Employment Division v. Smith Meets Pierson v. Post

Is fox hunting a (religious) belief?

There are two staples of every 1L curriculum. First, in Constitutional Law, Employment Division v. Smith drew a distinction between belief and actions. The Constitution squarely protects all religious beliefs, but those protections do not necessarily extend to actions. To use United States v. Reynolds as an example, a person can believe that polygamy is a religious mandate, but that belief does not override a law barring multiple spouses. Smith more-or-less followed this rule, holding that one could believe that peyote is part of a religious ritual, but that belief does not mandate an exemption from controlled substance laws. The second chestnut is Pierson v. Post. This case applied the rule of capture to a fox hunt. The first person to actually lay hands on a fox gains possession. It does not matter that a hunter accompanied by hounds was engaged in a lengthy, regal pursuit. That decision, from 1803, also reflected the rejection of the aristocratic fox hunt by the young-scrappy-and-hungry country.

What do these two cases have in common? Before today, I would have said the answer was nothing. But the doctrines merge!

The United Kingdom banned fox hunts. Now, fox hunters are asserting that their practice is a (religious) belief. I put religious in parentheses, because under English law, there is no requirement that a belief be religious to obtain protected status. But I think this question is in the same ballpark as religious belief.

The New York Times offers a useful summary of the conflict.

Ed Swales, the activist, founded Hunting Kind, a lobby group that aims to protect hunting with dogs and other forms of hunting, in early 2022. He wants to use Britain's Equality Act — which protects people from discrimination because of their age, race, sexuality or religion, among other things — to classify a pro-hunting stance as a protected belief.

That would put it in the same legal category as atheism, pacifism, ethical veganism, and, ironically, a moral opposition to fox hunting.

"If he's 'anti-hunt,' well, you can be 'hunt,'" Mr. Swales said. "It's just the same law."

Mr. Swales, 55, said he was preparing to bring a series of anti-discrimination lawsuits in the hope of setting a legal precedent that could, eventually, help reverse the fox-hunting ban.

"We've been doing this for millennia," he said. Hunting is "literally part of our cultural heritage."

You may think this argument is frivolous, but UK law defines a belief quite broadly.

Several lawyers and academics who study discrimination said Mr. Swales's argument might have some success, but the bar would be high. Under Britain's 2010 Equality Act, a protected characteristic must "be a belief and not an opinion or viewpoint" and it must "not conflict with the fundamental rights of others."

"The test requires that the belief be genuinely held and that it be sufficiently cogent and weighty and coherent," said Colm O'Cinneide, a professor of constitutional and human rights law at University College London. A mere political opinion would not pass muster, he said: "There needs to be some sort of belief structure or framework."

The UK Law has an express requirement that one's belief does not conflict with other "fundamental" rights. This is more-or-less Justice Ginsburg's Hobby Lobby dissent, and one possible reading of Cutter v. Wilkinson. The Supreme Court has not gone down that road, and has more-or-less rejected the third-party harms doctrine. (Do we even care about Justice Kennedy's Hobby Lobby concurrence after Roman Catholic Diocese?)

This definition also relates to difficult questions under American law that I have written about (and enraged people with). What is a religion? And is a religion sincerely held? I do not know how these questions shake out under UK Law, but I am skeptical this Church of Fox Hunting would be considered a religious belief in the United States. And this entire scheme seems like a cynical ploy to let people hunt foxes. It does not strike me as particularly sincere.

Comments

[loki13]

As I have said before, and as I will continue to say ...

Employment Division v. Smith was one of Justice Scalia's finest moments and finest opinions.

As we continue to retreat from it, we will see that his opinion was absolutely correct.

Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well. It is therefore not surprising that a number of States have made an exception to their drug laws for sacramental peyote use. But to say that a nondiscriminatory religious practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts. It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.

[Josh R]

I fully agree. and don't like how Smith is being whittled away. I will add another good aspect of Smith is we don't have to worry about whether fox hunting is a religious practice. If a ban is neutral and generally applicable, it's permitted without resolving that issue.

On the other hand, RFRA laws do not cearly define what is a religious practice, and so whether fox hunting is a religious practice must be addressed. I have not seen a principled way to do so. As such, I don't like RFRAs. If the political branches wish to exempt some religious practices, they should do so explcitly on a case-by-case basis. Else, (the recently missing) Rev Kirkland might get undo legal protection.

