In our era characterized by “culture wars” traditional religious belief systems face many challengers. Often at the center of controversies, courts are increasingly torn by pressures which reach them through competing fundamental rights claims, or as conflict between fundamental rights on the one hand and non-discrimination claims on the other. These issues have been dramatized in recent employment discrimination cases in the European Court of Human Rights (e.g., Eweida and Chaplin v. United Kingdom) and in the pending cases on same-sex marriage in the U.S. Supreme Court (Hollingsworth, Windsor). The underlying issues will also be encountered in a broad array of legal contexts—adoption, contraception, education, employment, immigration and refugee law, land use regulations, reproductive rights, social security, zoning, and so forth.
A risk in this area is that the allure of bright line standards, can lead to the emergence of mechanical formulas that may evade rather than resolve the underlying tensions. As a result of the application of heightened or “strict scrutiny” by courts, one side wins over the other in no uncertain terms. Developments in different areas of the law (under different chapters or articles of constitutions and conventions) seem to allow a kind of substantive-rule forum shopping in which outcomes depend on legal starting points in a world in which initial legal characterization may funnel analysis into parallel tracks: the applicant’s side gets to define the terms of the game, while the respondent seeks to salvage her situation, until next time when the sides are switched. Mechanistic doctrinal structures make it difficult to make sensitive and refined judgments about discrimination. Reasonable differentiations blur into invidious discrimination; genuine conscientious belief is discounted because of fears of abuse from those who would invoke the cloak of religion to shield abusive behavior. Rival dignitarian claims rooted in the identity of religious belief and sexual orientation threaten a watering down of the dignity claims of both, while missing the opportunity of optimizing the rights of both.
Legal formulae may push judges to characterize the issues involved in a case in a way that makes decision of the case easy but long term reconciliation of the underlying tensions hard. Judicial decisions may complicate subsequent processes of dialogue and reconciliation between the affected individuals and their communities. The irony is that instead of achieving first class protection of dignity, liberty, and equality, the result may be the inadvertent forging of second-class citizenship for all.
The conference will explore these and related issues against the background of unfolding “culture wars” litigation surrounding same-sex marriage, religious autonomy, discrimination and related issues, comparing approaches in Europe and the United States. The plan is to use a moderated discussion-style format to promote maximal interchange with panelists and audience.
