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The Sources and Limits of Freedom of Religion in a Liberal Democracy: Section 2(A) and Beyond

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The Sources and Limits of Freedom of Religion in a Liberal Democracy: Section 2(A) and Beyond Alabama Law Scholarly Commons Articles Faculty Scholarship 1996 The Sources and Limits of Freedom of Religion in a Liberal Democracy: Section 2(a) and Beyond Paul Horwitz University of Alabama - School of Law, [email protected] Follow this and additional works at: https://scholarship.law.ua.edu/fac_articles Recommended Citation Paul Horwitz, The Sources and Limits of Freedom of Religion in a Liberal Democracy: Section 2(a) and Beyond, 54 U. Toronto Fac. L. Rev. 1 (1996). Available at: https://scholarship.law.ua.edu/fac_articles/181 This Article is brought to you for free and open access by the Faculty Scholarship at Alabama Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Alabama Law Scholarly Commons. The Sources and Limits of Freedom of Religion in a Liberal Democracy: Section 2(a) and Beyond PAUL HORWITZ* Freedom of religion stands on precarious ground in the landscape of the modern liberal democratic state. While the state and the courts rely on the tools of ratio- nal, secular, "neutral" reasoning to strike a balance between protecting individual freedoms and achieving important state goals, the religious adherent is driven by an understanding of existence that defies the liberal tradition of rationalism. In this ar- ticle, the author examines the conflicts that occur between religious obligationsand the needs of the state. Through an examination of Canadian and Americanjurispru- dence concerningfreedom of religion, the authorprovides a critique of some aspects of the modem liberal state's treatment of religion. The author seeks to provide a clear picture of the social and intrinsicvalue of religion, and suggests that a proper understanding of the value of religion will lead the state to adopt a supportive and accommodating approach toward religious beliefs and practices in the modern state. L',tat d6mocratique libiral moderne est un terrain mouvant pour la libertd d'ex- pression. L'itat et les tribunaux se fient a un outillage mental rationel,profane et impartialen pour ddterminerl'quilibre optimal entre la protection des libert6s in- dividuelles et l'atteinte de buts pr6ns par la collectiviti. Or, le croyant s'inspire d'une conception de l'existence humaine oftrang~re a la tradition libirale de ratio- nalitg. Dans cet article, l'auteur 9tudie les conflits entre l'obligation religieuse et * This article was written as an independent research project at the University of Toronto Faculty of Law under the supervision of Prof. Lorraine Weinrib, whom I wish to thank for her guidance and suggestions. I also wish to thank the following individuals for reading drafts of this article and offering thoughtful and valuable comments: Prof. Richard Merelman, Paul Michell, Barbara Roblin, Prof. Stephen Waddams, the editors of the University of Toronto Faculty of Law Review and, especially, Diana Merelman. An earlier version of this article was awarded a J.S.D. Tory Fellowship. I am grateful to the J.S.D. Tory Foundation and to the law firm of Tory Tory DesLauriers & Binnington for their generous support of legal scholarship. University of Toronto Faculty of Law Review / Volume 54, Winter 1996 2 University of Toronto Faculty of Law Review Volume 54, Number I les besoins de l'ltat.Par une analyse de lajurisprudencecanadienne et amdricaine concernantla libert6 de religion l'auteurprsente une critique de certains aspects du traitementde la religionpar l'Etat libeiral moderne. L'auteurcherche 6 presenter un portraitlucide de la valeursociale et intrins~quede la religion. 11 suggre qu'une comprhension addquate de la religion mnera l'ltat 6 une attitude conciliante et solidaire envers les pratiques et croyances religieuses. Then Peter and the other apostles answered and said, We ought to obey God rather than men. - Acts 5:29 Whatever the subject of your disputes, the final word belongs to God. - The Korant I. Introduction The religious believer in the modem liberal state is the servant of two masters. On the one hand, there is the web of obligations, laws and rules that attach to every facet of life, from prohibitions against criminal behaviour to the myriad administrative regulations encountered in the workplace. On the other, there is the compulsion to obey one's spiritual obligations, as revealed through prayer, scripture, or participation in a faith community. As long as the two obligations do not conflict, one can fulfill both sets of requirements. Once they do, both the religious adherent and the state face the question: Which should be valued more highly-obligations to temporal authority or to divine authority? The object of this article is to suggest that how we answer this question will help provide