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Taking diversity seriously: Religious associations and work-related discrimination 79
and sexual orientation. Religious associations contribute to a system of
economic opportunity. As a result, 13
[f]ew exemptions from general public obligations are more significant than
exceptions to anti-discrimination law in hiring, promotion and firing …
[R]eligious associations are not only membership groups but also …
employers in the secular economy, whose practices affect non-members
directly.
The state thus has a strong interest in eradicating unfair discrimination in
their work-related practices.
What militates against the uniform enforcement of anti-discrimination
legislation in respect of the discriminatory work-related practices of
religious associations in all cases – and what limits the purview of
otherwise applicable public principles generally – is that freedom of
association and religious liberty are both core liberal values. Properly
understood, liberalism does not insist that illiberal associations (including
many religious organisations) must always ensure that the conduct of their
internal affairs conforms to liberal principles, including the principle of
non-discrimination, since this would be insufficiently solicitous of
associational and religious liberty. 14 Provided that membership of
associations is voluntary and that freedom of exit is safeguarded, the state
should as far as possible avoid requiring associations to achieve
congruence between their activities and even core public principles such as
non-discrimination. 15 Rather, illiberal associations which are committed
to violating the principle of equal respect – those whose norms mandate,
for example, unequal treatment of men and women – should within limits
be permitted the freedom to conduct their affairs in accordance with the
wishes of their members. The workplace policies of religious associations
may sometimes be unfairly discriminatory, yet the Constitution should be
interpreted to say that in certain circumstances (which it is the aim of this
article to specify) religious associations have the right to discriminate in
their work policies on their own deplorable terms.
Why is freedom of association so important? One reason is that groups
and associations contribute to their members' wellbeing. Freedom of
association enables individuals to ‘create and maintain intimate
relationships of love and friendship’ and is ‘increasingly essential as a
means of engaging in charity, commerce, industry, education, health care,
13 N Rosenblum ‘Amos: Religious autonomy and the moral uses of pluralism’ in
N Rosenblum (ed) Obligations of citizenship and the demands of faith: Religious
14
accommodation in pluralist democracies (2000) 166.
See Barry (n 7 above) 147 and W Galston ‘Two concepts of liberalism’ (1995) 105
15
Ethics 516 533.
Rosenblum (n 13 above) 167.