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Abstract
This article offers a normative analysis of the state of religious accommodation law in the UK. It identifies five ‘normative gaps’ in the law where the legal discussion could benefit by employing the analytical lens of political theory. These gaps concern (i) what sorts of religious (or non-religious) beliefs should enjoy protected status; (ii) how the law should address issues of individual choice and responsibility; (iii) whether there is a genuine distinction between manifesting and being motivated by one’s beliefs; (iv) what sorts of interests count against accommodation claims; and (v) the relationship between human rights and discrimination law, the two pillars of religious accommodation law in the UK. The first half of the article sets out these issues, while the second half offers some preliminary conclusions and ways of resolving them. The Conclusion traces the contours of a satisfactory theory of religious accommodation law.
Notes
1. Sandberg (Citation2011) is an excellent commentary on the relationship between law and religion in the UK. I have also drawn on Doe (Citation2011), Poulter (Citation1998), Rivers (Citation2010) and Vickers (Citation2008).
3. The UK Equality Act defines belief as ‘any religious or philosophical belief’ (2010, Pt 2, Ch. 1, s. 10).
4. On the ‘coherent view’ criterion see X. v. Germany (1981) 24 D&R 137; on cogency and seriousness, see below.
5. Pretty v. United Kingdom (2002) 35 (EHRR) 1. One might think that Diane Pretty’s belief that her spouse be allowed to take her life to save her years of suffering from Motor Neurone disease is a coherent response to a fundamental problem.
6. UKHL 15 (2005) 2 A.C. 246.
7. Ibid, para 23. The House of Lords ruled that the Williamson applicants’ beliefs met these standards, but they rejected the case under Article 9(2) on the grounds that protecting children from physical punishment over-rode any manifestation of Christian beliefs which included corporal chastisement of them.
8. Grainger plc v. Nicholson UKEAT/0219/09.
9. Grainger plc v. Nicholson UKEAT/0219/09, paras 27–28.
10. UKHL 15 (2006).
11. The jilbab is a long gown, sometimes worn by Muslim women, while the shalmar kameez consists of loose-fitting trousers and tunic.
12. ET 2201867/07 (2008).
13. Eweida and others v. the UK – 48420/10 36516/10 51671/10 59842/10 – HEJUD [2013] ECHR 37.
14. Paras 109, 83. This change in ECtHR jurisprudence is highlighted by McCrea (Citation2014).
15. Arrowsmith v. United Kingdom (1981) 3 EHRR 218.
16. Eweida and others v. the UK, para 58.
17. Ibid, para 82.
18. Ibid, para 32–33.
19. Indeed, Chaplin took issue with the distinction between acts required by religious belief and those which were not, arguing that it set too high a threshold for religions such as Christianity which consist of fewer formal requirements than others (see ibid., para 67).
20. ET 1,801,450/06 (2006); UKEAT 0009 07 30,003 (2007).
21. See the discussion in Laborde (Citation2014, pp. 52–53). The other two cases are Wisconsin v. Yoder (1972) 406 U.S. 205 and Oregon v. Smith, 494 U.S. 872 (1990).
22. Sherbert v. Verner (1963) 374 U.S. 398.
23. I defend a view of self-respect as an appropriate basis for accommodation claims in Seglow (Citation2017).
24. Ahmad v. UK (1982) 4 EHRR 126.
25. Ghai v. Newcastle City Council (2009) EWHC 978.
26. Ghai v. Newcastle City Council (2009) EWHC 978.
27. The Equality Act also permits some discrimination, for example religious organisations constrained right to discriminate in favour of members of their faith: a Muslim Iman cannot become a Catholic priest, for example, and nor (legally) can a woman.
28. See the US case of Fraternal Order of Police Newark Lodge No 12 v. City of Newark 170 F.3d 359 (3d Cir. 1999).
29. There is only the uninformative sense of discrimination in which Christians are picked out from others. But that is the case in all non-comparative wrongs.
30. Wintemute (Citation2014) argues that religious accommodation cases (including all those in Eweida and others) can best be evaluated through the lens of indirect discrimination.