The right to association necessarily entails the right to bar others from entering the association. The competing claims of an institution and an individual in such a situation cut to the heart of practical applications of the right to religious freedom. Alex Deagon acknowledges the tension present while arguing that the religious freedom of institutions is a cornerstone of democracy and must be protected.
Religious freedom is not merely an individual right. The right to hold and practice religion has personal, associational, communal, organisational and institutional dimensions. When individuals choose to exercise their religion through an organised religious group, states must respect the autonomy of the group to choose leaders, members and teachers, establish mechanisms of education, and to prepare and distribute religious publications. The primary mechanisms for displaying this respect are robust legal protections for associational freedom through positive rights to select and regulate, or through exemptions from anti-discrimination law.
Far from being a threat to liberal democratic states, protecting religious associations preserves the development of the structures, processes and content necessary for the progress of democracy. Democracy requires the nurture of diverse voices that inform public understanding of human advancement and the common good, and it is precisely within such faith and other communities that people can develop, nourish and deploy their voice. Religious associations in particular have visionary and didactic resources for training in discourse concerning the common good. The implication is if these communities are not allowed to self-regulate, their ideas will dissipate and democracy will be impoverished as a result. It is for this reason that there are strong affinities between religious freedom and democracy.
Of course, this does not mean institutional religious freedom is absolute. Interference by the state where necessary for public safety and the protection of other human rights or legal rights in a liberal democracy would require significant justification but restrictions may be valid. And it is true that a commitment to institutional freedom may permit internal practices and decisions that are not widely accepted or that burden individual liberty. However, a liberal society is ultimately sustained and protected by such groups, and unless individual and associational freedom is to be narrowed dramatically, these costs must be accepted.
So what kind of specific rights or exemptions should exist for religious institutions? Answering this question turns on what religious freedom means and the particular religious convictions involved. Religious freedom extends to worship, teaching, propagation, identifying conditions of membership and standards of conduct, and appointing officers, leaders and employees. Such practices are all protected, even if the organisations are formed for broader social, educational or commercial purposes. For many people and organisations, such purposes are also deeply religious.
These insights provide a persuasive basis for allowing, for example, religious educational institutions the autonomy to choose employees who share their doctrines. A religious educational institution may want to preserve their distinctive identity as religious in order to be a community which approaches questions of education from that particular religious perspective. Indeed, they may see the practice of education itself as a religious injunction which is to be performed in accordance with their religious convictions. Maintaining this religious identity allows them to present a unique perspective in a democracy, and legally compelling them to accept employees with views or conduct inconsistent with that perspective undermines their religious identity and, consequently, their democratic position as equal and valued citizens.
The ability to ‘discriminate’ in this context is not only a function of religious freedom, but also preserves equality between religious and non-religious educational institutions. Generally applicable laws, such as anti-discrimination legislation, fall disproportionately or unequally on those whose religious practices conflict with them. Those who do not engage in religious belief or practice are not subject to the same practical restrictions resulting from the laws. Just as it would be disproportionate for anti-discrimination law to prevent a political party from discriminating as to its membership on the basis of political opinion, so it would be disproportionate for anti-discrimination law to prevent a religious institution from internally regulating its membership on the basis of religious belief and practice. Hence, any exemptions are necessary in order to preserve equality in the sense that exemptions are required to address a situation where there is an unequal or disproportionate application of law.
As such the need to accommodate religious practices can be traced to equality itself. The need to respect diversity and manage peaceful co-existence of difference requires respecting religion. This proposition might well sit awkwardly with those who do not adhere to the doctrines of the particular religious institution. Nevertheless, if we desire a healthy democracy which genuinely and equally tolerates freedom to differ, we must allow associations the freedom to publicly conduct themselves in such a way as to maintain their unique identity on their terms. Only this will facilitate a true democracy – the robust, collective political encounter of perspectives for consideration and critique by citizens so they are fully informed about their options to pursue the public good.
A recent case illustrating this point has come out of the Supreme Court of Canada: Trinity Western University v Law Society of Upper Canada. In this case Trinity Western University, a private Christian college seeking accreditation of its law school, had a community Covenant prohibiting sexual activities outside heterosexual marriage in accordance with traditional Christian doctrine. The Law Society denied accreditation on the basis the covenant was discriminatory against LGBT persons and TWU eventually appealed to the Supreme Court. The Court held 7:2 that the denial was reasonable and proportionate. The scathing joint dissent identified that ‘the decision not to accredit TWU’s proposed law school is… a profound interference with the TWU community’s freedom of religion… In a liberal and pluralist society, the public interest is served, and not undermined, by the accommodation of difference’.
Trinity Western University is a private institution which is entitled to set a standard by which its community members will abide, as a function of religious freedom. The decision not to accredit them interferes with their religious freedom by effectively preventing them from running a law school in accordance with their religious convictions. No LGBT person, or any other person, is compelled to attend the institution and there are many other options; the accommodation of allowing accreditation of a private Christian law school with a ‘discriminatory’ Covenant is reasonable and proportionate. The presence of such a school and its ensuing graduates allow for the development and articulation of distinct views which will enrich the democratic process. As the dissenting justices so aptly put it, ‘the unequal access resulting from the Covenant is a function not of condonation of discrimination, but of accommodating religious freedom, which freedom allows religious communities to flourish and thereby promotes diversity and pluralism in the public life of our communities’. The fact the majority of the Supreme Court did not see this is concerning for the future of liberal democracy.
Religious institutions need the space to independently form and develop unique perspectives which they can contribute to public discourse. This space requires strong legal protection of associational freedoms and associational autonomy through, for example, exemptions to anti-discrimination legislation. Though there is no doubt a cost to equality through allowing such exemptions, the cost to democracy is far greater by not allowing them. Reasonable accommodations of difference are part of a flourishing, pluralist community, and we must learn to live together harmoniously with our differences if the idea of liberal democracy is to retain currency today.
Note: This article is part of our ‘Real-World Approaches: Freedom of Religion or Belief‘ series
Note: This piece gives the views of the author(s), and not the position of the LSE Religion and Global Society blog, nor of the London School of Economics.