Freedom of Religion/Conflicts with other Rights/Position
Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?
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.