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HTS Theological Studies

On-line version ISSN 2072-8050
Print version ISSN 0259-9422

Herv. teol. stud. vol.69 n.1 Pretoria Jan. 2013

 

ORIGINAL RESEARCH

 

Religious interfaith work in Canada and South Africa with particular focus on the drafting of a South African Charter of Religious Rights and Freedoms

 

 

Iain T. BensonI, II, III

IExtraordinary Professor of Law, Department of Constitutional Law and Philosophy of Law, Faculty of Law, University of the Free State, South Africa
IIBarrister & Solicitor/Senior Research Fellow, Chester Ronning Centre for the Study of Religion and Public Life, University of Alberta, Canada
IIIResearch Associate, The South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), Johannesburg, South Africa

Correspondence to

 

 


ABSTRACT

Constitutional protections for religious freedom (and related freedoms of conscience, belief and association and equality), once interpreted by courts and tribunals, apply in a precedential manner to future cases. They have an influence well beyond the particular community to which they first applied. For this reason, religious communities have increasingly banded together and sought to intervene or even, on occasion, to initiate legal actions asserting or defending their rights. This article reviews some of the principles around the freedom of religion as understood in South Africa and Canada to show how courts have understood the freedom of religion in its social context. In addition, interfaith cooperation is discussed with particular reference to the recent process which led to the formation of a Charter of Religious Rights and Freedoms pursuant to Section 234 of the South African Constitution (which is attached to the article). This section, a unique provision in any constitution, allows for the creation of additional Charters to give greater specificity to the general language of the Constitution itself. As such, it is an encouragement to civil society to determine what it thinks are the important provisions that should be spelled out to give guidance to politicians and the judiciary. Awide variety of religious groups participated in the creation of the Charter. The Charter does not claim to be, nor could it be, exhaustive of such concerns but demonstrates that religions can cooperate across a host of issues in education, health care, employment and other issues. The next stage - passage into law, is still in the future but the first important hurdle has been crossed with the signing of the Charter in October of 2010. The Charter might be a template for other countries though changes would be necessary to deal with local issues.


 

 

Introduction

The creation, under Section 234 of the Constitution of the Republic of South Africa, 1996 of a South African Charter of Religious Rights and Freedoms, is a development of major world importance. It will be, once passed into law, the first Charter created under this section. Its signing, at a public ceremony at the University of Johannesburg on October 21, 2010, in Johannesburg, concluded the first phase of civil society discussions, meetings, drafting and redrafting.1 Next it moves to the political phase for further discussions and it is hoped, eventual passage into law.

In the course of the preparation of the Charter, significant consultations with every major religious group (and many that would be considered minor) occurred and comments were assiduously considered by the Continuity Committee and the draft amended many times in response to these comments. The Continuity Committee was made up of some eight persons - one of whom is the writer of this article. The author has been involved in this process since near the beginning, and this article sets out some of the background to this work which remains, in some ways, a work in progress. Beyond the utility of the process to date (which has been most useful already in establishing links and discussion between widely diverse groups), should the Charter become a legal document, it will be the first such Charter created in South Africa and, because of the unique provision in the South African Constitution, likely the first of its kind anywhere. It will be possible, perhaps, to emulate it through laws in other countries but that is beyond the scope of this article.

The Charter's significance time alone will tell, but in view of the number of groups consulted, the time spent considering the language of the text and the number of areas covered, it has no equals in South African constitutional history.

 

What exactly is the proposed South African Charter of Religious Rights and Freedoms?

Before reviewing the actual document and its specific rationale, it is useful to discuss some framework issues in relation to it. In particular, it is useful to put the Charter in context by discussing what courts have said about the nature and importance of religion generally.

 

Religion is recognised as being important to societies and courts have recognised this

Religions are very significant to cultures and the courts, and at least in this country this has been recognised.

Consider this statement from a South African Constitutional Court decision of a decade ago in its well known decision dealing with the question of corporal punishment for children in schools. Interestingly this decision (but not the passage referred to here) which deals with religious faith and culture, was referred to in a recent Supreme Court of Canada decision touching on religious rights. Here is what the South African court said in Christian Education South Africa v Minister of Education:

For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community and their universe. For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth. Religious belief has the capacity to awake concepts of self-worth and human dignity which form the cornerstone of human rights. It affects the believer's view of society and founds the distinction between right and wrong. (Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC):para. 36; Currie & De Waal 2005:336-357; Farlam 2003:ch. 41; Bruker v Marcovitz 2007 3 S.C.R. 607; Boonstra & Benson 2008)

Note in this passage that it is not a particular religion that is singled out here. The importance of religion 'for millions in all walks of life' is not limited to any particular religion and it will be noted that the protection of the freedom of religion in the Bill of Rights is not limited to any particular religion. In fact, the provision that protects 'religion' also protects the rights of 'belief' and of 'culture' and this, too, is not unusual.

Section 9(3) of the Constitution expressly prohibits unfair discrimination on a wide list of grounds. It reads:

The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

In a Canadian context, one of the sections that guarantees the right of religious freedom guarantees it equally with 'conscience' and section 2(a) of the Canadian Charter of Rights and Freedoms (Part II of the Constitution Act 1982) reads 'conscience and religion'.

