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The Limits of Belief: Freedom of Religion, Secularism, and the Liberal State

  • Benjamin Berger (a1)


Canadian courts are increasingly faced with the challenging task of reconciling a secular, liberal polity with the Charter's guarantee of freedom of religion. Conventional approaches to liberalism and secularism have made this reconciliation particularly difficult by promoting a conceptually unsatisfying vision of an a-religious and hyper-rational public space devoid of moral commitments. At the same time, liberal theorists have failed to fully appreciate the nature and demands of religious conscience. This article considers liberalism, secularism, and religious conscience, and argues for an understanding of the relationship among the three that would consist of a mediated pluralism premised upon a language of civic values. Through a case law analysis, the author demonstrates that this form of reconciliation is already tacitly at play in Canadian jurisprudence. The most theoretically consistent manner of delineating the limits of religious conscience in Canadian society, this approach gives substance to religious freedom while maintaining due regard for the common good and the gifts of secular liberalism.

Les tribunaux canadiens sont de plus en plus confrontés au défi de réconcilier une politique laïque libérale avec la protection de la liberté de religion de la Charte. Les approches traditionnelles envers le libéralisme et la laïcité ont rendu cette réconciliation particulièrement difficile, en promouvant une vision insatisfaisante, sur le plan conceptuel, d'un espace public areligieux, hyper-rationnel et dénué d'engagements moraux. En même temps, les théoriciens libéraux n'ont pas apprécié entièrement la nature et les demandes de la conscience religieuse. Cet article aborde les notions de libéralisme, de sécularisme et de conscience religieuse et suggère une compréhension de la relation entre les trois qui impliquerait un pluralisme arbitré sur la base des prémisses d'un langage de valeurs civiques. À l'aide d'une analyse de la jurisprudence canadienne, l'auteur montre que cette forme de réconciliation est déjà tacitement à l'œuvre. Cette approche est la manière la plus cohérente pour tracer les limites de la conscience religieuse au Canada et donne de la substance à la liberté religieuse tout en respectant le bien commun et les acquis du libéralisme séculier.



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1 The author wishes to thank Professor John P.S. McLaren for his encouragement and advice in the preparation of this article.

2 Brassard et al. v. Langevin, [1877] 1 S.C.R. 145 at 153 [hereinafter Brassard].

3 Ibid. at 164.

4 Ibid. at 161.

5 Ibid. at 229–30.

6 Ibid. at 152–3.

7 Ibid. at 220–1

8 For a more thorough examination of the topic, see Tester's, Keith rich and fascinating book, Civil Society (London: Routledge, 1992). By way of introduction, Tester writes that “civil society is about [the] fundamental experiential and relational connection between individuals going about their own lives and members of society doing what they are told. The point is, of course, that those individuals and members of society were, and to some extent continue to be, actually one and the same” (at 5). He canvasses the varied and sometimes conflicting thought about the nature of civil society. He considers the perspectives of Locke, Hobbes, Marx, Hegel, Rousseau, and a raft of other sociologists and political philosophers. For a consideration of the discourse around civil society in recent decades, see Gellner, E., Conditions of Liberty (London: Hamish Hamilton, 1994).

9 Tester, supra 8 at 4.

10 Rosen concedes that “‘[l]iberalism’ and ‘liberal’ are protean terms especially among historians of political ideas … Where there is an attempt to discern a single liberal tradition, even in Britain, there is little agreement over what its main features are and which writers best represent its principles.” Rosen, F., Bentham, Byron, and Greece: Constitutionalism, Nationalism, and Early Liberal Political Thought (Oxford: Clarendon Press, 1992) at 289.

11 Dicey's formulation of the rule of law has been both a mould for and foil to many developments in Canadian law. He saw the rule of law as requiring (1) that law not be imposed arbitrarily, (2) that all persons are equally subject to the law, and (3) that constitutional law is “the result of the ordinary law of the land.” Dicey, A. V., Introduction to the Study of the Law of the Constitution, 10th ed. (London: MacMillan, 1967) at 202–03.

12 Held, D., “Democracy: From City-states to a Cosmopolitan Order?” in Goodin, Robert E. and Pettit, Philip, ed., Contemporary Political Philosophy: An Anthology (Oxford: Blackwell Publishers, 1997) 78 at 82.

13 Rawls, J., Political Liberalism (New York: Columbia University Press, 1996) at 1011 [hereinafter Political Liberalism].

