Religious Freedom and Equality: A Tense Relationship
26.04.2023
Religious freedom is essential to a free society. It is often called a ‘fundamental’ freedom, for it goes to the very foundation of a person’s dignity as they identify with particular religious beliefs and live ethically as an individual and as part of a community of belief. For many, religion provides a conceptual basis for political, moral, cultural and social beliefs and religious freedom grounds other important freedoms like freedom of speech and freedom of association. This leads people to practice and speak about their beliefs by associating with like-minded people to influence the community towards their view of the good. Religion can therefore be constitutive of a person and a community. The idea of equality is also central to the functioning of the modern liberal democracy. If public or private entities discriminate by treating a person or group unequally in an arbitrary way which unjustly targets particular intrinsic attributes of that person or group, this too is an affront to dignity which undermines fundamental freedoms all people ought to enjoy by virtue of who they are as people.
There is, for all practical purposes, universal agreement that freedom and equality are fundamentally important imperatives which should be pursued. The problem is these imperatives can conflict. The idea of religious freedom and its complex relationship with discrimination has divided Western liberal democracies. There is deep disagreement about whether religious individuals or groups should order their lives and conduct their affairs in accordance with their religious convictions when this may involve discrimination on the basis of protected attributes such as sex, sexual orientation and gender identity.
Though tension is an inevitable feature of a democratic society in which different views exist, views are so polarised and often acrimonious that advocates simply talk past each other and do not charitably engage to work out a solution. Against those who despair that the conflict is intractable, many scholars from different perspectives yearn for a resolution. The pragmatically pluralist or liberal laissaiz-faire ‘live and let live’ approach is no longer sufficient. A new, conceptually robust, principled approach that provides shared premises for more beneficial interactions, and explicitly engages with the sometimes-competing imperatives of religious freedom and equality, is necessary to facilitate harmonious relations between religious and non-religious communities in a liberal democracy.
In my new book, A Principled Framework for the Autonomy of Religious Communities: Reconciling Freedom and Discrimination (Hart Publishing, 2023), I give substantive content to such calls through applying theological virtues such as dignity, humility, patience, generosity, kindness, forgiveness and compassion to create a peaceful coexistence of difference. The purpose of my book is to deploy these theological virtues to reconcile the tensions between religious freedom and equality.
Shared Virtues: Addressing the Tensions
Dignity and forgiveness are particularly relevant virtues. Dignity recognises the inherent worth of all humans as created in the image of God. Forgiveness entails a willingness to permit genuine difference, even profound moral disagreement. Dignity and forgiveness involve loving neighbour as self by aiming to persuade to what is true and good as Jesus did, while also accepting freedom to reject and disagree with our most deeply held convictions. As such, my hope is all parties who seek to live together in peace will see this as a desirable, robust and principled framework which will catalyse the reconciliation of freedom and discrimination.
There may be concerns about the theory’s basis in Christian thought, and whether it can account for religious diversity and appeal to non-Christian communities. This connects to a concern regarding how the theory can address the problems of a multi-religious liberal democracy. However, there are significant challenges for the traditional secular liberal approach to addressing these problems as well. My book adopts a new theological approach which proceeds on the basis of shared premises. The theological virtues which underpin a peaceful coexistence of difference are also shared political virtues that all perspectives can agree with; that is, love, kindness, humility and patience. The appeal for non-Christian religious communities is a conceptual approach which is friendly to religion (unlike the secular liberal account) and aims to promote harmonious coexistence, which addresses the problem of religious diversity. The appeal for non-religious communities is a framework which provides a more deeply coherent (and so more universally sustainable and acceptable) account of shared political virtues than the secular liberal account, and concrete ways to implement these in areas of political tension.
An example of such political tension is the question of whether businesses owned by religious people or organisations (what I call ‘religious vendors’) are actually religious ‘bodies’ capable of attracting religious freedom protections in the way churches and religious schools tend to do. Some argue that since these vendors and businesses exist for commercial gain and are not engaging in ‘religious’ practice or offering ‘religious’ services, they should not be categorised as religious bodies (and consequently, they should not attract protection under exemptions to anti-discrimination law or religious freedom statutes). Another tension considers how far the autonomy of religious communities extends. This involves consideration of whether religious freedom is public or private, and relatedly, whether the state should interfere with internal ordering of lives and conduct of affairs within religious organisations when this may involve discrimination against proposed members or the broader public. A final tension is the relative weight which should be given to religious freedom concerns compared to equality concerns. How can the two be balanced?
