Religious freedom and the right against religious discrimination: Democracy as the missing link
| Date | 01 December 2021 |
| Author | Myriam Hunter-Henin |
| Published date | 01 December 2021 |
| DOI | 10.1177/13582291211043421 |
| Subject Matter | Articles |
Article
International Journal of
Discrimination and the Law
2021, Vol. 21(4) 357–373
© The Author(s) 2021
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DOI: 10.1177/13582291211043421
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Religious freedom and the
right against religious
discrimination: Democracy as
the missing link
Myriam Hunter-Henin
Abstract
The article puts forward a novel democratic framework to rethink the relationships
between religious freedom and religious discrimination. First, it makesa case for a unifying
normative basis for all religious interests grounded in a democratic framework, which
emphasises the dual dimension of religious interests, both as negative rights protecting
individual autonomy against interferences as well as positive rightsof participation. Second,
it builds upon this democratic framework to revisit the relationships between discrimi-
nation law and religious freedom and guard against trends to subject discrimination law
claims to preliminary (higher) thresholds. Third, the article examines how contextual
balancing exercises between competing interests should (and to a large extent have)
become a key unifying feature of both routes and draws from the democratic framework
insights as to how these balancing exercises should be carried out.
Keywords
Religious freedom, religious discrimination, group disadvantage, democracy, Achbita,ritual
slaughter,Ashers Bakery
Introduction
The legal scheme for protecting religious rights in the UK
1
originates from two distinct
European legal sources. On the one hand, article 9 of the European Convention on Human
Rights (thereafter ECHR) protects the right to hold and manifest religious (and non-
Reader in Comparative Law and Law & Religion, University College London, UK
Corresponding author:
Myriam Hunter-Henin, Reader in Comparative Law and Law & Religion, University College London, London
WC1H OEG, UK.
Email: m.hunter-henin@ucl.ac.uk
religious) beliefs. On the other, EU Council Directive 2000/78/EC of 27 November 2000
Establishing a General Framework for Equal Treatment in Employment and Occupation
(thereafter the Directive), whose interpretation is itself guided by the provisions contained
in the European Union Charter of Fundamental Rights (thereafter CFR), prohibits reli-
gious discrimination, whether by public bodies or private organisations, in the area of
employment andtraining. Both provisions havebeen implemented into statutorylaw;
2
they
are thus directly enforceable in courts and will remain so despite Brexit.
3
Under the Di-
rective, both directly and indirectly discriminatory practices will amount to prohibited
practices. Under the prohibition of direct discrimination, an employer in Britain
4
must
abstain from treating a person less favourably because of a personal characteristic.
5
An
employer cannot, for example, refuse to appoint someone because of her religion.
Moreover,under the prohibition of indirectdiscrimination, employersmust also ensure that
facially neutralworkplace practices and regulations do not put employeesat a disadvantage
by reason of their religion or belief, unless the practice pursues a legitimate aim and is a
proportionate means to achieving that aim.
6
This dualist protection of religious interests, complicated by the presence of an anti-
discrimination article in the ECHR
7
and a commitment to protecting freedom of religion
under article 10 of the CFR, has led to debates concerning the interactions between
religious freedom and religious discrimination. Authors have thus discussed which of the
ECHR or the Directive is the more effective legal basis to protect religious rights.
8
Controversies have also revolved around the normative basis that grounds each of or both
legal bases.
9
In this article, I will offer new insights into the relationships between re-
ligious freedom and religious discrimination by highlighting the connections between
religious interests and democracy, construed for the purposes of this article as a discursive
exercise,
10
an inclusive and open-ended reason-giving process.
11
Based on these con-
nections, I will propose a novel democratic framework for the protection of religious
interests and examine its implications for the relationships between religious freedom and
religious discrimination. The democratic framework, as I will explain, construes religious
interests, whether under religious discrimination or religious freedom, both as negative
liberties, protecting their holders against interferences, and positive rights of incl usion
into society. As Cohen aptly stated in relation to the US: ‘The religion clauses (…) are not
only about protecting religious conviction, conscience, and conduct from intrusive
government regulation. They also are about the inclusion of equals in the enterprise of
self-government’. The democratic framework carries consequences for the religious
freedom versus religious discrimination debates. It challenges any ossified differences
between the two routes (as they would hinder the process of revision); criticise pre-
liminary filters and abstract thresholds before a claim can be heard (as this would exclude
certain claimants from the outset contrary to the goal of inclusion) and more positively,
push for a contextual proportionality assessment as a converging judicial approach for the
two routes.
This article will be structured as follows. First, it makes a case for a unifying normative
basis for all religious interests grounded in a democratic framework, which emphasises
the dual dimension of religious interests, both as negative rights protecting indi vidual
autonomy against interferences as well as positive rights of participation into society.
358 International Journal of Discrimination and the Law 21(4)
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