Religion…Not Religion: Is It Really Just a Toss-Up?

It’s really not surprising that a court would find an organization that calls itself “Church of Atheism” is not a religion. But one has to ask, why couldn’t the Church of Atheism be a religion; it had many of the attributes — kind of. What is “religion”, anyway? Does it depend on context? The Federal Court of Appeal in Church of Atheism of Central Canada v. Canada (National Revenue) waded into the meaning of religion when it upheld the Minister of National Revenue’s decision that the Church of Atheism was not a religion and thus not eligible for charitable status under the Income Tax Act (ITA). The Church had unsuccessfully challenged the Minister’s denial, claiming it violated sections 2(a), 15 and 27 of the Canadian Charter of Rights and Freedoms.

The Church had two hurdles: being recognized as a religion and being recognized as a charity, although these two requirements are intertwined. The FCA upheld the Minister’s determination that the Church met neither prerequisite for tax-exempt status under the ITA. Being recognized as a charity would allow the organization to not pay tax on its income and individuals contributing to the Church would be able to claim a tax deduction for contributions.

Under section 149(1)(1) of the ITA, a charitable organization must meet a number of indicia, one of which is that it is “constituted and operated exclusively for charitable purposes” and that “all [its] resources … are devoted to charitable actitivies carried on by the organization itself”. At common law, as Rivoalen J.A. states, two of the charitable activities referred to are “the advancement of religion” and “certain other purposes beneficial to the community” (Church of Atheism, para. 8). She explains that the appeal is concerned with the meaning of “religion” in this context and, relying on Syndicat Northcrest v. Amseleum [sic] goes on,

For something to be a “religion” in the charitable sense under the Act, either the Courts must have recognized it as such in the past, or it must have the same fundamental characteristics as those recognized religions. These fundamental characteristics are not set out in a clear “test”. A review of the jurisprudence shows that fundamental characteristics of religion include that the followers have a faith in a higher power such as God, entity, or Supreme Being; that followers worship this higher power; and that the religion consists of a particular and comprehensive system of faith and worship. (Church of Atheism, para. 10, citation omitted)

Amselem concerned freedom of religion under the Quebec Charter of Human Rights and Freedoms, although the the Supreme Court would apply the analysis to the Canadian Charter: Jewish residents of a co-op wanted to set out succahs on their balcony in apparent contravention of a co-op by-law prohibiting decorations or structures on balconies. The Syndicat, responsible for enforcing the by-laws, suggested the alternative of setting up a common succah in the gardens; however, the Jewish residents maintained this would not satisfy their beliefs and would create hardship in their religious practice. The Syndicat sought an injunction, which was granted by the Superior Court, a decision upheld by the Court of Appeal.

In a 5-4 decision, the Supreme Court of Canada allowed the appeal by the Jewish residents. Justice Iacobucci, for the majority, criticized the lower courts for taking “an unduly restrictive view of freedom of religion” (Amselem, para. 37). He defined religion as involving

a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith. (Amselem, para. 39)

Justice Iacobucci continued, “This Court has long articulated an expansive definition of freedom of religion, which revolves around the notion of personal choice and individual autonomy and freedom.” (Amselem, para. 40) He relies on Big M Drug Mart to say,

The emphasis then is on personal choice of religious beliefs. In my opinion, these decisions and commentary should not be construed to imply that freedom of religion protects only those aspects of religious belief or conduct that are objectively recognized by religious experts as being obligatory tenets or precepts of a particular religion. Consequently, claimants seeking to invoke freedom of religion should not need to prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion, nor is such an inquiry appropriate for courts to make…In fact, this Court has indicated on several occasions that, if anything, a person must show “[s]incerity of belief” … and not that a particular belief is “valid”. (Amselem, para. 43, citations omitted)

It is significant that while “obligatory” or “mandatory” aspects of faith are protected, “it is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection. An inquiry into the mandatory nature of an alleged religious practice is not only inappropriate, it is plagued with difficulties.” (Amselem, para. 47). Therefore, “a claimant need not show some sort of objective religious obligation, requirement or precept to invoke freedom of religion. Such an approach would be inconsistent with the underlying purposes and principles of the freedom emphasizing personal choice [as set out in the jurisprudence]” (Amselem, para. 48, citations omitted). The test is the individual’s “sincerity” of belief in what the individual sees as their religious obligations.