Nowhere can a passage be found in a Canadian Supreme Court decision, or any other with which the author is familiar, that says the sort of thing referred to above from the Christian Education decision in South Africa. Canadian judges, and those in other countries, are much less confident about the important cultural role of religion or, alternatively, do not speak in such encouraging terms about it.

 

What is wrong with simply leaving the development of principles to the courts on a case-by-case basis?

The limitations of litigation as a means of developing sound social policy and building civic society

Litigation is not ideal for airing all the relevant issues in relation to important matters. There are various reasons for this.

Firstly, in any particular piece of litigation there is a 'hit and miss' aspect to what parties are before the court as litigants either as parties or as interveners. The latter, often having the greatest expertise in an area, also typically have a limited role in terms of taking the court record as it is found and having shorter time for argument and reduced written argument lengths et cetera.

Secondly, litigation is not the best strategy for a society to use as a method for nation building or the creation of communities of respect. The nature of the litigation means that not all aspects that should be dealt with are dealt with, often for political reasons. Thus, there was very little before the court in the same-sex marriage litigation in Canada dealing with the effects of single-sex parenting on children. The Attorney General of Canada lawyers had been instructed not to say or imply anything negative at all about 'same-sex parenting' and that political direction obviously affected what materials were before the Courts.2 By way of comparison, when the matter was actually debated and analysed in France (at least up until 2013 when unexamined political considerations again kicked in) that country decided to reject 'same-sex marriage'. This shows that, sometimes to a considerable degree, political or ideological concerns can lead to restraints on what sorts of information will be put before the court and, as the French situation showed up until the unilateral changes in 2013, such studies (psychological, anthropological and so on) can have a determinative outcome at least for a certain period of time. (National Assembly [France] 2006).3

Thirdly, there is the question of cost and who can afford to appear before the courts. Many of those in a position to make important arguments can simply not afford to be there.

Quite apart from these particular limitations to litigation, there is the wider problem that if power to determine all aspects of social policy shifts to the courts there is a temptation that with difficult matters (such as abortion or same-sex marriage) politicians try to avoid what to them is politically dangerous ground by shunting such determinations to activist courts rather than exercising political leadership to make determinations in the more suitable forum of legislative chambers. This was seen very clearly in the Marriage Reference in Canada where Justice Committee hearings on a proposed piece of legislation were simply cancelled once the government decided to state a Marriage Reference to the Supreme Court of Canada doing an 'endrun' both around the normal appeal process of cases in the courts and their own Justice Committee hearings. It was not democracy's finest hour in Canada when that occurred. But there is an even larger problem than this: by encouraging the courts to be primary formers of public policy in complicated areas without proper political and civil society inputs there is a reduced scope for negotiated compromises.

As Canadian philosopher Charles Taylor (2001) has noted:

Judicial decisions are usually winner-take-all; either you win or you lose. In particular judicial decisions about rights tend to be conceived as all-or-nothing matters. The penchant to settle things judicially, further polarized by rival special-interest campaigns, effectively cuts down the possibilities of compromise. (p. 116)

 

Why interfaith religious cooperation?

Some might ask why 'interfaith' religious cooperation should exist. Here again, the short answer is that the Constitution (in common with most countries) does not focus on 'the Christian religion' but on 'religion' and what happens to one religion in terms of an interpretation of the law will have an influence and impact on other religions. So it is necessary for those concerned about the rule of the law to recognise that all religions ought to be concerned how other religions are treated by politics and the law. In terms of formal cooperation, however, it seems to me that Canada has just naturally developed greater interfaith participation in relation to court challenges given its slightly longer constitutional history and court challenges program that existed for several years (the Canadian Constitution was re-patriated from the UK in 1982).

Canada as a matter of fact has had a history of 'interfaith' coalitions making successful attempts at intervention in some of the major court cases of the day where religious rights and freedoms are at issue.

Interfaith coalitions intervened first, with regard to the status of the unborn in a case dealing with abortion (Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342, late 1980s). Then, a few years later, in relation to statutory conjugal language in statutes dealing with 'sexual orientation' in the early to mid-1990s, (Egan and Nesbit v Canada, [1995] 2 S.C.R. 513, 1995 SCC 49, 1994) similarly, as just mentioned, with respect to same-sex marriage itself (Barbeau v British Columbia (A.G.) 2003 BCCA 406, Halpern v Canada, [2003] O.J. No. 2268 and the Marriage Reference re Same-Sex Marriage [2004] 3 S.C.R. 698, 2004 SCC 79, 2002-2006) all had interfaith interventions.

Interfaith, and sometimes expressly Christian groups (such as the Evangelical Fellowship of Canada or the Canadian Conference of Catholic Bishops), have also made frequent representations to House and Senate Committees on a wide variety of constitutional and social justice issues over the years.

