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Religion, Human Rights,
and the Workplace
Religious freedom is a fundamental and relatively uncontested right in both

the United States and Europe. But other values like equality, justice, and the
right to a private life are just as precious. Managing such conflicts has become
a highly contested and politicized area of law and nowhere are such conflicts
more evident – or more challenging – than those arising in the workplace.
By comparing United States Federal Courts’ approach to free exercise in
the workplace with that of the European Court of Human Rights, this book
explores two very different methodologies for adjudicating rights conflicts. In
examining methods and results, case by case, issue by issue and addressing each
step of the analytical processes taken by judges, it becomes apparent that the
United States has lost its way in the quest for equality and justice. It is argued
here that while the European approach has its own flaws, its proportionality
approach may offer vital lessons for United States practice.
The book will make compelling reading for researchers, academics, and
policy-makers working in the areas of law and religion, human rights law,
constitutional law, and comparative law.
Gregory Mose is a professor of international law and politics at the American

College of the Mediterranean in Aix-en-Provence, France.
ICLARS Series on Law and Religion
Series Editors
Silvio Ferrari
University of Milan, Italy
Russell Sandberg
Cardiff University, UK
Pieter Coertzen
University of Stellenbosch, South Africa
W. Cole Durham, Jr.,
Brigham Young University, USA, and Tahir Mahmood, Amity International
University, India
The ICLARS Series on Law and Religion is a new series designed to provide
a forum for the rapidly expanding field of research in law and religion. The
series is published in association with the International Consortium for Law
and Religion Studies, an international network of scholars and experts of
law and religion founded in 2007 with the aim of providing a place where
information, data and opinions can easily be exchanged among members and
made available to the broader scientific community. The series aims to become
a primary source for students and scholars while presenting authors with a
valuable means to reach a wide and growing readership.
Other titles in this series:
Law, State and Religion in Bosnia and Herzegovina

Nedim Begović and Emir Kovačević
The Church and Employment Law

A Comparative Analysis of The Legal Status of Clergy and Religious Workers
John Duddington
Business, Religion and the Law

Church and Business Autonomy in the Secular Economy
Matteo Corsalini
Religion, Human Rights, and the Workplace

Judicial balancing in the United States Federal Courts and the European
Court of Human Rights
Gregory Mose
For more information about this series, please visit: www.routledge.

com/ICLARS-Series-on-Law-and-Religion/book-series/ICLARS
Religion, Human Rights,
and the Workplace
Judicial Balancing in the United States
Federal Courts and the European
Court of Human Rights
Gregory Mose
First published 2024
by Routledge
4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
605 Third Avenue, New York, NY 10158
Routledge is an imprint of the Taylor & Francis Group, an informa
business
© 2024 Gregory Mose
The right of Gregory Mose to be identified as author of this work has
been asserted in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic, mechanical,
or other means, now known or hereafter invented, including
photocopying and recording, or in any information storage or retrieval
system, without permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
ISBN: 978-1-032-49066-3 (hbk)
ISBN: 978-1-032-49068-7 (pbk)
ISBN: 978-1-003-39205-7 (ebk)
DOI: 10.4324/9781003392057
Typeset in Galliard
by Apex CoVantage, LLC
Contents
Table of cases viii

Acknowledgments xv
Introduction: two traditions of balancing rights 1
PART I
Freedom of religion in the United States and the
European Court of Human Rights9
1 The first freedom: religious free exercise in US federal courts 11
2 Tiered review in US free exercise cases 26

Rational basis scrutiny and the emerging MFN standard 29
The mechanics of strict scrutiny 33
Determining “substantial burden” 36
Determining “compelling state interest” 41
Narrow tailoring and the “least restrictive means” test 44
Intermediate scrutiny as an ad hoc range of standards 47
Balancing as a misnomer as applied in US courts 48
3 Religious freedom in the European Court of Human Rights 51

The Convention system 51
The protection of religious freedom 56
Religious symbols and clothing 59
Conscientious objection 61
Autonomy and liberty of religious institutions 62
4 The mechanics of European proportionality analysis 69

The traditional test 71
Determining the legitimacy of aims 72
Determining suitability of limitations on free exercise 77
vi Contents
Determining necessity 79
Proportionality stricto sensu 82
The ECtHR’s modified approach to proportionality 86
Legitimate aim 88
Necessary in a democratic society and the final balance 92
PART II
Religion in the workplace 101
5 Religious conflicts in the workplace: symbols, speech, and

moral complicity 103
Common challenges and diverging approaches to
accommodation 103
The debate over religion versus other beliefs: is religion
special? 104
The role of the judiciary in granting exemptions for religion
or belief 108
Contrasting approaches to religious accommodation in the
workplace 109
The treatment of religious adornment: clothing, grooming, and
symbols 115
Adornment cases involving the public image of the
employer 117
The fact-sensitive approach to health and safety issues 125
A trend towards convergence in religious adornment
cases? 128
Proselytism and religious opinions at work 128
Compelled expression and complicity claims 134
Contrasting traditions of compelled expression 135
Complicity and the behavior of third parties 141
A disparity in focus in regard to complicity 152
Convergence and polarization in the types of claims 154
6 Religious freedom and three types of employer 156

Cases involving government or government-mandated
employers 156
Cases involving religious employers 163
Religious employers and the ministerial exception in the US 164
Additional protections for US religious employers 172
The European focus on church autonomy 174
Religious employer cases compared 179
Contents vii
Religion in the for-profit workplace 183

Debates over corporate personhood in the US courts 184
The European Court of Human Rights’ context-sensitive
balancing approach 186
The cases compared: similar reasoning, differing
preoccupations 188
Similar challenges and diverging approaches in specific
workplace environments 190
7 Assessing religious burdens and state interests 193

Evaluating the infringement and burden 194
US courts and the contentious “substantial burden” test 195
ECtHR and the flexible concept of “interference” 198
Comparing the roles of religious burden 201
Evaluating the legitimacy of state interest 202
ECtHR’s conception of “legitimate aims” in the workplace: a
permissive approach to a restricted range of objectives 203
The de-emphasized role of legitimacy in US courts 205
Comparing the two approaches to legitimate state
interests 209
Measuring the importance of the state interest 213
ECtHR’s minimalist review of state interests 213
US courts and the tiered review of state interests 216
Contrasting approaches with some common ground 223
8 Balancing religious imperatives and secular rights 226

Assessing the means/ends relationship 227
ECtHR’s deferential stance regarding the means/ends
relationship 227
The means/ends fit in US courts: a wide range of
standards 231
Comparing the review of the means/ends relationship: a
mutual concern for context 236
Assessing the means/ends/burden relationship as an overall
balance 236
The ECtHR’s decisive application of holistic balancing 237
The US courts’ evasion of genuine balancing 244
9 Conclusion: The price of free exercise 252
Index257
Table of cases
Treaties and conventions

Charter of Fundamental Rights of the European Union
Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights)
Protocol No. 15 to the European Convention on Human Rights
Protocol No. 1 to the European Convention on Human Rights
United Nations, Universal Declaration of Human Rights (1948)
US legislation and congressional reports

Senate Report No. 111–103 (1993)
House of Representatives Report No. 88–103 (1993)
Religious Land Use and Incarcerated Persons Act
Religious Freedom Restoration Act of 1993
Civil Rights Act of 1964
Other legislation
Basic Law of Israel
Constitution of the Islamic Republic of Iran
Constitution of the Republic of South Africa
Constitution of the United Republic of Tanzania
European court of justice decisions

Achbita v. G4S Secure Solutions NV
European Court of Human Rights decisions
Workplace cases
Alexandridis v. Greece
Buscarini and Others v. San Marino [GC]
Table of cases ix
Dahlab v. Switzerland
Dimitras and Others v. Greece
Dimitras and Others v. Greece (no. 2)
Dimitras and Others v. Greece (no. 3)
Ebrahimian v. France
Eweida and Others v. the United Kingdom
Fernández Martínez v. Spain
Fernández Martínez v. Spain [GC]
Kosteski v. the Former Yugoslav Republic of Macedonia
Grimmark v. Sweden
Kalaç v. Turkey
Kurtulmuş v. Turkey
Larissis and Others v. Greece
Lombardi Vallauri v. Italy
Pitkevich v. Russia
Obst v. Germany
Pichon and Sajous v. France
Schüth v. Germany
Serif v. Greece
Sessa Francesca v. Italy
Siebenhaar v. Germany
Sindicatul “Pastorul Cel Bun” v. Romania [GC]
Steen v. Sweden
Thlimmenos v. Greece [GC]
Other cases
Adyan and Others v. Armenia

Ahmet Arslan and Others v. Turkey
Angeleni v. Sweden
Arrowsmith v. the United Kingdom
Arrowsmith v. the United Kingdom
Bayatyan v. Armenia [GC]
Bayev and Others v. Russia
C. v. the United Kingdom
Campbell and Cosans v. the United Kingdom
Cha’are Shalom Ve Tsedek v. France [GC]
Chappell v. the United Kingdom
Company X. v. Switzerland
Cossey v. the United Kingdom
Dogru v. France
Dudgeon v. the United Kingdom
Dyagilev v. Russia
El Morsli v. France
Enver Aydemir v. Turkey
x Table of cases
Enver Şahin v. Turkey

Folgerø and Others v. Norway [GC]
Golder v. the United Kingdom
Grzelak v. Poland
G.Z. v. Austria
Hamidović v. Bosnia and Herzegovina
Handyside v. the United Kingdom
Hasan and Chaush v. Bulgaria [GC]
Hazar and Acik v. Turkey
Huvig v. France
Jakóbski v. Poland
Karaahmed v. Bulgaria
Khodorkovskiy and Lebedev v. Russia
Kokkinakis v. Greece
Konrad v. Germany
Konttinen v. Finland
Kustannus Oy Vapaa Ajattelija AB v. Finland
Lachiri v. Belgium
Lautsi and Others v. Italy [GC]
Leyla Şahin v. Turkey [GC]
Lustig-Prean and Beckett v. the United Kingdom
Maestri v. Italy [GC]
Mann Singh v. France
Manoussakis and Others v. Greece
Members of the Gldani Congregation of Jehovah’s Witnesses and Others v.
Georgia
Merabishvili v. Georgia [GC]
Metropolitan Church of Bessarabia and Others v. Moldova
Omkarananda and the Divine Light Zentrum v. Switzerland
Otto-Preminger-Institut v Austria
Ouardiri v. Switzerland
Phull v. France
Pretty v. the United Kingdom
Jehovah’s Witnesses of Kryvyi Rih’s Ternivsky District v. Ukraine
Rommelfanger v. Germany
S.A.S. v. France [GC]
Savda v. Turkey
Sodan v. Turkey
Sørensen and Rasmussen v. Denmark [GC]
Sovtransavto Holding v. Ukraine
Stedman v. the United Kingdom
Svyato-Mykhaylivska Parafiya v. Ukraine
The Sunday Times v. the United Kingdom (no. 1)
Valsamis v. Greece
Vojnity v. Hungary
Table of cases xi
W. v. the United Kingdom

