In “The arbitration of religious practice grievances” (1984) 39(2) Arbitration Journal 3, IB Helburn and John R Hill the authors reviewed 31 arbitration awards where arbitrators had to consider management responses to employee religious practices. I remember being disappointed that this was effectively a consideration of an aspect of employment law, rather than the difficult area of arbitration by religious organisations and individuals working within a religious framework. My mistake rather than the authors!

The cases reviewed largely fall into the categories of clashes between work obligations and manifestation of religion that you would expect – as the authors note, discrimination because of beliefs held simpliciter is not usually at issue. The exception to this was a quite substantial number of cases the authors categorise as “Unauthorised leaves of absence for ministers”. in one of the cases noted, the employee was suspended for excessive absences when he preached at funerals of members of his church. This  got me thinking about how far we should give added weight to a religious “officials” interests over that of other members of their community. We could see the individual burden on a minister as being greater, but also see it as a burden on the (non-employee) religious community. Should this be given weight in assessing the proportionality or reasonableness of the restriction?

The willingness of US journals to publish only slightly amended versions of colloquia provided space for scholars to float ideas, or deal with fairly low-key points, before the development of the blog. The contribution by Michael S Greve, in (1992/3) Annual Survey of American Law 563, would make a rather good – if long – blog post today.

Greve’s central point is that advocates of hate crime in the US are rank hypocrites. Greve, with very broad strokes, sees “them” as being soft on crime, except when it comes to hate crime; intending to target beliefs or attitudes, while denying that the law does this; and much less vigilant on the dangers of hate crime than they are of other state measures. On the last point Greve is concerned that racial hate crimes will be applied disproportionately to different racial groups, and that they will encourage prosecutors to “dig around in defendants’ personal lives for evidence of bigotry” (at 565). The risks of this sort of investigation, Greve argues, would be of enormous concern to the ACLU in any other context.

Having lambasted supporters of hate crime for their hypocrisy, Greve suggests that a much more intellectually serious way to support hate crime would be to accept that it implicates First Amendment rights, but that the state has a compelling interest in restricting them. This approach does not appeal to supporters of hate crime laws because they are too invested in a particular perspective on the First Amendment – and I would add a particularly US perspective on the rights involved – to be able to take that approach. He ends with a call for a different debate:

“A plain admission that we will regulate and punish speech that is fundamentally evil would at least focus our collective attention on important and interesting questions – what it takes to run a free country, and what kind of people we want to be” (at 568)

I differ very substantially from Greve on the substance of his discussion; but his call for striking at the central questions, even when uncomfortable to do so, does resonate. The UK is, once again, reflecting on how to deal with religious capital that is used for ends which are contrary to the national interest (however, and by whoever, that is to be defined). It is tempting to try to reframe this as not involving religious interests and religious rights. How about a plain admission that it does, and a consideration of when and how far we should?