El rezago Tecnológico

The concept of dignity is a popular justification for the protection of religious liberty and one that forms a cornerstone of liberal theory. Evans has submitted that this is linked to the view that religious truth should not be suppressed – as advocated at one stage by J. S. Mill.4 It assumes, firstly, that religion intrinsically forms part of both the essence and nature of being human (an ontological claim) and, secondly, that it is appropriate, if not necessary, to affirm and recognise this on the basis of autonomy. In relation to the former, religion is ‘closely related to an individual’s concept of

1 _{See comments made in section 2 of this chapter. The legal definition of religion is addressed more}

fully in chapter 3, sections 2.2 and 2.3.

2 _{The focus will be on secular explanations rather than religious reasons.}

3 _{This position pre-supposes that religious liberty deserves distinct protection and cannot ‘be}

adequately protected using ... [human] rights such as the right to privacy, the right to freedom of association and the right to freedom of expression. This is because it is arguable that freedom of religion is just a specialised sub-species of these other human rights and requires no additional

protection’: L. Vickers, Religious Freedom, Religious Discrimination and the Workplace (Oxford:

Hart, 2008), pp. 26 – 27. Vickers rejects this argument: see pp. 27 – 28.

4 _{C. Evans, Freedom of Religion Under the European Convention on Human Rights (Oxford: Oxford}

identity and self-respect, and the cost to the individual of renouncing religious affiliation should not be underestimated’.5 In relation to the latter, religion is ‘protected because it is a key aspect of personality and autonomy, based on personal choices about conceptions of the good’.6

This amounts to a ‘guarantee of diversity within liberal society according to which individuals and groups are free to pursue their own conceptions of the good, including religious ones’.7

As a theory of religious protection, human dignity has its ideological roots in human rights principles. Indeed, the United Nations Universal Declaration of Human Rights 1948 (UDHR) declares that ‘[a]ll human beings are born free and equal in dignity and rights’.8

Even more forcefully, ‘[t]he normative foundation of the entire edifice of modern human rights is the public doctrine of inherent dignity’.9 Nevertheless, beyond this definition of human dignity there is little consensus on how best to arrive at a more robust conception of what dignity means.10 In any case, reliance on human dignity does not mean that all interests stemming from ‘conscience’ are protectable: it is only those matters ‘which feed into an individual’s ability to make sense of the world, and through which they develop a sense of the good, that require protection. Thus a person’s interest in being allowed to participate in, for example, country dancing because of its importance to them as a form of artistic expression will not require the same level of protection as a belief relating to the existence of a supreme being’.11

This is the case particularly where dignity may be cited by two parties on either side of a clash, an inherent weakness indicative of the fact that ‘dignity is often accused of being deployable by both sides to an argument’.12

However, the concept

5 _{L. Vickers, ‘Promoting Equality or Fostering Resentment? The Public Sector Equality Duty and}

Religion and Belief’ (2011) 31 Legal Studies 135, p. 138.

6_Ibid.

7 _{I. Leigh, ‘Balancing Religious Autonomy and Other Human Rights under the European Convention’}

(2012) 1 Oxford Journal of Law and Religion 109, p. 111.

8_{Article 1, UDHR.}

9 _{T. Lindholm, ‘Philosophical and Religious Justifications of Freedom of Religion or Belief’ in T.}

Lindholm, W. C. Durham and B. Tahzib-Lie (eds.) Facilitating Freedom Of Religion Or Belief: a

deskbook (Leiden: Martinus Nijhoff), p. 47 (original emphasis).

10

See discussion by C. McCrudden, ‘Religion, Human Rights, Equality and the Public Sphere’ (2011) 13 Ecclesiastical Law Journal 26, pp. 34 – 35.

11 _{Vickers, above n. 3, p. 40.}

12 _{T. Khaitan, ‘Dignity as an Expressive Norm: neither vacuous nor a panacea’ (2012) 32 Oxford}

of dignity does feed into the legal determination of what a religion is.13 Vickers summarises this as:

includ[ing] a belief that reality extends beyond that which is capable of perception by the senses. To be “religious” the belief system must also have some relation to man’s nature and place in the universe and his relation to things supernatural: it must have something to say to adherents about their place and function in the world. Religious beliefs should require or encourage adherents to observe particular behavioural standards or codes of conduct, and may include specific practices having supernatural significance, such as rites of worship.14

Within the debate about affirmation of human dignity on the basis of autonomy, there is a realisation that equality also has a part to play. Whilst this may appear conceptually blurred it has been said that ‘it situates it as part of a broader moral and political philosophy’.15

Moreover, regarding the roles of autonomy and equality in contributing to an understanding of human dignity, ‘[e]ven if there is no agreement as to which is the foundational concept, they are deeply interlinked, and there is agreement that a commitment to providing protection for human rights can be based on the concepts of equality, dignity and autonomy’.16

In relation to religion, the idea of equality connotes the view that all religions and religious individuals should be treated equally but also that they should be treated differently from other non- religious groups precisely because they are different. This difference between formal and substantive equality, respectively, means that ‘a focus on dignity as part of our understanding of equality should lead to a broader concept of equality than one based purely on formal equality’.17

However, the theory of human dignity and the linked themes of autonomy and equality do not presume that religion will transcend other interests; indeed, Vickers notes that they ‘merely … demonstrate that religious interests are valid interests that need consideration alongside other interests that flow equally from a concern for human dignity and equality’.18

It is perfectly conceivable that sometimes individuals’ autonomy in reifying the self will lead to a clash between the dignity rights of religion as against those of another particular group or religion,

13 _{In relation to both human rights and anti-discrimination law definitions of ‘religion’, respectively,}

see discussions in chapter 3, sections 2.2 and 2.3.

14

Above n. 3, pp. 38 – 39.

15 _{Evans, above n. 4, p. 32 (emphasis added).}

16 _{Vickers, above n. 3, p. 38.}

17 _{Vickers, above n. 5, p. 148.}

18

meaning that ways around such problems must be found. It might be said that this presents a problem for human dignity as an explanation for affirming various interests, including those of religion. Lewis contends that this problem is reflected in religious liberty jurisprudence where there exists an ‘inability to pin down quite why religious [liberty] is valued [and] the absence of a clearly defined and universally accepted rationale’.19

There is not space here for a detailed excursus into the various ways religion could be defined as a basis for deriving a more sound normative approach to the issue of human dignity. Suffice it to say that it is a factor the courts still must grapple with at a legal level20 bearing in mind, as Evans notes, that religious liberty ‘is one important aspect of autonomy or individual dignity, but there are other important aspects of autonomy that sometimes conflict with religious [interests]’.21

On this balance, McCrudden signals that ‘many recent legislative interventions adopt ideas of proportionality when rights of interests conflict’.22 Proportionality is revisited in detail when considering the utility of ‘reasonable accommodation’ as a form of religious ‘exception’ later in the thesis.23