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Taking diversity seriously: Religious associations and work-related discrimination 81
protection to collective effort on behalf of shared goals is especially important
in preserving political and cultural diversity.
Associations should not always be expected to conform to public
principles, including non-discrimination, when those principles clash with
the convictions of members, and the state should refrain as far as possible
from interfering with the internal affairs of associations. This is what the
protection of diversity requires. Churches and church-run institutions and
groups are not simply associations; they are religious associations. Claims
by religious associations that they be permitted to discriminate in the
workplace on otherwise prohibited grounds are typically grounded on the
right to freedom of religion as well as the right to freedom of association:
‘Religion includes important communal elements for most believers. They
exercise their religion through religious organisations, and these
organisations must be protected by the [Free Exercise] Clause.’ 25 The right
to freedom of religion incorporates the interest of churches in conducting
their internal affairs, including labour relations, according to their
perceived interests; that is, in keeping decision-making authority over
operations within the church free of government interference. 26 The
argument that government should not regulate the way in which churches
select their officers and workers is that to do so is an unacceptable
encroachment on religious affairs: It is simply inappropriate for the state to
insist that religious organisations carry on their internal affairs in a way
that is inconsistent with settled religious convictions and practices. 27
The right to religious liberty, like the rights to equality and freedom of
association, is a fundamental right. The plausibility of cognitive and
normative claims made by religious believers need not be admitted to
appreciate that the right to freedom of religion protects important interests.
Religion is a significant part of believers' lives and their ‘search for life's
ultimate meaning’; it ‘protects people's responsibility to find value in their
lives’. 28 It is a source of identity that is closely connected to self-respect and
dignity, as well as a source of moral values. But ‘one cannot conceive of
meaningful individual religious freedom unless religious institutions are
protected from government encroachment’. 29 Indeed, once the interests
protected by the right to freedom of religion are added to those protected
by the right to associational liberty it may be that, as Greenawalt contends,
claims by religious associations for exemption from anti-discrimination
25 D Laycock ‘Towards a general theory of the religion clauses: The case of church labour
relations and the right to church autonomy’ (1981) 81 Columbia Law Review 1373 1389.
26 Laycock (n 25 above) 1373 1414.
27 K Greenawalt Religion and the Constitution (2006) 379.
28
M Nussbaum Liberty of conscience: In defence of America's tradition of religious equality
(2008) 19 and R Dworkin Is democracy possible here? Principles for a new political debate
(2006) 66.
29
FM Gedicks ‘Toward a constitutional jurisprudence of religious group rights’ (1989) 99
Wisconsin Law Review 100 159.