic society, there being an absence of concrete reasons for the ban, only mere affirmations. The UK school uniform case: R v Governors of Denbigh High School 16 This is a decision of the House of Lords concerning the right to wear a particular form of Islamic dress to school in breach of school uniform rules. The House of Lords overturned the Court of Appeal and unanimously found there had been no breach of Ms Begum's religious rights. 16 R v Governors of Denbigh High School [2006] UKHL 15.
9 10 Human Rights Research Ms Begum attended a secondary school where the students were predominantly Muslim. The school had three uniform options including the shalwar kameeze (a sleeveless smock­like dress worn over a collar and tie with loose trousers tapering at the ankles) – this was worn by some Muslim, Hindu and Sikh female pupils. The governing body of the school, four out of six who were Muslim, and the head teacher considered that the school uniform played an integral part in serving the needs of a diverse community and promoting a positive sense of communal identity. The school was careful to review the dress code and did so in 1993 when it consulted widely and concluded that the current arrangement satisfied Islamic requirements. Following that review and a response to several requests the governors approved the wearing of headscarves. The school went to some lengths to explain dress codes, these being explained prior to entry and in a letter reminding parents of the school dress rules. Ms Begum happily wore the school uniform until September 2002 when, aged 14, she came to school with her brother and asked that she be able to wear a jilbab (a long coat­like garment). The teachers refused and the head wrote to the family explaining why the current uniform policy was reasonable taking into account cultural and religious concerns. However, Ms Begum still refused to attend school, despite attempts by the school to facilitate this. Eventually a claim was filed in the Courts. At first instance evidence was given by the head teacher that adherence to the school uniform policy was necessary to the social cohesion of the school, so as to discourage different groups being identified by clothing, it being noted the school had suffered ill­ effects from such groups in the past. The Judge ruled that there had been no breach of Ms Begum's religious rights. However, the Court of Appeal reversed that decision finding a breach of religious rights on the basis the school had made procedural mistakes when determining the matter. The House of Lords overturned the Court of Appeal decision, finding that in the circumstances any limit on Ms Begum's religious rights was fully justified. The House of Lords criticised the Court of Appeal's procedural approach saying it was the practical outcome not the quality of the decision­ making process that was important. The Court emphasised at the beginning of the judgment that this case concerned a particular pupil, at a particular school, in a particular place at a particular time. The Court particularly noted the school had taken immense pains to devise a uniform policy that respected
Is It a Breach of Religious Rights? Muslim beliefs, that these were not mindless rules, and the school had been successful in part because of the uniform policy. The Court found that the school, head, staff and governors were best placed to determine a sensitive matter such as this and it would be irresponsible for any Court to make such a determination. The Kirpan case: Multani v Commission Scolaire Marguerite­Bourgeoys 17 In this case the Canadian Supreme Court held a Sikh boy had the right to wear a kirpan (a religious object resembling a 20 cm long dagger) to school beneath his clothing. In 2001 the boy had dropped his kirpan from under his clothes. This prompted the school board to write to the boy's parents confirming the kirpan could be worn provided he complied with certain conditions that ensured it was safely sealed inside his clothing. The boy and his parents agreed with those conditions. However, the governing board of the school refused to ratify that agreement as it considered it violated the school code of conduct that prohibited the carrying of weapons. The Council of Commissioners upheld the governing board's decision and advised that only a symbolic kirpan, in the form of a pendant or one made of another harmless material, could be worn. The boy's parents brought a case to the Superior Court of Ontario seeking that the Commissioners' decision would have no effect. That Court found the need to wear the kirpan was based on a sincere religious belief and also found there was no evidence of any violent incidences involving kirpans in Quebec schools. Judgment was granted in the boy's favour and authorising the wearing of a kirpan under certain conditions: that it be in a wooden sheath that was wrapped and sewn securely in a cloth envelope and sewn to his clothes, that the school authorise these conditions, and that they were always complied with. The matter was appealed to the Quebec Court of Appeal, who unanimously set aside the Superior Court's judgment. The Court of Appeal found that the infringement of the boy's freedom of religion was justified, as otherwise the 17 Multani v Commission Scolaire Marguerite­Bourgeoys [2006] SCC 6; [2006] 1 SCR 256.
