Eugenia Relaño Pastor is Professor of Law in the School of Law, Complutense University of Madrid. The blog post is adapted from her keynote address at the ICLRS 33rd Annual International Law and Religion Symposium held at Brigham Young University, Provo, Utah, 4–6 October 2026.
The theme chosen for this Symposium, “Building an Infrastructure for Freedom of Religion or Belief,” is deliberately architectural. An infrastructure is not a single wall or a single right; it is a system of interdependent supports—legal, institutional, social, and cultural—without which no single structure can stand for long. My argument relative to this theme is that the classical infrastructure we have built around freedom of religion or belief, however monumental, has load-bearing weaknesses that we can no longer ignore. Those weaknesses appear at two levels: first, in the doctrinal architecture of freedom of religion itself; second, in the poorly integrated architecture built for the protection of religious minorities.
I will argue that both weaknesses stem from a common, deeper cause: a jurisprudential and normative trend that continues to treat religious diversity as an exception to be managed rather than as the ordinary condition of contemporary societies. My proposal, drawn from an emerging body of scholarship called the Law of Diversity, is that we need to reread the right to freedom of religion (its scope, its subjects, and its guarantees) from a diversity-based approach, one that treats plural religious and nonreligious identities not as exemptions from a norm but as the norm itself.
Shortcomings in the Protection of Freedom of Religion
Let me begin with what should be the most secure right in our “human rights catalogue”: freedom of religion and belief enshrined in Article 18 of the Universal Declaration of Human Rights (UDHR), Article 18 of the International Covenant on Civil and Political Rights (ICCPR), and Article 9 of the European Convention on Human Rights (ECHR). This right is, on paper, among the most widely ratified and rhetorically celebrated rights in international law. And yet a systematic, comparative reading of how this right is interpreted reveals content that is far less settled than its formal ubiquity suggests.
The first shortcoming concerns its definition. Freedom of religion protects, in principle, both an internal forum—the absolute and inviolable right to hold theistic, non-theistic, or atheistic beliefs, or no belief at all—and an external forum, the right to manifest those beliefs through worship, observance, practice, and teaching. Yet the boundary between what belongs to the protected internal forum and what may be restricted in external manifestation is drawn very differently depending on which court, which region, and which historical tradition is doing the drawing. Scholars have long noted that the European Court of Human Rights has adopted a comparatively narrow reading of ECHR Article 9, at times collapsing “freedom of religion” into something closer to “freedom from religion,” while United Nations treaty bodies have tended toward a considerably more expansive interpretation of the same right. This is not a marginal technical disagreement. It means that an individual’s substantive enjoyment of religious freedom depends less on the universality of the right than on the accident of which supervisory body, which domestic court, or which constitutional tradition happens to adjudicate the claim.
The second shortcoming follows directly from the first: asymmetry among the rights that, together, are supposed to protect religious diversity. A careful reading of comparative constitutional law and international instruments shows that legal protection in this field is organized, in practice, around three distinct rights—freedom of religion, the right to nondiscrimination on religious grounds, and, in a much smaller number of legal systems, the right of members of religious minorities to profess their religion. The first two are close to universal, appearing in virtually every domestic and international human rights instrument. The third is explicit in only a handful of constitutions—Canada, North Macedonia, Albania—and is largely absent from the mainstream architecture of protection. This asymmetry is not accidental; it reflects the divergent historical origins of these rights, which developed in different centuries, under different treaties, and in response to different political emergencies, from the Peace of Westphalia to the millet system of the Ottoman Empire to the minority treaties following World War I. The consequence is a body of law with a large jurisprudence on two of the three constitutive rights and almost none on the third, generating gaps and overlaps in legal protection, with gaps falling disproportionately on those already most vulnerable.
The third shortcoming concerns the limits that states are permitted to impose on the external manifestation of religion. Legitimate grounds for restriction—public safety, order, health, morals—are, by definition, categories filled with cultural and majoritarian assumptions. The UN Human Rights Committee has cautioned that limitations for the purpose of protecting morals must not derive exclusively from a single religious or secular tradition, precisely because the dominant tradition of a given society becomes the benchmark against which the “reasonableness” of minority practice is measured. In practice, however, courts continue to evaluate the hijab, the kippah, the turban, the crucifix, or the call to prayer against implicit standards shaped by the historically dominant confession, producing outcomes that formally apply a neutral test but substantively privilege familiarity over pluralism.
