discrimination in religion essay

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Religion and Discrimination: A Review Essay of Persecution and Toleration: The Long Road to Religious Freedom

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Harvard Human Rights Journal on Indirect Discrimination and Religion

Grounded in an April 2020 symposium hosted by the Human Rights Program at Harvard Law School , the latest issue of the Harvard Human Rights Journal focuses on indirect discrimination on the basis of religion. HHRJ’s Volume 34, Issue 2 (Summer 2021) invited scholars who attended the private workshop to explore the concept in more detail, exploring issues in a comparative and international manner. The April event was hosted by Gerald Neuman , HRP Director and J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School, who also contributed an essay to the journal on the “normative background to prohibitions on indirect discrimination” and “the current state of indirect discrimination law domestically and internationally.”

Other essays in the series explore the nuances between indirect discrimination and reasonable accommodation , the inclusion of religion in public education to promote tolerance , and the difference between the right to freedom of religion and the right against religious discrimination . Expert contributors included Tarun Khaitan , Professor of Public Law and Legal Theory at Wadham College, Oxford University; Rashad Ibadov , Assistant Professor of Law at the School of Public and International Affairs, ADA University, and a former HRP Visiting Fellow; and Sarah Cleveland , Louis Henkin Professor of Human and Constitutional Rights at Columbia Law School; among others.

Two commentaries round out the issue. Victor Madrigal-Borloz, Eleanor Roosevelt Senior Visiting Researcher and Independent Expert on Sexual Orientation and Gender Identity, spoke to how the theory of indirect discrimination might be applied to the lived realities of lesbian, gay, bisexual, trans, and other gender diverse (LGBT) persons ; and Yuval Shany , Hersch Lauterpacht Chair in Public International Law at Hebrew University, wrote about the choices made by national and international human rights bodies in employing guarantees of religious freedom and prohibitions of indirect discrimination as alternative bases of protection .

Read the full issue on the HHRJ website.

For the last two years, HRP has hosted three private workshops focused on indirect discrimination and other factors. Most recently, workshops explored indirect discrimination on the basis of sexual orientation or gender identity (SOGI) and indirect discrimination arising from the pandemic, with a discrete focus on SOGI.

Learn more about the 2020-2021 workshops here.

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Article Contents

1. introduction, 2. two distinct religious interests, from the committed and non-committal perspectives, 3. a conceptual distinction between the two interests, 4. the right to freedom of religion and the right against religious discrimination: functional and normative distinctions, 5. conclusion.

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The right to freedom of religion and the right against religious discrimination: Theoretical distinctions

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Tarunabh Khaitan, Jane Calderwood Norton, The right to freedom of religion and the right against religious discrimination: Theoretical distinctions, International Journal of Constitutional Law , Volume 17, Issue 4, October 2019, Pages 1125–1145, https://doi.org/10.1093/icon/moz087

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This article argues that while they are often conflated, the right to freedom of religion and the right against religious discrimination are in fact distinct human rights. Religious freedom is best understood as protecting our interest in religious adherence (and non-adherence), understood from the committed perspective of the (non)adherent. This internal, committed perspective generates a capacious and realistic conception of religious adherence, which reflects the staggering plurality of forms of religiosity (or lack thereof) as extant in contemporary societies. The right against religious discrimination is best understood as protecting our non-committal interest in the unsaddled membership of our religious group. Thus understood, the two rights have distinct normative rationales. Religious freedom is justified by the need to respect our decisional autonomy in matters of religious adherence. The prohibition on religious discrimination is justified by the need to reduce any significant (political, sociocultural, or material) advantage gaps between different religious groups. These differences reveal a complex map of two overlapping, but conceptually distinct, human rights which are not necessarily breached simultaneously.

We live in a post-secular world where religion has made a surprising comeback, falsifying Weberian predictions of ever-continuing secularization. 1 Almost every large society—some for the first time in recent history—is grappling with religious pluralism. At the same time, however, religious conflicts and religious terrorism occupy newspaper headlines, Islamophobia has become rampant, 2 anti-Semitism has increased, and lower-scale religious hostility is rife. Even majority religions now view themselves as victims of secularization, multiculturalism, and the feminist and gay rights “agendas.” The re-emergence of religion has resulted in at least some of these issues being debated in courts, using the legally prescribed discourse of human rights. Here, we most commonly see this debate take place in terms of the right to religious freedom or the right against religious discrimination.

This article is an intervention in an ongoing debate around the legal protection for religion. Some argue that the prohibition on religious discrimination has become a tool to protect prejudice and intolerance (usually against women, gays, bisexuals, lesbians, and transpersons), and therefore religion should lose its status as a protected characteristic altogether. 3 By contrast, others argue that discrimination law is not taking conscience-based claims of religious adherents seriously enough and, in its zeal to protect gay people from discrimination, is itself discriminating against religious people, alongside violating their religious freedom. 4 Therefore, this argument claims, human rights protection of religion is becoming increasingly toothless. It seems that neither side is happy with how the law deals with religion.

This article approaches the debate around law and religion from a different angle by arguing that, while they are often conflated, the right to freedom of religion and the right against religious discrimination are in fact distinct human rights. As such, they protect distinct human interests and distinct (although often overlapping) aspects of religion. Religious freedom is best understood as protecting our interest in religious (non)adherence. The right against religious discrimination is best understood as protecting our interest in the unsaddled membership of our religious group. 5 One right is interested in protecting certain beliefs and practices, the other in protecting our tribe. The distinction is well-captured in the old joke about a Belfast rabbi being asked if he was “a Protestant Jew or a Catholic Jew.” Or, as Ashis Nandy claimed in the Indian context, “Hindutva will be the end of Hinduism.” 6 In these examples, Protestantism/Catholicism/Hindutva identify sociopolitical group identities, whereas Judaism and Hinduism concern religious adherence. And yet, legal scholarship has paid little attention to this distinction or to its implications, 7 and the courts have moved between the two rights with little explanation. 8 In commenting on controversial issues involving religion, politicians and the media have also perpetuated this lack of clarity. 9 This article attempts to remedy this oversight by setting out the distinction between the two sets of interests and their corresponding rights in conceptually clear terms. A subsequent article will canvass some of the key implications of these theoretical distinctions for legal doctrine and offer a normative restatement of the same.

Section 2 identifies and explains these two distinct religious interests. These interests may be distinguished by adopting different perspectives: religion as viewed from the committed perspective of the (non)adherent on the one hand and, on the other hand, the privileges and disadvantages that accompany the membership of a religious group as assessed from the non-committal (public) point of view. This distinction is important for two reasons. First, unpacking the differing facets of religious interests provides theoretical clarification— what is the law protecting when it protects religion? Second, the distinction has practical implications for how religious interests are protected (to be explored in a companion article). Section 3 identifies a key conceptual distinction between the two religious interests distinguished in the preceding section: religious adherence tracks the freedom to pursue the good, whereas unsaddled membership of a religious group directly tracks the good. Finally, in Section 4, we argue that, functionally, the right to religious freedom is best understood as protecting our interest in religious (non)adherence, whereas the right against religious discrimination is best understood as protecting religious group membership. We further argue—at a normative level—that the value of respecting decisional autonomy in matters of religious adherence underpins religious freedom, whereas the need to reduce the sociocultural and material advantage gaps between different religious groups is the key aim of the right against religious discrimination.

This distinction between religious adherence and religious group membership can help explain why it is not inconsistent for a person to disapprove of a religious group being made a target of prejudice, stereotypes, and social disadvantage, while at the same time rejecting or even condemning, some of the substantive religious beliefs of some such groups. It also explains why an uncommitted/non-adherent person can and should still receive antidiscrimination law’s protection. The conceptual distinction we are proposing may not always be observed in the practice of a given jurisdiction. Lawyers have strategic reasons to throw whatever argument might stick, and conceptual tidiness is often a casualty. It would be naive to expect theory and practice to mirror each other. Nonetheless, the conceptual (and normative) claims in this paper should be a useful guide to understanding the two rights that concern religion.

In this section, we identify two distinct interests we have with respect to religion: an interest in religious (non)adherence and an interest in our ability to enjoy unsaddled membership of a religious group. To explore this distinction further, we distinguish the committed perspective of the religious (non)adherent from the noncommittal (public) identification of the privileges and disadvantages—social, economic, cultural, and political—that accompany the membership of (different) religious groups. The distinction grounds subsequent discussion about the nature of the two human rights concerning religion. While it is possible that some of our arguments could apply to non-religious interests also—such as adherence to a set of non-religious beliefs —this article’s focus is on the legal protection of religion.

A word first about what is meant by religion. Religion is a complex and multifaceted intersubjective phenomenon, in the sense that its existence depends on its shared acceptance in the consciousness of several persons. Not all details of its contents need to be shared, but as a “social form” 10 it cannot exist outside some shared consciousness within a social group. Other similar intersubjective phenomena include marriage (it would be meaningless to “marry” someone in a society where it did not exist as a social form), money (few would trade valuable goods for pieces of paper without an intersubjective acceptance of the value of these pieces of paper), and nations (imagined communities they might be, 11 but a nation cannot be constituted in the imagination of one person—or even ten, for that matter). This intersubjectivity requirement qualifies the committed perspective we are about to explore—it places constraints on what can count as religion, and more importantly what cannot (for example, my personal cult of bunny worship is not likely to satisfy the intersubjectivity requirement). 12 Intersubjectivity, of course, admits to degrees—perhaps the traditional distinction between a religion and a cult ( sans its more recent negative connotations) was based on the notion that cults are putative religions that do not (yet) satisfy the intersubjectivity threshold.

Beyond this, it is “notoriously difficult,” and potentially problematic, to define religion. 13 We will not attempt to do what our betters have been unable to do. Instead, we will satisfy ourselves with identifying the two distinct interests that people have in matters concerning religion: an interest in religious (non)adherence and an interest in the unsaddled membership of a religious group.

2.1. The committed interest in religious (non)adherence

The committed or internal point of view is the point of view of the religious adherent. An adherent strives to believe in (what she thinks are) the tenets of her religion, and tries to practice (what in her view) it demands of her. From the committed perspective, in other words, religious adherence involves a commitment to some combination of a set of beliefs and practices . Our interest here is to describe briefly the phenomenon of religious adherence (and non-adherence) as it actually exists in most democracies. This must be the starting point of any account that seeks to understand the nature of our interest in religious (non)adherence. As such, we deliberately privilege this descriptive account of the committed adherent’s perspective over any official doctrinal perspective of an authoritative religious body. In religions that have authoritative bodies—such as hierarchical churches—the official perspective of these bodies may well be reflected in that of many of its adherents. But adopting the official doctrinal perspective would be contrary to our goal of drawing up a realistic picture of religious (non)adherence that reflects the diversity between, and within, religions. 14

Before we proceed, two points on the prefix “ non” before “ adherents ” may be noted. First, non-adhering belief and practice are important not only to atheists and agnostics but to all religious adherents. This is because adherents of a given religious tradition usually do so exclusively. In other words, their adherence to religion X often entails a rejection of all other religions, including (say) Y. Non-adherence is not restricted to matters of belief. Sometimes it demands performative non-participation in rituals or worship of other religions. Therefore, to take the committed perspective seriously we must recognize that for an adherent of X, it may be important (for her adherence to X) not to believe in, or perform acts that are based on, the tenets of religion Y. For example, it may be important for an atheist or Jewish witness not to swear on the Christian Bible. Even in cases where the demands of another’s religion entail an omission rather than an action—for example, non-Hindus required to refrain from eating beef—an interest in religious non-adherence is engaged if the prohibition on beef-eating was premised on the Hindu injunction to treat the cow as sacred. In other words, all of us have an interest in religious non-adherence, whether we choose to assert it or not. More importantly, perhaps, non-adherence can, and usually does, arise out of religious commitment to the extent that adherence (to religion X) usually entails non-adherence (to religion Y).

