The Free Exercise of Discrimination: Religious Liberty, Civic Community and Women's Equality

Abstract

The article critiques the new right to Free Exercise of Discrimination recently created in American law and its effect on equality, and in particular on women's equality, which is uniquely susceptible to religious and cultural norms. Recent developments in American law have obliterated the distinctions between religious institutions and other civil society institutions in two important ways. Following the Boy Scouts case all "expressive associations" are entitled to exemptions from anti discrimination laws that until now were reserved for religious institutions alone. Following the Zelmann case and developments in charitable choice law, religious institutions can now receive unprecedented amounts of money from the government without being barred from using this money to teach and practice discrimination against women. The combined result of these developments is that the state sanctions, enforces and increasingly funds religiously and culturally based discrimination against women in contravention of women's constitutional right to equality.

The article will employ two very different models of relationship between religion, community and the state, the CEDAW model and the Israeli model, and compare them to the American model. I will show that the effects of the American model on women's equality are very similar to the effects of the seriously flawed Israeli model on women's equality. I will further show that the American model is clearly at odds with the CEDAW model, which is the only model that can guarantee women's right to equality through its insistence on the need for intervention in the private sphere. Analyzing the centrality of community to the individual and considering accounts of women's agency in patriarchy, I will argue that the assumption underlying the right to free exercise of discrimination, namely, that women who object to the discrimination can simply exit the community, is patently false, and that the right of exit cannot substitute the need for equality within community.

Keywords: Women's equality, Religious liberty, Civic community, Free exercise, USA, Israel, CEDAW