Why Religious Freedom Matters for Democracy

Comparative Reflections from Britain and France for a Democratic "Vivre Ensemble"

Myriam Hunter-Henin

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509904754
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

Should an employee be allowed to wear a religious symbol at work? Should a religious employer be allowed to impose constraints on employees' private lives for the sake of enforcing a religious work ethos? Should an employee or service provider be allowed, on religious grounds, to refuse to work with customers of the opposite sex or of a same-sex sexual orientation? This book explores how judges decide these issues and defends a democratic approach, which is conducive to a more democratic understanding of our vivre ensemble. The normative democratic approach proposed in this book is grounded on a sociological and historical analysis of two national stories of the relationships between law, religion, diversity and the State, the British (mainly English) and the French stories. The book then puts the democratic paradigm to the test, by looking at cases involving clashes between religious freedoms and competing rights in the workplace. Contrary to the current alternative between the "accommodationist view", which defers to religious requests, and the "analogous" view, which undermines the importance of religious freedom for pluralism, this book offers a third way. It fills a gap in the literature on the relationships between law and religious freedoms and provides guidelines for judges confronted with difficult cases.

1

Introduction

Should an employee be allowed to wear a religious symbol at work? Should the answer depend on the size and conspicuousness of the symbol, the underlying national constitutional tradition, the question of whether the employee is working in the public or private sector, the existence or absence of an applicable neutrality company policy? Should a religious employer be allowed to impose constraints on employees’ private lives for the sake of enforcing a religious work ethos? Should the answer depend on the role of the employee within the organisation, on the publicity surrounding the alleged violations, on the status of the employer as a Church or ordinary employer, of the employee, as a minister or lay person, on the constitutional status of the Church, the connection with the employee’s tasks and employer’s activities? Should an employee or service provider be allowed, on religious grounds, to refuse to work with customers of the opposite sex or of a same-sex sexual orientation? Should the answer depend on whether access to the service is possible, at no extra cost for the customer? Should it make a difference whether the service or product refused involves a high degree of personal involvement of the provider, or whether the provision of the service implies the endorsement of views contrary to the provider’s religious convictions or does not carry any message? This book explores how judges must decide these issues and defends a ‘democratic approach’, which insists on the normative link between religious freedom and democracy. By democracy, I understand ‘an open-ended reason-giving process of deliberation’¹ woven into the fabric of our vivre ensemble. Democracy in that sense cannot be reduced to majority rules and aggregation of interests; its key features are deliberation,² participation on equal terms³ and self-revision.⁴ Construed by judges in a way that fosters these democratic features, religious freedoms, I submit, are valuable for believers as well as for democracy.

I.GOALS OF THE BOOK

I seek to show that religious freedom is important not only as a negative liberty, to protect believers from intrusions and interferences, but also as a positive value to society, to support pluralism and equality and thereby enrich democracy. As expressed by the European Court of Human Rights:

Freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.⁵

Following the Court’s statement, the book defends a dual dimension of religious freedom: a negative dimension, as a defensive liberty; and a positive dimension, as a welcome principle and source of pluralism. I thus make a conceptual argument and submit that religious freedoms are important for and within democracy as well as for believers themselves. From this conceptual position, helpful guidelines can follow for judges confronted with the abovementioned instances of clashing rights. Drawing on the renowned work of late American philosopher, John Rawls,⁶ and moving beyond it, I submit that the connections between democracy, pluralism and religious freedoms ought to rely on the following: a method of avoidance; a principle of inclusion; and a principle of revision.

A.The Method of Avoidance

The method of avoidance, to use the term coined by NYU political theory professor Stephen Holmes,⁷ captures the negative dimension of religious freedom and manifests itself by a degree of separation between the state and religion.⁸ The notion of separation guarantees that the state does not encroach on citizens’ freedom of conscience and leaves them, in solo or collectively,⁹ to practise their religion free of interference. Separation thus allows religious beliefs and freedoms to flourish and more generally allows everyone the freedom to decide how to pursue their lives, a consequence which few would disapprove of, whether for the sake of religious vitality or concerns for freedom and autonomy (or both).¹⁰ Reciprocally, however, I will demonstrate that this separation can also benefit the state and democracy, by freeing the political sphere from intractable controversies.¹¹ Rather than a paradigm of separation, the method at play here is therefore more properly named ‘a method of avoidance’, under which the state avoids interfering with religious doctrines and practices for the sake of religious citizens and groups and avoids cluttering democratic debate with conflicting issues. Far from signalling indifference towards religion, separation between state and religion under the method of avoidance would signal respect for religion in all of its diversity, but with awareness of the deep disagreement that this (religious and non-religious) diversity potentially generates. As a standalone paradigm, however, the method of avoidance risks advantaging majority factions.

