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Cardus Law: You, Me, Community

With the release of a new research paper this week exploring relations between law, faith and government, and with planning underway for launch of a new religious freedom institute later this year, Cardus Law Program Director Andrew Bennett took time to catch up with Convivium.ca publisher Peter Stockland and discuss the critical balance between individual and institutional faith rights. 

13 minute read
Topics: Community, Faith, Religious Freedom
Cardus Law: You, Me, Community April 25, 2017  |  By Peter Stockland and Andrew Bennett
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Convivium: Cardus Law has been extremely active these days, Andrew. You’ve published a paper this week from a leading U.S. legal scholar dealing with institutional religious freedom, and you just released one by Canada’s own Douglas Farrow, of McGill, on erosion of personal religious freedom. Can you talk about the shape Cardus law is taking since its launch last winter?

Andrew Bennett: We’ve released the fourth paper from our December symposium on religious freedom held at Wycliffe College at the University of Toronto. It’s by Professor Brett Scharffs of the School of Law at Brigham Young University in Provo, Utah, and looks at the question of why people should care about religious freedom. Why should faithful people care? Why should non-believers care about religious freedom?

Professor Scharffs tries to anchor the whole understanding of religious freedom within the Western tradition, within the legal tradition, looking both at how do we understand freedom of religion as a core human right historically and also, given a lot of the present questions around jurisdictions, around the role of government, vis-a-vis faithful communities, and how people of faith interact with the State. So the paper examines a number of the trends around religious freedom and how people of faith in the United States in particular interact with U.S. government institutions. But I think it's applicable for what we have here as well in Canada.

Convivium: So you have this new paper looking at a more institutional perspective, and Professor Doug Farrow’s recent paper exploring the issue at a broader, more cultural level. Is there more optimism about protection of religious freedom at the institutional level? Professor Farrow has some very deep concerns about what's happening culturally with religious freedom. How do you compare the two?

Andrew Bennett: Culture tends to influence institutions more than the other way around. What we're seeing in the culture right now, what Doug Farrow says in his paper, and in other commentaries he's offered recently, is identification of growth of the autonomy doctrine. The autonomy doctrine stipulates that the person alone is sovereign and is a self-actualizing, self-creating, and self-ending human being. Many of our institutions in Canada have offered robust defenses of religious freedom. Certainly the Supreme Court of Canada in the Loyola High School case offered a very strong defense for religious freedom. That has been historically the position of the Court in ensuring that freedom of religion, freedom of conscience, is understood to be a fundamental freedom, as the Charter of Rights and Freedoms stipulates.

However, I think we're starting to see fraying at the edges of our institutions around the ideology reflecting the autonomy principle that Professor Farrow articulates and is very concerned about. It’s the idea that the State can somehow dictate to different faith communities what is acceptable, whether on euthanasia or other matters related to conscience and conscience protection. There'll be a number of cases that will come through the Court such as the Trinity Western case. They will begin to shed more light on how the courts will respond to these fundamental questions of freedom of religion and conscience, and how much this autonomy doctrine has begun to take hold within our institutions.

C: We think of freedom of religion in the context of how it affects me as an individual. But it does have institutional impact, doesn't it? It reshapes the nature of our institutions If the religious sense of individual Canadians can be violated.

AB: People live out their lives of faith in community. No man is an island, is the popular adage, and I think that's very much the case when we speak about religious communities. People live their lives as Christians, as Jews, as Muslims, as Hindus, individually certainly with their own devotions, but then they manifest their beliefs and live out their faith in a community. It’s not simply the local parish or the local temple, but exists within the broader community of faith that exists beyond the very local community. That reality has led people of faith to come together throughout history to advance particular common goals that give witness to the importance of certain tenets of faith. This might be in the area of education. It might be in the area of health care.

That's why, from the very beginning of our country, we have had faith communities developing institutions, building institutions, not simply for their own benefit, but for the benefit of the entire broader community, whether we're speaking about Catholic hospitals, Jewish hospitals, Jewish day schools, Muslim day schools. These are institutions that are meant to bring the community together but also to be a witness to that broader community. If we begin to lose sight of that, if we begin to lose sight of the fact that people live their faith out in a variety of institutions, in a variety of ways that speak to what they hold to be true, then we are in a very perilous situation for religious freedom. It is not just the individual that is at stake. It's the broader community that is at stake.

This was recognized in the Loyola High School case. I think it's increasingly being recognized, for example, in the B.C. Court of Appeals ruling on Trinity Western. So, I think there is a general understanding that faith-based institutions have a particular role in our society as faith-based institutions. If we want to defend religious freedom in Canada, if we want to advance religious freedom, we must not do it simply on an individual level. Obviously individuals are the bearers of human rights. But those individuals live out their faith by being involved in particular faith-based institutions that seek to advance particular understanding of the human being and the common good of society.

C: You had a chance recently to travel outside Canada to see how others regard the way we treat religious freedom. Can you talk about that, and how it helps with your approach to Cardus Law?

