Chant down babylon: Freedom of religion and the rastafarian challenge to majoritarianism

Journal of Law and Religion

Volumn 18, Issue 1, 2002, Pages 219-248

  O'brien, Derek ^a   Carter, Vaughan ^b  

^a OXFORD BROOKES UNIVERSITY   (United Kingdom)

^b Cayman Islands Law School   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 71949127956     PISSN: 07480814     EISSN: 21633088     Source Type: Journal    
DOI: 10.2307/1051499     Document Type: Article

References (156)

1. Philip Gourevitch, We Wish to Inform You that Tomorrow we will be Killed with our Families: Stories from Rwanda 48 (Farrar, Straus & Giroux 1998).
2. See Ronald Dworkin, Freedom's Law 15 (Harv. U. Press 1996).
3. For valuable discussion of current literature on this topic see Bette Novit Evans, Interpreting the Free Exercise of Religion: The Constitution and American Pluralism ch. 9 (U. N.C. Press 1997).
4. This sentiment finds its most lyrical expression in Bob Marley's “Redemption Song”— “Emancipate from mental slavery, none but ourselves can free our minds.” See Re Chikweche, 1995(1) ZLR 235, 238 (citing H. Campbell, Rasta and Resistance: From Marcus Garvey to Walter Rodney)
5. Timothy B. Taylor, Student Author, Soul Rebels: The Rastafarians and the Free Exercise Clause, 72 Georgetown L. J. 1605, 1607 (1984).
6. See M.G. Smith, R. Augier & R. Nettleford, Report on the Rastafari Movement in Kingston (Inst. Soc. & Econ. Research 1960).
7. Id.
8. See Philosophy and Opinions of Marcus Garvey vols. I & II (Amy Jacques Garvey ed., Arno Press 1986)
9. on pan-Africanism particularly, H. Campbell, Garveyism, Pan-Africanism and African Liberation in the Twentieth Century, in Garvey: His Work and Impact 167 (Rupert Lewis & Patrick Bryan eds., Inst. Soc. & Econ. Research & Dept. of Extra-Muiral Stud., U. W. Indies 1988).
10. See C. Salewicz, Rude Boy—Once Upon a Time in Jamaica 131, 27 (Victor Gollancz 2000), where reference is made to ‘“mystical men of knowledge,” whose place in the Community was akin to that of priest or rabbi.
11. As the 1960 Report on the Rastafari Movement in Kingston, Jamaica noted: The brethren do not speak of people joining their cult. In their view the doctrine is in them at birth but unfolds and comes into consciousness when they recognise the Emperor as God and themselves become fully conscious. When this happens, the convert makes a private vow or pledge to his God, usually to a photo of the Emperor [Haile Sellasie]. Smith et al., Rude Boy—Once Upon a Time in Jamaica 131, at 24.
12. Id.
13. See Salewicz, Id., at 65.
14. The 1960 Report also concluded that tlie ganja smoked by the Rastafari: “guards them against physical illnesses, curing all complaints and giving them wisdom, love and understanding.” Smith et al., Id.
15. It is thus the negative aspects of ganja use that are regularly seized upon at the expense of any more positive perceptions. Yet, by way of contrast, the positive attributes of peyote seem to have been stressed over and above its similar negative connotations. See infra at n. 146 and associated text.
16. Id.
17. The UNIA, according to Martin, became the largest Pan-African movement in history. See Tony Martin, Marcus Garvey, the Caribbean, and the Struggle for Black Jamaican Nationhood, in Caribbean Freedom: Society and Economy from Emancipation to the Present 359, 359 (Hilary Beckles & Verene Shepherd eds., Ian Randle Publishers 1993).
18. Amongst African liberation leaders influenced by Garvey were Patrice Lummumba and Kwame Nkrumah, who placed Garvey's symbol of the Black Star at the centre of the Ghanaian flag. See Campbell, Caribbean Freedom: Society and Economy from Emancipation to the Present, at 178–179.
