The right to freedom of religion and the right against religious discrimination: Theoretical distinctions
Tarunabh Khaitan, Jane Calderwood Norton
This article argues that while they are often conflated, the right to freedom of religion and the right against religious discrimination are in fact distinct human rights.
Since the remedies are distinct, this is uncontroversial.
Religious freedom is best understood as protecting our interest in religious adherence (and non-adherence), understood from the committed perspective of the (non)adherent.
Best for whom? Best for what purpose? If the effect of understanding a right is to make its remedy under a bond of law impossibly expensive to provide or intractably difficult to discern, then that 'understanding' destroys the efficacy of the right. It is mischievous. Khaitan's type of jurisprudence destroys the rationale for a Society to provide rights under bonds of law.
This internal, committed perspective generates a capacious and realistic conception of religious adherence, which reflects the staggering plurality of forms of religiosity (or lack thereof) as extant in contemporary societies.
That perspective vitiates the possibility of a remedy being provided for rights' violation. Let those who adhere to a religion gain remedies from God. We are not able to judge degrees of religious adherence or what immunities or entitlements they are associated with.
The right against religious discrimination is best understood as
a fucking nuisance. We don't want matters of religion to intrude into our quotidian, secular, world.
protecting our non-committal interest in the unsaddled membership of our religious group.
Why protect it? Let it fend for itself. In any case, it is subsumed under 'right of association'
Thus understood, the two rights have distinct normative rationales.
But both may be denied remedies. Non-justiciable rights don't impose costs on Society. Indeed, a Society which continually saddles itself with more and more obligations may collapse. More and more of those who pay into it leave. Those who want to leach of it arrive in increasing numbers.
Religious freedom is justified by the need to respect our decisional autonomy in matters of religious adherence.
There is no such need. Autonomy should be indifferent to 'respect' or indifference or satire.
The prohibition on religious discrimination is justified by the need to reduce any significant (political, sociocultural, or material) advantage gaps between different religious groups.
But that need doesn't really exist. It is some stupid shit made up by virtue signaling, holier than thou, cunts. Why not reduce the significant advantage gap between cats and dogs instead? No system of law current anywhere is concerned or tasked with reducing 'advantage gaps'.
These differences reveal a complex map of two overlapping, but conceptually distinct, human rights which are not necessarily breached simultaneously.
They reveal nonsense. Justice is a Service industry. If it concentrates on doing stupid shit, it will be disintermediated and defunded.
What is Khaitan's motivation? It turns out that it is hostility to 'Hindutva'- i.e. the ecumenical movement seeking to rid Hinduism of hereditary differences of caste and region. Khaitan thinks 'religious freedom'
is interested in protecting certain beliefs and practices,
while 'religious discrimination' is about
protecting our tribe. The distinction is well-captured in the old joke about a Belfast rabbi being asked if he was “a Protestant Jew or a Catholic Jew.” Or, as Ashis Nandy claimed in the Indian context, “Hindutva will be the end of Hinduism.”
Nandy was Christian. Why is Khaitan quoting him? What equivalence is he pointing to? Protestants in Ulster emigrated there from outside Ireland. The Catholics were natives. Is Khatian saying Hindus are natives of India? Muslims and Christians are foreigners who have colonized the land?
Yet Nandy, a Christian, is clearly not of foreign descent. His ancestors converted to Christianity in the recent past.
In these examples, Protestantism/Catholicism/Hindutva identify sociopolitical group identities, whereas Judaism and Hinduism concern religious adherence.
This is not the case. Both Protestants and Catholics are subsumed under the ecumenical category- Christian. Similarly Hindus of different castes may be subsumed under the category of Hindutva. Indeed Indic people of other faith may feel that they too come under this umbrella. Religious adherence is perfectly compatible with a broader 'oikeiosis' such that the Baptist and the Mormon, whatever their doctrinal differences, feel part of the same Faith community.
And yet, legal scholarship has paid little attention to this distinction or to its implications, and the courts have moved between the two rights with little explanation.
No. Courts have settled cases in a sensible enough manner. Khaitan's contribution is to shit on everything.
What is Religion? The answer, for the Law, will feature Kripkean rigid designators such that some religions will already be known to the Law and a rule may be inferred as to how more could be added or subtracted from that list.
