Employment Division v. Smith Meets Pierson v. Post

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.

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