What is Respect ?

27 Sep

Joshua Rozenberg contributes a brief yet thoughtful piece to Standpoint on Respecting Religion, raising a number of issues. His third set of comments, about Ladele Eweida et al v UK (2012) at the ECHR, prompts some further thoughts, as does a short piece by Prof Diana Ginn from Dalhousie Uni on SSRN about the Canadian Supreme Court’s approach to the question of respecting / freedom of religion.

(We note at once that the two ideas seem treated as equivalent, which in fact the ECHR tends to dispute – freedom of religion is there treated as an internal-intellectual but absolute matter, and its expression is a bolt-on extra that can be treated less sympathetically – see Lord Bingham’s customarily crisp summary at para 20 of his Denbigh High School judgement)

Prof Ginn is comparing two broad approaches to the variety of religious expressions that Courts encounter, represented by two Canadian Supreme Court cases from the last decade.

In one case, Syndicat Northcrest v Amselem [2004] 2 SCR 551 (SCC), the Court seems to Prof Ginn to have taken as given the Appellants’ desire to express their faith by building succahs (tabernacles) on their balconies  at the time of the relevant feast: whether or not all or most or many Jews, or all or most or many Orthodox Jews, did so was not treated as relevant. Instead the majority of the Court moved on to weigh against that the terms of the local byelaws (preventing decorations etc on balconies), and conclude that whilst the byelaws were rational in the abstract (I paraphrase and summarise) their application so as to prevent temporary modest and aesthetically appropriate succahs would be unconstitutional.

In the more recent case S.L. v. Commission Scolaire des Chênes [2012] SCC 7 (SCC), a different approach seemed to Prof Ginn to be taken. Although the parents of the children’s Catholic faith was accepted as sincere – one may wonder how the Court could do otherwise – it was held that they needed to demonstrate objectively that that to which they objected did interfere with their Catholic (Christian) faith. They failed to do so, and so lost the case. The majority of the Court appeared to Prof Ginn to regard any attempt to do so in future (ie with other evidence) as hopeless.

Are the cases different in approach ? Difficulties in deciding this will include difficulties about the facts. In Amselem, the clash was obvious enough, although perhaps a different Court might have said ‘They’ve offered you a communal succah – be reasonable …’ and been more dismissive. Here, the assertion that teaching children about other religions would undermine their Catholic faith was evidently regarded as dubious – although it may be that the parents’ real objection was how they thought that the other faiths would be presented: not just ‘how others believe,’ but ‘how others believe and anyone who thinks their beliefs are any better than anyone else’s (eg your parents) is a bigot‘ – thus the comment about relativism?

Maybe.

I wonder whether one of these approaches might yet provide a solution for the ECHR in Ladele, Eweida, etc ? Perhaps not very different from our previous suggestion – but useful and recent authority from a significant (at least to common lawyers) constitutional court ? The question would then be – which approach and whose burden ? If it’s for BA to show the cross is a real problem (Amselem) – BA lose, it’s no ‘worse’ than a succah. If it’s for Ms Eweida to show the cross is really necessary (SL) – she loses, because she can’t show objectively, etc.

Discuss …

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