[JoeFromtheBronx]

"nondiscriminatory religious practice exemption"

I'm not sure about that terminology especially since in practice (and likely in intent, which will often be hard to catch) it will not only favor religious practice over non-religious practice but have a "relative disadvantage [to] those religious practices that are not widely engaged in." If the alternative is worse, so be it, but let's be clear.

[JoeFromtheBronx]

I'd add that James Madison flagged this problem early (and not just him) -- religious favoritism is likely to favor majoritarian religions.

I think realistically and policy-wise it is appropriate to have some sort of religious exemptions. But, again, we should be upfront about this problem. It's something to consider when policy making.

[loki13]

I think that is something to worry about. But I think Scalia hits the actual issue perfectly at the end-

…but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.

That’s the real problem. And, IMO, majoritarian religions will fare better under this system. Why? Because the judges will be familiar with that overall background (ahem) and will, even subconsciously, and view the societal interests and religious exemptions with this understanding.

So you don't really solve the majoritarian problem (or, at least, it isn't quite the solution people think), while you create the very real problem of general law of neutral applicability being optional.

[JoeFromtheBronx]

So, it won't really be non-discriminatory.

And, there is still going to be a rule against discriminatory exceptions. Scalia agrees with it. Who will be trusted with determining that? Judges.

I understand the concern here but the system entrusts judges with some special responsibility here, assuming they have some safeguards when doing it. It's a question of how far you go.

[Frank Drackman]

I’d like to hunt Fox Hunters, like in that Gilligan’s Island episode(was “Gilligan” his first or last name?) I know the Skippers name was Jonas Grumsby, and the Professor was Roy Hinkley,
Frank “Yes I watched too much Television”

[Josh R]

My favorite episode is the one where they almost get off the island but Gilligan messes it up at the very end.

[Ridgeway]

On a related note, have you ever seen Jean-Paul Belmondo and Bob Denver is the same room together?

It is really hard for me to watch those French New Wave movies like Breathless, where I am supposed to be watching a cool tough guy, and I am seeing Gilligan instead.

[JoeFromtheBronx]

His name originally was going to be "Willy Gilligan" but that was not used.

[John F. Carr]

The phrase “fundamental rights of others” implies to me that (1) humans are protected and foxes are not, (2) not all rights are protected, but only rights that some guy wearing a wig considers “fundamental”.

Nonconsensual human sacrifice would violate a fundamental right of another. Sniffing glue would not. Refusing to bake a cake and refusing to decorate a cake lie in between.

[Lee Moore]

I agree. If

"The UK Law has an express requirement that one's belief does not conflict with other "fundamental" rights."

turned out to be the decisive consideration the guy who wants to hunt ought to beat the folk who want to stop him, by a knock out in the first round. The anti-hunt folk have every right to believe that hunting is wicked, but this right is not at all threatened by somebody going off and hunting. They can carry on believing right along.

But in practice the hunt guy will certainly lose, because UK judges.

[Martinned2]

If the belief that some women are actually men is protected under the Equality Act, basically anything goes.

https://commonslibrary.parliament.uk/employment-tribunal-rulings-on-gender-critical-beliefs-in-the-workplace/

[Lee Moore]

Your link seems to lead to a series of cases in which various heretical folk advanced the belief that all women are actually women, and all men are actually men, notwithstanding that they might wish to "present" themselves otherwise.

There doesn't seem to be any reference there to people who believe that some women are actually men. Such folk do exist of course, there are trans men, and those who humor them. But it doesn't appear from your link that any such folk have suffered punitive action from their employers etc for such beliefs. Perhaps there is another link that will lead us to that sort of thing.

[Martinned2]

But seriously, Josh omits to mention two of the other Grainger criteria:

(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.

(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.

So yeah, this guy will lose.

[Rossami]

You may think that it's a cynical ploy but the linked citation showing that a moral opposition to fox hunting is a protected belief is determinative. Either that claim was an equally cynical ploy or neither are.

[John F. Carr]

Fox hunters ought to win if both beliefs are protected.

[Krayt]

but that belief does not override a law barring multiple spouses.

