Ben Berger’s book Law’s Religion: Religious Difference and the Claims of Constitutionalism is a work of great insight. I found myself learning from its pages as I taught Canadian Constitutional Law to first year law students this past term. Like most first year Constitutional Law classes, this course helps students understand Canadian federalism, Aboriginal Rights, and the Canadian Charter of Rights and Freedoms. The book was particularly valuable as we discussed the cases dealing with freedom of religion and conscience under section 2(b) of the Charter. This clause, in a section labeled Fundamental Freedoms, reads:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
Professor Berger does an excellent job of reviewing the major Supreme Court decisions, which give meaning to this provision. He scrutinizes the orthodox canon of cases with a constructively critical eye. Students benefited from the deeper understanding Professor Berger brings to the field as found in the book.
The aim of Law’s Religion is not merely to encourage better doctrinal or philosophical outcomes in the cases examined. Professor Berger wants readers to see an underlying feature of the Court’s jurisprudence: how law often constructs religion in its own image. He persuasively demonstrates how religious claims which do not share the legal system’s own cultural commitments are more difficult to protect under section 2(b) of the Charter.
Professor Berger stresses that law and religion are both cultural expressions. He shows how judges, lawyers and law students have difficulty recognizing law as a cultural creation when making legal arguments. This is because law is conceived of as standing above other cultural expressions; it is regarded as mediating and arbitrating among other cultural systems in a neutral way. The Canadian legal system seems to shun self-reflexive engagement on this very point. Yet, through a detailed review of the cases, Professor Berger demonstrates that legal institutions are neither acultural nor neutral. They reproduce distinctive ways of reasoning which protects a particular world-view.
In making these observations Professor Berger shows how law and religion are competing normative systems. The nation-state is given a monopoly on exercise of power in comparison with religious appeals to supremacy and authority. In my view the maintenance of this monopoly requires constitutional faith. Law can only claim preeminence if its practitioners believe the state’s legal decisions are supreme and consequently act upon that belief. Doubt concerning law’s own subjective claims pulls back the curtain and reveals value-systems expressed through a select group of administrators. The fact that such people themselves have particular cultural views, shaped by law school’s seminaries, is not brought into question. The practice of law in an appellate court context requires an insider’s perspective. Law has difficultly bringing the state’s own claims of authority over religion into question with any rigor or regularity. A suppression of competing cultural faiths appears to be necessary to sustain law’s religion.
Nevertheless, it seems that law does preferentially recognizes certain types of religion. Religious claims that stress individual responsibility, private rights, and self-directed choice are favored. They are given higher status than claims, which focus on the collective, public and obligatory aspects of religion. As Professor Berger shows this framework is key to understanding section 2(b) jurisprudence. Section 2 (b) of the Charter supports the individual over collective, private over the public engagement, and choice over obligation within the jurisprudence. This insight is a key part of the text for me. It is the one that the students found most helpful in analyzing the freedom of religion and conscience decisions in their first year constitutional law class.
Understanding that law favors religion which is in its own image, and advances individual, private, choice, gives students theoretical framework to critique the cases. For instance, the final exam this year asked students to examine a hypothetical fact scenario which was very similar to the Ktunaxa Spirit Bear case which has been granted leave to appeal before the Supreme Court of Canada.1 This case examines whether freedom of religions claims under section 2(b) need to be considered on their own terms when government decision-makers have already analyzed the protection of Aboriginal spiritual practices under section 35(1) of Canada’s constitution (s. 35(1) recognizes and affirms Aboriginal and treaty rights). The lower courts wrote that governments not need consider section 2(b) freedom of religion claims if section 35(1) was reviewed to determine whether government decisions might infringe Aboriginal rights. Furthermore, the lower courts in British Columbia opined that section 2(b) claims made by Indigenous peoples could result in “restraining and restricting the behavior of others who do not share that belief in the name of preserving subjective religious meaning.”2 The B.C. Court of Appeal found that the Spirit Bear’s presence in Ktunaxa belief could prevent the construction of a ski resort and thus compel others to act in accordance with Ktunaxa spiritual world views.3
In predicting how the Supreme Court might rule, the students generally argued that the Ktunaxa will likely lose their appeal because their case does not replicate law’s view of religion. The Ktunaxa claim is collective, public, and obliges others to act or refrain from acting. In making these observations students applied the main insights found in Professor Berger’s book. While the Supreme Court may ultimately come to the opposite conclusion, the students more fully saw that law is itself a cultural system as a result of Professor Berger’s book. Law is not neutral. Professor Berger’s work is a welcome addition to the field.
Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 352 (CanLII); Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2014 BCSC 568.↩
Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 352 para. 73.↩
In result this case reminds me of Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988).↩