Khaitan offers this nonsense-
A word first about what is meant by religion. Religion is a complex and multifaceted intersubjective phenomenon, in the sense that its existence depends on its shared acceptance in the consciousness of several persons.
This is neither a sufficient nor necessary condition for anything whatsoever. It is true of train-spotting or quantum theory. It isn't true of Religion which depends on God not a 'shared acceptance' of any type of shite
Not all details of its contents need to be shared, but as a “social form” it cannot exist outside some shared consciousness within a social group.
Yes it can. That, at any rate is what Religions claim. It is not necessary that 'shared consciousness' exist for a family to exist. Since some Religions are heritable, it follows that a Religion can exist, from the legal point of view, without Khaitan's condition being met. Indeed, such is the case in his own country of origin. It would be decidedly odd if he were unaware that he is Hindu, under Indian Law, even if he has- as may be the case- no consciousness whatsoever.
Other similar intersubjective phenomena include marriage (it would be meaningless to “marry” someone in a society where it did not exist as a social form),
No. Shipwrecked people can get married even on an island where that institution does not exist
money (few would trade valuable goods for pieces of paper without an intersubjective acceptance of the value of these pieces of paper),
money still exists even if no one will accept it or it is not legal tender
and nations (imagined communities they might be, but a nation cannot be constituted in the imagination of one person—or even ten, for that matter).
Nonsense! Pakistan must originally have been the brainchild of one person- Iqbal or Rehmat Ali or whoever. Khaitan must be aware of this. The fact is a new nation may be constituted by the will and imagination of one person with sufficient authority. Who created Nigeria? Was it Lugard?
This intersubjectivity requirement qualifies the committed perspective we are about to explore—it places constraints on what can count as religion, and more importantly what cannot (for example, my personal cult of bunny worship is not likely to satisfy the intersubjectivity requirement).
This is not the case. The Law may have a pre-existing Religious category and Khaitan's bunny worship may fit into it. Assuming he is homosexual, it would be natural for him to worship Tu'er Shen- the Chinese rabbit god. The objection may be made that he is Hindu. However, there is evidence that the Hindu pantheon has absorbed Chinese deities in the past. This is a precedent for a Court to judge that Khaitan's bunny worship is such as it is reasonable for a Hindu homosexual to engage in in fulfilment of his religious needs.
Intersubjectivity, of course, admits to degrees—perhaps the traditional distinction between a religion and a cult (sans its more recent negative connotations) was based on the notion that cults are putative religions that do not (yet) satisfy the intersubjectivity threshold.
Khaitan's brain is full of shit. There are cults within religions and legal questions can arise as to whether a particular cult is autocephalous or subject to an Episcopate or can no longer count as part of a particular religion. This has to do with the law not some degree of intersubjectivity.
Khaitan thinks that membership of a Religion can provide an immunity not otherwise available. Why should this be?
to take the committed perspective seriously we must recognize that for an adherent of X, it may be important (for her adherence to X) not to believe in, or perform acts that are based on, the tenets of religion Y.
It is in everybody's interests not to believe or perform any sort of acts save for consideration. Even if I belong to a Religion, I would rather be compensated for doing something in conformity with that religion rather than being required to do it gratis. Moreover, I might want to bid up my price by pretending to belong to a Religion which finds that action ghastly and repugnant. Clearly adherence or non-adherence is irrelevant if there is an underlying immunity. Why would anyone want to compromise that immunity by attaching some religious condition to it?
For example, it may be important for an atheist or Jewish witness not to swear on the Christian Bible.
Don't swear to anything unless you get money for it. Why bring religion into it? A Christian might not want to swear away his son's life in a court of law by truthfully testifying that the adorable little tyke took a knife to his wife and kids.
Even in cases where the demands of another’s religion entail an omission rather than an action—for example, non-Hindus required to refrain from eating beef—an interest in religious non-adherence is engaged
in exactly the same way as any other non-adherence absent consideration
if the prohibition on beef-eating was premised on the Hindu injunction to treat the cow as sacred.
Though this is not the case with the Indian directive principle re. cow protection. The fact is, we'd rather be rewarded for doing or not doing things rather than losing the immunity to do as we please. Religion is irrelevant.
