Is Religious Freedom Impossible in Canada?

I. The Influence of a Practice-Based Tradition on Social Institutions: Roman Catholicism in Canada

Winnifred Sullivan’s scholarship makes an important contribution to the understanding of religious freedom in the United States. There is an immense body of literature in the US that considers the meaning of religious freedom and its working out both socially and legally. While some authors like William Connolly ⁵ and Ann Pellegrini and Janet Jakobsen ⁶ question the very existence of “the secular,” Sullivan moves this debate into law and ultimately argues that because law can only define religion by creating a hierarchy of orthodoxies, thus “freedom and equality are better realized, and liberty better defended, if religion qua religion, is not made an object of specific legal protection.” ⁷ Sullivan’s argument turns, in part, on law’s inability to contend with everyday or lived religion which is inextricably tied to embodied practice: “Ordinary religion, that is, the disestablished religion of ordinary people, fits uneasily into the spaces allowed for religion in the public square and in the courtroom.” ⁸ This failure to account for or ignoring of lived religion by social institutions is embedded in power relations which have long and complex histories ⁹ that take unique, society-specific, shapes.

Sullivan’s detailed analysis of law’s response to religion has primary relevance for the United States. The unique two part establishment clause in the United States constitution offers a formidable backdrop against which Sullivan’s arguments rest. Further, the particular religious history of the United States, which supports a social and (Sullivan would argue) legal dominance of protestantism (as well as a recurring anti-Catholicism) is a key variable in her analysis. Despite these specificities, Sullivan’s challenge to the very possibility of religious freedom based on her close interpretive read of case law is one that has strong resonances across borders. ¹⁰ By bringing Sullivan’s arguments into conversation with insights about other countries (in this case Canada) and their approaches to religious freedom we gain a useful broader perspective about the relationship between religion and law.

In The Impossibility of Religious Freedom the case which is the focal point of Sullivan’s analysis is Warner v. Boca Raton ¹¹ in which it is lived religion (also known as folk religion, low religion, practice or embodied religion) that causes interpretive problems for the court, which cannot bring itself to accept the multiple ways in which religion manifests apart from prescribed orthodoxies. Warner is succinctly described by Sullivan on page 2 of her book:

Warner was brought on behalf of a group of Florida residents who sought to prevent the forced removal of the numerous statues, plantings, crosses, Stars of David, and other individually crafted installations that, with the tacit permission of city officials, they had placed on the individual graves of their deceased relatives over the course of ten to fifteen years. The suit sought a statutory and constitutional free-exercise-of religion exemption from local cemetery regulations that limit the size and placement of memorials to small flat metal plaques, flush with the ground, giving only names and dates, and that can be easily mowed over. The principal issue at trial was whether the non conforming memorial arrangements assembled by plaintiffs were an “exercise of religion” and therefore protected by the relevant statutes and constitutional provisions.

The practices of the plaintiffs are held up against the orthodoxies of their faiths and found to be wanting – assessed as not being religion worthy of protection. This lived religion is often embodied and public, something that makes the protestant establishment rather uncomfortable. Thus protestantism has pushed these embarrassing manifestations of faith to the corners of the room, or to the back room, to be kept in private.

Lived religion reflects the myriad of ways in which people are “religious.” Whether we are considering Robert Bellah et al.’s famous Sheila ¹² or Robert Orsi’s Uncle Sal ¹³ it is clear that the multiple textures of religion, or what gets described as religion, render it difficult to describe and to quantify. Thus when Statistics Canada asks people to identify their religious affiliation we learn almost nothing about how people are religious or what they think religious behaviour is. ¹⁴ Unknown, for example, is whether those who participate in a weekly yoga class or daily meditation practice consider those activities to be part of their spiritual practice. Are pre-travel rituals directed at some notion of a protective higher being? Is kissing the photograph of a dead relative before bed a form of ancestor worship or a protective talisman? ¹⁵ Our stale measures of religion rely on orthodoxies and are exclusive of day to day embodied practices of faith (understood in its broadest possible sense). ¹⁶ Part of this ignorance lies in the belief that spiritual practices at this level make little difference in public discourse. Robert Orsi insists that even prayer in one’s own space is public. ¹⁷ Reminiscent of the feminist slogan “the personal is political,” this challenge seeks to deconstruct the artificial divide between public and private. Such practices are reflective of a broader worldview, or, as Charles Taylor might put it, social imaginaries. ¹⁸ Ignoring religious practice at this level has enabled us to create myths about the secular nature of society, which intersects nicely with the protestant discomfort with ostentatious displays of religious commitment.

