Fairness and the Freedom of Religion: Diversity and Pluralism in the Public Sphere

• Author: Iain T Benson
• Pages: 385-420

385

Chapter 13

Fairness and the Freedom of Religion:

Diversity and Pluralism in

the Public Sphere

Iain T Benson1

A. Pluralism and the Secular

This article will examine two key terms in relation to our culture

today — “pluralism” and the “secular” — and will discuss these

against the background of diversity, freedom, tolerance, and

the re-understanding of the public sphere. It will argue that both

       -

rary usages, often frustrating rather than furthering the very

principles they should represent. It will be argued that in order

to maintain diversity and freedom, there must be a certain

understanding of the role of law and a recognition of the limits

of the law. After examining these, I would like to turn to discuss

the fair treatment of beliefs in Canada today and why, as the

title suggests, we should be searching for ways to maintain civil

1 This is a shortened, reworked, and re-titled version of a monograph

entitled Living Together with Disagreement: Pluralism, the Secular and

the Fair Treatment of Beliefs in Canada Today (Camrose, AB: Chester

Ronning Centre for Religion and Public Life, 2010). The author would like

to thank the director of the centre, David Goa, and Nicholas Wickenden

for their assistance with that original publication. The views expressed





this paper will be used in the author’s PhD thesis at the University of the

Witwatersrand in Johannesburg, South Africa.

Iain T Benson

386

disagreement in many cases rather than seek a forced “agree-

ment” that is often the result of using rights claims as trump

cards where alternative viewpoints are legal to hold. What results

from such forced “agreement” is not a modus vivendi of living

together with disagreements but a sort of convergence that acts

         

multiculturalism. First, however, it is useful to note that religious

beliefs (linked with “conscience” in section 2(a) of the Canadian

Charter of Rights and Freedoms2) have public dimensions. That

is why our notion of the nature of the public sphere and its rela-

tion to beliefs is so critical.

1) The Public Nature of the Rights of “Conscience and

Religion”





and religion” in section 2(a) of the Charter, Dickson CJC (as he

then was) stated:

The essence of the concept of freedom of religion is the right

to entertain such religious beliefs as a person chooses, the

right to declare religious beliefs openly and without fear of hin-

drance or reprisal, and the right to manifest religious belief by

worship and practice or by teaching and dissemination.3

Note that the words employed are active, public words — “declare,”

“manifest,” “practice,” “teaching,” “dissemination.” We would do

well to remember those words and their public dimensions at a

time when many of the challengers wish to avoid a sharing of

the public realm by seeking to privatize those rights that have a

2 Canadian Charter of Rights and Freedoms, Part I of the Constitution

Act, 1982, being Schedule B to the Canada Act 1982 (UK) 1982, c 11

[Charter].

3 R v Big M Drug Mart Ltd, [1985] 1 SCR 295, 18 DLR (4th) 421 [Big M].

Fairness and the Freedom of Religion

387

genuinely public dimension. In recent years, some would choose



for home or church. Or else there is a suggestion, true in one way

but which can be over-extended, that religious belief is one thing

and religious conduct another.

2) Two Approaches to “Pluralism” under the Canadian

Constitution

It is important to consider the nature of pluralism in Canada. Like

so many terms in our public discourse (“values,” “the secular,”

“liberalism,” etc.) its common use can mask the fact that it is little

analyzed. As such, if there are presuppositions in the term, or an

ambiguous usage that is not discovered or discussed, we can be

misled as to what is actually being said when the term is used.

Pluralism can connote a kind of relativistic approach, as in “be-

cause we are a pluralistic society, such and such a moral position

cannot have any public validity.” It does not have to mean this,

however, and in Canada our linkage of a language of pluralism



a principled and what might be called structural or shared plu-

ralism, rather than one that is relativistic or, perhaps, totalistic.

This totalistic notion of pluralism views society as moving towards

the articulation of only one public policy in contested areas, and

such a view is antagonistic to the notion of plurality, freedom,

and the tolerance of diversity. The political condition in Canada

respects the modus vivendi, though, and as I shall argue with

examples drawn from recent legal cases, whether it will continue

to do so remains to be seen, as this foundational aspect is now

very much under attack.

John D Whyte has noted that the Canadian Constitution

has been framed on the basis not of any individualistic concep-

tion of liberalism but, rather, on one that respects and nurtures

each person’s communities. Moreover, the two kinds of rights