E/CN.4/1999/58/Add.1
page 24
unless a law is specifically targeted at a religious practice or infringes
upon an additional constitutional right. The religious communities feel that
they are thus vulnerable in the face of legislation and political and
administrative institutions governed by a conception of the separation of
religion and the State which requires that everyone must comply with the same
rules and regulations, and which hence regards any request from religions that
their specific nature should be respected in their rights and freedoms as a
request for privileges. Secondly, concerning the clause on
“non-establishment” of religion, the Supreme Court's interpretation,
particularly with regard to public aid for religion, recognition of religion
in State schools and financial aid given by the Government to religious
schools, unfortunately appears from a general viewpoint to be vague and
confused, as was stated, incidentally, by members of the Supreme Court.
According to John Witte, professor at Emory University in Atlanta, the
development of a coherent and comprehensive framework for interpreting and
applying the two constitutional religion clauses would be most useful. That
unified approach could come in a variety of forms - through grand synthetic
cases or through comprehensive statutes, restatements, codes, or even
constitutional amendments (“The Essential Rights and Liberties of Religion in
the American Constitutional Experiment”, Notre Dame Law Review, vol. 71,
No. 3, 1996). The Special Rapporteur wholly endorses the approach of taking
into account the traditions of other peoples as reflected in the main
United Nations human rights instruments, namely, the International Covenant on
Civil and Political Rights (article 18 and General Comment No. 22 of the Human
Rights Committee; see paragraph 78 below) and the Declaration on the
Elimination of All Forms of Intolerance and Discrimination Based on Religion
or Belief. For example, the prioritizing of liberty of conscience, free
exercise and equality principles might well serve as a prototype for the
integration of the values enshrined in the free exercise and
“non-establishment” clauses. This second approach would be a way of
correcting the attitude of the United States of America that human rights are
to be treated as belonging to international affairs and not as a domestic
matter. We may point out here that this attitude was also noted by
Mr. Bacre Waly Ndiaye, Special Rapporteur on extrajudicial, summary or
arbitrary executions, in his report on his mission to the United States of
America (E/CN.4/1998/68/Add.3).
72.
There certainly is federal legislation providing protection in the
sphere of religion and belief, but it is fragmentary, only dealing with
certain aspects of the freedom of religion and belief and certain
infringements of that freedom. As regards, in particular, Title VII of the
1964 Civil Rights Act, concerning religious practice at the workplace and the
employer's obligation to make “reasonable accommodation”, it seems that it has
limited effect and that there is a problem of generally restrictive
interpretations by the courts in the matter of religion. The Special
Rapporteur considers that this legislation needs to be strengthened and hopes
that the Religious Freedom in the Workplace Bill and the guidelines for the
protection of freedom of religion in federal institutions announced by the
Clinton Administration will contribute to that end. In general, the Special
Rapporteur considers that in the absence of a consistent and detailed
framework within which the two constitutional clauses on “non-establishment”
and free exercise of religion could be interpreted and applied, a general law
on freedom of religion and belief based on the relevant international human