general applicability

    The U.S. allows for religious exemptions to laws of general applicability. Not all nations share this standard.

cases

    From the book Religion and Law: An Introducton by Peter W. Edge, pages 85 and 86:

    These cases contrast sharply with the decision of a closely-related Constitutional Court of South Africa in Prince v The President of the Law Society of the Cape of Good Hope and Others 2002(2) SA 794 (SA) (see also Prince v President of the Cape Law Society and Others 2001 (2) SA 388 (SA)). In this case, Prince wished to become an attorney. He satisfied the requirements for entry into the profession, but had a number of convictions for possession of cannabis. During the application process he expressed his intention to continue using cannabis, such use being inspired by his Rastafari religion. The Law Society concluded that he was not a fit and proper person to become an attorney, and refused to allow him to proceed in the qualification process. Prince did not seek to challenge the constitutionality of the prohibition on cannabis use generally, but instead argued that the prohibition went too far by including use required by the Rastafari religion. Evidence was heard from Professor Carole Dianna Yawney on the cultural and religious practices of Rastafari.

    A large minority of the court agreed. Ngcobo J, with the support of Mokgoro and Sachs JJ and Madlange AJ (four justices in all) found that the status of Rastafarianism as a religion under the South African Constitution was not disputed; that the use of cannabis was an essential element of individual meditation and collective reasoning; that cannabis had particular medical effects, including harmful psychological dependence if smoked. Ngcobo J stressed that Rastafari made use of cannabis in different ways, including many which did not involve smoking. Officials opposing Prince’s case argued that, while prohibition was a restriction on his right to freedom of religion, it was justifiable under s.36 of the Constitution as essential to the war on drugs, and to ensure South Africa met its international obligations. Additionally, a religious exemption for Rastafari alone would be difficult to administer. Ngcobo J stressed the importance of religious rights, particularly in a diverse democracy based on human dignity, equality, and freedom. In this case ‘the existence of the law which effectively punishes the practice of the Rastafari religion degrades and devalues the followers of the Rastafari religion in our society. It is a palpable invasion of their dignity. It strikes at the very core of their human dignity. It says that their religion is not worthy of protection. The impact of the limitation is profound indeed’ (para. 51). Accordingly, while recognizing the significance of the war on drugs, a properly crafted religious exemption could allow the State to achieve its legitimate aims without restricting the religious rights of Rastafari to the extent the absolute prohibition did. Ngcobo J was not concerned with the content of such an exemption — that was a matter for the legislature — but was prepared to hold that the current law, lacking any exemption, was unconstitutionally broad.

    A bare majority of the court reached the opposite conclusion. Chaskalson CJ gave a joint judgement [British spelling] with Ackerman and Kriegler JJ, which was concurred in by Goldstone and Yacoob JJ (for a total of five justices). Chaskalson interpreted the factual context of the case differently, placing more stress on the prevalence of cannabis use in Rastafari life, and its lack of regulation by doctrines or organisational structures. While in agreement with Ngcoo J that the prohibition limited the religious rights of Rastafari, the makers of this judgement considered it to be a justifiable limitation under section 36 of the Constitution. A blanket ban on drug use, regardless of the harm caused by a particular use, facilitated enforcement of legislation aimed at dealing with harmful drugs. In particular, in contrast with the structured use of peyote discussed by the minority judgement in the US case of Smith, there ‘is no objective way in which a law enforcement official could distinguish between the use of cannabis for religious purposes and the use of cannabis for recreation’ (para. 130). The practical problems of administering a religious exemption would be exacerbated by the organisational structure of Rastafarianism, and the need to encompass religious claims by non-Rastafarians. Accordingly, the legislation was a constitutionally valid limitation on Prince’s religious rights.

    …The Constitutional Court in Prince undertook a serious, detailed, consideration of the case, and its religious context, before concluding that the restriction was justifiable.