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Licensed Unlicensed Requires Authentication Published by De Gruyter November 29, 2016

Accommodating What Needn’t Be Special

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Abstract

Liberal debates on religious accommodation have so far focused on the nature of the interest upon which the right to freedom of religion is based. Liberals who oppose religious accommodation argue that there is nothing special about religious belief. Those who defend accommodation on the other hand seek to identify some property (such as conscience or deep commitments) that both religious and non-religious beliefs can share. The article seeks to develop an argument in favor of certain types of religious accommodation that is agnostic about the nature of religious belief and whether it is special in any sense. It argues that it is a mistake to think that the question of religious accommodation, as it arises in law, must necessarily turn on arguments about freedom of religion. The principle of fairness can justify legal duties to accommodate religious (and non-religious) practices, without the need to assess the character of the practice in question or the reasons for engaging in it. The article argues further that the principle of fairness can better explain why human rights courts uphold some claims for religious accommodation as reasonable, and not others.

Acknowledgments

I would like to thank the audiences at the Pompeu Fabra University workshop on ‘Litigation, Accommodation and Minority Participation’ in May 2013 and the UCL Staff Seminar series in January 2014 for their comments and suggestions. I would also like to thank Avigail Eisenberg, Cécile Laborde, Patti Lenard, Ronan McCrea, and Riz Mokal for detailed comments and criticisms on earlier drafts. I am also grateful to the two anonymous referees for their extremely helpful comments and suggestions.

Published Online: 2016-11-29
Published in Print: 2016-11-1

©2016 by De Gruyter

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