The role that it is appropriate for religion to play in politics is a subject of great controversy. In this paper I wish to defend the claim that religion should be regarded as a private matter. I will argue for three principles of political morality: that the government should not act on religious purposes; that it should not assist religious groups to spread their religious beliefs; and that arguments based solely on religious convictions should not be offered as reasons for laws and public policies. The first two principles apply to the relations between church and state, whereas the third principle governs the conduct of individuals. A further difference is that the first two principles are offered as guides to appropriate law in a liberal democracy, whereas the third principle sets out to delineate the moral duties of citizens when contributing to public discourse and it is not suggested in this paper that legal effect should be given to it.

Though the insulation of religion from politics provides a very strong guarantee of religious liberty and toleration, it is nevertheless true that the three principles I propose treat religion less favourably, on the whole, than non-religion. In what follows I will present some reasons for thinking that it is justifiable to subject religion to these disadvantages and I will argue, in addition, that these reasons can and should be found acceptable by both believers and non-believers.

A system for appeal is an important aspect of any court or tribunal system and, in the context of tribunals established by private bodies such as sports organisations, a right of appeal may play an important role in providing a fair hearing overall to a member of an association who faces a serious disciplinary allegation, such as a doping allegation. On many occasions, in appeals from decisions of anti-doping tribunals, CAS has relied on its power to rehear a matter on the facts and the law on an appeal in order to address and remedy alleged defects in the hearing process before the tribunal which initially heard the allegations. In the hearing system under the Code, the appeal structure also plays another, perhaps more important, role. By providing that Signatories have to adopt Article 13 verbatim (with the exception of Rule 13.2.2 which provides for the appeal structure at national level), the Code reinforces the central role of CAS as the appeal tribunal for disputes under the Code. By this means, and by widening the possible parties which have a right of appeal to CAS to include WADA (and other anti-doping organisations), the provisions of Article 13 provide a process of appeal which can be used to foster a consistent approach to the application and interpretation of the Code.

Purpose

This World Anti-Doping Program is a complex set of standard form agreements which Signatories adopt to provide a comprehensive anti-doping regime. The Program has the aim of protecting athletes' fundamental right to participate in doping-free sport and promoting health, fairness and equality for athletes worldwide, and ensuring harmonised, coordinated and effective anti-doping programmes, at the international and national level, with regard to detection, deterrence and prevention of doping. While functioning as a result of the voluntary agreement of Signatories, the Code can be described as a kind of international law of sport in the anti-doping area.

While they operate in a different sphere of activity, the Code (and Program) functions in much the same way as voluntary international instruments in areas such as international trade or commerce. The voluntary rules which govern the operation of bankers' documentary credits and the conventions which govern the carriage of goods by sea are good examples. The Uniform Customs and Practice for Documentary Credits functions by agreement or incorporation, and might, like the Code, be described as a body of ‘soft’ international law which has been generally adopted so as to bring about a common approach in a particular area of activity. In the case of the Code, the aim is to provide a common, harmonised approach to the regulation of doping in sport.

The parts of the Code

The Code is made up of four parts.

Amending the Code

WADA is responsible for overseeing the evolution and improvement of the Code and for initiating amendments to the Code under Article 23.6. Where WADA puts forward amendments, it must institute a consultation process under which athletes, Signatories and governments provide their comments on the proposed amendments. After the required consultation process has taken place, the proposed amendments must be approved by a two-thirds majority of the WADA Foundation Board, with a majority of the public sector and Olympic movement members' casting votes, in order to be adopted. Amendments come into effect three months after approval, and Signatories to the Code must implement applicable amendments within one year of approval by the WADA Foundation Board.

WADA initiated amendments to the Code in 2005, and a consultation process took place over the next eighteen months, which culminated in the meeting of the WADA Foundation Board in Madrid in November 2007 at the World Conference on Doping. At this meeting, amendments to the Code were approved and the deadline for acceptance of the amended Code by Signatories is 1 January 2009.

