The Expression of Cultural and Religious practice: A Constitutional Test

Abstract

Various conventions and national constitutions are differently worded and that the interpretation of national constitutions, in particular, reflects different approaches to the concepts of equality and non-discrimination. The different approach adopted in the different national jurisdictions arise not only from different textual provisions and from different historical circumstances, but also from different jurisprudential and philosophical understanding of equality. The jurisprudence of the courts make clear that the proper reach of the equality right must be determined by reference to the society’s history and the underlying values of the Constitution. It has been observed that a major constitutional object is the creation of an non-racial and non-sexist egalitarian society underpinned by human dignity, the rule of law, a democratic ethos and human rights. From there emerges a concept of equality that goes beyond mere formal equality and mere non-discrimination which requires identical treatment, whatever the starting point or impact. The question is, how does the state, in limiting religious freedom, conform to the standards of an open and democratic society based on human dignity, equality and freedom? The hope is that the conclusion of this paper will then be able to be extended to more controversial cases, in particular, involving limits on the right to freedom of expression, culture and belief.