Religious Freedom: Do Companies Have Constitutional Rights?

The question of whether companies enjoy constitutional religious freedom is a highly contested issue. In the US, the Religious Freedom Restoration Act of 1993 (RFRA) states that the Government shall not substantially burden a person's exercise of religion. In the case of Hobby Lobby Stores v. Sebelius, the 10th Circuit Court of Appeals found that closely-held for-profit corporations could be considered persons exercising religion and thus protected under the RFRA. However, other cases, such as Autocam Corp v. Sebelius, have rejected similar arguments, highlighting the complexity and ongoing debate surrounding this topic.

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Religious discrimination in the workplace

Federal law requires employers to reasonably accommodate an employee's religious beliefs and practices, unless doing so would cause an undue hardship on the employer's business. This means employers may need to make adjustments to the work environment to allow employees to practice their religion. Common accommodations include flexible scheduling, voluntary shift swaps, job reassignments, and modifications to workplace policies.

Harassment based on religion is also prohibited by law. This includes offensive remarks, religious slurs, workplace graffiti, or other offensive conduct directed at a religious group that creates a hostile work environment. Employers may be held liable for harassment by supervisors, co-workers, or non-employees under the supervisor's control.

Additionally, it is unlawful to retaliate against an individual for opposing religious discrimination or participating in the complaint process by filing a claim or testifying. Employees who believe they have been subjected to religious discrimination or denied a reasonable accommodation should contact an EEO Counselor or the Civil Rights Center within 45 days to preserve their right to file an EEO complaint.

While the focus here is on US law, it is worth noting that the relevance of US case law on religion to other jurisdictions, such as the UK, is limited due to the unique nature of US legislation like the First Amendment and the Religious Freedom Restoration Act.

Religious accommodation in schools

In the United States, the First Amendment to the Constitution includes the Establishment Clause and the Free Exercise Clause, which are often interpreted by the Supreme Court in cases involving religion. The Establishment Clause prohibits the government from making laws regarding the establishment of religion, while the Free Exercise Clause prevents the government from prohibiting the free exercise of religion.

The Free Exercise Clause protects individuals engaging in personal religious observances from government interference. For example, in the case of Braunfeld v. Brown (1961), the Supreme Court considered whether a Pennsylvania "blue law" that allowed only certain types of stores to remain open on Sundays violated the Free Exercise Clause by imposing an economic burden on those who observed the Sabbath on that day. The Court ruled that the law did not violate the Free Exercise Clause because it applied to everyone, regardless of their religious beliefs.

The Establishment Clause ensures the separation of church and state. For instance, in the case of Everson v. Board of Education (1947), the Supreme Court examined whether a New Jersey law that reimbursed parents for their children's transportation to public and private schools, including parochial Catholic schools, was indirect aid to religion and thus a violation of the Establishment Clause. The Court ruled that the law was constitutional because the reimbursements were provided to all students, regardless of religion, and were made directly to parents rather than to any religious institution.

Now, turning to the topic of religious accommodation in schools, it is important to recognize that the specific laws and policies may vary depending on the country and region. In Ontario, Canada, for example, the Ontario Human Rights Code recognizes the importance of protecting religious freedom in schools. The Code imposes a duty on education providers to maintain environments free from discrimination or harassment based on religious beliefs and to foster inclusive learning environments that promote acceptance and respect for diverse religious views.

To achieve this, education providers in Ontario are expected to take various steps, such as designating private areas for prayer observances, permitting use of private washrooms or identifying a washroom for washing before prayers, accommodating obligatory congregational prayer observances, and allowing students and staff enough preparation time to observe the Sabbath. Additionally, school boards in Ontario are required to include religious accommodation guidelines, which prohibit discrimination on the grounds of creed and impose a duty to accommodate religious beliefs and practices.

In conclusion, while the constitutional religious freedom of companies and schools may vary depending on the legal framework of a particular country or region, it is clear that religious accommodation in schools is an important aspect of ensuring religious freedom and protecting the rights of students and staff with diverse religious beliefs and practices.

Religious freedom restoration acts

The Religious Freedom Restoration Act (RFRA) was passed by the United States Congress in 1993. The Act prohibits the federal government from burdening a person's free exercise of religion. The RFRA initially applied to both state and federal laws, but in 1997, the Supreme Court ruled in City of Boerne v. Flores that the RFRA was unconstitutional as applied to state governments. This decision confined the act to the federal government.

