Dr. Eugenia Relaño Pastor is a Senior Research Fellow in the Department of Law and Anthropology at the Max Planck Institute for Social Anthropology, Halle (Germany)
On the 25th Anniversary of the Beijing Declaration and Platform for Action, the UN Special Rapporteur on Freedom of Religion or Belief took the opportunity to release his 2020 Annual Report, which shows his deep concern for worldwide gender-based violence against women, girls, and LGBT+ persons in the name of religion and belief. In the report he reinforces his predecessors’ endeavors to reject any legitimate religious “justification” for violence or discrimination based on sexual orientation or gender identity.
As a result, he produced an excellent preliminary report for a future UN general comment on the intersection between the right to freedom of religion or belief and the right to equality and non-discrimination on the basis of gender, but he failed to identify the core issues at stake for dealing with rights grounded on two moral truths: freedom and equality. That omission is the proverbial elephant in the room. In my experience as an activist (I have worked as a legal adviser for migration and equality with the Spanish Ombudsman, and I deal with daily legal complaints against the administration) and legal scholar committed to liberty and equality rights for women and the LGBT+ community, as well as to religious freedom for all, the only choice is to balance both rights carefully through a context-sensitive approach and to try to find negotiated compromises when tension arises.
Moral rights and legal rights
It is a hard task to deal with the coexistence of rights that are based on moral truths. We have learned that the protection of fundamental rights is indivisible and that we necessarily need to deal with conflicts of values and norms. The Special Rapporteur efficiently shows achievements for the right to equality while upholding the freedom of religion and belief in the policymaking arena. However, when both rights collide in the legal sphere, the Special Rapporteur sided himself with the right to equality. We need to understand that while this perspective may be morally correct, it does not easily translate into legal solutions, and vice versa for legal norms that are morally incorrect.
The Special Rapporteur combines a moral paradigm with policy and legal paradigms. Although all three are intertwined, a careful analysis should be applied in order to avoid only moral justifications when analyzing clashing legal rights.
Moral rights must be distinguished from legal rights, and effort should be made to bring the force of law behind moral rights by making them legal rights. For example, in some countries, laws criminalizing homosexuals or adultery are legally permitted because they are grounded on “public morals” associated with hegemonic religious traditions and sometimes actively supported by the majority of the population.
In that particular context, persons have a legal right to discriminate against homosexuals or adulterous women but not a moral right to do it. In On Duties (44 BC), Cicero analyzed morally correct actions for humans in terms of what is honorable (for the public good) and what is useful (for the private good). Appropriate actions are morally right when there is no conflict between the honorable and the useful. In societies where forced marriage is “honorable” for society and enshrined in legal texts, but not “useful”—meaning inherently good—for girls, morals and laws should be changed. This will require joint efforts from civil society, the State, and the international community. As part of the UN human rights system, the Special Rapporteur could advance the implementation of international human rights by bearing in mind that changing public morals requires advocacy, policymaking, and recommendations, but enhancing legal reforms demands explicit guidelines for the interpretation of fundamental rights: the right to equality and freedom of religion.
The 2020 Annual Report needs to clarify the relationship between these two fundamental rights since some paragraphs show inconsistency and because the report does not offer any possible criteria for balancing both rights when they collide. Additionally, the report should have extended the approach of freedom of religion beyond an individualistic approach; and, finally, the report should have fully taken into consideration the collective identity of religious groups.
First, the Special Rapporteur Ahmed Shaheed failed to show how these two rights are mutually reinforcing rights by making non-discrimination prevail over freedom of religion or belief and by omitting specific standards for how to balance these competing claims. National and international courts, legislatures, and legal scholars have addressed this difficult balance.
In the controversial Masterpiece Cakeshop case, judges deliberated how Colorado applied its law to Jack Phillips’ refusal to bake a cake for a same-sex wedding celebration for religious reasons: which claims or interests should prevail, those of the baker or those of the couple? We learn from this case that neither side wins if the other side totally loses. And we also learn than some criteria could be developed when truth claims come into conflict, such as the hostility criteria towards religion and dignitarian harm criteria.