11 12 Human Rights Research school would be reducing its safety standard and this would result in undue hardship. The matter reached the Canadian Supreme Court in 2005. The Court unanimously found in the boy's favour as it considered the infringement of his freedom of religion could not be justified. The Court held that while a reasonable level of safety at school was important the decision to ban the kirpan did not minimally impair the boy's religious rights. The Court did not consider an absolute prohibition against wearing a kirpan was reasonable in the circumstances, as the risk of it being used for violent purposes was very low, especially if worn under the conditions imposed by the Court of first instance. The Court noted there were many objects in schools that could be used to commit violent acts e.g. scissors, pencils and baseball bats. It also noted the evidence showed there was not a single violent incident related to the presence of kirpans in schools that had been reported. In the Court's view the total prohibition undermined the value of the religious symbol and sent a message that some religious practices do not merit the same protection, whereas accommodating the kirpan under certain conditions showed the importance that society attached to protecting freedom of religion and to showing respect for its minorities. In summary the Court found "the deleterious effects of the total prohibition must outweigh its salutary effect". The Court found the submission that the kirpan should be prohibited because it was symbolic of violence was contradicted by the evidence regarding its symbolic nature, was disrespectful to Sikh, and did not take into account of Canadian values based on multi­culturalism. The Court found that "religious tolerance is a very important value of Canadian society", and if students considered it unfair that they couldn't have knives then it was up to the school to discharge the obligations to instil this value which was the foundation of their democracy into those students. Other Overseas Cases Dissolution of Turkish political party case: Refah Partisi v Turkey 18 This is a decision of the European Court of Human Rights upholding the Turkish Constitutional Court's dissolution of Refah Partisi (the Welfare Party 18 Refah Partisi (The Welfare Party) and others v Turkey (2003) 37 EHRR 1 (Grand Chamber, ECHR).
Is It a Breach of Religious Rights? – Refah) and the removal of certain political rights of three Turkish MPs because of anti­constitutional activities. The MPs had that status removed and were banned for five years' involvement in political parties. Refah was the largest political party in Turkey at the time having 22% of the vote in the general elections at the end of 1995. The anti­constitutional activities were acts and speeches of Refah's members and leaders that showed the party had a policy of establishing a regime based on sharia (Islamic law) within the framework of a plurality of legal systems and that it would not exclude resorting to force in order to implement that policy. Specifically these activities included advocating for the wearing of Islamic headscarves in schools and public buildings, proposing the abolition of secularism to be replaced by a theocratic system, and proposing sharia through a holy war and the use of force. However, Refah's official programme did not support the introduction of sharia. The Court found those activities of Refah were incompatible with the concept of a democratic society and that there was a real opportunity the policies could be put into place. The Court considered the principle of secularism in Turkey to be one of the fundamental principles of that state (it is recognised in the constitution) and therefore activities that failed to respect that principle would not necessarily be protected by freedom of religion. The Court held that a political party may promote a change in the law and the legal and constitutional structures of the state, provided the means used to that end were legal and democratic and the change proposed was compatible with fundamental democratic principles. The Court found that if those conditions were satisfied "… a political party animated by the moral values imposed by religion cannot be regarded as intrinsically inimical to the fundamental principles of democracy, as set forth in the Convention". In this case, however, the Court found sharia was incompatible with the fundamental principles of democracy, given the importance of the principle of secularism in Turkey, that country having opted for a form of secularism which confined Islam and other religions to the sphere of private religious practice. The Court held that while everyone in Turkey can observe in their private life the requirements of their religion, Turkey, like any state, may prevent the establishment of private­law rules of religious inspiration prejudicial to public order and the values of democracy for Convention purposes, such as rules permitting discrimination based on gender (e.g. polygamy and privileges for males in matters of divorce and succession).