X. v. Austria
X. v. the Federal Republic of Germany
X. v. the United Kingdom
X. and Church of Scientology v. Sweden
US federal court judgments
Workplace cases
303 Creative v. Elenis

Alcazar v. Catholic Archbishop of Seattle
Alicea-Hernandez v. Catholic Bishop of Chicago
Berry v. Department of Social Services
Biel v. St. James School
Bodett v. Cox Com, Inc.
Booth v. Maryland
Brown v. Polk County
Bryce v. Episcopal Church
Burwell v. Hobby Lobby Stores, Inc.
Cannata v. Catholic Diocese of Austin
Combs v. Central Texas Annual Conference of the United Methodist Church
Conestoga Wood Specialties Corp. v. Secretary US Dept. of Health and
Human Services
Conlon v. Intervarsity Christian Fellowship/USA
Daniels v. City of Arlington
Demkovich v. St. Andrew the Apostle Parish
Does v. Mills
Dole v. Shenandoah Baptist Church
Downing v. West Haven Board of Education
EEOC v. Abercrombie & Fitch
EEOC v. Catholic University of America
EEOC v. Fremont Christian School
EEOC v. Pacific Press Publishing Association
EEOC v. R.G. and G.R. Harris Funeral Homes Inc.
EEOC v. Roman Catholic Diocese of Raleigh
Employment Division v. Smith
Elvig v. United Presbyterian Church
Gellington v. Christian Methodist Episcopal Church, Inc.
Geneva College. v. Secretary US Dept. of Health and Human Services
Goldman v. Weinberger
Grussgott v. Milwaukee Jewish Day School, Inc.
Hollins v. Methodist Healthcare, Inc.
Hosanna-Tabor v. EEOC
Kane v. DeBlasio
xii Table of cases
Little Sisters of the Poor v. Sebelius

Little Sisters of the Poor v. Pennsylvania
Lukaszewski v. Nazareth Hospital
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
McClure v. Salvation Army
Morrissey-Berru v. Our Lady of Guadalupe School
National Institute of Family and Life Advocates v. Becerra
Nichol v. Arin Intermediate Unit 28
NLRB v. Catholic Bishop of Chicago
NLRB v. Hanna Boys Center
Our Lady of Guadelupe v. Morrissey-Berru
Peloza v. Capistrano Unified School District
Pennsylvania v. NY Methodist Hospital
Petruska v. Gannon University
Priests for Life v. US Department of Health and Human Services
Rweyemamu v. Cote
Scharon v. St. Luke’s Episcopal Presbyterian Hospital
Shaliehsabou v. Hebrew Home of Greater Washington, Inc.
Stormans, Inc. v. Selecky
Stormans, Inc. v. Wiesman (9th Cir.)
Stormans, Inc. v. Wiesman (SC)
Tagore v. United States
Tucker v. California Department of Education
United States v. Board of Education for the School District of Philadelphia
University of Notre Dame v. Burwell
Werft v. Desert Southwest. Annual Conference
Wheaton College v. Burwell (SC)
Wheaton College v. Burwell (7th Cir.)
Zubik v. Burwell
Other cases
Bendix Autolite Corp. v. Midwesco Enters., Inc.

Bowen v. Roy
Braunfeld v. Brown
Cantwell v. Connecticut
Church of the Lukumi Babalu Aye, Inc. v. Hialeah
City of Boerne v. Flores
City of Cleburne v. Cleburne Living Center
City of Seattle v. First Covenant Church
Connick v. Meyers
Cornerstone Bible Church v. City of Hastings
Craig v. Boren
Cutter v. Wilkinson
Everson v. Board of Education
Table of cases xiii
Foursquare Gospel v. City of Chicago Heights

Fratello v. Roman Catholic Archdiocese of NY
Fraternal Order of Police v. Newark
Frazee v. Illinois Department of Employment Security
Fulton v. Philadelphia
Gallagher v. Crown Kosher Super Market of Mass., Inc.
Garcetti v. Ceballos
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal
Griswold v. Connecticut
Hamilton v. Schriro
Hamilton v. Schriro
Heller v. Doe
Hernandez v. Commissioner
Hobbie v. Unemployment Appeals Commission
Holt v. Hobbs
Illinois ex rel. McCollum v. Board of Education
Jacobellus v. Ohio
Janus v. AFSCME
Jimmy Swaggart Ministries v. Board. of Equalization
Kissinger v. Board of Trustees
Lemon v. Kurtzman
Lyng v. Northwest Indian Cemetery Protective Association
Marbury v. Madison
McCulloch v. Maryland
Minnesota v. Hershberger
Obergefell v. Hodges
O’Lone v. Est. of Shabazz
Pickering v. Board of Education
Prince v. Commonwealth of Massachusetts
Rayburn v. General Conference of Seventh-Day Adventists
Reynolds v. United States
Roman Catholic Diocese of Brooklyn v. Cuomo
Romer v. Evans
Ross v. Metropolitan Church of God
Salvation Army v. New Jersey
Sherbert v. Verner
Skinner v. Oklahoma
Smith v. Employment Division
South Bay United Pentecostal Church v. Newsom
Spencer v. World Vision, Inc.
St. Bartholomew’s Church v. City of New York
Tandon v. Newsom
Thomas v. Review Board
Tinker v. Des Moines Independent Community School District
Torasco v. Watkins
xiv Table of cases
Trans World Airlines, Inc. v. Hardison

Trimble v. Gordon
United States v. Ballard
United States v. Carolene Products
United States v. Korematsu
United States v. Kuch
United States v. Lee
United States v. O’Brien
United States v. Playboy Entertainment Group, Inc.
United States v. Virginia
Welsh v. United States
West Virginia Board of Education v. Barnette
Wisconsin v. Yoder
Wooley v. Maynard
Yang v. Sturner
Acknowledgments
This book is a reworking of my doctoral dissertation completed for a joint

degree from Aix-Marseille University and the University of Hamburg.
I offer first and foremost my profound thanks to my thesis advisors Blandine
Chelini-Pont and Markus Kotzur. Their unwavering friendship, as much as
their time and expertise, helped shape this book and kept me going through-
out the long process of research and writing.
I am also deeply indebted to the other members of my thesis committee
for their valuable insights that have helped me refine this work into its pre-
sent form: Thierry Renoux from Aix-Marseille University, Andrew Koppelman
from Northwestern University, Kirsten Smalenbach from Paris Lodron Uni-
versity of Salzburg, and Stefan Oeter from University of Hamburg. Thank you
in particular to Professor Koppelman for his openness and encouragement
during my quest for a publisher.
Finally, I would like to express my gratitude to Aix-Marseille University and
the University of Hamburg for giving me the opportunity of pursuing this
research. I could never have contemplated undertaking such a task – s omewhat
late in life and alongside the continuing commitments of work and family –
without the support of the public university systems of France and Germany.
Introduction
Two traditions of balancing rights
The dilemma of conflicting religious and civic duties is an ancient one, as