Mr. Justice Bastarache, speaking for two other of the dissenting judges, took a more restrictive view, stating, “a claimant must prove that the conduct or practice to which he or she to have freedom of religion apply is in fact based on a precept of his or her religion. The test is reasonable belief in the existence of a religious precept.” (Amselem, para. 140) Thus he maintains, in contrast to the majority, that expert testimony can be helpful. He agrees with the majority that determining sincerity of belief is crucial. He does not accept that their religious precepts require the Jewish residents (other than Amselem) to practise their beliefs in an individual succah on their own balconies (Amselem, para. 162). (Justice Binnie based his decision on the existing agreement to which the residents agreed when purchasing their condos.)

The Court has also made it clear that freedom of religion involves both freedom to believe and right to manifest belief and that both “old and new” religious beliefs are protected (Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), paras. 67 and 69).

Although Amselem stands for interpreting “religion” liberally, from time to time, judges have taken a narrower view. Indeed, Justice Iacobucci himself (along with three other judges) believed that freedom of religion did not protect the right of parents to refuse blood transfusions for their children (B. (R.) v. Children’s Aid Society of Metropolitan Toronto), distinguishing belief from acting on the belief. Freedom of religion does not protect the object of the religious belief, either. In Ktunaxa Nation, the majority of the Court held that the Ktunaxa Nation’s freedom of religion was not compromised by the Minister’s decision to approve a ski resort in the area where the Grizzly Bear Spirit was found:

The Ktunaxa assert that the project, and in particular permanent overnight accommodation, will drive Grizzly Bear Spirit from Qat’muk. As Grizzly Bear Spirit is central to Ktunaxa religious beliefs and practices, its departure, they say, would remove the basis of their beliefs and render their practices futile. The Ktunaxa argue that the vitality of their religious community depends on maintaining the presence of Grizzly Bear Spirit in Qat’muk. (Ktunaxa Nation, para. 59)

The Ktunaxa Nation’s claim failed on the second aspect of freedom of religion, the freedom to manifest the belief. The Ktunaxa Nation’s claim is that section 2(a) “protects the presence of Grizzly Bear Spirit in Qat’muk”; however, the Court held this falls beyond the meaning given to freedom of religion to this point. The Court rejected the claim on the basis freedom of religion does not protect the spiritual focal point of worship, stating that to accept the argument would require judicial scrutiny of “deeply held personal beliefs” (Ktunaxa Nation, paras. 71 and 72). In reaching this conclusion, the Court appears to reject a religious belief integrally connected to its focal point.

However, the predominant approach has been to view freedom of religion broadly and address limitations under section 1 of the Charter. This view is consistent with the state’s religious neutrality. Thus “the concepts of ‘belief’ and ‘religion’ encompass non-belief, atheism and agnosticism” (Mouvement laïque québécois v. Saguenay (City)), para. 70). (This case involved review of a tribunal, but on the religious question should not have posed any difficulty, although it did for the Quebec Court of Appeal; it was concerned with a religious prayer and religious symbols in a public place.) Justice Gascon explains religious belief

… is the lens through which people perceive and explain the world in which they live. It defines the moral framework that guides their conduct. Religion is an integral part of each person’s identity. When the state adheres to a belief, it is not merely expressing an opinion on the subject. It is creating a hierarchy of beliefs and casting doubt on the value of those it does not share. It is also ranking the individuals who hold such beliefs. (Saguenay (City), para. 73, relying on Professor Richard Moon’s “Freedom of Religion Under the Charter of Rights : The Limits of State Neutrality” (2012), 45 U.B.C. L. Rev. 497).

To return to Church of Atheism, one must ask whether the Minister’s decision respects “the state’s duty to protect every person’s freedom of conscience and religion” and thus “not use its powers in such a way as to promote the participation of certain believers or non-believers in public life to the detriment of others” (Saguenay (City), para. 76). Revenue Canada does not in itself hold a religious belief to the exclusion of others, nor is there any evidence or assertion that the Minister does. But Revenue Canada, by making decisions about which claims about religion satisfy the meaning of religion does also make decisions about organizations that are able to promote their views, as well as perform good works in society, aided financially by their charitable status, as well as denying organizations that opportunity. Through the granting of charitable status and the use of taxpayer monies, the state does subsidize “the advancement of religion” financially: see the BC Humanist Association’s “The Cost of Religion in Canada“.

The Federal Court of Appeal indicates that to be recognized as a religious charitable organization, the courts must either have recognized the religion previously or the religion “must have the same fundamental characteristics as those recognized religions”, and courts have identified these characteristics as including “that the followers have a faith in a higher power such as God, entity, or Supreme Being; that followers worship this higher power; and that the religion consists of a particular and comprehensive system of faith and worship” (Church of Atheism, para. 10, citing Amselem).