The second point regarding non-adherence is that the line between the religious and the atheist is often drawn too sharply. In reality, not only are some religions atheistic (e.g. Jainism) or agnostic (e.g. some versions of Buddhism), others include the acceptance as well as the rejection of the divine within their ambit (e.g. Hinduism). 15 Given the numerous ways in which religiosity manifests itself (consider, for example, those atheists who describe themselves as “spiritual”), sharp divisions between atheism and religiosity may capture the reality for some people but are unlikely to do so for everyone. 16 For these reasons, our interest in religious adherence must be understood to include an interest in non-adherence (jointly referred to as (non)adherence).

We can now turn to the first dimension of religious (non)adherence. The dimension of belief —or as the European Court of Human Rights prefers to call it, the forum internum —entails (not) subscribing to certain fundamental beliefs (usually, but not necessarily) concerning the nature, origin, and character of life, especially focusing on the human condition and usually entailing views about improving it. This can include metaphysical views on life, pre-life, afterlife, and future lives, and the nature and existence of superhuman or non-human beings or powers as well as human ancestors. This is broadly consistent with what the UK Supreme Court referred to as “mankind’s place in the universe and relationship with the infinite . . . [which] may or may not involve belief in a supreme being.” 17 Characterizing this dimension of religion broadly in terms of “belief,” rather than narrowly as “faith,” allows religious traditions that invite belief without demanding faith to be included in the concept. It also encompasses those beliefs concerning god(s) and religion that are indifferent to, or even reject, faith or god (including versions of Buddhism, Jainism, atheism, and agnosticism).

Given this characterization of belief, one objection to our account of the committed perspective on religion might be that it is unrealistic, or, at least, not true for many adherents. The term “belief” can be read to overplay the thoughtfulness, consideration, and intensity that go into religious adherence. Many people simply (and, one may say, unthinkingly) follow the (non)religion of their parents. 18 Many others have a relaxed rather than intense, and flexible rather than dogmatic, approach to religious (non)adherence. Given our commitment to imbuing our conception of religious (non)adherence with the capaciousness that exists in practice, it would be odd if it included only the intense, inflexible, thoughtful, or single-minded (non)adherent. 19 While our characterization of belief may not hold true for everyone, we take the seriousness and thoughtfulness that go into religious belief as a potentiality—realized to different degrees by different (non)adherents.

This potential for seriousness and thoughtfulness exists in those who reject religious adherence as much as in those who accept it. Some Christians rarely think about their Christianity; others arrive at it through deep contemplation, after rejecting the alternatives. Similarly, for some atheists, their atheism is merely a default (absence of) belief. For others, on the other hand, rejection of all (or some) religions is a deeply considered, strongly held, metaphysical and ethical belief fundamental to their individuality—some atheists are quite devout in their unbelief. The point is this: in the dimension of belief, religions make claims which have truth value (i.e. they are the sort of claims that may be true or false, or be true to some extent). This is why adherents are able to accept these claims as true. 20 Accepting or rejecting these claims can both be thoughtful or thoughtless, salient or unimportant, intense or relaxed. With these caveats, we defend this capacious conception of religious belief, which adopts the committed (but not necessarily dogmatic) perspective of the adherent, because it most closely reflects the diversity of religious belief that exists in most contemporary societies.

The second dimension of religion, from the adherent’s viewpoint, is its practical or performative side—its forum externum . This usually entails rules of behavior and performative practices such as worship, prayer, sacrifice, rituals, and meditation. The scope and demandingness of religious practice varies from religion to religion. Some religions also require that at least some of these practices and rituals must be undertaken in community with other adherents. Indeed, some practices and rituals can only take place where there is a religious community. 21 Thus, the committed viewpoint often has a communal dimension. Some practical dimensions of religion follow from beliefs, often called manifestations of beliefs in European law, and provide reasons for action. But not all religious practice and performance can be characterized as manifestations of beliefs. Some religions (like Protestantism) emphasize beliefs, others (such as Buddhism and Orthodox Judaism) focus on practice, most on some combination of the two. 22

We have seen how religious commitment is diverse. When we take the diversity of religious commitment seriously, we notice that most adherents subscribe to a web of multiple, but usually interrelated, beliefs and practices. Viewed from this committed perspective, the level of religious diversity one finds around the world is astonishing. Some religions seek coherence in their package of beliefs and practices. Others, like Hinduism, are happier to embrace mutually contradictory beliefs and practices. Even when not directly contradictory, there is significant interpretative latitude around religious demands on adherents. 23 Even in religions with internal structures that make authoritative rulings on doctrinal disagreements, adherents often pick and choose from the packages on offer—the diversity of beliefs among Catholics on the legitimacy of same-sex marriages and abortion is a case in point. 24 Indeed, a recent sociological study of “Catholics” in the UK shows that “if we measure Catholics by their conformity to some of the key beliefs and behaviors laid down by the Catholic magisterium . . . only 5% of Catholics qualify as ‘faithful’ or orthodox.” 25 Further still, adherents are often capable of giving varying weights and emphases to different religious demands, making the actual practice of religion staggeringly pluralistic. As the history of religious conflicts has shown, these differences could be over relatively small, and—for non-adherents and even some adherents of the same religion—inconsequential matters.

The committed interest in religious (non)adherence is expansive. It presents a picture of religious (non)adherence that is diverse and pluralistic (both within and between religions). This diversity exists in the dimensions of belief and practice. Religious commitment demands adherence as well as non-adherence from us. These expansive takes on our interest in (non)adherence are tempered, however, by the requirement of intersubjectivity. Intersubjectivity filters out highly eccentric and frivolous beliefs or practices. As such, the committed perspective avoids three potential pitfalls when defining the scope of the interest in religious (non)adherence: (i) overinclusion that leads to the protection of just about any ideology, belief, or practice; (ii) underinclusion of dissenting, minority, and heterodox religions; and (iii) exclusion of atheism and agnosticism. 26 These findings are central to how we understand the right to freedom of religion, and the values that underpin it.

2.2. The non-committal interest in unsaddled membership of a religious group

Having considered religion from the committed perspective of the adherent, we now consider the phenomenon from a different angle by adopting an external or public perspective. This can be termed the non-committal perspective. From the non-committal, or public, perspective, we focus not on adherents of certain religions but on members of certain religious groups .

Group membership can affect how power and advantage are distributed in society. In most human societies, power and advantage—material, sociocultural, political—are distributed in ways that are sensitive to certain personal characteristics (such as race, educational attainment, or gender) but insensitive to other personal characteristics (such as zodiac signs, the number of letters in one’s name, or one’s favorite color). 27 Individual exceptions no doubt abound, but on a macro level, these claims are generally accepted as true of many contemporary societies. Religious group membership, in most societies, tends to fall in the former category, inasmuch as it tends to affect the success of our lives (at least in the secular sense). Here, it does not matter whether a person actually adheres to the beliefs or practices of any particular religion. She is more likely than not to have powers and advantages (or lack thereof) in keeping with others who are, or are perceived to be, the members of the same religious group. She may belong to (or be perceived to belong to) a religious group, even without being an adherent. This (assumption of) membership may be because of the religious group membership of her parents, or because religious practice has become a familiar part of her cultural habits, or because she carries proxy characteristics (such as belonging to certain racial or ethnic groups) that signify (to others) adherence to a particular religion. She may even take pride in her membership of her religious group and find community and solace in fellow members despite not being an adherent, or she may dislike it, or be indifferent to it. Just like her membership of her caste or racial group, how she feels about it makes little difference to her actual or perceived religious group membership, just as her adherence or lack thereof makes no difference either. Like it or not, she is likely to be saddled with (or enjoy the privileges of) the (dis)advantages that accompany her membership of her religious group.

In most cases adherents are likely to be members of a religious group. However, the two categories do not entirely map onto each other. For example, recent converts may have cultural and ethnic traits that differ from most adherents. There are people who identify as “cultural Christians” or “atheistic Jews” having given up on adherence but not on the associated cultural traits. Heterodox and dissenting interpreters of a tradition—such as Reform Jews and Ahmadis—may be saddled with the cultural identification of majority adherents by the outside world but seen as non-members, or even heretics, by their “co-religionists.” It is not uncommon for Sikhs in North America and elsewhere to be taken to be Muslims because of racial and cultural similarities. These examples illustrate that (non)membership of a religious group is not always within the control of the individual.

The non-committal perspective takes seriously the fact that religious group membership often gets mixed up with culture, ethnicity, race, language, and nationality. Not only is the (non)membership of her religious group not fully within the control of the individual adherent, she usually has even less control over the sociopolitical and material disabilities (or privileges) that accompany such membership. What is more, even for a typical religious adherent who fully embraces her actual and perceived religious group membership, her interest in being able to adhere truly to her religion is related to, but surely distinct from, her interest in her religious group not being subject to social, cultural, material, or political disabilities.

Implicit in the preceding paragraphs is a very specific conception of a “group.” The term is not necessarily used to refer to a cohesive collectivity with a shared culture/language/history/religion/identity, and so on. 28 We have used the term “group” more loosely. It includes people who perceive themselves to be members of the group even when the group does not and those who are taken to be the members of the group when they do not see themselves as such. There need not be any cohesiveness to this group. On our understanding, “people with disabilities,” heterosexuals, and yes, even atheists, qualify as a group. Having said that, given the non-committal perspective we have assumed, there needs to be some external, sociological reality to the group, outside the internal point of view of its members. 29

We have identified two interests pertaining to religion: the committed interest in religious (non)adherence and the non-committal interest in unsaddled membership of a religious group. These interests, we argue, are distinct. By way of illustration, a “Muslim” woman, living in a deprived, predominantly Muslim, neighborhood in Birmingham (or Delhi, for that matter) suffers because of such deprivation, whether or not she in fact adheres to any version of Islam. On the other hand, being forbidden from wearing a crucifix at work might engage a devout Christian’s interest in religious adherence, but does not—in itself—affect her membership in her religious group (understood in the loose sense as explained above). We now turn to a key conceptual difference between these two interests.

We have identified two distinct interests a person might have with respect to religion: (i) an interest in her ability to (intersubjectively) determine and to pursue her religious commitments as a (non)adherent, and (ii) an interest in being unsaddled by the disabilities that accompany her religious group membership. Religion is not unique in possessing these two dimensions. Pregnancy, for example, has an internal dimension concerning a person’s decision (as well as her ability to decide whether) to become (or not become) pregnant. From the non-committal perspective, on the other hand, pregnancy (and the ability or potential to become pregnant) brings with it certain social and economic costs, such as reduced attractiveness in the employment market, the stigma attached to pregnancy outside marriage, the medical and care costs associated with pregnancy, and so on. Sexual orientation has a similar quality. From the internal point of view, what matters is a person’s orientation with respect to the sex and gender of the person they are sexually or romantically attracted to, and their decision (as well as their ability to decide whether) to associate sexually and/or romantically with a person of the same sex as their own. Societally, this could have been completely irrelevant to the distribution of social, cultural, political, and material power between gay people and heterosexuals; unfortunately, as we know, this is not the case.

Defenders of pregnancy and sexual orientation rights have debated whether privacy or antidiscrimination is a better approach to defend these rights. 30 These debates have taken place precisely because both approaches have something to offer to the protection of the interests involved. In this section, we draw upon these continuities to clarify a key conceptual distinction between the two categories of religious interests identified in the previous section. Unlike the debates that have taken place in the context of pregnancy and sexual orientation, however, we will show that these are not alternative ways of framing the same human interest; rather that they are two distinct interests that we ought to treat separately.