AB: I was able to be a member of a new commission for freedom of religion within the Commonwealth. This is a commission that is serving from the United Kingdom in conjunction with the University of Birmingham to look at the state of religious freedom broadly within the Commonwealth. My fellow commissioners and I met in London in March. They were from Bangladesh, India, the United Kingdom, and Nigeria. It was a chance to hear about their particular experiences of religious freedom. In many cases in these countries, such as Bangladesh and Nigeria, the state of religious freedom is really being challenged in significant way either by government restrictions on religious freedom, or by social hostilities between different groups.

To look at what's happening in the broader Commonwealth from a Canadian perspective is very useful because we realize, first and foremost, that the tradition of religious freedom we do have in Canada is one we must continue to uphold, especially if we want to be an example to our fellow Commonwealth citizens. It’s the opportunity to talk about how Canada as a truly pluralist, multi-faith society that lives with religion in recognition of difference. Even though you might fundamentally disagree with the theological views of your neighbour, you recognize that person is a member of your community, a fellow human being. The Canadian experience is of a genuine pluralism where we don't try to descend into a mushy middle where all faiths are the same. We appreciate the differences that exist between people of different faiths and we see that all of us come together to build a society.

In some of the countries in the Commonwealth, we see this is not the case. Even where there is pluralism, there's great deal of tension between different groups, social hostilities result, and religious freedom is often one of the first casualties. Also, engaging with some of these colleagues from other parts of the Commonwealth, they look back at Canada and they see some of the particular challenges we're facing in the area of religious freedom, particularly on questions of conscience, and they're very interested to see how we are, in fact, dealing with that in a society where increasingly the sovereignty of the individual and the autonomy of the individual, seems to be breaking down certain elements of our understanding of community.

C: Tell us about the new religious freedom institute. What’s driving it?

AB: I'm very happy to say we are looking to be launching, towards the end of this year, the Cardus Religious Freedom Institute.  I've had a chance to travel across the country recently as part of Faith in Canada 150. It’s a Cardus initiative looking at the role of faith both historically and to reaffirm that role today as we celebrate the 150th anniversary of Confederation. I've had a chance to speak with different groups of people, different faith communities, about the importance of religious freedom and why we need to have a body that will look at a very high level at the state of religious freedom in our country. The Cardus Religious Freedom Institute will play, I think, a very important role in filling the gap and ensuring that we can do that robust research, we can do awareness raising, we can have the convening role where we bring together different groups of Canadians who care about religious freedom, to talk about it, and to do what we need to do to raise awareness in the broader community, within the broader society, about why religious freedom is such a core and fundamental human right.

Convivium: Cardus Law has been busy these days, Andrew. You’ve published a paper this week from a significant U.S. legal scholar dealing with institutional religious freedom, and you recently released one by Canada’s own Douglas Farrow of McGill on erosions of personal religious freedom. Can you give us a sense of where Cardus law is going since the launch last winter?

Andrew Bennett: We’ve just released the fourth paper from our December symposium on religious freedom that we held at Wycliffe College at the University of Toronto. It’s by Professor Brett Scharffs of the School of Law at Brigham Young University in Provo, Utah, and looks at the question of why people should care about religious freedom. Why should faithful people care? Why should non-believers care about religious freedom?

Professor Scharffs tries to anchor the whole understanding of religious freedom within the Western tradition, within the legal tradition, looking both at how do we understand freedom of religion as a core human right historically and also, given a lot of the present questions around jurisdictions, around the role of government, vis-a-vis faithful communities, and how people of faith interact with the State. So the paper examines a number of the trends around religious freedom and how people of faith in the United States in particular interact with U.S. government institutions. But I think it's applicable for what we have here as well in Canada.

Convivium: So you have this new paper looking at a more institutional perspective, and Professor Doug Farrow’s paper exploring the issue at a broader, more cultural level. Is there more optimism about protection of religious freedom at the institutional level? I wouldn't call Professor Farrow a pessimist, but he has some very deep concerns about what's happening culturally with religious freedom. How do you compare the two?

Andrew Bennett: Culture tends to influence institutions more than the other way around. What we're seeing in the culture right now, what Doug Farrow in his paper and also in a lot of the other commentaries he's offered over the last months and years, is identifying if the effect of the growth of the autonomy doctrine. The autonomy stipulates that the person alone is sovereign and is a self-actualizing, self-creating, and self-ending human being. Many of our institutions in Canada have offered robust defenses of religious freedom. Certainly the Supreme Court in the Loyola High School case offered a very strong defense for religious freedom. That has been historically the position of the Court in ensuring that freedom of religion, freedom of conscience, is understood to be a fundamental freedom, as the Charter of Rights and Freedoms stipulates.