B.The Principle of Inclusion

To avoid minority vulnerable members of society being excluded from the start from public debate and remaining locked in positions of vulnerability, the method of avoidance described above supposes that the position of non-interference is never absolute or fixed.¹² Non-interference will cease to be justified, for example, if systemic disadvantage works against minority groups and vulnerable members of society. Left to fight in the free-range competition between ideas within society, minority religious groups and views might struggle to find a place and a voice. I argue in this book that such muffling of minority voices would come at a loss both for the individuals and groups concerned (who are likely to feel disparaged) and for the political sphere. The diversity of voices that religion brings is, I submit, enriching for democratic debate. The second feature, the principle of inclusion, conveys this idea that religious freedoms are important not only for themselves, to ensure merely that religion is strong in civil society, but also for the enriching pluralism that they bring to public debate and the equality between citizens which they protect. A libertarian model of free market economy,¹³ based solely on a principle of state non-interference, might well achieve the former aim,¹⁴ of strengthening religion, but not the latter, of strengthening pluralism. That is why the principle of inclusion must complement the method of avoidance. Under the principle of inclusion, the state and its institutions will intervene as required, to ensure that vulnerable members of society play a part in political debate. Consequently, the requirement, underlined by Rawls,¹⁵ to streamline political debate and free the political sphere from irresolvable but reasonable disagreements stemming from people’s diverse ‘comprehensive views’,¹⁶ as per the method of avoidance, needs to be sufficiently inclusive. This will ensure that religious citizens, and especially marginalised religious (and non-religious) citizens are not discouraged from the outset from contributing to democratic debate.¹⁷ Finally, the principle of revision captures the ideas of fluidity and limits.

C.The Principle of Revision

The principle of revision guarantees that religious freedoms, whilst recognising the intrinsic importance of religious commitments for believers, do not lead to an atomisation of society. Under the principle of revision, citizens are expected to review their commitments in light of the overall political framework and the horizon of a democratic vivre ensemble. When they fail to do so, judges will legitimately set limits to the expression or manifestation of their views and practices. Naturally, the limits themselves lead to a diversity of answers, rather than one single, legitimate answer and must also be part of the democratic dialogue. The line between ‘what falls within’ and ‘what falls outside’ the terms of legitimate diversity must therefore itself be kept under constant review, and subject to further questioning, each time a new case comes to court, each time new contestations emerge. The democratic understanding of the vivre ensemble is not, therefore, about pushing for adherence to core liberal substantive values associated with democracy (such as equality, liberty and autonomy), even though these values undoubtedly inspire the very idea of a vivre ensemble and the three abovementioned features, but about procedural guarantees that tie pluralism, religious freedom and democracy together.

Let me underline why this democratic approach is worthwhile. It lies in contrast to two opposite views, which I call the ‘analogous-to-secular’ view and the ‘accommodationist’ view respectively, the key features of which are explained below. Contrary to the analogous-to-secular view, which struggles with the concept of religious freedom itself and its underlying implication that religion would be special,¹⁸ the democratic approach helps understand the positive value of the concept of religious freedom: its benefits for pluralism and democratic debate. Moreover, contrary to the accommodationist view, which struggles with the notion of limits, the democratic approach helps understand why courts may impose legitimate limits on diversity and religious freedoms. By offering a third way, which overcomes the deadlocks and weaknesses of these views, this book hereby fills a gap in the literature on the relationships between law and religious freedoms and provides guidelines for judges confronted with difficult cases.

D.The Analogous-to-Secular View

It is one of the objectives of this book to offer a counter-claim to those liberal authors who would dispense with the concept of religious freedom. For the sake of impartiality concerns, a few liberal authors have challenged the special consideration that law and political theory attach to ‘religion’ through the legal concept of religious freedom. Instead, they claim, equality or liberty could do the work of the concept of religious freedom.¹⁹ Whilst possible, religious freedom in liberalism, the argument goes, would therefore not be desirable, as a legal and political theory category. In this view, dispensing with the concept would solve the epistemological problems associated with religion and guarantee fair treatment between religious and non-religious citizens. Two prominent manifestations of this approach are US law professors and constitutional theorists Christopher Eisgruber’s and Lawrence Sager’s work on the one hand, and Oxford political theory professor Cécile Laborde’s on the other. The former insist on the equal treatment of people with diverse spiritual views, whether these be religious or secular....

Table of contents

• Cover
• Dedication
• Title Page
• Acknowledgements
• Table of Contents
• Table of Cases
• Table of Statutory Materials
• 1. Introduction
• PART I: THE BROKEN VIVRE ENSEMBLE – OBSERVATIONS AND SOLUTIONS
• PART II: CASE STUDIES: THE MENDED VIVRE ENSEMBLE
• Index
• Copyright Page