Definitional imbroglios: A critique of the definition of religion and essential practice tests in religious freedom adjudication

Abstract

© The Author(s) 2018. Oxford University Press and New York University School of Law. All rights reserved. The guarantee of religious freedom appears in almost all modern constitutions. One critical constitutional question that has arisen relates to how the term "religion" or "religion or belief" should be interpreted. This definitional question is crucial as it determines which religion, religious beliefs, and practices would fall within the scope of constitutional protection. Where definitions are used to draw boundaries, this raises significant questions as to what would constitute an appropriate definition. It also raises issues concerning the competence of a non-religious court imposing its views on religion on religious adherents, especially where their subjective viewpoints differ. This article critiques this definitional conundrum using religious freedom cases in Singapore and Malaysia. It examines the use of a definition of religion as well as the essential practice test to exclude constitutional claims. Furthermore, this article advocates for a deferential approach to the definitional questions, albeit a limited one where constitutional claims are further subject to a second-stage inquiry as to the legitimacy or appropriateness of the state-imposed restrictions.