Abstract
This is the era of human rights and religious litigation. Recent years have witnessed an unprecedented rise in the number of cases where the principles of non-discrimination and equality have been pitted against the right to freedom of religion or belief. This article seeks to examine this development with regard to an issue that is particularly synonymous with controversy – legal conflicts between conservative religious believers and people from LGBTIQ+ communities. The article’s primary focus is on the adverse consequences of excessive litigation in this field. In order to tackle the problem of conservative faith/ LGBTIQ+ disputes it is suggested that a more holistic approach is needed, based on the principles of compromise, dignity and empathy. The proposed mechanism by which such an approach might be effected is that of ‘meaningful engagement’, a dispute resolution strategy that has been recognised by the South African Constitutional Court.
Highlights
A month seems to pass without press reports of claims that religious freedom is being curbed by human rights laws.[1]
Perhaps unsurprisingly there is a lack of consensus as to the veracity of such claims, but it is undeniable that the last decade has witnessed a dramatic increase in the number of courtroom battles being fought on the extent to which manifestations of religious belief should be constrained by human rights laws that curtail discrimination and promote equality
A second response is that even if a de facto hierarchy of rights exists, such a development is to be welcomed. This is on the basis that because freedom of religion is unlike other protected grounds against discrimination, because the accommodation of certain religious beliefs and practices is hard to reconcile with equality70 – so the prohibition of discrimination on the grounds of sexual orientation should take priority over religious freedom.[71]
Summary
A month seems to pass without press reports of claims that religious freedom is being curbed by human rights laws.[1]. We maintain that there is a pressing need for innovative dispute resolution strategies, built on shared values, to ameliorate the number of acrimonious conservative faith/LGBTIQ+ cases ending up in court. In advancing these arguments, the article is structured as follows. It starts by documenting the increasing regulation of religion by law (‘the juridification of religion’) generally, and the specific issue of conservative-faith/LGBTIQ+ disputes in particular. A number of different options are discussed and, of these, it is argued that the most credible is the dispute resolution strategy of ‘meaningful engagement’
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