We draw a conceptual distinction between two sets of human interests: our interests in the good, and our interests in our freedom to pursue the good. In the first set, we have interests whose satisfaction is, at least prima facie, necessarily a good thing (from a public, objective perspective). It may not be possible to always protect such interests all things considered, and some such compromises may be entirely legitimate. But on their own, the satisfaction of these interests is always a good thing. Such interests include our interest in adequate nutrition, good education, fair trial, protective shelter, and so on. In all these cases, the good is tracked directly by the satisfaction of the interest concerned.

On the other hand, we have interests not only in realizing the good but also (or, even especially) in pursuing the good on our own. In these cases, it is in our interest to freely define the good and to pursue it, even when we might sometimes make mistakes. 31 Examples include our interest in freely choosing who to become friends with, whether and who to marry, what and how to say something, what career to pursue, whether and what films to watch or books to read, and so on. While, generally speaking, being free to pursue the good in such cases is a good thing, there is the possibility of making mistakes. Making friends with bullies, saying hurtful things simply to hurt others, or joining a racist organization do not become good simply because these acts were freely done. For this reason, the distinction between interests that directly track the good and those that track my interest in the freedom to define and to pursue the good makes sense. 32 We do not, lest we are misunderstood, wish to suggest that our interests in the good are necessarily superior to our interests in our freedom to pursue the good. They are, nonetheless, conceptually different, and this difference could be normatively salient.

Now we can map this distinction onto the two interests we have identified. It is always a good thing that one’s religious group is not saddled with relative social, political, and material disabilities. This is just a roundabout way of saying that social disabilities should not, in an ideal world, accompany religious group membership. On the other hand, our interest in religious adherence tracks our freedom to pursue the good in matters religious. The intersubjectively determined committed viewpoint is not, after all, subject to any public standard of reasonableness or morality, and may therefore make demands that are unreasonable or immoral. This key conceptual distinction underpins some of the normative judgments that need to be made in relation to the protection of these interests, especially in relation to their operation in horizontal relations between non-state actors.

Our starting point is that if most human rights documents recognize two distinct human rights pertaining to religion—the right to freedom of religion and the right against religious non-discrimination—they are best understood as protecting distinct religious interests. The claim is conceptual and normative, rather than historical. Even if their distinct articulation is a historical accident, or even technical oversight on the part of the drafters, the conceptual claim would still be plausible in light of the distinctiveness of the two religious interests we identified in Section 2. Having identified these distinct interests, we will now argue that our interest in religious (non)adherence is best protected under the right to freedom of religion, and we are most likely to enjoy unsaddled religious group membership under a robust right against religious discrimination.

The main reason for this claim is that there are structural similarities between the interests identified in Section 2 and the jurisprudence concerning the two rights (at least in Europe). While there are other ways of reading legal doctrine concerning these rights, we select those strands in the jurisprudence that do the best job of protecting the two religious interests at stake. Thus, the interest and the right mutually define each other. We will argue that freedom of religion is valuable because it protects our decisional autonomy in matters of religious adherence. Freedom from discrimination based on certain protected characteristics matters morally because the possession of these characteristics tends to affect our access to those basic goods necessary for living a good life.

4.1. The right to freedom of religion

Freedom of religion is valuable because it protects our decisional autonomy in matters of religious adherence. Many other foundational values are also plausible, including the value of social goods such as religious tolerance, religious pluralism, and social harmony, and the value in respecting an individual’s conscience or integrity. We do not deny that these values may also be good reasons to support some version of religious freedom. However, the only value that can fully support the capacious and realistic version of our interest in religious (non)adherence (as understood in Section 2) is the need to respect our decisional autonomy in matters pertaining to religious adherence.

Religious pluralism, harmony, and tolerance are no doubt valuable social goods, but they fail to directly underpin an individual’s interest in religious (non)adherence (even though they may indirectly facilitate its protection in most circumstances). The historical origins of the protection of religious freedom may well lie in these social goods. 33 Since its transformation into a contemporary human right, however, its underlying rationale must, at least primarily, be found in a fundamental human interest rather than in the common good. 34

The need to respect an individual’s conscience is a more promising candidate. In fact, some scholars believe that religion is merely a placeholder for the protection of “conscience” in human rights law. 35 While there might be very good reasons to protect conscience for its own sake, our account of religious adherence from the committed viewpoint shows that religion is both broader and narrower than conscience. Not all religious beliefs implicate one’s conscience, which is typically other-regarding rather than self-regarding. For example, most people would accept that the religious obligations of Muslims to pray five times a day or make a pilgrimage are not matters of conscience. A belief that does not engage one’s conscience may nonetheless be fundamentally important to the believer because it is demanded by his or her religion. On the other hand, not all conscientious beliefs are “religious.” While many systemic and comprehensive world views, such as pacifism and environmentalism, could be sufficiently religion-like for certain purposes (and should perhaps be treated as such by human rights law), one’s conscience can also make stand-alone demands against military service or eating animal products that do not flow from an existing commitment to any broader world view or involve intersubjectivity. For these reasons, the value of respecting an individual’s conscience cannot ground the right to religious freedom.

Personal integrity is also insufficient to ground the right to religious freedom. This value takes an individual’s relationship to herself seriously, and facilitates a harmonious and complete conception of one’s self. It is related to conscience, but can encompass not only ethical but also performative and ritualistic (e.g. prayer and pilgrimage) dimensions of religious adherence. Like conscience, its scope is broader than religious adherence. However, over-inclusion is less of a problem as long as we can carve out a clear subset of the value that concerns religion. We reject integrity as the foundational value of religious freedom not because it is overinclusive, but because it is also underinclusive —it does not include our capacious conception of a person’s possible interests in religious adherence. Integrity tends to overvalue adherence that is intense, thought-through, and deeply held, and may fail to adequately protect religiosity that is relaxed, flexible, or habitual. Like conscience, it also has the tendency to cast religion in a particularly Protestant image (“Here I stand, I can do no other”), and may underserve other strands of religious (non)adherence. 36

The value of respecting every person’s decisional autonomy in matters of religious adherence is the most viable norm to underpin religious freedom. An autonomy-based rationale demands respect for a committed point of view in a way that other rationales may not. For example, a social harmony-based protection for religious freedom might be content to protect only the essential practices of major religions, interference in which might cause conflict. 37 The autonomy rationale, on the other hand, is acutely sensitive to the religious pluralism and diversity we see in religious practice, including sensitivity to internal diversity within religions. It extends its protection to heterodox and dissenting views and to non-religious persons. One of us has argued elsewhere in some detail why the value of preserving our decisional autonomy in matters of religious adherence is also normatively attractive for other reasons. 38 The underlying premises are that personal autonomy is of immense value to individuals, that in order to be autonomous individuals must have access to a range of valuable opportunities, and that the freedom to make decisions in relation to (non)adherence to religions is one such valuable opportunity. 39

An autonomy-based rationale has the additional advantage of protecting our capacious interest in religious adherence: it is not underinclusive or unfair to non-believers. It also has significant support in case law 40 and academic literature. 41 It is, of course, overinclusive, inasmuch as decisional autonomy in matters of religious adherence is a subset of our decisional autonomy generally. Even so, decisional autonomy in matters pertaining to religious (non)adherence is a clearly identifiable subset that protects a fundamental and valuable interest.

We do not claim that religion is the only, or the most valuable, subset of decisional autonomy. Other facets of decisional autonomy (e.g. in matters of sexual relationships) also need robust protection—as such, we sidestep the debate over whether religion is special except to express skepticism about the possibility. 42 Our skepticism is conceptual—attempts to define religion generally have failed because it is hard (if not impossible) to pin down a set of characteristics that pertain to all phenomena we agree to characterize as religions. Any effort to suggest that religion is special will necessarily need to highlight some common feature in all religions that makes religion special. The best that can be done is to imagine religion in a particular image—privileging a certain religious tradition and identifying its core features to claim special status. But that would be an argument for why Catholicism or Buddhism is special, not why religion is special. 43

Two common criticisms of the decisional autonomy rationale must be responded to. The first is that religion is often not a matter of choice for its adherents. The second it that the rationale is too individualistic. With regard to the first criticism, autonomy is too easily confused with a simplistic understanding of “choice.” 44 When we speak of “decisional autonomy” we do not intend to suggest that everyone necessarily has a free choice in matters of religious adherence. In fact, many adherents may not feel that they have (or, indeed, that they should have) any choice in subscribing to (what they view as) the truth. 45 This truth may make many imperative demands on them that leave little room for choice. 46 Others may have followed the religion of their parents with little thought and without ever consciously exercising any choice. Later in life, it may be psychologically very difficult for them to choose not to follow that religion. 47

While we accept that an adherent may not feel she has a choice in religious matters, we are employing a capacious conception of autonomy. This conception seeks to protect the agent’s moral capacity to make her own decisions on matters concerning religious (non)adherence, whether or not she feels she has (or in fact has) any “choice” in the matter and whether or not this moral capacity is ever acted upon. It protects the religious freedom of converts who actively change their religious status, of those who zealously reaffirm it, as well as those who never care to think much about it. This broad notion of decisional autonomy does not seek to relegate religious adherence to the private sphere either—it accepts that religious performance can and does have a public dimension. Nor does it reject communal dimensions of religious adherence—if communal performance matters to the adherent, it forms part of her decisional autonomy in religious matters.

Furthermore, the term “autonomy” is used here to mean an aspirational value that ought to be sought and realized, rather than entailing any descriptive claim about people actually possessing sufficient autonomy. 48 Of course some of us, in the descriptive sense, have more autonomy than others, and many don’t have adequate autonomy. In the case of religion, it is no coincidence that most people adhere to the religion of their parents. Even so, there are good reasons for the state to take an adherent’s self-proclaimed religious affiliation at face value in the absence of any proof of direct coercion, even if such adherence is deluded, irrational, unfairly influenced, and so on. 49 The autonomy loss resulting from the non-recognition or mis-recognition of one’s self-proclaimed religion is unlikely to be offset by any autonomy gains accruing from efforts by the state to help them “see light.” The state telling me my religion might have got it wrong is usually better than it telling me I have got my religion wrong. An autonomy-based rationale dictates that we take the committed point of view of the adherent seriously. Individual decisional autonomy in religious matters would be left with little content if any external body or person could determine whether an individual has freely chosen to adhere to a religion, what that religion is, what adherence to that religion entails, or who (if anyone) is an authority on what an adherence to that religion requires.

While the autonomy rationale takes the committed perspective of the adherent seriously, the rationale itself need not be endorsed as adequate justification for religious freedom from the committed point of view. It is not even clear, from the internal point of view of every religion, that the protection of (everyone’s) religious freedom is valuable. It is only the content of the claim that the adherent seeks protection for that is discerned from the committed point of view; the reasons for protecting such claims (whether autonomy, toleration, or something else) need not be endorsed by the adherent’s committed viewpoint. Nor is our argument that the law itself should adopt a committed viewpoint in matters of religion. It is usually a good thing when the state’s reasons for acting in a particular way track public reasons, 50 even as public reasons sometimes require the state to tolerate, respect, or protect actions grounded in sectarian reasons. Our argument here is simply that there may be good (public) reasons for the state to protect an adherent’s committed internal perspective in matters of religion.