perhaps most famously depicted by Sophocles in the play Antigone. There
we encounter the title character defying both king and community by bury-
ing her dead brother according to the dictates her faith. The play is still read
in schools today precisely because the central conflict remains so compelling.
Sophocles’ depiction of Antigone’s pain as she faces the impossible choice
between the law of the gods and the law of her own society strikes a chord in
audiences around the world, demonstrating that one need not believe in the
Greek gods, indeed in any god, to understand her dilemma and to empathize
with her suffering. But we do not need to look back in history for such con-
flicts. They are all around us, from the repression of Islam in Myanmar to blas-
phemy laws in Pakistan to arguments over same-sex marriage in the United
States. The ancient Greek understanding of the conflict was very different
from ours today, but over 24 centuries later the question of how to maximize
religious freedom without undermining state authority or unduly harming
others remains as urgent as ever.
Modern conceptions of human rights as enshrined in international con-
ventions and in national constitutions across the globe have arisen from the
lessons of history, which have taught us that religious freedom is a vital asset
to all of society if for no other reason than that its opposite, religious persecu-
tion, has proven so destructive. But courts have struggled to find satisfactory
ways of implementing this freedom in the face of increasing religious plural-
ism, enhanced notions of secularism, and rapidly evolving social norms that at
times challenge traditional religious conceptions of morality. We know that to
maintain a healthy liberal democracy we must find a ways to live and let live.
In situations where religious rights conflict with other fundamental rights, the
question is how?
When faced with a conflict between two rights, a principled decision as
to how to reconcile the conflict can be made either by following rules or
by applying principles. A rule-based approach would involve categorizing the
conflict and then applying the predetermined solution that is prescribed for
that category. For example, one might adopt a rule that says “in conflicts
DOI: 10.4324/9781003392057-1
2 Introduction
between religious tradition and property rights, property wins.” This would
be a very crude rule, but the point is that the outcome is predetermined once
the conflict has been categorized. Legal reasoning in rights conflicts becomes,
under such an approach, a question of taxonomy. The other approach is to
establish a set of principles that can guide decision-makers. Principles, in Rob-
ert Alexy’s formulation, are “norms requiring that something be realized to
the greatest extent possible, given the legal and factual possibilities.” They
are “optimization requirements.”1 In other words, principles-based think-
ing acknowledges that there must be some give and take between conflict-
ing priorities, and it offers guidelines to help decision-makers come to the
best possible solution. Most legal systems, when approaching the conflict of
constitutional rights, apply some form of balancing principle in an attempt to
optimize the outcome by “balancing” the interests of the parties in the specific
context of the conflict.2 Balancing is an old but awkward metaphor. Weight
is a common value by which physical objects can be compared, but by what
common value can one compare freedom of speech and the right to adequate
health care? The values are in some sense incomparable. As Supreme Court
Justice Antonin Scalia once wrote, “the scale analogy is not really appropriate,
since the interests on both sides are incommensurate. It is more like judging
whether a particular line is longer than a particular rock is heavy.”3
This is especially true where religion and conscience are involved, since
these are both constitutive of personal identity and in many cases fundamental
to our ontological and epistemological understanding of the world. Religion
(as well as conscience, for many nonbelievers) relies in part on notions of the
sacred.4 As Thomas Jefferson observed in his letter to the Danbury Baptists,
“religion is a matter which lies solely between Man & his God.”5 This raises
the stakes of limiting freedom of religion and belief, especially for the many
faithful for whom what is at stake is their immortal soul. It also complicates
any debate that touches on religion since rights bearers brought into conflict
may well have entirely different ontological assumptions. We adhere to differ-
ent truths and judges in both Europe and the United States are barred from
choosing one over another where faith is concerned. It is difficult enough for
a judge to compare speech and health care, but it seems nearly impossible to
1
Robert Alexy, “Constitutional Rights, Balancing, and Rationality,” Ratio Juris 16, no. 2
(June 2003): 131–40.
2
T. Alexander Aleinikoff, “Constitutional Law in the Age of Balancing,” Yale Law Journal 96,
no. 5 (1987): 943–44.
3
Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897 (1988) (Scalia, J.,
dissenting).
4
Mircea Eliade, The Sacred and the Profane, trans. Willard R. Trask (New York: Harcourt, 1987),
9–10.
5
Thomas Jefferson to Messrs Nehemiah Dodge, Ephraim Robbins and Stephen S. Nelson, Com-
mittee of the Danbury Baptist Association, January 1, 1802, Library of Congress.
Introduction 3
compare one’s right to proselytize their faith and another’s right to raise her
children free from what she perceives as the harmful influences of religion.
And yet deciding between such unmeasurable constitutional values is precisely
what judges must do in such cases. They can do so as taxonomists applying
rules, or they can formulate principles to guide judges and help them deter-
mine the “weight” of disparate social values in the fairest way possible. The
choice of how to do this will inevitably shape the contours of religious free-
dom and of constitutional rights more generally.
The United States has a relatively long history of religious freedom jurispru-
dence and over the years has developed a complex set of standards that involves
both categorical and balancing approaches. Those standards are evolving rap-
idly, in part because of the conservative shift in the Supreme Court under the
Trump administration and arguably in part because they were already in disar-
ray. The purpose of this book is to help clarify the current state of American
balancing in religious freedom cases that arise in the workplace and to reflect
on where it should go from here by comparing current cases and methodolo-
gies with those of the European Court of Human Rights (“ECtHR”). The
ECtHR is a very different context for rights disputes; it is a much more recent
court and is an international human rights court rather than a national Con-
stitutional Court. It is also quite different in its choice of methodology. Like
most other courts around the world, the ECtHR uses proportionality analysis,
a standard procedure that arose in German courts for exploring limitations
on constitutional rights. Proportionality exists in various forms but tradition-
ally looks at the legitimacy of the policy underlying the rights restriction, the
suitability of the restriction in achieving its policy objectives, and whether the
restriction is the least intrusive way of furthering the policy. At the end of
this enquiry, courts evaluate whether the harm caused by the rights restric-
tion is proportionate to benefits achieved. The ECtHR has adopted a form
of proportionality analysis that attempts to structure balancing in a way that
limits arbitrariness and judicial subjectivity and honor its obligations under the
principle of subsidiarity. Arguably there is no perfect approach to protecting
fundamental freedoms without shifting the burdens of accommodation onto
third parties. But by refining our understanding of the role of methodology
in the process of balancing rights, we may be better equipped to improve the
ways in which courts solve some of law’s most intractable dilemmas.
So why compare with the European Court of Human Rights? The ECtHR
is an international court put in place to monitor compliance with a regional
human rights treaty – a very different animal from the US Supreme Court
and its constellation of federal courts. But the ECtHR experience as a semi-
constitutionalized international court is nevertheless instructive. The Euro-
pean Convention on Human Rights is, after all, a sort of bill of rights for
its signatories. And while the court cannot overrule domestic laws, it does
perform three governance functions that one might expect of a Constitutional
Court in the context of rights cases: offering justice to individuals, monitoring
4 Introduction
government respect for fundamental rights, and defining the scope of such
rights.6 Most importantly, the two courts have much in common in terms of
the functions they perform and the challenges they face. Both courts must
adjudicate claims in a culturally and legally decentralized, multi-jurisdictional
environment in light of an overarching constitutional rights regime using both
textual analysis of the rights-conferring document in question as well as a con-
tested body of interpretive traditions and relevant prior case law. Both courts
employ specific modes of balancing interests that they use in conjunction with
interpretive tools allowing them to exercise judicial restraint and give defer-
ence, when necessary or appropriate, to local decision-makers. Their differ-
ing approaches share a “conception of constitutional law as a battleground of
competing interests and their claimed ability to identify and place a value on
those interests.”7 They are, in short, appropriately complex legal battlegrounds
where rights clash and where religious liberty and other freedoms must, at
times, find creative ways of making room for each other.
When it comes to detailed comparison of actual judgments in the US fed-
eral court system and the ECtHR, this book explores cases where religious
freedoms come into conflict with the rights or interests of others and does
so specifically in the context of religion in the workplace. The first choice is
significant in that it eliminates a large number of religious freedom issues such
as Establishment Clause conflicts in the US or the large body of caselaw on
the recognition and registration of religious organizations in the ECtHR. The
second choice also narrows the field of study, leaving out cases of religious
manifestation by students and prisoners, for example or limitations that affect
the general population. But the workplace is a critical battleground for reli-
gious freedom questions because it introduces a unique array of personal and
power relationships over which individuals may not have complete control. As
adults in a free society we generally have the power to decide with whom we
will spend our time – the clubs we join, the activities we pursue, the associa-
tions we become involved in, the individuals we socialize with. If we do not
approve of the people we are surrounded by, we have the option to leave.
Work is an important exception to this in several ways. First, even if in theory
we can always leave a job, in practice work may be hard to find, and the funda-
mental need to earn a living may in practice translate into a lack of real choice.
Work is best seen in this sense as a utility or a public good, like education,
voting rights, or public parks and highways, and yet it is a field that is largely
controlled by the private sector. It is for this reason that the workplace became
one of the frontlines in the civil rights battles in the United States. Until the
passage of the 1964 Civil Rights Act, employment discrimination was ram-
pant and was in large part responsible for maintaining racial segregation and
6
Alec Stone Sweet, “The European Convention on Human Rights and National Constitutional
Reordering,” Cardozo Law Review 33, no. 5 (2012): 1861.
7
Aleinikoff, “Constitutional Law,” 943.
Introduction 5
rampant inequality. Title VII of the Civil Rights Act banned employment
discrimination, but that was only part of the battle. Beyond the workplace
relationship between employers and employees, commerce in general plays a
special role in both economic and social equality. The provision of goods and
services in a capitalist society is achieved via businesses or government offices
employing civil servants, thus much of public life takes places at the nexus
among employer, employee, and customer. Discrimination in the provision
of services, like in employment, cuts the victim off from the normal stream of
commerce and become a major source of inequality. It is no coincidence that
the Civil Rights Movement was triggered, at least in part, by what has come
to be called a public accommodations case when four African American stu-
dents sat down at a Woolworth lunch counter in violation of its “whites only”
policy.8 To be equal citizens was to have equal access not only to schools and
jobs but also to the goods and services that form part of everyday life. When
interviewed about the experience years later, Franklin McCain, one of the four
men involved the Greensboro lunch counter sit-in, commented: “I had the
most wonderful feeling. I had a feeling of liberation, restored manhood. I had
a natural high. And I truly felt almost invincible.”9 To be served as an equal,
to not be singled out because of race or religion, is clearly about more than
simple access to goods. While it is easier to go to a different restaurant than it
is to get a new job, the necessity to go from business to business in search of
someone who will serve an oppressed minority not only raises unjust practical
problems for minorities but also inflicts dignitary harm. This idea of dignitary
harm was at the heart of the Civil Rights Movement and more recently has
become the focal point in a number of interesting cases in the US involving
discrimination against LGBTQ customers by business owners or against same-
sex couples by civil servants.
Faith can play a complicated role in the workplace because religion can
be either the motivation for an employer or an employee to limit the rights
of others in order not to be complicit in sin, or it might impose duties that
employers wish to prohibit. In all these cases, we see the natural and appro-
priate desire to create exemptions come into conflict with the fair treatment
of others. Such situations effectively ask third parties to forego certain rights
in favor of the religious freedom claims of the believer; to put it in more
economic terms, they risk permitting the individual manifesting his religious
beliefs to externalize the costs of his faith onto third parties. Moreover, in
the commercial or employment context, they do so precisely at a particu-
larly sensitive point of convergence of legitimate interests of the state, the
employer, the employee and, when it involves a business open to the public,
the customer. It places people of conflicting and sometime antithetical beliefs
8
Michele Norris, “The Woolworth Sit-In That Launched a Movement,” All Things Considered,
NPR, February 1, 2008, www.npr.org/templates/story/story.php?storyId=18615556.
9
Ibid.
6 Introduction
in direct proximity in a situation in which they must work together for a com-
mon goal. In short, because it is the crucible in which diversity is unavoidable
and brings religious manifestation face to face with other vital interests, the
workplace is an especially interesting field in which to examine the balancing
of interests in religious freedom cases.
To shed light on how courts address these questions, this book system-
atically compares the jurisprudence of the US federal courts and the ECtHR
through two different lenses, first looking at the context and subject matter
of the cases and then exploring the same body of cases by breaking down the
methodologies used into a series of common inquiries. The purpose of this
form of analysis is to contrast the two approaches in order to shed light on
the role that balancing methods play in delivering outcomes as opposed to the
courts merely having different visions of the role of religion in society. Chap-
ters 1 and 2 offer an introduction to the context and evolution of religious
freedom jurisprudence in the US and in the ECtHR. Chapter 3 explores the
reasoning and outcomes of cases in the two courts by breaking them down
into the broad subject matter groupings that tend to arise in the workplace:
religious symbols, proselytism, compelled expression, and other conscientious
objection cases. Chapter 4 explores the same body of cases but looks at how
outcomes are influenced by the type of employer involved, including public
sector, religious, and for-profit private sector employers. Chapters 5 and 6
then outline in some detail the predominant methodological approaches in
the two courses, while Chapters 7 and 8 compare the applications of the vari-
ous steps of these methodologies in the workplace cases.
What emerges from this discussion is that methodological differences have
a significant impact on how religious freedom is evaluated in the US and
ECtHR. First, the US system of tiered review and its accompanying categori-
cal approach to reasoning at each step of the process is fundamental to under-
standing outcomes. The choice of tier of review is usually decisive because each
step acts as a potentially decisive threshold. This approach tends to undermine
any genuinely principled holistic balancing of interests even when they use bal-
ancing rhetoric, since the tiers when rigidly applied tend to remove discretion
from judges. But the politicized nature of the court – not a new phenome-
non but one which surged enormously under the Trump administration –
has arguably favored the instrumentalization of methodology as a means of
essentially rigging the outcomes of religious freedom cases. By pushing the
categorical nature of US balancing to (and many would say well beyond) its
logical limits, the new conservative court has turned the legal protection of
religious interests into weapon against progressive political choices, locking
in conservative liberties in a way that undermines the role of the federal gov-
ernment in protecting the rights of vulnerable social groups. In contrast, the
ECtHR assembles the outcomes of the inquiries listed earlier into a holistic
balancing of interests. While the result is that religious interests do not win as
often in the ECtHR, proportionality provides courts with sufficient flexibility
Introduction 7
to address the nuances of each case. And while the ECtHR does a poor job
of providing detailed explanations of its reasoning in many cases, the results
generally appear to reflect the complex interplay of principle, context, and
national traditions.
The importance of protecting religious freedom, as well as remaining sen-
sitive to other human rights, is something that most people can agree upon.
Questions over the content of those rights, however – and which rights must
give way to others – will necessarily swim in the brackish waters of where
law, philosophy, and politics combine. Ideology and political expediency will
certainly continue to play a role and influence legal outcomes. It is perhaps
too strong to say that methodology trumps ideology; however, these cases
demonstrate how choices of methodology can set different permissive condi-
tions for the enactment of ideology. This fact – and the influence it has on
the outcomes of such fundamental questions as religious freedom and social
justice – will have important repercussions on the legitimacy of courts as they
continue to wrestle with “culture war” conflicts in the years to come.
Part I
Freedom of religion in
the United States and the
European Court of Human
Rights
1 The first freedom
Religious free exercise in US
federal courts
Religion was at the heart of the American colonial experience, but religious
freedom was not a central concern during the drafting of the Constitu-
tion. There was in fact vigorous debate over whether individual rights even
belonged in the new roadmap for the republic, and the Bill of Rights was
included as amendments rather than as a central part of the original draft.
Even the First Amendment, as written, did not envisage a very strong pro-
tection for the right to worship as one saw fit; in fact, the early years of the
republic were characterized by a broad consensus that the precise details of the
relationship between religion and government were best left to the states so
long as there was no clear persecution or religious establishment. By 1833 all
state constitutions contained religious liberty provisions that largely paralleled
those of the First Amendment. Moreover, the population of the United States
was overwhelmingly Christian, with most citizens belonging to one of various
Protestant denominations or a sizeable Catholic minority in some states. Over
the course of the nineteenth century, however, the religious landscape of the
US changed drastically. The Second Great Awakening gave birth to a wide
variety of new Christian sects. Immigration from Europe vastly increased the
Catholic presence in America, and the end of slavery brought to light variants
of Christianity and Islam that had been prevalent, if largely hidden, among the
African-American population in the South.1 These social changes began to put
stress upon the comfortable background assumption that mainstream Christi-
anity was the norm to which minorities needed, at least externally, to conform.
It was in this context that the Supreme Court faced its first free exercise
challenge. In Reynolds v. United States,2 a Mormon plaintiff cited the First
Amendment as a defense against an anti-bigamy law in the territory of Utah.
After carefully discussing the history of anti-bigamy laws, the court found that
the territory was well within its right to outlaw the practice, and that “religious
1
See generally John Witte Jr., “History of Religious Liberty in America,” Freedom Forum
Institute, January 3, 2003, www.freedomforuminstitute.org/first-amendment-center/topics/
freedom-of-religion/religious-liberty-in-america-overview/.
2
Reynolds v. United States, 98 U.S. 145 (1878).
DOI: 10.4324/9781003392057-3
12 Freedom of religion in the United States and the European Court
freedom” meant freedom to believe but not necessarily freedom to act. Chief
Justice Waite concluded that “Laws are made for the government of actions,
and while they cannot interfere with mere religious belief and opinions, they
may with practices.”3 To permit exemptions, Waite explained, would be to
“permit every citizen to become a law unto himself. Government could exist
only in name under such circumstances.”4 Taken to its logical conclusion, he
argued, such an approach would oblige the government to recognize religious
practices such as human sacrifice.
Reynolds set a very low bar for state governments wishing to limit religious
freedom. So long as the law targeted the forum externum rather than the
forum internum, Reynolds suggested that the states were free to limit religious
practices that they deemed harmful. The act/belief distinction is appealing for
a number of reasons, both practical and cultural. Most salient, however, is that
if taken seriously, the belief/action distinction has the effect of rendering the
Free Exercise Clause almost meaningless. In practice, the state has little or no
means to actually compel belief. One may persuade and punish, but the state
simply has no power to make someone believe something against their will.
Thus with the belief/action distinction intact, the Free Exercise Clause merely
prohibits the state from doing something that it could not in practice achieve
anyway. The case is not meaningless – it reaffirms that the federal govern-
ment cannot deliberately single out one religion for disparate treatment and
prevents it from prohibiting or compelling beliefs. But protection for religion
remained strikingly weak. In practice federal law could regulate behavior in
such a way that limited the practice of religion so long as the law applied to
everyone. The importance of the practice in question was not relevant, so long
as the law had a rational basis. Moreover, during this period it was not clear
whether the Free Exercise Clause applied to state laws.
The situation began to change in the 1930s and 1940s, when a series of
Supreme Court cases, especially Cantwell v. Connecticut 5 and Everson v. Board
of Education,6 explicitly extended the provisions of the First Amendment’s
Free Exercise Clause (Cantwell) and Establishment Clause (Everson) to states.
This was achieved through what has come to be known as the “selective incor-
poration doctrine.” The Bill of Rights was drafted with specific concerns in
mind about the dangers of a strong federal government, and thus the wording
of the first ten amendments is specifically aimed at limiting powers of Con-
gress. The “selective incorporation doctrine,” developed in a variety of cases
over the course of the twentieth century, interprets the Fourteenth Amend-
ment’s due process clause, which prohibits states from depriving any person
of “life, liberty or property, without due process of law,” as “incorporating”
3
Reynolds, 98 U.S. at 166.
4
Reynolds, 98 U.S. at 167.
5
Cantwell v. Connecticut, 310 U.S. 296 (1940).
6
Everson v. Bd. of Educ., 330 U.S. 1 (1947).
The first freedom 13
many of the fundamental rights in the Bill of Rights and thereby applying
them to state law. Since restrictions on the free exercise of religion mostly
occurred at the state level, the incorporation of the religion clauses effectively
paved the way for a far more robust judicial enforcement of religious freedom,
which would become increasingly relevant as the religious demographics of
the United States continued to diversify and America underwent “deseculari-
zation” towards the end of the twentieth century.7
In the two decades after Cantwell, the court gradually expanded the right
to free exercise and in doing so continued to nuance the ways in which bal-
ancing tests might operate. It affirmed that a jury was not at liberty to ques-
tion the truth or falsehood of a religious belief8 and that state governments
make a profession of belief in God a requirement for holding public office.9
But government still retained great scope for action that burdened religion,
and it would take another two decades for a truly significant shift in free exer-
cise jurisprudence. The real leap forward in terms of elaborating a structure
for balancing in religion cases came in 1963 with the court’s landmark deci-
sion in Sherbert v. Verner,10 which created a controversial judicial standard that
continues to influence religious freedom cases today. Adele Sherbert worked
in a textile mill in South Carolina and, in 1957, became a member of the
Seventh Day Adventist Church. Her religious conversion posed no problems
until 1959, when her employer adopted a six-day work schedule that included
work on Saturdays. Sherbert declined to work on Saturday, citing her belief
that she may do no work on Saturday, which is the day of Sabbath for Seventh
Day Adventists. She was fired, and when she sought employment at other
textile mills in the area found that they too had adopted a work schedule
that included Saturdays. Unable to find a job, she applied for unemployment
benefits. The terms for receiving unemployment compensation in South Caro-
lina, however, stipulated that an applicant would be disqualified from receiving
benefits if she failed “to accept available suitable work.”11 The question before
the court was whether, in denying compensation to Ms. Sherbert, the State of
South Carolina had violated her right to free exercise under the First Amend-
ment, as applied to the state by the Fourteenth Amendment.
Citing Cantwell, Torasco, and other cases, Justice Brennan began the court’s
analysis by reaffirming that the state is barred from specifically regulating reli-
gious belief but, following the line of argument in Reynolds, noted that actions
resulting from those beliefs may be regulated. In cases where the court had
previously upheld laws affecting free exercise, Brennan noted that there had
7 See generally Peter L. Berger, “The Desecularization of the World: A Global Overview,” in
The Desecularization of the World: Resurgent Religion and World Politics, ed. Peter L. Berger
(Grand Rapids: William B. Eerdmans Publishing Company, 1999), 1–18.
8 United States v. Ballard, 322 U.S. 78 (1944).
9 Torasco v. Watkins, 367 U.S. 488 (1961).
10 Sherbert v. Verner, 374 U.S. 398 (1963).
11 Sherbert, 374 U.S. 374, 410 at n3 (citing South Carolina Code, Title 68, §§ 68–114).
always been some kind of “substantial threat to public safety, peace or order.”12
This left only two possible justifications to uphold the lower court’s ruling in
favor of the state: either Ms. Sherbert’s right to free exercise was not substan-
tially burdened or, following the accepted legal standard in cases implicating
the infringement of fundamental rights, there was a “compelling state inter-
est” at stake. Neither justification applied, so the court held for Ms. Sherbert.
This constituted a fundamental shift in the court’s jurisprudence on reli-
gious freedom. Prior to Sherbert, courts had followed the line of cases pro-
ceeding from Reynolds and applied a “rational basis” test to determine the
validity of laws that incidentally infringed upon free exercise rights. This test
had evolved from the due process clause of the Fourteenth Amendment and
involved the notion that any law that infringed upon liberty had to have a
rational basis. This was, naturally, an easy requirement to meet; the rational
basis test merely required that there be some logical relationship between the
law and a permissible objective of legislation. The court in Sherbert was now
applying this more rigorous standard to free exercise cases, establishing what
has come to be known as the Sherbert test. In balancing the right of a claim-
ant to an exemption from a law or regulation pursuant to his or her right to
freely exercise his or her religion, the court determined that any state action
that substantially infringed on a claimant’s free exercise of religion is a viola-
tion of the First Amendment unless the government can demonstrate that the
action was narrowly tailored in pursuit of a compelling state interest. Quoting
its decision in Thomas v. Collins, the court described such instances as being
limited to “the gravest abuses, endangering paramount interests.”13 With this
formulation, the court gave its first clear explanation of what has come to be
known as the “strict scrutiny” standard.14
The court was given an opportunity to apply and to refine the Sherbert test
when in 1972 it was asked to weigh religious freedom against the state’s inter-
est in compulsory education in Wisconsin v. Yoder.15 The state claimed that its
interest in universal compulsory education outweighed the respondents’ free
exercise claim that their faith required an exemption from compulsory high
school education. Following the Sherbert test, the court evaluated the burden
imposed on the Amish and then scrutinized at the state’s interest in mandatory
secondary education, noting that it serves to teach self-reliance and prepares
citizens to participate meaningfully in political life. It determined that two
more years of education, however, would not further these interests in any
crucial way. Given that the burden was significant and touched upon an aspect
of life that was central to the Amish faith, and that the interest of the state was
12 Sherbert, 374 U.S. at 403.

