Religion, Human Rights, and the Workplace

Auteur

Gregory Mose is a professor of international law and politics at the American College of the Mediterranean in Aix-en-Provence, France.

Texte du rabat

Comparing United States Federal courts' approach to free exercise in the workplace with that of the European Court of Human Rights, this book explores two different methodologies for adjudicating rights conflicts. It argues that while the European approach has flaws, its proportionality approach may offer vital lessons for United States practice.

Contenu

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