by Richard Moon (ed). Vancouver: University of British Columbia Press, 2008. 309pp. Hardcover. $85.00. ISBN: 9780774814973. Paperback. $34.95. ISBN 9780774814980.
Reviewed by Thomas M.J. Bateman, Department of Political Science, St Thomas University, Fredericton, NB, Canada. Email: bateman [at] stu.ca.
Few areas of agreement emerge in any serious discussion of religion, politics, and law. Observers disagree about the definition of religion; its centrality to human identity and flourishing; whether it is waxing or waning; whether religious belief is primarily an individual pursuit or whether it is irreducibly communal or associational in character; whether religious freedom protects illiberal belief or whether liberal democracies properly tolerate religion within the limits of liberal values alone; and whether the state has an obligation to grant exemptions from general laws to those persons whose religious commitments are burdened by them. In a period in which polemical atheists and religious extremists crowd out civil and thoughtful discussion, it is a pleasure to read a collection of essays that cover much of this ground of disagreement in a civil, thoughtful manner.
This collection examines a slice of the broad relationship between religion and liberal democratic life. It concerns the interaction of law and religion in contemporary Canada. But the book is not for the narrow area specialist. First, all the themes explored by the authors have broad application to other liberal democracies. Second, Canada’s multiculturalism is well-advanced as both demographic fact, public policy, and constitutional law. Canada has thus been grappling with questions of diversity, loyalty, and the rule of law for some time. Religious pluralism is implicated in broader cultural diversity. Other countries share in Canada’s multicultural condition to some degree. Canada’s issues are their issues.
As Richard Moon writes in his own contribution, Canadian courts seem to act out of an ambivalent sense that religious belief is both vulnerable and threatening. Increasingly religion is defined as belief and conduct confined to private life. Freedom of religion is increasingly understood to be a freedom from religion by those offended by the appearance of religious rhetoric and symbols in public places. Perhaps most profoundly, courts wish to remake religious belief in the image of liberal values, treating harshly those religious believers who say and do illiberal things in the name of religious commitment. At the same time, they are often interested in granting reasonable accommodations of religious groups whose practices are burdened by facially neutral laws. (MULTANI v. COMMISSION SCOLAIRE MARGUERITE-BOURGEOYS 2006) At times they also define religion broadly to include not merely belief and conduct conforming to a recognized orthodoxy, but that which the litigant sincerely and subjectively believes to amount to a religious obligation (SYNDICAT NORTHCREST v. AMSELEM 2004). [*31]
It is tempting to define religion as a set of privately-held beliefs, not least because religion is largely conflated with “conscience” and because so much religious practice today is anemic and embarrassed in the face of the march of secularism. But it is important to be clear about what is fully implied in the notion of religion before one can assess its relation to the law. Religion involves action, not just belief. It is almost always exercised communally, not merely individually. In other words, religious freedom has an associational dimension. Religions make more or less comprehensive claims on their members. It is not merely a matter of attending the odd worship service. Membership in a religious association implies standards and doctrine which members and officers are expected to uphold. Thus shunning or disfellowshipping is part of an association’s integrity, as is the more or less difficult process of change within religious groups.
There are many different kinds of religions and religious groups. Some are grouped around common theological commitments, others very idiosyncratic and unconventional. The nature and scope of the claims they make on adherents are also quite diverse. Some religious demands conflict with broader liberal democratic principles as well as particular laws. Others flatter modernity. Religious life poses vexing challenges to liberal democracies. Religious toleration and freedom is a core commitment of these regimes; yet citizens’ divided loyalty implied in this core commitment produces tension.
Liberal democracies are dedicated to the protection of religious freedom as a matter of constitutional obligation, but one can easily understate the ambiguity of this principle. One traditional rationale for religious freedom is the protection of liberty – freedom from state coercion. But the definition of coercion itself has often been fluid. Having to utter a religious confession on pain of death is one thing, as is being stoned for declaring a particular confession. But is one coerced if one must inhabit a public square in which the symbols of one faith are present? Is one coerced if one must sit in a public school classroom while confessional prayers are said, even if one enjoys the right not to participate in the exercise? Is one coerced if Sunday store closing laws do not comport with one’s religious scruples; if one must submit one’s child to a life-saving blood transfusion against one’s religious beliefs?
Another traditional rationale is that religious belief is bound up with the age-old human desire to know the truth of the universe and of human existence. This argument has largely been eclipsed by a shallower justification to the effect that religion is part of culture and culture is what gives substance and meaning to individual identity.
