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Lecture 3

RELIGST 2N03 Lecture 3: Relgion and Liberal Democracy


Department
Religious Studies
Course Code
RELIGST 2N03
Professor
Tristan Carter
Lecture
3

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of 4
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RELIGION AND LIBERAL DEMOCRACY
17 MAY 2016
Agenda
The Dieudonne survey (10 minutes) 7:00 p.m.
o Shocks, surprises?
The quiz (10 minutes) 7:10 p.m.
Administrative matters (esp. PebblePad) (5 minutes) 7:20 p.m.
Religion in the News: The Slingshot
o http://religionnews.com
o http://www.cbc.ca/news/canada/montreal/justin-trudeau-transgender-rights-
legislation-2016-1.3584419
The “triumph of the dead” democratic constitutionalism and religion (40 minutes)
o Articles by Lusztig and Smits and the issues they raise with particular reference to
religion
The Triumph of the Dead
Constitutionalism a method for avoiding akrasia from the Greek for “without order/command”
Precommitment: first-order values upon which a constitution is built:
o E.g. Freedom of speech, freedom to worship, freedom to congregate
Lusztig uses two examples to demonstrate that constitutional precommitment in Canada is
creeping:
o Abortion
o Free speech
Creeping Precommitment in Canada
Liberty and obligation must be balanced
o “Precommitment secures first-order values against weakness of the will; it
represents, in other words, a defense against the predicted dominance of less
cherished values over more cherished ones” (Lusztig, 695)
Abortion in Canada problematic because in Lusztig’s view the debate still needs to be had.
o Canada unique with regard to abortion laws
o R. vs. Morgentaler , 1988 (see, Lusztig, fn. 6, p. 707)
Hate speech laws problematic because they prevent the debate from happening.
o R. vs. Keegstra, 1990: “In the first charter challenge to s.319(2) of the Criminal Code,
the Supreme Court in R. v. Keegstra (1990) ruled 4-3 that the hate speech
prohibition contained in s.319(2) trumps the constitutional right to freedom of
expression contained in s.2(b) of the Charter of Rights and Freedoms” (Lusztig, 701)
o Lusztig: “It is curious to suggest that there are any underlying values, other than
freedom, connected tenuously or otherwise with freedom of expression. It is possible
to articulate competing values, such as public safety, or demonstrable group-based
harm, that comes from permitting unfettered free speech. But to imply, as the next
sentence in the decision does, that underlying the constitutional right to freedom of
expression are values such as the imperative to seek the truth or promote individual
self- development, smacks of the very distinction between good (that is, state-
sanctioned) speech and bad political speech that the Charter of Rights and
Freedoms seeks to guard against. Indeed, rather than constituting a limitation that
can be demonstrably justified in a free and democratic society, the wording suggests
a limitation inconsistent with a free soci- ety. The idea that limiting citizens' rights to
express ideas, even foolish and offensive ones, somehow contributes to the
"fostering of a vibrant democracy where the participation of all individuals is accepted
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and encouraged," is particularly unconvincing” (Lusztig, 701-2).
Hate Speech in the Canadian Criminal Code
Public incitement of hatred: 319 (1) Every one who, by communicating statements in any
public place, incites hatred against any identifiable group where such incitement is likely to
lead to a breach of the peace is guilty of an indictable offence and is liable to imprisonment
for a term not exceeding two years; or an offence punishable on summary conviction.
Wilful promotion of hatred
(2) Every one who, by communicating statements, other than
in private conversation, wilfully promotes hatred against any identifiable group is guilty of
an indictable offence and is liable to imprisonment for a term not exceeding two years; or
an offence punishable on summary conviction.
Defences
(3) No person shall be convicted of an offence under subsection (2) if he
establishes that the statements communicated were true;
if, in good faith, the person expressed or attempted to establish by an argument an opinion
on a religious subject or an opinion based on a belief in a religious text;
if the statements were relevant to any subject of public interest, the discussion of which was
for the public benefit, and if on reasonable grounds he believed them to be true; or
if, in good faith, he intended to point out, for the purpose of removal, matters producing or
tending to produce feelings of hatred toward an identifiable group in Canada.
http://laws-lois.justice.gc.ca/eng/acts/C-46/section-319.html
Canadian Charter of Rights and Freedoms
PART I
CANADIAN CHARTER OF RIGHTS AND FREEDOMS
Whereas Canada is founded upon principles that recognize the supremacy of God and the rule
of law:
Guarantee of Rights and Freedoms
Rights and freedoms in Canada
