Journal of Law, Religion and State - Volume 4, Issue 2, 2016

There are two possible ways to conceptualize the relationship between equality and religious freedom. The first is that both equality and religious freedom are derivative of some single, conceptually prior Master Value, such as dignity or self-determination: Monism. The second is that equality and religious freedom are independent, irreducibly distinct values: Pluralism. According to Monism, the Master Value’s conceptual unity means its derivative values cannot conflict. Pluralism understands rights to be susceptible of intractable conflict because they are incommensurable.

Though Monism may sound more attractive than Pluralism, the Essay identifies two difficult-to-satisfy prerequisites of Monism. First, each derivative value must be Fully Translatable to the Master Value. For if Full Translatability is not satisfied – that is to say, if a derivative value encompasses normative considerations not captured by the Master Value – then the Master Value alone cannot reliably determine how the derivative values should be reconciled or integrated, because exclusive reliance on the Master Value would omit normatively relevant considerations. Second, Monism is normatively attractive only if the Master Value also encompasses all normatively relevant political values not contained within the derivative constitutional values: the Exhaustiveness Requirement. It might be thought that the Exhaustiveness Requirement is a null set – that only considerations of constitutional status properly play a role in resolving conflicts among constitutional interests. But there are strong reasons to think otherwise: because constitutional jurisprudence in all liberal democracies allows sub-constitutional considerations of sufficient importance to restrict constitutional rights, some sub-constitutional considerations also appropriately play a role in sorting out conflicts among constitutional rights.

The difficulty of satisfying the Full Translatability and Exhaustiveness requirements is evidence in favor of Pluralism. The Essay then argues that Pluralism’s world of intractable conflict among rights is not as problematic as it may sound at first. Although resolving such conflicts is not a matter of cold logic, conceptual intractability does not rule out the possibility of principled, consistent resolutions.

The Essay then provides substantial guidance as to how rights-conflicts are best approached. Building on the work of Robert Alexy, the Essay argues there is no a priori ordinal or cardinal ranking of constitutional rights; religious freedom will not always trump equality, nor will equality always trump religious freedom. Rather, the strength of each right will be a function of facts – context matters. But the Essay also identifies an important deficiency of Alexy’s metaphor that rights-conflicts are resolved through a process of balancing, and proposes an alternative conceptualization for resolving rights-conflicts that it calls orchestration. Orchestration captures the subjective, identity-reflecting and identify-informing process of resolving rights-conflicts better than does the metaphor of balancing. Determining how the array of rights is to be orchestrated is best understood as being continuous with, rather than subsequent to, the process of constitutional decisionmaking.

The essay argues that religion is a much “fuller” concept than equality, as substantial and weighty as equality is derivative and hollow. The empty, tautological, misleading, but rhetorically powerful nature of equality was compellingly demonstrated by Peter Westen, a generation ago. It is ironic that, despite the manifest inadequacy of equality as an independent good, in the increasingly strident clashes between religionists and those asserting claims based on equal treatment, or freedom from discrimination, the former tend to lose on the whole. All rights are said to be on the same level. As the courts repeatedly pronounce, there is no hierarchy. But the empirical experience of the Kulturkampf belies that assertion. This essay seeks to return the contest to a more even playing field by demystifying some of the ascendant-like claims of equality in contemporary rights disputes.

In this paper I argue that the shift from liberty to equality in the legal regulation of freedom of religion is part of a larger process of globalization of law that can change the “quality” of the right to freedom of religion and belief However, this shift does not have the same impact on different areas of the legal regulation of freedom of religion and belief. Moreover, it needs to be contextualized and considered in the light of the different historical and cultural background of each country. For these reasons the shift from liberty to equality cannot be understood as a linear process. The forms it takes and its final outcome can be very different according to the legal fields and the countries that are taken into consideration. Europe, with its rich background of internal diversity, provides a good case-study to test the soundness of this claim.

This article analyzes the increasing tension between equality in legal discourse and the moral argument of religious communities concerning same-sex relationships. It argues that a key component is skepticism of a prominent brand of rights language. The Anglican Church in New Zealand, Aotearoa, and Polynesia is raised as an example. The article traces the debates of this group over same-sex relationship recognition and argues there has been a shift: appeals to rights language, which were previously common within this community, are now more muted. Revisionists have responded to a skeptical claim: that rights language presents a roadblock to discussion and an unsound account of the person, our common life, and public goods. The article contrasts the claims of equality typically emphasizing self-identity and self-actualization, with the attempts of a religious community to discuss competing views on the recognition of same-sex relationships within a framework of gift-giving, duty, and virtue linked to sexuality.