Religious Freedom and Religious Antidiscrimination
| Date | 01 September 2019 |
| DOI | http://doi.org/10.1111/1468-2230.12449 |
| Author | Ilias Trispiotis |
| Published date | 01 September 2019 |
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Modern Law Review
DOI: 10.1111/1468-2230.12449
Religious Freedom and Religious Antidiscrimination
Ilias Trispiotis∗
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 frameworkilluminates 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.
INTRODUCTION
What is the relationship between the right to freedom of religion or belief
and the prohibition of discrimination on grounds of religion or belief? The
interest of this article in this question arises from a pressing uncertainty over the
purpose of the two different provisions and their role in legal practice.1In a
wide range of recent cases involving, among others, employees prevented from
wearing a cross2or a headscarf in the workplace,3statesbanning full-f ace veilsin
public,4and the dismissal of a doctor in a Catholic hospital because he divorced
his wife and remarried,5the right to freedom of religion and the prohibition
of religious discrimination seem to play a similar role before the courts. The
∗Lecturer in Law, School of Law, University of Leeds. I am grateful to Ian Cram, Chris Dietz, Suren
Gomtsyan, George Letsas, Joan Loughrey, Rebecca Moosavian, Sophia Moreau, Duncan Sheehan,
Anna Su, Sabine Tsuruda, Peter Whelan as well as the twoanonymous reviewers, for their invaluable
comments on earlier versions of this article.
1 See, for example, M. Mitchell, K. Beninger, A. Donald and E. Howard, Religion or Belief in
the Workplace and Service Delivery: Findings from a Call for Evidence (Equality and Human Rights
Commission, March 2015) 11-14.
2Eweida and Others vUnited Kingdom Application nos 48420/10, 36516/10, 51671/10 and
36516/10, 15 January 2013 at [51] (Eweida).
3 See, for example, Opinion of Advocate General Kokott, Case C-157/15 Achbita vG4S Secure
Solutions NV EU:C:2017:203 at [54] (Achbita vG4S); Opinion of Advocate General Sharpston,
Case C-188/15 Asma Bougnaoui, Association de Defense des Droits de l’Homme (ADDH) vMicropole
Univers SA EU:C:2017:204 at [45]-[47] (Bougnaoui vMicropole).
4SeeBelcacemi and Oussar vBelgium, Application no 37798/13, 11 July 2017 at [64]-[68]; S.A.S.
vFrance Application no 43835/11, 1 July 2014 (Grand Chamber) at [79]-[80] (S.A.S.).
5 Opinion of Advocate General Wathelet, Case C-68/17 IR vJQ EU:C:2018:696 at [58]-[62].
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited. (2019) 82(5) MLR 864–896
Ilias Trispiotis
academic scholarship, however, currently does not account for why this is the
case. It is often assumed that religious freedom and religious antidiscrimination
furnish two rival legal approaches to cases of accommodation of conscience; a
human rights or ‘restrictions’ approach, based on freedom of religion or belief,
and a discrimination or ‘equality’ approach, based on antidiscrimination law.6
Some scholars argue that religious freedom and religious antidiscrimination
share the aim of protecting religion or belief,7whereas others claim that they
serve distinct or even conflicting purposes.8This persistent theoretical uncer-
tainty over the purpose of the two legal rights and the relationship between
them has been vigorously criticised. One reason is that it deprives legal prac-
tice from clear answers to practical questions about how different provisions
protect individual conscience.9Another reason is that it often leads the courts
to dissolve the two provisions into each other, which can blunt the progressive
potential of discrimination law10 – especially at times when that potential is par-
ticularly important. These are critical issues that require in-depth engagement
with the rationale(s) underlying the two legal rights, which remain curiously
underexplored in human rights theory.11
With the above context in mind, this article aims to identify the norma-
tive foundations of religious freedom and religious antidiscrimination, and to
outline their role and relationship. To achieve this aim, the article develops a
new theoretical framework that clarifies the purpose of the two separate pro-
visions and their distinct contributions to legal practice. More specifically, the
article advances two main arguments. Firstly, it identifies the moral r ight to
ethical independence as the main normative ground of religious freedom and
religious antidiscrimination.12 It is argued that ethical independence protects
6 See, for example, Opinion of AG Sharpston, Bougnaoui vMicropole n 3 above at [58]-[67]; R.
Wintemute, ‘Accommodating Religious Beliefs: Harm, Clothing or Symbols, and Refusals to
Serve Others’ (2014) 77 MLR 223, 225-228; I. Leigh and R. Ahdar, ‘Post-Secularism and the
European Court of Human Rights: Or How God Never Really Went Away’ (2012) 75 MLR
1064, 1095-1097.
