Judges and Religious-Based Reasoning: A Response to Ginn and Blaikie (original) (raw)

The Court and Freedom of Religion

How does the Supreme Court of Canada explain its own role in the resolution of religious freedom cases under the Charter? I argue here that we may understand the Court’s jurisprudence in this area as relying on three non-exclusive narratives of its institutional identity: the neutral manager of a volatile public, the defender of minorities, and the defender of the state. As others have argued, the overarching contemporary narrative is that of manager. I suggest that the other two narratives are contained within this larger one. They are called upon to explain the exercise of managerial discretion in one way or the other. Sometimes, the Court presents all three narratives together, but they are often in tension. The defender of minorities cannot often be the defender of the state, and a court that advocates too strongly on behalf of either a minority or the state can compromise its appearance of neutrality. Which narrative will carry the day in a given case can seem to be a product of prevailing social attitudes, making the future of religious freedom jurisprudence uncertain, despite apparently clear tests for rights infringement and the justification thereof.

Religious Freedom in Canada: A Crucible for Constitutionalism

Modelli atlantici di libertà religiosa, 2018

This article examines three axes around which contemporary Canadian debates on freedom of religion are turning: the status and protection of group and collective religious interests; the emergence – and instability – of state neutrality as the governing ideal in the management of religious difference; and the treatment of Indigenous religion. Each is discussed as a key thematic and doctrinal development emerging from recent activity in the freedom of religion jurisprudence in Canada. Each is also an instance, the article suggests, of religion doing its particularly effective work of exposing the fundamental tensions and dynamics in Canadian constitutionalism more generally.

Rights Adjudication in a Plurinational State: The Supreme Court of Canada, Freedom of Religion, and the Politics of Reasonable Accommodation

Osgoode Hall Law Journal, 2013

A disproportionate number of the Supreme Court of Canada’s recent cases on freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms come out of Quebec and involve claims for reasonable accommodation. These decisions represent a point of national cleavage in two respects. First, in each case the Quebec Court of Appeal rejected the section 2(a) claims, and the Supreme Court of Canada overturned its decision. Second, the Supreme Court has often divided on national lines with one or more francophone judges from Quebec writing a concurrence or a sharp dissent. Moreover, francophone judges from outside Quebec have also broken ranks with their colleagues. The cleavages on the Supreme Court have sometimes tracked a large and arguably growing divide between Quebec and the rest of Canada on these questions. I link this line of cases to earlier disputes about the constitutionality of Quebec’s policies to promote the French language that were ultimately resolved by the Court. The fact that the Court spoke in a single voice in those earlier cases can be explained, in part, by the need to preserve its institutional legitimacy. This time, the point of dispute is not language, but religion. The Supreme Court is groping incrementally toward a kind of consensus position on the character of the “neutral” state to close this divide within the Court against the backdrop of an intense political debate on these issues in Quebec.

The Supreme Court of Canada. Special focus on The essential elements of religion in the interpretation of the Courts

Diritto e religioni, 2017

Parte I Diritto canonico MARCO CANONICO La forma matrimoniale canonica alla luce delle intervenute modifiche normative 17 Diritto Ecclesiastico FABIO BALSAMO Libertà testamentaria degli ecclesiastici e tutela dell'integrità patrimoniale della Chiesa 45 VALENTINA BARELA Riflessioni sull'interesse del minore, dal diritto di unificazione di status al diritto di autodeterminazione nella scelta religiosa: un'esigenza sovranazionale 71 MARCO CANONICO La nuova normativa sul servizio civile universale 98 MARIA D'ARIENZO La libertà religiosa nella giurisprudenza della Cassazione civile francese 112 CATERINA GAGLIARDI Integrazione, scuola e libertà religiosa 124 ERNESTO GIARNIERI Riflessioni sul lodo arbitrale nell'ordinamento vaticano 144 MARIO GINESTRA In merito agli idonei strumenti per il perseguimento dei fini statutari della Fondazione per i Beni e le Attività artistiche della Chiesa. Con particolare riguardo ai profili giuridici in materia fiscale e tributaria 161 ANTONIO GUSMAI «Giustificato motivo» e (in)giustificate motivazioni sul porto del kirpan. A margine di Cass. pen., Sez. I, sent. n. 24084/2017 170 MARIA LUISA LO GIACCO Enti di adozione e obiezione di coscienza. Osservazioni su alcuni recenti provvedimenti legislativi statunitensi 189 ANNA MARIA NICO Ordine pubblico e libertà di religione in una società multiculturale. (Osservazioni a margine di una recente sentenza della Cassazione sul kirpan) 201 8 RAFFAELE GUIDO RODIO Il diritto al riposo settimanale come elemento di inclusione sociale: alcune considerazioni di diritto costituzionale italiano ed europeo 209 FABIO VECCHI La «post-transizione» serba in tema di libertà religiosa: prove pratiche di armonizzazione della tradizione sinfonica bizantina con i modelli giuspluralisti europei 218 FOCUS: DEFINING RELIGION. THE APPROACH OF SUPREME AND CONSTITUTIONAL COURTS. LA DEFINIZIONE DI RELIGIONE. L'APPROCCIO DELLE CORTI APICALI 9 Storia delle istituzioni religiose e dei rapporti tra Diritto e Religioni ALESSANDRO SERPE Forme di vita e religione nel luteranesimo riformista del teologo danese Hal Koch. Dalla coscienza del popolo alla democrazia 465 Argomenti, dibattiti, cronache ALESSANDRO ALBISETTI Recensioni 513 FRANCESCA CARIMINI Diritti umani e legalità costituzionale 520 FRANCESCO PAOLA CASAVOLA La storia come forma di educazione intellettuale 536 ORAZIO CONDORELLI Ricordo di Luciano Musselli 548 GIOVANNI ANGELO LODIGIANI L'obiezione di coscienza: strumento di coabitazione non-violenta nella società pluralistica. Presupposti etico-teologici 551