13 Sherbert, 372 U.S. at 406 (quoting Thomas v. Collins, 323 U.S. 516, 530 (1945)).
14 Stephen A. Seigel, “The Origin of the Compelling State Interest Test and Strict Scrutiny,”
American Journal of Legal History 48, no. 4 (2006): 380.
15 Wisconsin v. Yoder, 406 U.S. 205 (1972).
not compelling enough to outweigh the religious burden, the court decided
in favor of Yoder. In doing so, Wisconsin v. Yoder reaffirmed Sherbert’s strict
scrutiny requirement and nuanced it by providing a model for how to balance
the state’s interests against burdens imposed on the free exercise of religion. In
addition, as part of this balancing test the court confirmed that a law need not
directly compel acts contrary to religious doctrine to be considered a substan-
tial burden so long as the law had a substantial impact on aspects of religious
life that are central to the faith in question.
For the next 30 years the court struggled to make sense of the approach
mandated in Sherbert and Yoder. Faced with a threshold test that, if honestly
applied, would permit almost any religiously inspired behavior, the courts felt
obliged to find interpretive strategies that would allow them to continue to
place limits on the right to religious exemptions. One strategy was to exclude
certain types of cases from strict scrutiny altogether or to radically diminish
its requirements During the Sherbert period, the court carved out a variety of
cases involving the military and the prison system.16 Goldman v. Weinberger,17
for example, involved a challenge to Air Force uniform regulations that for-
bade the wearing of any headgear indoors, with only armed security police
being exempted while in the course of their duties. The Supreme Court
refused to apply the Sherbert test, arguing that “[the court’s] review of military
regulations challenged on First Amendment grounds is far more deferential
than constitutional review of similar laws or regulations designed for civilian
society.”18 The military, in short, is a specialized society to which strict scrutiny
was not applicable. Similarly prison cases were carved out as involving spe-
cial circumstances.19 In other cases involving government benefits, the court
declined to apply the Sherbert test either by denying that there was any real
burden20 or by emphasizing the government’s need for efficiency in providing
uniform access to benefits programs.21
Yet in practice, during the almost 30 years that Sherbert governed free exer-
cise cases, strict scrutiny clearly accounted for a victory for religious claimants
in only four Supreme Court cases.22 A broader study that looked at all federal
and appellate court decisions between 1980 and 1990 found that 85 out of 97
religious exemption claims were denied in spite of Sherbert’s so-called “fatal”
16 Christopher L. Eisgruber and Lawrence G. Sager, Religious Freedom and the Constitution
(Cambridge: Harvard University Press, 2007), 43.
17 Goldman v. Weinberger, 475 U.S. 503 (1986).
18 Goldman, 475 U.S. at 507.
19 For example, see O’Lone v. Est. of Shabazz, 482 U.S. 342 (1987).
20 Bowen v. Roy, 476 U.S. 693 (1986), Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S.
439 (1988).
21 United States v. Lee, 455 U.S. 252 (1982).
22 Eisgruber and Sager, Religious Freedom, 43. The cases were Wisconsin v. Yoder, 406 U.S. 205
(1972), Frazee v. Illinois Dep’t of Employment Sec., 489 U.S. 829 (1989), Hobbie v. Unemploy-
ment Appeals Comm’n, 480 U.S. 136 (1987), and Thomas v. Rev. Bd., 450 U.S. 707 (1981).
strict scrutiny standard.23 To put this in context, the survival rate for laws sub-
jected to strict scrutiny cases between 1990 and 2003 was approximately 30%.
This rated drops to 24% if religious liberty cases are excluded. In contrast, laws
affecting religious liberty and subjected to strict scrutiny showed a survival rate
of 59%.24 This would suggest that strict scrutiny, whatever its merits, was not
functioning in religious liberty cases in the same way that it was being applied
in other areas of law.
Ultimately this struggle led the court to reevaluate the Sherbert test in 1990
in Employment Division v. Smith.25 The conflict in Smith arose when Alfred
Smith was fired from his job for ingesting peyote in connection with the sacra-
ment of the Native American Church. He subsequently applied for unemploy-
ment compensation and was refused on the grounds that he had been fired
for work-related misconduct.26 The case reached the US Supreme Court in
March of 1989. Justice Scalia, writing for the majority, frames the question as
whether or not it is Constitutionally permissible for Oregon to outlaw peyote
use without offering an exemption for sacramental use. Having shifted the
discussion away from employment rights and onto the government’s right to
prohibit controlled substances, Scalia changed the nature of the debate and
was thus able in his subsequent arguments to distinguish Sherbert and other
unemployment compensation cases, which he saw as a category separate from
general criminal prohibitions. Relying on Reynolds, he asserts that the court
has “never held that an individual’s religious beliefs excuse him from compli-
ance with an otherwise valid law prohibiting conduct that the State is free to
regulate.”27 To further distinguish prior cases, Scalia introduces what has come
to be called the “hybrid rights doctrine,” in which he asserts that all similar
cases in which the court upheld a right of exemption from generally applicable
laws had involved “hybrid cases,” that is, cases in which the free exercise claim
was coupled with another important interest such as the Establishment Clause,
free speech, or parental rights.
The result of the decision was thus, first and foremost, a rejection of the use
of balancing tests in what constitutes the majority of free exercise cases, i.e.
cases involving generally applicable laws that inadvertently place a burden on
religious practice. Instead, it stands for the proposition that “any government
action of general applicability is now categorically constitutional against a free
23
See James E. Ryan, “Smith and the Religious Freedom Restoration Act: An Iconoclastic Assess-
ment,” Virginia Law Review 78, no. 6 (1992): 1407–62. For a broader view of strict scrutiny
in federal courts, see Adam Winkler, “Fatal in Theory and Strict in Fact: An Empirical Analysis
of Strict Scrutiny in the Federal Courts,” Vanderbilt Law Review 59, no. 3 (2006): 793–871.
24 Winkler, “Fatal in Theory,” 815.
25 Employment Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872 (1990).
26 For a detailed and fascinating account of the events surrounding the Smith case, see Garrett
Epps, “To an Unknown God: The Hidden History of Employment Division v. Smith,” Ari-
zona State Law Journal 30 (1998): 953–1021.
27 Smith, 494 U.S. at 878–79.
exercise challenge, regardless of the burden it places on an individual’s ability

