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Bakht - Arbitration, Religion and Family Law

Part Three: The Separation of “Church” and State

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I.        Basic Concepts and Historical Context

The notion of the separation of “church” and state dictates that the structures of the state or national government ought to be kept separate from those of religious institutions.  In the west, the medieval period saw monarchs who ruled by divine right and papal authorities who believed they were God’s earthly authority.  This unresolved contradiction in ultimate control of the state led to power struggles and crises of leadership that resulted in a number of important events in the development of the west.  Though many western countries including Canada have legal traditions with Judeo-Christian origins there has been a tacit agreement on the necessity of slowly disentangling legal norms from the religious framework of medieval times.

It is nonetheless important to note that a strict model of separation does not necessarily maximize religious freedom nor is it necessarily neutral.[1]  Both religiously neutral and anti-religious states can be equally oppressive to religious freedom.  Because most states regulate many parts of peoples’ lives including criminal law, family law, education, property, employment and health care, the numerous clashes between religious beliefs and state doctrine are not surprising.  “Secularist insistence…that religion be confined to the ever-diminishing ‘private sphere’…[that is, where the state does not regulate people’s lives] can marginalize religious life and reduce religious liberty.”[2]  Perhaps a minimalist state could defend religion as a private matter and retain a genuinely neutral stance with respect to religious practice, but this becomes a difficult task in societies that are heavily controlled by hundreds of laws and regulations. 

For religions such as Islam which have a strong prescriptive element to religious observance, the relegation of religion to the private realm is not easily achievable.  According to Urfan Khaliq, sharia does not recognize the separation of “church” and state that is largely advocated in the west, because it imposes on every aspect of a Muslim’s life.[3] 

II.       Considerations in the Canadian Context

The relationship between religion and state is defined in Canada in the context of the freedom of religion clause in the Charter.  Canada observes the British Monarch as its head of state, an office whose origins are undoubtedly religious in nature.[4]  Unlike the First Amendment of the United States’ Constitution, which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”,[5] Canada’s Constitution makes no explicit reference to the non-establishment of religion.  In fact, the Canadian constitution acknowledges that Canada is founded under “the supremacy of God and the rule of law.”[6]  Importantly however, no court has yet invoked the “supremacy of God” clause and in cases of conflict between “moral” rules and the rule of law the latter has prevailed.[7]

Canada provides direct financial subsidies to religious education for Roman Catholics and the Supreme Court of Canada has characterized this state funding as “a narrow acknowledgement of an historical constitutional arrangement for particular religious communities and their children that can be upheld but not extended in the context of a multicultural, multireligious Canadian society.”[8]  The Human Rights Committee found in Waldman v. Canada that the exclusive funding of Roman Catholic religious schools was a violation of article 26 of the ICCPR to equal and effective protection against discrimination.[9]  Canada has to date taken no action with respect to this decision.[10] 

Despite the historical arrangement made for minority protection of Roman Catholics at the time of confederation, clearly Canada does not formally identify with a particular religion.  However, “[t]he mere fact that a state does not have a formally established church does not necessarily mean that it has a separationist regime characterized by rigorous non-identification with religion.”[11]  Canada can be characterized as a “cooperationist” regime, wherein no official status is given to a religion, but the state cooperates with churches, but it is likely more accurately described as an accomodationist regime wherein a separation of church and state is claimed yet a posture of benevolent neutrality toward religion is maintained.[12]  An accommodationist regime would have no qualms about recognizing the importance of religion as part of local culture, accommodating religious symbols in public settings, allowing tax, dietary, holiday, Sabbath, and other kinds of exemptions.[13]  Indeed this is the case in Canada. 

Anne Saris for her part writes that there is an “implicit principle of separation between religious institutions and the state” in Canada.[14]  Justice Muldoon of the Federal Court of Canada has reiterated this point:

The paramount imperative and value, found in the Canadian Charter of Rights and Freedoms, is that Canada is a secular State...It is so because of two constitutional ingredients which are inimical, if not fatal, to a theocratic State: everyone’s fundamental freedom of conscience and religion, as stated in s. 2(a) of the Charter, and everyone’s fundamental freedom of thought, belief, opinion and expression, as stated in s. 2(b) of the Charter.[15] 

Justice Muldoon also notes:

So it is that while Canada may aptly be characterized as a secular State, yet, being declared by both Parliament and the Constitution to be founded upon principles which recognize “the supremacy of God”, it cannot be said that our public policy is entirely neutral in terms of “the advancement of religion”… The legal and constitutional recognition of God necessarily imports and involves a polity which leans in favour of belief, or faith - that is, the profession of religion among our people.[16]

Where an issue is intrinsically religious in nature Canadian courts have declined to intervene claiming that it is not appropriate for civil courts to decide questions of religious doctrine[17] because of the separation of church and state.  Canadian judges will become involved in religion where necessary to prohibit practices that are harmful, that violate civil or property rights or that infringe a person’s constitutional rights—otherwise they will “simply leave…conscience and religion quite alone.”[18]