Tag Archives: freedom of religion

Should Religious Studies Scholars Provide Expert Opinions in Court Cases?

05 Monday May 2014

Posted by in Critical Religion, University of Ottawa

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When contention arises in the courtroom, it is a common practice in many countries to call upon experts to help validate or discredit arguments, made either by the defendant or by the plaintiff. These experts, often professionals or scholars, can use the specialised knowledge gained in their field to clarify any points that may otherwise be misunderstood by the general public or the jury. In the case of conflicts dealing with religious freedom, a priest or other religious official may be invited to offer his or her expertise, but it is often the scholar of religious studies that is called upon. It is he or she that is responsible for provide a balanced, objective viewpoint on a variety of religious practices and beliefs, and to decide whether or not the practices or beliefs in question can be said to be “sincerely religious”.

While it is fairly standard to use scholars’ statements as expert opinions in court, I would like to suggest that this practice produces as many issues as it does advantages. Religious studies scholars can provide an unbiased viewpoint on matters relating to religion, but in doing so they are also participating in a system that reinforces the existence of “religion” as a sui generis category. They are made to speak about “religion” in an authoritative way, which in turn leads the general public to believe that “religion” is a benign descriptive label applied logically to groups of the same genus and not, as critical religionists argue, a historically and culturally specific term with political connotations and a term whose definition is still contested. However, the testimony of scholars of religious studies still serves a distinct and equalising purpose, and prevents the jury from being swayed by inaccurate stereotypes and unhelpful assumptions about particular traditions.

The issues that arise when a scholar of religious studies gives an expert opinion in a legal setting are varied. First, the audience are not specialists, and so the scholar must generalise and use “religion” in a general sense. This lends a notion of stability to the category of “religion”, and reinforces the idea that certain groups, practices and beliefs belong in the category, while others should be excluded. Second, validating whether or not something is or is not “religion” not only serves to reinforce the category in an abstract sense, but also has significant repercussions for those groups whose practices are dismissed as “not religious” and therefore cannot be protected by human rights provisions, such as that of Section 2(a) of the Canadian Charter of Rights and Freedoms.

In addition, the reliance on expert opinions in matters of “religion” implies that the scholar is more qualified to define a practice or belief as “religious” than the practitioner themselves, when the matter of “religion” is otherwise viewed as a personal and subjective decision by the court. The Supreme Court of Canada made a statement to this effect in the landmark case Syndicat Northcrest v. Anselem (2004):

The State is in no position to be, nor should it become, the arbiter of religious dogma. Although a court is not qualified to judicially interpret and determine the content of a subjective understanding of a religious requirement, it is qualified to inquire into the sincerity of a claimant’s belief, where sincerity is in fact at issue. Sincerity of belief simply implies an honesty of belief and the court’s role is to ensure that a presently asserted belief is in good faith, neither fictitious nor capricious, and that it is not an artifice. Assessment of sincerity is a question of fact that can be based on criteria including the credibility of a claimant’s testimony, as well as an analysis of whether the alleged belief is consistent with his or her current religious practices. Since the focus of the inquiry is not on what others view the claimant’s religious obligations as being, but what the claimant views these personal religious “obligations” to be, it is inappropriate to require expert opinions.

Curiously, although the court in Anselem claims that “it is inappropriate to require expert opinions”, expert opinions are still sought out in the very same case. This is because, as religious studies scholar and former lawyer Dr Lori Beaman writes in her book Defining Harm: Religious Freedom and the Limits of the Law (UBC Press, 2008), “[t]he expert voice is heard in religion… and is perhaps most visibly hegemonic in the collusion between religion and law.” (48)  It is these experts that “act as gatekeepers in the discursive construction of religion”, determining the boundaries between legitimate and illegitimate religion. (48) It has been historically deemed important by courts in Canada to determine that a “religious” belief is sincere, and not capricious or artificial. Therefore, the voice of the scholar of religious studies has the power to legitimise particular groups as “truly religious”; yet this decision is made with an illusion of objectivity, using a contested and unstable category as its basis.

Expert opinions are, however, still useful in the case of practices that while sincere, are easily misunderstood or seen as strange. This is often the case with new religious movements or syncretic religions. I will use another Canadian case to demonstrate this advantage. In the Supreme Court of Ontario case R v Welsh (2007), the court attempts to determine whether or not Obeah (a collection of folk practices, religion and sorcery originating in West Africa and flourishing in the Caribbean) can be considered a belief system or “religion”. The entire case rests on this decision, as the claimant can only argue that the actions of the defendant infringed on their right to freedom of religion if their practices are validated as “religion”. Helpfully, court aligns itself with the stance in Anselem, and sees itself as “reject[ing] a narrow, overly-precise definition of religion in favour of a broad perspective that could conceivably capture an array of beliefs that, like Obeah, fall outside of well-recognized religious boundaries.” (Para 28) The court recognizes, with the help of expert opinions, that “Obeah is a religious belief system that meets the Supreme Court definition of such in [Anselem] and thus warrants s.2(a) protection.” (Para 29)

In light of this information, should Religious Studies scholars provide expert opinions in court cases relating to religious freedom? I am still unsure what is to be done with the practice. While the instability of the category of “religion” gives the scholar (and thus the court) the ability to validate or dismiss practices based on a contested definition, the use of expert opinions can also be (and often is) beneficial to lesser-known traditions, and even to groups who regularly experience discrimination or prejudice, such as Islam. To cease the practice would leave these groups in a vulnerable position, but to continue advising the court under the illusion of objectivity may lead to misguided decisions. The issue is complex and multi-faceted, and it is my intention to treat the topic more extensively in my further research.

