Religious discrimination and the ‘hierarchy of rights’

Abstract

In theory, there is no hierarchy of rights in the Equality Act 2010: equal weight is given to each protected characteristic. At least two, very different, critiques though have been made of this argument as it relates to religion or belief. One argument is that religious discrimination has unfairly been given a lower priority than other characteristics, particularly sexual orientation. The second is that religion is inherently different, partly because religions tend to set extensive, and possibly discriminatory, rules for behaviour. In order to keep religion or belief claims within a reasonable limit, religious discrimination claims must therefore be confined. The perceived danger of confining these claims though is that, because of the insistence that there is no hierarchy of rights, this will lead to reduced protection across all the protected characteristics since concepts which apply across the Equality Act will be reinterpreted in order to avoid unwanted results. As will be demonstrated though, both of these arguments are misconceived.