The fourth shortcoming is structural rather than doctrinal: freedom of religion, as classically conceived, is overwhelmingly framed as a right of noninterference—a negative liberty protecting the believer from state coercion. Its positive dimension, the obligation of public authorities to take affirmative measures ensuring the effective exercise of religious freedom for groups without institutional power or historical presence, remains comparatively underdeveloped and heavily discretionary. Where positive obligations are recognized, they tend to track, once again, whichever confession already commands administrative visibility, leaving newer or smaller communities dependent on the goodwill of an unevenly responsive state apparatus.
Finally, the very concept of dignity that is supposed to anchor all of this protection is itself unsettled. Comparative jurisprudence has deployed at least half a dozen distinct and sometimes conflicting notions of human dignity. When the very foundation invoked to justify religious freedom is itself plural and contested, it should not surprise us that the right built upon it lacks doctrinal coherence across jurisdictions.
In sum, the infrastructure of freedom of religion reveals cracks in its foundations, inconsistent load distribution across its three constitutive rights, and a superstructure of permissible restrictions adjusted to majoritarian comfort rather than pluralist principle.
Shortcomings in the Protection of Minority Guarantees
If the first pillar of our infrastructure is unevenly built, the second—the protection specifically afforded to religious minorities—is less developed still. Here the shortcomings are not only doctrinal but conceptual, beginning with the prior and unresolved question of who, exactly, counts as a “religious minority.”
The first shortcoming is the absence of any binding, universally accepted definition of minority in international law. Instruments dealing with the rights of persons belonging to minorities—whether religious, ethnic, or linguistic—leave states a wide margin of appreciation in identifying which groups qualify for protection, a discretion that has historically been exercised to recognize some communities while leaving others, often those most recently arrived or least institutionally organized, entirely outside. This produces what I would call a paradox of protection: minority rights regimes exist precisely to correct power asymmetries between majorities and minorities, but the power to define who belongs to a protected minority remains in the hands of the majority-controlled state.
The second shortcoming is historical path-dependency. The origins of minority protection long predate the modern human rights framework, three centuries before the emergence of contemporary human rights law. The interwar minority treaties following the Treaty of Lausanne extended this logic but, again, on an ad hoc and often geopolitically contingent basis rather than through a coherent theory of minority protection. This history has left us with a patchwork of instruments, each responding to a different historical emergency but none designed to operate as a coherent, general system.
The third shortcoming is what scholarship has identified as two competing constitutional paradigms for managing minority diversity: the mononational paradigm, which treats the correspondence between one national community and one state as the ideal, relegating all other diversity to the status of tolerated exception; and the multinational paradigm, which—though born of a more democratic worldview—nonetheless retains a defensive, state-centered, and often paternalistic architecture in which minorities remain objects of protection rather than subjects of self-determined rights. Under both paradigms, minority status is treated as an exceptional derogation from an implicit constitutional norm of homogeneity, rather than as one expression among many in a plural society. Positive measures in favor of minorities remain, in consequence, largely discretionary, dependent on shifting geopolitical sensitivities and on supervisory mechanisms built primarily around nonbinding soft law.
The fourth shortcoming can be observed empirically in domestic systems that formally embrace religious pluralism but organize it through hierarchical, negotiated bilateralism. Spain offers an instructive case study. Its legal architecture distinguishes between a historically privileged confession bound to the state by international treaty; a small number of denominations with formal cooperation agreements; religious communities recognized as having notable, established presence without a full cooperation agreement; and communities that are registered in specific registers subject to ordinary legislation. Each tier carries a materially different bundle of rights concerning financing, tax treatment, religious education, chaplaincy in public institutions, and access to civilly recognized religious marriage.
The fifth shortcoming is jurisdictional fragmentation. In decentralized or federal states, religious matters cut across competences that are formally allocated to different levels of government—education, health, urban planning, cemeteries, social assistance, cultural heritage. National-level cooperation agreements are frequently negotiated without regional or municipal participation, although they must be implemented by these administrations with widely different political wills and cultural contexts. The result is that the effective enjoyment of one uniform right to religious freedom varies dramatically according to postcode. Disputes over the licensing of mosques, evangelical prayer halls, or minority burial grounds are frequently resolved, or left unresolved, at the municipal level, for example.