Despite this restriction, twenty-one states have passed their own religious freedom restoration acts, which apply to state governments and local municipalities. These state RFRAs echo the federal RFRA but are not necessarily identical. The RFRA has been used in several notable cases, including Burwell v. Hobby Lobby Stores, Inc. (2014), which permitted a closely held for-profit corporation to deny its employees health coverage for contraceptives based on the religious objections of the corporation's owners. This case drew concerns about the law being used to permit discrimination against religious minorities, nonreligious people, people of color, women, and the LGBTQ community.

In response to these concerns, the Do No Harm Act was reintroduced in 2019 as a proposed amendment to the RFRA. This bill prohibits the application of the RFRA to specified federal laws or their implementation. It also outlines that the RFRA is inapplicable to laws that protect against discrimination or promote equal opportunity, require employers to provide wages and benefits, protect collective activity in the workplace, protect against child labor and exploitation, or provide access to healthcare.

The RFRA has been interpreted and applied in numerous cases, including those involving the free exercise of religion, the Establishment Clause, and the definition of "religion." For example, in Tanzin v. Tanvir (2020), the RFRA allowed three Muslim men, who had been placed on the No Fly List for refusing to be informants, to seek remedies from the federal government officials responsible. In Adams v. Commissioner, the United States Tax Court rejected the argument of a devout Quaker who claimed she was exempt from federal income taxes under the RFRA. The Court ruled that uniform participation in the federal income tax system was a compelling governmental interest, despite the burden on the petitioner's religious beliefs.

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Religious observance and free speech

The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition. It contains the Establishment Clause and the Free Exercise Clause, which are often interpreted by the Supreme Court in cases involving religion. The Establishment Clause prohibits the government from establishing a religion, while the Free Exercise Clause protects citizens' right to practice their religion as they please. These clauses ensure that individuals can practice their religion freely and without government interference, as long as it does not violate "public morals" or a "compelling" governmental interest.

The Free Exercise Clause protects individuals engaging in personal religious observance from government reprisal. For example, in Cantwell v. Connecticut (1940), the Court ruled that a Connecticut statute requiring a permit for religious or charitable solicitation violated the Free Exercise Clause, as it allowed local officials to determine religious causes. Similarly, in Braunfeld v. Brown (1961), the Court considered if a Pennsylvania "blue law" that allowed only specific stores to open on Sundays violated the Free Exercise Clause by imposing an economic burden on certain religious groups.

The Establishment Clause, on the other hand, ensures the separation of church and state. This clause has been interpreted in cases such as Everson v. Board of Education (1947), where the Court ruled that a New Jersey law allowing transportation reimbursements to parents, including those sending their children to parochial schools, did not violate the clause as reimbursements were provided regardless of religion and went directly to parents, not religious institutions. In Santa Fe Independent School District v. Doe (2000), the Court held that a policy permitting student-led prayers at football games violated the Establishment Clause.

The Religious Freedom Restoration Act (RFRA) of 1993 further strengthens religious freedom by authorizing courts to exempt individuals from laws that impose a substantial burden on sincere religious beliefs, unless the government can show a compelling interest. This was seen in Burwell v. Hobby Lobby Stores, Inc. (2014), where the RFRA allowed a for-profit corporation to deny its employees contraceptive health coverage based on the religious objections of the corporation's owners.

While these cases primarily focus on individual religious freedom, they also shape the religious landscape for companies and organizations, ensuring that religious observance and free speech are protected within the bounds of the law and without infringing on the rights of others.

Religious organisations and federal funding

The First Amendment to the US Constitution includes the "Establishment Clause", which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The Free Exercise Clause, meanwhile, prevents the government from prohibiting the free exercise of religion, meaning that an individual can practice their religion as they choose.

The US Supreme Court has ruled that faith-based organisations may not use direct government support to fund "inherently religious" activities. This means that organisations may use government money only to support the non-religious social services they provide. However, this does not mean that religious organisations cannot have religious activities; they simply cannot use taxpayer dollars to fund them. Some religious organisations set up separate charitable organisations to keep government-funded programs separate from those that engage in religious activities. This is different, however, if the funding is in the form of "vouchers" or "indirect aid", which gives funds or certificates to individuals in need, which can be used to obtain services from a number of qualified organisations.

There have been several cases that have tested these clauses. In Santa Fe Independent School District v. Doe (2000), the Supreme Court ruled that a policy permitting student-led prayer at football games violated the Establishment Clause. In Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), the Court ruled that once a state decides to subsidise private education, it cannot disqualify some private schools solely because they are religious. In Carson v. Makin (2022), the Supreme Court ruled that a state's non-sectarian requirement for otherwise generally available tuition assistance payments violated the Free Exercise Clause.

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