“Overt and Conspicuous”: Religion and the Charter of Québec Values

18 Monday Nov 2013

Posted by in Critical Religion, University of Ottawa

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Religious freedom has become a a hot topic in the world of Canadian law again this autumn, as the Parti Québécois presented a new bill, Bill 60, which seeks to enact the “Charter of Québec Values”. The proposed charter aims to prohibit the wearing of “overt and conspicuous” religious symbols by government officials and public servants. The rumoured charter was widely discussed across Canadian news outlets throughout September and October, and was finally tabled in front of the Québec legislature on November 7th, 2013 as the “Charter of Québec Secularism”. The proposed new law would amend the Québec Charter of Human Rights and Freedoms in an attempt to prevent religious symbols to form part of the public sphere; this echoes the measures of state secularism eschewed by other governments, such as that of France.

The bill was the object of much controversy as the stipulations of the charter suggest “common values” that target the removal of hijab, yarmulkes and turbans for the purposes of equality. Below are the widely-circulated images which became representative of the guidelines proposed by Bill 60:

Figure 1: Types of permitted religious symbols.

Figure 2: Prohibited religious symbols.

According to ReligionNews.com, the charter “would prohibit public employees from wearing large crosses and crucifixes, Islamic headscarves, Sikh turbans and Jewish yarmulkes as a way to establish ‘religious neutrality’ in public. The prohibitions would apply to civil servants, teachers, law enforcement officers, firefighters, doctors, nurses and public day care employees. Elected officials would be exempt.” Thus, anyone seeking to serve in the public service would be required to disregard their own personal religious practices if these could be interpreted as “overt”.

While media reports and online discussions have concentrated on the possibility of these guidelines being a disguise for racist or xenophobic motivations, I believe they are missing the essential dilemma that characterizes the problems with Bill 60. The proposed measures aim to limit the infringement of citizens’ religious freedoms by preventing others from imposing their beliefs by virtue of wearing visible symbols. However, as I have written before, there is no official agreement in Canadian federal or provincial law about what constitutes a “religious symbol”. Freedom of religion has been discussed in Canadian human rights law since the 1950s and no unanimous decision about what constitutes “religion” has been reached. Therefore, the allegations that the guidelines provided by Bill 60 are racist or targeted toward minority groups skim the surface of a deeper, more troubling realization: that perhaps there is no such thing as stable concepts of “religion” and “secular”, and that the insistence that there is such a distinction leaves room for deeply troubling lines to be drawn arbitrarily.

The realization of the lack of objective, clear-cut categories and its consequences is at the heart of work done by scholars of critical religion. My recently completed Master’s dissertation, as well my first blog post for the Critical Religion Association, have dealt with the consequences of work discussing critical religion in relation to processes of law.  I argued that defining what is “religious” and what is “secular” for the purposes of enforcing the religious freedom in Canada is impossible, as provincial and federal law do not (and cannot) define “religion” in their most important documents. The definition of “religion” is left to the interpretation of the courts at key moments of dissension; the courts, in turn, rely on both outdated legislation and on precedence dated back to an era where Canada was understood to be “a Christian country”.

Attempts have been made to remove tradition-specific language from legal statements, but without the context from which the word “religion” and its cognates emerge, statements about “religion” and its essence leave an overwhelming amount of room for processes of power to dictate, at any point in time, what is permitted and what is prohibited. The decision of what constitutes a religious symbol is left in the hands of lawmakers, who necessarily have their own idea of what religion “is”. Little room is left for debate over whether the symbols depicted in Figures 1 and 2 are understood by their wearers as religious. Those who wear items such as the hijab or the yarmulke might not categorize those items as “religious”, but rather as “cultural” or “traditional”. They may even consider these reasons to be as equally important as so-called “religious” values, and believe that these deeply-held values should be honoured in a similar fashion.

Therefore, the line that the “Charter of Québec Values” draws between permitted “religious” symbols and prohibited ones assumes a number of things. First, it assumes that the distinction between “religion” and “secular” is clear-cut and that lawmakers have an objective view of what counts as a religious symbol.  Secondly, it assumes that that “objective” point of view is somehow completely segregated from a history of precedence that relies on Christian categories from the 1950s. Thirdly, the Parti Québécois even assumes that the residents of Québec would only accept a very narrow range of symbols in the public sphere!

