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Law and Religious Pluralism in Canada.docx

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York University
Social Science
SOSC 3391
Tanja Juric

Law and Religious Pluralism in Canada CH 1 – View from the Succah: Religion and Neighborly Relations  Reasonable vs. accepted o Reasonable, universally accepted, without emotion (i.e., objective) o We act as though reason is universally understood, and the Truth o But, reason itself is a construct, it’s influenced by society and culture o Reason needing justification, whereas accepted is what the majority sees most truth (i.e., Texas case)  Suffering – intense physiological/emotional pain  Amselem Case  ‘Voisinage’  Nuisance law – formalizes ‘voisinage’ and governs that relationship to ensure that their living space is being infringed upon  Eruv/Succah CH 2 – Associational Rights, Religion, and the Charter  Emphasis on group rights vs. individual rights 1. Why/how does constitutional rights in liberal democracies give rise to conflicting group claims 2. Define group rights  Specific group, seeking rights (i.e., homosexual groups)  Religion is considered a group right, it’s assumed that we’re born into it  an individual cannot join an association (i.e., you can’t be Aboriginal) 3. Define association rights  Ability to experience group affiliation – by simply gathering together in quiet meeting places or pursuing their objectives in the public sphere, ability to act collectively - in ways that individuals alone cannot act  Association rights are chosen by the individual  Association rights are more appropriate than group rights to protect religious groups because group rights lock identity in place, whereas association rights preserves hybridity  Also includes the freedom to NOT associate with a group (i.e., for political reasons, someone might choose to not participate in a group) 4. What is 2(d) of the charter? What does it say? Why is it significant?  Dunmore case  2(d) usually spoken in a labor context 5. Why might associational rights be a better way to negotiate conflicting group rights?  With association, it’s pluralistic by nature, not rooted in an eternal sense of identity, accommodates a greater variety of difference  Religious freedom/rights accommodates greater religious diversity in society because of this ability to constantly create new groups for the individual 6. Define/explain pluralist democracy  More than 1 level of government (multiple powers, i.e., federal, provincial and municipal powers)  Has the ability to affect more change, and it’s largely because it’s built on negotiation and consensus – it’s not a single government, but rather different powers coming together  Democracy representing the groups in society 7. Define/explain interest group pluralism 1  These groups come together as citizen groups to represent their needs (i.e., lobbying government to have their needs heard)  They’re already in the position to have their voices and needs heard, but not involved in the government 8. What is the difference between 6 & 7?  6 is More powerful, part of the legal sphere, whereas 7 is just people coming together 9. What is a monist conception of the state?  Monism – refers to a single glob of a body, single explanation for everything  A term applied to religious world views (i.e., God created everything)  The state accounts for everything – single, unified, monolithic, all-encompassing  In Canada, we have a pluralist conception of the state 10. What are the 3 communities protected by the equality clause a) The universal community of human beings – very broad, a human being b) Political communities of Canada c) Identity communities – associational communities/rights (i.e., who you choose to associate with)  There’s a hierarchy involved here 11.What is the benefit of association rights view of group-differentiated rights – do you agree, why or why not?  You can leave association groups whenever you want  The charter is for individual rights, which is why there are less group rights CH 4 – The Canadian Conception of Equal Religious Citizenship 1. Define/explain religious rights  The right to practice, partake in any religion, or the choice to not believe in any religion  Protection by the law 2. What is s. 2 (a) of the Charter?  Freedom of religion – freedom to choose what religion you want to affiliate with, it’s not enforced – we have this freedom so long as it doesn’t infringe on other’s equality rights 3. How is Canadian law more robust regarding equal religious citizenship, and what are the two ways discussed? a) Substantive religious equality vs. neutrality – accommodating religious differences and taking them into consideration. o Religious persons should not be forced to choose between their faith or full participation in Canadian society b) Not confined to a private/religious sphere – religion cant be left alone at home when you go to work. In contrast, other countries are interested in maintaining a secular state, thus things like head scarves are banned from the public sphere 4. Describe O’Malley v. Simpson-Sears? What was the court’s response?  Mrs. O’Malley was a Seventh Day Adventist who practiced the Sabbath, and Simpson-Sears was going to fire her for not being able to work on Saturday, which was a day that was most busiest for Simpson Sears  The court found the company violated her rights because they didn’t accommodate her – and her request wasn’t causing undue harm for the company (i.e., they could have had someone else work on Saturday) 5. What does it mean to say, “religious equality rights are not absolute”?  Religious rights don’t extend past violating other people’s rights; whereas other rights are absolute in the sense that if they’re found to be unconstitutional they can be revoked  There are limitations, given that we live in a multicultural soceity 2 6. Describe Big M (1985) and Edwards Books (1986)  Big M was a store opened for business on a Sunday which was contrary to the Lords Day Act – the court struck down the act and allowed stores to be open because of secularism in Canadian society  A state should not impose certain laws on individuals, i.e., not everyone is Christian  Edwards Books 7. What are the key points in Justice Iacobucci’s response to Amselem?  “Respect and tolerance of the rights and practices of religious minorities is one of the hallmarks of an enlightened democracy”  Respondents argued that the succahs were a “visual blight” and inconvenient” – aesthetic interests should not outweigh religious freedom  Canada is a country that attempts to maximize human rights – openness and recognition of the religious rights of others is crucial 8. Is religion treated like the new gay? Can/ought it be?  Religion is in danger of becoming the new gay – this is the view religious beliefs and practices are best kept private, and not “flaunted” in public  In a global context, with growing concerns of radical versions of politicized Islam, religious expression and practice are readily cast in political discourse as a threat to equality and public security  Religion is not purely a private matter – it may be manifested in public view, and may require accommodation from others  Democratic state vs. theocratic state o Theocracy – religion + politics are fused, god-centered, more totalitarian – the individual is forced to practice the views of what the state is enforcing, communitarian – religious community is being governed o Democratic – more secular, separation of Church and State, liberal – meaning that the individual is able to decide what religion they want to practice/be a part of 9. What are s. 2(a), s. 15, s. 27, and s. 29? How might they be seen as paradoxical?  In the text of the Charter, adherence to religious belief systems is seen as a positive thing, and are considered central to a person’s identity  As such, the state ought to respect the autonomy of the individual’s conscience  2 (a) – freedom of conscience and religion  s. 15 – guaranteed equality  s. 27 – 27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians  s. 29 – Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools. 10.“The supremacy of God” is written in the preamble of the Charter. Why? How does it function?  We’re supposed to be a secular nation, so why is it included?  Treated by the courts as “an embarrassment to be ignored”  It may come to be seen as expressing a kind of secular humility regarding religion  The fact that there is this clause in the Charter – which is considered the “new secular religion”, there is this recognition that there are multiple truths, and worldviews  It’s vague enough to not be offensive – it supports religious diversity and religious identity; but it still asserts a religious identity – what about religious conscience (i.e., those who don’t believe in God at all)  Does this assume belief in God? 11. Describe the Multani case. How/why does it differ from Pandori? 3  Multani case – 12 year old Sikh child playing on the playground, and his kirpan fell to the ground – the school found that it was considered a weapon  The court found it to be a weapon as well, in that it could cause h
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