In this paper, we argue that, while they are often conflated, the right to freedom of religion and the right against religious discrimination are in fact distinct human rights. We identify two facets of religion: religion as viewed from the committed perspective of the adherent and religious group membership as seen from the non-committal/public point of view. These distinct perspectives help us delineate two distinct interests we have with respect to religion: an interest in religious (non)adherence and an interest in one’s ability to enjoy unsaddled membership of a religious group. We argue that these interests map onto the two human rights relating to religion respectively: the right to freedom of religion and the right against religious discrimination. Finally, we outline some key implications of the distinctions drawn, especially with respect to the scope of the two rights, their application to non-state actors, and the justifiability of their breaches.
The Ultra-orthodox (UO) Jewish community in Israel is a highly religious group that comprises 8% of the population and abides by strict modesty standards that call for the separation between men and women in many settings. In order to facilitate the integration of the community in the public sphere Israeli authorities have in the last 20 years initiated the separation of men and women in various public services such as parts of the public transportation system, some occupational training courses, parts of the Academia, and various other places. While this separation was intended to affect only members of the UO community it has had a significant effect on the public sphere in Israel, leading to the exclusion of women from parts of it. Unpacking the conflict between the UO claim for religious accommodation and women’s right to equality the paper will argue that the UO accommodation claim cannot be justified by principles of either religious freedom, multiculturalism or equality.
This paper considers the possibility of using the prohibition of harassment under European anti-discrimination laws to fight the legality of headscarf bans. In fact, so far Muslim women have been unsuccessful in litigating such bans both before the ECtHR and CJEU. Rather than configuring these cases as violations of religious freedom or direct/indirect discrimination on the grounds of religion, this paper considers whether one could (re)characterize them as sexual, religious and/or racial harassment, which under European anti-discrimination law are deemed to be discrimination, too. The harassment frame has certain advantages: it requires no comparator, justification or balancing with rights of others is less possible and it provides a stronger conceptual link with a violation of dignity.
Religions are a problem for human rights, and human rights are a problem for religions. And both are problems for courts. This paper, based on a recently published book, presents an interpretation of how religion and human rights interrelate in the legal context, and how this relationship might be reconceived to make this relationship somewhat less fraught. It examines how the resurgent role of religion in public life gives rise to tensions with key aspects of human rights, in particular freedom of religion and anti-discrimination law, and how these tensions cannot be considered as simply transitional. The context is the increasingly troubled area of litigation involving religious arguments, concerning religious dress at work, conscientious objections by marriage registrars, admission of children to religious schools, prohibitions on same-sex marriage, and access to abortion. To address these problems requires changes both in human rights theory and in religious understandings.