Squaring the Circle of Multiculturalism? Religious Freedom and Gender Equality in Canada

Abstract

Abstract The Canadian Charter of Rights and Freedoms is globally unique in that it includes explicit commitments to the values of multiculturalism and gender equality. Section 27 of the Charter provides that: “[It] shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians,” whereas section 28 states that: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.” The Canadian experiment (as I will call it) offers us a rare, living laboratory in which a thriving constitutional system searches for legal and institutional pathways to addressing seemingly incongruous demands, obligations, rights, and protections. This article identifies a range of concrete legal responses developed and articulated by Canadian judges and other policymakers in response to claims for fair inclusion raised by members of religious minority communities. Contributing to ongoing theoretical and legal debates, I will conceptualize three variants of such fair inclusion claims. I will then assess what the Canadian multicultural experiment can teach other comparable countries about principled and pragmatic responses to the challenge of “living together” in shared spaces such as workplaces, schools, courthouses, and during citizenship ceremonies. The discussion will then explore the promises and pitfalls of a jurisprudential approach that resists the hierarchy of rights formulas, and tries instead to cover all grounds so as to neither erase diversity nor sacrifice equality.