Amendments to the sanctions regime in the Code

The area in which the most significant amendments to the Code have been made is the sanctions regime under Article 10.

By asking after the moral economy of religious freedom, I mean to ask: What do we have to believe about religion, religious faith and religious practice to support an attractive and robust view of religious freedom? Do we, for example, have to believe that religious commitments and activities are more valuable to individuals or groups than other deeply motivated projects? Or, if not more valuable, more important in some phenomenological or conceptual sense? Do we have to believe in the truth or falsity of some set of premises that are at the bottom of all, most, or at least some religions? Do we have to assign special status to religion on grounds of its particular value or importance to the state? Do we, in sum, have to find some grounds of this sort to justify a privileged status for religion and its entailments, from which status we can in turn derive a reasonably warm-blooded view of religious freedom?

The stakes here are high. If religious freedom depends on a view that religion is in the sense suggested by these questions a privileged activity among the many activities that sometimes matter greatly to some people, then religious freedom is at best deeply controversial by its nature. Worse, as we will see, if religious freedom depends on religious privilege, then the idea of religious freedom is self-contradictory at its core.

Introduction

Days of rest have not been given a central place in discussions of modern societies. However, regulation of days of rest provides a fascinating illustration of a variety of central issues in such societies. In Western societies, the issue of days of rest has usually been seen as concerned with the relationship between state and religion. Religions make demands about the way the day of rest, which is also a day of special worship, should be observed. So long as communities were religious and homogeneous, religious days of rest were generally observed. Usually, the right of members of other religions to their own observances was respected to some extent, at least in the private sphere. As societies became more secularized and plural, such arrangements began to be challenged both by secular members of the majority culture, who resented what they saw as religious coercion, and by members of minority cultures and religions, who saw an opportunity to reduce the burdens they had carried under the traditional arrangement. Both challenges invoked human rights discourse, demanding that arrangements respect individual as well as collective rights to freedom of religion and freedom from religion, and rights to culture. The subject is also discussed as an issue of minority rights, and as an aspect of the ideal of multiculturalism. In some countries, the issue has legal or even constitutional significance.

Background

Disqualification and the imposition of disciplinary sanctions as a response to the offence of doping has been a part of the sporting world for many years. From the 1970s onwards, most sporting bodies, at both national and international level, had rules under which their members submitted to drug testing, and to the imposition of sanctions (primarily in the form of the disqualification of results and a period of ineligibility for competition) in the event that they were found to have committed a violation of the rules. To a significant degree, doping was regulated internationally by the International Olympic Committee (IOC) the body which leads and manages the Olympic movement. The Olympic Movement Anti-Doping Code (OMADC) which was produced by the IOC, was applicable to ‘the Olympic Games, the various championships to which the IOC granted its patronage and to all sports practised within the context of the Olympic Movement, including pre-competition preparation periods’. The OMADC was the forerunner of the WADA Code and many of the substantive features of the OMADC are taken up by the Code.

OMADC

The IOC anti-doping rules were amended and refined over the years. OMADC 1999, which came into force on 1 January 2000, contained many of the elements which are now found in the WADA Code and the International Standards.

Challenges to anti-doping regimes before the Code

Before the advent and adoption of the Code, legal challenges were made, from time to time, by athletes, to the enforceability of doping rules and regulations before national courts and before supranational tribunals and courts such as the European Court of Justice. The challenges sought to invoke a range of arguments, which are united by the contention that the anti-doping rules in issue should not be enforced because they were contrary to the fundamental individual rights and freedoms which were protected by national or international constitutional provisions or by general principles of national and international law.

The rights of the individual to work, to privacy, not to be punished without fault, and not to be subjected to discrimination, were relied on to challenge the enforceability of the strict liability ‘no fault’ regime common in anti-doping rules. Principles of competition law protecting individuals from anti-competitive conduct and agreements, and from restrictions on the freedom to work and provide services, and common law contractual principles protecting individuals from restrictions in restraint of trade, were also relied on to contend that periods of ineligibility should be set aside.

