Religious Freedom and Religious Antidiscrimination

This article develops a theoretical framework that prompts a new understanding of the role of religious freedom and religious antidiscrimination in human rights law. Proceeding from the prevailing theoretical and doctrinal uncertainty over the relationship between the two rights, which are currently seen as either synonymous or as distinct and in competition, the article develops an account of the moral right to ethical independence and argues that religious freedom and religious antidiscrimination share their main normative basis on that moral right. However, religious freedom and religious antidiscrimination have different emphasis, and both are essential to secure fair background circumstances for the pursuit of different individual plans of life. The proposed framework illuminates the relationship of individual and collective aspects of religious freedom with discrimination law. The analysis has crucial implications for human rights interpretation in cases involving state interference with liberty, in relation to religion or belief, and more broadly.     

The Autonomy Rationale for Religious Freedom

Courts and scholars across jurisdictions increasingly identify personal autonomy as the primary rationale for the right to religious freedom. But there are tensions between autonomy on one hand, and religious belief, practice and proselytism on the other. This paper will focus on two tensions which have unappreciated implications for religious freedom jurisprudence, particularly that of the ECHR. The first tension stems from the resistance of some religious beliefs to revision. The second stems from the manipulative nature of some modes of religious proselytism. This paper argues that, given these tensions, the protection currently offered to religious beliefs, practices and proselytism by the right to religious freedom cannot be justified by reference to the value of autonomy. This finding has significant implications for the justification of the right to religious freedom.     

Compromise and religious freedom

Compromise is surprisingly common in the context of religious freedom. In Holt v. Hobbs, for example, a Muslim prison inmate challenged his prison’s no-beards policy on religious freedom grounds. He proposed, and was eventually granted, a compromise that allowed him to grow a half-inch beard rather than the full beard normally required by his beliefs. Some have argued that such a compromise is inconsistent with the purpose of religious freedom, which is to guard against interference with an individual’s religious practices. Accepting a compromise, after all, may require a significant modification to one’s default practices. But this paper argues that compromise can be appropriate if the purpose of religious freedom is to foster the inclusion and acceptance of all people in a diverse political community. Moreover, the benefits of compromise may lend support to the inclusion-based conception of religious freedom as against the more traditional non-interference conception.

     

Social Justice Issues in the Management of Religious Diversity in Australia

New religions, both those arriving by way of the cultural baggage of migrants and those which are part of the panoply of recent New Religious Movements and the New Age, have challenged and changed Australia's religious demography, but have been incorporated into Australian society in a comparatively peaceable way due to Australia's very tolerant religious institution. The effective management of this new religious diversity has been made possible by previously existing norms and expectations (i.e., institutions). The attempt to enact federal legislation to protect freedom of religion and belief in response to ICCPR Article 18 spearheaded by Australia's Human Rights and Equal Opportunities Commission provides an opportunity to examine a particular case of the management of religious diversity. Groups that viewed the consequences of religious difference from a social justice perspective supported the legislation, and those that essentialize religious difference opposed it.     

Freedom of Conscience and Observance of the Laws on Religious Denominations

Freedom of conscience is one of the most important democratic institutions in the Soviet state. The basic content of that institution lies in the citizen's right not to profess any religion or to profess any religion whatever; the freedom to perform religious rites to the degree that this does not involve disturbance of public order and does not infringe upon the personal rights, honor and dignity of citizens; and the freedom to carry on antireligious propaganda in ways that do not offend the religious sentiments of believers.     

新加坡宗教事务的法律治理

新加坡是东西方文明的交汇之地,妥善处理不同种族、宗教之间的关系至关重要。在对本国多元宗教、多元民族的基本国情充分认知的基础上,新加坡政府采取了务实的宗教政策。通过宪法和宗教自由法确立了政教分离、宗教自由和平等保护原则,制定了维护宗教和谐法,实现了宗教间的和谐与容忍,为世界各国宗教事务的法律治理树立了典范。     

Equality as a Basis for Religious Toleration: A Response to Leiter

In this short essay, I respond to Brian Leiter’s Why Tolerate Religion. I focus on two criticisms. First, I argue that Leiter’s own theory depends on an unacknowledged ideal of equality, and that equality is central to the utilitarian and Rawlsian bases for religious toleration that he draws upon in his book. Second, I argue against Leiter’s allowing, in certain circumstances, the state to establish religion and to promote religious conceptions of the good.     

