Right/Freedom of Religion/Conflicts with other Rights

Freedom of Religion

History | Legal Codification | Philosophical Origins | Culture and Politics | Conflicts with other Rights | Limitations / Restrictions | Utilitarian / Fairness Assessments | Looking Ahead | Policy Recommendations

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When dealing with cases in which freedom or religion seems to conflict with other guaranteed rights, international human rights law has historically precedented certain principles to consider in settling the matter: “These include the principles of: non-discrimination, meaning that there is no ‘right to discriminate;…’ neutrality and impartiality of the state as between religions and as between religious and nonreligious forms of belief; respect for others to believe and the duty of the state to create a level playing field between different groups of different religions or beliefs or no religion or belief, which may be summarized as respecting the believer rather than the belief; pluralism and tolerance, which includes that there is no right not to be offended; institutional and personal autonomy; proportionality in determining whether an interference with the right to manifest one’s religion is justified: the restriction must have a legitimate aim and the means used to achieve that aim must be proportionate and necessary…; no hierarchy of rights, meaning that in each instance, an attempt is made to maximize each of the rights engaged and to ensure that none is inappropriately sacrificed; and, legality, i.e. that restrictions on rights must be clear, publicly accessible, non-retrospective, and that people must be able to understand the circumstances in which restrictions might be imposed and foresee the consequences of their actions with a degree of certainty” (Donald and Howard, 2015) All this is ultimately to outline the considerations necessary to consider when dealing with encroachments upon and/or suppression of the freedom of religion due to society’s necessity of freedom of conscience. Freedom of conscience is ultimately necessary and fundamental to the workings of democracy. The right to freedom of religion falls well under the category to the right to freedom of conscience. And within this category, the right against religious discrimination is a distinct and complimentary right to freedom of religion: “Religious freedom is best understood as protecting our interest in religious adherence (and non-adherence), understood from the committed perspective of the (non)adherent. This internal, committed perspective generates a capacious and realistic conception of religious adherence, which reflects the staggering plurality of forms of religiosity (or lack thereof) as extant in contemporary societies” (Norton and Khaitan 1125, 2019). One example regarding the right to non-discrimination and freedom of conscience working in tandem with the freedom of religion is the 2013 case of Eweida and Others v UK. This case saw two of the applicants, a registrar of birth, deaths and marriages (Ladele) and a relationship counsellor (McFarlane), deny their services to same-sex couples due to their company policies regarding their Christian, religious beliefs. The European Court of Human Rights (ECtHR) deemed the court found that the applicants’ actions complied with their company policies and therefore did not constitute discrimination (Donald and Howard 7, 2015). The workings of freedom of religion and the expression of said religion as well as conscientious objection work in tandem to support the right to freedom of religion.

REFERENCES:

Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London.

Tarunabh Khaitan and Jane Calderwood Norton, “The right to freedom of religion and the right against religious discrimination: Theoretical distinctions,” 1125, International Journal of Constitutional Law, 2019 New York.

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In regards to gay marriage and religious freedom, two often interconnected topics, federalism is particularly apparent. Furthermore, many conservatives argue that states should be able to use religious rights in deciding whether or not gay marriage is legal. Robert A. Levy of the Cato Institute explains how technically, this position is legally valid, as “Clearly, federalism allows states to decide whether to recognize both same-sex and conventional marriages, or assign a different label, or privatize marriage altogether.” In this way, Levy emphasizes that due to federalism, depending on the region of the country, religious rights may be used to justify denying gay couples the ability to marry. Though, ultimately Levy questions the realistic strengths of federalism, asserting that the Constitution’s limits on discrimination outweigh the powers allocated to the states by federalism. Thus, according to Levy, federalism does not allow for states to exercise religious rights in a way that permits them to discriminate against LGBTQ+ individuals. Following this logic, federalism can be viewed to weaken the exercise of religious freedom. Additionally, states’ varying approaches to school prayer demonstrate how religious rights are subject to federalism. Although federal law prohibits prayer in public schools, upholding it to be a violation of the establishment clause, certain school districts have acted to protect school prayer. For example, nearly forty years after Engel v. Vitale and Abington School District v. Schempp, which struck down on school prayer, Santa Fe Independent School District v. Doe proved school prayer was still alive in certain states, as the case presented a situation of student-led prayer prior to high school football games. Demonstrated by Santa Fe, while federal law may prohibit school-mandated prayer, certain states may permit public school districts to contradict these laws with student lead prayer. Furthermore, depending on the state, the degree of secularism within public schools may differ. This emphasizes how federalism can bolster religious rights, as state’s rights may permit them to evoke certain religious practices misaligned with federal law. Lastly, state constitutions additionally demonstrate how federalism affects religious freedom. Noted by Christopher Hammons, numerous states invoke religion in their constitutions, asserting God to be “the foundation of order, liberty, and good government.” (226) The emphasis on god and direct religious references within certain state’s constitutions demonstrate how federalism, which provides states with specific liberties, allows for a varying image of religious freedom throughout the United States.

