Richard Moon, “Freedom of Religion under the Charter of Rights: The Limits of State Neutrality”

Working Abstract

According to the Canadian courts s. 2(a) of the Charter requires that the state remain neutral in religious matters. The state must not support the religious practices of one religious group over those of another and it must not restrict the practices of a religious group, unless this is necessary to protect a compelling public interest. Yet the neutrality requirement cannot be, and has not been, consistently enforced by the courts. The fundamental difficulty with the neutrality requirement is that religious beliefs often have public implications. Despite the courts’ formal commitment to “neutrality” they have required the state to remain neutral only towards the “private” or spiritual dimensions of religious practice. The “public” elements of belief, which address civic concerns, remain subject to the give and take of ordinary politics. This distinction, although not expressly made by the courts, underlies the different treatment the courts have given to religious “practices”, which the state is precluded from favouring, and religious “values”, which the courts have said may play a role in political decision-making. This distinction between public and private religion, may also play a role in the courts’ accommodation decisions and account for its weak or selective protection of religious practices from state interference. Where the line is drawn between civic and spiritual spheres will reflect the courts’ assumptions about ordinary religious practice and appropriate state action. Because the line is not drawn explicitly but is instead framed as a distinction between practice and value in state support cases and is buried within the formal s. 1 balancing of interests in religious accommodation cases, the courts’ assumptions about the nature of religious practice and state action are concealed from scrutiny.

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