Accommodating Religious Beliefs: Harm,Clothing or Symbols,and Refusals to Serve Others

Is there a middle path between the existing case law of the European Court of Human Rights, which rarely requires accommodation of a religious individual's beliefs, and a ‘general right to conscientious objection’, which would exempt religious individuals from all anti‐discrimination and other rules interfering with manifestations of their beliefs? The author argues that failure to accommodate is better analysed as prima facie indirect discrimination, to highlight the exclusionary effects of non‐accommodation on religious minorities, and that the presence or absence of direct or indirect harm to others (or cost, disruption or inconvenience to the accommodating party) could guide case‐by‐case assessments of whether the prima facie indirect discrimination is justified. The author then applies a harm analysis to the examples of religious clothing or symbols and religiously motivated refusals to serve others, recently considered by the European Court of Human Rights in Eweida and Others v United Kingdom.     

‘Mixt marriages’: Ethnic and Religious Intermarriage among German-Speakers in Eighteenth-Century Pennsylvania

ABSTRACT

Civil and religious authorities in eighteenth-century America grew increasingly concerned over the freedom with which young people chose their marriage partners. Correlating racial, religious and cultural similarity in marriage to a stable society, these authorities attempted to limit marriage and sexual choices by requiring parental authority for marriage, distributing permits to a select few to perform marriages, and criminalizing racial miscegenation. Eighteenth-century Pennsylvania German authorities supported this attitude because they associated ethnic and religious out-marriage with the weakening of the body and the destruction of society. My study uses the marriage and birth records of eighteenth-century Pennsylvania Germans to examine their marriage and sexual relationships. I discovered that Pennsylvania Germans overwhelmingly chose to marry other German-speakers, out of proportion with their population. By examining the then available works on marriage and procreation, I discovered that Pennsylvania Germans read works that emphasized the necessity and importance of intra-ethnic and religious sex and marriage for the health of their children. Pennsylvania Germans chose their marriage partners in alignment with their community’s attitudes towards those of other ethnicities and religions. A small data set further suggests that relationships with non-Germans occurred but rarely became formalized. This complicates what we know about the sexual and emotional revolutions in the seventeenth and eighteenth centuries; far from a linear progression of attitudes towards sex, marriage, and others, eighteenth-century Pennsylvania Germans expressed multiple, contextually-driven perspectives, and in the process they created and maintained strong ethnic communities.     

Faith in the Court: Religious Out‐Groups and the Perceived Legitimacy of Judicial Decisions

The question of whether judges’ personal characteristics and values bias their decision making has long been debated, yet far less attention has been given to how personal characteristics affect public perceptions of bias in their decision making. Even genuinely objective judges may be perceived as procedurally biased by the public. We hypothesize that membership in a religious out‐group will elicit stronger public perceptions of biased decision making. Using a survey experiment that varies a judge's religious orientation and ruling in a hypothetical Establishment Clause case, we find strong evidence that judges’ religious characteristics affect the perceived legitimacy of their decisions. Identifying a judge as an atheist (a religious out‐group) decreases trust in the court, while identifying the judge as a committed Christian has no bearing on legitimacy. These results are even stronger among respondents who report attending church more often. Thus, we argue that perceptions of bias are conditioned on judges’ in‐group/out‐group status.     

Religion in the Workplace: Eweida and Others v United Kingdom

The European Court of Human Rights judgment in Eweida and Others v United Kingdom dealt with the increasingly controversial questions of religious symbols at work and the clash between free conscience and anti‐discrimination norms. In a change of approach, it held that the right to resign could no longer be seen as adequate protection for religious freedom and that workplace norms that restrict religious liberty must satisfy a proportionality test. However, it accorded a wide margin of appreciation to States in reconciling freedom of conscience and freedom from discrimination, ruling that the importance of non‐discrimination could justify a failure to exempt a religious individual from complying with a policy forbidding discrimination on grounds of sexual orientation.     

Two Misunderstandings About Public Justification and Religious Reasons

Two important objections have been raised against exclusivist public reason (EPR). First, it has been argued that EPR entails an unjust burden for citizens who want to appeal to non-public reasons, especially religious reasons. Second, it has been argued that EPR is based on a problematic conception of religious reasons and that it ignores the fact that religious reasons can be public as well. I defend EPR against both objections. I show that the first objection conflates two ideas of public justification (public justification as a conception of political legitimacy and public justification as an ideal of civility) and that the second objection conflates two ways to understand and identify religious reasons. Ultimately, it turns out that those who defend such objections actually share the concerns that justified EPR in the first place. In other words, if we are clear about the idea of public justification and the kind of religious reasons that EPR is really about, it appears that justificatory liberals are in fact all exclusivists.     