The second objection to the decisional autonomy rationale might be that it is too individualistic. We acknowledged, however, the importance of communal dimensions of religious practice in certain religions in the preceding section. While the rationale values the autonomy of individuals, it is compatible with—and even requires—the protection of any communal dimension of religious adherence. 51 This will be the case as long as the collective or communal dimension is (intersubjectively as well as from the committed individual’s perspective) part of the religion. In other words, if communal worship is important to the individual’s adherence to her religion, an autonomy-based rationale will protect it. Participation in the life of a religious community, or the acceptance of the religious authority of one’s church, can therefore be aspects of religious adherence. 52 Furthermore, the essence of religious practice itself often depends on social forms—i.e. forms of behavior which are widely practiced within that group. 53 While it is individual believers who constitute a religious community, the group itself may have “a strong role to play in constructing individual religious affiliation.” 54 None of this needs to be denied by anyone who subscribes to the autonomy rationale for religious freedom. Any adherent who disagrees with such collectivity requirements is simply a dissenter within that group (whose right to dissent is equally protected). 55 In other words, there surely are collective dimensions to freedom of religion, but these are derivative of the individual’s right to that freedom. 56

4.2. The right against religious discrimination

Unlike the right to freedom of religion, the right against religious discrimination is not a stand-alone guarantee. It is a species of the more general freedom from discrimination based on certain protected characteristics which, apart from religion, tend to be race, gender, disability, sexual orientation, language, ethnicity, and so on. As such, unless we have very good reasons to think otherwise, the rationale for prohibiting religious discrimination must be found in the rationale for prohibiting discrimination more generally. 57

The main function of the prohibition of discrimination, as one of us has argued before, is to prevent, reduce, or eliminate any substantial, abiding, and pervasive advantage gaps between certain cognate groups (i.e. groups defined by the same personal characteristic, such as men and women, or Christians and Sikhs). 58 These advantage gaps could be political, material, or sociocultural, but they usually tend to manifest in all these dimensions simultaneously and reinforce each other. The underpinning normative argument is that we should care about such advantage gaps between groups because they reduce the ability of members of the (relatively) disadvantaged groups to access certain basic goods—negative freedom, an adequate range of valuable opportunities, and self-respect—whose secure enjoyment is essential to our ability to live a free and flourishing life. 59 Thus, even though the object of discrimination law’s immediate attention is groups, in keeping with the contemporary human rights tradition, the ultimate commitment is to the freedom and well-being of (all) individuals. 60

One need not accept the details of this rationale for discrimination law. But almost all credible accounts of this area of law—at least accounts that take the Anglo-American law concerning the regulation of discrimination seriously—accept that the current or historical disadvantage faced by social groups lies at the heart of discrimination law. This is true of egalitarian accounts, 61 freedom-based accounts, 62 as well as expressive accounts 63 that seek to explain discrimination law. Given this consensus—at least at a broad level—it would be very surprising if the main purpose of the law regulating religious discrimination was to protect individual religious (non)adherence (rather than to secure an unsaddled membership of one’s religious group). This theoretical consensus over the group focus in discrimination law may seem surprising to some practitioners, especially if they notice that typically, the claimants in discrimination law are individuals, and that the protection is offered symmetrically to both the advantaged and the disadvantaged groups. To answer this objection, we need to distinguish this systemic-functional claim about the overall purpose of discrimination law from specific design issues. Drawing upon Rawls and Hart, one of us has argued elsewhere that full transparency between the functional goal of discrimination law and the design of particular rules that regulate discrimination may actually be counterproductive. 64 To put the point differently, the goal of reducing relative group disadvantage may be ill-served if courts start asking in each case what outcome will best reduce such disadvantage. Additional considerations of fairness, pragmatism, clarity, certainty, and a normative commitment to liberalism also inform the design of antidiscrimination rules. Considerations such as these, for example, dictate that (in general) discrimination law should protect not only the relatively disadvantaged group but also its cognate advantaged groups. 65

On the reading we have outlined, non-committal religious group membership , rather than committed religious adherence, lies at the heart of discrimination law. 66 Because religion is one of the characteristics that creates substantial, abiding, and pervasive advantage gaps between cognate groups, it is a protected characteristic in discrimination law, alongside race, sex, sexual orientation, disability, pregnancy, ethnicity, and other such characteristics. It follows that the big-picture concern of discrimination law is to prevent or mitigate a caste-like organization of society on religious lines where certain religious groups end up with a lower class status. Burdening adherence to a particular religion may well increase the (political, material, social) advantage gap between religious groups, but there are other ways this can happen too. It may be, for example, that most members of a minority religion are poor, or that they are recent immigrants, or that they are subject to widespread hostility and ostracism by the majority religious group because of their racial difference, and therefore suffer relative group disadvantage. Discrimination law is indifferent to the cause of such disadvantage. Rather, it is the fact or likelihood of relative group disadvantage that this area of law seeks to counter.

As we move from the systemic concern that discrimination law has with group disadvantage to specific design issues, we notice—at least outside the context of religious discrimination—a rather tightly regulated scope of what counts as discrimination. In the limited contexts that discrimination law regulates, a claimant must establish a prima facie case of direct or indirect discrimination against her. The determination is objective, and requires the claimant to show either that she suffered some non-remote adverse effect:

(a) because of the defendant’s intentional reliance on a protected characteristic, 67 or

either exclusively on members of her group, 68 or

on those who disproportionately belong to her group. 69

British law treats (a) and (b)(i) as instances of direct discrimination, and (b)(ii) as a case of indirect discrimination. Cases in (a) that involve the intentional targeting of a religious group, or even the intentional use of religion in a decision, tend to be rare and, when they come up, tend to be easier to decide. It is the set of cases in (b) that are the most controversial and shall be our focus in the discussion that follows. These cases involve the impact of a facially neutral policy on the claimant’s group. In such group impact cases, discrimination must be established by showing comparative adverse effect on the claimant’s group, in relation to a cognate group. So, in the case of religion, a claimant must show that the policy in question not only affected her but also that it (exclusively or disproportionately) affected other members of her religious group when compared with some other cognate group. For example, a Muslim claimant will need to show that an employer who requires a university degree for a manual job in an area where Muslims are disproportionately less likely to have university degrees affected not just her (as a potential applicant who did not meet the criterion) but also disproportionately affected (or would disproportionately affect) Muslims (in that area) generally.

Whether a protected group suffered adverse impact is determined objectively, rather than subjectively. This objective standard sets a relatively high bar for making a prima facie case of discrimination. This high bar is unavoidable, to some extent, given that discrimination law’s primary concern is with group disadvantage. While the entry threshold is relatively high, however, the possibility of justifying a successful prima facie case is relatively slim. Direct discrimination admits to very few and very high-threshold exceptions. Moreover, even though indirect discrimination can be justified, certain types of justifications—such as the business profitability, consumer preference, or competitive disadvantage—are typically barred. Although the claimant has a demanding threshold to cross in order to make a prima facie case of discrimination, once she has met this threshold the possibility that the discrimination she faces might be justified is slim and usually assessed strictly by courts.

Religious group membership (chosen or otherwise) saddles us with privileges and disabilities. Given this, something would be lost (and very little gained) if the right against religious discrimination was reduced to just another means of protecting our interest in religious adherence. While there may be good strategic reasons for practicing lawyers to try to achieve these outcomes, the erasure of the distinction we are hoping to highlight will not only create conceptual confusion but will ultimately be a bad thing for the protection of our religious interests.

We should emphasize that the sharp distinction we are drawing between the two rationales for human rights protection of religious interests—religion as adherence and religion as group membership—is a conceptual one. The two religious interests can, after all, overlap. It is evidently true that often protection of religious freedom is likely to reduce not just the religious but also social, material, and political disadvantages faced by its adherents. And sometimes discrimination against members of a group will also impinge upon religious adherence. In fact, if we map all cases of breaches of the right to religious freedom and all cases of breaches of the right against religious discrimination, the overlap might indeed be significant. This does nothing, however, to minimize the existence or significance of the conceptual and normative distinctions we are trying to draw out. Our argument is that it is not the purpose of discrimination law to secure religious freedom, nor is it the purpose of the right to religious freedom to reduce religious group disadvantage.

This article makes a contribution to ongoing theoretical debates around the legal protection of religion. In these debates, the right to freedom of religion and the right against religious discrimination are often conflated and little attention has been paid to their conceptual and normative differences. We have argued that they are in fact distinct human rights. As such, they protect distinct human interests and distinct aspects of religion. Religious freedom is concerned with protecting an interest in our ability to (not) adhere to our religious commitments. The right against religious discrimination is concerned with a separate interest in ensuring that our religious group does not suffer relative sociocultural, political, or material disabilities in comparison with other religious groups. This article brings conceptual clarity to this area and helps explain what the law is protecting when it protects religion. Key doctrinal implications follow for the respective scope of the two rights, whether they may be claimed against non-state actors, and their divergent assessment of religious establishment. In a follow-up article to be published in the next issue of this journal, we will offer a normative restatement of the legal doctrine relating to these rights. In particular, we will map these implications in relation to their scope, horizontal application, and religious establishment, and also outline the resulting areas of overlap and differences between the two legal rights.

For helpful comments, we thank several colleagues who, on editorial instructions, are too numerous to be named here. Special thanks to Sati Nagra for research support. Tarun Khaitan is grateful to New York University Law School, where he had the opportunity to work on the article as a Global Visiting Fellow. Usual disclaimers apply.

Peter Berger, The Many Altars of Modernity: Towards a Paradigm for Religion in a Pluralist Age (2014); Susanna Mancini & Michel Rosenfeld , Constitutional Secularism in an Age of Religious Revival xv–xvi (Mancini & Rosenfeld eds., 2014) (referring to the “repoliticization of religion”). For an analysis as to the different strands of secularism, see Cécile Laborde, Liberalism’s Religion (2017).

We find “Islamophobia” an inadequate term for capturing prejudice against Muslims, but we are sticking to it because it has acquired a certain currency.

Aileen McColgan, Class Wars? Religion and (In)equality in the Workplace , 38 Indus. L.J. 1 (2009).

Christopher McCrudden, Marriage Registrars, Same-Sex Relationships, and Religious Discrimination in the European Court of Human Rights in The Conscience Wars: Rethinking the Balance Between Religion, Identity, and Equality (Suzanne Mancini & Michel Rosenfeld eds., 2018).

By “unsaddled” membership we mean membership that does not incur external social, economic, cultural, or political costs. Religious adherence often demands compliance with the internal rules of the religion. That group members who are also adherents of that religion will be “saddled” with these internal rules is not of concern here.

Ashis Nandy, The Twilight of Certitudes: Secularism, Hindu Nationalism and Other Masks of Deculturation , 1 Postcolonial Stud . 283, 294 (1998).

Honorable exceptions include Ronan McRea, Squaring the Circle: Can an Egalitarian and Individualistic Conception of Freedom of Religion or Belief Co-Exist with the Notion of Indirect Discrimination? , in Foundations of Indirect Discrimination Law (Hugh Collins & Tarunabh Khaitan eds., 2018); McCrudden, supra note 4. Also see the following article, which was published after this article had been finalised, and therefore our arguments could not benefit from its insights: Ilias Trispiotis, Religious Freedom and Religious Antidiscrimination , 82 Mod. L. Rev. 864 (2019).

In the Eweida litigation (wearing of cross in private workplace), for example, the claim was brought as a religious discrimination case domestically (Eweida v. British Airways [2010] E.W.C.A. 80) and as a religious freedom case at the European Court of Human Rights (ECtHR) level (Eweida v. United Kingdom [2013] E.C.H.R. 37). Despite this change, there was no acknowledgement, let alone explanation, of the distinction by the ECtHR. Moreover, the ECtHR applied religious freedom horizontally to the private employer (British Airways), in a similar manner to how religious discrimination law operates horizontally, with no discussion as to how this new development could be justified.

For example, despite Eweida’s claim in the ECtHR being grounded in religious freedom, David Cameron tweeted shortly after the decision that he was “[d]elighted that principle of wearing religious symbols at work has been upheld—people shouldn’t suffer discrimination due to religious beliefs.” See the reporting in “British woman wins discrimination case,”’ Reuters, Jan. 14, 2013, available at https://www.reuters.com/article/britain-religion-court/british-woman-wins-religious-discrimination-case-idUSL6N0AJF9H20130115 .

