Religion, Human Rights, and the Workplace

Table of cases Acknowledgments Introduction: two traditions of balancing rights PART I Freedom of religion in the United States and the European Court of Human Rights 1 The first freedom: religious free exercise in US federal courts 2 Tiered review in US free exercise cases Rational basis scrutiny and the emerging MFN standard The mechanics of strict scrutiny Determining “substantial burden” Determining “compelling state interest” Narrow tailoring and the “least restrictive means” test Intermediate scrutiny as an ad hoc range of standards Balancing as a misnomer as applied in US courts 3 Religious freedom in the European Court of Human Rights The Convention system The protection of religious freedom Religious symbols and clothing Conscientious objection Autonomy and liberty of religious institutions 4 The mechanics of European proportionality analysis The traditional test Determining the legitimacy of aims Determining suitability of limitations on free exercise Determining necessity Proportionality stricto sensu The ECtHR’s modified approach to proportionality Legitimate aim Necessary in a democratic society and the final balance PART II Religion in the workplace 5 Religious conflicts in the workplace: symbols, speech, and moral complicity Common challenges and diverging approaches to accommodation The debate over religion versus other beliefs: is religion special? The role of the judiciary in granting exemptions for religion or belief Contrasting approaches to religious accommodation in the workplace The treatment of religious adornment: clothing, grooming, and symbols Adornment cases involving the public image of the employer The fact-sensitive approach to health and safety issues A trend towards convergence in religious adornment cases? Proselytism and religious opinions at work Compelled expression and complicity claims Contrasting traditions of compelled expression Complicity and the behavior of third parties A disparity in focus in regard to complicity Convergence and polarization in the types of claims 6 Religious freedom and three types of employer Cases involving government or government-mandated employers Cases involving religious employers Religious employers and the ministerial exception in the US Additional protections for US religious employers The European focus on church autonomy Religious employer cases compared Religion in the for-profit workplace Debates over corporate personhood in the US courts The European Court of Human Rights’ context-sensitive balancing approach The cases compared: similar reasoning, differing preoccupations Similar challenges and diverging approaches in specific workplace environments 7 Assessing religious burdens and state interests Evaluating the infringement and burden US courts and the contentious “substantial burden” test ECtHR and the flexible concept of “interference” Comparing the roles of religious burden Evaluating the legitimacy of state interest ECtHR’s conception of “legitimate aims” in the workplace: a permissive approach to a restricted range of objectives The de-emphasized role of legitimacy in US courts Comparing the two approaches to legitimate state interests Measuring the importance of the state interest ECtHR’s minimalist review of state interests US courts and the tiered review of state interests Contrasting approaches with some common ground 8 Balancing religious imperatives and secular rights Assessing the means/ends relationship ECtHR’s deferential stance regarding the means/ends relationship The means/ends fit in US courts: a wide range of standards Comparing the review of the means/ends relationship: a mutual concern for context Assessing the means/ends/burden relationship as an overall balance The ECtHR’s decisive application of holistic balancing The US courts’ evasion of genuine balancing 9 Conclusion: The price of free exercise Index