The Religion Clauses: Reading the Lesson

Abstract

Leo Pfeffer's Religion, State and the Burger Court will give the novice Canadian reader an introduction to the richness and intricacy of the jurisprudence of the religion clauses in the United States Constitution. But for those who seek a deeper understanding of the principles that may transcend national borders and the memories glorified by a particular people, the detail of the book's cast and characters may obscure the plot of a most engrossing historical drama. Rather than deal with the density of current doctrine which Pfeffer sets out in a clear and interesting fashion, my aim is to lay a foundation for considering the following questions:

1. To what extent do visions of history and of nationhood inform the doctrine under the United States religion clauses? How does this doctrine contribute to understanding the principle of freedom of religion in constitutional democracies generally?

2. In what ways does the Charter text provide a different expression of this supposedly well understood principle such that our courts must break a new and distinctively Canadian path?

These questions have special significance at the threshold of the Charter era, when Canadians might have a natural tendency to seek illumination in the effulgence of the judicial elaboration in the United States. Pfeffer's work provides an opportunity to reflect on the extent to which this temptation must be either indulged or resisted.