Part III | Expanded Analysis
Category C | Discrimination
Topic 12 | Religious discrimination
At times it is better to frame arguments for religious freedom around the concept of religious discrimination rather than making direct appeals to religious freedom. Efforts to protect individuals or other groups from discrimination can sometimes result in discriminatory treatment of religious individuals or groups. For audiences who are very sensitive about equality norms, it is important to highlight that unlawful discrimination includes discrimination on the basis of religion.315
Background
The atrocities committed during World War II against minorities led to greater awareness of the harmful effects of discriminatory attitudes, policies, and laws. This awareness paved the way for the recognition of universal human rights in the Universal Declaration of Human Rights (UDHR, 1948). Among these rights is the “right to freedom of thought, conscience and religion.”316 Since 1948, the number of recognized human rights has grown significantly through international treaties and other instruments.317
Post-war awareness of minority rights also paved the way for the civil rights movement in the United States, which led to landmark antidiscrimination legislation, including the Civil Rights Act of 1964318 and the Voting Rights Act of 1965.319 These laws banned discrimination based on race, color, religion, sex, or national origin in public accommodations, public education, employment, and voting. Since the 1960s, additional federal and state laws have been passed, or interpreted, to broaden the scope of antidiscrimination legislation to include categories such as age, disabilities, gender, and sexual orientation.320
Religious freedom vs. discrimination
The broadening of human rights and antidiscrimination laws can create areas where rights seemingly conflict. In the last three decades, conflicts between nondiscrimination rights and rights to religious freedom in the United States have led to heated public debates and high- profile litigation.321
As U.S. society has become more progressive in legislating antidiscrimination protections, it has trended toward promoting “nondiscrimination norms to the exclusion of the freedom norms that also exist in human rights,” including the right to freedom of religion.322 Indeed, U.S. culture today is so attuned to the lingua franca of nondiscrimination, that when some people hear the words religious freedom what they hear is discrimination by religious people. Religion is viewed as a cover for discrimination, and religious freedom is seen as a justification for discrimination. These trends demonstrate that, in attempting to eliminate racism and disparate treatment of minority groups, societies and legislatures risk devaluing religious freedom claims.323
However, those who care about discrimination should be attuned to and care about religious discrimination—understood as discrimination against religious people, not by religious people.
Religious discrimination
Some of the earliest “nondiscrimination” laws in the United States prohibited discrimination based on religion.324 More recent nondiscrimination laws also include lists of unlawful bases for discrimination, which almost always include religion as a prohibited basis for discrimination.325 Thus, it is important that people understand that nondiscrimination includes not discriminating against religious people, or people on account of their religious identities or beliefs. The U.S. Supreme Court and Congress have been careful to emphasize that the nondiscrimination rights of LGBTQ individuals, for example, do not trump rights to religious exercise.326
Scope of religious discrimination
Although international treaties recognize the right to religious freedom, and major legislation prohibits religious discrimination, much of the discrimination in the world (and even a significant measure of discrimination in the United States) is perpetrated on the basis of religion, against religious groups and religious individuals.327 Many who care deeply about discrimination on the basis of race, sex, sexual orientation, or gender identity can have significant blind spots when it comes to discrimination against people based on their religion. This may be due to a variety of reasons, including views that religious identity is less rational, enlightened, significant, permanent, or essential than other types of identity—and, therefore, less worthy of protection.328
Approaching religious freedom as a nondiscrimination norm
For audiences who are very sensitive about equality norms and nondiscrimination, it is important to highlight that unlawful discrimination includes discrimination on the basis of religion. A note of caution, however: by entering into the discourse of discrimination you can inadvertently accept or seem to accept the elevation of discrimination and the diminution of freedom as political and legal principles. We need religious freedom, not just nondiscrimination norms, if we are going to have robust protection of the right to freedom or religion or belief.
Conclusion
Law and religion scholar W. Cole Durham, Jr., asserts that, in areas where nondiscrimination rights may be in conflict, it is important to emphasize that “discrimination against a person on the basis of religion is as much a violation of dignity and human rights as [other types of] discrimination.” Indeed, no “species of discrimination is entitled to automatic priority protection vis-à-vis the other.” In reality, “deep differences, held by people with equal claims to dignity, persist, and the ultimate question” in issues of religious freedom and nondiscrimination is “not which group will prevail but how the dignity and rights of everyone can be optimized” and how nondiscrimination protections can be maximized for all.329
References
315. Toolkit Topic 12 (Religious discrimination) was drafted with contributions from Tate Frodsham, 2023 ICLRS Summer Fellow.
316. G.A. Res. 217 A (III), Universal Declaration of Human Rights, art. 18 (Dec. 10, 1948), https://www.un.org/en/about-us/universal-declaration-of-human-rights.
317. E.g., International Covenant on Economic, Social and Cultural Rights (ICESCR), Dec. 16, 1966, 993 U.N.T.S. 3 (recognizing and reinforcing rights to education, health, work, social security, and participation in cultural life); Convention on the Rights of the Child (CRC), Nov. 20, 1989, 1577 U.N.T.S. 3 (recognizing children’s rights to life, education, health, and identity); Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Dec. 18, 1979, 1249 U.N.T.S. 13 (requiring ratifying states, among other things, to include gender equality in their constitutions, pass legislation prohibiting discrimination toward women and girls, and ensure women’s reproductive rights). Note, however, that the United States has signed but not ratified the ICESCR, CRC, or CEDAW.
