Why Religious Freedom Matters for Democracy: Comparative Reflections from Britain and France for a Democratic ‘Vivre Ensemble’

Description

Should an employee be allowed to wear a religious symbol at work? Should a religious employer be allowed to impose constraints on employees’ private lives for the sake of enforcing a religious work ethos? Should an employee or service provider be allowed, on religious grounds, to refuse to work with customers of the opposite sex or of a same-sex sexual orientation? This book explores how judges decide these issues and defends a democratic approach, which is conducive to a more democratic understanding of our ‘vivre ensemble’. The normative democratic approach proposed in this book is grounded on a sociological and historical analysis of two national stories of the relationships between law, religion, diversity and the State: the British (mainly English) and the French. The book then tests the democratic paradigm by looking at cases involving clashes between religious freedoms and competing rights in the workplace. Contrary to the current alternative between the ‘accommodationist view’, which defers to religious requests, and the ‘analogous-to-secular’ view, which undermines the importance of religious freedom for pluralism, this book offers a third way. It fills a gap in the literature on the relationships between law and religious freedoms and provides guidelines for judges confronted with difficult cases. Volume 26 in the series Hart Studies in Comparative Public Law Acknowledgements Table of Contents Table of Cases Table of Statutory Materials 1. Introduction I. Goals of the Book II. Summary of my Main Argument III. Structure of the Argument IV. Conclusion PART I: THE BROKEN VIVRE ENSEMBLE – OBSERVATIONS AND SOLUTIONS 2. Contextual Analyses: Laïcité and the Democratic Vivre Ensemble I. The Historical Layers of Laïcité: From Hostility to Tolerance towards Religion II. Laïcité, Common Values and Islam III. Conclusion to Chapter 2 3. Contextual Analyses: The English Experience of Vivre Ensemble I. Church Establishment: an Inclusive Type of Secularism? II. British Values, Religious Autonomy and Liberalism III. Conclusion to Chapter 3 4. Conceptual Framework: The Liberal Democratic Vivre Ensemble I. Why Religious Freedom Matters for Democracy II. Why Pluralism Matters for Democracy and Religious Freedom III. Conclusion to Chapter 4 PART II: CASE STUDIES: THE MENDED VIVRE ENSEMBLE 5. Lessons from Achbita I. Spheres over Principles II. Consistency over Proportionality III. Conclusion to Chapter 5 6. Beyond Achbita: Possible Ways Forward I. Laïcite: Deference rather than Delegation II. Proportionality rather than Autonomy III. Religious Freedom and Equality Rights IV. Conclusion to Chapter 6 V. Conclusion of Part II 7. Conclusion I. For a Democratic Approach to Religious Freedom II. Consequences of the Democratic Approach for the Courts Appendix Index