Several essays indeed remark that the conceptual ground has shifted in Canada in recent decades. While courts often declare that they are concerned about the coercion implied in some laws that burden religious minorities or non-believers, in fact their concerns have more to do with equal concern and respect for “marginalized groups.” The real issue is exclusion from full citizenship, not coercion. Moon argues that an Ontario high court has justified the striking down of a mandatory public school prayer (with exemptions for non-observant students) on basis [*32] that dissenters would feel undue pressure to conform and would thus utter the prayers against their will (ZYLBERBERG v. SUDBURY BOARD OF EDUCATION1988). On the same basis a high court struck down public prayer preceding city council meetings (FREITAG v. PENETANGUISHENE 1997). Surely, Moon suggests, the two cases are not analogous. Coercion, especially in the latter case, is stretched beyond recognition. The real issue is not coercion but the “feeling” of exclusion or second-class citizenship (p.229).
This more egalitarian understanding of religious freedom has implications for the state and the enforcement of laws. Laws of general application intended to disadvantage one or more religious groups are obviously unconstitutional. But facially neutral laws whose effect is to burden this or that religious group pose greater difficulties. Under older understandings of religious freedom, if a law differentially burdens different groups, that is an unfortunate fact traceable to decisions of believers to adhere to the requirements of their particular faiths. It is the believer who properly bears the burden linked to the operation of the law of general application. For example, in ADLER v. ONTARIO (1996) several religious groups argued that since section 93 of the Constitution Act, 1867 allows Catholics access to public funds for confessional schools, evangelical, Jewish, Sikh, and other groups should enjoy the same status. The majority of the Supreme Court dismissed their claims for several reasons but one of them was that the additional financial burden faced by parents whose religious scruples require them to send their children to private confessional schools emanates not from state policy but from the demands of their faiths as those adherents understand them. The Court adopted a similar approach in a recent decision (ALBERTA v. HUTTERIAN BRETHREN OF WILSON COLONY 2009).
Opposed to this approach is what Canadians call “reasonable accommodation,” the policy of allowing a group burdened by a law of general application to be exempt from its provisions unless the exemption poses undue hardship on others. An early Supreme Court case (ONTARIO HUMAN RIGHTS COMMISSION v. SIMPSONS-SEARS 1985) recognized that a company policy requiring all employees to work Saturdays burdened the religious freedom of a Seventh-Day Adventist employee whose religion forbade her from working on Saturdays. Further, the Court noted that the policy could be altered to the employee’s advantage without causing the employer undue hardship. The same principle operates with respect to public policy. In MULTANI (2006), the Supreme Court ruled that a young Sikh boy could attend school with a metal kirpan securely fastened to his body even though the local school board enforced an otherwise valid policy prohibiting weapons on school property.
Authors in this collection who address reasonable accommodation support it. The sharpest criticism, in fact, is directed at the majoritarianism implicit in a policy that reasonably “accommodates” a minority group rather than recognize it fully and equally. Several authors advance a deeper, more comprehensive freedom of religion with an associational [*33] dimension that raises questions about how diverse religious commitment can be in a liberal society. The issue, in other words, is the degree to which liberal democracies can or ought to protect illiberal religious commitment. Liberalism, of course, admits a variety of interpretations. In this collection, the salient issue is the degree to which liberal values shall penetrate, as Alvin Esau says, “all the way down” (p.131) into civil society in general and into religious associational life in particular. Is freedom of religion the freedom of irreligion or liberal religion, or does it protect religious beliefs that depart in some way from liberal values?
In his study emanating from his knowledge of Canada’s Hutterian Brethren, Esau makes a trenchant case for the protection of illiberal religious groups and also for a strong version of legal pluralism. He contrasts the “inside law” of religious communities with the “outside law” of the liberal polity, repudiating the legal monism according to which outside law prevails over all inside law. Not only should constitutional law protect a broad sphere of robust religious diversity; Esau argues that the common law (which in his view has greater potential to impair the integrity of religious communities than the Charter) should also be developed in accordance with the principle of separation of church and state. Indeed, he argues that civil courts should refuse to take jurisdiction in cases concerning inside law disputes. Lest Esau be thought some sort of religious separatist, it should be noted that he regards pluralism as properly reciprocal. Secular liberal society must share space with illiberal religious communities; and those communities must refrain from imposing inside law on the whole community. Esau himself supports the civil recognition of same-sex marriage while supporting the principles of his own religious community that prohibit it.