In other words, all of us have an interest in religious non-adherence,
No. We have an interest in maintaining an immunity which we only give up for consideration.
whether we choose to assert it or not. More importantly, perhaps, non-adherence can, and usually does, arise out of religious commitment to the extent that adherence (to religion X) usually entails non-adherence (to religion Y).
This is irrelevant. Either there is a Hohfeldian immunity- in which case don't give it up for any reason save the passing of consideration of some kind- or else the immunity does not exist and can't be conjured into existence just because you assert membership in this or that religion. It is mischievous to have- as India does- faith based immunities, e.g. Muslim right to polygamy, because non-Muslims might assert that identity to gain the benefit. What is being protected is not Faith but fraud. True, it may be expedient to grant such immunities to religious groups who have a high threat point or who can make a big nuisance of themselves but this may create a backlash. Other religious groups may establish an ever greater threat point. That way lies madness. Constitutional law should not be about fostering the conditions under which it will cease to apply as the majority cows or culls an obstreperous minority.
Currently, the law recognizes that a particular person may have stronger faith in a particular religion and this may give them an immunity which others of their religion don't wish to have. No great difficulty is involved in providing a remedy for a violation of this immunity provided the obligation holder does not have a superior immunity. However, it is a matter of common sense that if the remedy under the viculum juris is incentive incompatible, then it will disappear in any case. Thus it is foolish to think that a door can be opened here to bring about a fundamental change in Society. All that happens is that an opening is created but that opening leads nowhere.
Consider the following 'conceptual distinction'-
We draw a conceptual distinction between two sets of human interests: our interests in the good, and our interests in our freedom to pursue the good. In the first set, we have interests whose satisfaction is, at least prima facie, necessarily a good thing (from a public, objective perspective).
Nonsense! The thing is a waste of time. There is no public objective perspective from which being 'interested in the good' helps society. Assume the reverse. Then we can also mention our 'affection for the good', our 'awe at the good', our feeling warm and fuzzy about the good, our interest in the good while defecating and so on and so forth. If one of these items is 'necessarily a good thing' then Society might find it has a duty to promote my interest in the good while pretending to be a cat. The thing is simply silly.
It may not be possible to always protect such interests all things considered, and some such compromises may be entirely legitimate. But on their own, the satisfaction of these interests is always a good thing. Such interests include our interest in adequate nutrition, good education, fair trial, protective shelter,
feeling warm and fuzzy while pretending to be a cat, having access to adequate reading matter while defecating, etc, etc.
and so on. In all these cases, the good is tracked directly by the satisfaction of the interest concerned.
It may be or it may not be. The matter ought not to be justiciable. At the margin one or two such nuisance cases might be entertained purely so as to bar the gate against more such stupidity.
On the other hand, we have interests not only in realizing the good but also (or, even especially) in pursuing the good on our own.
That may or may not be the case. But it isn't the sort of thing which should be justiciable.
In these cases, it is in our interest to freely define the good and to pursue it, even when we might sometimes make mistakes. Examples include our interest in freely choosing who to become friends with, whether and who to marry, what and how to say something, what career to pursue, whether and what films to watch or books to read, and so on.
It would be even more in our interest to ignore vacuous shite like the above. Equally we might say 'it is in our interest to freely worship the goodiosity of the good while pursuosifying its holy pursuit even when the universal cat of contempt hisses at us.' If Khaitan gets to talk stupid shite in Court, then it is only fair that he be repaid in the same coin.
While, generally speaking, being free to pursue the good in such cases is a good thing, there is the possibility of making mistakes. Making friends with bullies, saying hurtful things simply to hurt others, or joining a racist organization do not become good simply because these acts were freely done. For this reason, the distinction between interests that directly track the good and those that track my interest in the freedom to define and to pursue the good makes sense We do not, lest we are misunderstood, wish to suggest that our interests in the good are necessarily superior to our interests in our freedom to pursue the good. They are, nonetheless, conceptually different, and this difference could be normatively salient.
In which case a non denumerably infinite number of morally salient conceptual differences arise- e.g. our interest in our interest in the good and our pursuit of our pursuit of the good and the Cantorian diagonal represented by our interest in the good as pursuit of the good' etc.
