Restoring Freedom of Conscience (original) (raw)
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Perspectives on Freedom of Conscience and Religion in the Jurisprudence of Constitutional Courts
2001
This article1 attempts to summarize national reports on various aspects of religious freedom. Following a brief introduction in Part I, Part II outlines the approaches of constitutions and constitutional jurisprudence to determine relations between church and state. Part III addresses the ways of understanding the principle of freedom of religion, followed by Part IV which presents various principles of equality in reference to the position of churches and religious groups. Part V outlines the forms of cooperation between church and state, focusing in particular on education and religion teaching. This article is based on information and reports concerning the case law of constitutional courts in several European countries, including Austria, Belgium, Belarus, Bulgaria, the Czech Republic, the Federal German Republic, France, Hungary, Italy, Liechtenstein, Lithuania, Macedonia, Poland, Portugal, Romania, Russia, Slovenia, Slovakia, Spain, Switzerland, and Turkey. I. INTRODUCTION A d...
The Interrelationship between Freedom of Thought, Conscience, and Religion and the Rule of Law
Journal of Law and Religion
The article explores the connection between the rule of law and the right to freedom of thought, conscience, and religion from an empirical and theoretical perspective. The author posits that the two are not merely interdependent, but that freedom of thought, conscience, and religion is foundational for embedding the rule of law because a state needs to facilitate freedom of thought, conscience, and religion to encourage the exploration of virtue to inform consensus around society’s common norms. This virtue-building role of freedom of thought, conscience, and religion gives the human right its foundational role for creating the conditions required for embedding the rule of law. This conclusion is drawn from Martin Krygier’s analysis of the sociological conditions necessary to embed the rule of law and a comparison of the worldwide rule of law, religious freedom, and happiness indexes. To support a universal approach to the human right and to underpin the identified essentiality of ...
FREEDOM OF RELIGION AND FREEDOM OF CONSCIENCE IN POSTSECULAR SOCIETIES
In this paper, I argue that the diversity characteristic of postsecular societies challenges the special legal status of religion and confronts liberal egalitarians to a dilemma. I first argue that there are no good reasons to single out religion for special legal treatment and to make conventional religious convictions the only legitimate candidates for exemptions to neutral laws of general applicability. Then, I show that once they acknowledge this point, liberal egalitarians find themselves at a crossroad, contemplating two seemingly unattractive options. On the one hand, they can expand practices of religious exemptions so as to offer similar legal protection to non-religious commitments. However, many think that this runs the risk of an uncontrollable proliferation of exemptions. On the other hand, liberals can adopt a deflationist strategy and deny that the protection of freedom requires granting exemptions to the law, for both religious and secular commitments, thereby abandoning practices of exemptions which are sometimes needed to treat individuals with equal concern. I show that this dilemma is central in the recent accounts of religious freedom proposed by Ronald Dworkin and Brian Leiter, who both adopt the deflationist approach. I argue that fears related to the proliferation of exemptions are exaggerated and that citizens of postsecular societies are in no rush to turn their back to the expansionist approach to exemptionism.
2019
In this article Judge De Gaetano contributes towards a better understanding of article 9 ECHR (freedom of conscience and religion). The article covers judgments dealing with matters of conscience regarding head-scarves and wearing apparel, as well as conscientious objections to military service and the conflict between secularism and the freedom to outwardly manifest one's religious beliefs. The article deals with matters which have resulted in dismissal of employees because of their adherence to religious belief or lack of it. Issues dealt with include whether an organist in a Catholic church can be dismissed if he conducts an extra marital affair and whether such dismissal is proportionate when it refers to the main communications officer of the Mormon society; whether a British Airways desk officer can wear a cross in necklace and to what extent states are allowed a wide margin of appreciation in such matters; and whether a marriage registrar can be forced to celebrate civilly a union between persons of the same sex. *
On the issue of freedom of conscience
E3S Web of Conferences
This article examines the problem of the legal relationship of the state to religion, religious organizations and believers on the basis of the theoretical results of domestic and foreign scientific research. An analysis of the formation and development of modern materials on the problem of freedom of conscience and religious organizations in the sociolegal literature is presented. Protestantism laid the foundation for the idea of freedom of conscience, i.e., the religious freedom of the individual in the context of human rights. Avtorami suggests an interpretation of the definition of “conscience” and “freedom of conscience” through the prism of religion as the right of believers and analyses the current Law of the Republic of Uzbekistan and the CIS “On freedom of conscience and religious organizations” in the context of state-religious organization relations. Conscience as an ethical category has a purely personal character, expressing the inner spiritual and psychological "I...
