- Law and Religious Pluralism in Canada
In recent years, the Supreme Court of Canada has repeatedly upheld the constitutionality of rights claims resting on religious freedoms and obligations as understood by the claimants. Citizens' religious freedom—most pointedly for those with a faith commitment other than Christianity—has become an integral aspect of the relationship between the individual and the state. Yet while religious minorities have a right to practice their faith in opposition to the larger nomos10 of Canadian society, these practices, according to the courts, cannot infringe on the rights of others.
In Law and Religious Pluralism in Canada, this legal balancing act is addressed in a series of essays focusing specifically on the interaction between Charter law and religion within Canada. The anthology complements another series of essays published in the same year, Religion and Diversity in Canada, edited by Lori G. Beaman and Peter Beyer. While the latter addresses the contested meaning of diversity in relation to religion both in Canada and abroad, Law and Religious Pluralism in Canada puts the spotlight squarely on the relationship between religious individuals in Canada and their [End Page 249] constitutionally guaranteed rights as interpreted by the courts. Pursuant to a substantial line of case law, beginning with R. v. Big M Drug Mart (1985), interpreting freedom of religion guarantees, the hallmark focus has evolved more and more acutely on the rights of the individual. Canadian courts have been forced to expand the boundaries beyond which citizens are no longer allowed to practise their faith in their desired manner because of the "unreasonable" interferences or nuisances that befall their fellow Canadians as a result.
While most essays in the collection address case law and its underpinnings, the chapter by Jennifer Nedelsky and Roger Hutchinson examines same-sex marriage in the context of the United Church of Canada's (UCC) experience. Their essay is structured as a blended analysis that moves back and forth between the authors, conveying an overlapping agenda as well as differences of opinion. This unique stylistic approach, while not entirely effective in terms of thought flow, allows them to signal their agreement with the UCC's approach to same-sex marriage and their disagreement over whether the Canadian government should expand the definition of marriage or, alternatively, restrict itself to regulating civil partnerships only. Their general conclusion on the UCC's experience is that congregations' power to control their ministers' ability to conduct same-sex marriages is too high a price to pay, in light of the minimal advance it represents in dialogue. The authors suggest that when fundamental changes of long-standing practice are engaged, methods that avoid coercion, do not rely on rights language, and validate traditions while transforming them will be the most likely to succeed.11
John Borrows' chapter is on the possibility of Anishinabek and other indigenous legal traditions existing alongside civil and common law traditions in the organization and structure of our Canadian societal relationships. The underlying theme of this alternative nomos or legal universe is that the Earth has a soul and a personal identity that animate her moods and behaviours. Borrows suggests that the Earth can be understood, then, as having a legal personality whose interdependence and reciprocal relationship with human beings needs to be acknowledged as our society begins to reinvent the regulatory purview of religious groups and their concomitant belief systems pursuant to Charter guarantees. Alvin Esau's chapter on illiberal religious groups in Canada suggests a religious pluralism that allows for a diversity of "legal" systems existing in one space. One of his main points is that courts should move toward a common law doctrine of the separation between church and state, apart from Charter considerations. To this end, he recommends an abstention model whereby the outside law (state law) creates a rule forbidding itself to enforce either outside law or inside law (religious institutional law) in some matters which are best left to the religious group to decide using their own adjudicative mechanisms. [End Page 250]
This series of essays, with its broad swath...