7 See D.Schiek, ‘On Uses, Mis-uses and Non-uses of Inter sectionality beforethe Cour t of Justice
(EU)’ (2018) 18 International Journal of Discrimination and the Law 82, 93-96; A. McColgan,
Discrimination, Equality and the Law (Oxford: Hart, 2014) 66-69.
8 See R. McCrea, ‘Singing from the Same Hymn Sheet? What the Differences between the
Strasbourg and Luxembourg Courts Tell Us About Religious Freedom, Non-Discrimination,
and the Secular State’ (2016) 5 OJLR 183; E. Brems and L. Peroni ‘Religion and Human
Rights: Deconstructing and Navigating Tensions’ in S. Ferrari (ed), Routledge Handbook of Law
and Religion (Abingdon: Routledge, 2015) 145-159.
9 C. McCrudden, ‘Marriage Registrars, Same-Sex Relationships, and Relig ious Discrimination
in the European Court of Human Rights’ in S. Mancini and M. Rosenfeld (eds), The Conscience
Wars: Rethinking the Balance between Religion, Identity, and Equality (Cambridge: CUP, 2018)
414-463.
10 L. Vickers, ‘Achbita and Bougnaoui: One Step Forward and Two Steps Back for Religious
Diversity in the Workplace’ [2017] European Labour Law Journal 1.
11 Exceptions include R. McCrea, ‘Squaring the Circle: Can an Egalitar ian and Individualistic
Conception of Freedom of Religion or Belief Co-exist with the Notion of Indirect Discrim-
ination?’ in H. Collins and T. Khaitan (eds), Foundations of Indirect Discrimination Law (Oxford:
Hart, 2018) 149-171; L. Vickers, Religious Freedom, Religious Discrimination and the Workplace
(Oxford: Hart, 2016) 29-44.
12 The concept of ethical independence appears in Ronald Dworkin’s work, but remains under-
explored in human rights theory. Although this article cannot defend ethical independence in
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(5) MLR 864–896 865
Religious Freedom and Religious Antidiscrimination
each person’s freedom to form and pursue their own ethical or religious com-
mitments. Crucially, ethical independence does not privilege any religious or
ethical commitments as such. Its aim is to secure fair background conditions
for the compossible pursuit of different and conflicting plans of life. Thus, the
focus of ethical independence is on the legitimacy of state interference with
liberty, which can be limited only for some reasons (eg, to protect others from
harm) and not for others (eg, due to majority bias). It is posited that those
features of ethical independence distinguish it from prominent interpretations
of personal autonomy and freedom of choice, and that those differences have
important implications for human rights practice.
Secondly, it is argued that ethical independence maps onto the legal rights to
religious freedom and religious antidiscrimination, which institutionally, albeit
imperfectly, specify it. But although religious freedom and religious antidis-
crimination share their main normative ground, their emphasis is different.
Schematically, the emphasis of freedom of religion or belief is vertical;itidenti-
fies ethical independence as an important capability in each person and protects
it in our dealings with the state and each other. This vertical emphasis is crucial
to illustrate why conceptions of equality or fairness that treat everyone’s beliefs
as equally inconsequential or as a matter of no concern are implausible.
On the other hand, the emphasis of religious antidiscrimination is horizontal;
it aims to secure fair background conditions for ethical independence through
addressing patterns of group disadvantage that erode the ability of people to
pursue their religious or ethical commitments. Its emphasis is horizontal also
because the overall aim of religious antidiscrimination requires reaching beyond
individual conscience and taking into account the interaction between different
prohibited grounds of discrimination in order to enrich our understanding of
wrongful disadvantage in this context.
This article’s account is a major theoretical advance on the prevailing inter-
pretations of religious freedom and religious antidiscrimination in legal schol-
arship, where typically the two rights are portrayed as either synonymous or
as distinct and in competition. In a wide range of cases, the proposed account
elucidates the specific ways that the two rights complement each other in order
to address individual and group disadvantage on grounds of religion or belief.
Crucially, the proposed account also clarifies how the courts resolve tensions
between religious freedom and religious antidiscrimination, such as those aris-
ing whenever belief organisations, based on their right to freedom of religion
read in the light of freedom of association, claim exemptions from antidiscrimi-
nation law. It is argued that the Cour t of Justice of the European Union (CJEU)
and the European Court of Human Rights (ECtHR) assess the compatibility
of different interpretations of freedom of association and freedom of choice
with the shared normative ground of the two rights in order to resolve such
tensions between them.
the abstract, its second section does discuss some of its differences from certain interpretations
of autonomy and freedom of choice. See R. Dworkin, Religion without God (Cambridge, Mass:
Harvard University Press, 2013); R. Dworkin, Justice for Hedgehogs (Cambridge, Mass: Harvard
University Press, 2011) 191-219; C. Laborde, Liberalism’s Religion (Cambridge, Mass: Harvard
University Press, 2017) 197-238.
866 C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(5) MLR 864–896
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