Limitations to the Right to Religious Freedom: Rethinking Key Approaches

Abstract

The right to freedom of religion or belief is one of the most controversial fundamental human rights, and an increasing number of cases on religious freedom highlight the need for normative clarity about its limits. Courts across jurisdictions adopt different approaches to justifying limitations to religious claims in order to resolve conflicts. This article identifies current key approaches to justifying limits to religious practices before proposing a perfectionist version of the harm principle as an alternative. Section 1 sets out the complexities of determining the limitations to religious freedom. Section 2 identifies the shortcomings of four dominant approaches to limitations, and these include the following categories: (i) practices deemed to be against the liberal democratic order; (ii) practices that breach the duty of neutrality; (iii) practices that do not constitute a core religious belief; and (iv) the choice of alternatives. Section 3 proposes a typology of harms to the autonomy of others as a model for limitations to religious freedom. Section 4 concludes by emphasizing the need for consistency in deciding limitations.