Can Churches Discriminate? Religious Freedom, Non-Discrimination, and the Search for an Inter-American Standard.

When delimiting the power of churches to discriminate, U.S. and European jurisprudence have developed significantly different responses. The U.S. Supreme Court has embraced an "absolutist approach" by using the ministerial exception doctrine, which allows churches to discriminate against their ministers even if the grounds for discrimination are not based on religious doctrine. The European Court of Human Rights, on the other hand, has adopted a "balancing approach," according to which the rights conflicting in each case must be weighed. The result is that acts of discrimination by churches that are not based on religious doctrine do not appear to be protected in Europe. The Inter-American Court of Human Rights has recently taken a different approach to the permissibility of discrimination by religious communities. While influenced by U.S. and European jurisprudence, the Inter-American Court has rejected both the United States' "absolutist approach" and Europe's "balancing approach" in favor of a more "egalitarian approach." This third approach remains unclear in many aspects but doubtlessly implies changes in the way the right to religious freedom is interpreted. The more "egalitarian approach" has already reached prohibiting churches from discriminating in public schools (even if based on religious belief), a prohibition that may be extended to private schools as well. Under the Inter-American approach, discrimination may at times be permitted in the internal sphere of churches, but under restrictions that appear more stringent than in the United States and Europe. By identifying the salient features of the Inter-American standard, this Article analyzes a new adjudicative approach to the tensions between non-discrimination and religious freedom. [ABSTRACT FROM AUTHOR]