The (Un)Easy Relationship between Non-Discrimination and Religious Freedom
Leon van den Broeke
Theologische Universiteit Utrecht, the Netherlands
This general contribution on the (un)easy relationship—or potential conflict—between non-discrimination and religious freedom, prepared for the panel "Analysis of the Constitutional and Fundamental Rights Implications of the Prohibition of Discrimination and the Right to Freedom of Religion or Belief," sets the stage for the discussion of court cases concerning (non-)discrimination and the fundamental right to religious freedom.
Some secular individuals—and at times also religious individuals—consider the right not to be discriminated against to be of greater importance than the fundamental right to religious freedom. At the same time, adherents of various faith communities experience that their right to religious freedom has been violated, or at least restricted, by the state, the law, or third parties.
In some countries, the fundamental right not to be discriminated against is considered more important than the fundamental right to religious freedom, whether or not this hierarchy is constitutionally grounded. This raises the question of whether there is a hierarchy among fundamental rights in constitutions, or whether such a hierarchy is absent.