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms
set out in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.
Fundamental Freedoms
Everyone has the following fundamental freedoms:
freedom of conscience and religion;
freedom of thought, belief, opinion and expression, including freedom of the press and other
media of communication;
freedom of peaceful assembly; and
freedom of association.
http://laws-lois.justice.gc.ca/eng/const/page-15.html (Charter of Rights and Freedoms)
Is Lusztig Correct?
Excerpt from the Supreme Court of Canada’s judgment in the Keegstra case:
The effects of s. 319(2) [prohibition on hate speech in the Canadian criminal code] are not of
such a deleterious nature as to outweigh any advantage gleaned from the limitation of s. 2(b)
[Charter of Rights’ guarantee of freedom of expression]. The expressive activity at which s.
319(2) is aimed constitutes a special category, a category only tenuously connected with the
values underlying the guarantee of freedom of expression. Hate propaganda contributes little to
the aspirations of Canadians or Canada in either the quest for truth, the promotion of individual
self- development or the protection and fostering of a vibrant democracy where the participation
of all individuals is accepted and encouraged. Moreover, the narrowly drawn terms of s. 319(2)
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and its defences prevent the prohibition of expression lying outside of this narrow category.
Consequently, the suppression of hate propaganda represents an impairment of the individual's
freedom of expression which is not of a most serious nature. (R. v. Keegstra, 1990)
Human Rights Tribunals in Canada
Lusztig’s real concern seems to be with Human Rights tribunals
Here he sees the real threat of creeping precommitment:
o The federal human rights tribunal (provincial tribunals are patterned on the federal
model) is a creature of the 1985 Canadian Human Rights Act. Section 13 (a) of the
act prohibits communication that is likely to expose a person or persons to hatred or
contempt by reason of the fact that that person or those persons are identifiable on
the basis of a prohibited ground of discrimination. The penalties for conviction are not
inconsiderable. In addition to the issuance of a cease-and-desist order, those
convicted face a maximum fine of $10,000 and are liable for special compensation to
the victims to a maximum of an additional $20,000. Win, lose or draw, defendants
are responsible for their own legal costs; complainants' tabs are picked up by the
state. Somewhat predictably given the expansive capacity of government, the scope
and intrusiveness of the federal human rights tribunal has broadened. In the eight
cases heard between 1979 and 2002, the tribunal imposed no penalties beyond the
order to cease and desist. By contrast, since that time, ten of the 1 1 cases heard
have imposed fines in addition to the order to cease and desist, and of those, four
have resulted in special compensation to the complainant.
Individual Freedom and Community
Katherine Smits on Liberalism’s “Identity problem”
Liberalism not value-free; minority groups necessarily disadvantaged
Communities of choice/communities of fate
Many liberal theorists see national groups as the defining aspect of one’s identity; ignore
sub-national or other cultural groupings. Problematic for Smits:
“In contemporary political discourse, the significant culture-producing categories also
include race, ethnicity, gender, sexuality and religion, and the association between
personal identity and membership in sub-national groups formed along these axes
informs the claims of identity politics. There is a tendency to talk about some such
groups as though they were natural or biological-particularly in the case of race. Yet, as
Anthony Appiah has pointed out, these groups are based less upon scientifically
verifiable distinctions than upon prevailing ideas about the meaning of biological
distinctions. The division between the sexes has a biological basis (if one occasionally
contested at the margins) but "men" and "women" are categories imbued with social as
well as biological meanings. Some social groups-notably classes--are the product of
economic structures. Sometimes the process of marking is tautological: groups are
identified essentially to rationalize those who share particular social practices--and then
further practices are presumed to follow from group membership. The important point to
note here is that such groups have no neces- sary existence before they are identified
as such; marking a group brings it into exis- tence, and allows individuals to identify with
it” (354).
Plurality of Subjectivity
Not just national background that shapes individual identity
o “Autonomous agency involves as a first step the coming to self- knowledge of the
complex social, as well as personal aspects of identity-a process similar to that
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