Religious Expression and Exemptions in the Private Sector Workplace: Spotting Bias

30 Pages Posted: 31 Jul 2024

See all articles by Myriam Hunter-Henin

Myriam Hunter-Henin

University College London - Faculty of Laws

Date Written: July 01, 2024

Abstract

Courts tasked with ruling on religious freedom claims in the private sector workplace have been faced with the following challenge: too weak a protection of religious freedom and it will become meaningless; too strong, and individual freedom will be stifled. In recent years, courts on each side of the Atlantic have respectively leant towards each of these two extremes. In Europe, courts have afforded minimalist and, as I will argue, too restrictive protection to religious interests. Whether out of deference to state constitutional traditions or economic interests, courts in Europe have often undermined the protection of religious freedom. Conversely, in the United States, the United States Supreme Court has, in recent cases, granted a maximalist and, as I will argue, excessive protection to religious interests. The article will demonstrate the flaws of each approach. It will unravel the main three types of bias which underlie these extreme positions, namely the state, the economic and the religious bias.

Keywords: religious freedom, judicial reasoning, bias, ordoliberalism, laïcité, Achbita, Commune d'Ans, Hobby Lobby, 303 Creative

Suggested Citation

Hunter-Henin, Myriam Caroline, Religious Expression and Exemptions in the Private Sector Workplace: Spotting Bias (July 01, 2024). Forthcoming in Current Legal Problems (2024), Faculty of Laws University College London Law Research Paper No. 20/2024, Available at SSRN: https://ssrn.com/abstract=4911741

Myriam Caroline Hunter-Henin (Contact Author)

University College London - Faculty of Laws ( email )

Bentham House
4-8 Endsleigh Gardens
London, WC1E OEG
United Kingdom

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