REFERENCES:

Christopher Hammons, State Constitutions, Religious Protection, and Federalism, 7 U. ST. THOMAS J.L. & PUB. POL'Y 226 (2013)

Robert A. Levy, Marriage equality: religious freedom, federalism, and judicial activism, SCOTUSblog (Aug. 15, 2011, 4:32 PM), https://www.scotusblog.com/2011/08/marriage-equality-religious-freedom-federalism-and-judicial-activism/

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Explained by Donald and Howard, freedom of religion is upheld by all major human right treaties. Demonstrated by this, freedom of religion is prioritized within international human rights law. Article 18 of the Universal Declaration of Human Rights, Article 18(1) of the International Covenant on Civil and Political Rights and Article 9(1) of the European Convention for the Protection of Human rights and Fundamental Freedoms all protect individuals’ freedom of religion, which includes “freedom of thought, conscience, and religion.” Present in each of these major treaties, freedom of religion is observed to be highly respected and prioritized by the United Nations. Additionally, freedom of religion is enshrined in most constitutions, demonstrating its high status. For example, only 43 countries, 20% of all nations, assert a state religion in their constitutions, denying religious freedom. As the majority of countries do not uphold a state religion, they allow for degrees of religious freedom. Observed by this trend among the majority of countries, there is a general global consensus that freedom of religion is a highly regarded fundamental right.

REFERENCES:

Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London.

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Freedom of religion often conflicts with other human rights. Specifically in contemporary times, other fundamental rights are often prioritized over religious rights. In particular, this is observed with LGBTQ+ rights. Explained by Dr Alice Donald and Erica Howard of Middlesex University, the rights to religious freedom and anti-discrimination are both globally upheld as fundamental rights. Though, Donald and Howard argue, ultimately LGBTQ+ individuals’ rights to non-discrimination hold precedence over religious rights. Explaining how religious freedom is enshrined in numerous human rights treaties, Donald and Howard do not shy from acknowledging the importance of freedom of religion. Though, later explaining its intersectionality with anti-discrimination rights, which they further assert to be a fundamental human right, Donald and Howard ultimately uphold the importance and prioritization of LGBTQ+ rights. In this way, Donald and Howard diminish the dominance of freedom of religion within the hierarchy of fundamental rights. Donald and Howard assert, “As mentioned, the right to manifest one’s religion or belief can be restricted if this is necessary for the protection of public safety, public order, health or morals or the rights of others. The latter includes the right of others not to be discriminated against.” Thus, as explained by Donald and Howard, the right to anti-discrimination places the right to free religious exercise at a lower position within the hierarchy of rights. Though, recent United States court cases have countered Donald and Howard’s positions, denoting a higher status to freedom of religion. Furthermore, within American jurisprudence, freedom of religion holds a particularly higher position in the hierarchy of rights. This was most notably observed in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, where the court defended a baker’s denial of services to a gay couple on the grounds of religion. Upholding the ability of the baker to discriminate against the gay couple, the court asserted the dominance of religious rights over anti-discrimination laws. Noted by Justice Gorsuch, “The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.” Through this, the court demonstrated that religious rights hold a principal position above other fundamental rights within the United States.

REFERENCES:

Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London.

