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Balancing Dignity, Equality and Religious Freedom: A Transnational Topic

  • Andrea Pin (a1)
Abstract

The concept of dignity has made its way into contemporary discourse on rights after having taken a winding road which intersected secular thinking with religious thinking. Its pervasive utilisation by courts shows its richness as well as its amorphousness. An enquiry into comparative law suggests that the concept of dignity, especially when it is associated with the idea of equality, creates tensions with claims to religious freedom. Such clashes cannot be reconciled on theoretical grounds, but only on practical ones, depending on context and according to proportionality scrutiny.

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References
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2 Lindholm, T, ‘Article 1’ in The Universal Declaration of Human Rights: a commentary (Oslo, Oxford and New York, 1992), p 34.

3 Lawrence v Texas 539 US 558 (2003); Obergefell v Hodges 576 US ___ (2015); Carter v Canada [2015] 1 SCR 331.

4 Eweida & Ors v United Kingdom App no 51671/10 (ECtHR, 15 January 2013), para 24.

5 See Confederazione Generale Italiana del Lavoro (CGIL) v Italy App no 91/2013 (European Committee of Social Rights, 12 October 2015), paras 187, 191–192, 206, 2954. The Committee, however, found that this pressure did not amount to a violation of the Charter of Social Rights. The decision did not discuss the issue of dignity.

6 SAS v France App no 43835/11 (ECtHR, 1 July 2014).

7 B Douglas, ‘Undignified rights: the important of a basis in dignity for the possession of human rights in the United Kingdom’, (2015) Public Law 241–257, emphasises the lack of a dignity-based narrative of rights in the UK. More recently in England, the High Court considered that the dignity of one-year-old Charlie Gard would best be respected through the avoidance of an experimental treatment for his disease (for which no known medical treatment exists), notwithstanding his parents' will to try it. See Great Ormond Street Hospital v Constance Yates, Chris Gard and Charles Gard [2017] EWHC 972. At the time of writing, renewed litigation in this case was ongoing.

8 Maritain, J, ‘La personne et le bien commun’, (1946) 46 Revue Thomiste 237278 .

9 Young, K, Constituting Economic and Social Rights (Oxford, 2012), pp 44 and 46.

10 Finck, M, ‘The role of human dignity in gay rights adjudication and legislation: a comparative perspective’, (2016) 14 International Journal of Constitutional Law 2653 at 26: ‘Dignity has … been explicitly relied on in those areas of law that carry a strong moral connotation.’

11 Ibid, p 45.

12 Law, D, ‘Generic constitutional law’, (2005) 89 Minnesota Law Review, 652751 at 659–660.

13 Whitman, J, ‘The two Western cultures of privacy: dignity versus liberty’, (2004) 113 Yale LJ 11511221 at 1153; Young, Constituting Economic and Social Rights, p 43. On the expansive utilisation of the concept of dignity in the US Supreme Court's jurisprudence, see Resnik, J, ‘Constructing the “foreign”: American law's relationship to non-domestic sources’, in Andrenas, M and Fairgrieve, D (eds), Courts and Comparative Law (Oxford, 2015), pp 437471 at p 441, and Chibundu, M, ‘Can, do, and should legal entities have dignity? The case of the state’, (2015) 75 Maryland LR 194209 at 194.

14 Tribe, L, ‘Equal dignity: speaking its name’, (2015) 129 Harvard Law Review Forum 1632 at 16 and 17, emphasis in original.

15 Douglas, ‘Undignified rights’, p 241.

16 Daly, E, Democracy, Citizenship, and Constitutionalism: dignity rights, courts, constitutions, and the worth of the human person (Philadelphia, PA, 2012), p 103.

17 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn (2004) ECJ C-36/02.

18 Conseil d'Etat, Assemblée, 27 October 1995, no 143578. The ban was considered as legitimate by the Human Rights Committee of the United Nations, Communication no 854/1999, 8–26 July 2002, CCPR/C/75/D/854/1999, para 7.4.

