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By Steve Weatherbe
CANADA’S COURTS have consistently discounted religious freedom as one of four essential
liberties in Canada’s Charter of Rights and Freedoms, and treated it the same as gender, colour,
age, race and ability – as a ground, in other words, for protection from discrimination.
So said University of Victoria (UVic) law professor Mary Anne Waldron last
month, speaking to an audience of academics at UVic’s Centre for Studies in Religion and Society.
Waldron, who is Catholic, maintained that treating religious belief as just
another “equality right” means judges often view faith as simply one right to be balanced against
others. She contended this has increased, rather than reduced, the resentments
of both minorities and majorities in Canada.
Why, Waldron asked, does the Charter lead off with religion, expression,
association and assembly, calling them all “fundamental freedoms,” unless the framers intended religion as something far more important than
equality rights?
While the courts have come to see religious freedom’s value only “as a form of individual expression,” Waldron said, they would be doing more to resolve social tensions over religion
if they treated it as fundamental component of democracy.
Her basic premise was challenged after her speech, by two past directors of the
centre, Conrad Brunk and Murdith McLean. Both asked for evidence that religion
was anything more than an important individual preference.
Waldron said religious freedom was sometimes interpreted by courts to provide
protection not just from discrimination, but from “beliefs we disagree with.” This, she said, was “antithetical” to what freedom of religion should mean. It should open up discussion of
differing beliefs, not squelch it.
As for conflicts between religious groups and other groups protected from
discrimination by the Equality Rights section, she said courts tended to take
one side in one ruling and the other in the next – being ill-equipped to make compromises, or to find universal principles that
would satisfy both parties.
“Both sides in moral disputes use the same words, such as ‘tolerance’ and ‘discrimination’ – but in different ways. They are mutually incomprehensible,” said Waldron.
Resolving cases in such a way simply angers one side or the other, moves society
no closer to a consensus, and has resulted in contradictory rulings that
provided little basis for predicting how the courts might rule in the future.
Waldron also said in cases of “moral conflict” – where a religious viewpoint is pitted against a non-religious one – the courts ought to rule from a more “even-handed” perspective than they have been doing. For example, in a challenge to an
Ontario law calling for prayer in public schools – but prayer from different faiths, and with an opting out provision – the courts found that the law was coercive.
“I don’t think it was coercive,” said Waldron. “The court should have upheld the law.” This would pass have passed the buck back to Ontario legislators, to deal with
secularists.
“And even if everyone isn’t satisfied,” said Waldron, “at least it was done democratically.” What’s more, accommodations of minorities done through laws can be changed by new
laws, she pointed out. The loser always has a chance to rally public opinion to
his view. She added: “It is much harder to change a Supreme Court decision.”
Waldron recommended the courts judge religious freedom by the standard of what
best advances the democratic process.
Thus the decision to allow a Sikh boy to wear his religious dagger in public
schools was the right ruling – but for too narrow a reason.
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The boy’s individual right to practice his religion was certainly important, but the
decision ought also to have considered the impact on Canada’s pluralistic, democratic system of essentially putting all Sikh male students
in violation of either their religion or public school regulations.
Public schools, Waldron believes, ought to be religiously neutral and neither
impose nor restrict religious belief, because students are young,
impressionable and compelled by law to attend.
McLean noted the Charter did not specifically state the four fundamental
freedoms were crucial to democracy.
Brunk asked: “Can you cite any case law?” He said there was considerable public opinion that religious belief ought to be
kept out of the democratic process – “because it poisons it,” and because religious people are seen as “forcing their views on others.” He added: “Most judges hold that view.”
Waldron agreed that courts had downplayed religious freedom in their rulings.
Indeed, that was the point of the lecture: that the courts had done so, and
this had negative consequences. But she noted that whether or not judges are
convinced religion is a harmful thing, in reality “most people make conclusions based on their fundamental beliefs,” including conclusions about politics. Therefore, the idea that it is possible
to ban religious beliefs from politics is unrealistic.
Waldron later told BCCN that a big part of the problem was that law schools have long abandoned the
concept of natural law; this teaches that statutory law reflects codes of human
behaviour that are written into human nature by God.
The whole idea that human rights are inalienable collapses, if God is removed
from the equation. “Attempts to argue natural law without God have proved unconvincing; so people
looked for other concepts of law.”
What prevails today, she said, is the idea that laws are what governments and
courts say they are – and, at best, reflect current social attitudes.
The problem with this, Waldron warned, is that human rights also become whatever
governments say they are.
“So, what the government gives, it can take away.”
See An excerpt from professor Waldron’s talk here.
October 2009
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