An important facet of this lived religion is its embodied nature – it is often manifested in intimate and body-centred ways. The Muslim prayer renders the protestant sensibility uncomfortable for this reason, and we can begin to see the attempt to relegate it to “private” space as originating in this discomfort. Silent or quiet undemonstrative prayer is the model against which prayer which is portable, embodied and flowing into “public” space is measured. ¹⁹ To be sure there are protestant manifestations of embodied practice, but charismatics and Pentecostals remain on the margins of the religious mainstream in part because of their embarrassing enthusiasm. ²⁰ Roman Catholicism enters into this embodied space as well.

Catholic clergy’s bodies have traditionally been demarcated in public ways, with collars and habits. But even the ordinary faithful emphasized body, through diet (fish on Fridays and the sacrifice of some bodily indulgence for Lent). Recently when I went to the Roman Catholic church in my neighbourhood (I can see the still-habit bearing nuns to and fro all day from my office window) to purchase parking there were several people walking on their knees down the central aisle of this rather grand building. The more public journey of the faithful on their knees up the stairs of the Montréal oratory is famous even to those of us who are not part of the Catholic tradition. ²¹ And the now-popular labyrinth walk, which has spread to Protestant churches as well, originates (at least on the Christian side) in the Catholic cathedrals of Europe. Artistic depictions of religious significance originating in the Catholic tradition are also representative of the engulfment of body in the spiritual process. Bernini’s depiction of St. Theresa is decidedly embodied, indeed orgasmic. This is not belief, but religion as spirit possession, divorced from careful consideration of doctrine and belief. This bodily envelopment is echoed in the replications of Jesus Christ on the cross one sees in the front lawns of the Québec countryside (and in L’Acadie in New Brunswick). ²²

In some measure I am taking creative licence by characterizing Roman Catholicism as a practice-based religion. ²³ Perhaps more accurately, the distinction I am drawing on is one that emphasizes body, its participation, and in some instances supplication and submission. The dividing line between belief-based and practice-based religion is somewhat arbitrary, but not completely without basis. At the very least it could be argued that the notion of religious difference, and the necessity of accommodating it, or managing it, was central to the project of the Canadian state from the very beginning of Canada as a colonial project in a way that is distinct from the situation in the United States. ²⁴

Religious beliefs/practices are not necessarily determinative of one’s worldview, but it cannot be denied that these experiences form part of what one brings to one’s everyday experiences and decision. Seven of the last eight of Canada’s prime ministers have been Roman Catholic, and certainly our Supreme Court justices also reflect the Protestant/Catholic mix in Canadian population. To be sure, the influence can take interesting turns (one need only think about Pierre Trudeau to see the complicated relationship between that prime minister and his religious heritage). My purpose in drawing attention to this is not to trace a causal link, but rather to argue that the variety of religious experiences in Canada, coupled with the institutional support for a diverse (or at the very least dichotomous) religious landscape from this nation’s early constitutional days shifts the cultural backdrop against which legal decisions are made about the meaning of religion and religious expression.

In Canada the Constitution Act 1867 made specific provision for the recognition of two regimes that were very distinctly religion-based by providing that Roman Catholic and Protestant schools would be funded in the provinces in which they were in the minority. ²⁵ Although there were arguably linguistic overlays to these provisions, and in some situations there was very much an English/Protestant and French/Catholic divide, that division did not hold in all cases. The provision as it was originally formulated clearly recognized that these religions played a key role in identity construction. While regimes may have remained separate, the very notion of alternatives, which the Protestants may well have understood as a difference in beliefs, and, in fact, so too the Roman Catholics, laid the groundwork for the ways in which religion was defined in institutional practices. There were profound differences in the deployment of body in relation to faith. The protestant emphasis on belief meant a much less visible type of religion. That this has had an influence, some might even argue dominance, over understandings and definitions of religion by public institutions is undeniable. Yet even those early provisions for the official recognition of Roman Catholicism carved out a space in which practice held legitimacy.

