Those who believe – including those who believe divergently and those who disbelieve – can clash in daily life with others who believe or disbelieve differently. They can come into conflict with... Show moreThose who believe – including those who believe divergently and those who disbelieve – can clash in daily life with others who believe or disbelieve differently. They can come into conflict with laws and regulations or with state institutions that disturb, interfere with their lives based on those beliefs. When these conflicts reach the courts, they are adjudicated under the freedom of religion and belief. Sometimes, similar cases lead to different outcomes in different jurisdictions. The notion that judicial interpretation matters for human rights is almost uncontested. This study is interested in the standard interpretations of the freedom of religion and belief by the Supreme Court of Canada, the Constitutional Court of South Africa, and the European Court of Human Rights. From each of these Courts, 15 cases were selected and systematically analyzed to reconstruct the standard interpretations. They have been compared to find similarities and differences, in terms of optimal protection of believers. The study also analyses and compares the standard interpretations from the perspective of Cass Sunstein’s judicial minimalism. The ultimate goal is to find best practices for optimal protection of believers in the judicial interpretation of the freedom of religion and belief and to enable possible judicial borrowing. Show less
This Italian version of this article is online at www.articolo29.it/genius, the English version at scholarship.law.duke.edu/djcil/vol24/iss1/4, the Dutch version at hdl.handle.net/1887/24920, and...Show moreThis Italian version of this article is online at www.articolo29.it/genius, the English version at scholarship.law.duke.edu/djcil/vol24/iss1/4, the Dutch version at hdl.handle.net/1887/24920, and the Vietnamese version at hdl.handle.net/1887/24934.The right to establish and develop relationships with other human beings was first articulated — as an aspect of the right to respect for private life — by the European Commission of Human Rights (in 1976). Since then such a right has been recognised in similar words by national and international courts, including the U.S. Supreme Court (Roberts v. U.S. Jaycees), the European Court of Human Rights (Niemietz v. Germany), the Constitutional Court of South Africa (National Coalition for Gay and Lesbian Equality), and the Inter-American Court of Human Rights (Ortega v. Mexico). This lecture traces the origins of this right, linking it to the meaning of the word ‘orientation’ and to the basic psychological need for love, affection and belongingness (Maslow 1943). It proposes to speak of ‘the right to relate’, and argues that this right can be seen as the common theme in all issues of sexual orientation law (ranging from decriminalisation and anti-discrimination, to the recognition of refugees and of same-sex parenting). This right can be used as the common denominator in the comparative study of all those laws in the world that are anti-homosexual, or that are same-sex-friendly. The right to establish (same-sex) relationships implies both a right to come out, and a right to come together. The right to develop (same-sex) relationships is being made operational through legal respect, legal protection, legal recognition, legal formalization, and legal recognition of foreign formalization. Show less
