This chapter offers an assessment of judicial fragmentation in international human rights law. The first part of the chapter presents a comparative analysis of the case-law of the three regional systems and the UN Human Rights Committee on rights that are the highly susceptible to trigger fragmentation, either for the relevance of religious, cultural and political concerns or for the vagueness of some terms in the norms’ provisions that could possibly allow very different interpretations. As this analysis shows a substantial convergence or absence of fragmentation, the second part of the chapter focuses on the detailed analysis of the few cases of judicial fragmentation identified, exploring their features in depth. They include case-law on freedom to wear religious attire, indigenous rights and the right to marry for same-sex couples.

Chapter 5 describes the law regarding speech aimed at religion and morality. Against a backdrop of oppressive prosecutions and antiabolitionist violence, Massachusetts saw denials of the constitutionality of libel law and a rising insistence on individual rights to freedom of conscience and expression. Both the pornographic classic Fanny Hill and the first birth control texts became cheaply available in Massachusetts, and lawyers adapted the law to prosecute obscenity. Nova Scotia likely had fewer such texts, and outside Halifax legal actors also had fewer texts to refer to in drafting indictments. On the religious front, Nova Scotia’s basically voluntaristic environment made religion political, with the Anglican elite on the defensive, but disputes over belief reached neither the legislature nor courts. Massachusetts, however, gradually eliminated establishment, leaving winners and losers. Free Thinkers evoked concern, especially the Englishwoman Frances Wright, whose lectures challenged Christianity, capitalism, slavery and patriarchy. Many understood republican ideals as justifying majoritarian violence, a logic that did not resonate in Nova Scotia, where disputes centered instead on configurations of institutional power.

The chapter examines the more recent attempts to further develop international standards providing protection against hate speech. It outlines the content of the proposed standards and the major players who either spearheaded or resisted the standard-setting efforts. It then examines states’ polarized positions on the meaning of the international norm prohibiting incitement to discrimination, hostility, or violence and the need for new international standards on hate speech. It also examines how the standard-setting agenda’s focus on the religious grounds of hate speech complicated the process of reaching international consensus on the further development or refinement of that norm. More specifically, it analyses how the interaction of the proposed standards with the scope of freedom of religion, and their conflation of racism and advocacy of religious hatred, further increased opposition to their introduction. Finally, the chapter examines how certain actions and characteristics of both supporters and opponents of the standard-setting agenda contributed to the failure of that agenda.

Chapter 9 argues that a new layer of complication was added with the so-called human rights–based approach to refugee law. The challenge is that refugee protection is lesser in scope than human rights protection. That ‘lesser’ protection is usually located in the persecution element: while reference to human rights has opened up refugee law to a wider range of harms, not every human rights violation reaches the threshold of persecution. The chapter shows that one consequence of the human rights–based approach is the risk of conceptually merging Convention ground and persecution. According to the human rights approach, a violation of the freedom of religion or the freedom of thought can amount to persecution. In other words, prohibitions on the expression of the Convention grounds in themselves can be considered persecutory. The chapter reveals that this has led to the invention of an alternative or additional kind of harm that stands next to the harm that is inflicted in case the claimant does express the Convention ground – or is discovered in another way. This approach builds on and reinforces ‘discretion’ reasoning, because it distinguishes on the basis of the claimant’s future behaviour and requires ‘discretion’ under certain circumstances.

Peace settlements are notoriously difficult to reach in religiously associated conflicts, particularly in intra-state armed conflicts where the religious identity and nature of the state is at stake. Despite that apparent intractability, however, some peace settlements have been crafted for contemporary intra-state armed conflicts where there have been religious incompatible claims and aspirations. This chapter explores the legal tools developed in such settlements and discusses their wider applicability as conflict resolution mechanisms. The analysis identifies seven specific conflict resolution mechanisms that have been utilised to address the religious dimensions of armed conflicts: constitutional secularism, religious freedom, religious power-sharing, religious autonomy, legalisation of religious political parties, inclusion of religious civil society actors and religious bonding. These seven mechanisms are analysed as part of two fundamentally different approaches to conflict resolution of religious dimensions: division vs integration; and reinforcement or decrease in the role of religion. The chapter demonstrates how religiously defined conflicts can also be transformed and brought to peaceful, negotiated endings.

