Law's Religion: Religious Difference and the Claims of Constitutionalism by Benjamin L. Berger (review)

Reflections on the interaction of law and religion did not traditionally attract a great deal of interest among Canadian scholars. The advent and interpretation of the Charter of Rights and Freedoms has begun to change that, as an increasing number of cases that raise issues of religious freedom or freedom from religion have come before the courts in this country. Professor Berger's book is an important contribution to this literature and deserves to be read widely by those who are interested in the relationship between law and religion in the modern liberal democratic state.

Berger's object is the relatively modest and certainly manageable one of giving meaning to the clash of cultures that exists in the undoubted tension between the constitutional rule of law and religion, that manifests itself in litigation and its outcomes. He does this first by suggesting that in order to understand fully the forces at work here we have to remove law from the pedestal which both historically and in the contemporary world it claims, that of the detached and unassailable arbiter of cases involving religious beliefs and practices. This he suggests is done by recognizing that law as much as religion is a cultural system, and therefore needs itself to be assessed on the basis of the assumptions and values that fuel it and its record in adjudging other cultures. The author does this by a thorough analysis of the ways in which law and its values frame the place and worth of religion in Canadian society. On the basis of his examination of the Supreme Court of Canada's jurisprudence in cases involving religious beliefs and practices he concludes that the normal markers of the law's approach assume that religion is an expression of individuality, not community allegiance, that its beliefs and practices reflect an individual's autonomy and choice, and that religion lies in the private not the public realm.

Working with this analysis, Professor Berger demonstrates persuasively how despite the claim of the constitutional rule of law to embody toleration in matters of religious faith, when a belief or especially a practice clashes with the values of the law, the limits of toleration are reached and exceeded, and the law's approach is one of "conversion" or even "colonization" of the religious tradition in question. Indeed, he concludes the attitude of the law in matters of religion is one of "indifference" rather than of tolerance. In other words, as long as a religious belief or practice is considered inoffensive or of neutral concern the law is indifferent to it. Indifference changes to alarm when the often deeply held belief or practice challenges the presuppositions of Canadian legal culture and its socio-political underpinnings.

Having shown how the application of rule of law characterizes and limits the meaning of religious faith, the author makes it clear that his purpose is not to revolutionize the process of constitutional judgement and interpretation, although he recognizes that steps in the direction of negotiation of the relations of cultures are worthy of consideration in an increasingly pluralist society. For him the immediate issue in cases in which the demands of the law and those of religious allegiance appear to clash is to determine whether there are values that the judges could follow in balancing more equitably the undoubted demands of the constitutional rule of law and aspects of religious faith that seem to run counter to it. He finds inspiration in the attitudes of several Supreme Court Justices, typically in dissenting opinions, that seek to balance the importance of "fidelity" to the constitution with that of "humility" toward the religious faith whose beliefs and practices ostensibly clash with its prescriptions and values. In this way he suggests there may be a way to expand the area of indifference that the law accords to religious beliefs and practices that are deeply held but troubling to the majority of Canadians.

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