In its annual survey, “Minority Religious Communities At Risk,” the First Freedom Center of Virginia observed intensified contention over the right to freedom of religious expression in both Canada and the United States. As evidence, the editors highlighted a major Canadian Supreme Court decision as well as public criticism of the conservative government’s creation of an Office of Religious Freedom; for the United States, the editors cited the litigation over the 2011 Patient Protection and Affordable Healthcare Act. The contention in both countries seemed to pit conservative religious-freedom advocates against a progressive secular establishment. However, as I argue here with the Canadian case, the situation is more complicated.
The contention centers on what it means to protect religious expression when doing so may challenge or even violate values that the government or majority upholds. For human rights advocates, this question is of pressing concern for members of resilient pluralistic democracies, which should be able to sustain the risks as well as the rewards of freedom. When we cannot endure diverse expressions of religious freedom, then we reduce the potential of freedom to mean more than the personal preferences of acceptably normal citizens or consumers.
In February 2012, the Supreme Court of Canada handed down a concise decision in S.L v. Commission scolaire des Chênes (2012 SCC 7). Catholic parents had requested an exemption for their children from a mandatory Ethics and Religious Culture program in the public school curriculum in Quebec. They argued that their sincerely held religious beliefs required them to provide moral and religious education in the context of family and church. They anticipated that the public school curriculum was aimed at introducing a variety of mores and religions. They argued that this would be confusing to young children and that it would introduce a philosophy of relativism, which is contrary to the parents’ religious beliefs. Therefore, the parents requested that their children be exempt from the program. The Board of Education refused to give an exemption. On appeal from the Court of Appeal of Quebec, the Supreme Court of Canada upheld the Board’s refusal on the following grounds:
“The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Quebec government’s obligation with regard to public education.”
Further, because the content of the mandatory program had not yet been developed, the Court held that there was no evidence to show that the program did in fact infringe on the parents’ or children’s right to freedom of religious expression:
“…It is not enough for a person to say that his or her rights have been infringed. The person must prove the infringement on a balance of probabilities.”
One of the first things one notices is how slim are the facts in the case. The parties were grappling over a curriculum that had not yet been designed; yet the court construed the parents’ request for exemption as tantamount to rejection of multiculturalism, escalating the stakes on all sides.
In a commentary on the case, law professor Diana Ginn observes that the majority’s approach in S. L. narrows the right to freedom of religion safeguarded in the Canadian Charter of Rights. Ginn recommends that it would have been better to test if the parents had a religious freedom claim at stake, and then inquire if the government’s action would infringe that right. If so, then the onus would shift to the government to prove that infringement was reasonably justified to sustain a free and democratic multicultural society. The parents, Ginn notes, were not demanding that the government present Catholicism as the one true faith; they were asking for an exemption to excuse their children from being taught that it is not. Ginn shows that by assessing the rights claim in opposition to the protection of multiculturalism, the court construed the parents’ request for exemption as a “rejection of the multicultural reality of Canadian society”. There was, however, no evidence that the parents rejected that reality, or that the exemption would foster such rejection by their children.
Professor Lori G. Beaman has previously examined the means by which Canadian courts limit religious freedom through interlocking discursive appeals to responsibility and common sense. Underlying that appeal, she intuits, is a fear of the other whose freedom might exceed or even oppose the figure of the moderate and, in Beaman’s words, legally approved “responsibilized self.” In the context of litigation, experts and governments are called upon to delimit the proper scope of religion and multiculturalism. In this way, protected rights are interpreted to fit the responsibilized self for the context of acceptable multiculturalism.
We might counter this trend with a vision of multiculturalism that does not aim at containment or accommodation of religious others. Rather, a more robust vision draws on a long history of difficult and deliberate practices of pluralism to sustain the ethos of public life. Such pluralism is not relativism, as the Catholic parents may fear; rather, it is a practice of reciprocal yet agonistic respect for various traditions of formation and family that foster individuals who become equal citizens. In such a vision, multicultural communities are not represented as commensurable options amenable to a common denominator of personal preference. They are, rather, interwoven and contesting social processes in which the texture of human freedom becomes capable, diverse, and resilient. Such a vision would oppose the anxiety that drives governments, courts, and school boards to protect Canada’s multicultural heritage by curtailing the religious freedom that has historically generated the value of that multicultural heritage for many Canadian citizens.