I believe it would be helpful to those seeking to analyse this recent development in Canadian law (and, for that matter, any developments regarding “religion” in human rights law worldwide) to take into account the arguments of scholars in critical religion. Using these insights, critics may be able to tackle what is, as I see it, the larger issue: that the ongoing existence of “religion” as a legal matter without a clear definition leaves room for harmful assumptions to be made and for these assumptions to become law.

Law, Critical Religion, and the Importance of Semantics

26 Monday Nov 2012

Posted by in Critical Religion, University of Ottawa

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I often hear it said that the contributions of scholars in critical religion are “merely semantic”; that problematizing the category of religion and the meaning of the word “religion” an academic context has no bearing on the understanding of religion “on the ground”. The meaning of “religion”, many argue, is fluid and dynamic, and so the definition and approach of scholars studying it must reflect this. No single definition applies to “religion”, nor should there be, as people use the word to mean different things. In short, many argue that studying the idea of “religion”, and the implications of the word itself, have no real practicality beyond the academy.

I would like to offer a brief rebuttal to that argument, using as an example laws concerning “freedom of religion”. Provisions for freedom of religion have become the norm for Western democracies and their bills of rights (such as in the Canadian Charter of Rights and Freedoms and the First Amendment to the United States Constitution), but there are several reasons why these provisions might warrant re-examination. Below, I will draw from my knowledge of North American case law to demonstrate how critical religion may be invaluable to moving towards a more nuanced understanding of the issue.

If a citizen presents a case to Canadian (or American) courts claiming their right to freedom of religion was infringed, either by another citizen or by an institution, one of the first steps in the legal process is to determine if the claim is legitimate. If the plaintiff is not a member of a recognized religion, the court must first determine if their practices qualify as “religion”. Otherwise, a case for rights infringement cannot be made. How does the court determine whether the plaintiff’s religion qualifies as such in the eyes of the law? It does so by looking at the definition of the word “religion”.

One of the main problems lies in the fact that constitutional documents which proclaim freedom of religion in North America do not describe or define “religion”. In both Canada and the United States, the interpretation of “religion” has been left to the courts. These rely on two sources of information to form this interpretation. The first consists of previous and pertinent case law, if it exists. Secondly, the court calls upon expert witnesses who can attest to the legitimacy of a claim based on their academic knowledge of religion. It is the academic understanding, and not a common or “lay” understanding, of the category “religion” that is privileged.

Still, the Supreme Court of Canada has done its best to use expansive definitions; in the landmark 2004 case Syndicat Northcrest v Anselem, it ruled that religion “is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment [sic], the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.” The issue here is that, despite their best efforts to be inclusive, courts fail to realize that using vague language does not divest the concept of “religion” from its Christian and colonial history. Even the words “beliefs” and “faith” stem directly from a Christian rhetoric.

That the definition of “religion” is left up to the interpretation of courts has not shown to have a substantial impact on traditional religions like Protestant Christianity, because they are easily recognizable as “religion”. However, the question of whether religious practices are considered official or acceptable can still be disputed, as Winnifred Sullivan demonstrated beautifully in her book The Impossibility of Religious Freedom. The narrowness of the definition may present problems for new groups that identify themselves as “religion”, but are not recognizable as such to the court.

An example that comes to mind is Wicca. A tradition that emerged in the 1950s and spearheaded by retired civil servant Gerald Gardner, Wicca is an un-institutionalized earth-based new religious movement that focuses on the immanence of the divine in nature. Wicca has no official tenets of faith, no designated clergy or standard ritual format, and no fixed location of worship. Wiccan groups have had considerable difficulty proving to the government (Canadian or American) that they are legitimately religious, for these reasons.

When determining whether Wicca is a religion in the eyes of the law, the semantics of “religion” are incredibly important. The large majority of Wiccan groups who qualified for tax exemption in the United States designate themselves “churches”, or describe themselves using words like “faith” and “beliefs”. In Roberts et al. v Ravenwood Church of Wicca, the granting of tax exemption for religious reasons was delayed by Justice Jordan, dissenting, who stated:

While the majority opinion states that the Wiccan church does not believe in the devil, I do not believe it conforms to the traditional concept of a religion as embraced in the preamble of our State Constitution and as expressed in the Pledge of Allegiance to the flag of the United States. This nation was founded “under God,” not the “karmic circle.”

If guarantees to “freedom of religion” are granted only if a person’s religion is recognized, yet the definition of “religion” relies on Christian rhetoric, are the provisions really ensuring freedom of religion? Should provisions for “religion” exist at all? These are questions I will examine in more detail in my upcoming Master’s thesis.

The work of scholars in critical religion may indeed concentrate on the semantics of “religion”, but it is far from being “merely” an academic issue. The meaning of the word “religion” and the language used to regulate that definition are at the forefront of the constitutional cases about new religious movements. While it is perhaps unlikely that critical religion will prompt an amendment of provisions for “freedom of religion”, the continued work of scholars in the field may inform those expert witnesses called to consult in these cases, and thus help shape the legal understanding of human rights in the process.