Religious Refusals: A Distinctive Manifestation of Religious Freedom

Abstract

My thesis examines whether religious refusals differ from affirmative religious actions. Mainly, my thesis studies the structure and properties of religious refusals and explores whether the Supreme Courts of Canada and of the United States, as well as lower courts from both jurisdictions, have been sensitive to this distinction so as to inform the adjudication process of the religious freedom claim at stake. In particular, my thesis explores how courts understand and interpret the substantiality of the burden in religious refusals. For such purpose, it relies on religious actions and examines them to determine whether the courts under study have applied the standard consistently. My thesis proposes that religious refusals differ from religious actions and that religious refusals elicit certain properties in discussing religious freedom claims. Given the relevance of the structure and properties of religious refusals, courts should consider both in their adjudication process. Even so, my thesis is not focused on whether religious refusals should be granted or denied. My focus is only the recognition of refusals as a distinct religious instantiation. Therefore, whether courts should ultimately accept or reject religious refusals and how claims of refusals should be balanced against other rights at stake is not the focus of my research. My analysis draws on the constitutional law of Canada and the United States. By exploring case law from both jurisdictions, my thesis breaks down the properties of religious refusals, particularly the conceptualization and application of the substantiality of the burden. I argue that because courts have not been sensitive to the distinction between affirmative religious actions and religious refusals, their approach to the substantiality of the burden is more consistent with one specific type of religious instantiation, i.e., an action.