Why? Just rationalization to outlaw icky behavior under the overriding sovereignity of democracy. See throwing gays into jail, or prostitutes, or pornography for more examples. Kibitzers on those are covered in the conclusion below.

Smith more-or-less followed this rule, holding that one could believe that peyote is part of a religious ritual, but that belief does not mandate an exemption from controlled substance laws

Why? Good luck outlawing drinking wine during religious ceremonies, even during prohibition, which is hardly limited to Catholics. “Do this in memory of me.” That’s straight red letter right out of Jesus’ mouth. Is fear of the vote the real controlling thing, which the Bill of Rights attempted to squash?

This is today’s lesson of Situational Ethics, the high valuation of a philosophical principle when it supports your already-decided upon position, and the low valuation of it when it gets in the way of another.

[Martinned2]

That's a fair question. If I was in charge of writing family law somewhere, I would allow plural marriage, but with some kind of safeguards to make sure a spouse can't just go off and get married a second time without their first spouse being OK with it. So basically before A can marry B, all of A's and B's existing spouses have to consent.

[JoeFromtheBronx]

I’m sympathetic to the result in Oregon v. Smith but think they should have simply decided it narrowly.

Sherbert v. Verner might warrant the chopping block but the majority didn’t want to do it. The lower court narrowly addressed the question as an unemployment benefits issue. The state showed no real concern about the criminalization of peyote as compared to marijuana.

The opinion was unnecessarily broad & the result was an unnecessarily broad RFRA.

The linked law review article has this summary:

For nearly five decades, Roe v. Wade was treated as the law of the land. During that period, the Supreme Court mistakenly read the Fourteenth Amendment’s Due Process Clause to constrain abortion laws. Now, with the ink on Dobbs barely dry, a small crack in American abortion jurisprudence has widened into a fissure. Pro-choice groups have quickly pivoted from substantive due process to the free exercise of religion as the basis for constitutional challenges to state abortion regulations. Plaintiffs across the country have filed lawsuits asserting that abortion laws violate the federal and state Religious Freedom Restoration Acts (RFRAs).

I disagree with the second sentence, but anyway.

Planned Parenthood v. Casey noted that the question at hand is a matter of “conscience.” Harris v. McCrae also was in significant part [though even the dissent avoided it] a religious liberty battle.

Supporters of abortion rights have for a long time argued that religious liberty is involved here. See also, Ronald Dworkin’s book on the subject. This is not a jane-come-lately affair.

And, perhaps it does show the problems with religious exemptions. But, the litigation is not the origination of any ‘distortion’ of religious liberty. It is a fair application of principles used to argue that many people use religious beliefs when making abortion decisions. If the result is problematic, it is part of a wider whole.

[SimonP]

And this entire scheme seems like a cynical ploy to let people hunt foxes. It does not strike me as particularly sincere.

We might have said something similar, about professed religious objections to taking the COVID vaccine, wearing masks during a pandemic, referring to students by their chosen names and pronouns, submitting notices to the federal government that you object to and therefore decline to provide access to contraceptive and abortion care to your employees, issuing marriage licenses to same-sex couples, providing emergency contraception to customers in your capacity as a pharmacist, and on and on and on. But these "religious" beliefs are all tissue-thin and "sincere" enough to support litigation. I see no particular reason why a moral belief in fox hunting would be considered any more cynical than the rest of the nonsense we have to take as granted.

This is the bed you're making for yourself, Josh. Your contempt only reveals your implicit confidence that developing doctrine before the Court will never come back to bite Christians in the ass. If you were intellectually honest, you'd make a more concerted effort to distinguish fox-hunting from COVID vaccines, inter alia.

[Stupid Government Tricks]

How nice of Josh to substitute his judgment on what is sincere, in a discussion of the government making such cynical judgments.

And this entire scheme seems like a cynical ploy to let people hunt foxes. It does not strike me as particularly sincere.

[Raccroc]

No idea about UK law, but in the US I'd think that it would fox hunts could be banned via Church of the Lukumi Babalu Aye v. City of Hialeah, even if the religious belief were completely sincere. Church of the Lukumi Babalu Aye v. City of Hialeah basically legalized animal sacrifice as as long as all relevant local and federal animal cruelty law are followed.

In this instance, running a fox ragged and in terror using pack of dogs could easily be labeled an animal cruelty practice.