Khaitan & Co thought it would be cool to make a conceptual distinction to show they were smart. But they have opened the door to a non-denumberable infinity of distinctions.
They say-
Now we can map this distinction onto the two interests we have identified. It is always a good thing that one’s religious group is not saddled with relative social, political, and material disabilities.
Rubbish! God may want us to suffer in this world. Alternatively, God may want us to kill the infidel and take his sheep, goats and daughters.
This is just a roundabout way of saying that social disabilities should not, in an ideal world, accompany religious group membership.
Why not simply say 'social disabilities' should not attach to any group save for reasons we would consider fair and reasonable? Why drag religion into it?
On the other hand, our interest in religious adherence tracks our freedom to pursue the good in matters religious.
No it doesn't. This is simply an arbitrary assertion this guy has pulled out of his arse. A Vedantist or a Sufi might say that 'interest in religious adherence' is 'mayavadi' or 'majazi'. It tracks our failure to pursue the good, defined as Nirguna Brahma or Tawhid, in religious matters. Christians might speak of 'whited sepulchers' as opposed to those with a sincere wish to get it on with the Virgin Mary (what? I went to a Catholic school but didn't attend catechism class. Still, my buddy Virendra Fernandes would tell me about all the cool tips for seducing and deflowering virgins which Brother Morrissey would impart to the young Catholic lads. The final goal, of course, is to get to heaven and...oh fuck! Just Googled it. Apparently Catholicism isn't really about having sex with the Theotokos. Still, like Khaitan, I can't be bothered to erase any ignorant shite I've already taken the trouble to type up.)
The intersubjectively determined
It is not determined in that way. God determines everything. Occassionalism is upheld by many Religions.
committed viewpoint is not, after all, subject to any public standard of reasonableness or morality, and may therefore make demands that are unreasonable or immoral.
Not in the eyes of the Lord- which is all that matters.
This key conceptual distinction underpins some of the normative judgments that need to be made in relation to the protection of these interests, especially in relation to their operation in horizontal relations between non-state actors.
Absolutely not. The Court has no business making any such 'normative judgments'. It may rely on a Jury or on expert testimony re. the facts of the case, but its own judgments must be purely on questions of law. This is not to say that legal positivism is separable from morality or that it can be neutral in normative matters. But it is to say that judicial reasoning must be protocol bound and 'buck stopped' in that interminable argumentation is disallowed. A final decision is made which though itself defeasible, puts an end to the cost and bother of current disputation.
It is reasonable to hold that Society should encourage, at the margin, some diversity in ways of life of a deontic type. Suppose a particular group hold all violence to be immoral. Their way of life may lead them to make valuable innovations. Another group may be antaganomic- i.e. critical of whatever our 'overlapping consensus' might be. They may develop arguments or methods of analysis that we find useful at a later date. We may wish to see some diversity in what judgments people make in foro conscientiae- i.e. there may be a social benefit to having some people whose conscience works in a different manner to what is conventional. For this reason we may wish to tolerate or even encourage, at the margin, Religious groups who conserve or propagate things which, at some future time, we might find valuable. This is a good rationale for 'freedom of religion' as a human right. It is 'regret minimizing'
Khaitan, cretin that he is, first pretends that pluralism is good in itself- which is not true- but then attacks the regret minimizing argument for protecting it at the margin.
Religious pluralism, harmony, and tolerance are no doubt valuable social goods,
but they fail to directly underpin an individual’s interest in religious (non)adherence
The thing needs no 'underpinning' or else the individual is welcome to provide it for herself
(even though they may indirectly facilitate its protection in most circumstances). The historical origins of the protection of religious freedom may well lie in these social goods.
Since its transformation into a contemporary human right,
with limited scope. Indeed, it is not clear that anything is added by the mention of religion
however, its underlying rationale must, at least primarily, be found in a fundamental human interest rather than in the common good.
Why? There is no such requirement in law. If Evolution is a true theory, nothing can be known to be a fundamental human interest. However, the same is true if we live in an Occassionalist Universe.
The need to respect an individual’s conscience is a more promising candidate.
