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Legal community determined to get rid of religious accommodation

There is a crisis in the law concerning the accommodation of religious practice. The legal profession is demanding that the law be changed because it does not want religious institutions to have the 'right to discriminate'. The profession holds that evolving societal sexual norms can render lawful religious practice discriminatory. Up to now a religious institution, such as a university, had full sway in determining admittance to its programmes. That is now being challenged. What does this mean for the position of religion in the law? And, will it remain that way in the future? Canadian PhD candidate Barry W. Bussey will defend his dissertation on 27 June.

In many Western liberal democracies, religion has a special status, Bussey notes. 'For example, the law allows a religious adherent to leave work for a holy day (though not for a football match), or to wear a turban instead of a motorcycle helmet. Other practices may also be exempt from otherwise applicable legislation. Why is it that religion has been so privileged? It was the 'why' that I wanted to find an answer to'.

During his research on this religious accommodation, Bussey, who works as a lawyer in the religious charitable sector, found that the current accommodation of religion in the law is being robustly challenged – and even disregarded – by government actors, legal academics, and the media. The researcher gives the example of the Trinity Western University case in Canada. This private, evangelical institution proposed opening a law school, but three provincial law societies refused accreditation because they deemed the admission requirements (which defined marriage as the union of one man and one woman) discriminatory against the LGBTQ community. In 2018, the Supreme Court of Canada ruled in favour of the law societies.

Religious institutions that maintain traditional beliefs and practices are, according to Bussey, increasingly being characterized as discriminatory. 'However, the extent to which this criticism is being accepted by the courts and the legal community is new. It's a view that does not accept religious accommodation in the law. The law is seen as not keeping up with the times. TWU is now faced with the government demand that it cease lawful religious practice in exchange for law school accreditation. Should religious institutions be subject to government scorn for having lawful religious practices on fundamental life issues, such as marriage, abortion, and end-of-life matters, that the government finds 'degrading and disrespectful'?'

Legal revolution

In short: religious accommodation is under fire. To help analyse this, Bussey used the work of American philosopher of science Thomas Kuhn (1922-1996) as a theoretical basis. 'Kuhn looked into the anatomy of scientific revolutions. He found that scientists were committed to their paradigms – their basic understanding of scientific truths. When researchers found anomalies that did not fit the paradigm it created a crisis – was the original paradigm true? Eventually, a scientist realised the current paradigm did not fit the scientific discoveries; there was a new and better paradigm that explained the inconsistent findings.'

The same goes for the legal community, Bussey says. 'The current paradigm is that religious practices are to be protected as a matter of history and political philosophy and the practical realities of trying to control a religious populace that is intent on carrying out its religious practices despite the threats from the state. That paradigm no longer works for many because times have changed – sexual norms are more permissive. Religious institutions that do not accommodate these changing societal norms are seen as the problem. A private religious institution’s claim for religious accommodation is seen, by the legal community, as seeking a 'right to discriminate'.'

The changing view on religious accommodation is not exclusive to Canada. 'It has become a widespread phenomenon in Western liberal democracies. The accommodation of religion in the law presumed that religion was a net public good for society. That presumption is no longer the case in Great Britain, for example, and is being challenged by many academics as outlined in my paper. Even though the law grants religious groups accommodation, the legal community has rejected, or is in the process of rejecting, that law as unjust. This is a complete break with the way in which liberal democracies have operated in the past.'

In the future

What does this legal revolution mean for the future of the position of religion in the law? 'I am of the view that any wholesale rejection of the legal accommodation of religious practice, as was seen in the TWU law school case, is bound to lead to a number of other issues. For example, the government grants all kinds of approvals to religious organizations. In Canada, the 'advancement of religion' is considered a charitable object and organizations that are engaged in advancing religion, such as churches, are registered charities, which allows significant tax breaks to the organization and to the donors. The legal revolution I am talking about suggests that the government should not give registered charitable status to religions that discriminate – as they so define it – otherwise the government is condoning the discrimination. It is not known what that will mean for those charities to lose the tax exemptions. Will they close? Or, will they survive because they have committed donors? Even if they do survive, what is the message being conveyed to such religious organizations?'

Many of the issues being challenged are often ones on which reasonable people may disagree, Bussey emphasizes. 'Are we to conclude that it is unreasonable for a religious community to hold the view that marriage ought to be only between one man and one woman? Is there no tolerance for such organizations? Or, what about views on abortion or medical assistance in dying? Is it unreasonable for religious communities to be pro-life? Are we now at a point where there is only one correct view on these matters and the state is authorized to use whatever regulatory powers it has at its disposal to punish those religious groups who do not agree?' According to Bussey, failure to make room for differences of opinion and practice on these issues does not bode well for the long-term stability of western democracies. 'If we have learned anything from history, it is that freedom of conscience lies at the very heart of all freedom.'

Text: Floris van den Driesche
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