Religious Freedom and Nondiscrimination

30 Pages Posted: 13 Mar 2019

See all articles by Thomas C. Berg

Thomas C. Berg

University of St. Thomas, St. Paul/Minneapolis, MN - School of Law

Date Written: 2018

Abstract

This essay explores two theses about the relationship between religious freedom and nondiscrimination. First, nondiscrimination is a crucial component of religious freedom: such freedom must be equal for all religious positions. Religious freedom for some faiths more than others is not truly religious freedom: rather, it is a policy for advancing the favored faiths or their sociopolitical goals. We see this tendency operating today, for example, in that some conservatives speak strongly of religious freedom but oppose equal freedom for Muslims. The essay discusses (examining the Trump travel ban and other disputes) why that attitude is wrong in principle and misguided, as a matter of prudence, for social conservatives' own religious-freedom claims. The essay also discusses the prevalence of hostility toward conservative Christians.

Second, religious freedom is a value independent of nondiscrimination. Equality for various faiths is little comfort without a baseline guarantee of actual freedom, including room to exercise religion aspects of life beyond worship: charitable work and daily life. Moreover, sometimes the values of religious freedom and nondiscrimination come in conflict: when they do, we must give weight to both of these important values, and in particular, not simply subordinate the value of religious freedom to the value of nondiscrimination. The essay gives reasons for protecting religious freedom as well as nondiscrimination, outlining parallels between the constitutional claims of LGBT persons and those of religious objectors to same-sex relationships. Finally, the essay suggests means for giving substantial protection to both rights.

Keywords: LGBT rights, religious liberty, religious accommodation, same-sex marriage, free exercise of religion, neutrality toward religion, equal protection, sexual-orientation discrimination, animus, suspect classification, heightened scrutiny, anti-Muslim, Islamophobia, anti-sharia laws, Masterpiece Cakesh

Suggested Citation

Berg, Thomas Charles, Religious Freedom and Nondiscrimination (2018). 50 Loyola University Chicago Law Journal 181 (2018); U of St. Thomas (Minnesota) Legal Studies Research Paper No. 19-03. Available at SSRN: https://ssrn.com/abstract=3351466

Thomas Charles Berg (Contact Author)

University of St. Thomas, St. Paul/Minneapolis, MN - School of Law ( email )

1000 La Salle Avenue
Mail # MSL400
Minneapolis, MN 55403-2015
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
60
Abstract Views
244
rank
359,422
PlumX Metrics