Towards re-thinking "balancing" in the courts and the legislature’s role in protecting religious liberty

Abstract

This article critically questions "balancing" as the dominant framework for adjudicating issues of religious liberty. Within this framework, the possible friction between rights (in particular, religious liberty and non-discrimination) is assessed on a proportionality basis, leading a court to balance what are characterised as competing interests. The article suggests that balancing may misconceive the nature of a religious community; that abstracting religious claims to interests in the balancing framework may contribute to the inability of courts to comprehend arguments from religious communities; and that a secularisation narrative structures such proportionality or balancing exercises. The article raises whether alternative forms of analysis are possible. It turns to legislative deliberation and action, and how this ideally entails a broader capacity to hear distinctly religious claims and may be well-placed to consider how religious communities contribute to shared goods – even if they do so differently.