Post‐Secularism and the European Court of Human Rights: Or How God Never Really Went Away

This article analyses the critical yet elusive notions of state neutrality, secularism and religious coercion under the European Convention in light of the European Court of Human Rights recent decision in Lautsi v Italy. We contend that the real concern in the Italian crucifix case was not the infringement of the school pupils’ religious freedom nor the proselytising or coercive effect of the ‘passive’ religious symbols. Rather, opponents of the longstanding symbols were animated by desire for strict religious equality, a notion that is, correctly in our view, not guaranteed under the Convention. Lautsi has significantly cleared the conceptual undergrowth surrounding state neutrality and the varieties of secularism, reined in the elastic notion of religious coercion and eschewed attempts to squeeze the constitutional diversity of European religion‐state frameworks into a strict American‐style separationist mould. The Convention jurisprudence on freedom of religion has finally come of age.     

EU Citizenship and Religious Liberty in an Enlarged Europe

This article intends to contribute to the theoretical debate on how EU citizenship could be regarded as a bundle of common European individual rights (and, to a lesser extent, obligations) and part of a democratic polity in which every citizen counts equally irrespectively of his/her religious belonging and faith. The EU perceives itself as a community based on shared values. Since there is no European people, nor a European polity, common values play a core role in European polity building. The question, however, is whether common values can be experienced by the EU citizens in daily life and to what extent there are common values in the EU Member States. These issues are explored using the non‐discrimination principle on grounds of religion, as a litmus‐test for the existence of common values within Europe.     

Law, Religion, and "Public Health" in the Republic of Brazil

The essay evaluates the general problem that, while most modern republican constitutions follow the U.S. and French models in declaring religious freedom, absolute religious freedom is impossible and undesirable. How are religious freedoms constrained, and how much should they be? The essay evaluates the strategies by which limitations on freedoms of religion are constructed and imposed, especially the powerful isomorphism of law and science described by Boaventura de Sousa Santos. Taking the example of Afro‐Brazilian religions in relation to the Brazilian state since 1890, post‐emancipation, the essay argues that pseudo‐scientific discourses of “public health” constrained the religious practice of former slaves, thus allowing the trompel'oeil of religious freedom to continue in the new republic, even as freedoms were in fact constrained by the state.     

The Influence of Religious Personal Identity on the Relationships Among Religious Dissimilarity,Value Dissimilarity,and Job Satisfaction

The purpose of this study was to examine the influence of religious dissimilarity and religious personal identity on one’s job satisfaction. Data were collected from 260 top managers. Structural equation modeling indicated that religious dissimilarity positively affected perceived value dissimilarity from others, which in turn, held a negative association with job satisfaction. These effects were qualified, however, by a significant religious dissimilarity × religious personal identity interaction such that, for persons whose religious beliefs were a central part of who they were, being religiously different from others in the workplace strongly impacted their perceived value dissimilarity. Research contributions and practical implications are discussed.     

Religious and Spiritual Support,Reentry, and Risk

Systems and agencies intent on pursuing an evidence-based approach to correctional interventions have widely adopted the risk principle. For a variety of reasons, many studies have found that giving treatment to low risk people has little impact on reducing recidivism and can even increase recidivism. Because of the risk principle, many prison and community correctional systems now target their treatment resources to medium and high risk. This study tests whether the effects of religious/spiritual support on reentry success generalize across offenders as a function of risk. Results from random effects count models suggest that religious and spiritual support does have a strong and robust effect on the likelihood of ex-offenders desisting from substance abuse. Findings also reveal that the risk principle was not supported; religious and social support was associated with significantly lower levels of substance abuse among low risk offenders, but not among higher-risk offenders. On the other hand, religious and spiritual support did not significantly relate to criminal offending at any risk level. Implications for religious programming and services, as well as the study of religion and reentry, are discussed.     

Religious Tolerance and Freedom in Continental Europe

The author analyses the problems faced by Continental Europe's legal systems as a result of the appearance of the so-called new religious movements. He is of the opinion that the expected change towards the achievement of full legal neutrality regarding the religious phenomena cannot be based on the sole assumption that each and every religion deserves protection. In fact, he considers that any system of equality should be aimed at protecting the legitimate expression of the individual's free will; that is to say, neither a particular religion nor all of them, but the person considered as a citizen, regardless of whether he believes or not.     

Religious Motivated Hate Crimes: Reporting to Law Enforcement and Case Outcomes

Relative to non-bias motivated crimes, hate crimes have much graver consequences for victims and their community. Despite the large increase in religious hate crimes over the past decade relative to all other hate crime, little is known about these types of crimes and the factors associated with both reporting to law enforcement and case outcomes. Utilizing the National Crime Victimization Survey and National Incident-Based Reporting System datasets, this study examines the relationship between victim, offender, and incident characteristics on reporting to law enforcement and case outcomes. Most religious hate crimes are not reported (41.3 %) in part due to perceptions of law enforcement’s perceived response. Of the violent incidents that are reported, the vast majority do not result in the arrest of an offender (22.2 %). Whereas only a small number of variables related to the seriousness of the offense are associated with both reporting and arrest, these exhibited large effect sizes.