There is no such need. However, we might think this a desirable aspect of judicial processes. However, the thing should not become a fetish or subject to abuse.
In fact, some scholars believe that religion is merely a placeholder for the protection of “conscience” in human rights law.35 While there might be very good reasons to protect conscience for its own sake, our account of religious adherence from the committed viewpoint shows that religion is both broader and narrower than conscience. Not all religious beliefs implicate one’s conscience, which is typically other-regarding rather than self-regarding.
These are unfounded assertions strung together without rhyme or reason. The Law recognizes that it may be appropriate to grant an immunity to a 'Conscientious Objector' not available to an ordinary member of the same Congregation. It is foolish to say that religion is broader or narrower than some other equally unquantifiable thing. Nor is it legitimate to pretend that there is any way of truly demarcating beliefs 'implicating' one's conscience from those which do not. If the conscience is associated with the soul and if it plays a soteriological role, then it is self-regarding.
For example, most people would accept that the religious obligations of Muslims to pray five times a day or make a pilgrimage are not matters of conscience.
If so, most people would be wrong. The 'damir' of the Muslim ضمير prompts him to respect the pillars of Faith. Similar it is the conscience of the Christian which pricks him when he sleeps in on Sunday instead of going to Church.
A belief that does not engage one’s conscience may nonetheless be fundamentally important to the believer because it is demanded by his or her religion.
This is not a canonical view. A religious man might say- 'I used to perform such and such observance just because I thought it was expected of me. Now I see that it was vital to my spiritual growth. My conscience pricks me if, because of pressure of work, I happen to omit it.' You are very unlikely to hear a Rabbi or Imam of Bishop say 'I can't in good conscience say I give a fuck about God. Still, if I didn't pretend otherwise, the people of my religion would reject me. I wouldn't get paid.'
On the other hand, not all conscientious beliefs are “religious.” While many systemic and comprehensive world views, such as pacifism and environmentalism, could be sufficiently religion-like for certain purposes (and should perhaps be treated as such by human rights law), one’s conscience can also make stand-alone demands against military service or eating animal products that do not flow from an existing commitment to any broader world view or involve intersubjectivity. For these reasons, the value of respecting an individual’s conscience cannot ground the right to religious freedom.
These cretins are saying that a guy gets a 'religious freedom' even if he says, 'my conscience tells me Religion is hooey. Still, I demand a right based on such and such Religion because it suits me to do so.' Perhaps these nutters think that acting conscientiously is something different from acting sincerely. Yet sincerity of belief is generally a criterion for protection to apply.
Laws relating to discrimination may have exceptions for gender, religion, race etc. The Catholic Church is not obliged to employ female priests. Hindus are prevented from becoming Rabbis. It may be okay to employ only people of Chinese appearance as waiters in a high class Chinese restaurant. Equally, where there is statistical or indirect discrimination, the law may specify identity classes based on gender, religion, etc. to make it easier to gain remedies. One reason to do so is that as a matter of public policy, there may be specific public organizations which can fund prosecutions of racial or religious or other discrimination against a 'protected class'. A person who is not a member of such a class may have to fund their own litigation if they have experienced unfairness or discrimination.
Why do such laws exist? Arguably, they are unnecessary because a 'due process' right is violated in any case. However, the background is explicitly discriminatory laws and public policies. This began to be reversed by International Treaties and Central Legislatures. The problem was State and local compliance. This required explicit anti-discrimination laws which then could become (in the US) the basis of pattern and practice investigation and consent decree based reform.
Predictably, our two authors take a different view-
Unlike the right to freedom of religion,
which is a personal immunity
the right against religious discrimination is not a stand-alone guarantee.
because it isn't a personal immunity.
It is a species of the more general freedom from discrimination based on certain protected characteristics which, apart from religion, tend to be race, gender, disability, sexual orientation, language, ethnicity, and so on. As such, unless we have very good reasons to think otherwise, the rationale for prohibiting religious discrimination must be found in the rationale for prohibiting discrimination more generally.
This is not the case. The rationale may be explicitly political and have reference to a specific historical problem- e.g. people of one sect being refused certain types of employment or housing etc. By contrast, concern for due process or its equivalent in the relevant jurisdiction may give rise to case law or legal codes which give remedies for discrimination. The advantage of being a jurisdiction where discrimination is frowned upon is that you attract business.
