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

International Journal of Constitutional Law (Forthcoming 2019)

Oxford Legal Studies Research Paper No. 14/2019

U of Melbourne Legal Studies Research Paper No. 894

20 Pages Posted: 17 Jun 2020 Last revised: 31 Jul 2020

See all articles by Tarunabh Khaitan

Tarunabh Khaitan

University of Oxford - Faculty of Law; University of Melbourne - Law School; NYU Law School

Jane Calderwood Norton

University of Auckland - Faculty of Law

Date Written: October 28, 2018

Abstract

This article 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. This internal, committed, perspective generates a capacious and realistic conception of religious adherence, which reflects the staggering plurality of forms of religiosity (or lack thereof) as extant in contemporary societies. 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. Religious freedom is justified by the need to respect our decisional autonomy in matters of religious adherence. The prohibition on religious discrimination is justified by the need to reduce any significant (political, sociocultural, or material) advantage gaps between different religious groups. 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 2019), Oxford Legal Studies Research Paper No. 14/2019, U of Melbourne Legal Studies Research Paper No. 894, 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 )

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United Kingdom

University of Melbourne - Law School ( email )

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Australia

NYU Law School ( email )

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New York, NY 10012-1099
United States

Jane Calderwood Norton

University of Auckland - Faculty of Law ( email )

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Auckland Mail Centre
Auckland, 1142
New Zealand

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