Introduction

The purpose of this chapter is to offer an overview of developments within the jurisprudence of the European Court of Human Rights relating to the freedom of religion which are giving rise to difficulties, and to offer some general suggestions for how they might be resolved. The underlying message is that human rights law regarding the freedom of religion in Europe today is developing in a fashion which is as likely to hinder as it is to assist the realisation of the goals of tolerance and religious pluralism which are said to be what it is seeking to achieve. The reason for this is that the European Court has shifted its focus away from the right of the individual and towards the role of the state in matters of religion, and in the process has endorsed a form of ‘neutrality’ which is potentially at odds not only with aspects of religious liberty itself but also with long-established models of church-state relations. It is not, however, a case of ‘either/or’. In its more recent judgments both tendencies continue to interact with each other, but it seems that the court is not yet getting the balance right and this will continue to cause difficulties unless or until the problems are identified, analysed and corrected.

After exploring a number of preliminary issues, the second section of this chapter will look at what might be called the ‘individual’ approach to the freedom of religion.

Article 2, a ‘core’ provision in the Code, which will be reproduced verbatim in all Code-compliant doping policies, sets out the violations which may be committed by athletes and other persons who are bound by the Code, and which anti-doping organisations will seek to investigate and establish. Doping is defined by Article 1 as the occurrence of one or more of the anti-doping rule violations in Article 2.1. The violations in Article 2 extend beyond the violations of doping (in the sense of having an athlete having a prohibited substance or method in his or her bodily sample) and refusing to submit to testing, which have largely been the focus of anti-doping investigations and proceedings to date, and include violations which involve various forms of intentional conduct relating to prohibited substances or the testing process. This range of violations was present in the OMADC and in many sports anti-doping policies before the Code, but the enforcement of anti-doping regimes focused, to a considerable degree, on the detection of the presence of prohibited substances and methods by collecting and analysing bodily samples for testing. The establishment of WADA, and the ever-increasing awareness of the scope of the problem of doping in sport, have seen greater attention given to the need to investigate and establish other violations as a means of combatting doping generally. Violations such as administering and trafficking in prohibited substances can, if detected and established at a hearing, target the persons involved in providing doping products to athletes.

For 16 words that remain completely unchanged from their adoption some 215 years ago, the Supreme Court's interpretation of the Religion Clauses of the First Amendment of the United States Constitution have shown remarkable malleability. Arguably, the court's interpretation of these Clauses has changed more often, and more dramatically, than of any other provision of the Constitution. The question I wish to explore is why. To address this question, we must put aside the standard interpretive perspective on constitutional law – the perspective that asks how constitutional provisions should be interpreted, in light of text, original meaning, history, or precedent. Those considerations do not change, at least not rapidly or radically. Instead we must ask how changes in cultural and social conditions have affected the jurisprudence of religion and state.

The First Amendment's Religion Clause consists of two parts. One, the Free Exercise Clause, prevents the government from prohibiting or punishing the profession and practice of any religion. Its counterpart is the Establishment Clause, which prevents the government, at a minimum, from designating any particular religion, articles of faith, or mode of worship as preferred or orthodox, and from compelling any person to participate in or support religious worship. Beyond these clear indications, there has been nearly continual controversy in the United States regarding such issues as: does the Free Exercise Clause protect religiously motivated conduct, such as the practice of polygamy or the refusal of priests to divulge the secrets of the confessional, from neutral and generally applicable laws?

