What’s Fairness Got to Do with it? Fair Opportunity, Practice Dependence, and the Right to Freedom of Religion

Abstract

The right to religious liberty as for instance set out in the European Convention of Human Rights protects acts of religious observance. Such protection can clash with other considerations, including laws aimed at protecting other state interests. Religious freedom therefore requires an account of when the right should lead to exemptions from other laws and when the right can legitimately be limited. Alan Patten has proposed a Fair Opportunity view of the normative logic of religious liberty. But Patten’s view faces several problems. The normative work in his view is mainly done by added accounts of reasonable claims and of justifiability. So, the Fair Opportunity view in itself does not provide a normative criterion. Defenses of the Fair Opportunity view must therefore turn on the theoretical preferability of its structural features. But the Fair Opportunity view has the wrong form to capture the right to freedom of religion. The form of the right to freedom of religion is due to how its point is to address how states limit the liberty of citizens. Given a practice dependent approach, which assigns importance to the point and purpose of the right to freedom of religion, Patten’s theory is thus problematic.