The sixth shortcoming, which I would argue is the most politically consequential, is the selective visibility of minorities themselves. Empirical and sociological literature on religious diversity in Europe converges on an uncomfortable finding: in public debate, policy design, and even academic literature, the “management of religious diversity” has become, in practice, largely synonymous with the “management of Muslim populations,” displacing other, equally legitimate minorities to the margins. This selective securitized attention distorts the allocation of legal, institutional, and academic resources away from smaller, less visible communities: new religious movements, diaspora traditions, indigenous spiritualities, and increasingly, the unaffiliated and the “religious but not belonging.”
Taken together, these two sets of shortcomings—one related to protections of the right to freedom of religion and one related to minority protections—are not independent failures. They are two symptoms of the same underlying “disease”: a constitutional and international legal trend that continues to conceive religious diversity as a deviation to be accommodated through exceptions rather than as the constitutive, ordinary condition of contemporary pluralist societies.
Toward a New Paradigm: The Law of Diversity
It is precisely at this diagnostic juncture that I want to introduce a conceptual proposal: the Law of Diversity, which is a category of analysis originally coined by Francesco Palermo and Jens Woelk and developed within an emerging, sociologically grounded field of diversity studies.
The Law of Diversity does not propose to discard the existing discourse of minority rights or freedom of religion. It proposes instead to situate that discourse within a broader, more flexible analytical frame, built on six structural characteristics that directly respond to the shortcomings I have just described.
First, the Law of Diversity moves beyond the exclusive discourse of minority rights, recognizing rights-based protection as only one facet—not the only one—of how contemporary societies accommodate diversity: rather than trying to force all forms of accommodation into one single rights template, the Law of Diversity treats governance arrangements, cooperation regimes, and institutional dialogue mechanisms as equally legitimate instruments of protection.
Second, unlike the mononational and multinational paradigms, which tie protection to closed categories—recognized national minorities, indigenous peoples, confessions with concordats—the Law of Diversity aspires to a toolkit of legal instruments potentially applicable to any human condition, relativizing the historical, political, and philosophical contingency involved in selecting which groups deserve recognition. This single move dissolves the paradox of protection I identified earlier: instead of asking states to define, once and for all, which minorities merit special guarantees, it asks legal systems to develop general mechanisms of accommodation that can extend, as needed, to any group or individual whose religious or belief-based identity departs from a societal majority.
Third, the Law of Diversity is explicitly transversal and comparative. It unifies the study of federalism, territorial and non-territorial autonomy, plurinationality, interculturality, and European soft law under a single analytical umbrella, deliberately shifting scholarly attention from an exclusively Global North framework toward the innovations of the Global South—Bolivia’s plurinationality, Ecuador’s interculturality, Singapore’s pluralist constitutional consociationalism.
Fourth, and this is the conceptual heart of the proposal, the Law of Diversity carries a vocation of normalization. Its explicit aim is to transform the treatment of diversity from exception to general norm, aligning with what constitutional theorists have called constitucionalismo plural, an emergent family of constitutional orders in which diversity is treated as a foundational, ordinary feature of the polity rather than a derogation from it. Diversity, in this reading, is not a demographic fact to be managed at the margins; it is the ordinary texture of the society the law is meant to govern.
Fifth, the Law of Diversity is neutral as to specific normative content. By freeing the analysis of accommodation instruments from any predetermined normative content, it allows us to examine the full menu of available options—recognition, autonomy, cooperation, positive measures, institutional representation—without the built-in bias that only certain forms of diversity merit protection or empowerment beyond mere nondiscrimination. This directly answers the sixth shortcoming raised above: the selective, securitized visibility that currently channels legal and political attention disproportionately toward one religious minority at the expense of others. A framework that is neutral to content, and open to any differential condition, structurally resists this kind of selective attention.
