Religious Institutionalism in a Canadian Context
Osgoode Hall Law Journal (Forthcoming)
74 Pages Posted: 10 Dec 2015
Date Written: November 26, 2015
Does freedom of religion protect religious institutions, or does it only protect the individual religious conscience? Canadian jurisprudence after the Charter of Rights and Freedoms takes a decidedly individualist turn, deliberately avoiding the question of the rights of religious institutions. This individualist focus neglects the historical trajectory of religious freedom, the social understanding of religious faith by religious adherents themselves, and the institutional structures in which religion emerges and develops, and through which it is ultimately protected. An institutional account of religious liberty can complement the individualist account, as it better explains the legal order, better reflects actual religious practice, and better preserves both institutional and individual religious liberty. Recent decisions of the Supreme Court of Canada go some way towards correcting this individualist bias, but balk at resolving the legal status of religious institutions. This persistent ambiguity will prove problematic in controversies over religious autonomy already making their way through the courts.
Keywords: freedom of religion, individual, institution, church, state, Canadian Charter of Rights and Freedoms
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