Religious freedom in the wake of R. v. Big M. Drug Mart
Every political regime, whether ancient Sparta or 21st century Canada, contains within it a vision of what it means to be a human being. Whereas the Spartans held up the ideal of the manly warrior, it is unclear what a Canadian is supposed to be. Some say we are tolerant, but others say being tolerant of everything is empty of content and therefore meaningless. When we are tolerant of some and not others, too often our tolerance stops with religious practices. We proclaim intolerance only against the allegedly intolerant, who, it turns out, are the religious and “backward,” which means our tolerance extends only as far as those who are secular. Our tolerance ends up enforcing a narrow secularism. Fortunately, our laws are not quite this extreme, but mostly because our guardians who articulate our laws are uncertain how to define them.
The nature of Canada’s regime comes into sharp focus when considering freedom of religion because how a regime defines its own this-worldly ideals in comparison to people’s transcendent religious ideals shows how that regime marks out the outer limits of its self-understanding.
R. v. Big M. Drug Mart
It is worth pondering this question because this past April marked the 25th anniversary of the first major decision the Supreme Court of Canada made on religious freedom under the Charter of Rights and Freedoms: R. v. Big M. Drug Mart.
This decision placed its mark on subsequent Charter jurisprudence in two central ways: 1) its individualistic conception of religious freedom has made it challenging for religious communities to defend their shared way of life, and 2) by requiring laws to serve a secular purpose, it inaugurated a debate over whether secular is to signify a pluralistic public order that includes religious perspectives or an irreligious public order. The debate is ongoing, as recent controversies over Muslim women wearing the niqab, and the Christian Horizons decision by the Ontario Human Rights Tribunal that prohibited it from executing its mission, which includes a sexual code of conduct for its employees.
If religious freedoms are defined primarily as individual, then how effectively can religious groups define their mission and their distinct way of life, especially when they draw upon laws and traditions much older than the Charter? If the law is to have a secular purpose, to what degree must religious groups abide by that secular purpose? The stakes are great and the issues far-ranging.
On Sunday, May 30, 1982, Big M Drug Mart in Calgary was charged with violating the Lord’s Day Act by opening for business. Big M was actually acquitted at trial and the Alberta Court of Appeal dismissed the appeal. Even so, the case was brought before the Supreme Court as a way of testing section two of the Charter of Rights and Freedom, which includes “freedom of conscience and religion” among the fundamental freedoms Canadians enjoy. The Court was also asked to consider whether the Lord’s Day Act placed “reasonable limits” on those rights, as set out by section one of the Charter. Thus, the case was important not only for religious freedom in Canada, but also in developing the “Oakes test” by which Canadians deliberate how to limit “fundamental freedoms.”
The Court ruled the Lord’s Day Act unconstitutional because laws must have a secular purpose. They left open the possibility for Sunday closing laws based on secular purposes (e.g., “rest days”), but a law based on religious reasons and favoring one denomination over others was deemed unconstitutional. However, despite a subsequent ruling in R. v. Edwards permitting Sunday closing laws on a secular basis, the ruling had a profound effect on how communities govern themselves.
As a result of the ruling, Sunday has become one of the week’s busiest shopping days in most urban centers. This initially caused problems for smaller communities that wished to maintain Sunday closing laws. If a large shopping mall remained open on Sunday (and thereby forced store owners to work, despite their religious convictions), it made it more difficult for small stores nearby, and in nearby towns, to remain closed. In other words, people in smaller centers would drive to the mall on Sunday, which took business away from stores in those small centers that remained closed. Thus, it became in everyone’s economic interest to open up on Sunday. Economic self-interest trounced religious liberty in the wake of a decision upholding religious liberty. More recently, there have been calls at Toronto City Council to permit stores to open there on Christmas Day.
Community was not on the Supreme Court’s mind in Big M. Chief Justice Brian Dickson treated religious liberty in individualistic terms. In his mind, and according to the case, religious liberty is primarily about an individual contesting state law whose basis is religion. He did not consider how religious liberty would look when it was a case of a religious community standing before a state’s secular law.
Established by Big M.