Justice Rivoalen then passes immediately to the Charter arguments. Section 15 does not apply to the Church because not-for-profit corporations are not “individuals” who have equality rights. The Church argues that section 27 is to be applied to the notion of “neutrality” in a way that promotes diversity; belief in a deity discourages diversity. This might seem helpful to the Church in interpreting “freedom of religion”, except that Rivoalen J. dismisses this result on two bases: section 27 is not a substantive provision, as it is not, and therefore it cannot ground a claim and the Church concedes that state religious neutrality does promote diversity by not imposing a particular religious view.

Only then does Rivoalen J. turn to section 2(a), finding that the rights of atheists are protected and the Minister cannot interfere with them. In this case, “the Minister’s refusal to register the appellant as a charitable organization does not interfere in a manner that is more than trivial or insubstantial with the appellant’s members ability to practise their atheistic beliefs. The appellant can continue to carry out its purpose and its activities without charitable registration” (Church of Atheism, para. 16, citation omitted).

Justice Rivoalen also found that the Minister’s decision was reasonable. The members of the Church worship “energy”, but this does not constitute faith in a “higher unseen power” such as God or Supreme Being; it follows that they could not have reverence for the Supreme Being. Although these two criteria were part of the Minister’s decision, they were irrelevant because, Justice Rivoalen says, agreeing with the Church, these indicia are not always part of a recognized religion. This is interesting, of course, because it raises the question of whether religions without these characteristics should have been recognized as religions in the first place (Justice Rivoalen refers to Buddhism as a religion, even though it does not require faith in a supreme being and it seems to have acquired charitable status).

The Church fails because its “doctrine” is based on “mainstream science”, which, says Justice Rivoalen, “is neither particularly specific nor precise”, providing, in the Minister’s view, “no detailed information as to the particular and comprehensive system of faith and worship”. This lack is reinforced by there being no “authoritative book similar to the Bible”. Justice Rivoalen “leave[s] open to another day whether the existence of an authoritative text…is a necessary requirement”, since the Church’s beliefs are vague. Finally, the Church argued that its activities are “‘certain other purposes beneficial to the community’ as a religious self-help group”. Justice Rivoalen found the Minister’s rejection of this argument was reasonable. (Church of Atheism, paras. 23 and 24). We are left, then, wondering to what extent the ITA does in fact acknowledge that “religion” encompasses atheism, but that the Church of Atheism has articulated too sparse a view or whether the Church’s views are the opposite of how the ITA, by reference to the common law, defines “religion”. By the time Justice Rivoalen has considered that definition, there is not much left of it, even within the context of the ITA.

In a column in the National Post, Colby Cosh suggests that the Church’s efforts may “have revealed weaknesses in the anomalous exclusion of atheists from religious tax exemptions”. I suggest it reveals even more. The body of Supreme Court juriprudence struggling with claims based on freedom of religion and prohibition against discrimination on religious grounds reveals some difficulty in coming to grips with the concept of religion when it does not “look like” ( an evocative phrase, to be sure) those with which they are most familiar. Determining the scope and application of of section 2(a) of the Charter is made even more complex by the inclusion of “conscience” as part of that freedom: the parameters of conscience are loose, indeed.

As Church of Atheism reveals, the current reliance on “advancement of religion” for recognizing charitable organizations, for example, may be out of step with a secular society, raising definitional problems unnecessarily. (For the history of the criteria to determine whether an organization has charitable purposes and for a proposal to remove “advancement of religion” as a purpose, see here.

It might well be that the Church of Atheism (an attempt at satire?) would have failed in its claim to be recognized as a registered charity regardless of the religious angle, although it’s hard to tell from what we’re told about it in the FCA decision. The “First Church of Atheism” is “located” in Pennsylvania, although there is no physical church. One can become a minister, with all the benefits of an ordained minister (“Ministers command a level of respect from the general public. Some parking lots have reserved parking for clergy. You will have clergy level access to prisons and hospitals.”). The Church of Atheism of Central Canada is somewhat behind in its development, suggesting part of its problem may be that it is not even an organization.

Freedom of religion and the prohibition against discrimination on religious grounds can pose serious conflicts with other values, such as equality and other societal goals. Yet freedom of religion and the prohibition against discrimination and state neutrality are also important societal values. However, the place of religion in some contexts may well be outmoded. Compare, for example, the Church of Atheism and Humanist Canada. The latter is (according to its website) “a registered charity with a mandate to promote the separation ofe religion from public policy and foster the development of reason, compassion and critical thinking for all Canadians through secular education and community support”. It does not purport to promote atheism in itself, but atheism (a “worldview [that] is deity-free”) does seem to be a subtext.

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