19. See generally Smith et al., Caribbean Freedom: Society and Economy from Emancipation to the Present.
20. Further evidence of the Rastafarian political agenda can be seen in Jamaica with the launch of a Rastafarian political party. See N. Thompson, Rastafarian Political Party Officially Launched, Jamaica Gleaner (Oct. 4 2001) (accessed Oct. 28, 2002).
21. Id. at 17–18.
22. This diversity is neatly encapsulated by Gutzmore, a former lecturer at the University of North London: Rastafari is an incredibly complex, contrary, even contradictory phenomenon within society. It is important to understand that it is a society that essentially consists of a number of different elements. Different perspectives on Sellassie, different perspectives on Jesus, on Ethiopia and so on. When you first encounter this, it might look as if you are in the middle of a confused movement. But the point is not that the movement is confused, but that it is so diverse. And it is the diverse elements that make up this very different and dynamic and quite radical reality. Salewicz, Id. at 176–177.
23. Davina Cooper & Didi Herman, Jews and Other Uncertainties: Race, Faith and English Law, 19 Legal Studies 339, 341 (1999).
24. Ital symbolises a belief in life and an avoidance of symbols of death. Individual dietary practices vary widely among Rastafari. In general, Rastafari do not eat meat, and almost universally refrain from eating pork. Most Rastafari abstain from alcohol and caffeine. Some Rastafari do not eat fish, and some refuse dairy products. Some refrain from eating any foods that have been processed, particularly canned food, believing that the can symbolises a coffin, or death. Rastafari also object to vegetables that have been treated with non-organic pesticides or fertilizers. See Bunny v. Coughlin, 593 N.Y.S. 2d 354 (App. Div. 1993).
25. Dawkins v. Crown Suppliers (Property Services Agency) (Employment Appeal Tribunal), The Times (29 Apr. 1991).
26. Reed v. Faulkner, 842 F.2d 960, 962, 963 (7th Cir. 1988).
27. Robinson v. Fotim, 527 F.Supp. 1111, 1113 (E.D. La. 1981).
28. See Barry Chevannes, Rastafari: Roots and Ideology 20–33 (Syracuse U. Press 1994).
29. Id. at 21.
30. More Philosophy and Opinions of Marcus Garvey 140 (E.U. Essien-Udom & Amy Jacques Garvey eds., Frank Cass & Co., Ltd. 1977) (emphasis supplied)
31. (quoting Marcus Garvey, The Redemption of Africa (Black Man 1929)).
32. Examples of such laws, noted by Martin, More Philosophy and Opinions of Marcus Garvey, at 361, include Seditious Publications ordinances passed in several West Indian territories in the early 1920s and the Undesirable Persons (Prevention of Immigration) Ordinance 1924 introduced into Sierra Leone in anticipation of a projected African tour.
33. G. Shepperson, Ethiopianism: Past and Present, in Christianity in Tropical Africa 249, 249 (C.G. Bäeta ed., Oxford U. Press 1968).
34. Rev. Ernie P. Gordon, Garvey and Black Liberation Theology, in Garvey: His Work and Impact, Ethiopianism: Past and Present, in Christianity in Tropical Africa, at 137.
35. Philosophy and Opinions, Ethiopianism: Past and Present, in Christianity in Tropical Africa, at vol. 1, 44.
36. Id.
37. See generally Chevannes, Id. at 42–43.
38. Id. at 157.
39. See Ernie P. Gordon, Garvey and Black Liberation Theology, in Garvey: His Work and Impact, Id. at 138.
40. See Philip Potter, The Religious Thought of Marcus Garvey, in Garvey: His Work and Impact, Id. at 147
41. R. Lewis, Marcus Garvey: Anticolonial Champion 168 (London 1987).
42. Num 6:5 (Douay-Rheims).
43. Rev 22