Regarding the hostility criteria, in the Lukumi Babalu Aye case the U.S. Supreme Court unanimously struck down a Florida city’s law prohibiting ritual animal sacrifices conducted by adherents of the Santeria religion on the grounds that the ordinances had as their object the suppression of religion. In contrast, in Masterpiece Cakeshop, the non-discrimination laws and regulations in question were not hostile to religion and were neutral on their face. However, in Lukumi, Justice Kennedy broadened his legal scope and upheld the bar on hostility in the implementation of non-discrimination law. Therefore, the principle of neutral treatment of religious claims, which secure the non-discrimination principle, should be applied not only in the law, but in the implementation of law as well.
Furthermore, Justice Kennedy also articulated the dignitarian harm criteria in Masterpiece Cakeshop by emphasizing that the government has signiﬁcant interests in protecting LGBT+ rights and the need to avoid dignitary harms imposed on victims of discrimination. To reinforce these two criteria, policies to build up constructive compromise must be established. In order to reach such compromises, each side needs to bear some costs.
Second, the Special Rapporteur´s approach to freedom of religion is insufficient. He only includes the individual dimension of religious freedom (para. 60) and reiterates that “the right to freedom of religion or belief belongs to individuals, not religions. . . . in general, States should not interfere with a community’s communal practices or internal organization” (para 48).
We agree that religions per se are not rights-holders but religious communities are. Democracies have decided to protect the right to religious freedom because religions and beliefs are valuable for an individual´s autonomy in matters of religious adherence. The right to religious freedom is also grounded on personal integrity that facilitates a complete conception of one´s self. Moreover, intersubjectivity is part of the interplay between the collective or communal dimension and the individual as a member of a particular religious group. The relevance of protecting the autonomy of religious organizations stems from the identity and self-determination of religious adherents.
Furthermore, collective religious autonomy has an intrinsic value as well, not only because the collective dimension is part of the individual´s religion, but also due to the existence of the intrinsic value of group identity. International human rights instruments provide some evidence of the collective value of groups. Consequently, the autonomy of religious institutions does not fall only within the forum externum of the right to freedom of religion but it is also part of the forum internum whenever autonomy becomes necessary for the identity and the survival of the group.
However, the Special Rapporteur emphasizes that “the autonomy of religious institutions falls within the forum externum dimension of the right freedom of religion or belief which, if the need arises, can be restricted in conformity with the criteria spelled out in article 18(3) of the ICCPR” (para. 67). Comprehending individual and collective identities as part of the forum internum does not mean that identities are free from limitations. When two identity-related claims clash, we need to find a compromise. It is the only way to reach an inclusive and pluralistic society.
Finally, in the section “Gender-based discrimination within religious institutions and communities.” The Special Rapporteur Ahmed Shaheed provides interesting remarks about how to reconcile the collective autonomy of religious groups (“religious ethos”) with individual autonomy (right to equality and right to dissent). He endorses the Committee on Economic, Social and Cultural Rights by stating that church-run institutions should not discriminate against non-ecclesiastical employees on the grounds of religious belief, sexual orientation, or gender identity. This is one of the most controversial legal issues at the European Court of Human Rights.
First, the Strasbourg Court expressed the relevance of collective religious entities to advance religious freedom and pluralism. In the leading case Hasan and Chaush v. Bulgaria, the ECtHR stated that “the autonomous existence of religious communities is indispensable for pluralism in a democratic society,” and fourteen years later it reiterated the importance of collective religious rights in Magyar Keresztény Mennonita Egyház and Others v. Hungary: “religious associations are not merely instruments for pursuing individual religious ends. In profound ways, they provide a context in which individual self-determination unfolds and serve pluralism in society.”