No other contributor to this volume goes as far as Esau, but essays by David Schneiderman, Bruce Ryder, and John Borrows seek to take religious freedom beyond conventional liberal understandings of religious belief as a matter of private individual choice. Benjamin Berger, too, argues that religion is properly understood as an encompassing “culture” making comprehensive claims on adherents, but he merely notes how difficult it is for the law to treat religion in ways other than matters of private choice. Law makes religion in its own liberal image, he suggests.
Firmly in the liberal camp is Lorraine Weinrib who writes on the fate of a proposed sharia-based family arbitration system in Ontario. In 2003, a proposal to make settlements arising out of a voluntary Islamic family dispute resolution process enforceable by courts created an uproar and led the Premier to nix that proposal and terminate other extant voluntary faith-based arbitration regimes. Weinrib considers them to violate the new Canadian Charter-based order in which the “abstract’ individual stands in direct relation to the state, unmediated by group, associational, or socio-demographic characteristic (pp.239-40) For her, a thick, associational religious freedom is illiberal in principle and contrary to Canadian constitutional order. She finds it instructive that the feminist mobilization against the sharia system mirrored the one that produced a [*34] feminist-friendly Charter in the early 1980s. Another essay on the Sharia proposal by Pascale Fournier examines the real-world, on-the-ground operation of such family dispute resolution mechanisms. It is not as dismissive as Weinrib’s but it does reflect ambivalence about the scheme.
This is a provocative and fairly even collection of essays. Unlike much public commentary on religious questions, the authors here engage law and religion seriously, respectfully, and candidly. Particularly notable is their willingness to examine directly the relationship between liberal ideas and religious commitments.
A few comments. First, a few essays intimate that religious belief is moving away from doctrinal orthodoxy and taking forms the law has difficulty recognizing (Beaman; Berger). Deep personal commitments look less like traditional religious ones, in other words. Such commitments are less religious and more “conscientious.” Section 2(a) of the Charter protects not just religion but also “conscience.” What are the implications of protecting conscientious beliefs departing from traditional religious commitment? It seems the authors in this collection are precisely the ones in a position to comment.
Second, toleration is a major conceptual category in the history of liberalism and church-state politics. It has undergone significant change. Toleration can mean many things: putting up with, engagement, respect, indifference. The essays rarely engage the idea of toleration directly. Pity.
Third, lurking in the background of several essays is the ghost of Christianity and its relationship to liberal thought. One wonders if liberal ideas of religious freedom really comport with only certain kinds of religious experience. Some consider liberalism to be a type of secularized Christianity that has in recent times turned to consume its progenitor. A few essays touch on this suggestively. It would be interesting to have this addressed directly. A critical example is the right of exit enjoyed by members of religious communities, an idea that comes up frequently in the collection. Every author, not matter how concerned he or she is about intrusions of liberal values into the life of confessional communities, maintains that any person has a right of exit from a religious community. This right in fact supports robust autonomy for religious communities. This must mean that a final and ultimate individual choice is to be recognized by every religion. Why? Is it because of an irreducible legal hierarchy in which liberal law prevails over inside law of all religious communities? Is it because the hegemonic influence of (Protestant) Christianity pervades not just Supreme Court jurisprudence (see the recognition of the high value of individual conscience in R. v. BIG M DRUG MART 1985) but also thinkers in the contemporary legal academy? Surely some religions – at least historically – did not care much about the sanctity of individual conscience and the value of free consent.
I highly recommend this collection to anyone with an interest in constitutional law, constitutional theory, the law of freedom of religion, and Canadian politics and constitutionalism. The book [*35] does what all good books do: it spurs one to read more on the subject.
ADLER v. ONTARIO  3 S.C.R. 609.
ALBERTA v. HUTTERIAN BRETHREN OF WILSON COLONY  2 S.C.R. 567.
FREITAG v. PENETANGUISHENE (1997), 47 O.R 301 (O.C.A.).
MULTANI v. COMMISSION SCOLAIRE MARGUERITE-BOURGEOYS  1 S.C.R. 256
ONTARIO HUMAN RIGHTS COMMISSION v. SIMPSONS-SEARS  2 S.C.R. 536
R. v. BIG M DRUG MART  1 S.C.R. 295
SYNDICAT NORTHCREST v. AMSELEM  2 S.C.R. 551
ZYLBERBERG v. SUDBURY BOARD OF EDUCATION (1988), 52 D.L.R. (4th) 577 (O.C.A.).
© Copyright 2011 by the author, Thomas M.J. Bateman.