This chapter explores one of the most important recent Christian critiques of human rights. It uncovers how a group of British and North American theologians, who gathered under the title of “radical orthodoxy,” has claimed that modern human rights laws, and religious liberty in particular, have done great damage to Christianity and should be abandoned. This chapter shows how this line of argument, which has also been embraced by several progressive scholars, has complicated roots. It argues that the origins of radical orthodoxy’s claims lay in reactionary Catholic opposition to religious liberty, and in particular, in the belief that religious freedom was a Protestant conspiracy to eradicate Christianity from the public sphere. This chapter then shows how the writings of radical orthodoxy’s leading figures, John Milbank and William Cavanaugh, resurrected these confessional polemics in their attacks on religious liberty. It then concludes by reflecting on the potential meanings of this genealogy to recent critiques of religious freedom more broadly.

This chapter investigates whether there is a general right to conscientious exemption in US law. The chapter concludes that there is, albeit its scope varies geographically. There are at least five rules of law which ground the right. These are: (1) the Free Exercise Clause of the First Amendment under federal constitutional law as interpreted by the USSC in Smith (albeit this is now very narrow), and the Free Exercise clauses of some state constitutions which did not interpret their own constitutions according to Smith; (2) The Religious Freedom Restoration Act (RFRA) which applies to the federal government and similar state legislation that applies in the states which have enacted them; (3) the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) which applies mainly to state governments in the context of land regulation, zoning laws and prisoners; (4) Title VII of the Civil Rights Act of 1964 (and similar state level legislation) which requires certain categories of employers to accommodate the religious beliefs of their employees in performing their employment duties; and (5) the constitutional requirements of Church Autonomy.

This short conclusory chapter summarizes the main claims of the book and summarizes how the book has provided evidence to support those claims. It shows that the book’s overall contribution then is to have demonstrated that there is, and there should be in a liberal state, a general right to conscientious exemption available to a person who objects to any legal obligation on the basis of a religious or non-religious conscientious belief.

The chapter introduces the main claims of the book, how they are defended and their implications. The chapter then makes a positive case in favour of the general right to conscientious exemption and for it being equally available to religious and non-religious conscientious objectors. It argues that a non-absolute right to conscientious exemption is justified by reference to a cluster of moral values, including the demands of the state’s duty of neutral pluralism (the duty being grounded in the value of individual moral responsibility and respect for ethical pluralism), respect for personal autonomy, freedom of conscience and concern for individual well-being. The chapter justifies the institution of the general right by showing that it provides holders of minority moral views with an alternative forum, i.e. a court of law, where they may be able to bring a claim and ask for exemptions from legal obligations which impinge on their conscience. It concludes by showing that the justifications provided for exemptions generally and for the general right cannot justify the right being a privilege of only those that object on the basis of non-religious beliefs. Non-religious conscientious beliefs should also benefit from the general right.

The chapter argues that the general right to conscientious exemption in Canada should not be interpreted to be available only to religious people. This is for several reasons. First, the general right to conscientious exemption is available under the right to freedom of conscience under s 2(a) of the Canadian Charter and s 3 of the Quebec Charter. Albeit there are only a handful of cases on this right and even though the SCC has not unequivocally delivered a judgment on this, it is clear that the existing cases hold that freedom of conscience protects non-religious conscientious beliefs. Secondly, even though the general right to conscientious exemption arising under anti-discrimination statutes appears to be a privilege of only those with religious beliefs, it has been argued that this would violate the Canadian Charter guarantee of equality rights under s 15 and freedom of conscience under s 2(a). The appropriate remedy, for most of the anti-discrimination statutes, would be to read in conscience as a protected characteristic. This would entail that, in relation to all the rules of law which guarantee the general right to conscientious exemption, the right is not a privilege of those that object on the basis of a religious belief.