the shift in how religious freedom is understood as a matter of protecting individual choice to thinking about it as a matter identity. According to the choice approach, the state must protect the individual’s freedom to choose but it cannot be expected to bear the costs of the religious choices citizens make. The identity approach treats the claims individuals and groups make about their religious commitments as nonnegotiable facts rather than choices and considers the failure of the state to protect these commitments as unjust because it exposes the individual to disrespect and disadvantage, and stigmatizes and excludes them from full membership in the polity. This paper examines the political context in which the identity approach has emerged in the last 50 years. It then examines three implications for protection of religious freedom of this shift from choice to identity. Such a shift 1) enhances the capacity of courts to address claims of historical injustice 2) leads courts to focus on the religious practices at a group rather than an individuals level and 3) increases the pressure on courts to assess the authenticity of religious beliefs and practices. These implications lead to significant challenges for public institutions, which are discussed in the final section of the paper.Eisenberg comments that
In the last 50 years, one of the most significant changes to the protection of rights in western democracies has occurred due to a shift in the approaches taken in the public sphere to religious freedom. Whereas religion was once treated as a matter crucial to individual freedom to choose one’s most deeply held beliefs and to follow one’s conscience, it is now increasingly viewed as an un-chosen identity similar to culture or ethnicity, which must be accommodated in order to treat people fairly. While ‘choice’ and ‘identity’ are not mutually exclusive perspectives, what has been referred to as the choice and the identity approaches in jurisprudence1 have different political aims, impose different obligations and pressures on political institutions, and motivate distinctive ideas about the nature of citizenship and the public sphere.
Perhaps the greatest benefit of a shift from choice to identity is that it has provided religious groups with a better opportunity to present arguments about historical and group-based injustice, which are arguments easily ignored when religious freedom is understood primarily as a means to protect individual choice. Whereas the choice approach focuses on restrictions that limit individual freedom to choose their religious commitments and manifest their chosen practices, the identity approach treats religious commitments as part of a person’s identity and therefore as a non-negotiable feature of a person which the state must respect in order to treat people as equals. According to the identity approach, states that restrict religious practices risk placing citizens in the impossible position of being true to their deepest religious convictions or having access to the benefits of citizenship.
This paper builds on a distinction found in legal scholarship between the choice and identity approaches to religious freedom3 to explore the benefits and drawbacks of each approach to the democratic practices of western states. I begin by exploring the tension between these two approaches in recent legal debates and decisions about freedom of religion in Canada, the United States and Europe, and then examine some consequences that this tension on public decision-making and public institutions, especially courts. As the paper shows, the distinction between the choice and identity is by no means seamless or uncomplicated. In most cases, both matters of choice and identity are at stake and judges usually disagree about which is the best approach to follow in resolving difficult cases. The aim here is to explain what this tension looks like today, and to examine the implications and risks that follow from it.Eisenberg concludes
Choice and identity represent different frameworks for public decision making about religious freedom and these frameworks illuminate different kinds of injustice that are associated with limiting religious freedom. On my view, both frameworks are imperfect. Both frameworks operate on the basis of a partial fiction about religious commitment; both involve using the law, which is at best a blunt instrument, to situate and resolve conflicts about religion, and each distorts claims or leads to serious risks, including risks to the groups that advance claims of injustice in the first place. That said, the application of these frameworks in real world settings helps to illuminate some of the challenges that courts and other public institutions confront in deciding cases about religious freedom.
Whereas the observations here do not provide adequate guidance about how conflicts about religious freedom ought to be decided, they point to some interim conclusions that might be helpful when considering how best to resolve conflicts. First, whereas the risks of an identity approach are serious, the limitations of the choice approach have become impossible to ignore. For example, state policies that ban veils amongst public employees, or favour religious symbols on school walls, are the targets of criticism today, in large part, because they are viewed as buying into the myth that individuals are free to choose their religious commitments and should be liable for the consequences of their choices. Even if the identity approach does not inform the majority’s decisions in most legal cases, it increasingly informs the way in which publics respond critically to these decisions.
Second, the strategic and often deeply political ways in which religious freedom is defended in the public sphere can obscure internal group pluralism yet, a sociologically realistic approach to religious commitment may be unsuited to advancing a convincing case for rectifying injustice towards a group, and this fact is the source of a dilemma for many groups that have just grievances against state policies. As the identity approach shows, the most convincing case for tracking injustice sometimes creates an incentive for groups to generalize and even exaggerate the importance and role of their practices.
Finally, diversity arises from our distinct perspectives, which are, in large part, the product of distinctive group histories and the experiences and struggles that inform these histories. Today, the expectation is that democratic institutions, including courts, should be prepared to recognize these distinctive group standpoints and the struggles that have informed them. As Rawls cautioned, without recognizing this deep diversity, we are left with our ‘mutual suspicions and hostilities’ based on false suppositions that “our differences are rooted solely in ignorance and perversity, or else in the rivalries for power, status, or economic gain.” This means that sometimes courts must assess evidence about the role and significance of a religious practice even if doing so places onerous demands on them because the alternative to recognizing different conceptions of the world presents even greater challenges.