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

AuthorIain T Benson
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
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
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
3 R v Big M Drug Mart Ltd, [1985] 1 SCR 295, 18 DLR (4th) 421 [Big M].
Fairness and the Freedom of Religion
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
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

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