Religion, Public Law, and the Refuge of Formalism.

• Author: Kislowicz, Howard

1. Introduction

   We discover ourselves through encounter with others. (1) We tell various stories about ourselves, about our essential character or identity, but it is only when we are drawn into relationship with another that the adequacy of these accounts is tested. If we are paying attention, we invariably learn that aspects of our self-accounts include features that are idealized, incompletely realized, or positively false, and that other important parts of who we are were less apparent to ourselves. (2) In particular, in the most difficult, complex, and fraught encounters with others it is not necessarily our most valued or noble traits and habits that emerge, it is, rather, the ones that most serve us. (3)

   In this article we indulge a legal anthropomorphism by following the intuition that something like this process occurs within legal systems and the development of public law traditions. We accept the dangers of so doing because of its heuristic upside: we think that it helps us see something both interesting and true about the encounter between state law and religious legal traditions, and about contemporary Canadian public law. There are precedents for this kind of argument in the literature on law and religion and in constitutional theory. There is Harold Berman's work, which demonstrates, in magisterial detail, that state authority learned the shape and character of a modern legal order from engagement and struggle with religious legal traditions. (4) And in the field of constitutional theory, one might think also of Robert Cover. Following Kenneth Burke's claim that "Constitutions are agonistic instruments," in that "they establish a normative world on the basis of their opposition to other worlds," (5) Cover exposed the violence at the heart of constitutional interpretation. (6) Nomos and Narrative (7) was, famously, an application of this insight to the interaction of state public law and religion.

   Our inquiry is less historical and dramatic than either Berman's or Cover's, but it follows a sympathetic path. We look to two recent cases from the Supreme Court of Canada, Wall (8) and Aga, (9) as a springboard or occasion for suggesting that the encounter with religious legal traditions has surfaced a distinct vein of formalism in Canadian public law, discemable across the Court's law and religion jurisprudence. Otherwise put, one effect on Canadian public law of its interaction with the complexity, challenge, and unruliness (10) of religion has been to rediscover the virtues of, and reengage with, formalist tools of public law analysis. This is so despite the centrality of substantive analysis in the account that contemporary Canadian public law gives of itself. This avowed aversion to formalist analysis is apparent across a variety of areas and doctrines of constitutional and public law. The symbolic heartland of this commitment to substantive analysis is, of course, the jurisprudence interpreting the Charter equality guarantee, in which the embrace of "substantive equality [as] the 'animating norm'" (11) and "philosophical premise" (12) of s. 15(1) serves as a near synecdoche for the movement from pre- to post-Charter public law. (13) The (until recent) (14) embrace of purposive interpretation (15) is another expression of this commitment to substantive engagement, as is the (again, until recent) (16) general movement away from categorical analysis in the law governing judicial review of administrative action. (17)

   Further afield, an echo of this substantive posture can be found in the contemporary law of evidence, which has been defined by the so-called "principled revolution." This revolution is a response to the "blind and empty formalism" (18) of categorical rules of admissibility, preferring engagement with the contextual application of the principles and concerns that animate these historical rules. And yet this example drawn from the law of evidence is instructive (as are, perhaps, the counter-trends noted parenthetically above). Even in thrall to this "revolutionary" story, the virtues of formal categories are never far from mind. So, we see in the law of evidence that when met with particularly knotty problems or deep complexity generated by the principled approach, the Courts have returned to the shed to recover their formalist tools. (19)

   We tell a similar story here, one impelled by the distinctive challenges of encounter with religious legal traditions. The Court has variously described the nature and source of these challenges. It has emphasized the role that religion plays in the lives of individuals and communities, noting the connection between religion and human dignity, (20) and its integral link "to one's self-definition and spiritual fulfilment." (21) It has traced the "particular challenge" (22) that religion poses for law and the state to the breadth and variety of religious beliefs, (23) as well as their legal inscrutability (24) and alleged obstinacy. (25) But underlying these practical and conceptual legal challenges-both real and imagined-are fundamental questions of sovereignty and pluralism that have defined the interaction of law, religion, and state over the longue duree. (26) We argue here that these abiding sovereignty and pluralism problems presented by the law-religion encounter has led Canadian public law to rediscover its formalist habits, and the comfort that they bring. (27)