The Catholic parents’ request for an exemption resonates with a history of “separate” educational approaches by Catholics and Protestants in Quebec and the rest of Canada. Ann Pellegrini has observed that in the United States the ability of Protestant cultures to position their norms and affects as the norms and affects of the public per se is one of the tacit themes of secularization in America. This is true in Canada, too, although these themes arise from different genealogies. Notably, what was at stake in the rejection of the Catholic parents’ request for their children’s exemption from a mandatory course in Ethics and Religious Culture was mutual skepticism about the religious education of children, a chronically contested issue. In this regard, the religious-freedom argument is both conceptually prior to, and historically confluent with, the agonistic dynamics of Canada’s multicultural heritage. There is no evidence that Catholic education prevents Catholics from participating in Canada’s multicultural society; indeed, Catholic families, schools and hospitals have been crucial sectors for the formation of citizens who fostered Canada’s multicultural heritage with commitments to social justice and the public good.
The Supreme Court’s tough approach to the families, on the basis of the slim facts in the case, is worrisome. As Beaman observes, the Canadian courts have developed an accommodation approach to religious freedom. She argues in her book: “The language of accommodation rests on an assumption of a normal or mainstream and a benevolent dispensing of special consideration for those on the margins. It builds in inequality and maintains it.” Further, as the First Freedom Center editors observes, infringement on and violations of religious conscience are ways in which majority governments signal to minority citizens that the dominant vision will be enforced. This approach legitimates anxiety in response to diverse formations of freedom, precisely at those seams where any formations seem most fugitive from the government’s or the majority’s vision. To reduce protection of rights to accommodation and neutrality—where everyone is equally the same—reduces the value of multiculturalism because it reduces the diversities and capacities of freedom.
Religious traditions, not only Catholic traditions, encompass rich conceptions of freedom. For example, in the Augustinian Catholic tradition, freedom might be best imagined as a will that is determined by God’s beauty and love. The doctrine of original sin gives an account of the deficiencies and laxities of desire—desire that is distracted by a multitude of options, perfectly exemplified in the wanton attention of virtual or consumer choice. Freedom, theologically understood, requires education of the will through habits of patience, attention, and enjoyment of the good. It aims at the reduction of our inclination to trivialize the will as a spontaneous selector. This runs athwart the dominant secular ideal of freedom as unrestrained personal choice. Yet to engage and protect alternative practices of freedom is crucial in a multicultural society in which members aspire to embody different and dynamic capabilities for the common good.
A robust multicultural society must venture robust conceptions of freedom. Complex capabilities, such as moral imagination, discretion, and perseverance through uncertain challenges, or fidelity in the face of many options, are not built from “believing whatever you want”. Believing or doing whatever you want is frequently banal; it is the freedom of the wanton, the consumer, or the gamer, all of whom can just fail and start again. Meaningful freedom of religious expression is made out of sustained patterns of devotion, attention, creativity, and self-restraint. The right to freedom of religion epitomizes the paradox of freedom: the more meaningful an individual’s freedom, the more one reduces one’s options in expressing it. In this respect, Michael Lambek’s positioning of religion as “unfreedom” sidesteps the challenge of creating across generations the robust freedom of faithfulness and hope. Faith is itself a complex capability that requires spheres and times of unrestraint and uncertainty in order to distinguish it from coercion, compulsion, or default. Yet when religious freedom is conceived as the option to believe whatever you prefer rather than the process of practicing faith across generations, the complex capabilities of religious freedom are rendered shallow by the law. For these reasons, the government’s obligation to promote a multicultural society should not be used to curtail diverse practices of religious education. Religious individuals can only be reciprocally engaged with others if they can also be immersed in opportunities to gather, build, and transform their traditions. The common admonition—whether moral or political—to engage in mutual dialogue and adjustment with others implies this.
In S. L., the Court used the Charter protection of Canada’s multicultural heritage as a constitutional bolster against the parents’ claim rather than as a further warrant to protect it. But there are many good historical and ethical reasons to treat the constitutional mandate for multiculturalism as a warrant rather than as a limit on the right to freedom of religious expression. This would mean advancing a judicial approach and civic practice that did not merely accommodate but confidently engaged claims of religious freedom. The Supreme Court of Canada in S.L treated the Catholic parents’ appeal for exemption from the Ethics and Religious Culture program as a reproach to a multicultural society. From another perspective, the parents’ appeal was an expression of and claim upon the depth of that heritage. Diana Ginn’s more generous response asks the court to judge whether a religious freedom claim is at stake and, if so, only then would the government’s interest in advancing a specific curriculum be weighed against the harm of any infringement on that freedom. Her approach aims to reduce the zero-sum analysis—religious freedom or multicultural reality—in a case where such opposition is contradictory. A confident and resilient democracy can support a more robust approach in which the right to freedom of religious expression is construed as fundamental to a multicultural society.