Choice or identity? Dilemmas of protecting religious freedom in Canada

Abstract

Until recently, freedom of religion was interpreted by Canadian courts primarily as an individual right to choose to follow or practice one’s religious beliefs as long as doing so does not cause harm to others. The central value of religious freedom was often expressed as a right to choose one’s religious beliefs, and the central risks were understood to be social coercion and legal prohibitions on religious practices. Here, I’ll refer to this as the ‘choice approach’ and I distinguish the ‘choice approach from the ‘identity approach’. According to the choice approach, the sovereign value that the right to religious freedom protects is the value of following the dictates of one’s deepest and most personal religious commitments and thereby deciding for oneself what ought to guide one’s conscience. In the mid-1980s, the grounds for religious freedom began to shift and arguments were introduced in law and politics that treated religion as an identity. According to these arguments, religion is considered part of a person’s identity, similar to their ethnic background. As an identity, religious difference obligated states to ensure that individuals from different faiths have equal access to the benefits of citizenship even if ensuring this access goes beyond protecting their right to choose freely how to practice their faith. This paper examines this shift from religious freedom as choice to identity within Canada and also within the broader global context. It points to three implications this shift has for the treatment of religious minorities and the dilemmas for policy makers that follow from this shift. Is Religion a Choice or is it an Identity? 1 Religious commitments are, in several senses, both choices and features of identity. The question addressed here is what are the political and legal consequences for public institutions, polities and pious citizens when questions of religion are framed as matters of identity rather 1 In the context of Canadian jurisprudence, the choice and identity approaches to religious freedom have been explored by Richard Moon (2005: 201), who distinguishes between judicial decisions that consider religious freedom to be a matter of protecting autonomous judgment and choice, and religious freedom as part of an individual’s ‘deep-rooted cultural identity’. On Moon’s view, the distinction belies the nature of religion itself and requires a rights model that can protect both dimensions of religious freedom. Here, the distinction between choice and identity is situated in a broader political context, which has changed how many rights are understood and applied in Canada and globally. As I show, the challenges and dilemmas that follow from these two approaches are emblematic of larger challenges found in the politics of diversity today.