44. (quoted in Chevannes, Num, at 157).
45. Psalms 104
46. (quoted in Chevannes, Num, at 157).
47. Psalms 69:31 (K.J.V.).
48. Evans, Psalms at 46–47.
49. Id. at 166.
50. Eduardo Peñalver, The Concept of Religion 107 Yale L. J. 791, 798 (1997).
51. Laurence H. Tribe, American Constitutional Law 827 (Foundation Press 1978)
52. (quoting Dietrich Bonhoeffer, Religion Without Reservation 58 (1957)).
53. Ludwig Wittgenstein, Philosophical Investigations (G.E.M. Anscombe trans., Macmillan 1953).
54. Id. at 209.
55. id. at 1113 (emphasis added).
56. Id. at 971 (emphasis added).
57. In a series of cases, Francis v. Keane 888 F.Supp. 568 (S.D.N.Y. 1995)
58. Brown v. Daytop Village 613 N.Y.S.2d 1021 (N.Y. App. Div. 1994)
59. Jolly v. Coughlin 76 F.3d 468 (2d Cir. 1996), Rastafarianism's status as a religion was treated as a foregone conclusion.
60. Id. at 1556.
61. This is because of the clauses contained in the constitutions of the independent Caribbean Commonwealth, which save the “existing” law at the time that the constitution was enacted: The “existing law” being the English common law. See Lord Hailsham in Maharaj v. Attorney General of Trinidad and Tobago (1979) A.C. 385, 396.
62. In that case Lord Hailsham, delivering the advice of the Board in connection with the Constitution of Trinidad and Tobago, declared that: “In order to construe the meaning and extent of the rights and freedoms protected by sections 1 and 2 … one must look first at the extent of these rights as they existed at the date of the commencement of the Constitution.” Id. at 403.
63. The Times 44 (Apr. 29, 1991)
64. on appeal, Dawkins v. Crown Suppliers (Property Services Agency) (1993) TLR 44.
65. Registrar General, 3 All E.R. at 892.
66. Id.
67. Id. at 309.
68. Id. at 327–331 quoting expert testimony of Dr. Chevannes.
69. See Re Chikweche, 1995(1) ZLR 235.
70. Id. at 237. Section 19(1) provides that “no person shall be hindered in the enjoyment of his freedom of conscience, that is to say, freedom of thought and of religion … and … to manifest and propagate his religion or belief through worship, teaching, practice and observance.”
71. Re Chikweche, 1995(1) ZLR at 242 (Gubbay CJ) (quoting J.N. Pandey, Constitutional Law of India 197).
72. In R v. Hines & King (1971) 17 W.I.R. 326, the Supreme Court of Jamaica applied a modified version of the “theistic” test when reviewing the refusal of a trial judge to permit the appellant to swear an oath in accordance with his Rastafarian beliefs.
73. In upholding the appellant's constitutional right to swear an oath, affirming his belief in “King Rastafari,” the court confirmed the religious status of Rastafarians by comparing their beliefs with the belief of Sikhs who regard the founder of their religion, Wahi Guru, and each succeeding Guru as the representative of the Omnipotent on earth. Id. at 326, 330, 333.
74. The court did not, however, consider whether there was also evidence of worship in the manner prescribed in Segerdal (1970) 3 All E.R. at 886.
75. Evans, All E.R. at 170.
76. Id. at 259.
77. Id. at 570.
78. Id. at 576 n. 8.
79. Id. at 972.
80. Exactly the same argument had been used in a number of Black Muslim cases in which the prison authorities sought to justify the banning of their version of the Quoran on the grounds that it would stir up racial hatred in prison. Pierce v. La Vallee 293 F.2d 233 2d Cir. (1961)
81. Bryant v. Wilkins 258 N.Y.S.2d. 455 (Sup. Ct. 1965)
82. rev'd and remanded, 265 N.Y.S.2d 995 (App. Div. 1965)
83. appeal dismissed, Magette v. Wilkins, 215 N.E.2d 529 (N.Y. 1966) (Table).
84. id. at 308.
85. Grant, 1999 Cayman Islands Law Reports, at 307, 331.
