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Licensed Unlicensed Requires Authentication Published by De Gruyter November 24, 2016

Religion as Identity

  • Avigail Eisenberg EMAIL logo


This paper examines the shift in how religious freedom is understood from a matter of protecting individual choice to a matter identity. According to the choice approach, the state must protect the individual’s freedom to choose but it cannot be expected to bear the costs of the religious choices citizens make. The identity approach treats the claims individuals and groups make about their religious commitments as non-negotiable facts rather than choices and considers the failure of the state to protect these commitments as unjust because it exposes the individual to disrespect and disadvantage, and stigmatizes and excludes them from full membership in the polity. This paper examines the political context in which the identity approach has emerged in the last 50 years. It then examines three implications of this shift from choice to identity for the protection of religious freedom. Such a shift 1) enhances the capacity of courts to address claims of historical injustice, 2) leads courts to focus on the religious practices of groups rather than individuals, and 3) increases the pressure on courts to assess the authenticity of religious beliefs and practices. These implications lead to significant challenges for public institutions, which are discussed in the final section of the paper.

Published Online: 2016-11-24
Published in Print: 2016-11-1

©2016 by De Gruyter

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