Perhaps the most interesting illustration of the importance of body/practice in this context is the 1984 Supreme Court of Canada decision in Skoke-Graham. ²⁶ The case focused on a decision by a Catholic diocese, approved by the Bishop, which changed the position in which congregants received communion from kneeling to standing. A battle ensued between parishioners about the appropriate position, and some continued to kneel despite the directive. They were eventually charged (and convicted) under the Criminal Code for “willfully disturbing the order or solemnity of an assemblage of persons met for religious worship.” To be sure, this case also invokes doctrinal or belief-based questions and positions, but can we think of any protestant issue that would be so embodied? The forward position of practice has important implications for the understanding of religion in law. This is so even if we can detect the very measuring of orthodoxy criticized by Sullivan. In part what is being fought about in Skoke-Graham is the intrusion of new, unorthodox practices into the communion. Critically, though, the measuring is not against a protestant yardstick, but within the tradition itself. That the Supreme Court of Canada heard a case that is essentially a squabble about directives on practice within a religious tradition speaks in some measure to the possibility of practice-focused religion being taken seriously in Canadian jurisprudence on freedom of religion. ²⁷

Although I have focused my attention thus far on the impact of Roman Catholicism on the legal and political landscape in relation to religion, there is another strand of the story that bears mention. ²⁸ First, the space created for the legal and quotidian recognition of lived religion did not come without a cost, most clearly paid by the First Nations peoples of Canada, whose embodied, lived, public, daily practice was beaten, coerced and mutilated through their bodies with the collaboration of church and state. ²⁹ That the church understood very well the body as the important locus of spiritual practice is illustrated by the experiences of many First Nations peoples in residential schools. ³⁰ The second point to be made here is that the result was not a complete supplication, but a syncretic blending of practices and beliefs. ³¹ In short, First Nations spiritualities offered another, abiding, reminder of the presence of an alternative possibility in religious shape, even if it served as an oppositional force. Paradoxically, colonizers both declared the absence of religion among First Nations peoples while at the same time systematically setting about to eliminate what were framed as inappropriate, undesirable, pagan or heathen practices – those which were clearly perceived as a threatening, strange, or other. The impossibility of defining aboriginal “religion” posed infinite problems for colonizers, and allowed them to declare that it was “no religion,” thus opening space to impose colonial versions of religion. The intersection of colonizer practices in this regard was directly related to strategies of nation-building. ³²

Part of the interesting role of First Nations in the conceptualization of religion has been to decenter the concept itself. There is a widespread recognition among scholars and governments that the idea of “aboriginal religion” is unstable, in the sense that it is not entirely possible to put one’s finger on the essence of aboriginal religion, most probably because it does not have an essence if defined or measured by the Christian-based notion of religion that predominates in western society. The result in case law is admittedly not promising, but it has shaped the discussion about religion in ways that move us away from belief-based understandings of religion. In some measure, these constant encounters with the “other” have formed an important strand of the storyline of definitions of religion in law. ³³

Again, the goal of this discussion is not to propose a causal relationship between Roman Catholicism and the capacity of law to incorporate a practice-based understanding of religion, but rather to posit an argument that the historically strong presence of Roman Catholicism in Canada, coupled with (and mixed with) the spiritualities of First Nations groups, created space for a broader conceptualization of religion that renders the possibility of an expanded notion of religion and thus a thicker and more textured religious freedom perhaps greater than it is in the protestant-dominated society of the United States.

