1st Edition

Religion, Human Rights, and the Workplace Judicial Balancing in the United States Federal Courts and the European Court of Human Rights

By Gregory Mose Copyright 2024

    Religious freedom is a fundamental and relatively uncontested right in both the United States and Europe. But other values like equality, justice, and the right to a private life are just as precious. Managing such conflicts has become a highly contested and politicized area of law and nowhere are such conflicts more evident – or more challenging – than those arising in the workplace.

    By comparing United States Federal Courts’ approach to free exercise in the workplace with that of the European Court of Human Rights, this book explores two very different methodologies for adjudicating rights conflicts. In examining methods and results, case by case, issue by issue and addressing each step of the analytical processes taken by judges, it becomes apparent that the United States has lost its way in the quest for equality and justice. It is argued here that while the European approach has its own flaws, its proportionality approach may offer vital lessons for United States practice.

    The book will make compelling reading for researchers, academics, and policy-makers working in the areas of law and religion, human rights law, constitutional law, and comparative law.

    Table of cases


    Introduction: two traditions of balancing rights

    PART I

    Freedom of religion in the United States and the European Court of Human Rights

    1 The first freedom: religious free exercise in US federal courts

    2 Tiered review in US free exercise cases

    Rational basis scrutiny and the emerging MFN standard

    The mechanics of strict scrutiny

    Determining “substantial burden”

    Determining “compelling state interest”

    Narrow tailoring and the “least restrictive means” test

    Intermediate scrutiny as an ad hoc range of standards

    Balancing as a misnomer as applied in US courts

    3 Religious freedom in the European Court of Human Rights

    The Convention system

    The protection of religious freedom

    Religious symbols and clothing

    Conscientious objection

    Autonomy and liberty of religious institutions

    4 The mechanics of European proportionality analysis

    The traditional test

    Determining the legitimacy of aims

    Determining suitability of limitations on free exercise

    Determining necessity

    Proportionality stricto sensu

    The ECtHR’s modified approach to proportionality

    Legitimate aim

    Necessary in a democratic society and the final balance


    Religion in the workplace

    5 Religious conflicts in the workplace: symbols, speech, and moral complicity

    Common challenges and diverging approaches to accommodation

    The debate over religion versus other beliefs: is religion special?

    The role of the judiciary in granting exemptions for religion or belief

    Contrasting approaches to religious accommodation in the workplace

    The treatment of religious adornment: clothing, grooming, and symbols

    Adornment cases involving the public image of the employer

    The fact-sensitive approach to health and safety issues

    A trend towards convergence in religious adornment cases?

    Proselytism and religious opinions at work

    Compelled expression and complicity claims

    Contrasting traditions of compelled expression

    Complicity and the behavior of third parties

    A disparity in focus in regard to complicity

    Convergence and polarization in the types of claims

    6 Religious freedom and three types of employer

    Cases involving government or government-mandated employers

    Cases involving religious employers

    Religious employers and the ministerial exception in the US

    Additional protections for US religious employers

    The European focus on church autonomy

    Religious employer cases compared

    Religion in the for-profit workplace

    Debates over corporate personhood in the US courts

    The European Court of Human Rights’ context-sensitive balancing approach

    The cases compared: similar reasoning, differing preoccupations

    Similar challenges and diverging approaches in specific workplace environments

    7 Assessing religious burdens and state interests

    Evaluating the infringement and burden

    US courts and the contentious “substantial burden” test

    ECtHR and the flexible concept of “interference”

    Comparing the roles of religious burden

    Evaluating the legitimacy of state interest

    ECtHR’s conception of “legitimate aims” in the workplace: a permissive approach to a restricted range of objectives

    The de-emphasized role of legitimacy in US courts

    Comparing the two approaches to legitimate state interests

    Measuring the importance of the state interest

    ECtHR’s minimalist review of state interests

    US courts and the tiered review of state interests

    Contrasting approaches with some common ground

    8 Balancing religious imperatives and secular rights

    Assessing the means/ends relationship

    ECtHR’s deferential stance regarding the means/ends relationship

    The means/ends fit in US courts: a wide range of standards

    Comparing the review of the means/ends relationship: a mutual concern for context

    Assessing the means/ends/burden relationship as an overall balance

    The ECtHR’s decisive application of holistic balancing

    The US courts’ evasion of genuine balancing

    9 Conclusion: The price of free exercise



    Gregory Mose is a professor of international law and politics at the American College of the Mediterranean in Aix-en-Provence, France.