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

210 Pages·2020·2.603 MB·English

by  Myriam Hunter-henin

WHY RELIGIOUS FREEDOM MATTERS
FOR DEMOCRACY
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
Hart Studies in Comparative Public Law
Recent titles in this series:
New Media and Freedom of Expression
Rethinking the Constitutional Foundations of the Public Sphere
András Koltay
Regulation in India
Design, Capacity, Performance
Edited by Devesh Kapur and Madhav Khosla
The Nordic Constitutions
Edited by Helle Krunke and Bjӧrg Thorarensen
Human Rights in the UK and the Influence of Foreign Jurisprudence
Hélène Tyrrell
Australian Constitutional Values
Edited by Rosalind Dixon
The Scope and Intensity of Substantive Review
Traversing Taggart’s Rainbow
Edited by Hanna Wilberg and Mark Elliott
Entick v Carrington
250 Years of the Rule of Law
Edited by Adam Tomkins and Paul Scott
Administrative Law and Judicial Deference
Matthew Lewans
Soft Law and Public Authorities
Remedies and Reform
Greg Weeks
Legitimate Expectations in the Common Law World
Edited by Matthew Groves and Greg Weeks
The Dynamics of Exclusionary Constitutionalism
Mazen Masri
Constitutional Courts, Gay Rights and Sexual Orientation Equality
Angioletta Sperti
Principled Reasoning in Human Rights Adjudication
Se-Shauna Wheatle
Human Rights and Judicial Review in Australia and Canada
Janina Boughey
For my two ‘bookworms’, Melanie and Loriane
Why Religious Freedom
Matters for Democracy
Comparative Reflections from
Britain and France for a
Democratic ‘Vivre Ensemble’
Myriam Hunter-Henin
Acknowledgements
W
I began thinking about writing this book in 2015, my ambition was to offer a
HEN FIRST
novel comparative perspective on law and religion controversies in Britain and France. 2016,
with the US election and the Brexit referendum in the UK, prompted me to go further and
explore connections with theories of democracy. I was fortunate during these early days to
have unique opportunities to test my emerging ideas. The debate at the French Conseil d’Etat
on Comparative Law and Territoriality in January 2016 was the first step towards my search
for law’s inclusiveness. The papers I presented on religious freedom cases in the workplace
at the international conference organised at Rouen University and the workshop at UCL in
2016 and 2017 respectively confirmed the importance of the employment law sphere as an
area of investigation. Finally, the conference and conversations on populism at New York
University in September 2017 paved the way for my democratic approach. I am therefore
grateful to the convenors of these events: Horatia Muir Watt (Sciences Po, Paris); Duncan
Fairgrieve (BIICL); Ronan McCrea (UCL); Valérie Parisot (Rouen University); Hélène de
Courrèges (Rouen University); and Gráinne de Búrca (NYU). As my ideas matured, I
benefited from discussions within the Public Law Group at UCL. I am grateful to my
colleague, Silvia Suteu, for convening the sessions. Ideas also crystallise thanks to informal
conversations. For these, my thanks go in particular to: Peter Cumper (Leicester University),
Javier García Oliva (Manchester University), Prakash Shah (Queen Mary University) and
Lucy Vickers (Oxford Brookes University).
University College London has been my home since the beginning of my career and has
fostered my reflections on the book in many ways. I am particularly indebted to Ian Dennis
who recruited me, Dame Hazel Genn who encouraged me to pursue research in law and
religion, and Piet Eeckhout who granted me a term’s research leave at the beginning and the
end of the writing phase in 2018 and 2020 respectively. Throughout my career, Grand
Challenges (UCL) has supported my initiatives and provided opportunities for fruitful
collaborative research, including the project on ‘Fundamental British Values’, conducted in
collaboration with the Institute of Education (UCL), which fed into chapter 3 of the book.
