The Autonomy of Religious Organizations
| Author | Richard Moon |
| Profession | Faculty of Law, University of Windsor |
| Pages | 139-160 |
139
CHA PTER 4
THE AUTONOMY
OF RELIGIOUS
ORGA NIZ ATIONS
A. INTRODUC TION
When an individual believer claims exemption from the law for her reli-
gious practice, the key issue for the court is whether the exception —the
accommodation — will negatively affect the public interest or the rights
of others. In some cases, though, the accommodation claim is made not
by an individual, who is seeking exemption for a specific practice, but
by a religious organization or institution, which is seeking a degree of
autonomy in the governance of its affairs — in the operation of its inter-
nal decision making processes, and the application of what Alvin Esau
refers to as “inside law” to its members.1 As Ayelet Shachar observes,
most individual accommodation claims are about inclusion within so-
ciety — a claim for exemption that enables the individual to participate
more fully in the general community — while institutional “autonomy”
claims are about “opting out of, or seceding from the effects of the pol-
ity’s public laws or norms.”2 In these institutional autonomy cases, the
court must determine not only whether the exemption from state law
1 Alvin J Esau, “Living by Different Law: Legal Pluralism, Freedom of Religion, and
Illiberal Religious Groups” in Richard Moon, ed, Law and Religious Pluralism in
Canada (Vancouver: UBC Press, 2008) 110 at 110.
2 Ayelet Shachar, “Privatizing Diversity: A Cautionary Tale from Religious Arbitra-
tion in Family Law” (2008) 9 Theor Inq L 573 at 581. See also José Woehrling,
“L’obligation d’accommodement raisonnable et l’adaptation de la société à la diver-
sité religieuse” (1998) 43 McGill LJ 325.
FREEDOM OF CONSCIENCE AND R ELIGION140
will impact the rights and interests of others (i.e., whether the group’s
application of “inside law” will negatively affect outsiders to the group)
but also whether the members of the group should be protected by state
law from internal rules that are unfair and contrary to public policy. The
courts’ judgment about when intervention into the “internal” operation
of the group is necessary will be affected by their understanding of the
nature and value of religious association — whether it is seen as a col-
lective bond or identity or, instead, as a voluntary alliance of individuals
pursuing common ends and whether it is viewed as a source of meaning
and value for its members or as potentially oppressive and confining.
In a variety of ways, the law acknowledges the importance of reli-
gious community as a source of meaning or identity for the individual
and as a centre of social life, public charity, and community action. Re-
ligious institutions are generally exempted from property taxes and, as
charitable organizations, from income tax.3 Religious organizations are
also given significant autonomy in the conduct of their affairs, some-
times through specific legal exemptions from ordinary law.
B. MEMBERSHIP, IDENTITY, EXIT, A ND
INTERVENTION
The general assumption is that those who choose to become, or to
remain, members of a religious group do not require protection from
intragroup rules, even rules that are harsh and discriminatory. If the
“members” of a group have voluntarily submitted to the group’s rules or
decision making processes, then the state ought not to intervene. The
individual’s membership in the group may be seen as voluntary as long
as he is free to leave the group, and live under ordinary state law, if he
disagrees with the group’s actions.
Yet exit from a religious group is seldom costless. There may be a
variety of barriers or impediments to the individual’s withdrawal from
such a group. As part of its commitment to religious freedom, the state
should endeavour to remove or lower these barriers to enable individ-
3 For a more detailed account of church tax exemptions, see MH Ogilvie, Religious
Institutions and the Law in Canada, 3d ed (Toronto: Irwin Law, 2010) at 258ff
[Religious Institutions]; and Janet Epp Buckingham, Fighting Over God: A Legal
and Political History of Religious Freedom in Canada (Montreal; Kingston: McGill-
Queen’s Press, 2014). Another way in which the law may recognize and support
religious communities is the protection granted to the confidentiality of the priest
and penitent relationship, which is established by statute in some provinces and
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