II. The Importance of Multiculturalism and Group Recognition

A third distinguishing feature of the Canadian religious freedom landscape is thecombined effect of the intersection of multiculturalism and group rights. It may seem paradoxical to see the openness of Canadian law to claims based on group identity as support for claims based on individual expressions of religious freedom. However, in one sense the “threat” to orthodox religion identified by Sullivan as an underlying theme in Warner v. Boca Raton was posed by the cumulative effect of an alternative or “folk” expression of religion. More succinctly put, lived religion, whether Jewish or Roman Catholic, was counterposed with normative or orthodox religion. This cumulative effect is captured in the idea of group rights.

Both Charles Taylor ³⁴ and Will Kymlicka ³⁵ have devoted considerable thought to the role that group rights play in the Canadian context and liberal democracies more broadly. For Taylor, not all groups are worthy of recognition, which raises the question of limits and who decides what the boundaries are. This becomes worrisome when one thinks of marginal religious groups like the Raelians or Wiccans. For Kymlicka, a staunch advocate of multiculturalism, groups provide a place in which individuals can flourish. ³⁶

That this notion of group identity has a role in Canadian jurisprudence in relation to religion is supported by some of the discussion about religion in post-Charter Supreme Court decisions. What is also clear is that the courts use notions of the group to frame discussions of religious minorities and freedom of religion. For example, in Big M ³⁷ (a Sunday closing case) the Court states:

To the extent that it binds all to a sectarian Christian ideal, the Lord’s Day Act works a form of coercion inimical to the spirit of the Charter and the dignity of all non-Christians. In proclaiming the standards of the Christian faith, the Act creates a climate hostile to, and gives the appearance of discrimination against, non-Christian Canadians. It takes religious values rooted in Christian morality and, using the force of the state, translates them into a positive law binding on believers and non-believers alike. The theological content of the legislation remains as a subtle and constant reminder to religious minorities within the country of their differences with, and alienation from, the dominant religious culture (at para 97).

The Court links the broad group recognition of religious minorities to multiculturalism:

I agree with the submission of the respondent that to accept that Parliament retains the right to compel universal observance of the day of rest preferred by one religion is not consistent with the preservation and enhancement of the multicultural heritage of Canadians (at para 99). ³⁸

In addition to the recognition of religious minorities, the Court acknowledges that there is a dominant culture of Christianity in Canada which is potentially coercive. This acknowledgement is a key opening in the conceptualization of religious freedom for the courts to struggle with the meaning of religion and the protection of religious freedom in a manner that is open to non-Christian possibilities. To be sure this is not a guarantee that this process will happen, or that the end result will not be fraught with the problems discussed by Sullivan, but it creates the possibility of a much broader scope of understanding of religious freedom.

It is a curious side effect of liberal democracies and rights regimes that claims for rights and freedoms are characterized as individual claims. While this may be true in terms of the individual who brings the application, it is also true that individuals present themselves in terms of their identities as a Jehovah’s Witness, a Sikh, a Jew, etc., and as such are linking themselves to communities with histories, beliefs, and practices. In this way rights are not, at least in relation to religion, solely individual claims or the recognition is not solely framed in relation to an individual. Thus, when a Jehovah’s Witness girl refuses a blood transfusion she is invoking a set of beliefs, practices, and a community. Chances are good that, if forced to receive transfusions, her legal battle will be a team effort, involving members of her community and legal support well versed in these sorts of matters. Courts are well aware of the network of relations that is represented by the lone body of the girl. The effect of a legal pronouncement impacts a group as well as an individual and courts are aware that their decisions affect the ways in which groups can be religious. This is effectively emphasized by the Supreme Court’s more recent decision in Amselem, which begins “An important feature of our constitutional democracy is respect for minorities, which includes, of course, religious minorities.” Note that the Court does not begin with a statement about the importance of rights and freedoms to individuals.