Second, the Court has confirmed that religious ethos employers can restrict the rights of clergy and other employees in cases involving freedom of expression (partially in Lombardi Vallauri), freedom of religion (Siebenhaar), and the right to private and family life (Obst and Fernandez Martinez). Although ECtHR strongly protects organizational autonomy, a new trend seems to be emerging for balancing religious autonomy with non-discrimination and the right to private life: a more contextual and sensitive approach to involving clashing rights.
In Schüth, and partially in Lombardi, the Strasbourg Court seems to carry out the balancing of different interests at stake by applying a reasonableness test, which includes the dignitarian harm criteria, and considering that fundamental values, such as the rights to identity for individuals and communities, the right to non-discrimination, and the right to private life, deserve a careful balance. We need to agree to disagree when balancing truth claims. As Isaiah Berlin notes, conflicts of values are “an intrinsic, irremovable element in human life,” and “[t]hese collisions of values are of the essence of what they are and what we are; a world in which such conflicts are resolved is not the world we know or understand.”
 “He explores freedom of religion or belief and non-discrimination as two and mutually reinforcing rights and clarifies the existing international legal framework that governs their intersection.” Summary of the Report.
 “International law is clear that the manifestation of religion or belief may be limited by States, in full conformity with the criteria outlined in Article 18(3) ICCPR, to protect the fundamental rights of others, including the right to non-discrimination and equality, a principle upon which all human rights, including the right to freedom of religion or belief depends.” para. 70.
 The report states “when claims based on freedom of religion or belief and of non-discrimination collide, a careful analysis of all the relevant information should be made to maximize the protection of both sets of rights through a proportionality analysis rather than an abstract hierarchy of rights.” para. 72.
 One of the most well-known legislative compromises is the Utah Compromise. The compromise added sexual orientation and gender identity to Utah’s existing laws banning discrimination in housing and employment based on religion, race, sex, pregnancy, age, national origin, and disability.
 See Leslie C. Griffin, A Word of Warning from a Woman: Arbitrary, Categorical, and Hidden Religious Exemptions Threaten LGBT Rights, 7 (1)
Alabama Civil Rights & Civil Liberties Law Review 97 (2015) and Stephen M. Feldman, Having Your Cake and Eating It Too: Religious Freedom and LGBT Rights, 9 (1) Wake Forest Journal of Law & Policy 35 (2018).
 “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.” Masterpiece Cakeshop at 9.
 The law itself should not adopt a committed viewpoint in matters of religion. As Rawls defends, the state’s reasons must always be public reasons, even as public reasons sometimes require the state to tolerate, respect, or protect actions grounded in sectarian reasons. See John Rawls, Political Liberalism (Columbia University Press 1996).
 The existence of collectivities as national, ethnic, racial, and religious groups are “human good” that need protection in the Convention on the Prevention and Punishment of the Crime of Genocide (adopted by the General Assembly of the. United Nations on 9 December 1948). Moreover, article 1 of the Declaration of the Rights of Persons Belonging to National or Ethnic Religious and Linguistic Minorities goes beyond art. 27 of the ICCPR and protects the existence and identity of minorities, including religious ones. Thornberry notes that the collective primarily lives through the individual lives of its members, but there is another segment of that existence “through consciousness of its members, manifested perhaps through language, culture, or religion, a shared sense of history, a common destiny. Without this existence it is possible to say that individuals live but the group does not.” Patrick Thornberry, International Law and the Rights of Minorities (Clarendon 1992), 57.
 This is the deliberative democracy theorist´s approach. Sometimes participants in public dialogue might be required to set aside their identity-based differences and treat “different itself as something to be transcended, because it is partial and divisive”, Iris Marion Young, Inclusion and Democracy (Oxford University Press 2000), 42. See Monique Deveaux, Gender and Justice in Multicultural Liberal States (Oxford University Press 2006).
 Isaiah Berlin, Liberty, Henry Hardy (ed.) (Oxford University Press 2002) 213.