Religion & – Fill in the Blank

Before I took my current position as Executive Director of the Law Commission of Ontario, I was writing an article on reconciling religious practices with what I (and many others) perceive to be dominant Canadian values (such as equality). I decided that discretion is the better part of valour and put it aside, with some considerable regret. Simon Fodden’s post about the UN’s resolution to combat defamation against religion took me back to it, though.

Both at a global and domestic level (and, of course, as they interact) how religious belief is recognized and respected, while still maintaining a commitment to some core values (these will be disputed, I know) is one of our biggest challenges in law and practice. It will be, increasingly, an issue for the Supreme Court of Canada and I believe it will be harder for the Court to maintain its current approach which is more or less to take assertions about the requirements based on religious belief at face value, the view of a bare majority in Amselem.

Reconciling various rights guaranteed by the Canadian Charter of Rights and Freedoms isn’t easy (freedom of expression and equality are two other core values that can “clash”), but it is necessary. We have evolved into a relatively complex society, one that has developed in many respects a high degree of (sometimes) tolerance for and, on our best days, appreciation of difference and for which we require a high tolerance for ambiguity.

In liberal democracies, we have evolved our freedoms so that they are bound to rub up against each other. Freedom of religion, for example, really developed because wiser heads realized that it was wrong to deny adherents of non-majority religions the right to hold political office, to teach in public schools, to place religious quotas on attendance at medical school and so on, or to treat people harshly, even put them to death, for their religious beliefs and practices.

Now we have a rather more nuanced approach, recognizing that full participation in society requires that people not be forced to make choices between practising their religion and, for example, earning an income. Inevitably, this has two consequences in particular: the first is that individuals are allowed to do things or are not required to do things for religious reasons that people who cannot make a religious claim cannot do or are required to do, regardless of how they might feel about it or how much they might be otherwise inconvenienced; and the second is that persons with religious beliefs and practices that are contrary to dominant values claim their beliefs and practices should supercede those dominant values.

Law is a blunt instrument for dealing with these issues in their more nuanced variety: what are the dominant values? or more to the point, how are they interpreted? how can we take into account minority and majority views within the same religion in reconciling rights? and who is really equipped to do this? There are those who argue that courts are unable to address these issues because they operate on principles of liberal rationality, while these claims are based on “irrational” considerations, that is, considerations of faith, and the two do not mix well. When does freedom of expression become expression of hatred? when does religious practice deny equality? when does freedom of expression reflect a commitment to inequality? how do we figure these questions out in a climate of openness and not one of fear and suspicion (circumstances that lend themselves to bad decisions generally). While we may be concentrating on our economic woes, we can’t forget that how we address these issues still remains a major test and challenge of how Canada defines itself.

(Sorry, Simon, I know you didn’t mean your post to give rise to this topic.)

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