to exercise his religious beliefs.”28 This was a major departure from previous
case law and tradition since Sherbert. While Scalia admits that this approach
may disadvantage minority faiths, he concludes that this is an “unavoidable
consequence of democratic government [and] must be preferred to a system
in which each conscience is a law unto itself.”29
The court’s decision in Smith attracted immediate and vociferous condem-
nation from critics across the political spectrum, and it continues to be one
of the more vilified Supreme Court decisions in recent memory. Many in the
legal community felt that the decision left the status of free exercise law in
complete disarray, while others complained that the decision was relatively
clear but evidently wrong on a number of levels.30 To jettison strict scrutiny
in the majority of free exercise cases, most commentators seemed to agree,
was to deal a stunning blow to religious freedom and constituted a step back-
wards in rights jurisprudence. A group of 55 Constitutional scholars and a
disparate group of religious and human rights organizations signed a petition
for rehearing, but the court declined.31 State and federal courts were forced in
the aftermath of Smith to scramble to interpret the new Smith doctrine in the
light of their own precedents. This led to a variety of conflicting approaches
and a gradual working out of details at all levels of the judicial system, includ-
ing both state courts and federal courts, as well as subsequent rethinking and
refinements undertaken by the Supreme Court itself.
To understand the state court reactions to Smith and their subsequently
divergent path in free exercise cases, it should be remembered that the states
were originally seen as the primary protectors of religious freedom. The Bill
of Rights was conceived of initially as a means of protecting the people and
the states from the threat of an overreaching federal government, and it was
widely presumed that the states, since they are smaller communities and hence
seen as more democratically accountable to their citizens, would protect reli-
gious liberty not only with their own state constitutional provisions covering
free exercise but also through the legislative process. It was only after 1940
when Cantwell v. Connecticut explicitly applied the free exercise to the states
by the doctrine of selective incorporation that state courts needed to consider
28 Chris Day, “Employment Division v. Smith: Free Exercise Clause Loses Balance on Peyote,”
Baylor Law Review 43 (1991): 577.
29 Smith, 494 U.S. at 890.
30 For a representative selection see Randy T. Austin, “Employment Division v. Smith: A Giant
Step Backwards in Free Exercise Jurisprudence,” Brigham Young University Law Review 1991,
no. 3 (1991): 1331–52; Day, “Employment Division v. Smith”; Michael W. McConnell, “Free
Exercise Revisionism and the Smith Decision,” University of Chicago Law Review 57 (1990):
1109–53; Kenneth Marin, “Employment Division v. Smith: The Supreme Court Alters the
State of Free Exercise Doctrine,” American University Law Review 40, no. 4 (1991): 1431–76.
31 Petition of Rehearing, Employment Div., Dep’t of Hum. Res. of Or. v. Smith, 496 U.S. 913
(1990) (reh’g denied).
federal free exercise concerns and overlapping jurisdiction with federal courts
on religious liberty issues. Since the strict scrutiny requirement imposed by
Sherbert was more stringent than most state constitutional provisions, state
courts had for years since Sherbert deferred to federal law when examining
free exercise cases to the exclusion of state constitutional law. This reliance of
federal law resulted in a lack of state constitutional jurisprudence on religious
freedom.32 State free exercise doctrine was, with a number of exceptions where
state constitutions already imposed an independent strict scrutiny standard,
filed away as a dead letter or historical curiosity.33 Thus when Smith replaced
the Sherbert strict scrutiny standard with a rational basis test in cases involving
laws of general applicability, state courts were once again obligated to chart
their own court and resume the construction of state constitutional jurispru-
dence in free exercise claims. Ironically, Smith served to revitalize what had
always been an anemic or nonexistent body of state constitutional free exercise
jurisprudence, providing in many states a renewed opportunity to craft balanc-
ing tests.
Federal courts, on the other hand, had no separate constitutional tradition
to fall back on and diligently set about applying the holdings in Smith to their
free exercise caseload. The results were, unsurprisingly, harsher on free exer-
cise claims.34 Whereas in the pre-Smith period most claims were denied, there
was usually at least some consideration of the opposing interests via the bur-
den analysis and the compelling state interest analysis. After Smith, there was
no longer even a requirement to undertake such balancing tests. The results
were at times manifestly unjust. In Yang v. Sturner,35 for example, the District
Court of Rhode Island was obliged to permit an autopsy to be performed on a
Hmong man against the vehement religious objections of his family. In finding
against the family in its pursuit of damages, the judge expressed his sympathy
for the plaintiffs, noting that he had “seldom, in twenty-four years on the
bench, seen such a sincere instance of emotion displayed. . . . Nevertheless,
I feel that I would be less than honest if I were to now grant damages in the
face of the Employment Division [v. Smith] decision.”36 These cases demon-
strate not only the conceptual difficulties facing the court in interpreting the
Smith decision but also the sheer frustration in the lower federal courts with a
standard that proved almost immediately to be demonstrable setback for the
judicial protection of religious freedom.
32
Angela C. Carmella, “State Constitutional Protection of Religious Exercise: An Emerging
Post-Smith Jurisprudence,” Brigham Young University Law Review 1993, no 1 (1993): 299.
33
States with independently robust strict scrutiny requirements were Tennessee, Maine, Missis-
sippi, and Kentucky.
34
Michael P. Farris and Jordan W. Lorence, “Employment Division v. Smith and the Need for
the Religious Freedom Restoration Act,” Regent University Law Review 6 (1995): 65.
35
Yang v. Sturner, 750 F. Supp. 558 (D. R.I. 1990).
36
Yang, 750 F. Supp. at 559.
The Supreme Court itself followed up on Smith by remanding several cases

