16(2) International Journal of Constitutional Law (I-CON) 574-595 (2018)
DOI: 10.1093/icon/moy055
This article critiques the use of definitions to allocate constitutional freedom protection. Specifically, it criticizes the use of definitions of religion as well as an associated constitutional test - the essential practice test - in constitutional cases. The article argues that definitional tests often do not adequately take into account the pluralistic nature of religion and religious communities. Furthermore, it contends that definitional tests can be arbitrary in determining which religious group or religious practice fall within the scope of constitutional protection. Consequently, in this article, I advocate 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.
(Update: This article was recently cited in the Supreme Court of India in a landmark case concerning the constitutionality of a prohibition against women between 10 and 50 years of age from entering the famous Sabrimala Temple in Kerala (Indian Young Lawyers Association & Ors v The State of Kerala & Ors, Writ Petition (Civil) No. 373 of 2006). In his concurring judgment, Justice Chandrachud accepted my critique about the formalistic and often arbitrary nature of the essential practice test, and applied my proposed two-step test, recognizing that the test “would free the court from the unenviable task of adjudicating upon religious texts and doctrines.”