Although the group recognition in relation to religion clearly predates any notion of Canada as a multicultural nation, it is this latter notion that solidifies the group recognition process and in fact allows for the possibility of a recognition of multiple “cultures,” a position which surely must include the idea that religion is included in the mix of what may constitute a culture. ³⁹ Moreover, at least in the abstract, space is opened by the specific recognition of First Nations and linguistic communities for thinking in terms of groups, whether that results in any type of formal group recognition or not. In addition the constitutional recognition of religious schools gives voice to the need to legally protect religious minorities. Arguably the specific religious minorities protected by the original s. 93 provision are no longer minorities, but the fact remains that there is a recognition in Canadian legal history of the disadvantages religious minorities can suffer if not sufficiently protected. Whether group recognition in this “soft” sense adds up to a protection from the dominance of protestant conceptualizations of religion in cases of religious freedom remains to be seen. In considering individual claims to religious freedom the courts may still slip back into a reliance on orthodoxy to frame its considerations. It is to this issue that we will now turn.

III. The Turn to Subjectivity: Amselem and Practice

Courts have struggled to reconcile the rather static notion of religion with the dynamic ways in which people live out or practice religion on a day to day basis. Like law, religion on paper and religion as lived are often two very different phenomena. To its credit, the Supreme Court of Canada (SCC) has attempted to translate this very messy terrain into principles that can be used in the process of decision making related to religious claims. These principles have far-reaching consequences, and extend beyond the realm of law as they interplay with the ways in which religion is supported and limited in day to day life. This is not to say that the SCC determines discourse on religious freedom in any sort of top-down manner, but rather the ways in which the SCC works through definitions of religion and the meaning of religious freedom is an important part of the discursive working up of the notion of religious freedom in contemporary Canadian society. Thus, for example, condominium builders have become aware that they cannot necessarily cleanse living space of religious life. Such was the situation in Amselem, ⁴⁰ the case that has most clearly articulated a notion of subjectivity in relation to religion. In Amselem the claimant was an Orthodox Jew who lived in a condominium building in Montreal. Under the terms of the by-laws in the declaration of co-ownership, decorations, alterations and constructions on the balconies were prohibited. During the festival of Succot the claimant wished to build a succah on his balcony, a structure resembling a tent that was prohibited by co-ownership by-laws. Although there was some evidence that a communal succah would fulfill the requirements of his religion, the claimant’s interpretation was that he should build his own succah on his balcony. The Supreme Court found in his favor.

A review of some of the Court’s words in Amselem reveals a turn to subjectivity and a genuine struggling with the tension between orthodoxy and lived religion. The Court resolves this struggle by emphasizing lived, subjective religion rather than orthodoxy:

The emphasis then is on personal choice of religious beliefs. In my opinion, these decisions and commentary should not be construed to imply that freedom of religion protects only those aspects of religious belief or conduct that are objectively recognized by religious experts as being obligatory tenets or precepts of a particular religion. Consequently, claimants seeking to invoke freedom of religion should not need to prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion, nor is such an inquiry appropriate for courts to make (at para 43).

Of course, in its bid to recognize subjectivity in the above passage the Court reifies a protestant emphasis on belief (going on to emphasize the threshold issue of sincerity of belief), noting in passing the “or conduct” aspect of religion that is embodied or manifest. This need not be a fatal flaw, for the person coming before the law in this circumstance will have at the root of her/his claim a practice that somehow “offends” or “contravenes” or “interferes.” Changing one’s beliefs without a manifest practice is not likely to have the same implications. The Court struggles to recognize the myriad of ways in which individuals may interpret and live out religious commitment.

Some have argued that this turn to subjectivity in fact smoothes out the contours of religious freedom such that it is reduced to freedom of conscience or at the very least rendered extremely ambiguous. ⁴¹ In fact, this is the approach for which Sullivan argues at the end of her book – that religious freedom can be effectively subsumed under other existing rights and freedoms such that equality, not freedom of religion, becomes the focus in law. In my view the turn to subjectivity such as that taken by the Court in Amselem takes us in exactly the opposite direction. The Court insists that the subjective practices must have a nexus with religion. This draws the subjectivity back to religion, and keeps it inextricably bound to it. Moreover, freedom of conscience resides in the realm of belief and it is here that freedom of religion is fundamentally different. Superficially we could argue that the very mention of freedom of religion and conscience necessitates a differentiation in meaning and interpretation and thus it is not possible to collapse them one into the other. But I think there is more to it. Freedom of religion necessarily involves some notion, however limited, of practice, or embodied subjectivity, whether that is in the free love of the Raelians, kneeling for communion, refusing to receive a blood transfusion, having one’s picture taken or positioning one’s body in the direction of Mecca and praying five times a day.