Introduction

On 10 July 1925, in the Rhea County Courthouse in Dayton, Tennessee, Judge John T. Raulston of the 18th Circuit Court called upon Reverend Cartwright to open the proceedings for the day with a prayer, a practice that was repeated at the start of proceedings on each day of the matter before the court. Reverend Cartwright duly called upon God to ‘grant unto every individual that share of wisdom that will enable them to go out from this session of the court with the consciousness of having under God and grace done the very best thing possible and the wisest thing possible’. And so began the case of State of Tennessee v. John Thomas Scopes (Scopes Trial). Scopes, a teacher at Rhea County High School, appeared before the court charged with breaching section 1 of Tennessee's so-called Butler Act. This Act, adopted in March 1925, prohibited the teaching, in Tennessee's public educational institutions, of ‘any theory that denie[d] the story of the Divine Creation of man as taught in the Bible, and [the teaching] that man … descended from a lower order of animals’.

The Scopes Trial was the first case in which the teaching of evolution in American public schools was brought before the courts. A number of cases followed in subsequent years. There is every indication that this stream of litigation will continue into the future.

The essays in this book explore the intersections between law and religion. When Australian law intersects with Aboriginal religion the outcome is a massive collision. This essay explores that collision, a collision between core legal values of the dominant legal system and core religious values of a small minority group, Aboriginal Australians. That collision, or conflict, arises because Aboriginal religions are fundamentally different from mainstream religions. That difference is legally significant. But the dominant legal system has failed to accommodate the difference.

In this essay I contend that Australian law has failed to resolve a fundamental conflict between, on the one hand, basic common law values including openness and transparency in public administration, open administration of justice, a legal culture that gives special weight to the protection of private property interests and, on the other hand, Aboriginal religious values, in particular, the secret nature of much Aboriginal religious belief. I further contend that, because Australian law has failed adequately to recognize and to adapt to the secret nature of much Aboriginal religious belief, because common law values particularly principles directed at protection of private property interests prevail, laws enacted for the purpose of protecting Aboriginal religious beliefs have failed to achieve their purpose. The final part of the essay offers suggestions for reform, including mechanisms for protecting the confidentiality of secret spiritual beliefs.

It was not so long ago that confident predictions were being made about the eventual demise of religion. Religious people complained that liberal states had privatised religion; excluding it from the public square until such time as developments in science, education and philosophy rendered religion entirely obsolete. With the exception of the unusually religious United States, religion in the second half of the twentieth century played relatively little role in public domestic debates in Western societies and was rarely considered in international affairs. As former US Secretary of State Madeleine Albright put it, most Western political leaders in the 1990s thought that religious disputes ‘were the echoes of earlier, less enlightened times, not a sign of battles to come’.

Now, however, religion is back on the public agenda both domestically and internationally. Questions about the role of religion in public life are being prompted by a range of changes in many Western states. The power of 9/11 and terrorist attacks or threats of such attacks has been a powerful motivating factor in such reconsideration. In many ways this is unfortunate as it tends to skew the public discussion towards a debate over religion as a tool of terrorism or to a debate over Islam and the West.

Yet, long before the attacks on the World Trade Centre, there were complex and important questions being asked about the role of religion in society.

The Articles dealing with the imposition of sanctions, and the annotations to the Code relevant to those Articles, have received the most attention from national tribunals and CAS. This focus on the possible elimination or reduction of the period of ineligibility laid down by the Code is a natural consequence of a system where the underlying principle is that an athlete will be strictly liable without proof of an intention to cheat, or negligence, or fault, where a prohibited substance or a prohibited method is detected in a bodily sample. As most anti-doping allegations brought under the Code have, to date, related to alleged strict liability violations under Article 2.1, athletes have sought to rely on the provisions providing for the elimination or reduction of the standard period of ineligibility fairly regularly. As has been explained, the scope of any discretion to reduce a fixed sanction by CAS was a matter of uncertainty and of difference between various CAS Panels before the Code. The Code sought to introduce harmony in this important area, by providing for a relatively simple sanctions regime which provided for fixed periods of ineligibility, and contained no provisions for such penalties as fines and suspended periods of ineligibility which were present in many earlier anti-doping regimes.

Articles 9 and 10 of the Code provide for a regime of fixed sanctions, consistent with the Code's central aim of harmonising sanctions across all sports.