Religious Expression and Exemptions in the Private Sector Workplace: Spotting Bias
Forthcoming in Current Legal Problems (2024)
Faculty of Laws University College London Law Research Paper No. 20/2024
30 Pages Posted: 31 Jul 2024
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
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