However, I think we're starting to see some fraying on the edges of our institutions around the ideology coming into a lot of our institutions that reflects the autonomy principle Professor Farrow articulates and is very concerned about. It’s the idea that the State can somehow dictate to different faith communities what is acceptable, whether on euthanasia, other matters related to conscience and conscience protection. There'll be a number of cases that are going to be coming through the courts such as the Trinity Western case that will begin to shed a little bit more light onto how the courts will respond to these fundamental questions, of freedom of religion and conscience, and how much this autonomy doctrine has begun to take hold within our institutions.

C: We think of freedom of religion in the context of how it affects me as an individual. But it does have institutional impact, doesn't it? It reshapes the nature of our institutions If the religious sense of Canadians can be violated.

AB: People live out their lives of faith in community. No man is an island, is the popular adage, and I think that's very much the case when we speak about religious communities. People live their lives as Christians, as Jews, as Muslims, as Hindus, individually certainly with their own devotions, but then they manifest their beliefs and live out their faith in a community. It’s not simply the local parish or the local temple, but within the broader community of faith that exists beyond even just the very local community. That reality in people's lives of faith has led people of faith to come together throughout history to advance particular goals, particular common goals, particular ways of living out their faith that give witness to the importance of certain tenets of faith. This might be in the area of education, might be in the area of health care.

That's why, from the very beginning of our country, we have had faith communities developing institutions, building institutions, not simply for their own benefit, but for the benefit of the entire broader community, whether we're speaking about Catholic hospitals, Jewish hospitals, Jewish day schools, Muslim day schools. These are institutions that are meant to bring the community together but also to be a witness to that broader community. If we being to lose sight of that, if we begin to lose sight of the fact that people of faith live their faith out in a variety of institutions, in a variety of ways that speak to what they hold to be true, then we are in a very perilous situation, I think, for religious freedom. It is not just the individual that is at stake, but it's the broader community that is at stake.

This was recognized in the Loyola High School case, and I think it's increasingly being recognized, for example, in the B.C. Court of Appeals ruling on the Trinity Western case. So I think there is a general understanding that faith-based institutions have a particular role in our society as faith-based institutions. If we want to defend religious freedom in Canada, if we want to advance religious freedom, we must do it not simply on an individual level. Obviously individuals are the bearers of human rights. But those individuals live out their faith in community, by being involved in particular faith-based intuitions that seek to advance particular understanding of the human being and the common good society.

C:You had a chance recently to look travel outside Canada to see how others regard the way we respect religious freedom. Can you talk about that and how it helps inform your approach to Cardus Law?

AB:I was able to be a member of a new commission for freedom of religion within the Commonwealth. This is a commission that is serving from the United Kingdom in conjunction with the University of Birmingham to look at the state of religious freedom broadly within the Commonwealth. My fellow commissioners and I met in London in March. They were from Bangladesh, India, the United Kingdom, and Nigeria. It was chance to hear about their particular experiences of religious freedom. In many cases in these countries, such as Bangladesh and Nigeria, the state of religious freedom is really being challenged in significant way either by government restrictions on religious freedom, or by social hostilities between different groups.

To look at it from a Canadian perspective I think is very useful. To look at what's happening in the broader Commonwealth from a Canadian perspective is very useful because we realize, first and foremost, that the tradition of religious freedom we do have in Canada one we must continue to uphold, especially if we want to be an example to our fellow Commonwealth citizens. It’s the opportunity to talk about how Canada as a truly pluralist, multi-faith society, lives and exists with religion in recognition of difference. Even though you might fundamentally disagree with the theological views of your neighbour, you recognize that person is a member of your community, a fellow human being. The Canadian experience is of a genuine pluralism where we don't try and descend into a mushy middle where all faiths are the same. We appreciate the differences that exist between people of different faiths and we see that all of us come together to build a society.

In some of the countries in the Commonwealth, we see this is not the case. Even where there is pluralism, there's great deal of tension between different groups, social hostilities result, and religious freedom is often one of the first casualties. Also, engaging with some of these colleagues from other parts of the Commonwealth, they look back at Canada and they see some of the particular challenges we're facing in the area of religious freedom, particularly on questions of conscience, and they're very interested to see how we are in fact dealing with that in a society where increasingly, the sovereignty of the individual and the autonomy of the individual, seems to be breaking down certain elements of our understanding of community.

C: What's next for Cardus Law?

AB: I'm very happy to say we are looking to be launching, towards the end of this year, the Cardus Religious Freedom Institute.  I've had a chance to travel across the country recently as part of Faith in Canada 150. It’s a Cardus initiative looking at the role of faith both historically and to reaffirm that role today as we celebrate the 150th anniversary of Confederation. I've had a chance to speak with different groups of people, different faith communities, about the importance of religious freedom and why we need to have a body that will look at a very high level at the state of religious freedom in our country. The Cardus Religious Freedom Institute will play, I think, a very important role in filling the gap and ensuring that we can do that robust research, we can do awareness raising, we can have the convening role where we bring together different groups of Canadians who care about religious freedom, to talk about it, and to do what we need to do to raise awareness in the broader community, within the broader society, about why religious freedom is such a core and fundamental human right.

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