The Reconciliation of Freedom of Religion with Anti-Discrimination Rights
journal contributionposted on 29.10.2019, 09:31 by Anthony Gray
Freedom of religion is commonly regarded as one of the most fundamental and longstanding human rights, and is reflected in a range of international and domestic human rights instruments. More recently, the law has become concerned to enshrine rights to equality, including a right not to be discriminated against on various grounds. Sometimes, the right to freedom of religion is in conflict with the right to equality. Difficult questions arise regarding how such conflict is resolved. Recent decisions in a range of jurisdictions have grappled with such an issue. This article will discuss recent developments in a range of jurisdictions in this context, before considering some of the issues in the literature. This is a vast area.1 For manageability, the article will focus on the conflict between religion rights and anti-discrimination law in the particular context of accommodation, though many of the points made are equally applicable to the conflict between such rights in other contexts. As it happens, since many of the cases have involved discrimination on the basis of sexuality, that is the chosen exemplar of discrimination on ‘prohibited grounds’ used here. In Part I of the article, I document the strong historic links between law and religion, to provide context for the discussion that follows. In Part II, I consider recent developments in this area across a range of jurisdictions, including Australia, Europe, United States and Canada. Part III considers some of the issues of debate from the case law and the academic literature. Specifically, it critically considers the existing religious exemptions to general anti-discrimination provisions, considers arguments that the law ought to protect religious freedom to a greater extent than is currently the case, and the viability of the distinction between belief and manifestation of that belief.