Within Grand Challenge Justice and Equality at UCL, I am especially indebted to Ian Scott
and Siobhan Morris for their unfailing enthusiasm for interdisciplinary endeavours. Long-
standing gratitude is also owed to the European Institute (UCL), in particular to Uta Staiger
over many years of collaboration and, more recently, to Oli Patel and Claudia Steinberg.
The book as it stands today is the result of many drafts, some of which were read and
commented upon generously by the following colleagues: Oliver Gerstenberg (UCL, Laws);
Julian Rivers (Bristol University, Law School); Bob Morris (UCL, The Constitution Unit);
Philippe Marlière (UCL, SELCS); and George Letsas (UCL, Laws). May they all be warmly
thanked for their time and feedback. I am also extremely grateful to Natalie Sedacca (UCL
Laws), who combined with impeccable efficiency her own writing for her PhD and valuable
editing work.
Hart has been remarkable. Maria Skrzypiec, as copy-editor, worked on the manuscript
with incredible speed, precision and good humour. Emma Platt and Rosamund Jubber, from
the marketing team, and Linda Staniford, as Production Editor, then took over with the same
efficiency and friendly spirit.
Finally, I owe a different kind of debt to my family and friends, for their angelic patience
over the two full years of writing, in 2018–20, during which the ‘vivre ensemble’ only
existed on paper.
Table of Contents
Acknowledgements
Table of Cases
Table of Statutory Materials
1. Introduction
I. Goals of the Book
A. The Method of Avoidance
B. The Principle of Inclusion
C. The Principle of Revision
D. The Analogous-to-Secular View
E. The Accommodationist View
II. Summary of My Main Argument
A. Implications for Law
B. Implications of My Argument for Theories of Democracy and Legal
Pluralism
C. A Contextual and Comparative Approach
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
A. Laïcité: A Militant Form of Secularism?
B. Laïcité: From Militant to Separatist and Liberal Secularism
C. Conclusion to Section I
II. Laïcité, Common Values and Islam
A. Recent Extensions of Laïcité
B. Gilles Kepel’s Laïcité
C. Communautarian versus Inclusive Laïcité
D. Conclusion to Section II
III. Conclusion to Chapter 2
3. Contextual Analyses: The English Experience of Vivre Ensemble
I. Church Establishment: An Inclusive Type of Secularism?
A. The Possibility of Church Establishment
B. English Establishment: An Inclusive Form of Secularism
C. Conclusion to Section I
II. British Values, Religious Autonomy and Liberalism
A. Religious Minorities in England
B. The Decline of Religious Autonomy in English Law
C. Conclusion to Section II
III. Conclusion to Chapter 3
4. Conceptual Framework: The Liberal Democratic Vivre Ensemble
I. Why Religious Freedom Matters for Democracy
A. The Dilution of Religious Freedom
B. The Isolation of Religious Freedom
C. Conclusion to Section I
II. Why Pluralism Matters for Democracy and Religious Freedom
A. Self-restraint, Religious Freedom and Pluralism
B. Pluralism, Religious Freedom and Public Reason
C. Conclusion to Section II
III. Conclusion to Chapter 4
PART II
CASE STUDIES: THE MENDED VIVRE ENSEMBLE
5. Lessons from Achbita
I. Spheres Over Principles
A. The Contractual Sphere: The Non-interventionist Ordoliberal Baseline
Argument
B. The National Sphere: Alleged Deference to the Constitutional Laïque
Context
C. Conclusion to Section I
II. Consistency Over Proportionality
A. Introductory: The Eweida Case
B. Burdens of the Consistency Argument for Religious Employees’ Claims
C. Proportionality Test Reduced Mainly to Procedural Consistency
D. Conclusion to Section II
III. Conclusion to Chapter 5
6. Beyond Achbita: Possible Ways Forward
I. Laïcite: Deference Rather than Delegation
A. Ebrahimian: An Extensive Deference to Laïcité
B. From Ebrahimian to Achbita: From Deference to Laïcité to Delegation to
National Authorities
C. Conclusion to Section I