Freedom of Religion Examined

Every so often, a topic seems to take on a life of its own. Lately, there's been a lot of debate rolling around this blog, and others I read, about an odious little proposition with a working name of "Defense of Religions Act" (DoRA - sounds like a stage name for a drag artist, doesn't it?) has spawned a renewal of the "Omigod, Christian beliefs are being sidelined/marginalized/constrained debate - with the usual list of "suspect cases" being postulated as examples of unreasonable constraints being placed upon the notion of "freedom of religion".

Section 2 of the Charter reads as follows:

2. Everyone has the following fundamental freedoms:

a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.

Perhaps equally significant and important is section 1 of the Charter which reads:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

This is extremely important, because it states quite clearly that no rights described in the Charter are absolutes. Instead, they are bounded by other rights and freedoms, either as described in the Charter, or in statute law such as the Criminal Code.

I've stated my reasons why I do not accept the argument that cases such as Vriend, Brockie, Kempling and the Knights of Columbus in B.C. as being examples of constraining "freedom of religion" unreasonably.

It boils down to this fundamental point - each of those cases involves discrimination against somebody because another individual's "religious convictions" lead them to conclude that the other party is immoral/licentious or whatever.

Section 15 of the Charter itself runs at odds with the notion of "freedom of religion" in those cases. There are two key observations I wish to raise about this:

a) First, as previously observed, no right is an absolute - they are bounded to varying degrees. So, for example, while I argue that "freedom of religion" is not an adequate argument in the commonly cited cases, it is because those cases all involve projecting religious beliefs upon those who do not necessarily share them. I am not arguing that the faithful cannot have those beliefs, nor am I arguing that they cannot express them. Merely that like all of us, we must be circumspect in when and how we do so. For example, within a Bible Study context, it may well be perfectly reasonable to express strong "anti-gay" beliefs, but that doesn't mean it is appropriate to do so in the workplace.

b) Second, is the complaint that recent amendments to section 318 of the Criminal Code unreasonably constrain "religious freedom". Again, a careful examination of the wording makes it clear that there are contexts where such expressions are quite reasonable (See the "Defenses" subheading):

(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;

Again, this makes it fairly clear that any prosecution of these clauses is bound to refer back to section 2 of the Charter. What is perhaps less clear is whether an argument which - for example - cites the work of Paul Cameron could then claim religious protection because the argument is intended to support a religious viewpoint. (Cameron's work is notoriously suspect in quality and method)

Conservatives in Canada have long complained that programs such as the "Charter Challenge Program" (recently axed by the Government) work against their freedom of religion and expression. While I agree that by far the majority of cases that I've heard about have certainly arose out of someone raising a "religious objection" (mostly to GLBT rights), there are other cases where challenges have arose regarding the application of religious freedom.

In particular, I am thinking of the RCMP Uniforms incorporating Turbans. I don't recall if this was a specific "Charter Challenge" case, however, it certainly is a case where an application of the Charter was key to the final decisions. Here is a clear case where "freedom of religion" was being unreasonably constrained, and the complaints about "tradition" etc. fell by the wayside.

Now, the distinction here is that the Turbans case involved an individual's expression of his religious faith in a manner which really only impacted his appearance as compared with situations like Vriend where religious faith was being projected from an individual or group in a manner intended to regulate someone else's life.

In many respects, what goes on within the context of a faith community doesn't worry me too much. Churches which choose to adopt the 'abomination' line towards the GLBT are free to do so, for I have no obligation whatsoever to accept their tenets of faith. However, I do have reason to get upset when those groups attempt to impose those views outside their faith community.

The Charter actually appears to strike a very delicate, but appropriate balance. By specifying individual rights, the Charter recognizes implicitly the variety of belief systems that a nation like Canada has, and extends protections to all of them. However, it also creates an implicit obligation that the exercise of those freedoms is necessarily bounded by consideration for the rights and freedoms of others. (Hence the presence of the critical equality clauses)