Joseph Raz , The Morality of Freedom 308–310 (1986). Raz understands social forms to be “forms of behaviour which are . . . widely practised in society” or “common social forms of action.” Social forms have “internal richness and complexity” and the degree to which a practice has to be shared, and by whom, are open questions. Raz is clear, however, that comprehensive personal goals—such as, on our argument, religious (non)adherence—can only be founded in social forms. We assume, without argument, that atheism is a social form in most contemporary societies, although this is likely to be the case for many societies in the past too.

Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (1983).

Maclure and Taylor, among others, also distinguish between “religious beliefs” and “expensive tastes,” but on criteria other than intersubjectivity; see Jocelyn Maclure & Charles Taylor , Secularism and Freedom of Conscience 76 (2011).

Rex Adhar and Ian Leigh, Religious Freedom in the Liberal State 139 (2015). See also George C. Freeman, III, The Misguided Search for the Constitutional Definition of “Religion,” 71 Geo. L.J. 1519 (1983). See also Carolyn Evans , Freedom of Religion under the European Convention on Human Rights 51 (2001); Kent Greenawalt, Religion as a Concept in Constitutional Law , 72 Calif. L. Rev . 753 (1984); R (Williamson) v. Secretary of State for Education and Employment [2005] 2 A.C. 246 (HL) ¶¶ 57–58.

See Volkhard Krech et al., Religious Diversity and Religious Vitality: New Measuring Strategies and Empirical Evidence , 9 Interdisc. J. Res. on Religion 2 (2013); Lars Ahlin et al., Religious Diversity and Pluralism: Empirical Data and Theoretical Reflections from the Danish Pluralism Project , 27 J. Contemp. Religion 403 (2012); Detlef Pollack, Religious Pluralism: Undermining or Reinforcing Religiosity? , 53 Soc’y 131 (2016).

See generally Linda Woodhead, Intensified Religious Pluralism and De-differentiation: The British Example , 53 Soc’y 41 (2016). See also Amartya Sen, The Argumentative Indian: Writings on Indian History, Culture and Identity 46 (2006) (Sen’s recollection of a conversation with his grandfather, who identified the former’s atheism as falling in the “Lokayata part of the Hindu spectrum”).

See Ronald Dworkin, Religion without God (2013).

R (Hodkin) v. Registrar General of Births, Deaths and Marriages [2013] U.K.S.C. 77 ¶ 57, [2014] A.C. 610 ¶ 57.

See Farrah Ahmed, The Autonomy Rationale for Religious Freedom , 80 Mod. L. Rev. 238 (2017).

On a sociological index used to measure intensity of religiosity in persons, see Stefan Huber & Odilo Huber, The Centrality of Religiosity Scale, 3 Religions 710 (2012).

See Paul Horwitz, The Agnostic Age: Law, Religion, and the Constitution 153–154 (2011).

See Farrah Ahmed & Jane Calderwood Norton, Religious Tribunals, Religious Freedom, and Concern for Vulnerable Women, 24 Child & Fam. L. Q. 363, 377–378 (2012).

It is for this reason that we use the capacious term “adherent” rather than the narrower term “believer” to describe a person committed to a religion.

This is why talk of Catholicism s , Islam s, and Judaism s makes sense: Peter W. Edge, Determining Religion in English Courts , 1 Oxford J. L. & Religion 402, 402, 406 (2012); Farrah Ahmed , Religious Freedom Under the Personal Law System 19–21 (2016).

Ayelet Shachar discusses this selectivity—or “forum shopping”—between state and religious institutions in the context of family law disputes: see Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights 122–126 (2001). John Bowen observed similar selectivity in relation to shari’a law in England: John Bowden, Private Arrangements “Recognizing Sharia” in England , Boston Rev. (Mar./Apr. 2009), www.http://bostonreview.net/BR34.2/bowen.php .

Woodhead, supra note 15, at 42.

Andrew Koppelman, How Could Religious Liberty Be a Human Right? 16(3) Int’l J. Const. L. 985 (2018).

See Tarunabh Khaitan, A Theory of Discrimination Law , ch. 2–3 (2015).

On this type of religious “group,” see Renate Ysseldyk et al., Religiosity as Identity: Toward an Understanding of Religion from a Social Identity Perspective , 14 Personality & Soc. Psychol. Rev. 60, 60–71 (2010).

See also infra Section 4.1. (discussion toward the end of the section).

See Yoshino-Gerken debate: Heather Gerken, Larry and Lawrence, 42 Tulsa L. Rev. 843 (2008); Kenji Yoshino, Tribe , 42 Tulsa L. Rev 961 (2008). See also David Richards, Liberal Democracy and the Problems of Patriarchy , 46 Israel L. Rev. 169 (2013).

Analogous to these interests are the rights that include the “right to do wrong”: see Jeremy Waldron, A Right to Do Wrong , 92 Ethics 21 (1981).

Posner draws a similar distinction between intermediate/instrumental goods on the one hand and final/ultimate goods on the other: see Richard Posner, The Right to Privacy , 12 Ga. L. Rev. 393, 394 (1977).

See Douglas Laycock, Religious Liberty as Liberty, 7 J. Contemp. Legal Issues 313, 317 (1996).

R (Williamson) v. Secretary of State for Education and Employment [2005] 2 A.C. 246 (HL) ¶ 22 (freedom of religion protects the subjective belief of an individual).

Michael Sandel, Religious Liberty—Freedom of Conscience or Freedom of Choice? , 3 Utah L. Rev. 597 (1989).

This is not to suggest that there may not be some relationship between personal integrity and decisional autonomy more broadly; for example, it has been argued that autonomy may reflect or promote a person’s integrity: e.g. Ronald Dworkin, Life’s dominion 224 (1993); Ronald Dworkin, Autonomy and the Demented Self , 64 Milbank Q. 1, 4–16. (1986).

The Indian Supreme Court tends to adopt this position.

Jane Calderwood Norton, Freedom of religious organizations (2016).

On personal autonomy generally, see Raz, supra note 10.

E.g. Jehovah’s Witnesses of Moscow v. Russia, 53 Eur. H.R. Rep. 4 ¶¶ 134–135 (2011); Eweida v. British Airways Plc. [2010] E.W.C.A. Civ. 80 ¶ 40; R (Begum) v. Governors of Denbigh High School [2006] U.K.H.L. 15, [2007] 1 A.C. 100 ¶ 93; R (Williamson) v. Secretary of State for Education and Employment [2003] Q.B. 1300 (CA) (2003); Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 (Can.). For US examples, see Laurence Tribe, American Constitutional Law 1284–1300 (2000); Kent Greenawalt, Religion and The Constitution, Volume I: Free Exercise and Fairness 3–4 (2006). For a full account see Ahmed, supra note 18.

E.g., Evans, supra note 13; Greenawalt , supra note 40, at 3–4. Sandel also accepts that an autonomy-based conception of religious freedom is the predominant contemporary liberal understanding of religious freedom: Sandel, supra note 35, at 611 (1989). See also Ahmed, supra note 18, at 239.

We take this debate to be concerned with whether religious interests are special—and weightier—than non-religious ones.

See generally , Koppelman, supra note 26; Andrew Koppelman, Is It Fair to Give Religion Special Treatment? , U. Ill. L. Rev. 571 (2006); Christopher Eisgruber & Lawrence Sager, Does It Matter What Religion Is? , 84 Notre Dame L. Rev . 807 (2009); Micah Schwartzman, What if Religion Is Not Special? , 79 U. Chi. L. Rev. 1351 (2012); Brian Leiter, Why Tolerate Religion? (2012); Michael McConnell, Why Protect Religious Freedom? , 123 Yale L.J. 770 (2013).

The choice-based understanding of religious autonomy is rightly criticized. See Ronan McCrea, Religion and the Public Order of the European Union 111 (2010). Similar criticisms apply to arguments from choice in the context of reproductive rights. See Thérèse Murphy, The Texture of Reproductive Technologies , in New Technologies and Human Rights ( Thérèse Murphy ed., 2009).

See Sandel, supra note 35, at 611; John Garvey, Free Exercise and the Value of Religious Liberty , 18 Conn. L. Rev. 779, 791 (1986).

See Nicholas Aroney, Individual, Community and State: Thoughts on Jane Norton, Freedom of Religious Organizations , 42 Australia J. Legal Phil. 270 (2017).

See Leslie Green, Rights of Exit , 4 Legal Theory 165 (1998); Susan Moller Okin, “Mistresses of Their Own Destiny”: Group Rights, Gender, and Realistic Rights of Exit , 112 Ethics 205, 216–222 (2002).

See generally Raz, supra note 10.

R (Begum) v. Governors of Denbigh High School [2006] U.K.H.L. 15, [2007] 1 A.C. 100 ¶¶ 95–96.

Although the role of public reasons in Rawlsian philosophy is more limited than our claim above, on the concept of public reasons generally, see John Rawls , Political Liberalism 212f (1996).

See Calderwood Norton , supra note 38.

Hasan & Chaush v. Bulgaria, 34 Eur. H.R. Rep. 55 ¶ 62 (2002).

See Raz , supra note 10, at 308.

See Calderwood Norton , supra note 38, at 24.

See Green, supra note 47.

See Calderwood Norton , supra note 38. Cf. Julian Rivers, Religious Liberty as a Collective Right, in Law and Religion (Richard O’Dair & Andrew Lewis eds., 2001).

See generally Dworkin on local priority within ‘departments’ of law: Ronald Dworkin, Law’s Empire 250 f (1986); Tarunabh Khaitan & Sandy Steel, Theorising Areas of Law (Oct. 4, 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3464432 .

See Khaitan , supra note 27. For comparable accounts see Owen Fiss, Groups and the Equal Protection Clause , 5 Phil. & Pub. Aff. (1976); Cass Sunstein, The Anticaste Principle , 92 Mich. L. Rev. 2410 (1994).

On how this happens, see Tarunabh Khaitan, The Point of Discrimination Law in The Empire of Disgust: Prejudice, Discrimination, and Policy in India and the US (Martha Nussbaum et. al. eds., 2018).

See Khaitan , supra note 27, at 38f (on the “eccentric distribution condition” for more clarification on the group orientation of discrimination law).

See, e.g., Sandra Fredman, Discrimination Law (2002); Catharine MacKinnon, Toward a Renewed Equal Rights Amendment: Now More than Ever , 37 Harv. J. L. & Gender 569 (2014).

See, e.g., Sophia Moreau, What Is Discrimination? , 38 Phil. & Pub. Aff. (2010); Khaitan , supra note 27.

See, e.g., Deborah Hellman, When is Discrimination Wrong? (2008).

See Khaitan, supra note 27, at 9f.

See id., ch. 6.

Just as the protected characteristic “sex” is akin to the personal characteristic of sex and gender rather than sexual intercourse. Of course, group membership and behavior are related, but not reducible to each other.

British/European law treats this as direct discrimination: Bougnaoui v. Micropole SA (2017) Case C-188/15 (E.C.J.). Even these cases that track intentional use of a protected characteristic as a basis of classification are ultimately concerned with the adverse effect of such use on the protected group. See Khaitan , supra note 27, ch. 6.

This is also direct discrimination in British/European law. See James v. Eastleigh B.C. [1990] 2 A.C. 751; Bull v. Hall [2013] U.K.S.C. 73.

This alone is indirect discrimination in British/European law. See Essop v. Home Office (UK Border Agency) [2017] U.K.S.C. 27.