Challenges to the freedom of thought, conscience, and religion
International Scientific Conference: Towards a Better Future: Human rights, Organized crime and Digital society", 2020
In the pluralist age of human rights, the fundamental human freedom of thought, conscience, and religion is easily dismissed by a number of third generation human rights. Religious opinions that differ from liberal worldview are disregarded as either irrelevant or offensive and are limited to a narrow private sphere. Examining Rawls' concept of private faith and Sandel's and Wolterstorff's concepts of public faith, the article will address the question: what is the meaning of religious freedom if religious convictions have little or no effect in public life? Focusing on the case of Christianity, this article will examine the fluctuating position of the Church seen through early Christian authors such as Tertullian and Augustine regarding this issue. While the former strongly advocated for protection of the fundamental human right of worship, the latter called for sanctioning of polytheists in the Roman Empire. Using mainly descriptive and interpretative method, this article will offer some new perspectives of arguments in favor of freedom of thought, conscience and religion.
Shaun de Freitas review of Religion, Liberty and the Jurisdictional Limits of Law (Book Review)
Stellenbosch Law Review, 2018
Limits of Law (2017) Toronto: LexisNexis 430 pp $110-00 (soft cover) ISBN: 9780433495628 Religion, Liberty and the Jurisdictional Limits of Law (RLJLL) comprises a highly topical study by mainly legal scholars and practitioners with the focus on the protection of freedom of religion against the background of furthering diversity. The Preface briefly addresses the meaning of religion and also reminds of the entrenchment of religion in all of reality. This is followed by a Foreword that aptly sets the tone and lays the foundation for the remainder of the sixteen chapters with its emphasis on the limits of the law (which in turn are categorised into five parts). Part I critiques "religion in liberal thought" and calls for a reconsideration of the relationship between law and religion against the background of the affirmation of diversity as a legal good whilst taking cognisance of the view that the law is preceded by rights-rights that are claimed by religious and non-religious believers alike. The proposal for a rebuttable presumption in favour of religious autonomy and diversity is worthy of note; and a module conducive to accommodative liberalism (as opposed to "convergence liberalism", which harbours the view that rational consensus will eventually overcome moral disagreement) is argued for, which recognises the strictures of the law as well as the inextricable relationship between religion and the public sphere. Part II focuses on the "autonomy of religious associations" and ranges from the nineteenth century political scientist and historian, namely Alex de Tocqueville's insights regarding the importance of religious associations for a democracy, to a critical yet informative analysis of community and corporate models related to the freedoms of associations. Perspectives on European Court of Human Rights jurisprudence in the context of the protection of collective religious interests as well as observations related to the Canadian courts' balancing of interests related to civic engagement are critically assessed. Public as well as religious institutions are furthermore critically analysed against the background of so-called neutrality Part III relates to "private choices with public consequences" and includes arguments in support of the recognition of conscience claims with special focus on the debate over same-sex equality laws. With the growing number of challenges confronting the judiciary of late relating to the clash between the right to freedom of religion and lesbian, gay, bisexual, transgender and queer ("LGBTQ") rights, this section also proves to be highly relevant and contributes towards insights related to the protection of the conscience. Part IV critically investigates "the clash of rights" which especially brings to the fore the dangers accompanying attempts at balancing rights such as is evinced in the prioritisation of subjective interpretations of equality over those of religious freedoms. Simplified forms of judicial method that favour only certain rights in the balancing exercise are also identified and scrutinised 2018 (3) StellLR 493
The European legal tradition on freedom of religion has mainly evolved as a product of two primordial conceptions of religious freedom – the Catholic Doctrine and the French Laicité - . Moreover, also John Rawls’s Political Liberalism offers a normative claim on the proper legal design of religious freedom in constitutional democracies. I analyze two landmark decisions of the ECtHR – Lautsi v Italy and Leyla Şahin v Turkey – which deal, respectively, with the institutional and individual dimensions of religious freedom. I examine the conception of religious freedom affirmed by the ECtHR in these cases, and critically analyze it in light of the Catholic doctrine. I argue that the Court’s reasoning in Leyla Şahin v Turkey is at odds with the Catholic understanding of the individual right to freedom of religion. I argue further that, while the first Lautsi decision was contrary to the catholic view on the institutional relations between Church and State, the decision of the Grand Chamber generally respects it.
A Right to Religious and Moral Freedom?
International Journal of Constitutional Law, 2014
This essay develops a normative argument against Michael Perry's approach to religious freedom. According to Perry, the right to religious freedom should be expanded into a claim upon liberal democracies to religious and moral freedom. In other words, one should be free to practice one's morality, whether or not it is grounded in the transcendent. This paper argues instead that religious freedom cannot be protected by the same legal paradigm as moral freedom because religion and morality affect legal systems in different ways. Religious freedom and moral freedom are different ontological realities and therefore require different treatments under law. Religion is detachable from political communities; morality is not: political communities are by definition moral communities. Perry's expansion promotes moral permissive-ness and slows and hinders the right development of religious and moral values in political societies. His approach ultimately identifies moral freedom with free morality and coercively imposes a particular model of morality: namely, a liberal one. In place of Perry's expansion, this paper proposes a new expansion of religious liberty along different lines: a more specific legal distinction between the " right to religion, " on the one hand, and moral freedom of conscience , on the other.