From Liberty to Equality: Putting a Normative Shift in Context (or: The Demise of the Freedom to Discriminate)

Recent years have seen egalitarian theories of religious freedom rising to prominence in theoretical debates about the role of religion in law and society. As authors such as Cécile Laborde have suggested, this egalitarian approach can be distinguished from more liberty-based or accomodationist theories. This Paper takes up this distinction and shows, firstly, how it can be developed into a conceptual framework that is useful for tracing underlying normative cleavages and shifts in contemporary political debates and, secondly, how using this framework in an analysis of one specific (Dutch) case not only confirms the often-assumed shift from liberty- to equality-based arguments but also yields insights that can (further) inform theories of religious freedom. In the first part of the paper, the two competing paradigms are elaborated by describing their opposing views on matters such as the distinctiveness and scope of religious freedom, the perceived role and nature of the state, and the range of interests of (religious and non-religious) citizens that are taken into account. In the second part, this framework is applied to the Dutch parliamentary debate about the freedom of religious schools to discriminate staff members on the basis of their gender, sexuality and/or religious beliefs. The dissection of this debate, which spans over three decades, points to nuances and assumptions which are often overlooked in contemporary theoretical discussions. Instead of displaying an unbridgeable chasm or absolute dichotomy between two competing theories, the analysis reveals a gradual and partial transition towards egalitarian principles whose interpretation itself remains (implicitly or explicitly) contested throughout. Finally, the relevance of the legal-institutional context also becomes clear, as general constitutional changes in the early 1980s effectively pushed the debate in the direction of the egalitarian paradigm - unavoidably (although perhaps unintentionally) resulting in the abolition of this specific freedom to discriminate.