The main function of the prohibition of discrimination, as one of us has argued before, is to prevent, reduce, or eliminate any substantial, abiding, and pervasive advantage gaps between certain cognate groups (i.e. groups defined by the same personal characteristic, such as men and women, or Christians and Sikhs).
Preventing discrimination will widen and make pervasive all sorts of 'advantage gaps' both within and between groups. That is what economic theory predicts. The law can't reverse this outcome though administrative fiat may attempt to do so.
These advantage gaps could be political, material, or sociocultural, but they usually tend to manifest in all these dimensions simultaneously and reinforce each other. The underpinning normative argument is that we should care about such advantage gaps between groups because
advantage gaps are bad. That's the normative argument. These two cretins think such gaps
reduce the ability of members of the (relatively) disadvantaged groups to access certain basic goods—negative freedom, an adequate range of valuable opportunities, and self-respect—whose secure enjoyment is essential to our ability to live a free and flourishing life.
This does not follow at all. It may be that without the advantage gap, the poor would starve to death or suffer invasion and enslavement while the rich jet off into the sunset.
There is an economic theory of price, wage and service provision discrimination which explains why there is a public interest in reducing it so as to increase output and improve allocative and distributional efficiency. These cretins are ignorant of this 'rationale'.
Thus, even though the object of discrimination law’s immediate attention is groups, in keeping with the contemporary human rights tradition, the ultimate commitment is to the freedom and well-being
and joy, and warm fuzzies, and lots of cuddles and sending good thoughts into the cosmos
of (all) individials
and their pets and their families and their communities and those cute monkeys they have in Madagascar.
One need not accept the details of this rationale for discrimination law. But almost all credible accounts of this area of law—at least accounts that take the Anglo-American law concerning the regulation of discrimination seriously—accept that the current or historical disadvantage faced by social groups lies at the heart of discrimination law.
Thomas Schelling pointed out that segregation might occur even if there was very little personal bigotry. If there is no heterogeneity in traits, then, ceteris paribus, administrative action creating mixed work and housing spaces should break down long standing social and other barriers. Sadly, other things are seldom equal. For a start, trait heterogeneity may increase because 'intersectional' dynamics may be perverse. Thus if the females of a disadvantaged group get disproportionately better career outcomes, there may be a corresponding rise in single parent families and higher young male criminality. African American economists and jurists have opened our eyes to the complexities of these problems. Fifty years later, our two cretins, nevertheless write this-
This is true of egalitarian accounts, freedom-based accounts, as well as expressive accounts that seek to explain discrimination law.
This is the addled language of moral philosophy which has spread like a cancer across disciplines. The proper account of discrimination law is given by Law and Economics. It is significant that 'absence of means' is a defense in the UK for discriminatory pay. Ultimately, if discriminatory practices get pooled in cash starved enterprises then the law is circumvented.
Given this consensus—at least at a broad level—it would be very surprising if the main purpose of the law regulating religious discrimination was to protect individual religious (non)adherence (rather than to secure an unsaddled membership of one’s religious group).
That is a possible reason for bringing in the law. Employers may come under pressure from religious groups not to hire their members for reasons of their own- e.g. Parsi religious leaders tried to prevent Bollwyood hiring Parsi actresses because movies were considered vulgar and low class.
In such cases, the law can give employers an excuse not to comply with the demands of religion- e.g. they may hire women even though the religious authorities are against women doing anything other than housework.
This theoretical consensus over the group focus in discrimination law may seem surprising to some practitioners, especially if they notice that typically, the claimants in discrimination law are individuals, and that the protection is offered symmetrically to both the advantaged and the disadvantaged groups.
It may that this 'theoretical consensus' embraces only cretinous academics. The Law is a field where the top practitioners earn very much more than the pedants.
To answer this objection, we need to distinguish this systemic-functional claim about the overall purpose of discrimination law from specific design issues. Drawing upon Rawls and Hart, one of us has argued elsewhere that full transparency between the functional goal of discrimination law and the design of particular rules that regulate discrimination may actually be counterproductive.
