The Right to Freedom of Religion and the Right against Religious Discrimination: Theoretical Distinctions

International Journal of Constitutional Law (Forthcoming)

Oxford Legal Studies Research Paper

U of Melbourne Legal Studies Research Paper

17 Pages Posted: 27 Nov 2018 Last revised: 12 Dec 2018

See all articles by Tarunabh Khaitan

Tarunabh Khaitan

University of Oxford - Faculty of Law; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group; University of Melbourne - Law School

Jane Calderwood Norton

University of Auckland - Faculty of Law

Date Written: October 28, 2018

Abstract

This paper 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. 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. These differences reveal a complex map of two overlapping, but conceptually distinct, human rights which are not necessarily breached simultaneously.

Keywords: religious freedom, discrimination law, human rights law, religious interests, religious adherence, religious group membership

Suggested Citation

Khaitan, Tarunabh and Norton, Jane Calderwood, The Right to Freedom of Religion and the Right against Religious Discrimination: Theoretical Distinctions (October 28, 2018). International Journal of Constitutional Law (Forthcoming); Oxford Legal Studies Research Paper; U of Melbourne Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3274123 or http://dx.doi.org/10.2139/ssrn.3274123

Tarunabh Khaitan (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Jane Calderwood Norton

University of Auckland - Faculty of Law ( email )

Private Bag 92019
Auckland Mail Centre
Auckland, 1142
New Zealand

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