14 Ibid. at 157.

15 Ibid. at 9.

16 These crucial theoretical shortcomings are not particular to Rawls but, rather, are endemic among conventional liberal visions of justice. For example, although his conception of liberalism differs from Rawls' in some substantial ways, including a compelling and sophisticated dialogic vision, Ackerman, nevertheless, employs his Neutrality principle to demand that any reasons generated to vindicate political authority must be void of conceptions of the good. (Ackerman, B. A., Social Justice in the Liberal Siale (New Haven: Yale University Press, 1980) at 11, 43–45.)

17 Political Liberalism, supra note 13 at 176.

18 Ibid. at 194.

19 Taylor, C., “The Politics of Recognition” in Taylor, C., Philosophical Arguments (Cambridge: Harvard University Press, 1995) 225 at 245–6.

20 Ibid. at 249.

21 C. Taylor, “Liberal Politics and the Public Sphere” ibid. 257 at 257–58.

22 Supra note 19 at 248.

23 Supra note 21 at 258.

24 Heschel, A. J., God in Search of Man: A Philosophy of Judaism (New York: Noonday Press, 1955) at 293.

25 In describing these aspects of religious conscience, I am drawing from an instantiation of religious life that is rather orthodox in nature. Of course, individuals that adhere to some religious conscience will participate to a greater or lesser extent in each of these dimensions, dependant upon their individual conviction.

26 Heschel, A. J., Man is Not Alone: A Philosophy of Religion (New York: Noonday Press, 1951) at 237.

27 Ibid. at 236.

28 Taylor, C., “Charles Taylor Replies” in Tully, James, ed., Philosophy in an Age of Pluralism: The Philosophy of Charles Taylor in Question (Cambridge: Cambridge University Press, 1994) 213 at 48.

29 White, J. B., “Talking About Religion in the Language of the Law: Necessary but Impossible” (1998) 81 Marquette Law Review 177 at 200.

30 Heschel, supra note 24 at 297.

31 Chaplin, J., “Beyond Liberal Restraint: Defending Religiously-Based Arguments in Law and Public Policy” (2000) 33 U.B.C. L. Rev. 617 at 626.

32 Von Heyking, J., “The Harmonization of Heaven and Earth?: Religion, Politics, and Law in Canada” (2000) 33 U.B.C. L. Rev. 663 at 668.

33 Berger, P. L., “The Desecularization of the World: A Global Overview” in Berger, P. L., ed., Desecularization of the World: Resurgent Religion and World Politics (Grand Rapids: W.B. Eerdmans, 1999) 1 at 2.

34 See, e.g., Chamberlain v. Surrey School District No. 36 (1998), 168 D.L.R. (4th) 222 (B.C.S.C.) [hereinafter Chamberlain].

35 Canadian Charter of Rights and Freedoms, s. 27, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.

36 Chamberlain, supra note 34. Subsequent to completing this article, the author was employed as a summer student at Arvay Finlay, counsel for the petitioners in this case.

37 Ibid. at par. 33–34.

38 Benson, I. T., “Notes Towards a (Re)definition of the ‘Secular’” (2000) 33 U.B.C. L. Rev. 519.

39 Hoad, T. F., Concise Oxford Dictionary of English Etymology (Oxford: Oxford University Press, 1986).

40 Code of Cannon Law Annotated (Montreal: Wilson & Lafleaur, 1993).

41 Taylor, C., “Understanding and Ethnocentricity” in Philosophy and the Human Sciences: Philosophical Papers 2 (Cambridge: Cambridge University Press, 1985) 116 at 125–6.

42 The Canadian common law, including its British antecedents, instantiates a conflicted approach to liberalism and religious freedoms. In many ways, the common law has become a fulsome reflection of liberalism. The common law's individualism, focus on property rights, and rational-mechanical application of stare decisis all point strongly to liberal influences. However, there are islands of profoundly illiberal thought within this body of law. The common law has protected some forms of group interests, such as the ancient concept of the “commons,” has demonstrated an acceptance of customary laws and sometimes recognition of Aboriginal and other “group-based” rights, and continues to protect modern group interests through torts such as public nuisance and public-policy claims.

