Is Religious Freedom Impossible in Canada?

2010 ◽  
Vol 8 (2) ◽  
pp. 266-284 ◽  
Author(s):  
Lori G. Beaman
Keyword(s):  
United States ◽  
Religious Freedom ◽  
Public Discourse ◽  
The United States ◽  
Supreme Court Of Canada ◽  
Roman Catholicism ◽  
Canadian Law ◽  
The Supreme Court ◽  
Nuanced Understanding ◽  
Point Of Departure

The idea of religious freedom is not new in Canadian law or wider public discourse, although it has taken on a life of its own in the post- Charter era (1982 onward) and certainly in the last several years. As the courts wade more fully into the swirling abyss that is religion they find themselves struggling with the issues that preoccupy scholars of religion (and for which they have found no conclusive answer): what is “religion” and how can it be defined in a manner that is inclusive and meaningful? This article takes as its point of departure the provocative and compelling argument made by Winnifred Sullivan in her book, The Impossibility of Religious Freedom (2005), that religious freedom as a legal promise is untenable. In this article I argue that while plausible and convincing in the context of the United States, Sullivan’s thesis may be less applicable in Canada for three key reasons. First, the embeddedness of Roman Catholicism in Canadian social structure has resulted in a textured and nuanced understanding of religion, or, at the very least, a recognition that religion is in some measure a multifaceted notion. Secondly, the recognition of group rights, however defined, means that there is a space created for alternative religious discourses, in part because of the constitutional recognition of multiculturalism. Thirdly, the recent turn by the Supreme Court of Canada to an understanding of the subjectivity of religious freedom strengthens the idea that religion must be conceptualized in relation to the ways in which individuals understand and practice it in their day to day lives.

Religious Freedom and the Churches: Contemporary Challenges in the United States Today1

2019 ◽  
Vol 33 (2) ◽  
pp. 194-204
Author(s):  
Richard W. Garnett
Keyword(s):  
United States ◽  
Sexual Abuse ◽  
Civil Society ◽  
Constitutional Law ◽  
Religious Freedom ◽  
The United States ◽  
Religious Institutions ◽  
General Decline ◽  
The Supreme Court ◽  
Constitutional Right

A crucial, but often overlooked, dimension of the human and constitutional right to religious freedom is the autonomy of religious institutions, associations and societies with respect to matters of governance, doctrine, formation and membership. Although the Supreme Court of the United States has affirmed this autonomy in the context of American constitutional law, it is vulnerable, and even under threat, for a variety of reasons, including a general decline in the health of civil society and mediating associations and a crisis of confidence and authority caused by clerical sexual abuse and churches’ failure to respond to it.

The Emergence and Development of Intellectual Property Law in Canada

2017 ◽  
Author(s):  
Daniel Gervais
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
Supreme Court Of Canada ◽  
Complex Relationship ◽  
Canadian Law ◽  
The Supreme Court ◽  
Important Trading Partner ◽  
The Impact

This chapter reviews the emergence of intellectual property (IP) norms in the areas of copyright, trademarks, patents, and designs in Canadian law from the early days of the Dominion’s complex relationship with British IP statutes and policy to a time of progressive independence from those statutes. It then reviews more recent changes, some of which were made to bring Canada’s laws into line with major international registration systems. Canada has also been ready to experiment with variations on IP themes. This is visible both in statutes and in decisions by the Supreme Court of Canada. The impact of the bijural nature of Canada’s legal system and its proximity to the United States are also discussed: Canada has integrated civil law notions into an edifice constructed mostly of common law bricks, and must confront demands from its most important trading partner in adapting its intellectual property framework.

scholarly journals Growing Pains and Other Things: The Supreme Court of Canada and the Supreme Court of the United States

2019 ◽  
Vol 17 (4) ◽  
pp. 753-796
Author(s):  
Edward G. Hudon
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Supreme Court Of Canada ◽  
Supreme Courts ◽  
Starting Point ◽  
Growing Pains ◽  
The Supreme Court ◽  
History Of

This article is in part a book review and in part a study of two institutions. In it, the author compares the origin and growth of the Supreme Court of Canada and of the Supreme Court of the United States. He uses Professors James G. Snell and Frederick Vaughan's The Supreme Court of Canada: History of the Institution as a starting point, and he compares various aspects of the two Supreme Courts. He points out similarities in the problems that the two have confronted since the beginning, and he indicates the manner in which these problems have been resolved by each.

The judicialization of religious freedom: Variations on a theme

2021 ◽  
pp. 003776862110210
Author(s):  
James T Richardson
Keyword(s):  
United States ◽  
Religious Freedom ◽  
The United States ◽  
Sociology Of Law ◽  
Legal Systems ◽  
Religious Groups ◽  
European Court ◽  
The Supreme Court ◽  
Recent Developments ◽  
Variations On A Theme

This article discusses places and historical circumstances where religious freedom is generally protected by governments, including their judicial systems, and contrasts this with examples where such is not the case. Societal conditions contributing to religious freedom derived from theorizing on the ‘sociology of religious freedom’ are discussed, focusing on the characteristics of legal systems. Included is an application of sociology of law theories concerning how minority religious groups sometimes prevail in legal battles, followed by discussion of ‘judicialization of religious freedom’ concept. International legal systems and organizations that promote religious freedom are briefly described before discussing recent developments in the United States involving conflicts between the Supreme Court and Congress as well as the European Court of Human Rights (ECtHR), with its generally strong record concerning religious freedom. Russia and China, where religious freedom is severely limited or virtually nonexistent, demonstrate conditions not conducive to religious freedom, causing minority faiths to suffer severe consequences.

