Religion, Human Rights, and the Workplace: Judicial Balancing in the United States Federal Courts and the European Court of Human Rights (ICLARS Series on Law and Religion)

Cover
Half Title
Series
Title
Copyright
Contents
Table of cases
Acknowledgments
Introduction: two traditions of balancing rights
Part I Freedom of religion in the United States and the European Court of Human Rights
	1 The first freedom: religious free exercise in US federal courts
	2 Tiered review in US free exercise cases
		Rational basis scrutiny and the emerging MFN standard
		The mechanics of strict scrutiny
			Determining “substantial burden”
			Determining “compelling state interest”
			Narrow tailoring and the “least restrictive means” test
		Intermediate scrutiny as an ad hoc range of standards
		Balancing as a misnomer as applied in US courts
	3 Religious freedom in the European Court of Human Rights
		The Convention system
		The protection of religious freedom
			Religious symbols and clothing
			Conscientious objection
			Autonomy and liberty of religious institutions
	4 The mechanics of European proportionality analysis
		The traditional test
			Determining the legitimacy of aims
			Determining suitability of limitations on free exercise
			Determining necessity
			Proportionality stricto sensu
		The ECtHR’s modified approach to proportionality
			Legitimate aim
			Necessary in a democratic society and the final balance
Part II Religion in the workplace
	5 Religious conflicts in the workplace: symbols, speech, and moral complicity
		Common challenges and diverging approaches to accommodation
			The debate over religion versus other beliefs: is religion special?
			The role of the judiciary in granting exemptions for religion or belief
			Contrasting approaches to religious accommodation in the workplace
		The treatment of religious adornment: clothing, grooming, and symbols
			Adornment cases involving the public image of the employer
			The fact-sensitive approach to health and safety issues
			A trend towards convergence in religious adornment cases?
		Proselytism and religious opinions at work
		Compelled expression and complicity claims
			Contrasting traditions of compelled expression
			Complicity and the behavior of third parties
			A disparity in focus in regard to complicity
		Convergence and polarization in the types of claims
	6 Religious freedom and three types of employer
		Cases involving government or government-mandated employers
		Cases involving religious employers
			Religious employers and the ministerial exception in the US
			Additional protections for US religious employers
			The European focus on church autonomy
			Religious employer cases compared
		Religion in the for-profit workplace
			Debates over corporate personhood in the US courts
			The European Court of Human Rights’ context-sensitive balancing approach
			The cases compared: similar reasoning, differing preoccupations
		Similar challenges and diverging approaches in specific workplace environments
	7 Assessing religious burdens and state interests
		Evaluating the infringement and burden
			US courts and the contentious “substantial burden” test
			ECtHR and the flexible concept of “interference”
			Comparing the roles of religious burden
		Evaluating the legitimacy of state interest
			ECtHR’s conception of “legitimate aims” in the workplace: a permissive approach to a restricted range of objectives
			The de-emphasized role of legitimacy in US courts
			Comparing the two approaches to legitimate state interests
		Measuring the importance of the state interest
			ECtHR’s minimalist review of state interests
			US courts and the tiered review of state interests
			Contrasting approaches with some common ground
	8 Balancing religious imperatives and secular rights
		Assessing the means/ends relationship
			ECtHR’s deferential stance regarding the means/ends relationship
			The means/ends fit in US courts: a wide range of standards
			Comparing the review of the means/ends relationship: a mutual concern for context
		Assessing the means/ends/burden relationship as an overall balance
			The ECtHR’s decisive application of holistic balancing
			The US courts’ evasion of genuine balancing
	9 Conclusion: The price of free exercise
Index