The Big M. decision placed before the Court two main alternatives concerning religious liberty that it has been struggling with ever since. The first is a radicalization of Dickson’s individualistic account of liberty, which Justice Bertha Wilson articulated in R. v. Jones (1986). She argued that the framers of the Charter “had in mind the freedom of the individual to develop and realize his potential to the full, to plan his own life to suit his own character, to make his own choices for good or ill, to be non-conformist, idiosyncratic and even eccentric – to be, in today’s parlance, ‘his own person’ and accountable as such. John Stuart Mill described it as ‘pursuing our own good in our own way.’” Liberty is autonomy, and society is obliged to respect every one of its manifestations. In holding up nonconformity, Wilson’s position, of course, is hostile to attempts by communities to define human goods in a communal fashion because, by nature, such goods require a degree of conformity.
The second way would have been to recognize the positive role that religious associations have on the life of citizens, as they, in the words of Alexis de Tocqueville, “enlarge the heart” and expand the moral horizons of citizens. The Court has yet to embrace this more authentic way of understanding religious organizations and the role they play in the lives of citizens (and, secondarily, the role they play in cultivating social capital in our society). Events and cases subsequent to Big M have willy-nilly nudged the Court in this direction, but the Court still has not gotten around to understanding the role they play in society.
The ideology of secular individualism and egalitarianism poses the main challenge for religious communities now to defend their freedoms. This was seen in a 2005 decision when the British Columbia Council of Teachers refused to accredit Trinity Western University’s faculty of education graduates on account of TWU’s requirement that students abide by a rule of conduct that prohibits, among other things, extramarital sex and homosexual sex. The B.C.C.T. regarded this as discriminatory, and a recipe for producing intolerant graduates from TWU’s teacher’s school. The Supreme Court sided with TWU but its reasons were dubious. The Court upheld TWU’s religious freedom and when it came to running that freedom through the Oakes filter, it stated it could find no examples of TWU graduates being intolerant. It did not bother defining what an example of intolerance might be. Would it have deemed a student counseling chastity a form of intolerance? This is obviously a more difficult case than a hypothetical case of a graduate of TWU bashing in the skull of a gay man in Stanley Park. However, it is unclear where the Court would have come down on this.
Even so, the Supreme Court has behaved honorably in other cases involving the freedoms of religious communities. In Multani v. Commission scolaire Marguerite-Bourgeoys (2006), the Court ruled the freedom of a Sikh boy to carry his kirpan outweighed reasons (e.g., alleged safety concerns) to prohibit him from doing so. In Syndicat Northcrest v. Amselem (2004), the Court ruled in favor of Hasidic Jews who had disobeyed their condo ordinance preventing the placement of religious artifacts on balconies. More recently, a narrow majority in Alberta v. Hutterian Brethren of Wilson Colony (2009) ruled in favor of the Alberta government’s requirement for Hutterites to have their photograph taken in order to obtain drivers’ licenses. The majority ruled that this requirement is a reasonable restriction on religious freedom, though, with three justices dissenting, the implications for religious freedoms remain unclear and unsettled.
It tends to describe the good of freedom for religious groups in utilitarian terms whereby they serve public order, rather than as a good for its own sake. Consider Justice L’Heureux-Dube’s defense of it in R. v. Gruenke (1991):
In a very real sense, then, the value of religious confidentiality is the value to society of religion and religious organisations generally. Even from a purely utilitarian perspective, that value cannot be overstated. Religious organisations based on claims to unchanging truths are a stabilizing influence in an increasingly fast-paced and atomised society where bonds of community are scarce and worth preserving. Moreover, many provide needed social services that government is unwilling or unable to provide in a cost-efficient and humane manner.
While religious groups will take a victory when they can get one, Iain Benson of the Center for Cultural Renewal, points out the insufficiency of this line of argument: “This position – a standard liberal individualistic approach to communities – is both epistemologically incorrect and politically unsound: it gets the ontological priority of meaning back to front.” By justifying freedom of religious groups in individualistic terms, the Court reveals the extent to which they continue to work within the parameters set by Dickson’s individualistic treatment of freedom of religion in the Big M. case.
