Here is a radio program where I recently appeared as a guest called “Interfaith Voices.” The program is organizing a substantial series for the next several months on “God and Government” whose aim is to explore church-state relations in different countries.
This episode kicks the series off and considers the United States and Canada. There was a broad spectrum of views represented: the other guests are Professors Jacques Berlinerblau (Jewish Civilization, Georgetown) and Lori Beaman (Classics and Religious Studies, University of Ottawa). The editing process cut out some of the more interesting disagreements, but what remains gives a strong flavor of the discussion.
Along with my St. John’s colleague, Marc DeGirolami, and other law and religion scholars from around the world, I spent part of last week at the biannual ICLARS Conference, hosted this year at William and Mary and the University of Virginia. Kudos and thanks to the indefatigable Cole Durham and other conference organizers for an exceptionally helpful and fun event!
I spoke at Friday’s afternoon session, on a panel, “Is Religion Special?”, moderated by Edward Gaffney of Valparaiso. My co-panelists were Barry Bussey of the Canadian Council of Christian Charities and Micah Schwartzman of the University of Virginia. Bussey presented a paper titled, “Does Religion Merit Special Protection in the Law? (Within the Canadian Legal Context).” Early Canadian Supreme Court cases stressed the country’s Christian heritage, he explained. Over time, however, the Court moved to a concern with religion in general. Now, equality often trumps freedom of religion in the Canadian case law–religious freedom is often the “loser.” I presented my working project on the rise of the Nones–the group of people who claim no religious affiliation–and what it might mean for the definition of religion in American law. As an example, I used the recent “Psychic Sophie” case, in which the Fourth Circuit held that “following one’s inner flow” does not qualify as a religion meriting constitutional and statutory protection. Schwartzman closed the panel with his draft, “Religion as a Legal Proxy.” He addressed the argument that, even if religion as such doesn’t merit special legal protection, religion is a proxy for other comprehensive values that do. Schwartzman is skeptical of this argument. For one thing, he said, interests besides religion–conscience, for example–might also serve as effective proxies for other comprehensive values, without raising religion’s particular concerns.
Next month Fernwood Publishing will publish Religion, Sex, and Politics: Christian Churches and Same-Sex Marriage in Canada by Pamela Dickey Young (Queen’s University). The publisher’s description follows.
Same-sex marriage continues to be a heated issue in Canadian politics. Why does this issue persist in the headlines and remain so controversial? What place does religion have in legislative and legal decisions? Religion, Sex and Politics analyzes the same-sex marriage debate in Canada by examining the intersections between religion, sexuality and public policy. Furthermore, the various arguments made by religious groups, both for and against same-sex marriage, are discussed, illustrating the range of perspectives on sexuality espoused by Christian groups and the numerous ways in which they influence the outcomes of legislation and court decisions.
A couple of days ago, I posted about the controversy surrounding a proposed new Christian law school in Canada. I questioned whether it’s a good idea to found a new law school in the current environment and wondered whether Canadian law would allow the proposed school, at Trinity Western University in British Columbia, to require its students, faculty and staff to adhere to traditional Christian sexual ethics. Over at First Thoughts, Dr. Janet Epp-Buckingham, a professor at Trinity Western and member of the group that developed the proposal for the new school, objected to some elements of my post, and I offered her the chance to respond more fully. Janet’s response follows below:
Mark Movsesian wrote a blog on January 22 questioning the wisdom of trying to start a law school at Trinity Western University. The university has a 50 year history and is located in a suburb of Vancouver, British Columbia. Mark based some of his concerns on the downturn for lawyers and law schools in the U.S. While legal education has had its issues in the last few years in Canada, the situation is much different in Canada than in the U.S. Actually, the whole university structure is much different, and more regulated, in Canada.
Trinity Western is the largest of only a handful of Christian universities in Canada. There are very few private universities. Most universities are public universities and subsidized by provincial governments. Before a new program can start at any university, public or private, it must be approved Continue reading
This really isn’t the time to be starting a law school, at least in the United States. Lawyers face uncertain job prospects–the poor economy, outsourcing, and technological innovation continue to reduce demand for lawyers–and fewer and fewer people see a legal education as a good investment. Applications are down dramatically. Maybe this situation is temporary, maybe it’s permanent; we’ll have to wait and see. But starting a law school in this environment–you really have to wonder.
