Freedom of religion and equality are fundamental rights, enshrined in human rights laws and constitutions around the world. This report, Drawing the Line: Tackling Tensions Between Religious Freedom and Equality, examines three interrelated aspects of these rights: religious freedom and equality for LGBT individuals, religious freedom and reproductive rights, and religious freedom as expressed through attire, hair, or other forms of religious appearance.
As organisations working to defend civil liberties and fundamental human rights across five continents, members of the International Network of Civil Liberties Organizations (INCLO) are committed to upholding freedom of religion and conscience as a fundamental human right to be valued, defended, and protected. At the same time, we are engaged in, and supportive of, efforts to advance equal treatment for groups that have long been oppressed, including lesbian, gay, bisexual, and transgender (LGBT) people, women, and racial and religious minorities.
Our organisations have witnessed widely varying ways in which the rights to religious freedom and to equality have been under challenge in recent years. A number of particular themes can be highlighted:
• In a number of countries, religious precepts are embedded in the law in ways that constitute de facto violations of other freedoms, particularly those of women. This is most apparent in religious as well as customary laws and practices around divorce, remarrying, succession, inheritance, and harmful practices such as female genital mutilation. Concepts of religious morality and custom are also often invoked to justify the criminalisation of homosexual acts.
• We have witnessed profiling of members of the Muslim faith in the name of national security and gender equality; restrictions on religious appearance ranging from crosses on necklaces to head coverings to nose rings; and discrimination against those of no faith in countries dominated by faith.
• We have encountered those of faith relying on their right to religious freedom in a manner that conflicts with others’ right to equal treatment. Shop owners and others on several continents have considered themselves constrained by their religion from being able to serve lesbian and gay customers. Similarly, hospitals and doctors have invoked religious freedom and conscience when they have turned away women seeking abortions and contraception. In some countries, men who have sex with men are largely unable to access medical care.
• In some countries, faith remains inseparable from the state in ways that complicate questions of religious pluralism and equality.
As civil liberties and human rights organisations, we are concerned about encroachment on the freedom to practice religious or customary rites. Valuing religious freedom as we do, we consider that it can be properly restricted by the state only where justified on robust, principled, and evidenced grounds. Any claim that the interests of the majority justify restrictions on the religious freedom of the minority must be subject to the most rigorous scrutiny. On the other hand, valuing equality as we do, we consider that claims to religious freedom must be subjected to the most rigorous level of scrutiny when they are invoked to justify harm to others, and we are concerned that the right to equality is not always given its proper weight when balanced against these claims. We adhere to the principle that religious freedom means the right to our beliefs, but that religious freedom does not give us the right to impose our views on others, including by discriminating against or otherwise harming them. It is that principle that animates this report and our work.
It is with those commitments that we issue this report, Drawing the Line: Tackling Tensions Between Religious Freedom and Equality, which examines several of the questions now the subject of litigation, public debate, and policy discourse. We begin by setting out a framework that we believe should guide our analysis before focusing on three specific areas: religious freedom and the rights of LGBT individuals, religious freedom and reproductive rights, and religious freedom as expressed in appearance. Through the examination of a sampling of key cases, we strive in this report to articulate principles and recommendations that can guide advocates and policymakers. We hope this report will prove helpful for those who wish to move towards a rights-based resolution of these debates.
This report was produced by the INCLO, which comprises eleven domestic human rights organisations: the American Civil Liberties Union, the Association for Civil Rights in Israel, the Canadian Civil Liberties Association, Centro de Estudios Legales y Sociales (Argentina), the Egyptian Initiative for Personal Rights, the Human Rights Law Network (India), the Hungarian Civil Liberties Union, the Irish Council for Civil Liberties, the Kenya Human Rights Commission, the Legal Resources Centre (South Africa), and Liberty (United Kingdom). Each organisation is multi-issue, multi-constituency, domestic in focus, and independent of government. We advocate on behalf of all persons in our respective countries through a mix of litigation, legislative campaigning, public education, and grass-roots advocacy. These organisations have come together to advocate jointly for fundamental rights and freedoms.
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