Amselem is significant because the Court delves into the possibility of the subjective living out of religion as a combined belief/practice matrix. It is clear in the decision that the Court is struggling to consider lived religion as its beginning place, however imperfectly it manages to articulate it. The Court tries to include the subjective manifestations of religion, embodied in the ways in which different people express their faith, that will have a visible outcome. This is not just whether I wear my labyrinth pendant with the pagan or Chartres labyrinth next to my heart. The individual succah is a visible, some (fellow condominium dwellers and the building management) might argue annoying, reminder of bodies in time and place – of practice. Subjectivity can clearly exist at the level of belief, but it is not until it becomes embodied, practiced, public, as it were, that it becomes problematic. That the Court moves in a direction which supports this sort of “display” implicates practice. Whether the Court valorizes belief over the practice is a discussion we will touch on in the next section. In relation to religious freedom and its interpretation, the subjectivity of the religious actor is taken seriously in Amselem. The glitch in this is that before the religious actor’s subjectivity can be considered, the court introduces a test of sincerity of belief.

IV. Reasons to Doubt: Sincerely Held Belief and the Separation of Belief and Practice

Sullivan’s main objections to the possibility of religious freedom are rooted in her observation that religion is measured and assessed over and against a particular orthodoxy that, in the United States at least, has a decidedly protestant shape. While I have tried in this article to demonstrate some of the reasons that Sullivan’s argument may not work in Canada, certainly there is also evidence to support the argument that religion is so narrowly conceptualized in law that it can only be reflective of a relatively limited range of possibilities when it comes to the protection of religious freedom. For example, Benjamin Berger argues that “law shapes religion in its own ideological image and likeness, while notionally confining it to discrete dimensions of human life.” ⁴² For Berger, the culture of liberalism informs law’s normative commitments, which it brings to bear on its own understanding of religion. ⁴³ Berger’s assessment works nicely with that of Sullivan by highlighting the assumptions about religion embedded in law. For Berger it is liberalism that impedes law’s ability to contend adequately with religion. Sullivan’s work illustrates the deep bonds between Protestantism and liberalism.

I have argued elsewhere that there exists a religious hegemony in Canada that is made up predominantly of mainstream Christianity. ⁴⁴ The edges or boundaries of this hegemony are blurry, to be sure, but it exists all the same. Most importantly, it infiltrates understandings and assessments of religion in public discourse, and institutional realms such as law. Although speaking of the United States, the following statement by William Connolly speaks to the ways in which this hegemony works:

Euro-American secularists typically overplay the autonomy of public reason (or whatever surrogate for it is adopted), underplay the layering of faith into bodies and institutions and discount the extent to which the concept of free will, punishment, and public morality that they deploy express the history of the Christendom in which they participate. ⁴⁵

The tainted neutrality of the secular is reflected in the works of Jakobsen and Pellegrini who argue that Protestantism passes for secular and “If ‘secular’ is another name for a vague Christianity there is little social space to practice either the freedom to be religious differently or the freedom not to be religious at all.” ⁴⁶ There is much reason to be skeptical about the possibility of moving outside of definitions of religion that are framed in Christian terms if the secular is so imbued. In essence these authors argue that not only is society not secular, but that religion (specifically Christianity) has been reinvented to fit within the bounds of and indeed to constitute the secular. Talal Asad ⁴⁷ and a number of others push this argument further, arguing that, like the notion of secular, so too is the concept of religion completely inalienable from Christianity. This combination poses a difficult challenge for courts to overcome.

