Religion in Human Rights Law: A Normative Restatement

International Journal of Constitutional Law (Forthcoming)

Oxford Legal Studies Research Paper

U of Melbourne Legal Studies Research Paper

16 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

In a paper published in the preceding issue of this journal, we focused on the theoretical differences between the right to freedom of religion and the right against religious discrimination. We explained that the right to freedom of religion is best understood as protecting our interest in religious adherence (and non-adherence), understood from the committed perspective of the (non)adherent. On the other hand, the right against religious discrimination is best understood as protecting our non-committal interest in the unsaddled membership of our religious group. This follow-up paper builds upon these theoretical insights to show how key doctrinal implications follow from this distinction for the respective scope of the two rights, whether they may be claimed against non-state actors, and their divergent tolerance levels for religious establishment.

Keywords: freedom of religion, religious anti-discrimination, horizontality, religious establishment, legal theory, philosophy of law

Suggested Citation

Khaitan, Tarunabh and Norton, Jane Calderwood, Religion in Human Rights Law: A Normative Restatement (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=3274124 or http://dx.doi.org/10.2139/ssrn.3274124

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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