13 14 Human Rights Research The Court concurred with the Chamber's view 19 that sharia was incompatible with the fundamental principles of democracy and set out this quote from the Chamber's decision: Like the Constitutional Court, the Court considers that sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it. The Court notes that, when read together, the offending statements, which contain explicit references to the introduction of sharia, are difficult to reconcile with the fundamental principles of democracy, as conceived in the Convention taken as a whole. It is difficult to declare one's respect of democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts …. In the Court's view, a political party whose actions seem to be aimed at introducing sharia in a State party to the Convention can hardly be regarded as an association complying with the democratic ideal that underlies the whole of the Convention. The Succah case: Syndicat Northcrest v Amselem 20 This is a split decision of the Canadian Supreme Court where the majority found the appellants' (all Orthodox Jews) right to freedom of religion had been breached by the refusal to allow them to set up succahs on their balconies to dwell in during a nine­day religious festival. A succah is a small­ enclosed temporary hut that is open to the heavens and which Jews are to dwell in during the nine­day Succot festival. Succot occurs in late September to early October, and commemorates the 40­year period the children of Israel wandered in the desert living in temporary shelters. Orthodox Jews believe that they are required to make the succah their primary residence for the nine days. They should take all their meals there, conduct certain religious ceremonies there and, weather permitting, sleep there and otherwise 19 This case was heard first by a Chamber of seven judges of the Court, who found by four votes to three that there was no breach. The case was then referred to the Grand Chamber, the full Court, and was heard by 17 judges. 20 Syndicat Northcrest v Amselem [2004] SCC 47; [2004] 2 SCR 551.
Is It a Breach of Religious Rights? generally reside there during the festival. The Supreme Court set aside a permanent injunction that had been granted by the lower Courts that prohibited the appellants from setting up succahs and, if necessary, allowed them to be demolished. The appellants all owned units in a luxury condominium building in Montreal. These units were governed by by­laws in the "declaration of co­ ownership" (similar to body corporate rules). The appellants had not read the by­laws prior to purchasing their units. One of the appellants set up a succah on his balcony during the Jewish religious festival of Succot. When one of the appellants, Mr Amselem, erected his succah the condominium association (equivalent to a body corporate) requested its removal, relying on the by­laws that prohibit decorations, alterations and constructions on balconies without written permission. The following year Mr Amselem requested written permission to erect a succah. The association refused to grant that request but said it would allow a communal succah in the gardens. However, a communal succah was contrary to the appellants' personal religious beliefs and after some discussion with the syndicate and no change in their position the appellants each set up their own succah on their respective balconies. The association then applied for the permanent injunction prohibiting the setting up of personal succahs and, if required, allowing their demolition. The injunction was granted in 1998. On appeal to the Court of Appeal that decision was unanimously upheld. The matter was then appealed to the Supreme Court where there was a split decision (5/4), the majority overturning the decision of the Court of Appeal. The majority found that the appellants had proven that celebrating in a communal succah would lead to extreme distress and therefore detract from their joyous celebration of the religious holiday. The majority also found that any effect on the other co­owners' rights to peaceful enjoyment of their property and personal security was at best minimal and therefore could not reasonably be considered as imposing a valid limit on the appellants' religious freedom. The majority found not enough evidence had been adduced to conclude that the temporary succahs would cause the value of the units to decrease. Similarly, the majority did not accept that preserving the aesthetic appearance of the balconies, and thus enhancing the harmonious external appearance of the building, would be any more than trivial annoyance during the nine days the succahs were erected.
