Constitutional forumconstitutionnel Centre for Constitutional Studies Centre d’études constitutionnelles Volume 19, Number 2, 2011 Constitutional Forum constitutionnel Managing Editor: Centre for Constitutional Studies • Ken Dickerson Board of Directors • Eric Adams Student Editor: • Mr. Justice Ronald Berger • Anna Kurachineva • Peter Carver, Chair • David Cooper • L. 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A Note on Sources Increasingly, legal materials are available online through free services o$ ered by Legal Information Institutes (LIIs)/Instituts d’information juridique (IIJs) as well as by courts themselves. One can search for and obtain court rulings (and related briefs, transcripts of oral arguments, etc.), legisla- tion, constitutions, and other o% cial documents or secondary sources. " e more recent the materi- als, the more likely that they can be retrieved through a LII site. In Constitutional forum constitutionnel , endnote references to court rulings indicate whether the case is available from a free online source by the presence of a LII reference in the case citation (or a reference to a similar database). Unless otherwise indicated in the endnote, the reference is to mate- rial in English or French. Databases include: • CanLII (Canada) <http://www.canlii.org> (English) • IIJCan (Canada) <http://www.iijcan.org> (français) • LexUM (Canada) <http://www.lexum.umontreal.ca> • LII (United States) <http://www.law.cornell.edu> • SCOTUS (United States Supreme Court) <http://www.supremecourtus.gov> • FindLaw (United States) <http://www.! ndlaw.com/casecode/> • BAILII (British, Irish, and European Union) <http://www.bailii.org> • CommonLII (Commonwealth) <http://www.commonlii.org> • SAFLII (Southern Africa) <http://www.sa* ii.org> • Droit francophone (La francophonie) <http://portail.droit.francophonie.org> • HKLII (Hong Kong) <http://www.hklii.org> • AustLII (Australasia) <http://www.austlii.edu.au> • PacLII (Paci! c Islands) <http://www.paclii.org> • NZLII (New Zealand) <http://www.nzlii.org> • WorldLII covers some additional countries and links to all LII services <http://www.worldlii.org> Dozens of individual countries’ legal databases can also be accessed through WorldLII <http://www. worldlii.org/catalog/2172.html>. table of contents 41 Key ! eoretical Issues in the Interaction of Law and Religion: A Guide for the Perplexed Benjamin L. Berger 53 Judges and Relgious-Based Reasoning Diana Ginn and David Blaikie 65 ! e Politics of Hate Speech: A Case Comment on Warman v Lemire Ranjan K. Agarwal 75 McIvor v Canada and the 2010 Amendments to the Indian Act: A Half- Hearted Remedy to Historical Injustice Sarah E. Hamill Constitutional Forum constitutionnel Volume 19, Number 2, 2011 Key eoretical Issues in the Interaction of Law and Religion: A Guide for the Perplexed Benjamin L. Berger* ere is perhaps no more important access Yet the claim at the outset of this article was point into the key issues of modern political that the questions generated by the interaction and legal theory than the questions raised by of law and religion are indispensible contempo- the interaction of law and religion in contem- rary channels into the core questions of mod- porary constitutional democracies. Of course, ern political and legal theory. Recent years have much classical political and moral theory was seen a migration of issues regarding religious forged on the issue of the relationship between di" erence and the nature and structure of the religious di" erence and state authority. John state back to the centre of legal and political the- Locke’s work was directly in# uenced by this is- ory. As western liberal democracies have been sue, writing as he did about the just con$ gura- met with heretofore unprecedented degrees and tion of state authority and moral di" erence in forms of religious diversity, we have watched as the wake of the irty Years’ War. Yet debates diverse political and legal traditions have strug- about the appropriate role of religion in public gled mightily with the interaction among law, life and the challenges posed by religious di" er- politics, and religion. e exigency and central- ence also cut an important $ gure, in a variety of ity of issues of law and religion to contemporary ways, in the writings of Hobbes, Rousseau, Spi- thinking about the just state is evidenced by a noza, Hegel, and much of the work that we now host of high-pro$ le issues such as the Dutch view as being at the centre of the development cartoon controversy; the French political and of modern political philosophy. 1 Furthermore, legal response to the Islamic veil; U.S. debates the mutual imbrications of law and religion in over the presence of religious symbols, such as the development of the western legal tradition the Ten Commandments, in public space; and are many and well established. At the structural the hand-wringing of constitutional theorists level, Harold Berman famously traces the ori- about the appropriate role to be given to religion gins of modern western European legal systems in the cra% ing of new constitutions for transi- to the Papal Revolution begun in 1075. 2 James tional states such as Afghanistan and Iraq. Giv- Whitman shows the extent to which this mutu- en Canada’s o& cial state policy of multicultur- al in# uence is (elusively) true of core doctrines alism, Canadian political and legal philosophy of contemporary law, such as the principle of has long been consumed with issues of cultural proof beyond a reasonable doubt. 3 e relation- di" erence and the law. Religion has found its ship between law and religion has been fertile way to the centre of conversations about multi- soil for both the development of the modern le- culturalism, spawning a host of cases before the gal system and the foundations of modern po- Supreme Court of Canada, a new body of legal litical philosophy. scholarship, and a high-pro$ le public commis- Constitutional Forum constitutionnel sion looking at issues of the accommodation of 1. De ning “the secular” religious di! erence. 4 Perhaps the key de# nitional issue at play in Put brie" y, the interaction of law and reli- philosophical and legal debates regarding the gion is the # eld on which questions central to interaction of law and religion is the issue of contemporary constitutional and political the- how one is to understand the idea of the “secu- ory are being debated and worked out. $ e area lar.” $ e word