scholarly journals Copyright Protection of Government-Related Material Before the Courts of the United States and Canada: Considerations for Future Reforms

2020 ◽  
Author(s):  
Heiko Richter
Keyword(s):  
United States ◽  
Supreme Court ◽  
Copyright Protection ◽  
The United States ◽  
Supreme Court Of Canada ◽  
Technological Advancement ◽  
Related Material ◽  
Industry Standards ◽  
The Supreme Court ◽  
Legislative Reforms

AbstractCopyright protection of government-related material lies at the intersection of private incentives, public interest, and political motivation. These interests naturally clash. Therefore, the justification and scope of copyright protection for such materials has been the subject of intense controversy ever since. Recently, the Supreme Court of the United States and the Supreme Court of Canada handed down landmark decisions on the application of the respective century-old doctrines and provisions. Moreover, courts in the U.S. and Canada have lately addressed the protectability of privately created, government-adopted industry standards. This article takes these decisions as an occasion to reflect on the copyright protection of government-related material against the background of rapid technological advancement and substantial ongoing societal and political change. Taking into account the regulatory experiences in the EU, this article questions the prevalent assumptions of trustworthy state action and undistorted functioning of markets, which considerably underlie the design of current government copyright regimes around the globe. In this light, the article aims to provide avenues for future legislative reforms that address the copyright of government-related materials. It suggests a more focused, nuanced, and holistic regulatory approach for strengthening and maintaining open, democratic societies.

FAITH-BASED ARBITRATION EVALUATED: THE POLICY ARGUMENTS FOR AND AGAINST RELIGIOUS ARBITRATION IN AMERICA

2018 ◽  
Vol 33 (03) ◽  
pp. 340-389
Author(s):  
Michael J. Broyde
Keyword(s):  
United States ◽  
Religious Freedom ◽  
Public Discourse ◽  
The United States ◽  
Religious Communities ◽  
Value Sharing ◽  
Faith Based ◽  
Difficult Time ◽  
The Law ◽  
Religious Problems

ABSTRACTThis article explores whether allowing such expansive arbitration is a wise idea for the United States (and other western democracies). Like all arbitration, religious arbitration starts with a contract to arbitrate, but frequently does not invoke the law of the United States as the law to be used to resolve disputes, but instead allows parties to resolve disputes according to their own religious principles, both procedurally and substantively. The article is organized into two substantive parts. One part explores the strengths and weaknesses of the seven arguments against faith-based arbitration, which are (1) one law for one people; (2) religious arbitration produces substantive injustice; (3) religious arbitration produces procedural injustice; (4) religious arbitration is often subtly coercive to its members; (5) liberal society has a difficult time policing religious arbitration; (6) enforcement of religious arbitration sometimes violates people's rights to religious freedom; and (7) allowing religious arbitration promotes isolation and non-integration of religious communities. The next part explains and criticizes the five arguments in favor of religious arbitration, which are (1) religious arbitration is a religious freedom imperative; (2) religious arbitration can resolve some commercial disputes more accurately than secular courts can; (3) religious arbitration is the only way to resolve certain religious problems; (4) secular regulation of religious arbitration helps moderate and integrate religion; and (5) religious arbitration promotes value sharing between religious and secular cultures and as such enriches public discourse. The article concludes with an endorsement of the value of religious arbitration subject to reasonable procedural and substantive limitations.

Adjudication, Policy-Making and the Supreme Court of Canada: Lessons From the Experience of the United States

1989 ◽  
Vol 22 (2) ◽  
pp. 313-336 ◽  
Author(s):  
Christopher P. Manfredi
Keyword(s):  
United States ◽  
Decision Making ◽  
Supreme Court ◽  
Policy Making ◽  
Political Legitimacy ◽  
The United States ◽  
Supreme Court Of Canada ◽  
Decision Making Capacity ◽  
The Supreme Court ◽  
Broad Form

AbstractThis article explores the relevance of studies of judicial policy-making in the United States to the decision-making of the Supreme Court of Canada under the Canadian Charter of Rights and Freedoms. The article suggests that literature concerning the political legitimacy of judicial policy-making is minimally relevant, since a broad form of judicial review appears to be well established in Charter jurisprudence. The literature on institutional decision-making capacity has greater relevance, since the Canadian Court faces the same information-processing constraints as its American counterpart. The article concludes by suggesting that attempts to overcome problems of institutional capacity may produce additional questions of political legitimacy.

Minorities and Religious Freedom in the United States

2003 ◽  
Vol 24 (1) ◽  
pp. 53-76
Author(s):  
David M. O’Brien
Keyword(s):  
United States ◽  
Twentieth Century ◽  
Supreme Court ◽  
Religious Freedom ◽  
The United States ◽  
Orthodox Jews ◽  
Latter Day Saints ◽  
Religious Minorities ◽  
The Supreme Court ◽  
The Church

The modem libertarian conception of religious freedom did not emerge in the United States until the early twentieth century. It was the result of the straggles of religious minorities like the Church of Jesus Christ of Latter Day Saints (Mormons), the Jehovah’s Witnesses, Orthodox Jews, the Church of the Lukumi Babalu Aye, among others. It took decades and a series of (not always successful) lawsuits to persuade the Supreme Court and the country of the value of protecting individuals’ free exercise of religion.

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