Argument: Religious Law

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Vancouver v. Abdiannia [Canada] [August 11, 2014]

City officials sanctioned two hookah bars for violating provisions of an ordinance that prohibit the smoking of hookah in indoor public places.   The defendants claimed that the tobacco-free herbal shisha should not be prohibited under the ordinance. Furthermore, they claimed that the herbal shisha was heated, not ignited, so does not fit under the definition of smoking.  The court ruled that the city had reasonable grounds to prohibit smoking of any substance, that the definition of smoking was neither too broad nor too vague, and that herbal shisha does get "burned" within the ordinary meaning of the word. The court also ruled that the hookah owners and their patrons were unable to show that hookah smoking was religious or that operating a hookah cafe for profit was a function of spiritual faith. Even if they had, the ordinance does not prevent them from smoking hookah in their homes. The court found that no fundamental rights were violated, and upheld the sanctions against the hookah cafes.

Native American Council of Tribes v. Weber [United States] [April 25, 2014]

Native American inmates challenged a South Dakota state prison policy banning the use of tobacco in Native American religious activities. The court found that the tobacco ban illegally burdened the prisoners’ exercise of their religious beliefs in violation of federal law. The court said that the ban was not the least restrictive way of achieving the prison’s interest in preventing tobacco abuse. In particular, the prison failed to show why a policy decreasing the proportion of tobacco in the mixture distributed to inmates for religious purposes to one percent would not be an effective way of curbing tobacco abuse and achieving the prison’s interest in order and security. The court affirmed an order issued by the lower court with specific instructions about the percentage and use of tobacco in Native American religious ceremonies in the prison.

Native American Council of Tribes v. Weber [United States] [September 19, 2012]

A group of Native Americans challenged a policy implemented by prison authorities that banned all use of tobacco, including for religious purposes.  South Dakota has the highest rate of Native Americans in the prison system and some of them use tobacco as part of their religious ceremonies.   After gradually reducing the availability of tobacco in the prisons, the policy changed to complete ban.  The prisoners challenged the ban based on religious freedom and the corresponding federal legislation (RULIPA).  The court held the prisoners had shown the total ban on tobacco was a substantial burden on the exercise of their religion and that the authorities had not demonstrated a compelling governmental interest, or that they had used the least restrictive means to further that interest.  The court ordered the parties to agree to a new policy embodying the court’s decision and submit it to the court for approval.

Shemesh v. Focaccetta [Israel] [July 05, 2006]

This is an appeal from a decision of the Jerusalem District Court that denied the applicant leave to appeal a Small Claims Court decision. The Supreme Court held that the Restriction of Smoking in Public Places Law does not provide for compensation without proving damage. Noting that it is difficult to prove damage from an incident of smoking and that the statutory breach here impacted a family including children and a pregnant mother, the Court held that there are grounds "for giving a stronger emphasis to the damage, for the purposes of deterrence" and awarded the applicant additional compensation.

Japan Tobacco Inc. v. Administrator-General [Fiji] [February 20, 1992]

The government of Fiji refused to allow Japan Tobacco to register a trademark containing an image of a dove holding in its beak what appeared to be an olive branch with the word “PEACE” underneath. Two churches had objected to the proposed trademark as being immoral and highly demeaning of a Christian symbol. The court upheld the government’s decision, finding that use of such a trademark would be deceptive and offend the religious beliefs of a substantial portion of Fiji’s population. The court also found that the use of the word “PEACE” gave a subliminal message that only good can come from the use of the product, despite the acknowledged dangers of smoking.