Associational Freedom, Anti-Discrimination Law and the New Multiculturalism

Abstract

One of the major tensions about human rights in many Western countries today is how to resolve clashes between anti-discrimination norms and the freedom of religious organisations to maintain their teaching and codes of conduct. In this article we propose that this tension is best understood, not as a conflict between ‘equality’ and ‘religion’, but rather as a failure to better reconcile the individual and communal dimensions of human rights. We argue that a focus on individual rights, without recognising the significance of associational and communal rights, involves a deficient understanding of international human rights standards and leads to lop-sided social policy.

We suggest that the tensions that are now arising involve the working out of a conflict between two competing social ontologies – one which is reductively individualistic and another which affirms the need for a broad degree of autonomy for minority communities. This second social ontology is related to what Michael Helfand has called the ‘new multiculturalism'. In contrast to the 'old multiculturalism', which was aimed at social, economic and political inclusion, the new multiculturalism concerns the desire of minority groups to preserve their particular identities by separating themselves from the norms of the mainstream.

We argue that the new multiculturalism cannot be ignored. It represents the legitimate claims of minority communities to have their ethical and religious standards respected within the larger polity, claims which are supported and sustained by an important but neglected strand in international human rights law. As the multicultural mosaics of many Western countries become increasingly deep and diverse, the aspirations of minority communities to preserve their particular identities is destined to raise complex issues of accommodation that will have to be addressed. Social harmony will depend upon it.

The resolution of these tensions requires a movement away from understanding debates about the scope of anti-discrimination statutes in terms of a conflict between competing religious and secular worldviews. Instead, we must search for, or rediscover, social ontologies that are better able to provide a coherent philosophical foundation for accommodating individual rights and the legitimate claims of minority communities to uphold their codes of moral conduct, even though these may be divergent from majority opinion.

Drawing on Dwight Newman's approach to reconciling individual and communal rights, we propose that the prime consideration ought to be the integral well-being of the persons involved, rather than the liberal autonomy of those persons. This means that communities legitimately have certain moral expectations of their members, and that these expectations should be respected provided they serve their members’ welfare interests and respect the welfare interests of non-members. However, drawing also on the work of Víctor Muñiz-Fraticelli, we argue that determinations of the welfare interests of the persons involved must be developed in a way that is respectful of the different perspectives from which such interests can be defined and assessed, in order to secure what William Galston has called "maximum feasible accommodation" of minority communities within the wider society.

Keywords: multiculturalism, human rights, individualism, group rights, equality, religious exemptions, discrimination, freeodm of association, freedom of religion