19 Bundesverfassungsgericht no 357/05 (15 February 2006) at para 124.

20 Dupré, C, The Age of Dignity: human rights and constitutionalism in Europe (Oxford and Portland, OR, 2015), p 32.

21 Ibid, pp 39 and 43.

22 Ibid, p 33.

23 Ibid, p 50. Interestingly, Lord Mansfield's famous opinion in Somerset v Stewart (1772) 98 ER 499 supported the abolition of slavery without referring to the idea of ‘dignity’. On Lord Mansfield's education and religious sensibility, see Poser, N S, ‘Lord Mansfield: the reasonableness of religion’ in Hill, M and Helmholz, R, Great Christian Jurists in English History (Cambridge, 2017).

24 Moyn, S, ‘The secret history of constitutional dignity’, in McCrudden, C (ed), Understanding Human Dignity (Oxford, 2013), pp 95111 at p 100.

25 Article 151: ‘The economy has to be organised based on the principles of justice, with the goal of achieving life in dignity for everyone.’

26 Moyn, S, The Last Utopia: human rights in history (Cambridge, MA, 2010), p 54.

27 Staab, G, The Dignity of Man in Modern Papal Doctrine: Leo XIII to Pius XII (Washington, DC, 1957), p 11. Pius XI used this concept in his Mit brennender Sorge declaration (14 March 1937) against Nazi acts, as well as in his Divini redemptoris encyclical letter (19 March 1937) against communism.

28 Maritain, ‘La personne et le bien commun’, p 237.

29 Lindholm, ‘Article 1’, p 34.

30 Israel, G, René Cassin (1887–1976) (Brussels, 2007), p 197.

31 S Moyn, Last Utopia, pp 87 and 187; Dupré, Age of Dignity, p 60.

32 Carozza, P, ‘Human dignity and judicial interpretation of human rights: a reply’, (2008) 19 Eur J Int L 931944 at 933.

33 Regarding Cassin's priorities, see Prost, A and Winter, J, René Cassin et les droits de l'homme: le projet d'une génération (Paris, 2011), pp 295296 .

34 Chibundu, ‘Can, do, and should legal entities have dignity?’, p 197. On the role of organised societies as prerequisites for enjoying human dignity, see Arendt, H, The Origins of Totalitarianism (Garsington, 2009; first published 1951), p 301.

35 Maritain, ‘La personne et le bien commun’, pp 253 and 267; Scola, A, L'alba della dignità umana: la fondazione dei diritti umani nella dottrina di Jacques Maritain (Milan, 1982), p 154.

36 Chibundu, ‘Can, do, and should legal entities have dignity?’, p 204.

37 Williams, T, Who Is My Neighbour? Personalism and the foundations of human rights (Washington, DC, 2005), p 152: ‘In presenting dignity as the foundation of rights, … personalism focuses especially on the ethical dynamics of situations.’

38 Resnik, ‘Constructing the “foreign”’, p 445. Interestingly, although the recent Northern Ireland case Lee v McArthur & Ors [2016] NICA 29 (concerning a bakery run by born-again Christians who refused to bake a cake supporting gay marriage) did not quote the concept of dignity explicitly, it nonetheless gave much weight to the importance of the ‘participation of gay people in many aspects of our community life’ (para 50).

39 Mahlmann, M, ‘Human dignity and autonomy in modern constitutional orders’, in Sajó, A and Rosenfeld, M (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford, 2012), pp 370396 at p 391.

40 Chibundu, ‘Can, do, and should legal entities have dignity?’, p 197.

41 Ibid, p 202.

42 The article considers UK and Canadian judgments, as these jurisdictions seem to have developed the most striking contrasts between the religious and secular understandings of dignity. The US Supreme Court, however, is not absent from this scenario: see Cruzan v Director, Missouri Dept of Health 497 US 261 (1990).

43 Carter v Canada [2015] 1 SCR 331.

44 Jackson, T, Political Agape: Christian love and liberal democracy (Grand Rapids, MI, 2015), pp 8895 , reflects on the relationship and the dissociation between ‘sanctity’ and ‘dignity’. Interestingly, he defines ‘sanctity’ as ‘gifted inviolability based on impersonal essence’ and links the concept back to religious thinking (p 91).

45 Carter at para 2.

46 Kyserlingk, E, Sanctity of Life or Quality of Life (Montreal, 1979), p 10; the volume is a study commissioned by the Law Reform Commission of Canada.