Whether or not we can position Roman Catholicism in Canada within the parameters of mainstream normal could be debated, although I would argue that, much more than the United States, it surely can be included within the hegemonic force of mainstream religion. As I argued above, the presence of mainstream Catholicism is not a causal factor in the legal recognition of practice-based religion, rather it opens space for the possibility of it. Further, the presence of First Nations discourses brings a strong syncretic voice into the conversation. The Truth and Reconciliation Commission of Canada, ⁴⁸ for example, brings aboriginal practices and beliefs into public space, disrupting the smooth narrative of the harmonious nation-state and further pressing the boundaries of the conceptualization of religion and thus of religious freedom. First Nations voices in Canada have challenged normative assumptions about religion in ways that they have not in the United States,thus lending a more textured imaginary to the religiously “normal.” ⁴⁹ However, it is also possible that the boundaries are much more closed than I have argued above.

William Connolly argues that many cultural theorists (I would extend this to others) speak of the body, “but many who do so continue to reduce ritual to a mechanism through which benefits are represented rather than construing it also to be a medium through which embodied habits, dispositions, sensibilities, and capacities of performance are composed and consolidated.” ⁵⁰ Rituals and embodied practices are taken to be symbolic rather than constitutive of faith, and as ultimately about belief. The emphasis on belief is taken as an indication of developed character, which is measured in protestant terms. In the Bouchard-Taylor Commission report the authors note with approval the case in which a school board and a Sikh boy and his family negotiated an arrangement whereby the carrying of a kirpan was reduced to a pendant around the boy’s neck. This solution, so private as to fit within Sullivan’s definition of protestant, in a province so strongly rooted in Catholicism, leaves open to challenge my optimism. So too does the church-state relationship, which is not supported by a clean separation.

Indeed, the enthusiasm in some circles in Québec for the exclusion of religion in the public sphere and the endorsement of France’s model of laïcite tempers the potency of the argument I am making in the specific context of Québec, at least in the non-legal realm. The courts in Québec have been mixed in their definition of religion and in their openness to minority religious practices. As Québec has historically been dominated by Roman Catholicism, this might lead us to speculate that it is the tension between Roman Catholicism, Protestantism and the resistant voice of First Nations peoples that creates the conditions for a broad interpretation of religion under s. 2(a) of the Charter of Rights and Freedoms.

In Canada there is perhaps more blatant constitutional recognition of religion than in the United States. “The Supremacy of God” stands side by side with “the rule of law” in the preamble of the Charter of Rights and Freedom, although there is debate about the meaning of this inclusion. Whether it signals Canada’s Christian heritage or, as Bruce Ryder argues, is in fact an opening to an alternative mode of being (faith rather than reason) is debatable. ⁵¹ It is, perhaps, of less concern to those of Abrahamic faiths than others, and thus may, in the end, contribute little to our understanding of the possibility of religious freedom. It would seem to construct a boundary of sorts that privileges god-based religions over others.

More than this, though, are two streams of thinking within legal discussions of religion that should give pause for thought. First, the insistence on sincerely held belief, a test that is largely imported from the US which, as Sullivan has convincingly pointed out, has a protestant- dominated definition and understanding of religion and which acts as a shield for legally-defined orthodoxy that is ultimately the final standard employed by courts (2005: 7), and which, obviously emphasizes belief rather than practice. One of the facets of the protestant approach critiqued by Sullivan is, as has been pointed out, the emphasis on belief. And it is here, to return to Amselem, that the Supreme Court cannot help itself, returning to the familiar ground of belief to develop a full-blown “sincerity” requirement that seems to counterbalance (some might argue erase) the wonderful openness of the subjective approach:

freedom of religion consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials (at para 46).

This confusing vascillation between objective and subjective, belief and practice leaves open to question the place of practice and embodied religion as a focal point from which a religious freedom claim might be supported and perhaps returns us to, despite the lack of a requirement of endorsement by official dogma, an unspoken understanding of “what we all know” is religion.