to lower courts in light of the new standard of review,37 but its own oppor-
tunity to apply its newly minted doctrine came only in 1993. The case of the
Church of the Lukumi Babalu Aye, Inc. v. Hialeah38 concerned the Santeria
faith, a religion which practices animal sacrifice. In 1987 the church leased a
plot of land in Hialeah with the intention of building a Santeria church. City
Council passed a Resolution expressing its concern about religions that “may
propose to engage in practices which are inconsistent with public morals peace
or safety.” The Council went on to pass several ordinances targeting the killing
of animals “in a public or private ritual or ceremony not for the primary pur-
pose of food consumption” as a subset of the “unnecessary killing” prohibi-
tion that already existed under state law. Mindful of the slaughtering practices
ordained for halal and kosher food, the ordinances were careful to stipulate an
exemption for “licensed establishments” that conducted ritual slaughter for
food purposes. The Church responded by filing a complaint relying in part on
the Free Exercise Clause of the First Amendment.
The Supreme Court ruled for the Church and in the process clarified how
the Smith standard is meant to work. The crux of Smith was its holding that
strict scrutiny is not required when religiously motivated conduct is prohib-
ited by what Justice Scalia called “neutral, generally applicable laws.” Lukumi
gave the court the opportunity to clarify this phrase and the two-tier system of
review that it created: if a law is found to be neutral and generally applicable,
it passes the Smith test, but if not, the law must pass the strict scrutiny test.
While there was not a full discussion of what “general applicability” involves
in theory, Justice Kennedy’s opinion in Lukumi provides a rough framework
for what considerations are relevant in any determination of general appli-
cability. It is not necessary for a law to be universally applicable to everyone
without exception, but once exceptions are made, the court must then play
close attention to whether the law, in its system of exemptions, favors secular
concerns over religious concerns and thus creates a kind of “religious gerry-
mandering.” As Kennedy puts it, “[a]ll laws are selective to some extent, but
categories of selection are of paramount concern when a law has the incidental
effect of burdening religious practice.” What this would seem to indicate is
that if exemptions are made, religious concerns should be taken as seriously as
the very highest of secular concerns or, as Douglas Laycock put it, religious
practices are given a kind of “most-favored-nation status” (“MFN”) among
secular concerns, a reference to international trade practice of granting equal
trade advantages to all nations accorded MFN status.39 If religious concerns
are treated as well as the most favorably treated nonreligious concerns, then
37 Minnesota v. Hershberger, 494 U.S. 901 (1990) and City of Seattle v. First Covenant Church,
499 U.S. 901 (1991).
38 Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).
39 Douglas Laycock, “The Remnants of Free Exercise,” 1990 SUP. CT. REV. 1, 49–50.
the restrictions the law imposes on religious practice do not violate the Free
Exercise Clause. If they do not, the court must subject the law to a strict scru-
tiny analysis.
Justice Kennedy’s opinion includes a vigorous defense of the standard to
be applied in such cases, insisting the limitations in such circumstances must
advance “ ‘interests of the highest order’ ” and must be narrowly tailored in
pursuit of those interests. The compelling interest standard that we apply once
a law fails to meet the Smith requirements is not “water[ed] . . . down” but
“really means what it says.”40 Few laws, this seems to suggest, will survive
this exacting standard. Yet given the progressive dilution of the strict scrutiny
standard in the period between Sherbert and Smith, Justice Kennedy’s remarks
leave open the question of just which “strict scrutiny” standard he is referring
to. By asserting that strict scrutiny will not be “watered down,” is he saying
that the court would be reconsidering some of the jurisprudence that seemed
to “water down” the original Sherbert test? Is this a return to the “good old
days” when strict scrutiny “meant what it said?” If so, it would nonetheless
reintroduce such scrutiny only in cases that were not neutral and generally
applicable, when in fact the controversy over Smith resided in its position on
cases like the peyote sacrament in which laws are not drafted with religion in
mind but where the incidental effects of these neutral laws impose a dispropor-
tionate burden on the religious practices or requirements of a specific religious
group or individual.
In the wake of the Smith decision, Congress did not wait to see how the
Supreme Court or the lower courts would interpret its holding. A few months
after the decision, Representative Stephen Solarz introduced the first version
of the Religious Freedom Restoration Act (the “RFRA”) in the House of
Representatives.41 Solarz seemed optimistic about the bill’s chance of quick
passage, announcing before Congress that “in the history of the Republic,
there has rarely been a bill which more closely approximates motherhood and
apple pie . . . [i]n fact, I know, at least so far, of no one who opposes the
legislation.”42 The debate over RFRA would last a full three years, as it was
held up over concerns about implications for abortion rights, but eventually
passed unanimously in the House and nearly so in the Senate and was signed
into law by President Clinton in November 1993.
The law reiterates the strict scrutiny standard: it applies to laws that are of
general applicability and impose and incidental but substantial burden, and
it stipulates the use of the compelling governmental interest test and least
restrictive means test. But as we have seen from the evolution of free exercise
jurisprudence between Sherbert and Smith, strict scrutiny did not prove as
40 Lukumi, 508 U.S. at 546.

41 Robert F. Drinan and Jennifer I. Huffman, “The Religious Freedom Restoration Act: A Leg-
islative History,” Journal of Law and Religion 10, no. 2 (1993): 531–41.
42 Ibid., 534.
straightforward or as “fatal in fact” as it had done in equal protection or free

speech cases. Looking at the sweep of case law in that period, one must con-
clude that strict scrutiny in free exercise jurisprudence was a moveable feast,
in which from year to year courts defined, redefined, narrowed, and carved
out exceptions from the seemingly simple and clear principle established in
Sherbert.
RFRA raises some difficult questions. How should courts construe the sub-
stantial burden requirement given that the concept was applied inconsistently
during the period between Sherbert and the drafting of RFRA? How should
RFRA be applied to areas such as the military, prisons, or internal government
procedures? These areas came to be seen as special enclaves within which strict
scrutiny was not applied even under the Sherbert test, so logically if RFRA
really does return to strict scrutiny as applied before the Smith decision then
it might seem that enclave cases would be unaffected. The legislative history
and both Senate and House Reports accompanying RFRA, however, suggest
otherwise.43 Finally, it was not entirely clear that Congress had the Constitu-
tional authority to enact a statute specifying what standard of review courts
must adopt in a constitutional question. Ironically, what RFRA does is encap-
sulate a kind of argument between the court and Congress, in which the court
has asserted that the compelling interest test is not workable and Congress’
response was simply to disagree and tell the courts to apply it anyway.
In the several years that followed the passage of RFRA, the courts helped
to answer many of these questions. As it happened, prison and zoning cases
took up a large proportion of the free exercise caseload. Even under RFRA,
prison administers tended to be accorded a high degree of deference. In fact,
a thorough look at the 168 RFRA related cases in the period of the law’s full
implementation (from its passage in 1993 to the Supreme Court’s ruling it
unconstitutional with regard to states in 1996) reveals a striking predomi-
nance of prison cases is striking: of these 168 cases, 99 involved prison litiga-
tion. Of these, the court denied relief in 85.44 If RFRA had been passed in the
interest of offering robust protection of religious freedom, it seemed to have
failed. The government’s interest in managing prisons was generally seen as
compelling enough to overcome religious freedom concerns. In Gonzales v. O
43 The question of prisons in particular posed a serious obstacle to RFRA’s passage and was the
subject of a last-minute amendment by Senator Harry Reid (D-NV), which would have explic-
itly excluded prisons from RFRA’s mandated strict scrutiny. The amendment was defeated,
indicating that Congress intended RFRA to apply to prisons. In fact, both House and Senate
Reports indicated that as they see it RFRA would overturn O’Lone. Likewise, the Reports
indicate that RFRA is also meant to apply in military contexts and would overturn Goldman.
See generally Ira C. Lupu, “Of Time and the RFRA: A Lawyer’s Guide to the Religious Free-
dom Restoration Act,” Montana Law Review 56, no. 1 (1995): 188 et seq. See also S. Rep.
No. 111–03, at 9–10 (1993) and H.R. Rep. No. 88–103, at 8 (1993).
44
Ira C. Lupu, “The Failure of RFRA,” University of Arkansas at Little Rock Law Review 20,
no. 3 (1998): 591.
Centro Espirita Beneficente Uniao do Vegetal, however, the Court expanded on