318. Civil Rights Act of 1964, 42 U.S.C. §§ 2000a to 2000h-6 (2024).
319. Voting Rights Act of 1964, 52 U.S.C. §§ 10301–14, 10501–08, 10701, 10702 (2024).
320. E.g., Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101–213 (2024); Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621–33, 633a, 634 (2024); Bostock v. Clayton County, 590 U.S. 644 (2020) (interpreting the Civil Right Act’s prohibition on discrimination based on “sex,” in Title VII, to encompass discrimination based on sexual orientation and gender identity).
321. E.g., 303 Creative LLC v. Elenis, 600 U.S. 570 (2023); Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. 617 (2018).
322. Brett G. Sharffs, Why Religious Freedom? Why the Religiously Committed, the Religiously Indifferent, and Those Hostile to Religion Should Care, 2017 BYU LAW REVIEW 957, 977 (2018), https://digitalcommons.law.byu.edu/lawreview/vol2017/iss4/10.
323. See Support for Nondiscrimination Protections for LGBTQ People, PRRI (Mar. 23, 2023), https://www.prri.org/research/findings-from-the-2022-american-values-atlas (showing Americans’ support for LGBTQ antidiscrimination legislation and Americans’ opposition to religiously based service refusals at or near all- time highs); Public Attitudes Toward the Use of Religious Beliefs to Discriminate Against LGBTQ People, UCLA SCHOOL OF LAW WILLIAMS INSTITUTE (June 2023), https://williamsinstitute.law.ucla.edu/publications/public-opinion-religious-exempt.
324. See, e.g., Maryland Toleration Act of 1649; Virginia Statute for Religious Freedom (1786) (codified at VA. CODE ANN. § 57-1 (2024)); U.S. CONSTITUTION amend. I.
325. See, e.g., Civil Rights Act of 1964, Pub. L. No. 88-352, tit. II, § 201(a) (codified at 42 U.S.C. § 2000a (2024)) (prohibiting discrimination in places of public accommodation based on race, color, religion, or national origin); id., tit. III, § 301(a) (codified at 42 U.S.C. § 2000b (2024)) (prohibiting discrimination in public facilities owned or operated by state or local government based on race, color, religion, or national origin); id., tit. IV, § 401(b) (codified at 42 U.S.C. § 2000c (2024)) (prohibiting discrimination in education based on race, color, religion, or national origin); id., tit. VII, § 703 (codified at 42 U.S.C. § 2000e-2 (2024)) (prohibiting discrimination in employment based race, color, religion, sex, or national origin); Fair Housing Act (1968), 42 U.S.C. § 3604 (2024) (prohibiting discrimination in the sale or rental of housing based on race, color, religion, sex, familial status, or national origin).
326. See, e.g., Bostock v. Clayton County, 590 U.S. 644, 681–82 (2020) (holding that sexual orientation and gender identity are protected by sex discrimination protections under the Civil Rights Act of 1964, Title VII, while noting that the Court was “also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution”); Respect for Marriage Act, Pub. L. No. 117-228 § 6, 136 Stat. 2306, 2306 (2022) (noting that the Act, while codifying the right to same-sex marriage, also protected the rights of religious organizations and their employees to refuse “to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a [same-sex] marriage”).
327. See, e.g., Jeffrey M. Jones, Americans Show Heightened Concern About Antisemitism, GALLUP (July 1, 2024), https://news.gallup.com/poll/646469/americans-show-heightened-concern-antisemitism.aspx; 2023 Report on International Religious Freedom: Burma, U.S. DEPARTMENT OF STATE (2024), https://www.state.gov/reports/2023-report-on-international-religious-freedom/burma; 2023 Report on International Religious Freedom: Israel, West Bank and Gaza, U.S. DEPARTMENT OF STATE (2024), https://www.state.gov/reports/2023-report-on-international-religious-freedom/israel-west-bank-and-gaza; 2023 Report on International Religious Freedom: Nicaragua, U.S. DEPARTMENT OF STATE (2024), https://www.state.gov/reports/2023-report-on-international-religious-freedom/nicaragua; David Masci, Many Americans See Religious Discrimination in U.S.—Especially Against Muslims, PEW RESEARCH CENTER (May 17, 2023), https://www.pewresearch.org/short-reads/2019/05/17/many-americans-see-religious-discrimination-in-u-s-especially-against-muslims; Islamophobia: Understanding Anti-Muslim Sentiment in the West, GALLUP, https://news.gallup.com/poll/157082/islamophobia-understanding-anti-muslim-sentiment-west.aspx (last visited Dec. 2024).
328. See Toolkit Topic 9 (Religious identity); L. Whitney Clayton, “In the Marrow of Their Bones”: The Latter-day Saint Experience of Religion as Identity, ICLRS RELIGIOUS FREEDOM LIBRARY (June 20, 2018) (Keynote Address, 2018 ICLRS Religious Freedom Annual Review, Brigham Young University), https://www.religiousfreedomlibrary.org/documents/in-the-marrow-of-their-bones-the-latter-day-saint-experience-of-religion-as-identity.
329. W. Cole Durham, Jr., et al., Response to the UN’s “Call for Input to a Thematic Report: Freedom of Religion or Belief (FoRB) and Sexual Orientation and Gender Identity (SOGI)”, ICLRS, TALK ABOUT: LAW AND RELIGION (Feb. 16, 2023), https://talkabout.iclrs.org/2023/02/16/response-to-the-uns-call-for-input.