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Book Chapter

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Sexual orientation, Gender status, Freedom of religion


Civil Rights and Discrimination | First Amendment | Human Rights Law | Law and Gender | Religion Law | Sexuality and the Law


The liberal-democratic governmental compact assures that citizenship, political power, and civic participation in all of its forms will be afforded to all citizens on an equal basis. In particular, simple identity—as a presumptive matter—cannot be the basis for the denial of human rights. It is on this simple yet elegant principle that all civil-rights laws are founded.

Freedom of religion presents a particularly complex problem in this context. On the one hand, it is—itself—a universally recognized member of the human rights family, and is protected under civil-rights laws. On the other hand, it is— because of its possible invocation by any person, its self-definition by adherents, and its unreviewability by courts—a potentially anarchic and undermining force of all laws, including those that protect the civil (human) rights of others.

When the claimed religious freedom of one citizen conflicts with the claimed civil rights of other citizens, a choice by the polity must be made. It is not a question of “painless” accommodation, or the existence of alternatives for the civil-rights claimant; it is a question of whether the polity, as a whole, will vindicate the principle of identity equality. We have already recognized and enforced the principle that all citizens are entitled to political power and civic participation on an equal basis without regard to their racial, religious, parentage, or gender identities. It is time to include sexual orientation and transgender status as well.


Published in: Religion and the Discourse of Human Rights: Israel Democracy Institute, 2014.