its understanding of the compelling interest test.45 Specifically, it clarified that
general arguments about the state’s interests are not enough; rather, what is at
issue is whether the measure is necessary as applied “to the person” or organi-
zation in question. This development promised to give new life to RFRA and
has helped transform it into a formidable obstacle to any state action that
burdened religious freedom by obliging the government to justify why, in any
given case, an individual exception could not be made.
RFRA in fact no longer applies to state laws. In 1996 the Supreme Court
held that RFRA cannot be applied to states because it does not fall within
Congress’ enforcement power under 5 of the Fourteenth Amendment. As
Justice Kennedy explains in the majority opinion, “RFRA is so out of propor-
tion to a supposed remedial preventive object that it cannot be understood as
responsive to, or designed to prevent, unconstitutional behavior. It appears,
instead, to attempt a substantive change in constitutional protections.”46
RFRA changes the content of the First Amendment right to free exercise of
religion; in doing so, it is unconstitutional as applied to the states.
Whether or not the partial invalidation of RFRA drastically affected the
protection of religious freedom in the US is debatable.47 However, the impact
of this case was significant in that it fractured the already complex landscape
of American religious freedom law. Before RFRA was enacted, cases involv-
ing religious freedom needed to be situated among various possible jurisdic-
tions, sources of law, and legal standards. A plaintiff may have had recourse
to a First Amendment religious freedom claim, a state constitutional claim,
a First Amendment free speech claim if religious expression were an issue, a
Fourteenth Amendment due process or equal protection claim, and/or a Title
VII claim under the Civil Rights Act if the case involved workplace discrimi-
nation. RFRA essentially replaced the old Smith standard for First Amend-
ment religious freedom claims with a new, stricter standard. City of Boerne
resuscitated the Smith standard for state claims but left the RFRA standard for
federal claims, hence bifurcating federal constitutional claims into two very
different types of cases involving different arguments, different strategies, and
very different likelihoods of success for plaintiffs. In 2006, Congress added
another moving part in the form of the Religious Land Use and Incarcerated
Persons Act (RLUIPA), which applies additional protections for zoning case
and prison cases.48 In addition, 21 states have passed their own versions of the
RFRA since Boerne, sometimes known as mini-RFRAs, in order to mirror the
45 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 423 (2006).
46 City of Boerne, 521 U.S. at 532.
47
For example, see Ira C. Lupu, “Why the Congress Was Wrong and the Court Was Right – Reflections
on City of Boerne v. Flores,” William & Mary Law Review 39, no. 3 (1997–1998): 798.
48
Religious Land Use and Incarcerated Persons Act, 42 U.S.C. §§ 2000cc–2000cc-5 (2006).
federal RFRA protections on the state level.49 Many states that have not passed
such mini-RFRAs already provide something akin to strict scrutiny in their
state constitutions.50
Much of more recent litigation concerning RFRA has involved resist-
ance to the application of the Affordable Care Act (the “ACA”), the sweep-
ing health care reform legislation brought in by the Obama administration
in 2011. The ACA required employers to provide health insurance for their
employees, and what those insurance policies would be required to cover is
set out in a series of administrative rules issued by the Department of Health
and Human Services (the “HHS”). The “contraceptive mandate” stipulates
that female contraception must be covered without copayment; an exception
was made for churches and other houses of worship but was not available for
religiously-affiliated charities or universities. In Burwell v. Hobby Lobby, the
Christian owners of a chain of hobby supply stores objected to having to pay
for insurance that might be used by their employees for contraception.51 They
argued that this would make them complicit in the sins of others and was
thus a violation of their religious freedom. The government argued in part
that Hobby Lobby merely had pay for insurance and could not be considered
responsible for what their employees may use it for. The Supreme Court held
for Hobby Lobby, stating that even a business could exercise religion and that
so long as they felt complicit in sin by providing insurance coverage, their free
exercise of religion had been burdened. Similar cases were filed by a variety
of religious nonprofit organizations; a compromise had been reached to allow
such organizations to opt out, but to do so they were required to notify the
Department of Health and Human Services of their objection.52 This, the
nonprofits argued, was insufficient, because they felt complicit in sin simply by
signing the opt-out form, since that would alert the HHS and lead eventually
to their employees receiving coverage for contraceptive services that they, the
employers, objected to. The Supreme Court again ruled for the non-profits,
arguing that a less restrictive means might have been used to alert HHS to
their religious objections. These cases greatly expanded plaintiffs’ potential
arguments regarding the burden prong and the least-restrictive-means prong
of strict scrutiny under RFRA.
Protection of religious freedom has not heretofore constituted a strongly
ideological fault line in US courts; while political conservatives have increas-
ingly identified with the Christian right, conservative justices have not always
reflexively given preference to religion over other concerns. The Smith case
49 See “State Religious Freedom Restoration Acts,” National Conference of State Legislatures,
updated May 4, 2017, www.ncsl.org/research/civil-and-criminal-justice/state-rfra-statutes.aspx.
50 Douglas Laycock, “Religious Liberty and the Culture Wars,” University of Illinois Law Review,
no. 3 (2014): 844.
51 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).
52 See, e.g., Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367
(2020). These cases will be discussed in more detail in Chapter 5.
Another random document with
no related content on Scribd:
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is, incredible though it may appear to the dazed reader, it is a treatise
based on names, places and dates, convincing despite our great
desire to remain unconvinced.” J. J. Smertenko
+ Grinnell R 16:329 Ja ’21 1000w

Int J Ethics 31:116 O ’20 140w
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Sinclair is a Socialist. He sees everything through the spectacles of
class-consciousness. Also, at times he is humorless, and he has been
persistently naive.” E. H. Gruening
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It is; indeed, it should be widely read. But it should be read with the
intelligence and information which will enable one to sift the truth
from the mass of absurd and misleading statements which it
contains.” W. J. Ghent
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“The effectiveness of the facts in ‘The brass check’ for the average
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but that of the yellow press? The people have been too deeply
betrayed by the illusions of language not to demand the facts without
the fireworks.” M. C. Crook
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Springf’d Republican p13a F 22 ’20
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documented indictment.” J. G. McDonald
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“For the sake of the honour of the American press—the better

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would like to know that this book was being widely read.”
+ − The Times [London] Lit Sup p712 N 4

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SINCLAIR, UPTON BEALL (ARTHUR

STIRLING, pseud.). 100%; the story of a patriot.
*$1.20 (1½c) pa *60c Upton Sinclair, Pasadena, Cal.
21–1179
In fiction form Mr Sinclair has told the story of the Mooney case,
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police, decides that Peter is the man for his purpose and uses him
first as star witness in the Goober case and later as one of his secret
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data on which the story is built is supplied in an appendix.
“Mr Sinclair has abandoned the Zolaist symbolism and

declamation of his earlier books and has chosen an intellectual and
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has gods and a great subject burning, literally burning, out his heart.
And so it comes about that this pedestrian mass of graceless prose
achieves—in the most fundamental sense—literary values that young
intellectuals seeking cultural modes for our American life can never
reach. The book is a literary achievement of high and solid worth.”
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“Dealing in certain facts that we all know to be true, it carries an

impression of verisimilitude, despite elements of sentimentality and
exaggeration. It gives a graphic insight into some of the ugliest
phases of the class struggle.” G. H.
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SINGMASTER, ELSIE (MRS HAROLD

LEWARS). Basil Everman. *$1.90 (2½c) Houghton
20–5404
Basil Everman, who never once appears in person, nevertheless

dominates the entire story. The scene is laid in a small college town,
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was still the chief topic of discussion among the older men.” The
chief characters (after Basil) are: Richard Lister, son of the president
of Walton college; Richard’s mother who is violently opposed to the
musical career on which he has set his heart; Eleanor Bent, who has
promising literary talent and with whom Richard falls in love; Mrs
Bent, formerly Margie Ginter, an innkeeper’s daughter, who conceals
Eleanor’s parentage from her; Dr Green, a physician; Thomasina
Davis, spinster, who loved Basil Everman; and Mr Utterly of
Willard’s Magazine, who has come across a story, an essay and a
poem of Basil’s so wonderful that they have sent him to Waltonville
to learn all he can about the defunct genius. The story ends happily.
“A good armchair story for people who enjoy this kind of character
study, which is pervaded by kindly humor and gentle satire.”
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little college town; she catches the external characteristics and
harmless little oddities of her people. But she will not let herself
regard their real lives with a critical eye.”
+ − Nation 110:401 Mr 27 ’20 500w
“Carefully and skillfully written, showing a restraint and finish far

removed from the hasty, slipshod performances of so many writers of
contemporary fiction.”
+ N Y Times 25:120 Mr 14 ’20 500w
“Told with care and dignity, this novel has the quality we call
distinction.”
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“A fine piece of work.”
+ Outlook 124:562 Mr 31 ’20 80w
“Both in plot and in character delineation Miss Singmaster has

been very successful in this story. ‘Basil Everman’ ought to be one of
the star volumes of the year.”
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SIRÉN, OSVALD. Essentials in art. il *$3.50
Lane 704
20–20086
The author of this volume is professor of the history of art at the

University of Stockholm and has a world reputation as lecturer on
art, especially primitive Italian art, in other European countries, in
America and Japan. The essays in this volume are: Rhythm and
form; Art and religion; Art and religion during the renaissance; The
importance of the antique to Donatello; A late Gothic poet of line.
The last two essays are profusely illustrated. The poet of line in the
last essay is Parri Spinelli, a list of whose works is appended.
“His book on Leonardo da Vinci is better worth reading than many

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essay on ‘Rhythm and form’ is both penetrating and remarkable.
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contribution to aesthetics.”
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merit, in a critical work, of being easy to read.”
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definition as we read, and we may supply it wrong; but those who are
really interested in the subject will find his essay [Rhythm and form]
worth reading.”
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SITWELL, OSBERT. Argonaut and juggernaut.

*$1.50 Knopf 821
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This volume by one of the young soldier-poets of Great Britain

opens with a preface poem “How shall we rise to greet the dawn?”
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war poems satire predominates.
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manner, who seems as yet to be uncertain both of his aim and
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Lynd
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teacher. In ‘Argonaut and juggernaut’ Mr Sitwell is primarily not a
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and scorn.”
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with Elizabethan freshness the Elizabethan delight in the wonders of
ocean and the life marvellous.”
+ The Times [London] Lit Sup p699 N 27

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SKELTON, OSCAR DOUGLAS. Canadian

Dominion; a chronicle of our northern neighbor.
(Chronicles of America ser.) il subs per ser of 50v
*$250 Yale univ. press 971
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“Volume forty-nine of the series is about ‘The Canadian Dominion’

and is by Oscar D. Skelton, professor of political science at Queen’s
university. The book takes up the story of Canada from where it was
left off by G. M. Wrong in ‘The conquest of New France’ at about
1760 and continues it to Canada’s entry into the great war.”—N Y
Times
“The limitations are insignificant in comparison with the high

intrinsic merit of the whole book. Its delightful literary form,
together with its accuracy and suggestiveness, make it both the most
readable and the most valuable of the general histories of the
Canadian Dominion. The volume, in short, is a credit to Canadian
scholarship.” C. D. Allin
+ − Am Hist R 26:350 Ja ’21 620w
“While thoroughly Canadian and more intensely patriotic than the

self-styled scientific historians may favor, Mr Skelton is broad
visioned, never provincial. To write impartially of Quebec
Nationalists and Ontario Orangemen and of the language and
separate school questions, required the restraint of a scholar.”
+ Cath World 112:392 D ’20 1100w

+ N Y Times p16 O 31 ’20 130w
R of Rs 52:223 Ag ’20 40w
SKILLMAN, WILLIS ROWLAND. A. E. F. who
they were, what they did, how they did it. il *$2
Jacobs 940.373
20–7445
“We all have hobbies,” says the author, and his is the collection of
facts and figures. From his habit of noting down “bits of information
about army organization, divisions, insignia, casualties, dates,
awards of medals, and a dozen other subjects of interest to soldiers”
(Foreword) grew this book, and its object is to “explain, in terms any
civilian can understand, the system by which the American army
accomplished its work in France.” Among its distinctive features are
statistical tables, maps, charts, diagrams, collar insignia, officer’s
insignia, chevrons and a large colored chart of the shoulder insignia
of the United States army. The table of contents is: A soldier’s survey
of the world war; America’s part in the world war; System of
command; The American divisions; The branches of the service;
Army honors and symbols; Reminiscences; Appendix; Index.
SKINNER, ADA MARIA, and SKINNER,

ELEANOR LOUISE, comps. Child’s book of
modern stories. il *$3.50 Duffield
20–15344
Sixty-six stories by such authors as Louisa M. Alcott, Julia Darrow

Cowles, Abbie Farwell Brown, Josephine Scribner Gates, Mary
Stewart, Patten Beard, Thornton Burgess, and others. They are
grouped as: Home tales; The story garden; Cheerful stories; and
Tales and legends beautiful. There are eight pictures by Jessie Wilcox
Smith.
+ Booklist 17:127 D ’20
“Filled with seventy or more of the best short stories for children
that have been written in recent years.”
+ Ind 104:376 D 11 ’20 100w
“The stories have been edited with tact and put into a style easy of
comprehension by the simplest minds.”
+ Lit D p95 D 4 ’20 240w
“The pictures are characteristically charming.”
+ Outlook 126:600 D 1 ’20 40w
SKINNER, ADA MARIA, and SKINNER,

ELEANOR LOUISE, comps. and eds. Garnet story
book. (Jewel ser.) *$1.75 (3c) Duffield
20–3194
For this collection the compilers have brought together “tales of

cheer both old and new.” The collection opens with The good-
natured bear, by Richard H. Horne, a story praised by Thackeray.
The other stories are: Christmas wishes, by Louise Chollet; The man
of snow, by Harriet Myrtle; Butterwops, by Edward A. Parry; Finikin
and his golden pippins, by Madame De Chatelaine; The story of
Fairyfoot, by Frances Browne; The snow-queen, by Hans Christian
Andersen; The merry tale of the king and the cobbler, from Gammer
Gurton’s Historie; The story of Merrymind, by Frances Browne.
+ Boston Transcript p6 Jl 14 ’20 170w
SKINNER, CONSTANCE LINDSAY.