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Essay on Religious Discrimination

Our country has made leaps and bounds towards the abolishment of discrimination. Ever since the outlaw of segregation in public educational facilities, thanks to Brown v. Board of Education, America has since made significant efforts to stop discrimination in its tracks. The Civil Rights Act of 1964 was the final push we had to make in order to desegregate and terminate the majority of discrimination across our country. However, since we have evolved into more modern times, we are being faced with different sectors of discrimination.

It wasn’t until the late 1990’s and early 2000’s that mass amounts of people began to openly express themselves as a member of the LGBTQ community. And as this prideful community grows, society as a whole is beginning to accept the ideals of these genuine people. Nevertheless, with this acceptance comes anger from those who disagree with the open lifestyles of the LGBTQ community. Such people are a handful of conservatives, our very own president, and religious persons. The question now is can one legally discriminate against members of the LGBTQ community due to religious or moral beliefs? This controversial topic is more relevant today than it has ever been, and the fact that we have to even ask this question is beyond belief. Discrimination should never be tolerated, even under religious grounds.

In 2012, Jack Phillips and his masterpiece cakeshop refused to make a wedding cake for a same-sex couple on the basis of his religious beliefs. The couple, David Mullins and Charlie Craig felt no need to stay quiet. When the news hit media, the Colorado cake shop became a “symbol of discrimination for many in the LGBTQ community…” (Calfas, 2018, para. 3). The situation was recognized by many and eventually escalated to the U.S. Supreme Court.

The case was significantly controversial. Phillips and his team argued that making a wedding cake for a same-sex wedding would technically involve him in the event which was “religiously” immoral to him. They asked, If vegan bakeries do not have to sell non-vegan products based on their religious beliefs, why should he have to sell a cake to a gay couple if his religion goes against it? Philips and his team made use of the First Amendment. Not only does he have freedom of religion but the First Amendment also grants him the freedom of self-expression, and to Phillips, that means expressing himself through the art of his cakes.

To be realistic, a vegan bakery does not offer non-vegans products, however, Phillips cakeshop does offer wedding cakes, just not to homosexuals. Craig said, “If Phillips didn’t want to sell wedding cakes to gay couples, he shouldn’t sell wedding cakes at all.” (Calfas, 2018, para. 9). Phillips claim of “self-expression” should and does not “exempt business owners from public accommodation laws, which requires them to serve equally.” (Corvino, 2017) Unfortunately, the U.S. Supreme Court Justices ruled 7-2 in favor of Phillips. This was a huge lose for the LGBTQ community and those who are fighting with them. What many people don’t realize is that this court ruling has started a wave of discrimination across our country based on religious grounds, and it is frightening.

Due to this Supreme Court ruling, religious persons are now more confident than ever. They see this as their chance to ask, “Well if they don’t have to provide service to gays, why should we?” And adoption agencies are being the first ones to ask. The House Appropriations Committee passed an amendment that, if implemented, would allow adoption agencies and child welfare services to refuse gay couples based on their religious or moral beliefs despite the needs of the child (Diaz, 2018, para. 1). This implementation would be called Child Welfare Provider Inclusion Act.

The Child Welfare Provider Inclusion Act would cause a great deal of damage if implemented. Not only would the needs of children be overlooked, but our tax dollars would be used for discriminatory purposes. “The act would require the U.S. Department of Health and Human services to withhold 15% of the federal funds a state receives to administer child welfare programs if it fails to comply the provisions of the Child Welfare Provider Inclusion Act” (Human Rights Campaign, 2017, para 2). More importantly, by taking adoption rights away from the LGBTQ community, we are denying a child’s right to be a part of a happy, safe, loving family and home. As of today, there are hundreds of thousands eligible children waiting to be fostered or adopted. Same-sex couples are six times more likely to foster and four times more likely to adopt than a heterosexual couple (Diaz, 2018, para. 6). With that being said, it’s easy to imagine the significant amount of kids that will lose their opportunity if this act was implemented.

The discrimiation doesn’t stop at the LGBTQ community. Women have become a target of this discriminatory behavior as well. President Donald Trump, and his administration, have drafted a rule that could allow religious employers to deny covering their employees birth control in their health insurance plans (Cooney, 2017, para. 1). This rule specifically targets a mandate in the Affordable Care Act which requires employers to provide cost free birth control to their employees. So far this mandate has benefitted over 50 million women across the United States. If we were put under new regulations, hundreds of thousands of women could lose their benefits of no cost contraceptives (Pear, 2017, para. 8). This would indefinitely strip away our rights as women to provide ourselves with the contraceptives needed not only for safe sex, but also for medical conditions such as irregular periods, acne, endometriosis, etc.

In the end religious freedom is a fundamental right. However, to say it is an absolute right is incorrect. “It cannot be used as a shield to permit discrimination against LGBTQ Americans” (Pear, 2017, para. 18). This being the same shield employers and businesses tried to use a half century ago to discriminate against African-Americans based on their religious or moral beliefs, in which this case the Federal Courts denied (Pear, 2017, para. 18). If it was denied then, it can and must be denied now. Our citizens have basic rights that are now being infringed upon because we are permitting the excuse of “religious freedom” and “self expression.” As a country we are taking a giant step back by allowing such behavior to continue.

So when does the excuse of “religious freedom” end? Are we just going to allow bakeries and/or all businesses for that matter deny service to our LGBTQ community? How long is our country willing to let a child’s needs go unattended? And how soon will our rights as women be striped from us at the hands of our own government? I wish I could tell you.  

Essay on Religious Discrimination

Students are often asked to write an essay on Religious Discrimination in their schools and colleges. And if you’re also looking for the same, we have created 100-word, 250-word, and 500-word essays on the topic.

Let’s take a look…

100 Words Essay on Religious Discrimination

Understanding religious discrimination.

Religious discrimination is when someone is treated poorly because of their religion. It can happen anywhere, like schools, offices, or public places. This unfair treatment can make people feel sad, angry, or scared. It’s important to understand that everyone should be treated equally, no matter what their religion is.

Types of Religious Discrimination

There are different ways people can face religious discrimination. This can include being made fun of, being denied opportunities, or even being hurt physically. It can also include being treated unfairly because of religious clothes, symbols, or holidays.

Effects of Religious Discrimination

Religious discrimination can harm people in many ways. It can hurt their feelings, make them feel alone, or even make them scared to practice their religion. It can also cause problems in communities, making people feel divided and causing conflicts.

Fighting Against Religious Discrimination

Fighting against religious discrimination is everyone’s job. We must learn to respect all religions and treat everyone fairly. Schools, offices, and governments can help by making rules against discrimination. We can also help by standing up for people who are being treated unfairly because of their religion.

Religious discrimination is a serious problem that we must fight against. By respecting all religions and treating everyone fairly, we can make our world a better place. It’s important to remember that everyone has the right to practice their religion without fear of discrimination.

250 Words Essay on Religious Discrimination

What is religious discrimination.

Religious discrimination is when people are treated badly because of their religious beliefs. This could be at school, at work, or in the community. It’s like treating someone unfairly just because they follow a different religion. It’s not right and it’s against the law in many places.

Examples of Religious Discrimination

Imagine a person not getting a job or promotion because they wear a religious symbol, like a cross or a hijab. Or a student being teased at school for their religious beliefs. These are examples of religious discrimination.

Religious discrimination can hurt people’s feelings and make them feel left out. It can also cause stress and fear. People might even stop practicing their religion because of it.

Preventing Religious Discrimination

To stop religious discrimination, we should respect all religions. We should also learn about different religions to understand them better. Schools and workplaces should have rules against religious discrimination.

Religious discrimination is wrong. Everyone has the right to follow their own religion without being treated badly. By understanding and respecting each other’s religions, we can help to stop religious discrimination.

500 Words Essay on Religious Discrimination

Religious discrimination means treating someone unfairly because of their religious beliefs. It is a problem that happens when people are not treated equally because they follow a certain religion, or because they have different religious views. This kind of unfair treatment can happen in many places, like schools, workplaces, or even in public places.

Forms of Religious Discrimination

Religious discrimination can take many forms. One common form is when people are treated badly or unfairly because of their religious beliefs. This can include being made fun of, being left out, or even being hurt physically because of one’s religion. Another form is when people are not given the same opportunities as others because of their religion. For example, someone might not get a job or a promotion at work because of their religious beliefs.

Religious discrimination can have serious effects on people. It can make people feel sad, angry, or scared. It can also make people feel like they do not belong or are not accepted by others. This can lead to feelings of loneliness and isolation. In some cases, religious discrimination can even lead to violence or conflict between different religious groups.

Combating Religious Discrimination

There are many ways to fight against religious discrimination. One way is through education. By learning about different religions and their beliefs, people can gain a better understanding and respect for each other’s differences. This can help to reduce misunderstandings and prejudice.

Another way is through laws and policies that protect people from religious discrimination. Many countries have laws that make it illegal to discriminate against someone because of their religion. These laws can help to ensure that everyone is treated equally, regardless of their religious beliefs.

Religious discrimination is a problem that affects many people around the world. It can cause harm and create division among people. But by understanding what it is, recognizing its forms, and taking steps to combat it, we can work towards a world where everyone is treated with respect and fairness, no matter what their religious beliefs may be. It is important for all of us to stand up against religious discrimination and promote understanding and respect for all religions.

That’s it! I hope the essay helped you.

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• Essay on Religion Effect On Life
• Essay on Religion As The Main Cause Of War
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Religious Discrimination in the Workplace Essay

The general ethical issue and why it is important to me personally.

The general ethical issue that I am looking at is whether it is ethical to discriminate against people in the workplace. Workplace religious discrimination occurs when a person is treated in a prejudicial way on the basis of his or her religion. When this occurs, the behavior of the individual is influenced in such a way that they feel like they do not belong to the group. This topic sparked a personal interest for me because I have a close friend who was victimized at work because of his religion. I grew up in a local town upcountry, where every inhabitant viewed the other as “family.” Brotherhood was well embraced in my community, despite the fact that the population was made up of both Christians and Muslims, almost in equal numbers. Like any other kid, I had a best friend, Galgallo Hassan. He was a Muslim, and I was a staunch Christian. Whenever he spent the night at our place, he would say the grace with us, and whenever I was in their place, I would follow through as Hassan’s parents prayed.

As fate would have it, we found ourselves in the same high school and university in the capital city. He, however, graduated before me and got employed at a financial institution in the city. Hassan later realized that he was the only Muslim in the organization, although that never bothered him until he started noticing that no one wanted to be seen hanging around with him. Whenever there were group activities or brainstorming sessions, his opinions never counted. He would also be alone during the team-building activities because others always avoided associating with him. Things go from bad to worse when the organization decided to train the employees at Hassan’s employment status for a possible management position at new branches. My friend was not considered for the training. Needless to say, he felt humiliated. He resigned and is in the process of suing the organization.

Religious discrimination at the workplace creates a natural resentment towards the leader of the group or even the whole group at large. Consequently, the opportunities and benefits enjoyed by the group are not enjoyed by the individual. It is necessary for the organization’s management to make decisions that are rational and logical so as to ensure that some members of a group do not feel excluded just because they do not belong to the religion of the majority.

The Underlying Ethical Questions Involved That I Intend To Answer

Should the religion of a person be an issue in his or her place of work? Many organizations all over the world have made it so difficult for Muslims, in particular, to enjoy equal rights. Why is it that many organizations give unfavorable treatment to employees and, in some cases, applicants just because their religion is the minority? The law should protect and uphold the rights and freedom of people from all religions, and not just those who belong to the traditional majority religion. Still, on religious discrimination, why do people always find it strange and, in some cases, try to stop marriages involving people in different religions? People who associate with a particular religion always consider those of their own religious group as the most suitable partners. Whereas everyone is right in deciding to join whatever religion they wish, it is not right to discriminate against people of another religion.