86. Id. at 403.
87. Id.
88. Id. at 471.
89. Id.
90. Id. at 480.
91. Id. at 472.
92. See discussion, infra accompanying n. 126.
93. See Malcolm D. Evans, Religious Liberty and International Law in Europe 307 (Cambridge U. Press 1997).
94. id. at 87.
95. Id. at 1025.
96. Id.
97. Id.
98. Id. at 1113.
99. Id.
100. Id.
101. In overturning the decision of the District Court, Circuit Judge Posner described the evidence of the prison doctor as “distinctly odd” and “a law of nature of which we have never heard and find hard to credit.” Id. at 962.
102. City of Boerne v. Flores, Archbishop of San Antonio, 521 U.S. 507 (1997).
103. Id. at 1559.
104. Ballard, 322 U.S., at 93
105. see Tribe, U.S.
106. Herbert S. Miller et al., Special Issue: Tentative Draft of Standards Relating to the Legal Status of Prisoners, 14 Am. Crim. L. Rev. 508, 508 (1997).
107. Id. at 458.
108. Id. at 459.
109. Id. at 703.
110. Id.
111. Id. at 702 (emphasis added).
112. Ali himself put it much more pithily when asked by a reporter why he refused to fight in Vietnam: “Ain't no Vietcong ever called me nigger.” Id.
113. See Bruce Perry, Malcolm: The Life of a Man who Changed Black America 3–5 (Station Hill Press 1991), where he notes that Malcolm X's father was elected president of the Omaha branch of Garvey's Universal Negro Improvement Association.
114. See Ira C. Lüpu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv. L. Rev. 933, 954 (1989).
115. See Justice Scalia's comments in Employment Division v. Smith, 494 U.S. 872 (1990).
116. See People v. Woody, 394 P.2d 813 (Cal. 1964)
117. Wisconsin v. Yoder, 406 U.S. 205 (1972).
118. The Combsome branch of the Rastafarian movement did not wear their hair in dreadlocks. However, by the 1970s they had all but died out. See Chevannes, Cayman Islands Law Reports, at 158.
119. Tribe, Cayman Islands Law Reports, at 864.
120. Dworkin, Cayman Islands Law Reports, at 17.
121. Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1140 (1990).
122. Id. at 1026–1027.
123. Id. at 1026.
124. The differing impact of grooming regulations on those religions with visible grooming requirements and those without is discussed in some detail in the dissenting opinions in Goldman v. Weinberger, 475 U.S. 503. The dissenting opinions referred to are those of Justice Brennan, joined by Justice Marshall, and the separate dissenting opinion of Justice Blackmun.
125. Id. at 874.
126. Id.
127. Id. at 875.
128. Id. at 875.
129. Id. at 879–881.
130. Id. at 888.
131. Id. at 890.
132. McConnell, Id. at 1132.
133. Id. at 1128.
134. Id. at 1147.
135. See e.g. the treatment of Native American Indians by the Californian Supreme Court in People v. Woody, 394 P.2d 813 (Cal. 1964)
136. the treatment of the Amish by the United States Supreme Court in Wisconsin v. Yoder, 406 U.S. 205 (1972).
137. Id.
138. Id.
139. Id. at 913.
140. Id. at 914 (emphasis added).
141. Id. at 918.
142. Id. (emphasis added).
143. Id.
144. Id.
145. Id. at 1559.
146. Id. at 519.
147. Id. at 522.
148. J. Morris Clark, Guidelines for the Free Exercise Clause 83 Harv. L. Rev. 327, 330–331 (1969).
149. See Justice Blackmun's dissenting judgment in Smith, 494 U.S. at 907.
150. F. Wilkinson, Human Rights Act will make Cannabis Legal, The Times Law 9 (Feb. 20, 2001).
151. Id.
152. See I. Loveland, Religious Drug Use as a Human Right? 41 N.L.J. (Jan. 19, 2001)
153. subsequent letters by Judge Gibson and Professor Loveland, 120 N.L.J. (Feb. 2, 2001).
154. Quoted in Wilkinson, N.L.J.
155. For a summary of the Commission's recommendations, see Jamaica Gleaner (Aug. 16, 2001).
156. Grant, 1999 Cayman Island Law Reports, at 356.