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The freedom of religion possess two main components: “The first is the right to freedom of thought, conscience and religion, which means the right to hold or to change one’s religion or belief and which cannot be restricted under any circumstances. The second is the right to manifest one’s religion or belief, which, according to Articles 9(2) ECHR and 18(3) ICCPR, can be restricted but only if the restriction is prescribed by law and is necessary – Article 9(2) adds here ‘in a democratic society’ – for the protection of public safety, public health or morals or for the protection of the rights and freedoms of others” (Donald and Howard 2, 2015). The practice of freedom of religion often conflicts with several other guaranteed freedoms due to its intersectional nature, and can therefore, legally be restricted when it encroaches upon other fundamental and guaranteed human rights. In 2015, when the US Supreme Court deemed same-sex marriage constitutional, religious freedom cases flooded state legislatures and courthouses, many of which were seeking exceptions to anti-LGBTQIA+ legislature under the basis of religious beliefs (Russell-Kraft, 2017). Some of these cases, including the previous 2013 case of Elane Photography v. Willock, represent the power of the freedom of expression, the freedom to be married, and the right to not be discriminated against, to undermine certain instances of the practice of the freedom of religion. This case was between two women who sought to hire photography company Elane Photography for their wedding ceremony and the named photography company who refused to provide services due to religious reasons. The case eventually was ruled in favor of the same-sex couple citing that the state of New Mexico prohibited any discrimination on the basis of sexual orientation, and that the claims of the photographer for her freedom of religion and speech were not protected in this case due to the (Russell-Kraft, 2017). The Constitution does indeed “have competing values; the requirements of the free exercise and the establishment clauses, freedom of association, and anti-discrimination on the basis of faith don’t always add up” (Russell-Kraft, 2017).

When dealing with cases in which freedom or religion seems to conflict with other guaranteed rights, international human rights law has historically precedented certain principles to consider in settling the matter:

“These include the principles of: non-discrimination, meaning that there is no ‘right to discriminate;…’ neutrality and impartiality of the state as between religions and as between religious and nonreligious forms of belief; respect for others to believe and the duty of the state to create a level playing field between different groups of different religions or beliefs or no religion or belief, which may be summarized as respecting the believer rather than the belief; pluralism and tolerance, which includes that there is no right not to be offended; institutional and personal autonomy; proportionality in determining whether an interference with the right to manifest one’s religion is justified: the restriction must have a legitimate aim and the means used to achieve that aim must be proportionate and necessary…; no hierarchy of rights, meaning that in each instance, an attempt is made to maximize each of the rights engaged and to ensure that none is inappropriately sacrificed; and, legality, i.e. that restrictions on rights must be clear, publicly accessible, non-retrospective, and that people must be able to understand the circumstances in which restrictions might be imposed and foresee the consequences of their actions with a degree of certainty” (Donald and Howard, 2015)

All this is ultimately to outline the considerations necessary to consider when dealing with encroachments upon and/or suppression of the freedom of religion due to society’s necessity of freedom of conscience. Freedom of conscience is ultimately necessary and fundamental to the workings of democracy. One example regarding the right to non-discrimination and freedom of conscience favoring the rights of freedom of religion is the 2013 case of Eweida and Others v UK. The outcome of this case saw a contrary ruling to that of the Elane Photography v. Willock case. This case saw two of the applicants, a registrar of birth, deaths and marriages (Ladele) and a relationship counsellor (McFarlane), deny their services to same-sex couples due to their company policies regarding their Christian, religious beliefs. The European Court of Human Rights (ECtHR) deemed that the freedom to not to be discriminated against on the ground of sexual orientation is, in fact, protected under the Convention on human rights and that difference in treatment requires significant and legal justification and legitimate reasoning for doing so; however, in this case, the court found that the applicants’ actions complied with their company policies and therefore did not constitute discrimination (Donald and Howard 7, 2015). The two opposing cases demonstrate the flexibility and conflicting natures of fundamental rights such as that of conscience and non-discrimination both for and against the practice of freedom of religion.

The ECtHR recognizes further the conflicting rights of people to teach others about their religion or belief in contrast with the right of other people to be free from interference with their own freedom of religion or belief (which encompasses their right to be free from religion or belief): “For example, the European Centre for Law and Justice has argued within the Council of Europe for a ‘general provision reaffirming the fundamental right to freedom of religious opinion’ and argues that the concept of hate speech should ‘never end in a limitation of free speech’ (emphasis added). However, this is not entirely possible, seeing as international human rights laws draw limitations to ensure that conflicting rights in each particular case are proportionally balanced so that neither right in question is inappropriately sacrificed” (Donald and Howard 9, 2015).