It is interesting to think of the alternatives – a sincerely practiced practice? In many ways it is difficult for those of us who are socialized in the belief-based society to reconceptualize or imagine another way of talking about religion, so convinced are we that belief is the cornerstone of all religion. And indeed, much of my discussion has relied on an overemphasis of practice and embodiment from belief, when the two are often so textured together that it is impossible to segregate them in this artificial divide. And here is the second problem: that the courts have held that indeed belief and practice can be separated.

The Supreme Court held in Trinity Western ⁵² that “The freedom to hold beliefs is broader than the freedom to act on them” (at page 5). While this passage could be read to place limits on harmful practices, the notion that one can hold beliefs but not act on them not only disconnects belief and practice, it privileges belief and places it in the realm of the rational, in some measure taking it outside of the messy terrain of faith and ensuring that the reasoned part of religion can be rescued from its messy counterpart of practice. In the Trinity Western decision the Court was attempting to distance the ban on “homosexual behaviour” and the attendant beliefs from potentially harmful acts toward gay and lesbian students. The notion that belief and practice can be separated is reflected in other cases as well. ⁵³

The separation of belief and practice is not the focus of discussion in Multani, ⁵⁴ but it is this case that may raise some serious doubts about the ability of the law to cope with religion in a manner that will escape the protestant chains of belief. At first glance it is difficult to imagine what could possibly be wrong with a case that upholds a Sikh boy’s right to wear a kirpan to school. First, though, let’s be clear that with the agreement that was in place the kirpan could hardly constitute a danger – it was to be:

If a schoolyard fight broke out the combatants would be better off jabbing each other with pencils and pens if it was their will to cause bodily harm. Thus, the kirpan was rendered impotent, a fact which is distracting from the symbolic purpose of it in the first place. More telling, though, is the focus in the reasoning on the beliefs, strongly held,of Gurbaj Singh “Gurbaj Singh says that he sincerely believes he must adhere to this practice in order to comply with the requirements of his religion” (at page 19). And a measurement of Gurbaj’s wearing of the kirpan against the orthodoxy:

No one contests the fact that the orthodox Sikh religion requires its adherents to wear a kirpan at all times. The affidavits of chaplain Manjit Singh and of Gurbaj Singh explain that orthodox Sikhs must comply with a strict dress code requiring them to wear religious symbols commonly known as the Five Ks: (1) the kesh (uncut hair); (2) the kangha (a wooden comb); (3) the kara (a steel bracelet worn on the wrist); (4) the kaccha (a special undergarment); and (5) the kirpan (a metal dagger or sword) (at para 36).

There are echoes in Multani of the framing and process from Warner v. Boca Raton that raise concerns for Sullivan, who observed that the language of the trial (in which she was an expert witness) “slipped unnecessarily between the religious lives of the plaintiffs themselves and large reified constructions: religion, Christianity, Judaism, Orthodoxy, Islam. The language of substantiality and certainly the language of requirements seemed to demand the specter of institutionalized religious authority, authority consecrated by the ages”. ⁵⁵

Paradoxically, though, it is Multani that also offers some support to the argument I have presented above. That a Sikh schoolboy can carry what some would characterize as a knife to school, always a focal point of worry about violence, is no small thing in the context of a country whose population is still largely Christian, however observant or devoted that population is or is not. It may be that, in the end, any worry about how the Court arrived at that decision is largely irrelevant, and that the importance of that case is the Court’s genuine engagement with religious practice. The issue of sincerity of belief is given a scant amount of attention in Multani.

We are left with the uneasy feeling that maybe Sullivan is correct and that religious freedom is equally impossible in both Canada and the United States. ⁵⁶ But, as much as there is reason to be concerned, there are reasons to be hopeful as well. The reasoning of the Supreme Court in Amselem demonstrates that the court is sensitive to the ways in which lived religion requires a particular attention to the subjectivity of the religious participant. And, while the reasoning in Multani raises concerns about the need for a yardstick of orthodoxy, the decision in that case demonstrates a convincing willingness on the part of the court to take practice-based religion seriously. Is religious freedom impossible in Canada? Perhaps not impossible, but a difficult challenge that must be met with a full awareness of the perils of the task inherent in arbitrating religious freedom claims.