The First Freedom

In last week's Persecution and Prayer Alert, in response to a marriage commissioner in Regina, Saskatchewan facing a human rights tribunal for refusing to perform the marriage of a homosexual couple in 2005, I commented that since same-sex couples have been given the right to marry in Canada, sexual orientation is being treated as a more fundamental right than religious belief.

In today's National Post, Father Raymond J. De Souza makes a similar point, albeit far more effectively in his column "Freedom number one" as he discusses this development in the context of Canada's Charter of Rights and Freedoms.

Freedom number one
Father Raymond J. De Souza, National Post
Published: Thursday, February 15, 2007

What is the most important freedom protected in the Charter of Rights and Freedoms? We could start with the first one listed: "freedom of conscience and religion." This week's series on the 25th anniversary of the Charter has addressed at length equality rights, which have dominated Charter jurisprudence, but what about the first freedom?

Religious liberty and freedom of conscience is not the first freedom by accident. The first article of the Magna Carta in 1215 guarantees "that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired." The first amendment of the American Bill of Rights (1789) states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Article 1 of the Universal Declaration of Human Rights (1948) speaks of human beings "endowed with reason and conscience" (Article 18 specifies the consequences for religious liberty).

In contrast, the French Declaration of the Rights of Man and the Citizen (1789) gives rather short shrift to religious liberty, which may not be surprising for a document which states: "The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation." The almost immediate descent of the revolution into vicious religious persecution more or less follows from such a totalitarian principle.

But the lamentable French Revolution aside, the long history of freedom recognizes that the first freedom must be religious liberty. If the citizen is not free in his conscience, where else can he be free? If he is not free to pledge his allegiance, as he understands it, to God before the state, then what possible limits can there be on the state? That's why freedom of conscience and religion are the Charter's first freedom.

How has the Charter been used in the intervening 25 years to protect such freedom? The record has not been encouraging. In general, the courts have been more sympathetic to either equality claims or public policy goals rather than defending religious minorities. The trend regarding censorship is also worrying: The courts have been very deferential to government-imposed limits on free speech.

There have been in the last five years a number of clear-cut religious liberty cases that have ended up in the various provincial human rights tribunals. The proximate issue has usually been homosexuality, and the human rights tribunals have been inclined to limit religious liberty in favour of an emphasis on putative equality claims instead. Eventually, these cases will emerge from the shadowy legal world of the human rights tribunals and be litigated as Charter cases in the courts themselves.

It will pose a significant challenge to Charter jurisprudence. The tendency of the courts to favour equality claims over fundamental freedoms would seem to indicate that religious liberty would not fare well. That would likely be the outcome if the rights of Christians were at issue; but the issue would be complicated if religious minorities -- Muslims or Sikhs for example -- were to make claims on both religious liberty and equality grounds.

As the vast apparatus of the Canadian state moves in certain respects toward enforcing a secular orthodoxy, infringements on religious liberty are sure to become more, not less, frequent. This has already happened in education, as students and parents often find themselves confronted in the classroom with moral teachings contrary to their religious beliefs. To date, accommodations have generally been worked out, but as secularist bureaucrats become more zealous, these cases too will soon head to court on religious liberty grounds.

The churches --and mosques and temples -- themselves will likely go to court to test religious liberty claims, as their involvement in health care and social services increasingly encounter state mandates which violate religious freedom. The case of Revenue Canada hassling Bishop Fred Henry of Calgary during the last federal election was unique in its directness, but there will be many other less direct attempts by the bureaucratic state to encroach upon religious freedom. The purpose of the Charter is to prevent just that. The question for the next 25 years is whether it will.