   In what follows, we bring more precision to how we understand "formalism" for the purpose of this article (Part 2), then turn to the Wall and Aga cases, drawing out the formalist moves that, in our view, define these cases (Part 3). We then look to the law and religion jurisprudence more generally, pointing to various echoes of this use of formalism to manage the complexity and risks raised by engagement with religious difference (Part 4). Having made the case that this phenomenon is not idiosyncratic to Wall and Aga but, rather, a pattern endemic in the encounter between liberal legal orders and religious pluralism, we seek to explain both the appeal (Part 5) and challenges (Part 6) presented by this resort to formalist tools.

   We do not offer this as a complete, nor even a wholly consistent, story of what is occurring across the law and religion jurisprudence in Canada. It is one, however, suggested by this comer of the law and worth thinking with. Nor do we offer this by way of critique, though the prevailing normative valence of the labels "substantive" and "formalist" might give that impression to a casual reader. Instead, we are interested in showing this element of Canadian public law's "personality," drawn less to assessing if it is the right approach to these issues than to understanding how it serves state law.

2. What We Talk About When We Talk About Formalism

   The charge of formalism is often denigrating (28) and can sometimes lack precision. We want to avoid both these alternatives here. The label "formalism" sometimes describes the mechanistic application of rules without the consideration of their purposes. (29) Other times self-avowed formalists focus on a rigorous separation of law and politics. (30) Though there are echoes of these themes in our use of the term here, we are more precisely concerned with the generation of legal conclusions through the reliance on categories rather than a deep engagement with particular facts and contexts. Of course, categories are unavoidable in legal analysis: one of the virtues of law is that it provides a mediated, organizing system of ideas through which we can gather greater clarity on complex matters. In this, categories can play an important role. However, it is always possible to call on courts to engage in a detailed consideration of facts and context (a more substantive engagement), or to limit their analysis by recourse to a more categorical approach (a more formal analysis). In this latter mode, the finding that an issue falls into a particular category predisposes or even determines an outcome.

   This is the sort of formalism we will examine in this article. Our posture here is diagnostic, not normative. We seek to uncover and display the way that formalist patterns appear in Wall and Aga, and then trace the way that this reflects a broader tendency in Canadian public law's treatment of religion. As in equality rights, constitutional interpretation, and the law of evidence, whether formalist tools are normatively attractive or offensive ultimately turns on understanding the "work" that they're doing--that is, the reasons they are appealing and the risks that they present. That is the purpose of this piece and the diagnostic path begins with Wall and Aga.

3. Formalism in Wall and Aga

   A signal that the Court is headed down a formalist path appears in the way it tells the story of Wall. The details that courts include or exclude from the narratives they tell shape the paths of necessary and available reasoning and, with this, the ultimate conclusions. The story told by the SCC in Wall is notable for its scant detail and terseness. The Court tells us: "Randy Wall became a member of the Congregation in 1980. He remained a member of the Congregation until he was disfellowshipped by the Judicial Committee." (31) We learn very little about the circumstances of his disfellowship. Instead, the Court draws our focus to the formal characteristics of the congregation:

   The Congregation is a voluntary association. It is not incorporated and has no articles of association or by-laws. It has no statutory foundation. It does not own property. No member of the Congregation receives any salary or pecuniary benefit from membership. Congregational activities and spiritual guidance are provided on a volunteer basis by a group of elders. (32) Compare this with the narrative told by the Alberta Court of Appeal, which held that the court had jurisdiction to hear the case. In this telling, Mr Wall "was directed by letter to appear before the...