Collective Religious Freedom as Associational Action: How Sociological Concepts Can Help Make Sense of the Jurisprudence

Abstract

AbstractReligious freedom is protected by section 2(a) of the Canadian Charter of Rights and Freedoms. Historically, the right has been understood in individual terms, though the courts have acknowledged a collective dimension to religion as expressed in a community of believers. Yet, the precise meaning of collective religious freedom has not been fully fleshed out. The current case law only encompasses a limited range of forms of collective religious expression and does not articulate a coherent theory as to why some collective 2(a) claims succeed while others fail. This paper draws on concepts from interpretive sociology to help clarify the existing jurisprudence and reveal a tension that is otherwise invisible over the status of volition/voluntariness in the collective religious freedom framework. Addressing this tension can help rationalize the Court’s jurisprudence and give resources to critics looking to change how the law encompasses collective religious experience.