Inclusive Religious Neutrality: Rearticulating the Relationship Between Sections 2(a) and 15 of the Charter

2019

This article provides an analysis of the principle of religious neutrality as it is understood in Canadian constitutional law. The first half of the article provides a jurisprudential survey of religious neutrality, both before and after the advent of the Canadian Charter of Rights and Freedoms. Specific attention is given in these sections to the gradual recognition of religious neutrality’s status as a constitutional principle. The latter half of the article assesses contested visions of religious neutrality in Canadian law and provides recommendations for how this principle should be judicially rearticulated to more purposively align with the Charter’s protection of religious minorities under sections 2(a) and 15. The article concludes with case studies of the controversies surrounding Trinity Western University’s proposed law school and Quebec’s Bill 62 to demonstrate how a more purposive articulation of the principle of religious neutrality can help to resolve the inevitable te...

Sacred Laws in Earthly Courts: Legal Pluralism in Canadian Religious Freedom Litigation

In three cases, Amselem, Multani and Hutterian Brethren of Wilson Colony, the Supreme Court of Canada examined conflicts between state law and the religious practices of litigants. While much has been written about the holdings in these cases, less is known about the experience of the participants. Based on in-depth interviews with litigants, lawyers and experts involved in these cases, this article examines how the participants viewed their relationship to the Canadian legal system. Drawing on critical legal pluralist scholarship, the author demonstrates that in many instances, participants (i) considered their religious norms as legally binding; (ii) placed their religious obligations above Canadian law; and (iii) filtered state law through the lens of their normative, religious beliefs. The author also examines how participants, in their submissions to the court, challenged the status of Canadian law as the sole legal system governing their lives. For many participants, these cases represented a conflict between religious law and state law that could not be easily reconciled. The overlap of legal systems in the participants' lives is complex and the boundaries between state and religious principles are often blurred. With a greater awareness of these issues, courts could be more conscientious in applying the proportionality test of section 1 of the Charter of Rights and Freedoms in religious freedom cases.

Freedom of Religion and Canada's Commitments to Multiculturalism

In this article, the author explores the Canadian law of religious freedom in light of Canada's commitments to multiculturalism. Though these commitments are aspirational and imprecise, the author argues that two stable notions emerge from Canada's Constitution and legislated multiculturalism policies: recognizing minority cultural communities and fostering inter-cultural dialogue. The author goes on to examine the Canadian case law on religious freedom, arguing that there are at least three recurring themes that run through the prevailing decisions. First, the courts' treatment of religion is individualistic, using the individual litigant's sincerity of religious belief as the touchstone of whether a particular practice will benefit from constitutional protection. Second, the courts are highly concerned with the prevention of coercion and subjecting members of minority groups to the “tyranny of the majority.” Third, in justifying their decisions, courts rely heavily on the discourse of tolerance. Using each of these themes as a springboard for critical analysis, the author argues that the legal doctrine of religious freedom is inconsistent with Canada's multicultural ideals. The individualism of the case law fails to take into account the collective and public dimensions of religious experience, and thus fails to recognize important aspects of the identities of minority groups. The strong incentive to adopt particular language in order to be successful may coerce litigants into adopting arguments that are inconsistent with their religious views. The language of tolerance may subtly reinforce social hierarchies by implying that minorities are tolerated rather than full members of Canadian society and impede cross-cultural dialogue by essentializing and marginalizing members of minority groups. The author concludes that these “side-effects” of well-intentioned judicial doctrines are worth taking seriously in order for Canada to make good on its multicultural promises.