Sixth, the Law of Diversity is empirically anchored in the sociology of diversity as an autonomous concept—one that, as its proponents note, “comes without baggage,” an epistemological advantage that frees the framework from the normative weight historically attached to categories such as “national minority” or “indigenous people.” This is not merely an academic idea. It means that new forms of religious and belief-based identity—new religious movements, post-secular spiritualities, diasporic and hybridized traditions, the growing population of the unaffiliated who nonetheless retain cultural or ethical attachments to religious heritage—need not force themselves into categories designed a century ago for entirely different historical circumstances.
Rereading Freedom of Religion Through a Diversity-Based Approach
What, concretely, does it mean to reread the right to freedom of religion and belief through this diversity-based lens, rather than through the classical minority-rights or purely individualist lens that has dominated the field for the past 70 years?
It means, first, redefining the very subject of protection. One recent and influential proposal argues persuasively that the concept of “religious minority” should no longer be restricted to specific, enumerated groups but should extend to any religious affiliation that does not represent the majority of a given state’s population. Under this reading, the combination of the right to freedom of religion and the right to nondiscrimination becomes sufficient, in principle, to guarantee that the management of religious diversity rests on democratic and pluralist foundations, without requiring an ever-expanding catalogue of differentiated rights negotiated confession by confession. This is precisely the normalization move that the Law of Diversity calls for: instead of a residual category of minorities requiring exceptional protection, we obtain a universal principle—freedom of religion plus nondiscrimination—capable of protecting whoever does not belong to the dominant confessional group in a given context. Diversity ceases to be the exception and becomes the organizing premise of the right itself.
It means, second, replacing pyramidal, negotiated bilateralism with a common regime of material cooperation. Legal systems such as Spain’s currently distribute rights concerning worship, religious education, chaplaincy, and civil recognition according to a hierarchy of formal recognition. In contrast, a diversity-based reading would insist that the essential content of religious freedom—access to places of worship, public manifestation, religious assistance in dependent-care institutions, funerary rites, dietary and calendar accommodations, personal symbols, reasonable accommodation where appropriate—be regulated generally, equally, and independently of confession-specific agreements. This diversity-based approach would reserve negotiated agreements exclusively for genuinely confession-specific particularities rather than for the recognition of basic rights.
Employing a diversity lens means, third, taking multilevel governance seriously as part of the infrastructure of the right to freedom of religion itself. Because religious life unfolds in schools, hospitals, cemeteries, and city streets (competences typically distributed across national, regional, and municipal levels) a diversity-based approach to freedom of religion cannot stop at the level of national constitutional guarantee. Regional experiments—Catalonia’s law on places of worship, the Basque Country’s Interreligious Council—demonstrate both the potential and the current fragility of this multilevel approach, and should be studied comparatively as prototypes.
Finally, a diversity approach means embracing what constitutional theory has coined as the shift from an “exceptionality” logic to a “normalization” logic: recognizing that plural belief, plural nonbelief, plural practice, and plural forms of belonging without believing, or believing without belonging, are not disruptions of an otherwise coherent religious landscape but constitute that landscape’s actual, empirical composition in every pluralist democracy today. Freedom of religion or belief, read through this lens, is not a right that protects deviations from a religious or secular default; it is the right that constitutes, guarantees, and makes governable the condition of plurality itself.
Conclusion
The infrastructure metaphor that frames the ICLRS 33rd International Law and Religion Symposium is more apt than perhaps the organizers intended. Infrastructure fails not usually because a single beam collapses dramatically but because small, distributed weaknesses accumulate silently until the whole structure is tested by a stress it was never designed to bear. I have argued that our current infrastructure for freedom of religion and belief carries exactly these kinds of weaknesses: inconsistent interpretation of the right’s core scope, an asymmetric and historically contingent relationship among its constitutive guarantees and rights, minority protection regimes built on undefined categories and discretionary recognition, hierarchical domestic systems that convert cooperation into stratification, and a public discourse that renders most religious minorities invisible while hyper-visualizing one.
The Law of Diversity does not offer a magic repair. What it offers is a different set of blueprints, one in which diversity is the ordinary condition for which the structure is designed from the outset rather than an anomaly requiring ad hoc reinforcement after the fact. Rereading freedom of religion and belief from this diversity-based perspective means building an infrastructure not for the protection of enumerated minorities within a presumed homogeneous whole but for the protection of everyone, precisely because no one, in the plural societies we now inhabit, occupies an uncontested religious or secular default. That, I believe, is the infrastructure we aspire to build.