Wrongful Discrimination? Religious Freedom, Pluralism, and Equality

Timothy Shah, Thomas Farr & Jack Friedman, eds., Religious Freedom and Gay Rights: Emerging Conflicts in North America and Europe (Oxford University Press 2016)

43 Pages Posted: 30 Apr 2016

Date Written: April 28, 2016

Abstract

This chapter is a contribution to a volume addressing the tension between claims of equal rights and claims of religious freedom. More specifically, the volume treats the potential for, and the reality of, conflict between the enterprise of promoting equality through anti-discrimination laws and that of vindicating religious freedom by limiting the reach of such laws.

In the United States and in many other countries and communities, this tension is real. It is also unavoidable and ineradicable because of here-to-stay and non-trivial disagreements among people of good will about the foundations and implications of human equality, dignity, and freedom, and also about the appropriate aims and reach of governments’ power. True, it is sometimes declared that, in fact, there is no conflict between religious liberty and non-discrimination law. It is said that claims that there is such conflict — claims that there is conflict presume or present a “false choice.” However, such declarations usually involve an attempt to dissolve the conflict by assuming and imposing a contested definition of or boundary on “real” religious liberty. Certainly, if “religious liberty” does not and cannot include a right, in some cases, to discriminate then there is very little chance of for conflict between religious liberty and anti-discrimination laws. However, religious liberty does sometimes include a right to discriminate in ways that would otherwise violate such laws. The tension between religious liberty and (other) civil rights — between religious liberty and the aspirations of equality legislation and anti-discrimination laws — is, sometimes, real, but this fact is unremarkable and should be unsurprising. After all, the right to religious freedom is not the only civil right the exercise of which sometimes bumps up against the exercise of others.

It is suggested in this chapter that this tension might be lessened, or at least better managed, if citizens and lawmakers thought more carefully about when and why “discrimination” is wrong and about the moral and constitutional limits on governments’ efforts to prevent and remedy, in the name of equality, wrongful discrimination. It will also be proposed that what some have called “healthy secularity” provides a way of thinking about these matters that is attractive, promising, and appropriately appreciative of pluralism.

Keywords: religious freedom, pluralism, equality, discrimination, gay rights, marriage, LGBT, First Amendment

JEL Classification: K10, K30, K40

Suggested Citation

Garnett, Richard W., Wrongful Discrimination? Religious Freedom, Pluralism, and Equality (April 28, 2016). Timothy Shah, Thomas Farr & Jack Friedman, eds., Religious Freedom and Gay Rights: Emerging Conflicts in North America and Europe (Oxford University Press 2016). Available at SSRN: https://ssrn.com/abstract=2772229

Richard W. Garnett (Contact Author)

Notre Dame Law School ( email )

Room 327
P.O. Box 780
Notre Dame, IN 46556-0780
United States
574-631-6981 (Phone)
574-631-4197 (Fax)

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