None of these hard facts explains the controversy surrounding a proposed new Canadian law school, however. Trinity Western University (TWU) in British Columbia wishes to start the first religious law school in Canada. The Council of Canadian Law Deans opposes the new school because TWU requires students, faculty and staff to honor traditional Christian sexual ethics: no sex outside heterosexual marriage. This requirement, the deans argue, discriminates on the basis of sexual orientation in violation of Canadian law. TWU maintains that a Canadian Supreme Court case from 2001 allows it to impose the requirement as a matter of religious freedom.
The Federation of Canadian Law Schools, the body that accredits law schools in Canada, has not yet decided whether to grant TWU permission to start its new school. Whatever decision the Federation takes, a lawsuit will no doubt follow. Canadian law on religious exercise uses a balancing test similar to the one in the European Conventi0n on Human Rights. Under that balancing test, government may limit citizens’ freedom of religion if necessary to protect important countervailing interests, including “the fundamental rights and freedoms of others.” Just last week, in fact, the European Court of Human Rights applied this test and ruled that the European Convention allows member states to limit employees’ religious freedom in order to protect the right of same-sex couples to be free from discrimination.
It’s a different jurisdiction, of course, and the Canadian and European cases don’t line up exactly. As a religious university, TWU could raise arguments the European case didn’t address. But, like the European case, TWU’s claim will require judges to balance the right of religious exercise against the rights of sexual minorities. If Canadian judges adopt the ECtHR’s general view of things, TWU’s chances of prevailing in the long run don’t look great.
This May, the Toronto University Press will publish Free to Believe: Rethinking Freedom of Conscience and Religion in Canada by Mary Anne Waldron (University of Victoria). The publisher’s description follows.
Free to Believe investigates the protection for freedom of conscience and religion – the first of the “fundamental freedoms” listed in the Canadian Charter of Rights and Freedoms – and its interpretation in the courts. Through an examination of decided cases that touches on the most controversial issues of our day, such as abortion, same-sex marriage, and minority religious practices, Mary Anne Waldron examines how the law has developed in the way that it has, the role that freedom of conscience and religion play in our society, and the role it could play in making it a more open, peaceful, and democratic place.
While the range of cases explored will be of interest to scholars, Free to Believe is also written in an accessible style, with legal terms and concepts explained for those who wish to learn accurate, detailed information about the impact of the law on contemporary social policy issues. As such, this book widens the debate about this fundamental freedom and the influence of public opinion on what is often a misrepresented and misunderstood issue.
This December, Wilfrid Laurier University Press will publish Discipline, Devotion, and Dissent: Jewish, Catholic, and Islamic Schooling in Canada edited by Graham P. McDonough (University of Victoria), Nadeem A. Memon (Islamic Teacher Education Program and Wilfrid Laurier University), and Avi I. Mintz (University of Tulsa). The publisher’s description follows.
The education provided by Canada’s faith-based schools is a subject of public, political, and scholarly controversy. As the population becomes more religiously diverse, the continued establishment and support of faith-based schools has reignited debates about whether they should be funded publicly and to what extent they threaten social cohesion.
These discussions tend to occur without considering a fundamental question: How do faith-based schools envision and enact their educational missions?Discipline, Devotion, and Dissent offers responses to that question by examining a selection of Canada’s Jewish, Catholic, and Islamic schools. The daily reality of these schools is illuminated through essays that address the aims and practices that characterize these schools, how they prepare their students to become citizens of a multicultural Canada, and how they respond to dissent in the classroom.
The essays in this book reveal that Canada’s faith-based schools sometimes succeed and sometimes struggle in bridging the demands of the faith and the need to create participating citizens of a multicultural society. Discussion surrounding faith-based schools in Canada would be enriched by a better understanding of the aims and practices of these schools, and this book provides a gateway to the subject.
Lori G. Beaman (U. of Ottawa) has posted Is Religious Freedom Impossible in Canada? The abstract follows.