43 Many aspects of the Charter construct an atomistic, anti-state and rational approach to rights discourse that is consistent with a liberal programme. Section 1 of the Charter of Rights and Freedoms privileges reason and logical demonstration as analytical tools to restrict rights. The fundamental freedoms of Section 2, section 15 equality rights, and the legal rights outlined in section 7–14 are all cast in terms of the individual. However, there are largely illiberal currents in the Constitution as well. Section 2 does afford the freedom of association, and section 23 entrenches language and education rights on the basis of minority status. Sections 25 and 35 recognise the special rights, freedoms, and obligations that are owed to the Aboriginal people of Canada. Finally, section 27 recognizes that Canada is a multicultural society and mandates that the Charter be interpreted in a manner consistent with this heritage. This tension is also reflected in the sphere of religious freedom, with the Charter simultaneously protecting individual religious freedom while declaring in the preamble that “Canada is founded upon principles that recognize the supremacy of God…”

44 R. v. Big M Drug Mart, [1985] 1 S.C.R. 295 [hereinafter Big M].

45 R.S.C. 1970, c. L-13.

46 The appeal was heard in March 1984, before Mr. Justice Dickson became Chief Justice.

47 Ibid. at par. 94.

48 Ibid. at par. 122.

50 Ibid. at par. 123.

51 R.B. v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at par. 109- 110 [hereinafter R.B.].

52 Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772 at par. 29 [hereinafter TWU], quoting with approval from P.(D.) v. S.(C.), [1993] 4 S.C.R. 141 at 182.

53 Note that the Chief Justice speaks in terms of Christian and non-Christian beliefs, failing to recognise until later in the judgment that some Christian traditions do not observe a Sunday Sabbath.

54 Ibid. at par. 97.

55 Ibid. at par. 100.

56 Ibid. at par. 95.

57 Supra note 21 at 257–58.

58 See Malette v. Schulman (1990), 67 D.L.R. (4th) 321 (Ont. C.A.).

59 Supra note 51 at par. 105.

60 Ibid. at par. 107, quoting from Big M.

61 Ibid. at par. 111.

62 Ibid. at par. 113.

63 Ibid. at par. 225.

64 Ibid. at par. 226.

65 Ibid. at par. 231.

66 Supra note 44.

67 Young v. Young, [1993] 4 S.C.R. 3 [hereinafter Young].

68 Supra note 52.

69 Ibid. at par. 13.

70 Ibid. at par. 25.

71 TWU raises an interesting question as to the nature of the evidence required to establish that discrimination will occur. One might well argue that it is a reasonable inference that an individual who, during the course of his or her training as a public school teacher, signs a document declaring that “homosexual behaviour” is “biblically condemned” will not be suited to teach tolerance and equality.

72 Ibid. at par. 36.

73 Ibid. at par. 35.

74 Zylberberg v. Sudbury Board of Education (1988), 52 D.L.R. 577 (Ont. CA.) [hereinafter Zylberberg].

75 R.S.O. 1980, c. 129.

76 Supra note 4 at 583.

77 Ibid. at 591.

79 Ibid. at 592.

81 Ibid. at 593.

82 Supra note 36.

83 Ibid. at par. 54.

84 School Act, R.S.B.C. 1996, c. 412, s. 76(1).

85 Ibid. s. 76(2).

86 Supra note 36 at par. 8.

87 Ibid. at par. 28.

88 Ibid. at par. 17.

89 Curiously, Mackenzie J.A. singles out for consideration the work of William James. From James' thought, at par. 15, Mackenzie J.A. concludes that “at the heart of all religions is the experience of a dimension of reality which is ‘wholly other.’” It is unclear why Justice Mackenzie has settled upon James' interpretation of religious experience, and it should be noted that the question of what lies “at the heart of all religions” is a matter of divided opinion and heated debate. Heschel, Eliade, Durkheim, Kierkegaard, Freud and Weber are just a few examples of theorists that approach the philosophy of religion from diverse perspectives and arrive and equally disparate conclusions about the essence of religious experience.

90 Ibid. at par. 20.

91 Ibid. at par. 12.

92 Ibid. at par. 36.

93 Ibid. at par. 38.

94 Ibid. at par. 60.

95 Ibid. at par. 63.

96 This approach is particularly appropriate in light of the Supreme Court of Canada's powerful assertion in TWU of the centralny of these principles in the provision of public education. The Court stated that “schools are meant to develop civic virtue and responsible citizenship, to educate in an environment free of bias, prejudice and intolerance.” Supra note 52 at par. 13.

97 de Tocqueville, A., Democracy in America, v. 1, 3rd ed., trans. Reeve, Henry (Cambridge: Sever and Francis, 1863) at 397–98.

98 Supra note 21.

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The Limits of Belief: Freedom of Religion, Secularism, and the Liberal State

  • Benjamin Berger (a1)


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