A Court can certainly look at the purpose of a law. But are these 2 authors rally endorsing originalism? The fact is, due process, or its equivalent requires that a remedy must be applied equally in like cases even if the purpose of the law which provided the remedy was discriminatory.
To put the point differently, the goal of reducing relative group disadvantage may be ill-served if courts start asking in each case what outcome will best reduce such disadvantage.
Or it may be well served. However, it is not the questions which are asked which matters.
Additional considerations of fairness, pragmatism, clarity, certainty,
cuddles for the Cosmos
and a normative commitment to liberalism also inform the design of antidiscrimination rules.
But while informing that design they start shitting themselves uncontrollably. Also, it turns out that it wasn't the design of antidiscrimination rules they were informing. It was some random homeless dude whose cock they happened to be sucking. That's the problem with importing 'additional considerations'. They tend to end up sucking cock or shitting themselves uncontrollably. Obviously, this is the fault of populist authoritarians like BoJo, Orban, Modi, Zelenskyy etc.
Considerations such as these, for example, dictate that (in general) discrimination law should protect not only the relatively disadvantaged group but also its cognate advantaged groups.
They don't dictate anything. The matter is justiciable. It may that a really good advocate can make the case that a White Male billionaire does not deserve a big pay-out because of sexual harassment he suffered at the hands of Black, female janitors. However the billionaire might have an even better advocate who can show that the billionaire, by law, must get that compensation, because a very poor Black man employed by the same organization received a pay-out worth one month's wages because of just such harassment. I'm not saying that Black man was me. But, if you are rich enough, it could be.
On the reading we have outlined, non-committal religious group membership, rather than committed religious adherence, lies at the heart of discrimination law.
It is a stupid reading. In the UK, religion was added because of the Protestant Catholic problem in Ulster and one or two Cities. Similar historical problems existed elsewhere.
Because religion is one of the characteristics that creates substantial, abiding, and pervasive advantage gaps between cognate groups,
This is false. Religion does not create advantage gaps. It may be that Muslims in East London are, statistically, poorer than Jews or Christians. But that is because they came from poorer parts of the world, had lower skills, capital and education and also sent much more of their pay-packet home to help their relatives and communities. Islam does not make you poorer. Given time and equal opportunities it makes you richer (if you add in the value of your charitable and other donations) than a selfish and godless person with equal endowments.
There was an episode of Family Guy where the father thinks that his son will become smart and rich if he converts to Judaism. But that was a cartoon. Are these two authors really dumber than a cartoon character?
it is a protected characteristic in discrimination law, alongside race, sex, sexual orientation, disability, pregnancy, ethnicity, and other such characteristics. It follows that the big-picture concern of discrimination law is to prevent or mitigate a caste-like organization of society on religious lines where certain religious groups end up with a lower class status.
This is not the case. India has a caste society. But members of both upper and lower castes belong to different religions. There are Sikhs of princely families and 'Dalit' Sikhs. The same is true of Muslims and Hindus and Buddhists.
It may be said that there was or that there still is a class system in the UK. But members of the Aristocracy may be Catholic or Presbyterian or- like the Rothschilds- Jewish. But this is equally true of those at the bottom. Amongst Hindus, Muslims and followers of Chinese and other indigenous religions, we will find both billionaires and beggars right here in London.
Where in the world can you find a 'caste like organization of society on religious lines'? Surely, the ruling class would want their proletariat to belong to their own religion and to be subservient to pontiffs of their own caste?
It appears that these 2 authors- one of whom comes from India- write down any nonsense that comes into their heads.
What great conclusion do these two cretins reach? It is merely this
- Our argument is that it is not the purpose of discrimination law to secure religious freedom, nor is it the purpose of the right to religious freedom to reduce religious group disadvantage.
To whom was this not already obvious? Does a Hindu whose Mummy is preventing him from converting to Catholicism really bring a suit against her for religious discrimination based on the fact that she made him attend Accountancy College rather than give him the money to enroll in Pope School? No! Obviously not- well not after Mummy gave me tight slap. I don't mean me, obviously. I was talking about a friend of mine. We were in the SAS together so I can't tell you his name. Anyway, he didn't really piss his pants when his Mummy slapped him. That was a cruel story his elder sister made up.
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