Lastly, even the freedom of assembly, which is guaranteed by Articles 20 of the Universal Declaration of Human Rights, 21 of the International Covenant on Civil and Political Rights and 11 of the European Convention on Human Rights comes into conflict with the freedom of religion. Some instances of peaceable assemblies such as LBGTQIA+ rallies have been prohibited and/or confined to venues out of public sight: “Where these events are not prohibited and do take place, there is often inadequate protection of participants by law enforcement agencies. This not only infringes the right of LGBTI people to freedom of expression and assembly, but it also makes them vulnerable to discrimination, abuse and violence… Despite these principles, claims based on religious conscience expressed in morally absolute terms persist” (Donald and Howard 10, 14, 2015).

The rights of non-practicing individuals often conflict with the rights to freedom of religion. Furthermore, the concept of “freedom from religion” questions the strength of freedom of religion, as many believe that non-practicing individuals have an equally important right to not be subjected to religious practices (Sapir and Statman). Often this results in conflict between state power and religious rights, as the state is often expected to protect the rights of non-religious individuals. Gidon Sapir and Daniel Statman note how freedom from religion manifests itself, claiming “a law prohibiting the sale of goods on the sabbath would violate the would-be vendors freedom from religion.” Demonstrated by Sapir and Statman, religious rights may be contested when they conflict with the laws prescribed by the state upholding the rights of non-practicing individuals, for example that stores can operate on the sabbath day. In this way, the rights of non-religious individuals, as supported by the state, can act to diminish the power of religious rights.

Additionally, conflicts of religious rights and the rights to free association have been notably observed throughout American jurisprudence. Most predominantly, this issue manifests itself in issues pertaining to First Amendment rights and civil rights. For example, the right for an individual to identify as LGBTQ+ has often been at odds with the Free Exercise Clause of the First Amendment. This was observed in Masterpiece Cakeshop v. Colorado Civil Rights Commision, when a Colorado bakery asserted their First Amendment rights to deny a gay couple service, arguing that “it would displease God to create cakes for same-sex marriages.” In response to the bakery’s actions, the couple sued, claiming that their rights to non-discrimination as protected by Colorado’s Anti-Discrimination Act had been violated. Although challenged by the couple’s discrimination case, Masterpiece Cakeshop v. Colorado Civil Rights Commission ultimately demonstrated that the right to free religious exercise has historically infringed upon individual’s rights to non-discrimination, as the Supreme Court ruled in favor of the bakery, claiming that under the Free Exercise Clause the bakery was permitted to deny service to the couple. Thus, while civil rights often create a legitimate conflict with religious rights, religious rights often take precedence. Though, as the issue of discrimination and religious rights has evolved, the strength of the First Amendment has weakened, reinforcing Civil Rights. Observed by the Bostock v. Clayton County decision, the Supreme Court now upholds that discrimination against LGBTQ+ individuals is a violation of Title VIII of the Civil Rights Act (Hollis-Brusky). This landmark decision curtails many of the arguments, such as those made by the justices in Masterpiece Cakeshop v. Colorado Civil Rights Commision, which had previously bolstered the rights to religious freedom over the rights of LGBTQ+ individuals. Furthermore, unlike the justices concluded in Masterpiece Cakeshop v. Colorado Civil Rights Commision, Bostock’s support of the primacy of civil rights undermines the belief that the First Amendment can be used to legally protect individuals who discriminate against LGBTQ+ individuals. Thus, exhibited by the Bostock v. Clayton County case, freedom of religion, specifically the Free Exercise Clause, can be limited by civil rights to non-discrimination.

REFERENCES:

Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London.

Hollis-Brusky, Amanda, “The Supreme Court Closed the Door on LGBTQ Discrimination. But it Opened a Window.” Monkey Cage at The Washington Post. June 16, 2020.

Tarunabh Khaitan and Jane Calderwood Norton, “The right to freedom of religion and the right against religious discrimination: Theoretical distinctions,” 1125, International Journal of Constitutional Law, 2019 New York.

Stephanie Russell-Kraft, The Clash Between Religious Freedom and Equality Law, John C. Danforth Center on Religion and Politics 2017 St. Louis.

Sapir, Gidon, and Daniel Statman. “Why Freedom of Religion Does Not Include Freedom from Religion.” Law and philosophy 24, no. 5 (2005): 467–508.