the answer to a broader question: Can the modern state accommodate views that deviate from the social and political norm, and which operate in a realm apart from the societal norm of liberalism, or will the state be blind to those whose claims are grounded in experiences and beliefs that lie beyond the paradigm of rationality and liberalism? In Canada, the conflict between religion and the state has often played itself out in struggles over whether the social structure must give equal support to different religious groups; for example, the struggles over the Sunday shopping laws2 or the entitlement of religious communities to funding for the separate education of their children.3 Less concern has been given to the question whether the state and its laws may interfere with pre-existing religious obligations, and thereby force an 1. The Koran, trans. N.J. Dawood (London: Penguin Classics, 1993) at 339. 2. See e.g. R. v. Big M Drug Mart (1985), 18 D.L.R. (4th) 321 (S.C.C.) [hereinafter Big Al]; Edwards Books and Art v. R. (1986), 35 D.L.R. (4th) 1 (S.C.C.) [hereinafter Edwards Books]. 3. See e.g. Reference Re Bill 30, an Act to amend the Education Act (Ontario) (1987), 40 D.L.R. (4th) 18 (S.C.C.) [hereinafter Reference Re Bill 30]; Adler v. Ontario (1994), 19 O.R. (3d) 1 (C.A.) [hereinafter Adler]. Sources and Limits of Freedom of Religion individual to obey the law in violation of the precepts of his or her faith. This may be because existing laws create few problems, or because not all laws are strictly enforced in the face of religiously compelled behaviour. A likelier explanation is that, as the vast majority of Canadians are still Christian,4 the laws created by political majorities present few conflicts with the majority faith. Moreover, religion itself has declined as a force in Canadian life: more than three million Canadians say they have no religion at all, a figure that has doubled in the last decade.5 Thus, few people are likely to take seriously religious commands that require them to disobey the dictates of the state. Indeed, we have built the notion of conflict between religion and the state into the very language of the CanadianCharter of Rights and Freedoms.6 The preamble's statement that "Canada is founded upon principles that recognize the supremacy of God and the rule of law [emphasis added]," stirring as it is, also reminds us that a 7 citizen may have two sources of obligation. Nevertheless, it is essential that the role and limits of religious freedom be clearly defined. Despite the lack of strong religious allegiances among many in the Canadian mainstream, both the influx of immigrants of diverse religions and the nation's policy of encouraging multiculturalism, as signalled by s. 27 of the Charter,' suggest that more conflicts will arise in the future between the practices of religious minorities and laws crafted by members of the majority. Furthermore, as the reach of the administrative state extends ever further into every aspect of life, the law is bound to disturb an increasing number of religious practicesf Though a few useful discussions of these problems have appeared in the Canadian legal literature, the scarcity of thorough attempts to confront the meaning of religious freedom in Canada leaves us unprepared to deal with the conflicts that are sure to arise with increasing frequency. 10 4. "[Flour out of five people report Christianity as their religion" in Canada. M. Campbell, "Christmas in a secular society" The Globe and Mail (24 December 1994) Dl. 5. Ibid. Even among the Christian majority, church attendance has dipped from 60 percent after World War II to 20 percent today. Ibid. 6. Part I of the ConstitutionAct, 1982, being Schedule B to the CanadaAct 1982 (U.K.), 1982, c.11 [hereinafter Charter]. 7. Moreover, the presence of the word "God" in the preamble creates a tension with the presence in the Charter of a guarantee of freedom of religion, as William Klassen points out: "To mention God with a capital letter in the preamble to the Charter and then to go on to say that the Charter provides a fundamental freedom of conscience and religion, is a contradiction which even a theologian, to say nothing of all the lawyers, must surely recognize." W. Klassen, "Religion and the Nation: An Ambiguous Alliance" (1991) 40 U.N.B. L.J. 87 at 95 [hereinafter "Religion and the Nation"]. Klassen advocates the word's removal. Ibid. In O'Sullivan v. M.N.R., [1992] 1 P.C. 522 (T.D.), Muldoon J. suggests that this preamble merely "prevents the Canadian state from becoming offically atheistic." Ibid. at 536. With respect, this seems like little more than an attempt at rationalization, and is not supported by any convincing argument. 8. Supra note 6, s. 27. 9. See D. Laycock, "The Remnants of Free Exercise" [1990] Sup. Ct. Rev. 1 at 68 ("Today, the scope of pluralism and the scope of government are both vastly greater.
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