By Bob Kuhn

WHAT IF you were free to believe as you chose, but were never allowed to act on that belief nor meet with others who shared your view?

Would you have religious freedom?  

In the 2001 decision in the case of Trinity Western University vs. the B.C. College of Teachers, the Supreme Court of Canada said:

“Neither freedom of religion nor the guarantee against discrimination . . . is absolute.  The proper place to draw the line is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them.”

Drawing a line

As the courts and the government seek to draw a line defining religious freedoms in an increasingly secular world, religious groups are wondering about the true freedom to practice their religion in this country.    

Section 2(a) of the Charter of Rights and Freedoms in Canada only says individuals are granted “freedom of conscience and religion”; a right to a belief system.  

In reality, section 2(a) would be virtually meaningless without the ability to act on one’s faith.  The Charter can only mean that individuals have the ability to express their faith openly, acting and engaging with others in way consistent with their beliefs.  

It has been recognized that there are limits on this expression; and the courts are the referees when secular and religious values compete. Lately, the spectrum of combat has engaged several areas of life – from school to work to family life.

Prolife

In January, two Human Rights Commission complaints received rulings concerning university clubs.  Both cases involved situations where prolife university students were denied club status, and the opportunity to present their views on their campus.  

While the Human Rights Tribunal ruled that the case involving the Capilano College club can be heard, the club at UBC in Kelowna was not as fortunate.  

The tribunal ruled the Kelowna students couldn’t claim discrimination in their situation, because the prolife position is not specifically a religious position.  It would seem the club might have been more successful if it restricted its membership to only members of a certain faith, and no one else.  

This begs the question: is the tribunal saying your religious beliefs can only be protected as long as no one else disagrees with you?  

Continue article >>

Yet the field of abortion debate is not the only place we are seeing attempts to re-categorize what some may consider religious issues into secular ones.

Employees

In a case from Scotland, the House of Lords recently ruled that clergy are employees rather than office-holders of the church.

This is significant, because it means public law should apply to them – and public law forbids employees to be discriminated against on the basis of such things as gender and sexual orientation.  The outcome may be significant to Canadian courts attempting to deal with claims of religious freedom.  

What about religions which only hire pastors or priests who are male?  What about churches which only hire those who ascribe to their belief systems regarding homosexuality? Could these policies be deemed discriminatory?  The ability of a faith to govern who is allowed to lead their church seems fundamental to their freedom to practice religion.  

Family

Like the campus clubs and churches, the court has looked at battling values within the family context as well.  

The Supreme Court recently ruled on the relationship between secular and religious divorce.  This case concerned the granting of the Jewish religious divorce, known as get.  

In the Jewish faith, it is up to the husband alone to decide whether a Jewish divorce may be granted.  If he elects not to provide it, the couple can obtain a civil divorce – but the wife may never remarry in the Jewish faith.  

In this case, the wife wanted the court to enforce her husband’s prior agreement to grant her a get.  The court recognized that this decision was a moral one, not a legal decision.  The husband claimed that forcing him to agree was a violation of his Charter rights to freedom of religion.  

The court decided the husband could not use the Charter to escape his contractual obligations.  The distinguishing element here was that the husband had previously signed an agreement in which he had agreed to the get.  In agreeing under contract, the husband had elected to make a moral duty a legal one.  

While this distinction is certainly valid, we have yet another example of the court secularizing a decision which was otherwise understood to be religious.

As the line between sacred and secular blurs further, beliefs may soon be rendered either illegal to express – or so private as to be invisible to the world around us.

Bob Kuhn is an Abbotsford lawyer. 

April 2008