I have been thinking about writing on freedom of religion for
awhile but have not been able to develop a framework for my thoughts
so I decided to just set them out randomly and see if they organize
themselves.
Any
rational person today considering the matter without knowledge or
consideration of the history behind it, would wonder why the freedom
to believe the fairy tales or myths of your choice should be a
protected right while the broader concepts of freedom of conscience,
thought, belief, opinion and expression would cover it.
However
the history behind freedom
of religion goes back to when
religion was inextricably intertwined with culture and was part of
who people were. Freedom of religion was, and still is for many, the
freedom to be who they are.
But
that is not why we entrench the concept of freedom of religion. It is
because for all of history people have been discriminated against and
persecuted for their religion, persecuted to the point of genocide.
Which
is why it has been entrenched in so many constitutions and
declarations of human
rights..
Universal
Declaration of Human Rights
Article 2
Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.
Article 18
Everyone has the right to freedom of thought, conscience and
religion; this right includes freedom to change his religion
or belief, and freedom, either alone or in community with others and
in public or private, to manifest his religion or belief in
teaching, practice, worship and observance.
Charter
of Fundamental Rights of the European Union
Article 10
Freedom of thought, conscience and religion
1. Everyone has the right to
freedom of thought, conscience and religion.
This right includes freedom to change religion or
belief and freedom, either alone or in community with others and in
public or in private, to manifest religion or
belief, in worship, teaching, practice and observance.
Article 21
Non-discrimination
1. Any discrimination based
on any ground such as sex, race, colour, ethnic or social origin,
genetic features, language, religion or
belief, political or any other opinion, membership of a national
minority, property, birth, disability, age or sexual orientation
shall be prohibited.
Canadian
Charter of Rights and Freedoms
Rights and freedoms in Canada
1 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
2 Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Equality Rights
Equality before and under law and equal protection and benefit of law
15 (1) Every individual is equal before and under the law and
has the right to the equal protection and equal benefit of the law
without discrimination and, in particular, without discrimination
based on race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability.
Affirmative action programs
(2) Subsection (1) does not preclude any law, program or
activity that has as its object the amelioration of conditions of
disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
United
States Constitution - First Amendment
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
The first thing to
be said about freedom of religion is that it is not a right that
belongs to religious institutions but one that belongs to believers,
a right to believe in and practice the religion of their choice
without discrimination or persecution.
The second thing to
be said is that that right is not absolute, otherwise believers could
be sacrificing virgins or stoning non-believers to death in the name
of freedom of religion. In Canada that restriction is set out in
clause one of The Charter of Rights which states that the protected
rights are subject to “reasonable
limits prescribed by law as can be demonstrably justified in a free
and democratic society”.
This however does not mean governments can pass laws whose only
purpose is to discriminate against or persecute people based on their
religion.
This
is why Quebec’s law (Act
respecting the laicity of the State)
requiring that
public servants or others
serving the public like teachers must hide their religious
affiliation while working required
the use of the notwithstanding clause in the Charter of Rights.
The notwithstanding clause essentially says if a government finds the
human rights included in the Charter of Rights inconvenient it can
ignore them. It is essentially a get out of human rights free card.
It is a provision that should never be included in a Charter of
Rights and is a stain on Canada’s reputation as an advocate of
human rights.
The
notwithstanding clause was also used
by Alberta to persecute transgender youth.
Section
33 – Notwithstanding clause
Provision
33. (1) Parliament or the legislature of a province may expressly
declare in an Act of Parliament or of the legislature, as the case
may be, that the Act or a provision thereof shall operate
notwithstanding a provision included in section 2 or sections 7 to 15
of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration
made under this section is in effect shall have such operation as it
would have but for the provision of this Charter referred to in the
declaration.
(3) A declaration made under subsection (1) shall cease to have
effect five years after it comes into force or on such earlier date
as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a
declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under
subsection (4).
Also
we need to recognize that some religious privileges are not based on
freedom of religion. These include the treatment of confessions under
the seal
of confession as privileged
communications and the practice of allowing churches to provide
sanctuary
to those wanted by the
authorities, which are based on common law traditions.
Others such as the tax free status of religious institutions are
simply government polices that can be changed.
In
Canada the House
of Commons Standing Committee on Finance in December 2024 recommended
that Canada “amend the Income Tax Act to provide a
definition of a charity which would remove the privileged status of
‘advancement of religion’ as a charitable purpose.” However
religious institutions could simply establish charitable foundations
to do actual charitable work, but purely religious activities and
proselytizing or attempting to convert people would not be considered
a charitable purpose.
There is yet another
religious privilege that is both unwritten and unspoken but just
seems to be and that is the exemption of religious institutions from
employment standards and gender equality laws.
Perhaps
one of the most controversial aspects of freedom of religion are
religious institutions claims that they should be exempt from hate
speech legislation because
religious texts or beliefs should not be considered hate speech. I
would argue that using god as a defence for hate is indefensible.
The Canadian
Criminal Code previously included an exemption for hate speech, "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."
Bill
C-9 which removed
that exemption has passed
the House of Commons and Senate and received Royal Assent on
Thursday, June 18, 2026. (Globe
and Mail article)
This may seem strange to Americans where freedom of speech is almost
absolute except where money is concerned. While the United States
does not have hate speech laws is does have libel and slander laws
where people or corporations can sue for financial damages if they
can show that someone’s free speech has affected them financially.
Freedom of religion must also include freedom from religion. No one
should be forced to join a religion or participate in religious
activities. Preferably, there should not be a state religion.
We
cannot talk about freedom of religion and
religious persecution without
considering the current genocide
taking place today in Gaza and
the recent (and not so
recent) attempts to redefine
antisemitism to include any criticism of the Israeli government and
in particular its genocide of the Palestinian people. This has
even resulted in the
designation
of an anti-genocide organization as a terrorist organization.
This, however, fits
right in with declaring
idea idea being anti-fascist as a terrorist organization. The
world has truly turned upside down.
In conclusion, the bottom line on freedom of religion is that is is
important to protect against religious discrimination and persecution
but it is not a licence to violate the law, society’s values, or
others’ human rights in the name of religion or god.
