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Religious Freedom and Gay RightsEmerging Conflicts in the United States and Europe$
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Timothy Shah, Thomas Farr, and Jack Friedman

Print publication date: 2016

Print ISBN-13: 9780190600600

Published to Oxford Scholarship Online: June 2016

DOI: 10.1093/acprof:oso/9780190600600.001.0001

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Wrongful Discrimination?

Wrongful Discrimination?

Religious Freedom, Pluralism, and Equality

(p.67) 4 Wrongful Discrimination?
Religious Freedom and Gay Rights

Richard W. Garnett

Oxford University Press

This chapter seeks to bring improved clarity and precision to our understanding of “discrimination,” particularly as it relates to conflicts between equality and religious freedom in the United States. It observes that discrimination is not wrong in and of itself—wrongful discrimination is wrong. Sometimes our most basic freedoms require the latitude to discriminate. This is often the case, it is suggested, with the right to religious freedom. Looking at three US Supreme Court cases—Bob Jones University, Christian Legal Society, and Hosanna-Tabor—this article delineates the contours of unjust and just discrimination. It finds discrimination is just when no “compelling state interest” is at stake and when preventing discrimination violates the dignity or rights of others. For example, in the United States the “ministerial exception” allows religious institutions to discriminate in their internal affairs—to deny them this freedom would be to impose on their religious liberty.

Keywords:   discrimination, anti-discrimination, religious freedom, religious liberty, equality, law, Supreme Court, Bob Jones University, Christian Legal Society, Hosanna-Tabor

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