Adventurers of Oregon; a chronicle of the fur trade.
(Chronicles of America ser.) il per ser of 50v *$250
Tale univ. press 979.5
20–4768
“Constance Lindsay Skinner’s ‘Adventurers of Oregon’ describes

the Lewis and Clark expedition and the cruise of the Tonquin,
through which John Jacob Astor hoped to ‘control a mighty fur-
trading system reaching from the Great Lakes to the Pacific ocean
and on to China and India.’” (N Y Times) “The titles are: The river of
the West; Lewis and Clark; The reign of the trapper; The Tonquin;
Astor’s overlanders; Astoria under the Nor’westers, and The king of
old Oregon. The period covered is from the beginnings of exploration
to the settlement of the Oregon boundary dispute in 1846, and the
themes represented by the above chapter-heads are essentially two—
discovery and exploration, and the fur-trade.” (Am Hist R)
“This book is a delight. The author treats the dramatic scenes and
incidents in the background of Oregon’s history, achieving therein a
wholly unusual degree of literary perfection. Thus she has produced
a narrative which, for adult readers, deserves to take very high rank
in its special field.” Joseph Schafer
+ Am Hist R 26:117 O ’20 650w
“Occasionally it would seem that the effort to maintain a swiftly

moving narrative has betrayed the author into sacrificing clarity. As a
‘Chronicle of the fur trade’ this work fulfills the purpose of the
editors of the series in presenting an interesting account of a
romantic phase of American development; historical perspective
appears to have suffered in ‘Adventurers of Oregon.’” L. B. Shippee
+ − Mississippi Valley Hist R 7:171 S ’20

660w
“The book has the true pioneering tang.”
+ N Y Times p16 O 31 ’20 130w

R of Rs 62:223 Ag ’20 30w
SKINNER, ELEANOR LOUISE, and
SKINNER, ADA MARIA. Children’s plays. il
*$1.25 Appleton 812
19–1207
The authors urge the use of dramatic material in school work and
have designed these plays to that end. They say “The little plays in
this book, planned primarily for class room reading lessons, may be
used (1) for practice in oral reading, (2) for original dramatizations in
language work, (3) for school entertainments.” Some of the plays are
original, others are adaptations. Contents: Nick Bluster’s trick; Cicely
and the bears; The happy beggar; Professor Frog’s lecture; Cock-Alu
and Hen-Alie; Mother Autumn and North Wind; The one-eyed
servant; Little rebels; Everyday gold; The village shoe maker; The
faithful shepherd; A royal toy-mender; The new New year. There are
pictures by Willy Pogany.
“The simple, natural dialogue of these thirteen plays makes them

excellent for reading and acting or for exercises in language work.”
+ Booklist 16:316 Je ’20

St Louis 17:312 O ’19 50w
SLATER, THOMAS. Foundation of true

morality. *$1.25 (9c) Benziger 171
20–12834
The author holds that man is not a mere physical machine but a
moral agent, endowed with freedom to choose between good and
evil. What is needed is a moral standard by which man can judge
their actions. That this standard can be supplied by the Catholic
conception of Christian morality rather than by the Protestant
conception is the contention of the book. Contents: Man a moral
agent; Legalism; Casuistry; Counsels and precepts; Sin; Grace.
SLATTERY, JOHN T. Dante. *$2 Kenedy 851
A course of lectures delivered before the student body of the New

York state college for teachers in 1919 and 1920. The author treats of
Dante as “Christianity’s greatest poet” and adopts for him Ruskin’s
descriptive phrase “the central man of all the world.” There are five
lectures: Dante and his time; Dante, the man; Dante’s “Inferno”;
Dante’s “Purgatorio”; Dante’s “Paradiso.” There is a preface by John
H. Finley.
[2]
SLATTERY, MARGARET. Highway to
leadership. *$1.50 Pilgrim press 174
20–19286
In a series of essays the author expounds all the qualities necessary

for leadership and incidentally the necessity of leadership. In the first
essay: “A leader—one who leads,” the illustrations of born leadership
are taken from children’s playgrounds with the conclusion that the
requirements are three: “some knowledge and the hunger for more,
an abandon of self-effacing consecration to the purpose, and a real
passion for the goal.” The other essays are: The eyes that see; The
ears that hear; The heart that feels; The mind that interprets; The
practice that prepares; The courage that faces facts; The patience
that teaches; The will that persists; The confidence that dares dream.
“In the clear convincing style which is usual with her, Miss Slattery
gives the world another of her inspiring volumes.”
+ Boston Transcript p4 Ja 5 ’21 180w
SLOANE, THOMAS O’CONOR. Standard

electrical dictionary; a complete manual of the
science; with addition by Prof. A. E. Watson. il *$5
Henley 621.3
20–12131
To this 1920 edition a second part has been added to the first. “In
this part all the recent advances in appliances, new developments
and refinements in theory have been very fully treated. The second
part includes a series of short treatises on a multitude of topics which
have arisen in the short period since the last enlarged edition
appeared. There are also a large number of what may be properly
termed definitions, which are required because of the increased
terminology of the science.” (Preface) The new section comprises 175
pages of text with new illustrations and diagrams.
R of Rs 62:336 S ’20 40w

SLOANE, WILLIAM MILLIGAN. Balkans; a
laboratory of history. 4th ed, rev and enl *$2.50
Abingdon press 949.6
20–14471
“The first edition of this work was issued a few months before the
outbreak of the world war. Beginning with the fall of the Byzantine
empire, the history of this section of Europe, where the blood of so
many races have mingled that the author considers it an ethnological
museum, the history is followed down to the opening of the year
1914. To make his story of the Balkans complete it was necessary for
the author to revise it in the light of the last six years. Seven new
chapters have been added. They make a concise and very broad
sketch of the events leading up to the war, of the war, and of events
up to and including the peace conference.”—Boston Transcript
“The author transforms his pre-war volume so that it becomes one

of the best books on the war that we have.” F. W. C.
+ Boston Transcript p6 Jl 14 ’20 880w

Ind 103:292 S 4 ’20 20w
“In this difficult work he well maintains his reputation for fairness
and impartiality as an historian.”
+ R of Rs 62:221 Ag ’20 70w

SLOSSON, EDWIN EMERY. Easy lessons in
Einstein. il *$1.35 Harcourt 530.1
20–8295
“A discussion of the more intelligible features of the theory of

relativity.” (Sub-title) Dr Slosson, literary editor of the Independent,
has attempted a simple explanation of the Einstein theories, making
use of “such crude and absurd analogies as trains and elevators and
projectiles flying through space and Coney island mirrors.” A paper
by Dr Einstein on Time, space, and gravitation is reprinted from the
London Times, and there is a bibliography of eight pages and an
index. Parts of the book have appeared in the Independent.
“He is to be congratulated on the enthusiasm he has brought to

what must have been a difficult and fatiguing performance.”
+ Ath p618 N 5 ’20 260w
“The main points of the Einstein theory and the experiments

leading to it are explained in an interesting, informal way so that
those not trained in mathematical physics can grasp them.”
+ Booklist 16:335 Jl ’20
“Slosson’s ‘Easy lessons in Einstein’ is a good attempt written in an

easy style far above the breezy smartness of the Sunday supplements;
it is trustworthy and throughout entertaining, if not always
instructive. There is perhaps too much about the fourth dimension
and somewhat too much striving ‘to loosen up,’ as he puts it, ‘our
conventional ideas of the fixity of time and space.’” R: F. Deimel

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Table of cases viii

Introduction: two traditions of balancing rights 1

1 The first freedom: religious free exercise in US federal courts 11

2 Tiered review in US free exercise cases 26

3 Religious freedom in the European Court of Human Rights 51

4 The mechanics of European proportionality analysis 69

5 Religious conflicts in the workplace: symbols, speech, and

6 Religious freedom and three types of employer 156

Religion in the for-profit workplace 183

7 Assessing religious burdens and state interests 193

8 Balancing religious imperatives and secular rights 226

9 Conclusion: The price of free exercise 252

Treaties and conventions

US legislation and congressional reports

European court of justice decisions

European Court of Human Rights decisions

Adyan and Others v. Armenia

Enver Şahin v. Turkey

W. v. the United Kingdom

US federal court judgments

303 Creative v. Elenis

Little Sisters of the Poor v. Sebelius

Bendix Autolite Corp. v. Midwesco Enters., Inc.

Foursquare Gospel v. City of Chicago Heights

Trans World Airlines, Inc. v. Hardison

This book is a reworking of my doctoral dissertation completed for a joint

The dilemma of conflicting religious and civic duties is an ancient one, as

12 Sherbert, 374 U.S. at 403.

exercise challenge, regardless of the burden it places on an individual’s ability

The Supreme Court itself followed up on Smith by remanding several cases

40 Lukumi, 508 U.S. at 546.

straightforward or as “fatal in fact” as it had done in equal protection or free

Centro Espirita Beneficente Uniao do Vegetal, however, the Court expanded on

+ Grinnell R 16:329 Ja ’21 1000w

“This is a most important book which every reader will want to

+ − Nation 111:72 Jl 17 ’20 1050w

“There is nothing here even remotely approximating a rational

+ − Socialist R 8:382 My ’20 650w

“A passionate, intimately personal, elaborately detailed and

+ Survey 44:307 My 29 ’20 320w

“For the sake of the honour of the American press—the better

+ − The Times [London] Lit Sup p712 N 4

Table of cases viii

Introduction: two traditions of balancing rights 1

1 The first freedom: religious free exercise in US federal courts 11

2 Tiered review in US free exercise cases 26

3 Religious freedom in the European Court of Human Rights 51

4 The mechanics of European proportionality analysis 69

6 Religious freedom and three types of employer 156

7 Assessing religious burdens and state interests 193

8 Balancing religious imperatives and secular rights 226

9 Conclusion: The price of free exercise 252

12 Sherbert, 374 U.S. at 403.

40 Lukumi, 508 U.S. at 546.