Factual Information That Is Crucial To Answering the Ethical Questions

The law in many, if not all, countries forbids all aspects of religious discrimination in work situations. The United States law, for instance, forbids religious discrimination in work settings, whether during hiring or firing. It is also unlawful to discriminate in payments, assignment of tasks and responsibilities, and while offering benefits and training. It is unlawful to discriminate or harass people because they follow a different religion from yours. Religious harassment includes making an offensive remark directed to the religious practice of a person, hostility, among others (Gregory 78). A hostile working environment may involve one in which a person is ridiculed, demoted, or fired without a satisfactory explanation. The law, however, does not cover minor acts such as teasing and isolating people. It should be noted that when the not-so-serious harassment is done frequently, a hostile environment is borne (Weller, 122). A person can be harassed by his or her own supervisor, a fellow employee, an employer, or even a client.

Title VII of the law prohibits religious discrimination in the aspect of job segregation. This covers acts such as the assignment of a worker to a task that does not link him or her to a customer due to an actual or anticipated preference of the client or customer. The law also prohibits employers from failing to accommodate the religious practices of a worker, as long as doing so would not create a burden in enforcing the policies of the organization. In this respect, the law requires an employer to reasonably adjust the policy so as to allow an employee to carry out his or her religious practice. Reasonable adjustments would include establishing a flexible working schedule that would accommodate someone’s worship hours and a suitable shift swap that is flexible to someone’s religious practice (Cotter, 68).

Accommodating an employee’s religious practices and beliefs include their grooming and dress codes. For instance, Jews’ dress code includes a yarmulke, Muslims wear head coverings, Rastafarians wear dreadlocks, while Sikh does not shave their hair and beards. The employees are also expected to observe their religion’s prohibitions on various dress codes such as mini skirts and trousers. In addition, they should notify their respective employers of their desired religious accommodations. Not every employer knows the details of the practices and beliefs of all religions. Where more information is required, an interactive process should be organized by both parties to reach an agreement. In the event that accommodating an employee’s request would create an undue hardship to the organization, the employer is entitled to turn it down. Undue hardship can include a compromise in the safety of the workplace, uneconomical accommodation, job inefficiency, an infringement of other workers’ rights, or overworking others. Finally, the law allows a worker to decide whether or not to participate in any activity linked to religion in the workplace. For instance, it would be wrong to force an employee to join a bible study activity.

How Arguments Based On Ethical Theory and Empirical Evidence Led Me to Adopt a Position on Religious Discrimination

Many employees are being forced to deal with a situation that forces them to compromise on their religious beliefs and practices so as to fit in an organization. For instance, many Muslim women are forced to do away with their head coverings so that they can keep their jobs. In addition, a good number of employers also face a situation where accommodating the religious practices of employees in the organization may conflict with the organization’s effective operation. For instance, employees may decide to start a bible study association and use an open office or a conference room during working hours. An employer might find it difficult to have to put up with that. Many employers fail to understand what their duties are in situations that involve religious beliefs and practices. On the other hand, the political environment has influenced people to be more vocal about their religion more than ever before. When the Democrats and Republicans proclaim their respective religious beliefs so strongly, the population that does not confess to either feels excluded (Vickers, 155). This creates a kind of a fight for recognition and acceptance all the way to the workplaces.

According to Kantian ethics, an action is justified if it is done in accordance with a principle that is morally acceptable the society. This should be regardless of a person’s spirituality. Usually, employers are so savvy about what constitutes their rights. They know the kind of situations that require them to advance accommodation. This always gives them an upper hand above their employees because many workers do not know their rights in detail. Therefore, they may compromise on their religious expectations while fearing to lose their jobs. Many employers tend to take advantage of such “opportunities” to enforce their policies. There is also the possibility that a good number of employers do not know that they are required to accommodate the religious beliefs and practices of their workers.

Why my position is more persuasive than opposing views that are based on different evidence or ethical theories

In recent years, there has been an increase in the adoption of the religious fundamentalism theory. It makes people loyal to their religions and intolerant of others (Ravitch, 45). Mill’s utilitarian theory, for instance, argues that as long as action leads to the promotion of the desired consequence, everyone should tolerate it. With religious numbers rising massively in the world, more and more people are becoming less tolerant of fellow humans. Since 9/11, the media has focused its attention on inter-religion conflicts and created the impression that it is difficult for different religions to co-exist.

Today, more than ever, people are more willing to tag their faith into their workplaces and avoid those who do not share in their faith. According to Neil Addison, people have adopted the notion that we are living in tough times, which requires that in some instances, you just have to give up on your religion to survive the moment (Addison, 203). This kind of thought presents some religions as a threat. It also encourages people to compromise on what they know is against their religion’s beliefs. The good news is that the law exists, which protects against intergroup conflicts. Since 1997, religion-related court cases have more than doubled in the United States. This reflects why the failure to accommodate religious diversity has negatively affected people.

The Practical Application of My Position

Religious diversity should be embraced in the workplace. The employers need to develop a working environment that embraces all represented religions. If the financial institution where my friend, Hassan, was working would have accommodated his religious practice and belief, he would still be a happy, effective employee. They would have also trained him just like the others, and maybe he would be a manager at the institution’s branch office. People of other religions would have joined the organization, and that would have created a racially diversified organization.

Works Cited

Addison, Neil. Religious Discrimination and Hatred Law . New York: Routledge-Cavendish, 2007. Print.

Cotter, Anne-Marrie. Heaven Forbid: An International Legal Analysis of Racial Discrimination . Burlington: Ashton Publishing Company, 2009. Print.

Gregory, Raymond. Encountering Religion in the Workplace: The Legal Rights and Responsibilities of Employers and Workers . New York: Oxford University, Print.

Ravitch, Frank. School Prayer and Discrimination:The civil Rights of Religious Minorities and Dissenters . New York: Northeastern University Press, 1999. Print.

Vickers, Lucy. Religious freedom, religious discrimination and the workplace . Michigan: Hart Publishers, 2008. Print.

Weller, Paul. Time for a change: reconfiguring religion, state and society . New York: T&T Clark International, 2005. Print.

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Apr. 23, 2024

Study suggests religion can help the faithful deal with discrimination, can also result in exploitation or encourage victimhood.

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The Supreme Court opens the door to more discrimination claims involving job transfers

Nina Totenberg

A view of the U.S. Supreme Court on March 26. Jemal Countess/Getty Images for Women's March hide caption

A view of the U.S. Supreme Court on March 26.

The U.S. Supreme Court on Wednesday made it easier for workers to bring employment discrimination suits over job transfers based on sex, race, religion or national origin.

At issue was a question that has produced many conflicting decisions in the lower courts over what constitutes illegal discrimination when it comes to job transfers.

The high court's answer Wednesday was that an employee must show some harm, but need not demonstrate harm that is "significant" or "material."

The case before the court was illustrative. It was brought by Jatonya Clayborn Muldrow, a police sergeant who claimed she was transferred from her job as a plainclothes police officer in the intelligence section of the St. Louis Police Department because she is a woman. Muldrow worked in the Intelligence Division from 2008 to 2017 investigating public corruption and human trafficking cases. She also oversaw the Gang Unit, served as head of the Gun Crimes Unit, and was assigned as a task force officer with the FBI.

Despite high employment evaluations, a new unit commander engineered her transfer out of the Intelligence Division. Among other things, he justified the transfer by noting that the division's work was "very dangerous." Over her objections, Muldrow was reassigned to a uniformed job in the department's Fifth District, where she supervised the activities of neighborhood patrol officers — approving arrests, reviewing reports and handling other administrative matters.

Though her pay and rank remained the same, Muldrow sued the police department, asserting that she had been harmed by the transfer. Because she was no longer in the Intelligence Division, she lost her FBI status and the car that came with it, and in the new job Muldrow often had to work nights and weekends, instead of the Monday-through-Friday workweek she had worked in the intelligence unit.

Supreme Court gives skeptical eye to key statute used to prosecute Jan. 6 rioters

A federal district court judge ruled in favor of the police department, without a trial, and the 8th Circuit Court of Appeals upheld Muldrow's transfer, declaring that because she could show no "diminution to her title, salary, or benefits," her claims of discrimination were not "significant."

But on Wednesday the Supreme Court reversed that ruling and laid out a more stringent test for lower courts to use in determining whether a discrimination claim based on altered conditions of employment can proceed to trial.

The decision was unanimous , but the reasoning was not.

Writing for the six-member majority, Justice Elena Kagan said that the federal law banning discrimination in employment includes a ban not just on economic discrimination; it includes a ban on discrimination in the "terms" and "conditions" of employment." Kagan said that covers a transfer that changed "nothing less than the what, where, and when of [Muldrow's] police work."

While the 8th Circuit and some other courts have required that such discrimination claims show "significant" or "material" harm, the Supreme Court said that is too high a bar. The anti-discrimination statute "targets practices that 'treat a person worse' " because of their sex, race, religion or national origin, the court said.

Explaining why this higher threshold is necessary, Kagan said that "whether the harm is significant" turns out to be "in the eye of the beholder." And to prove the point she cited examples that lower courts have held to be not significant:

• an engineering technician is assigned to a new job site — in a 14-by-22- foot wind tunnel;
• a shipping worker is transferred to a position involving only nighttime work;
• and a school principal is transferred to a non-school-based administrative role supervising fewer employees.

In each of those sex or race discrimination cases, the lower courts found that there was no "significant" harm to conditions of employment.

That, however, is "the wrong standard," Kagan explained. Rather, if an employee can show some harm because of sex, race, religion or national origin, that is enough. "Had Congress wanted to limit the liability for job transfers to those causing a significant disadvantage, it could have done so," wrote Kagan, adding that the court "does not get to make that judgment" by rewriting the statute.

Three justices — Samuel Alito, Clarence Thomas and Brett Kavanaugh — wrote opinions concurring with the result but not the reasoning.

Alito's was the most extraordinary. "I do not join the Court's unhelpful opinion," he wrote, adding of its reasoning: "I have no idea what this means."

Justice Thomas picked some legal nits with the majority opinion, but in the end, acknowledged that it is "unlikely" the 8th Circuit had a "stringent" enough standard in mind.

And Justice Kavanaugh wrote that he favored a different and less complicated approach. If a job transfer is based on sex, race, religion or national origin, it is discriminatory, period, whether or not it causes some concrete harm. That said, he acknowledged the court's "new some-harm requirement appears to be a relatively low bar" that ought to be easily met for anyone transferred based on their sex, race, religion or national origin.

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Guest Essay

Modi’s Temple of Lies

By Siddhartha Deb

Mr. Deb is the author of the novel “The Light at the End of the World.”

The sleepy pilgrimage city of Ayodhya in northern India was once home to a grand 16th-century mosque, until it was illegally demolished by a howling mob of Hindu militants in 1992. The site has since been reinvented as the centerpiece of the Hindu-chauvinist “ new India ” promised by Prime Minister Narendra Modi.

In 2020, as Covid-19 raged unchecked across the country, Mr. Modi, the leader of the Hindu right, went to Ayodhya to inaugurate construction of a three-story sandstone temple to the Hindu god Ram on the site of the former mosque. Dressed in shiny, flowing clothes and wearing a white N95 mask, he offered prayers to the Ram idol and the 88-pound silver brick being inserted as the foundation stone.

I traveled to Ayodhya a year later and watched as the temple was hurriedly being built. But it seemed to me to offer not the promise of a new India so much as the seeds of its downfall.

Mr. Modi’s Hindu nationalism has fed distrust and hostility toward anything foreign, and the receptionists at my hotel were sullenly suspicious of outsiders. There was no hotel bar — a sign of Hindu virtue — and the food served was pure vegetarian, a phrase implying both Hindu caste purity and anti-Muslim prejudice.

