The Advancement of Religion as a Charitable Purpose in an Age of Religious Neutrality

Abstract

The common law has recognized trusts for the advancement of religion as charitable for as long as it has recognized the concepts of “charity” and “trust”. However, the rapid development of a constitutional duty of religious neutrality has left the so-called "third head of charity" increasingly vulnerable to arguments for its demise. In this paper I address some the difficult questions raised by the conferral of legal and fiscal privileges on religious charities by (1) clarifying the constitutional parameters within which the validity of the third head of charity will eventually be addressed in Canada, and (2) considering a "instrumentalist" justification for charity law’s special treatment of the advancement of religion that may be consistent with those parameters. I close with a few comments on an objection that persons of faith may have to my instrumentalist account.

Keywords: charity law, religious law, freedom of conscience and religion