Religion in human rights law: A normative restatement

Abstract In a companion article published in the preceding issue of this journal, “The Right to Freedom of Religion and the Right against Religious Discrimination: Theoretical Distinctions,” we focused on the theoretical differences between the right to freedom of religion and the right against religious discrimination. We explained that the right to freedom of religion is best understood as protecting our interest in religious adherence (and non-adherence), understood from the committed perspective of the (non)adherent. On the other hand, the right against religious discrimination is best understood as protecting our non-committal interest in the unsaddled membership of our religious group. This follow-up article builds upon these theoretical insights to show how key doctrinal implications follow from this distinction between our interest in religious (non)adherence and our interest in unsaddled membership of a religious group. Doctrinal implications arise for the respective scope of the two rights, whether they may be claimed against non-state actors, and their divergent tolerance levels for religious establishment. We explain that these theoretical distinctions imply that the scope of religious freedom is extremely broad, whereas that of religious antidiscrimination is relatively narrow. Moreover, religious freedom should be restricted as a claim solely against the state (or, possibly, other state-like bodies), whereas a claim of religious discrimination may be permitted against certain non-state actors as well. Third, we demonstrate that certain forms of religious establishment, and other non-zero-sum benefits to particular religious groups, breach the antidiscrimination guarantee but not (necessarily) the religious freedom guarantee. In the final section of this article, we map the areas of overlap between the two rights and identify cases where one of these rights might be engaged but not the other.