My book addresses these tensions. I argue that religious freedom collapses the spurious secular distinction between public and private; the practice of religion permeates all parts of life. This principle applies to churches and faith schools, for example, but also applies to religious vendors. The reason why religious vendors are religious and practicing their religion in performing their duties (just as much as churches or schools) is because for many religious people, religion is not just a discrete compartment of their life that they display only on special occasions. For many religious people, their religion constitutes their beliefs, character and actions – their very identity. It is practiced through and entailed in everything they do. There is nothing intrinsically anti-religious about engaging in commercial ventures. The only reason a contrary view has become prominent is due to secular separationist tendencies which assume a spurious and damaging public/private divide for religious people and religious practice, which in effect marginalises religion by relegating it to an imaginary private sphere.
Consequently, I argue that religious vendors are entitled to exercise their religious conscience in their commercial pursuits (including refusing services), but only in very limited situations. The book sets out narrow and clear exemptions. The religious vendor must be genuinely religious, and must object to participating in a significant moral act due to religious conscience, and there must be a direct connection between the act and the issue of conscience, and there must be an equivalent alternative reasonably available. The religious vendor should clearly outline their policy, perhaps in website terms and conditions. This is a set of cumulative requirements which are difficult to meet. There will not be many exemptions granted on this basis. Therefore, equality will be upheld while simultaneously providing genuine religious objectors, such as those vendors who were the subject of the Masterpiece and Ashers cases, with the freedom to participate in and benefit society without compromising their religion.
Reconciling Freedom and Discrimination
Seeing religious freedom and equality as dichotomous is counterproductive. Asking how to balance the tense relationship between religious freedom and equality is actually the wrong question. We should be seeking ways to support both through reasonable accommodations of difference, which will in turn create peaceful coexistence in accordance with the theological virtues.
My book discusses the ideas of exemptions from equality law and positive associational rights for religion. Positive associational rights (for example a right for religious educational institutions to select or prefer staff on the basis of adherence to the religious doctrines and practices of the institution) provide a better framing of the issues for the purposes of reconciling freedom and equality. Where exemptions give the perception of religious freedom challenging or undermining equality, positive associational rights for religious freedom support freedom without directly challenging equality. In fact, positive associational rights frame the religious rights of public participation and association as part of a general pursuit of equality which upholds the intrinsic and holistic dignity of all people.
Where there is a conflict between the doctrines or practices of a religious group, and the doctrines or practices of an individual within that group or seeking to be part of that group, the intrinsic internal freedom of the group prevails, providing the individual with the freedom to leave the group and join or form another group. For example, with respect to churches, faith schools, and other like religious associations, these communities should have their autonomy protected through the legislation of positive associational rights which enable these communities to select and preference their leaders and members in accordance with the doctrines and practices of the religious community. With respect to religious vendors, the narrow and clear exemptions discussed above can be alternatively framed as narrow and clear positive rights for religious vendors not to creatively participate in significant moral acts (such as same-sex marriage).
My analysis therefore reveals several elements of a principled framework. First, a principled framework must be flexible and diverse to properly reconcile freedom and equality in religiously pluralist societies, and between different kinds of societies. For some polities, various types of establishment may be appropriate to best protect the autonomy of religious communities and equality for peaceful coexistence. For others, pluralism may be suitable. Secularist separationism should be rejected due to its marginalisation of religion and the consequent impossibility of enabling difference through the autonomy of religious communities. Equality is also undermined by the discriminatory treatment of religion. Second, a principled framework should, in accordance with the theological virtues, acknowledge the intrinsic dignity and value of all people among, between and outside religious communities and LGBT communities. Religious freedom and equality are mutually constitutive. They both ultimately pursue public good though diverse means. This framing is essential to building the trust and common ground which is necessary for a peaceful coexistence of difference which protects both religious freedom and equality.
Conclusion
This post explains how my book attempts to reconcile religious freedom and equality. This necessarily entails the preservation of difference, or diverse pursuits of the good. Specifically, religious bodies should have positive associational rights which facilitate their autonomy, yet which are appropriately limited to uphold equality. These protections ought to consistently frame religious freedom and equality as important goods to be pursued together, but in diverse ways – rather than entering a zero-sum game where one always dominates the other.
My book demonstrates that in areas of tension, reasonable accommodations of difference are almost always possible without undermining the fundamental goals of freedom and equality. We can realise these accommodations by the cultivation and practice of theological virtues such as kindness, patience, humility and love. Against such virtues there is no law, for they are the path to living peacefully together despite intractable moral difference.
Dr Alex Deagon is a Senior Lecturer in the School of Law, Queensland University of Technology.
Suggested citation: Alex Deagon ‘Religious Freedom and Equality: A Tense Relationship’ on AUSPUBLAW (26 April 2023) <https://www.auspublaw.org/blog/2023/4/religious-freedom-and-equality-a-tense-relationship/>