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An Associational Framework for the Reconciliation of Competing Rights Claims Involving the Freedom of Religion

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An Associational Framework for the Reconciliation of Competing Rights Claims Involving the Freedom of Religion An Associational Framework for the Reconciliation of Competing Rights Claims Involving the Freedom of Religion IAIN T. BENSON© Student Number 469 698 A thesis submitted in fulfillment of the Requirements for the degree of Doctor of Philosophy University of the Witwatersrand September 12 2013 ABSTRACT Conflicts of rights involving the freedom of religion should be approached on the basis of a close examination of the proper competence of law and religions. This examination begins by asking what questions law and religion are best suited to answer in a post theocratic age that views constitutional laws as operating under and within the conditions of diversity and pluralism. An analysis of religious employer exemption cases in two jurisdictions, South Africa and Canada, shows that certain contemporary “liberal” approaches fail to accord sufficient respect to associational diversity. An historical view of the relationship between law and religion, reviewing both “the goods of religion” and “the limits of law” suggests that contemporary liberalism tends to diminish the role of religions and religious associations giving too much power to the State and/or the Courts with a corresponding failure to let religions play the role within culture that their proper jurisdictions, correctly understood, admit and that an open culture requires. The analysis shows that the Canadian and South African courts have, in some cases, explicitly but more often implicitly, stepped into the role of answering metaphysical, philosophical and theological questions for which they are not suited. This problem -- erroneous jurisdictional extension by law -- is the use of law by equality activists who wish to force homogeneous conceptions such as “equality” or “non-discrimination” on all aspects of society, including religious associations, irrespective of whether those subordinate groups should be accorded the respect entailed by the principle of diversity- - a respect already allowed for in the laws related to religious employer exemptions. The arguments defending these practices inappropriately extend the ambit of law into theology and therefore away from its proper role as recognized within history, sociology, anthropology, psychology and theology. Moreover, they take liberal theory in an illiberal direction - a direction that should be rejected in favour of a conception of deep diversity. It is concluded that with a legal presumption in favour of associational diversity and the use, in adjudication of rights conflicts, of the “oculus” (that is, explicitly seeing issues that involve religious associations from the perspective of the religious association) a fairer treatment of diversity and difference can occur in constitutional democracies. An approach to rights adjudication based on this presumption and informed by this attitude will promote greater diversity and better “fit” with the principles of “pluralism”, “multiculturalism”, “diversity” and “accommodation” that underlie the modus vivendi rather than a “convergence” approach to liberalism and accord better with constitutional rights and freedoms taken as a whole. i DECLARATION I, ___________________IAIN TYRRELL BENSON___________________________, declare that this thesis is my own unaided work. It is submitted in fulfillment of the requirements of the degree of Doctor of Philosophy (PhD) in the Faculty of Commerce, Law and Management at the University of the Witwatersrand, Johannesburg. It has not been submitted before for any degree or examination in this or any other university. __________________________________________ SIGNATURE _________469698_______________ STUDENT NUMBER _____September 12, 2013 DATE i ACKNOWLEDGMENTS In the years of preparation in various universities, courtrooms and assorted settings, I have incurred many debts and points of gratitude - - intellectual, spiritual and emotional. There are people and organizations I have, undoubtedly, missed out in the list that follows; I ask their forgiveness. I would like to thank the following universities and colleges at which I have given lectures and the audiences whose questions have made me think more deeply: McGill University, York University, University of British Columbia, Augustana College, Catholic University of America, University of Dallas, University of Tulsa, University of Navarre, Harvard Law School, Oxford University, The University of Toronto (and Regis and St. Michael’s Colleges), University of the Witwatersrand, Regent College, University of Stellenbosch, Seminary of Christ the King, Mission, B.C., Seattle Pacific University, University of Johannesburg, UNISA, University of