Religious freedom and the ‘right to discriminate’ in the school admissions context: a neo-republican critique

Abstract

In law and discourse, it has typically been assumed that the religious freedom of state-funded religious schools must trump any competing right to non-discrimination on grounds of belief. For example, the Irish Constitution has been interpreted as requiring the broad exemption of denominational schools from the statutory prohibition on religious discrimination in school admissions. This stance is mirrored in the UK Equality Act 2010. Thus, religious discrimination in the public education context has been rationalised with reference to a ‘liberty-equality dichotomy’, which prioritises the integrity of faith schools' ‘ethos’, as an imperative of religious freedom. We argue that this familiar conceptual dichotomy generates a novel set of absurdities in this peculiar context. We suggest that the construction of religious freedom and non-discrimination as separate and antagonistic values rests on a conceptually flawed definition of religious freedom itself, which overlooks the necessary dependence of religious freedom on non-discrimination. Furthermore, it overstates the necessity, to religious freedom, of religious schools' ‘right to discriminate’. We argue for an alternative ordering of the values of religious freedom and non-discrimination – which we locate within the neo-republican theory of freedom as non-domination.