The idea of religious freedom is not new in Canadian law or wider public discourse, although it has taken on a life of its own in the post-Charter era (1982 onward) and certainly in the last several years. As the courts wade more fully into the swirling abyss that is religion they find themselves struggling with the issues that preoccupy scholars of religion (and for which they have found no conclusive answer): what is “religion” and how can it be defined in a manner that is inclusive and meaningful? This article takes as its point of departure the provocative and compelling argument made by Winnifred Sullivan in her book, The Impossibility of Religious Freedom (2005), that religious freedom as a legal promise is untenable. In this article I argue that while plausible and convincing in the context of the United States, Sullivan’s thesis may be less applicable in Canada for three key reasons. First, the embeddedness of Roman Catholicism in Canadian social structure has resulted in a textured and nuanced understanding of religion, or, at the very least, a recognition that religion is in some measure a multifaceted notion. Secondly, the recognition of group rights, however defined, means that there is a space created for alternative religious discourses, in part because of the constitutional recognition of multiculturalism. Thirdly, the recent turn by the Supreme Court of Canada to an understanding of the subjectivity of religious freedom strengthens the idea that religion must be conceptualized in relation to the ways in which individuals understand and practice it in their day to day lives.
This December, Oxford University Press will publish the second edition of Religious Freedom in the Liberal State by Rex Ahdar (University of Otago Faculty of Law) and Ian Leigh (University of Durham, Durham Law School). The publisher’s description follows.
Examining the law and public policy relating to religious liberty in Western liberal democracies, this book contains a detailed analysis of the history, rationale, scope, and limits of religious freedom from (but not restricted to) an evangelical Christian perspective. Focussing on United Kingdom, the United States, Canada, New Zealand, Australia, and EU, it studies the interaction between law and religion at several different levels, looking at the key debates that have arisen.
Divided into three parts, the book begins by contrasting the liberal and Christian rationales for and understandings of religious freedom. It then explores central thematic issues: the types of constitutional frameworks within which any right to religious exercise must operate; the varieties of paradigmatic relationships between organized religion and the state; the meaning of ‘religion’; the limitations upon individual and institutional religious behaviour; and the domestic and international legal mechanisms that have evolved to address religious conduct. The final part explores key subject areas where current religious freedom controversies have arisen: employment; education; parental rights and childrearing; controls on pro-religious and anti-religious expression; medical treatment; and religious group (church) autonomy.
This new edition is fully updated with the growing case law in the area, and features increased coverage of Islam and the flashpoint debates surrounding the accommodation of Muslim beliefs and practices in Anglophone nations.
Posted in Scholarship Roundup, Yosefa A. Heber
Tagged Australia, Books, Canada, Church and State, Constitutional Framework, European Union, Law and Religion, New Zealand, Religious Freedom, United Kingdom, United States
Diana Ginn & David Blaikie (Dalhousie U. Schulich School of Law) has posted Judges and Religious-Based Reasoning. The abstract follows.
Is it ever acceptable for a judge in a secular liberal democracy to rely on, and explicitly refer to, religious-based reasoning in reaching a decision? While it is unlikely that many Canadian judges will be seized with the desire to include religious-based reasoning in their judgments, we raise this issue because it allows us to examine the appropriate role of religious-based discourse in a challenging context, where arguments about unconstitutionality are strongest. In a previous article, we concluded that there are no ethical impediments to citizens using such discourse in discussing public affairs. We argued that it is no less virtuous (although it may sometimes be less persuasive) to reason from one’s religious convictions than from any other comprehensive set of values, when advocating for or against public policy alternatives. We would suggest that this is generally also the case for elected representatives. Thus, in our view, it would be perfectly acceptable for a member of a legislature to buttress a call for increased funding for social services by reference to Proverbs 19:17: “One who is gracious to a poor man lends to the Lord.” However, it is unconstitutional for a legislature to pass legislation for a religious purpose; therefore, legislators must recognize the distinction between advocating legislation designed to achieve a religious purpose and using religious arguments to support or oppose legislation designed to achieve a public purpose.