Adelaide, University of Auckland, University of Sydney, St. Thomas More College, St. Mary’s College, Lakehead University, University of Waterloo, University of Ottawa, The University of the Free State; and the following Institutes and Foundations that have provided assistance and encouragement: Members of the Board of the Global Centre for Pluralism, Ottawa and His Highness the Aga Khan and its Secretary General John McNee; The Pontifical Academy of Social Sciences and its President Mary Ann Glendon; Members of the Board and Research Council of the Centre for Cultural Renewal (1993-2009), The South African Institute for Advanced Constitutional, Public, Human Rights and International Law (Johannesburg) and its Director David Bilchitz and former Director Theunis Roux; The International Institute for Religious Freedom and its Director Christof Sauer, The Chester Ronning Centre for Religion and Public Life (Alberta, Canada) and its Director David Goa; The Foundation for Science and Culture, Istanbul, Turkey and its President Faris Kaya; the Order of Malta, (Canadian and British Associations), The Ontario Human Rights Commission and its Chair, Barbara Hall and researchers Remi Warner and Shaheen Azmi; The following persons deserve particular mention and they appear here in no particular order: Robin and Hilary Butler, Peter Jervis, Christo Lombaard, Hakan Gulerce, A. Alan Borovoy, William Conklin, David Jennings, Benno Friesen, Roland Priddle, Mary Ann Glendon, Sir Norman Anderson (†), John Keown, Matthew Lamb, Chuck Helms, Logan and Barbra Craft, Ted Spear, Douglas Farrow, Russell Hittinger, Beverly Boutilier, Khalil Sharif, Sandra Reimer, Daniel Cere, Kathryn Young, Paul Nathanson, Charles Taylor, Margaret Somerville, Rocco Mimmo, David i Blankenhorn, Carolyn Evans, Neville Rochow, Robert Royal, David Coolidge (†), Sir John Baker, George Marlin, Jack Swan (†), Christopher Wolfe, Hadley Arkes, Jamie Hardigg, Loot Pretorius, Michael and Jenny Cromartie, Vern and Elfreida Heinrichs, Maxime Gauze, Armina Lodewick and Ibrahim Adams, Chris Landman, Gustav and Frances Hoexter, Nicholette Stuart-Russell, Ian Leigh, Dennis Danielson, John and Sally Patrick, Barry McLoughlin and Laura Peck, Theunis Roux, Albert Moritz, Clive Middlemas, Patricia Stern, Clement Ng, Peter Lauwers, Penny Plowman, Habib Malick, Susan Crossman, Anna-Liza Kozma, Christof Sauer, Alison Watt, Artur Rosman, Jan and Crispin Elsted, Michael Pakaluk, Raymond Perrier, Deborah Gyapong, Kevin Boonstra, Louis Dupré, Alex Fielding, Cindy Silver, Ernest Fortin (†) David Schneiderman, Silvio Ferrari, George Rawlyk (†), William Galston, Jonathan Chaplin, Paul Diamond, George Egerton, Ibrahim Abu-Rabi’(), Markus Bockmuehl, Alan Torrance, Ray Sawatsky, Greg Pennoyer, Annie Leatt, Wilfred McClay, Janet Epp Buckingham, Anita Thiessen, Frank Falzon, Geoff Cowper, Michael Brear, Robert and Mollie Brow (†) (†), David Cayley, John von Heyking, Nicholas Wickenden, Richard Moon, David Novak, Muhammed Fadel, Thomas Cardinal Collins, Hesma van Tonder, George Weigel, Jody Bottom, Brad Miller, Mathole Mosheka, E.R.A. Edwards (†), Colleen Kovacs, Paul and Adrian Clark, George Copley, Phillip Blond, Charles Gonthier (†) Peter L. Pound, Mark Cameron, Marc Friedman, Jason Kenney, Christopher Champion, Ian Narbeth, Isa Petzer, Derrick de Kerckhove, Don Hutchinson, Franziska Sucker, Ernest Caparros, Julie Owen, Crystal Mason, Cora Hoexter, James van den Hever, Charles Ngwena, Muhamed Nur Nordien, Hawa Monier, Andrea Parliament, Lori Beaman, Roger Scruton, John McKay, David Bernard, Richard John Neuhaus (†), Marc Ryan Rees, Arlyn Culwick, Paul and Lorna Culwick, Vera Leckie, George and Maggie Graham (†), Thomas Langan (†), Janine Langan, Pieter Coertzen, Lewis and Caroline Silberbauer, Nokuzola Mndende, Claire Rolf O.P., Judith McBride, Robert Morgan, Graham and Sue Ritchie, Susan Munro, Brad and Julie Ovenell Carter, George Grant (†), Sheila Grant, John Witte Jr., Claude Ryan (†), Jean Bethke Elshtain (†), David Walsh, William Mathie, William Hurlbut, Aidan Mackey, Alvin Esau, Azim A. Nanji, Kenneth Schmitz, Colin and Margaret Visser, David Lyon, Elizabeth Craig Woollacott, Ron Dart, Williard Johnston, Lizzi Luminati, R.N. Gooderson (†), David Loukidelis, Robert Grant, Alan Markin, Grant Bartlett, Ali Lakhani, Bob Bates, Russell Wills (†), Victor Chan, John Haldane, Peter Emberley, Ray Hartley, Yiull Damaso, Rainer Knopff, Craig Gay, Loren Wilkinson, Joan and Oliver O’Donovan, Melissa Lehr, Michael Czerny S.J., Kristof Vanhoutte, Richard Osler, Christoph Engel, Lu and Joan Beaulieu, Lila Lieberman, Ian and Charlotte Townsend-Gault, Julia Dentel, Philip Marchand, W. Cole Durham Jr., Daniel Matej, Bud Gallagher, Brent Mullins, Gerry Ferguson, Michael Coren, Lauri Ann Fenlon, Michael and Sheila O’Brien, Stuart Brown, Patrick Lenta, Stu Woolman, Benjamin Berger, Mark Andrews and Shelagh Scarth, Mark Charlton, David Brown,
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