15 16 Human Rights Research They majority also found the trial Judge had erred in basing his findings on objective obligatory requirements of Judaism, not the sincere individual belief of the appellants, that does not need to be supported by any mandatory doctrine of faith. The majority similarly considered the Court of Appeal erred in finding the appellants had effectively waived their rights to freedom of religion when they had signed the declaration of ownership. The four dissenting Judges all found that the offer of a communal succah was sufficient to recognise the appellants' rights and did not consider that the appellants could reasonably insist on a personal succah. Only one of the Judges gave weight to the fact that the appellants had accepted when buying the units that they could not insist on a personal succah on communally­ owned balconies. The USA intelligent design case: Kitzmiller v Dover Area School District 21 This case concerns a decision by a school board motivated by religious belief that required students be made aware of the gaps and problems in Darwin's evolution theory and also of other theories of evolution, including "intelligent design". (Intelligent design is basically the proposition that given the complexity of nature there must have been an intelligent designer i.e. God. However, the "official position" is that the proponents of intelligent design do not acknowledge that the designer is God.) The school board decision required teachers to read a statement to ninth grade biology classes that said Darwin's theory was only a theory and that intelligent design is a differing explanation for the origin of life and reference books were available to students who might be interested in understanding what it involved. The statement asked students to keep an open mind and told them the school would leave the discussion of the origins of life to individual students and their families. The teachers refused to read the statement. A case was brought challenging the legality of the school board's decision. After a hearing of approximately six weeks, the Judge delivered a 139 page decision that held it was unconstitutional to teach intelligent design as an alternative to evolution in a public school classroom. The Court found the intelligent design movement was the most recent strategy to weaken education of evolution by focussing students on alleged 21 Kitzmiller v Dover Area School District (2005) 400 F Supp 2d 707 (MD PA).
Is It a Breach of Religious Rights? gaps in the theory of evolution. The Court summarised the history of the attempts by anti­evolutionists, motivated by religious reasons, to restrict the teaching of evolution in public schools. In brief that history is as follows. Between the 1920s and early 1960s, anti­evolutionary sentiment based on a religious social movement resulted in formal legal sanctions to remove evolution from the classroom. Various states adopted laws that prohibited the teaching of evolution and resulted in teachers being convicted for teaching evolution e.g. as in the famous "Scopes monkey trial" where John Scopes was convicted. It was not until 1968 that there was a radical change when the United States Supreme Court struck down an Arkansas law that prohibited teaching evolution in public schools and universities. 22 Since that time there have been various tactics adopted by anti­evolutionists, all of which have been found by the Courts to be unconstitutional, given they are further attempts to establish the biblical view of creation and therefore religious promotion. There was the championing of "balance treatment" laws that required teachers to devote equal time to teaching evolution and the biblical view of creation. Next was the promotion of "creation science" as an alternative to evolution, culminating in 1987 with a finding by the Supreme Court that the requirement that schools teach "creation science" along with evolution was unconstitutional. 23 The concept of intelligent design came into existence after 1987. After a consideration of the history of intelligent design the Court concluded that an objective observer would know that intelligent design in teaching about "gaps" and "problems" in evolutionary theory was a creationist, religious strategy that evolved from earlier forms of creationism and would be 22 Epperson v Arkansas (1968) 393 US 97. The Supreme Court found that the law was unconstitutional as it had a religious purpose. It prevented teachers from discussing the theory of evolution because it was contrary to the belief of some regarding the book of Genesis. That finding was made despite the law not including any direct references to Genesis or to the fundamentalist view that religion should be protected from science. 23 Edwards v Aguillard (1987) 482 US 578. In that case the Supreme Court held that the belief that a supernatural creator was responsible for the creation of mankind was a religious viewpoint and advanced religious doctrine. The effect of this decision was a national prohibition against teaching creation science in the public school system.
17 18 Human Rights Research considered a strong endorsement of a religious view. The Court then went on to consider whether intelligent design was science stating: 24 While answering this question compels us to visit evidence that is entirely complex, if not obtuse, after a six week trial that spanned 21 days and included countless hours of detailed expert witness presentations, the Court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area. Finally, we will offer our conclusion on whether ID is science not just because it is essential to our holding that an establishment clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us. The Court reached "the inescapable conclusion" that intelligent design is an "interesting theological argument, but that it is not science". If intelligent design is not science the Court concluded that it was inescapable that the only real effect of introducing intelligent design was the advancement of religion. The Court therefore found it unconstitutional to teach intelligent design as an alternative to evolution in a public school science classroom. The comprehensiveness of this decision was no doubt the Court trying to avoid further instances of school boards making similar, obviously unconstitutional decisions. The Court described at one stage how the "breath taking inanity of the board's decision is evident when considered against the factual backdrop which has been revealed through this case". The Court also noted the utter waste of personal and monetary resources resulting from this case. 24 Kitzmiller v Dover Area School District, above n 21, 63­64.