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This paper analyzes Australian and Canadian approaches to rights conflict focusing on challenges between freedom of religion and equality in public life. The first section involves an historical and doctrinal analysis of rights frameworks in Australia and Canada and a comparative analysis of cases that test public boundaries of freedom of religion and equality. This section concludes that the Australian framework is an imperfect mechanism for resolving disputes about freedom of religion. A comparison to the Canadian framework demonstrates that principles of reconciliation and limitation of rights provide a more satisfying answer to challenges between religious freedom and equality rights. The argument put in the second section is that both states assert freedom of religion and equality as fundamental rights but in fact their competing scope remains unresolved. The second section applies political theory to the question of freedom of religion, building on the presumption that neither Australia nor Canada (as modern liberal states) has an agreed public ‘place’ for religion. This thesis proposes a theoretical solution of adopting a more inclusive definition of religion within an egalitarian liberalism framework and prefers the test of ‘ethical independence’ proposed by Ronald Dworkin for responding to claims of religious expression rather than a ‘special rule’ or exemption approach.

This paper rejects the definitional ‘vagueness’ argument against religious freedom and the attempted recourse to ‘equality’ as a supposed ground for liberty. The first argument is, that religion is not as evasive of legal definition and utility as has been made out. Secondly, that all other terms argued as superior, such as ‘equality’ are even more difficult to define; they depend, in fact, on a context and a realization that religion is an equality right itself – being universally listed as such within Constitutions and Bills of Rights in both domestic and international settings. No term is without ambiguity and language is prone to require contextual interpretation. Pluralism is about accommodating diversity and difference, and these are the grounds against which legal analysis of all terms must be placed. Finally, the use of large terms such as ‘belief’ or ‘opinion’ or ‘conscience’ in rights documents must be extended to include atheists and agnostics. The paper argues that claims for ‘state neutrality,’ and ‘international neutrality,’ often import subtextual atheistic or agnostic claims. More work is needed to expose the atheistic and agnostic biases that too often operate unobserved or uncommented upon in contemporary law and religion scholarship, policy work and judicial analysis.

This paper considers the approach of domestic courts and the European Court of Human Rights to the adjudication of religious liberty claims, contrasting them with the output of the United States Supreme Court. It questions the definition of religion and judicial illiteracy in faith based claims. It seeks to make take a fresh approach to such cases by recasting them as claims for freedom of conscience. It commends a nuanced application of the principle of reasonable accommodation.

Britain lives in the age of equal marriage: most forms of discrimination have been removed and the state recognizes the union between two persons rather than that between a man and a woman. It is therefore not surprising that religious marriage is finally recognized to be pluralist: the church of scientology, for example, has just been allowed to celebrate valid religious marriages on its premises by the UK Supreme Court in a landmark case of Hodkin v Registrar. The decision is particularly important because it squarely moves away from a Judeo-Christian theistic definition of religion and embrace a much more open test that is broadly in line with religious pluralism.

More than 15 years have passed since the Ontario Human Rights Commission last updated its Policy on Creed and the Accommodation of Religious Observances. The policy interprets the word "creed" in the Ontario Human Rights Code to mean "religious creed" or "religion", and specifically excludes non-religious or political beliefs. However, the spectrum of religious belief has broadened since 1996, and secular, moral or ethical beliefs have come increasingly to the fore. Belief has become more individualized, culminating in the Supreme Court’s definition of religion in Syndicat Northcrest v. Amselem, which emphasizes sincerity and is largely subjective.With a greater emphasis on the individualized and subjective nature of religion, the communal aspects of religious belief have decreased in importance – at least in legal analysis – and creed has become more of an issue of individual conscience. The lines between religion and conscience have blurred to the extent that there is virtually no principled difference between the two, with little justification for restricting human rights protections to religious beliefs alone. Recent consultations held by the OHRC elicited strong support for broadening the definition of "creed" in the Policy, or for including "conscience" as an additional prohibited ground. If conscientious beliefs are included in an updated Creed Policy, how will this development affect employers, unions, service providers and other institutions? What practical steps can they take to address workplace discrimination and harassment based on creed and conscience? This paper assesses the current state of the law on creed, the indications that the definition of creed in Ontario human rights law is being expanded, and the practical implications for those with responsibilities under the Code.

Laws that criminalize assisted suicide should be struck down under the First Amendment’s Establishment Clause. These laws fail the secular purpose strand of the Lemon test and the anti-coercion strand that Lee v. Wiseman established under the accommodation test. While it is true that laws against assisted suicide don’t involve performance of a religious ritual, they codify a highly specific interpretation of Christian doctrine. This article uses an historical analysis to demonstrate that prohibitions against suicide and assisted suicide emerged from a conception of Christianity that defined actions as moral only if they served a higher purpose. In the modern world, this conception has been replaced by a rival morality centered on individual self-fulfillment, which accepts rather than condemns an individual’s decision to end his or her life under certain circumstances. The advent of the new morality clarifies the specificity of the prior morality and highlights its religious origin. Based on this analysis, it seems clear that according to an historically and contextually established definition of religion in our contemporary society (the only defensible type of definition) laws against assisted suicide are efforts to compel obedience to a particular religious ideology, and should be struck down on that basis.

