An important reason to protect freedom of religion as a human right is the protection of minority religions in society. By guaranteeing all aspects of freedom of religion, we guarantee the preservations of these religious cultures and communities, and prevent their disappearance by assimilation into mainstream society. Two separate reasons justify this approach: One is that preservation of a variety of cultures, social systems and religions, and maintenance of the social dialogue between them will reap benefit to society as a whole (a public good argument). The other is based on the intrinsic right of each cultural (or religious) group to exist with equal respect. This last reason can also be couched in terms of individual rights. If minority cultures no longer existed, minority members' choices of culture would become restricted, and their freedoms would be curtailed.
While these reasons apply equally to minority and majority religions, the emphasis is placed on minority religions as they are the ones likely to be adversely affected without this protection. Furthermore, historically, adherents of minority religions bore the brunt of persecution and discrimination. Thus it is justified that the protection of the rights of adherents of minority religions may be different from that accorded to the majority religion. (In the international context, of course, 'minority' is a relative term. A majority religion in one state may be a minority religion in another.) The different treatment may not only be a function of majority/minority status, but of the inherent differences between the religions themselves. If we accept these arguments, we must tailor the interpretation of religious freedom to fit disparate religions residing together. Parekh argues that '[e]quality between cultures is logically different from and cannot be understood along the lines of equality between individuals ... It is not enough to appeal to the general right to equality. One also needs to show that there is equality in the relevant feature of the context and that it entails identical treatment.'
The case of Ahmed v. UK illustrates what equality between cultures entails. A Muslim employee of a UK school asked to be given time off a regular workday to attend religious services and was denied. Following his failed domestic litigation, his application to the European Court of Human Rights, in which the applicant argued that his Article 9 (religious freedom) rights were breached, was also denied. If the cultural context is ignored, Ahmed indeed is seen as asking not for equal treatment but for preferential treatment. He is asking to work four and a half days a week, while his colleagues work five days. However, the context in which this case took place creates inequality between cultures. The days of rest, Saturday and Sunday, conform to aJudeo-Christian tradition. To redress this inequality, an exception to the rule must be made for those whose religions require other rest days and the right under the Convention should be interpreted accordingly.
Parekh believes religious equality is an individually exercised collective right. I disagree: although a correct analysis of equality should assess equality in the relevant cultural context, it is an individual right to equality of religious freedom that is protected. Ahmed's right and his choice to exercise it, and incur the risks associated with doing so, are his own. The fact that other devout employees of the same faith did not make the same demands, or even did not think this exemption was warranted by their faith, does not detract from the legitimacy of his claim. Religious freedom and religious equality should be understood and assessed in their cultural context, but this does not make them rights of the group rather than the individual.
My first disagreement is conceptual. Parekh argues collective rights do and should exist, and may sometimes trump individual rights. These include rights, such as the right of the Catholic Church, recognized by states, to grant or refuse divorce to its members. This is properly a group right (in his terms, a collectively exercised collective right), because it overrides the rights of individuals. But such a right is problematic precisely for this reason, even if individuals submit freely to the Church's power over them. Parekh dismisses the argument that groups should not be granted rights because such rights will threaten individual rights. He argues that individuals can misuse their rights against others as well, yet we recognize individual rights; why then should we not recognize group rights?
This argument seems to miss the point. Of course individual rights can be misused, but granting rights to groups essentially entails granting the group power over individuals. States have power over individuals; indeed states are defined as having a monopoly of such power. A state may have legitimate reasons to divest power to other institutions, but it is not clear why transfer of such power over individuals from state to group, including religious groups, constitutes a right of the group.
My second disagreement is policy based. Parekh relies on the shared doctrine the group wishes to maintain as a justification for community rights, particularly pertinent to religious group rights. This, he maintains, is why most states respect the Catholic Church's right to excommunicate its members or deny them divorce, and grant it exemption from sexual discrimination laws, even though this severely restricts individual liberties. These examples illustrate the problems created by recognition of religious group rights. The powers of the Catholic Church, which are recognized in liberal states, raise the question of how such erosion of individual rights can be justified within a liberal framework. One answer is that in any state that recognizes the right to freedom of religion, every member is free to leave the Church. But this is not a sound justification: it is precisely because men and women are part of the society in which they live that the Church should not be able to override indiscriminately members' rights, even if the membership of the individual in the Church is voluntary. Voluntariness is a question of degree. Just because someone lives in a Catholic community does not mean that they agree that a refusal to grant divorce should be outside the realm of the law. While refusing to grant divorce may or may not contravene the Church member's rights, the fact that membership is voluntary should not automatically exempt the Church from scrutiny of the law.
Religious institutions, although they are private institutions, operate in the public realm. For instance, by allowing religious institutions the power to create legally recognized marriage and grant legally recognized divorce, the state is transferring to them regulatory power in a crucial area ofpublic life. The distinction between organs of the state belonging to the public realm and religious institutions belonging to the private realm does not represent reality. When a church hires or fires employees or excommunicates its members, it is not just a private institution that is enforcing its doctrine; it is a public organization implementing a system of morality that must stand up to generally accepted principles of human rights.
While accepting the premise of the communitarian approach, namely that the individual is part of a social context, my conclusion is not that religious communities should be left alone to formulate their own rules, but rather that basic human rights provisions should apply to them albeit adapted to their dual character.