The expressly interfaith (as opposed to simply Christian) coalitions that emerged in the 1990s in Canada were in part responsive to the fact that the concerns about the cases were shared across religious divides (such as the 'sanctity of life' with regard to the abortion issue). In addition, Canada, like South Africa, understands itself to be multicultural and pluralistic thereby lending a particular 'fit' to any application before the court that claims to speak about multicultural and inter-religious cooperation.4

In the same-sex marriage litigation in Canada, and cases leading up to it, various groups including the Evangelical Fellowship of Canada (representing some 30 or so Protestant churches), joined together with the Canadian Conference of Catholic Bishops to form a coalition to argue that pressure on the 'traditional' definitions of marriage would eventually put pressure on the religions themselves.

This concern, first expressed in the Canadian Supreme Court decision in Egan and Nesbit, (1995) 124 DLR (4th) 609, over the inclusion of same-sex couples into the definition of 'spouse' in the federal Old Age Security Act (1952), though dismissed as spurious by counsel for the claimant couple (and interveners on their side of the case), was subsequently proven to have been relevant. It was not much more than eight years later that the challenges to the common-law recognition of marriage as only between men and women arose in three Canadian provinces - British Columbia, Ontario and Quebec.

Again, an 'interfaith coalition for Marriage and the Family' responded, retained counsel and went into court arguing that attempts to force a national definition (the Federal Constitutional power dealing with the capacity to marry) of 'marriage' could put pressure to change their own understandings about the nature of marriage.

Whether interfaith or simply Christian, these coalitions failed to maintain a heterosexual-only recognition of marriage in both countries. Still, their expressed concerns about pressure being brought to bear on religious groups and individuals if the law changed, was heard and due to the involvement of religious groups arguing that their perspective be respected, decisions of the highest courts in both countries made express mention of religious protections. With respect to this, the following decisions are relevant: the decision of the Supreme Court of Canada in Reference re Same-Sex Marriage 2004 3 S.C.R. 710 (Can) (the Marriage Reference) and the Constitutional Court of South Africa in Minister of Home Affairs & Another v Fourie & (Doctors for Life International & Others, amici curiae); Lesbian and Gay Equality Project & Others v Minister of Home Affairs 2006 1 SA 524 (CC) (Fourie).

 

Interfaith coalitions and religious concerns about same-sex marriage5

The issue of marriage has been, if not the central focus of conservative religious groups in Canada concerning public policy, at least a major focus of these groups for well over a decade. In South Africa religious or religiously motivated groups similarly sought and obtained intervener standing in the Fourie-litigation and made representations before the Law Reform Commission.

Same-sex marriage, like the issue of abortion, has often sparked the formation of religious groups appearing as interveners before the courts in various countries. In many Canadian cases, a wide variety of religious and 'interfaith' interveners appeared and made arguments about the place and importance of religion in Canadian society. These arguments attempted to explain why issues such as the status of the unborn or same-sex marriage concerned religious groups. For example, as discussed above, in litigations involving same-sex marriage,6 the 'Interfaith Coalition on Marriage', composed of the national associations of Hindus, Sikhs, Muslims, Evangelical Protestants and Catholics, applied for and received intervener status in the three provinces where these cases were originally launched.7

On July 16, 2003, pursuant to Section 53 of the Supreme Court Act (RSC ch. S 26 § 53 1985 [Can]) the Parliament submitted three questions to the Supreme Court of Canada concerning the constitutionality of a proposed Civil Marriage Act (Reference re Same-Sex Marriage 2004 3 S.C.R. 698 [Can]). The third question, dealing expressly with the issue of religion, asked the following: 'Does the Freedom of Religion guaranteed by Section 2(a) of the Charter protect religious officials from being compelled to perform same-sex marriages contrary to their religious beliefs?' (p. 721). The Supreme Court's decision in Reference re Same-Sex Marriage addressed these constitutionality concerns and demonstrated the Court's view on how religion coincides with sexual orientation rights in Canada. The decision by the Court was unanimous. The Justices' submitted only one set of reasons for their holding, and no individual Justice was credited as the author of the judgement (p. 705). The decision ignored the argument that 'marriage' exists prior to the state and to law, and does not depend upon (and never had in Canada) a 'legal definition'. The court quoted the leading English common-law case of Hyde v Hyde (1866 1 LRP & D 130 [UK]) and, in particular a passage referring to a Christian basis for marriage in justifying its position:

What, then, is the nature of this institution as understood in Christendom? Its incidents may vary in different countries, but what are its essential elements and invariable features? If it be of common acceptance and existence, it must needs (however varied in different countries in its minor incidents) have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others. (Reference re Same-Sex Marriage 2004 3 S.C.R. 710 (Can) - quoting Hyde v Hyde 1866 1 LRP & D 133 [UK])

Of this passage the Supreme Court opined that:

The reference to 'Christendom' is telling. Hyde spoke to a society of shared social values where marriage and religion were thought to be inseparable. This is no longer the case. Canada is a pluralistic society. Marriage, from the perspective of the state, is a civil institution. (p. 710)

The Court held that the first question ('Is the proposed Act within the Exclusive Legislative Authority of the Parliament of Canada?' [pp. 708, 717-718]), was relevant to Section 2 of the proposed Act, which stated, 'nothing in this Act affects the freedom of officials or religious groups to refuse to perform marriages that are not in accordance with their religious beliefs' (p. 716).