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  5. Volume 10, Issue 1, 2022

Journal of Law, Religion and State - Volume 10, Issue 1, 2022

Volume 10 Number 1

Volume 10, Issue 1, 2022

  • Articles

      • Wedding Crashers: an Epistemological Model for When Refusal to Provide Service to Protected Groups Is Not Wrongful Discrimination

        https://doi.org/10.1163/22124810-10010001
        Abstract

        The question of the relation between wrongful discrimination and the freedom of conscience and religion has been the subject of many debates over the past decade and has occupied both courts and the public. The most well-known legal case in that regard is likely , in which a Colorado bakery owner refused to bake a wedding cake for a homosexual couple and was sued for violating the State’s Anti-Discrimination law. Recently, the Supreme Court of the U.S has agreed to hear yet another Colorado case, v. , in which a website designer wanted to post a message saying she will not design websites for same-sex weddings.

        The purpose of our article is to point to a significant distinction between a refusal to serve clients on the basis of their race, gender, sexual orientation, etc., and a refusal to serve them because such service requires the providers to engage in activities or projects to which they deeply oppose. We think the latter case, sometimes, might not at all be discrimination. Importantly, we distinguish between a deep objection to the content of the service or product requested and a rejection of the client because of her characteristics.

        How can a supplier prove that his or her refusal to serve a client belonging to a “protected class” is based on the content of the product or service requested and not on the client’s characteristics? We formulate a two-prong test that courts in the US and UK have implicitly adopted. We ask, first, whether the supplier would refuse the same service to a client not belonging to the protected class, and second, whether the supplier would serve the same client (belonging to a protected class) with other products and services. If the answer to both questions is positive, then the supplier’s refusal is not wrongful discrimination because it shows an objection to the product or service requested and not a rejection of the client. In practice, this test is not always easy to apply. We therefore developed an epistemological model to substantiate the conditions that may help providers persuade the courts that their refusal to serve a client stems from the content of the request, not from the client’s identity.

    • Freedom of Religion, Religious Employment, and Conflicts of Rights: Europe at a Crossroads

      https://doi.org/10.1163/22124810-10010004
      Abstract

      Religious communities and churches have traditionally been significant sources of employment. Many European countries have found ways to integrate into their legal systems particularities of religious employment that are alien to other areas of labor law. Until recently, constitutional courts have been reluctant to question the right of churches to define the occupational requirements of their secular employees, but the recognition of church autonomy in religious employment has not been straightforward in the European Court of Human Rights and the Court of Justice of the European Union.

      This paper provides some reflections on where Europe may be headed in this field, and whether well-tested principles, such as denominational neutrality, may offer some insight on how to address the still unresolved conflict between important human rights: freedom of religion and the right to autonomy of religious employers, and the individual fundamental freedoms of their employees.

    • Religious Values in Secular Institutions?

      Author:  Michael J. Broyde
      https://doi.org/10.1163/22124810-10010002

      Universities that are incorporated under a secular charter face a number of challenges in claiming religious exemptions or religious character. These secularly chartered but religiously motivated universities (SCbRMU) often are attempting to get the best of both worlds, by maintaining entitlement to government funding that is exclusive to secular entities while also claiming religious protections. In this paper, Yeshiva University () is used as a case study of the difficulties faced by these institutions. has been sued by a group of students and alumni for refusing to authorize an official club, and has argued that it is entitled to a religious exemption from New York City anti-discrimination laws. This paper discusses the history of and its relationship with rights, as well as relevant case law concerning religious education, discrimination on the basis of sexual orientation, and religious exemptions. The paper concludes with a discussion of the legal options a SCbRMU has when faced with these issues, including shedding part of its identity (either the religious or the secular), maintaining the status quo, and defiance. Ultimately, none of the options are ideal for such an institution, and the nature of the conflict for , when discrimination against funding religious institutions leads to the financial need for a secular charter, and the school’s secular status then leads to difficulty receiving a religious exemption from anti-discrimination laws, show that society is not tolerant of ambiguity in this scenario, and institutions are better served if they avoid these contradictions.

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