Thursday Thinkpiece: Bhabha on the Conceptual Limits of Accommodation to Religious Freedom

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From Saumur to L. (S.): Tracing the Theory and Concept of Religious Freedom under Canadian Law
Faisal Bhabha
58 Supreme Court Law Review (2d), 2012

(The excerpt from the introduction has been edited for Slaw by the author.)

Religious Freedom Unhinged: The Conceptual Limits of Accommodation

Religious freedom under the Canadian Constitution[1] has received sustained attention over the past 30 years but remains a concept in search of a theory. Cases have tended to be dealt with in one of two ways: either as religious claims in tension with government objectives in policy or law, such as a driver’s licence exemption request[2]; or as religious claims that risk harm to others or exact a public cost, such as permitting a kirpan in public school.[3] The test, as set by the Supreme Court of Canada in the paradigmatic judgment, Amselem[4] calls for a non-evaluative identification of the claimant’s religious belief or practice. A claimant need only establish a subjective, sincerely-held belief in order to attract the protection of the Charter or human rights law.

Under existing doctrine, no limits are imposed on the potential scope of protected beliefs or activities. The primary limiting principle of religious accommodation is the “undue hardship” test in statutory human rights[5] or the section 1 “Oakes test” for Charter cases.[6] In the cases of Amselem and Multani the Supreme Court of Court did not find convincing justificatory arguments under section 1; in Hutterian Brethren it did. These cases were decided under a doctrine of accommodation that conceives of only practical limits to freedom. Derived from a liberal theory of justice in which maximum individual autonomy is paramount, any need to limit freedom within the accommodation framework is conceptualized as a practical obstacle created by the inconveniences of social life. Pure, or idealized, freedom is unrestrained; practical freedom requires balancing competing interests and rights.

Accommodation analysis proves a shaky framework for adjudicating religious freedom issues that involve deep normative disputes in which a variety of social interests are at play. In some cases, for example, government action may seek to compel the promotion of a particular norm—such as acceptance of others—that may be contrary to the deeply held views of an individual or group. When this happens, religious freedom’s intersection with equality and other constitutional values, such as multiculturalism and minority protection, suggest a more holistic conception of freedom that accounts for relational interests. While accommodation often demands special treatment, constitutional and public values may not warrant affording such treatment to all religious claims. The specific impact of Amselem was limited, but the analysis used to create the accommodation exception generated doctrinal instability, and indeterminacy in the potential scope and singularity of future claims. Courts are often compelled to consider content and normativity when considering claims of religious freedom, despite the law’s efforts to render religion “neutral”.[7]

Most commentary on freedom of religion looks at jurisprudence in the era of statutory human rights and the Charter. It is worth stepping back further, to begin the story of religious freedom at a time of nascent doctrine. Given the statutory and formal constitutional lacuna, the early Supreme Court jurisprudence developed foundational constitutional concepts of religious freedom. This paper revisits three Supreme Court religion cases from the 1950s, Saumur, Chaput and Roncarelli.[8] In these judgments, we see how the Court grounded its protection of religion and religious freedom in historical and contextual considerations, philosophical values, cultural norms, and unwritten constitutional principles. The Court engaged in conceptual analyses about freedom and the role of religion in public life. It decided constitutional rights without reference to positive law—only to norms and values. Freedom was understood then as a moral and political concept, if not yet a legal right. Injecting its assessment of the “good” into its determination of the just, the Court articulated an proto-doctrine of constitutional religious freedom.

In its 2012 decision in L. (S.) v. Commission scolaire des Chenes,[9] the Court again engaged with conceptual issues related to religious freedom, but within the doctrinal framework of section 2(a).

L. (S.) dealt with a challenge to the public school curriculum in Quebec. The claimants sought an exemption for their children from a mandatory “ethics and religious culture” course on the basis that it interfered with their parental right to transmit the tenets of the Catholic faith to their children. In denying the appellants’ claim, and requiring their children to enrol, the Court upheld compulsive diversity and ethical pluralism pedagogy as a legitimate mandatory component of public school education. In its decision, the Court emphasized the “neutrality” of the secular educational program as justification for refusing the exemption. However, it did not explain how granting an exemption would have undermined the program’s neutrality. There would have been little identifiable harm caused to any person by exempting the appellants’ children from the course. But perhaps the harm was inherent to the exemption itself. After all, public education is, by definition, about instilling public values, which may not always match all of the personal values of all recipients of public education, or their parents. It is well established that some beliefs and opinions are not accommodated in the public school classroom.[10] It may also be true that some beliefs and opinions need to be coercively instilled in the public school classroom.[11]

If this last claim is true, the Court failed to articulate, doctrinally, how the Constitution can prefer particular expressive or conscientious positions, while at the same time claiming moral neutrality. Instead of concealing normative preferences under a posture of neutrality, the Court could do better at articulating a theory of internal limits to freedom within a rights-definition framework. In thinking about this, one can posit a descriptive distinction between practical and conceptual limits to religious freedom. Practical limits, embodied in doctrines of undue hardship or Oakes proportionality, operate to justify a specific policy or legislative objective that necessitates restricting the right in particular circumstances. These are freedom claims that are practically unrealizable, or which carry too high a cost on the state or on others. Conceptual limits, on the other hand, focus on the idea of freedom itself, as defined by foundational constitutional, political and social values. Conceptual limits restrain those claims that are simply beyond the reach of the law, even where they are subjectively sincere and are grounded in personal morality. One implication of the Amselem analysis is the creation of a potentially limitless range of individual accommodation claims with few limiting principles. The question for courts in such cases is not only how far religious freedom should go and where the limit of freedom lies (in terms of undue hardship or minimal impairment). It also asks what religious freedom should mean conceptually.

Canadian constitutional law, being rooted in the liberal-democratic political tradition, has inherited a particular, liberal conception of freedom as being conceptually limitless. This conception is based on a view of freedom that is centred on the individual in society. Neo-republican political philosopher, Philip Pettit, argues for a conception of democratic freedom that is relational—one which sees human freedom as being not only individually held, but as socially contingent and mutually reinforcing.[12] Because we cannot live without others (in a political sense), Pettit suggests it is unrealistic to shape our understanding of liberty in accordance with fantasies of an unencumbered or unbounded existence. Rather, freedom exists in a social context and, because it does, the courts must carefully define it in any given circumstances in accordance with shared values. Objective review of subjective beliefs, the exercise which the Supreme Court has approached with great reluctance,[13] would not only be justifiable, in some cases, it would be inevitable. Perhaps some beliefs would be found undeserving of protection, and others so valuable as to warrant mandatory enforcement through public institutions. Recently proposed legislation to regulate religious attire in Quebec reflect such a neo-republican approach; limiting individual freedom and compelling compliance with (supposedly) public values.

Political theory serves as an interpretive aid to understanding the kinds of limits to freedom being considered. It can help articulate reasons for and justifications for public interference, or non-interference, with personal choice. I turn to neo-republican democratic theory to offer an account of what courts do when they choose between competing subjectivities—the disharmony of deeply-held personal experiences and normative views. Rather than imposing limits on individual autonomy, republicanism accepts that within democratic theory the manifestation of personal beliefs will at times need to yield to general norms. Underlying the Court’s recent judgments appears a view on the bench that religious freedom is indeed subject to internal, conceptual limits, at least in certain circumstances where the interests of coercing conformity to public values are most compelling. The introduction of legislation to ban religious attire in Quebec’s public service could very well present a further opportunity for the Court to clarify the appropriate analysis for constitutionally reviewing government action designed to promote secular values and enforce secular compliance.