Free Exercise by Moonlight

I have a new article in draft called Free Exercise by Moonlight. It is about the current condition of permissive religious accommodation. It is pervasively lugubrious. Here is the abstract:

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

  1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.
  2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.
  3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.
  4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.

In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate.

Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its admonition about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself” has ironically become more apt as a warning against the multiplying number of secular interests argued to be legally cognizable than against religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories maintaining that new dignitary and other third party harms resulting from religious accommodation ought to defeat religious freedom claims. These theories reflect the swollen ambit of state authority and defend surprising understandings of the limits of religious accommodation—understandings that pose grave threats to the American political tradition of providing generous religious exemptions from general laws. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight.

Canada’s Hobby Lobby Moment?

Supreme Court justicesIn a landmark decision on March 19, the Supreme Court of Canada decided Loyola High School v. Quebec.  At issue in the case was whether Loyola High School, a private Catholic school, should be required to teach Quebec’s “Ethics and Religious Culture” curriculum in a “neutral” manner.  Loyola sought an exemption from the neutrality requirement when teaching the Catholic faith and the ethics portion of the course.  Although the Supreme Court divided 4-3 with respect to the rationale, it unanimously held that Loyola should be granted an exemption.

As Barry Bussey explains below, this case is significant because the Court came very near to granting corporations religious freedom rights (read Bussey’s full article here).  The extent to which corporations enjoy religious freedom protections was, of course, a controversial issue decided last year by the American Supreme Court in Hobby Lobby v. Burwell.  In that case, the American Court held that RFRA grants religious exercise rights to certain for-profit corporations.  It seems that the Canadian Supreme Court may be following the American lead, albeit incrementally. Here is Bussey (footnotes omitted):

While all seven members of the Court were of the view that Loyola’s freedom of religion was infringed, the Court split in its reasoning 4-3 over the issues of religious corporate rights and the remedy in the case. Both opinions held that religious freedom is not only an individual right but also includes communal dimensions. This is significant. Justice Abella recognized that “individuals may sometimes require a legal entity in order to give effect to the constitutionally protected communal aspects of their religious beliefs and practice, such as the transmission of their faith.” But she did not think it was necessary to decide whether corporations enjoy religious freedom in their own right under s. 2(a) of the Charter to decide the case. Religious freedom, she maintained, must “account for the socially embedded nature of religious belief, and the deep linkages between this belief and its manifestation through communal institutions and traditions.”

Justices McLachlin and Moldaver were unequivocal in their acceptance of the Charter’s protection of the “communal character of religion”:

The individual and collective aspects of freedom of religion are indissolubly intertwined. The freedom of religion of individuals cannot flourish without freedom of religion for the organizations through which those individuals express their religious practices and through which they transmit their faith.

MacLachlin and Moldaver held that a corporation was entitled to religious freedom protection as long as it was constituted primarily for religious purposes and operated in accordance with those religious purposes.

Since a corporate organization does not demonstrate a sincere belief as an individual, it must show that its belief or practice is consistent with its purpose and its operation. Such beliefs and practises are more static and less fluid than those of an individual, which makes the inquiry into past practises and consistency of positions more relevant than it would be if the claimant were an individual. In this case, the beliefs and practises of Loyola were consistent and ought to be protected. The Minister’s refusal to accommodate those beliefs was in violation of the Charter right.

McLachlin and Moldaver’s decision forms a great foundation for a future case to clearly outline the boundaries of the religious freedom for religious corporate bodies. It is an incremental development in the right direction.

Miah, “Muslims, Schooling and the Question of Self-Segregation”

Next month, Palgrave Macmillan will release “Muslims, Schooling and the Question of Self-Segregation” by Shamim Miah (University of Huddersfield, UK). The publisher’s description follows:

‘Integration’ or the supposed lack of it by British Muslims has been a 9781137347756ubiquitous feature in political, media and policy discourses over the past decades, often with little or no evidence base. This book is particularly timely as it draws on empirical research amongst both Muslim school students and parents to examine the question of ‘self-segregation’ in the light of key policy developments around ‘race’, faith and citizenship. It aims to contribute towards a national debate on segregation, schooling and Muslims in Britain through deconstructing the received wisdom of ‘Muslim separateness’.

“Cultural, Religious and Political Contestations” (Mansouri, ed.)

In May, Springer will release “Cultural, Religious and Political Contestations” edited by Fethi Mansouri (Deakin University). The publisher’s description follows:

This book examines the foundations of multiculturalism in the context of émigré societies and from a multi-dimensional perspective. The work considers the politics of multiculturalism and focuses on how the discourse of cultural rights and intercultural relations in western societies can and should be accounted for at a philosophical, as well as performative level. Theoretical perspectives on current debates about cultural diversity, religious minorities and minority rights emerge in this volume.

The book draws our attention to the polarised nature of contemporary multicultural debates through a well-synthesised series of empirical case studies that are grounded in solid epistemological foundations and contributed by leading experts from around the world. Readers will discover a fresh re-examination of prominent multicultural settings such as Canada and Australia but also an emphasis on less examined case studies among multicultural societies, as with New Zealand and Italy.

Authors engage critically and innovatively with the various ethical challenges and policy dilemmas surrounding the management of cultural and religious diversity in our contemporary societies. Comparative perspectives and a focus on core questions related to multiculturalism, not only at the level of practice but also from historical and philosophical perspectives, tie these chapters from different disciplines together. This work will appeal to a multi-disciplinary audience, including scholars of political philosophy, sociology, religious studies and those with an interest in migration, culture and religion in contemporary societies.