This article comments on a definition of religion recently proffered by Brian Leiter. Leiters definition first appeared in a paper arguing that there is no principled reason for the Constitution to single out religion as one of many forms of conscience for special tolerance. Martha Nussbaum then suggested that we owe something more than mere tolerance for religious belief; in our efforts to make sense of the world, we owe “a special respect for the faculty in human beings in which they search for life's ultimate meaning.” In a later paper, Leiter uses the same definition of religion to argue that Nussbaum is wrong. My argument can be expressed positively: if Nussbaum is right, she is also right that the concept of religious belief (as opposed to particular conceptions or instantiations of it) is entitled to as much respect as any other kind of belief, because once we are talking about any kind of belief it is difficult to draw a principled line. Stated negatively, Leiter's attack is ultimately circular: the problem with religion is that it is not science. Exposing the circularity requires identifying the trick, which is that Leiter employs an appeal to common sense to distinguish religion and science under a bright line definition. Nevertheless, the very belief in common sense Leiter employs here is the same as the belief in religion Leiter attacks: it is categorical and insulated from further reasons.

This comment has a two-part purpose. First, this comment analyzes and critiques the existing definition-of-religion tests developed by the federal courts. Second, the comment proposes a definition of religion based on the concept of belief. In two decisions, Welsh v. United States and Africa v. Pennsylvania - the two leading cases of definition of religion - courts have defined religion in terms of “religious function,” “religious scope,” and “religious goals.” However, if it is no business of courts to say “what is a religious practice...for one group is not religion under the protection of the First Amendment,” then courts should not decide what constitutes religion in terms of religious terms. Such judicial standard-setting creates appearance of endorsement of particular beliefs, and is that kind of religion-to-religion discrimination that the Supreme Court has struck down under the Establishment Clause. Part II, explains the history and the development of the Welsh and Africa definitions of religion under the First Amendment. Part III critiques the current definitions of religion. That section provides overview of pertinent cases under the Establishment Clause of the First Amendment. In addition, Part III critically analyzes the Welsh and Africa definitions of religion in their essence and under the Establishment Clause. The analysis of the Welsh and Africa tests suggests that both tests are essentially and historically inconsistent with the First Amendment. Part IV proposes a new approach to definition of religion. To be consistent and permanent, religion must be defined in terms of its historical meaning and essence. Such historically consistent meaning and essence of religion must satisfy both the Establishment Clause and the Free Exercise Clause for the definition to be unifying. The proposed approach defines religion in terms of what it truly protects: the religious belief. First, a belief must be defined in terms of its sufficient and necessary elements: (1) conviction, (2) perception, and (3) subject matter. Then, the comment proposes, religion should be defined as: (1) an honest conviction, (2) regardless of perception, (3) in a predominantly non-secular subject matter. The comment concludes that such definition of religion is historically consistent, logically essential, unifying and permanent; and it removes any appearance of governmental favoring of a particular religion-model. Thus, the proposed definition of religion is more secular in content, and less religious.

In this new book, "Constantine's Standard," I want to explore the relationship between religion, violence, politics and law - specifically, how the liberal political tradition has approached the problem (the liberal compact), how that approach was historically conditioned by Western culture, and how it needs to be adapted to address contemporary challenges to peace and stability associated with religion. Chapter Four, "Naming the Whirlwind," explores what we mean by the terms religion and the secular. It challenges the perception that religion presents a unique threat of violence and that religion somehow stands outside the bounds of the reasonable and the rational. In reality, social scientists and scholars of religion have developed a descriptive definition of religion that offers important insights on how to develop political and legal strategies to combat religiously associated violence. While the object of this book is to focus upon traditional understandings of religion, as represented by the major religious traditions (e.g. Christianity, Islam, Buddhism, Hinduism, etc.) in reality, many ideologies resemble and can qualify as religions under a functionalist definition of faith. Consequently, political and legal strategies developed to address secular ideological actors (such as a totalitarian government) may provide valuable insights and possible strategies to be applied to religious actors prone to violence.

This essay explores the puzzle of persistent racial inequality. It probes the well-worn alternatives of racism and merit by raising a provocative comparison between the intelligent design creationism and racial conspiracy theories. In each case, proponents observe complexity and, with deep personal commitments at stake, reason that some kind of agent must be responsible, either a benevolent God or a malevolent racist. In each case, respondents agree about the definition of religion or racism as grounded in an agent of some kind, but argue that ordinary science - either evolutionary biology or classical economics - proves that no such God or racist exists. The essay then surveys the historic misuses of evolutionary and economic rhetoric with regard to race, noting that such misuses depend on a self-serving appeal to the natural, simple, scientific inevitability of progress. The complex, interconnected historical development of religion, race, and evolutionary and economic theory are examined, and the essay argues that the rhetoric of economics often serves as a secular theology that functions to support Whiteness. The essay suggests that the fundamental questions of racial inequality are ultimately theological questions, and offers some avenues for finding common ground.

This article gives an overview of the international law of religious freedom and also Chinese laws regarding the practice of religion. It then compares Chinese laws with the international standards in three particular areas: the definition of religion or belief (using the case study of Falun Gong); the scope of protected manifestations of religion or belief (using the case study of politico-religious activity in Tibet); and the role of the state in controlling religious groups and practices. It concludes that, while China certainly deals more harshly with religious groups than most states, many of the problems that it faces are also faced by other states and are areas where it is difficult to find clear guidance in international law. The exception to this is the high level of state control exercised over official religions and the discouragement of unofficial religions.