Abstract:
This thesis will consider the meaning of section 15 of the New Zealand Bill of Rights Act 1990, which guarantees the right to manifest religious belief in public and in private. The precise boundaries of this right have received little attention in the courts, but it is anticipated that litigation will become more common as the country becomes more religiously diverse. I will assess the merits of adopting the current methodology applied by the courts of the United States of America when interpreting the Free Exercise Clause of the First Amendment to the US Constitution. I will argue that this methodology, which is meaningfully engaged only when religious conduct is restricted by discriminatory burdens imposed by the state, could provide a fair and workable system of protection for religionists in this country. I will also contend that the “Equal Regard” method fits well with an important strand in New Zealand’s constitutional culture and historical traditions, which favours equality over liberty, and democratic solutions to vexing questions concerning individual freedom. I will also argue that this approach is consistent with the country’s international obligations under certain United Nations human rights treaties, principally Article 18 of the International Covenant on Civil and Political Rights 1966. Other judicial approaches in countries sharing our common law heritage to construing the right will be assessed and rejected as models for New Zealand, primarily due to the difficulties inherent in weighing the needs of religious believers against the secular policy goals of government. This, it will be argued, is a task better suited to the democratic branches of government, with the courts playing an auxiliary role in enforcing equality between all religions, and non-religion. Finally, I will apply the Equal Regard methodology to a series of case studies involving Islamic religious practices that conflict with governmental regulation. These case studies will demonstrate how the methodology has the potential to provide genuine protection for persons wishing to conduct their lives in accordance with their deeply held spiritual commitments.