Religion and the ‘Secular’
In all three of these cases, one must consider what principle the religious freedom is in question. In Multani, public safety concerns were satisfied while in Hutterian Brethren they were not because of the sheer difficulty of enforcing driving laws without pictures on licenses. In Amselem, the property rights of the condo board were deemed less important than the religious beliefs of the group of condo owners.
Even so, religious freedoms are more difficult to hold up when they conflict with gay rights. This was seen in Chamberlain v. Surrey School District No. 36 (2002) where the Court ruled that arguments made opposing gay-friendly books in an elementary school library were exclusionary and intolerant. To its credit, the Court rejected the argument that religiously-based arguments are illegitimate. A secular society, it ruled, is not devoid of religion. Secular properly understood means pluralistic, which includes the right to use religious arguments in the public square. It just so happened that the arguments made in this case infringed on the rights of gays.
Was Chamberlain a matter of pretending to uphold the rights of religious believers while acting to circumscribe their rights? It is difficult to say.
A key case going through the Ontario court system is Heintz v. Christian Horizons (2008), which is on appeal at the Ontario Superior Court of Justice from the Ontario Human Rights Tribunal. Connie Heintz told her employer, Christian Horizons, a Christian charity organization, that she is a lesbian, which conflicts with their code of conduct. The Human Rights Tribunal ruled in favor of Heintz that Christian Horizons had discriminated against her when it decided to fire her. At stake here is the degree to which a religious organization can define and enforce its mission. Organizations have historically enjoyed a bona fides exemption to human rights legislation.
However, these exemptions must be justified and in the current political climate it is perhaps difficult for an organization such as this to justify restrictions on sexual mores to a secular court. What difference does it make for someone engaged in acts of charity whether or not they engage in homosexual relations? Such activity might be deemed irrelevant. One wonders whether Christian Horizons has a developed teaching on chastity, not to mention whether such a teaching could ever get a fair hearing in today’s society. Even so, this case illustrates how the debate over gay rights has moved quickly from one of securing the rights of a minority to the potential imposition of a new sexual dogma that eliminates at all costs the moral distinction among sexual practices. Because consent is the baseline ethic for acceptable practices, claims of discrimination resonate strongly for those who share Justice Bertha Wilson’s description of autonomous freedom as “non-conformist, idiosyncratic and even eccentric.”
The paradoxical outcome of this understanding of freedom is a less pluralistic public square. Also at risk is the capacity of a public to communicate sexual morality in terms other than economic calculation of pleasure and pain.
Thus, the Christian Horizons case currently before the Ontario Superior Court has broad implications for religious liberty of religious groups. The case has implications not only for how religious charities operate, but other religious (Christian and non-Christian) organizations, including labor unions, operate.
A quarter-century after Big M., it is difficult to conclude that religious freedoms are any more secure now than they were in 1985. Whereas Big M. made governmental decisions based on religious dogma unconstitutional, it is a question whether today’s Court will be called upon to replace the previous religious dogma with another kind of dogma, perhaps sexual or some other kind. Whereas pre-Charter cases involving religious freedom frequently consisted of mainstream Christians discriminating against Jehovah’s Witnesses, the current situation seems to consist of proponents of J. S. Mill’s radical freedom (such as Justice Bertha Wilson) against Christians upholding some version of traditional sexual morality. There is some sad irony in seeing followers of Mill imposing dogma on society. But then again, Mill also called for a secularist “religion of humanity” to bind society together because he did not think his version of liberty could quite do the job.
The future is not quite as bleak as defenders of religious freedom might think. The “secularist” construction advocated by the proponents of Mill is, as indicated, pretty thin and contradictory. We see all around us the crisis of the secular mindset, which is one of the reasons for the resurgence of religion in Canada and elsewhere. The challenge is not defending the existence or practice of religion, but in articulating public reasons for its legitimacy. It is up to organizations like Christian Horizons to tell their story and to explain how their code of conduct sustains their mission, and why their mission not only benefits society, but also why, as an expression of charity, they offer something good for all human beings. This is the true “religion of humanity,” not that of Mill nor that of Bertha Wilson and her epigones.
John von Heyking is a professor of political science at the University of Lethbridge.