Abstract

The legitimacy of public support of religious charitable organizations is tied to a subjective value judgement of the benefit of advancing religion and protecting the religious rights of its members. Despite the variation in treatment across common law jurisdictions, the policy rationale and evaluation method associated with assessing benefit have never been clearly articulated. As a complex aspect of charity law internationally and human rights law in Canada, religion is one of the few heads of charity or enumerated grounds in which privilege or protection is afforded to people on the basis of a pathway of causality from cultural characteristics to effects experienced by individuals, organizations and society at large. In this chapter I explain how the lack of consensus on the question of religion and benefit stems from an insufficient understanding of what the question means. To address this deficiency, I provide social scientific perspectives and critiques in three topical areas: religious concepts and levels, the nature of relationships between levels and the theoretical description of reality. Rather than address the misleading proposition that religion must be instrumentally beneficial, lawmakers should understand that religion is a phenomenon that centres on the deepest human need for meaning, significance and connectedness. In view of the true nature of religion, I conclude that oversimplifying this reality and applying unsuitable tests do a disservice to our shared humanity.

Introduction

The legal discourse is at a crossroads regarding the place of religion within charity and human rights law. Current common law is characterized by an undeveloped policy rationale for maintaining religion as the third head of charity and lack of articulation of the nature of religion and the benefits expected from religious organizations. Interventionalist administrative policies in England and Canada are compelling religious organizations to justify the value of their religious identity and public benefit, without established standards against which such value is to be assessed.

In Canada, interpretations of section 2(a) of the Canadian Charter of Rights and Freedoms have led to an emphasis on equal respect and non-discrimination rather than the preservation of religious liberty for groups and individuals. Landmark decisions involving Trinity Western University now place religious organizations on a collision course with administrative bodies who question organizational mandates or policies based on human rights concerns.