Is State Neutrality Bad for Indigenous Religious Freedom?

in Jeffrey Hewitt, Beverly Jacobs, and Richard Moon, eds., Indigenous Spirituality and Religious Freedom (Toronto: University of Toronto Press, Forthcoming)

21 Pages Posted: 15 Jan 2020

See all articles by Benjamin L. Berger

Benjamin L. Berger

York University - Osgoode Hall Law School

Date Written: July 1, 2019

Abstract

We have good reason to worry that a jurisprudential world guided by a state duty of religious neutrality is one in which Indigenous claims for religious freedom will fare particularly badly. This is so because state neutrality is an ideal precisely aimed at the depoliticization of religion, and yet it is precisely the depoliticization of Indigenous religions that robs them of their specificity and force. Following a methodological note on the use of the term “religion” to describe the complex and diverse rituals, practices, worldviews, and metaphysical commitments of Indigenous communities that are of concern in this piece, this chapter examines the demands that the Supreme Court of Canada’s emergent “duty of religious neutrality” imposes on the state. The two core demands — a requirement for even-handedness and an obligation for restraint in religious matters — involve and imply a certain ethic of metaphysical abstemiousness aimed at disentangling or insulating law and politics from the contested field of religious difference. But this piece explains that these two demands collide with the history, realities, and needs of Indigenous religious traditions, and with odious effects for their religious freedom. After theorizing how these demands work to limit Indigenous people’s claims for religious freedom, this chapter shows these effects in action in the Supreme Court of Canada’s first case considering an Indigenous religious freedom claim under section 2(a), Ktunaxa Nation v British Columbia. The chapter ultimately claims that a clear-eyed view of the nature and effects of the state duty of religious neutrality discloses a hole in the heart of what freedom of religion can offer as a vehicle for Indigenous justice.

Keywords: religious freedom, state neutrality, Indigenous spirituality, Indigenous religion, Canada, Ktunaxa Nation v British Columbia

Suggested Citation

Berger, Benjamin L., Is State Neutrality Bad for Indigenous Religious Freedom? (July 1, 2019). in Jeffrey Hewitt, Beverly Jacobs, and Richard Moon, eds., Indigenous Spirituality and Religious Freedom (Toronto: University of Toronto Press, Forthcoming). Available at SSRN: https://ssrn.com/abstract=3508967

Benjamin L. Berger (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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