Outside, devotional music blared on loudspeakers while bony, manure-smeared cows, protected by Hindu law, wandered waterlogged streets in the rain. The souvenir shops at the temple displayed a toxic Hindu masculinity, highlighted by garish shirts featuring images of a steroid-fed Ram, all bulging muscles and chiseled six-packs. Even Hanuman, Ram’s wise but slightly mischievous monkey companion, appeared largely in the snarling Modi-era version known as Angry Hanuman , which went viral in 2018 after Mr. Modi praised the design.

After a decade of rule by Mr. Modi and his Bharatiya Janata Party, Hindu-majority India maintains the facade of a democracy and has so far avoided the overt features of a theocracy. Yet, as Ayodhya revealed, it has, for all practical purposes, become a Hindu state. Adherence to this idea is demanded from everyone, whether Hindu or not.

This is not sustainable, even if it seems likely that Mr. Modi will ride to a third victory in national parliamentary elections that begin Friday and conclude June 1. Mr. Modi’s India is marked by rampant inequality, lack of job prospects, abysmal public health and the increasing ravages of climate change. These crises cannot be addressed by turning one of the world’s most diverse countries into a claustrophobic Hindu nation.

Perhaps even the prime minister and his party can sense this. Their crackdowns on opposition political leaders, manipulation of electoral rolls and voting machines and freezing of campaign funds for opposition parties are not the actions of a confident group.

In January of this year, a wave of Hindu euphoria swept the nation as the temple I had watched being put together with cement and lies (there is no conclusive evidence supporting Hindu claims that Ram was a historical figure or that a temple to him previously stood there) was about to be inaugurated .

Newspapers devoted rapturous front pages to the coming occasion, and when I flew to my former home Kolkata on the eve of the big day, my neighbors there declared their anticipation by setting off firecrackers late into the night. The next morning, on Jan. 22, loudspeakers and television screens tracked me through the city with Sanskrit chants and images of the ceremony taking place at the temple. Mr. Modi, as usual, was at the center of every visual. Friends in Delhi and Bangalore complained about insistent neighbors and strangers knocking on their doors to share celebratory sweets. Courts, banks, schools, stock markets and other establishments in much of the country took a holiday.

The inauguration date seems to have been chosen carefully to overshadow Republic Day, on Jan. 26, which commemorates India’s adoption of its Constitution, amended in 1976 to affirm the country as a “socialist, secular, democratic” republic. Those values are fiercely in opposition to what Hindu nationalism has ushered in. The temple inauguration date, which will be celebrated annually, reduces the republic to secondary status next to Mr. Modi’s Hindu utopia.

A similar effort has been underway to diminish the importance of Aug. 15, marking Indian independence in 1947. In 2021, Mr. Modi announced that Aug. 14 would henceforth be Partition Horrors Remembrance Day, referring to the bloody division of the country into Hindu-majority India and an independent Muslim Pakistan in 1947, a murderous affair for Hindus, Muslims and Sikhs alike.

This was sold to the Indian public as underlining the need for unity, but it was also a reminder from Hindu nationalists that a section of Muslims broke off to form their own nation and that the loyalties of India’s remaining 200 million Muslims were suspect. Given that Hindu rightists participated in massacres, rapes and forced displacement during the partition, Mr. Modi’s weaponization of the suffering seems particularly reprehensible. I was born to a Hindu family, and my father, a refugee from the partition, never blamed Muslims his entire life.

There have been countless other such stratagems with the Hindu right in power. The old Parliament building, whose design features refer to India’s syncretic history — Hindu, Buddhist, Muslim and Christian — was replaced last year by a new structure that explicitly reduces India’s past to a monochromatic Hindu one.

In the new Parliament, the lotus flower, common in Hindu iconography and the symbol of the Bharatiya Janata Party, runs amok as a motif. A statue atop the building of four back-to-back lions — India’s national symbol and a look back at its Buddhist past — has been altered so that the lions are no longer serene and meditative, as in the original, but snarling, hypermuscular Hindu beasts . Everywhere in India, roads and cities have been renamed to sever connections to centuries of Muslim history in favor of a manufactured Hindu one. On new highways through the state of Uttar Pradesh, where I traveled last summer, gleaming signboards pointed toward concocted Hindu sites but almost never toward the state’s rich repository of Muslim mosques, forts and shrines.

Knowledge and culture are being attacked along similar lines. Bollywood , Indian television and the publishing industry have become willing accomplices of Hindu chauvinists, churning out content based on Hindu mythology and revisionist history. In the news media, the few journalists and institutions unwilling to shill for the Hindu cause face legal threats and police raids .

In education, government institutions are run by ignorant functionaries of the ruling party , and from school textbooks to scientific research papers , the Hindu nationalist version of India is pushed forward, myth morphing into history. In the private universities that have begun to crop up in India, Mr. Modi’s government keeps a close eye on classes, panels or research that might be construed as criticizing his government or its idea of a Hindu India.

This cultural shift and the accompanying reduction of Muslims to alien intruders has been made possible by Mr. Modi delivering on his party’s three main promises to Hindu nationalists .

In 2019 he repealed the notional autonomy enjoyed for decades by the disputed Muslim-majority state of Jammu and Kashmir, which the Hindu right had assailed as favoritism toward Muslims and victimization of Hindus. Later that year, Mr. Modi delivered on a second promise by introducing a law that ostensibly opened a pathway to Indian citizenship for persecuted minorities from neighboring countries but whose true motive lay in that it pointedly excluded Muslims. In the northeastern state of Assam , a registration process had already been underway to disenfranchise Muslims if they could not provide elaborate documentation of their Indian citizenship. The Bharatiya Janata Party’s declared intention to establish a similar registration system nationwide hangs the threat of disenfranchisement over all of India’s Muslims.

The inauguration of the Ram temple delivered on the third and most important electoral promise. It announced, triumphantly, the climax of the battle to turn India into a Hindu nation. And yet after 10 years under Mr. Modi’s government, India is more unequal than it was under colonial British rule. In 2020 and 2021, it surpassed China as the largest source of international migrants to O.E.C.D. countries. Many of the undocumented migrants to be found pleading for entry on the U.S.-Mexico border are from India , and they include Hindus for whom India should be a utopia.

The Hindu right’s near-complete control of India may indeed deliver a third term for Mr. Modi, maybe even the absolute parliamentary majority his party wants in order to expand on the transformation it has begun.

But the truth is harder to hide than ever. Mr. Modi and his party are giving India the Hindu utopia they promised, and in the clear light of day, it amounts to little more than a shiny, garish temple that is a monument to majoritarian violence, surrounded by waterlogged streets, emaciated cattle and a people impoverished in every way.

Siddhartha Deb ( @debhartha ) is an Indian writer who lives in New York. His most recent novel is “The Light at the End of the World.” His new nonfiction book is “Twilight Prisoners: The Rise of the Hindu Right and the Fall of India.”

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

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An earlier version of this article misstated a detail about India’s Constitution. It described the country as a “socialist, secular, democratic” republic when it was amended in 1976, not when it was adopted in 1950.

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Teaching assistant loses religious discrimination claim over Christmas Grinch award

The teaching assistant claimed the award was "an act of bullying and discrimination" - but the tribunal said it was "satisfied" he had been given the prize because he had won most votes in a ballot.

Wednesday 17 April 2024 17:41, UK

A Muslim teaching assistant who claimed that being given the Christmas Grinch prize at a staff award ceremony amounted to religious discrimination has lost his employment tribunal case.

Salah Toughfar said he was "upset and distressed" to have been compared to the Dr Seuss character - despite not knowing anything about the mean-tempered creature until a colleague showed him an internet description.

The learning support assistant, who still works at The Grove School in north London, later complained about the audience laughing at him as he collected his trophy.

His claims of direct discrimination and harassment related to his religion were dismissed by a tribunal, which said the reception he received was no different to the other winners.

The Grinch is best known as the main character of the 1957 children's book How The Grinch Stole Christmas and was also portrayed by Jim Carrey in a 2000 film.

Mr Toughfar, a practising Muslim from Morocco, began working at the school in April 2020.

The Search Education Trust-run school is a specialist free school for students aged five to 19 with a primary diagnosis of autism, and is "diverse", with pupils and staff from all backgrounds, the Watford tribunal heard.

Mr Toughfar told the tribunal he got involved in school festive activities like putting up decorations in class as part of his role, but would not have a Christmas dinner.

The tribunal heard how in December 2022 assistant head teacher Daniel McKay Wood organised an online ballot for staff for a number of award categories, including The Rudolph, Santa's Little Helper and The Christmas Grinch.

Mr Toughfar received four votes for the Grinch award, while two other staff members each received three - and was presented with a miniature Oscar statue in a "light-hearted and jovial" ceremony.

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He later held a meeting with a senior member of staff in which he handed back his trophy, and claimed the award amounted to bullying and discrimination, the tribunal heard.

In an email to a school HR manager, he said: "I have never known a workplace, let alone a school, who would give a member of staff such an unkind and inappropriate trophy.

"I do not understand how such a decision to give someone a trophy depicting this character could be permitted. This is essentially promoting bullying in front of the whole school staff and this is an act of bullying and discrimination."

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Judge Dilbaag Bansal said Mr Toughfar had "not put forward any evidence whatsoever that his being awarded the Christmas Grinch award was either because of or related to his religion".

"The tribunal was satisfied that the reason why he received the Christmas Grinch award was because he had received the highest number of votes at the point the voting had closed."

Kanye West Sued for Racial Discrimination, Harassment by Ex-Staffer: ‘Screamed at and Berated Black Employees’

Benjamin Deshon Provo, formerly of fashion brand Yeezy and Donda Academy, says he was fired after whistleblowing labor code violations

Kanye West has been sued by yet another ex-employee: Benjamin Deshon Provo, formerly of fashion brand Yeezy and Donda Academy, said he was fired after blowing the whistle about labor code violations.

In a lawsuit filed Friday morning in Los Angeles, Provo claims that he “suffered severe discrimination, harassment and retaliation by Kanye West” during the time he served as a security guard at the now-closed Donda Academy.

In the document, which was obtained by TheWrap, Provo states, “Kanye frequently screamed at and berated Black employees, while in contrast, he never so much as raised his tone of voice toward white staff.”

Provo also alleges that he was discriminated against because he is Muslim and was ordered to cut his dreadlocks or be fired.

The lawsuit goes on to state, “during Plaintiff’s employment, Kanye openly expressed his displeasure with Black authors. Specifically, in or around mid-2023, Kanye required that anyone associated with Donda dispose of books related to Martin Luthar King, Jr., Malcolm X, and other prominent figures in the Black community.”

The rapper is also said to have “expressed negative beliefs associated with prominent Black leaders that advocated for or sought to advance the Black community. Such offensive opinions were particularly troubling to Plaintiff, who is unapologetically Black.”

The lawsuit also alleges that West engaged in whistleblowing retaliation, wrongful termination and intentional infliction of emotional distress.

Provo is asking for a jury trial and a settlement of more than $35,000.

He also asks for the injunction against all Defendants, prohibiting them from owning and operating any type of educational school for minor children under the age of 18 years in the state of California.”

Donda Academy was closed abruptly in October 2022 after West made several antisemitic comments in interviews and on social media. Several of his clients and sponsors stopped doing business with him in the wake of that scandal.

A lawsuit filed earlier this month an ex-employee at Donda Academy alleged that the rapper wanted to shave students’ heads and lock them in cages.

Another filed in 2023 by two former teachers at the private acadamy aallege that the rapper enabled “unsafe and illegal” conditions, including locking students in classrooms.

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