47 Mahlmann, ‘Human dignity and autonomy’, p 376.

48 Jackson, Political Agape, p 194, believes that the concepts of ‘sanctity’ and ‘dignity,’ albeit connected, should be ‘seen as distinct’.

49 Rodriguez v British Columbia [1993] 3 SCR 519.

50 Ibid.

51 R (on the application of Nicklinson and another) (Appellants) v Ministry of Justice (Respondent), et al [2014] UKSC 38.

52 Pretty v Director of Public Prosecutions and Secretary of State for the Home Department [2001] UKHL 61; Pretty v UK App no 2346/02 (ECtHR, 29 April 2002).

53 Airedale NHS Trust v Bland [1993] AC 789.

54 Ibid, per Lord Goff, at p 863.

55 Ibid.

56 Pretty v UK at para 65.

57 Nicklinson at para 49.

58 Ibid, at para 311.

59 Ibid, at para 199.

60 Ibid, at paras 208–209.

61 Ibid, at para 209. More recently, see Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67.

62 J Baker, ‘A matter of life and death’, Oxford Shrieval Lecture, 11 October 2016, p 14, available at <https://www.judiciary.gov.uk/wp-content/uploads/2016/10/mr-justice-baker-shrieval-lecture-11102016.pdf>, accessed 1 November 2016.

63 R Kahn, ‘The right to same-sex marriage: formalism, realism, and social change in Lawrence (2003), Windsor (2013), & Obergefell (2015)’, (2015) 75 Maryland L Rev 271–310 at 289.

64 Ibid, p 288.

65 Casti connubii, para 1.

66 See, for instance, ibid, at paras 4 and 5.

67 Kant, I, Groundwork of the Metaphysics of Morals, ed Gregor, M (Cambridge, 1997), p 43 (at para 4:436), emphasis in original.

68 See J Loughlin, ‘Human dignity: the foundation of human rights and religious freedom’, (2016) 19 Memoria y Civilización 313–343 at 337: ‘Kant's original insight that autonomy was a key aspect of human dignity … has increasingly been interpreted in Western societies in an individualistic way’.

69 As Kennedy noted in Obergefell: ‘An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.’

70 Kant, Groundwork of the Metaphysics of Morals, p 46 (at para 4:439), emphasis in original.

71 Scola, L'alba della dignità umana, p 153.

72 Maritain, ‘La personne et le bien commun’, pp 238, 260, 259.

73 Novak, D, The Jewish Social Contract: an essay in political theology (Princeton, NJ, 2005), p 68.

74 Dupré, Age of Dignity, p 17.

75 Mahlmann, ‘Human dignity and autonomy’, p 373.

76 Schalk and Kopf v Austria App no 30141/04 (ECtHR, 24 June 2010); Vallianatos and Others v Greece App nos 29381/09 and 32684/09 (ECtHR, 7 November 2013); Oliari and Others v Italy App nos 18766/11 and 36030/11 (ECtHR, 21 July 2015); Chapin and Others v France App no 40183/07 (ECtHR, 9 June 2016).

77 For example, see Oliari at para 107.

78 For example, see Parrillo v Italy App no 46470/11 (ECtHR, 27 August 2015) at para 24.

79 Even the most recent case, Taddeucci et McCall v Italy App no 51362/09 (ECtHR, 30 June 2016), which sanctioned Italy for not allowing residence permits for homosexual partners of Italian citizens, did not pay specific attention to the issue of dignity.

80 Eweida & Ors v United Kingdom App no 51671/10 at para 83.

81 Ibid.

82 Bundesverfassungsgericht no 357/05 at paras 14, 143, 121 (the last of which speaks of the necessity of treating the issue of respecting the value of each human being ‘in concrete terms in the individual case in view of the specific situation in which a conflict can arise’).

83 Carter at para 77.

84 Omega at para 38.

85 SAS at para 120.

86 Klein, E, ‘The importance and challenges of value-based legal orders’, (2015) 10 Intercultural Human Rights Law Review 124 at 7 and 15.

1 The author wishes to express his gratitude to Mark Hill QC for his extremely valuable comments on an earlier draft, as well as the Center for the Study of Law and Religion at Emory University for organising a discussion seminar on this topic.

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Ecclesiastical Law Journal
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