The Discomforts of Religion

Religion gives law a lot of trouble. Most often, the difficult question is what to do about it ― what to do about prayer at municipa council meetings, what to do about religious believers asking for exemptions from general laws. But sometimes, the law must confront a more basic, and perhaps an even more difficult question: what is religion in the first place? The Supreme Court of Canada has not had to say very much on this vexed subject. The most it did say was Justice Iacobucci’s pronouncement, without much explanation, in Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 SCR 551, at par. 39, that

[i]n essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.

The Supreme Court of the United Kingdom, however, had to address the question of the nature of religion in a case it decided earlier this week, R (on the application of Hodkin and another) v Registrar General of Births, Deaths and Marriages, [2013] UKSC 77. The issue it had to decide was whether a Scientologist church could qualify as a “place of meeting for religious worship” for the purposes of the English legislation that grants recognition to marriages performed in such “places.” And to figure out what “religious worship” means, it is necessary to have an idea of the concept of religion.

The exact same issue had arisen in the case of R v Registrar General, Ex p Segerdal [1970] 2 QB 697, where Lord Denning held that Scientology’s churches were not places of religious worship. Those, he explained, were “where people come together as a congregation or assembly to do reverence to God. It need not be the God which the Christians worship. It may be another  God, or an unknown God, but it must be reverence to a deity.” Lord Denning allowed that “[t]here may be exceptions. For instance, Buddhist temples are properly described as places of meeting for religious worship,” but Scientology did not, in his view, have anything like a diety, being more a philosophy than a religion, and so its churches did not qualify.

The Supreme Court in Hodkin declares itself unsatisfied with this reasoning. Lord Denning’s insistence on a deity as a distinguishing hallmark of religion, it says, is misplaced. Because it would exclude from the definition of religion certain groups generally recognized as religious, it would be “a form of religious discrimination unacceptable in today’s society” (par. 51). Indeed, Lord Denning himself was willing to make an exception for Buddhism ― yet his exception was unexplained and seemed unprincipled, suggesting that the rule he proposed was too. In addition, on his approach, courts would be called upon to decide whether a creed did, in fact, refer to a deity or supreme being, or whether the being it referred to was supreme enough. This is the stuff of theology, not of law, and courts would do best to stay out of it.

Embarking on its own search of the meaning of the expression “religious worship,” and thus of the concept of religion itself, the Court observes that

[t]here has never been a universal legal definition of religion in English law, and experience across the common law world over many years has shown the pitfalls of attempting to attach a narrowly circumscribed meaning to the word (par. 34).

Furthermore, the understanding of religion changes over time, and

It is no good considering whether the members of the legislature over 150 years ago would have considered Scientology to be a religion because it did not exist (par. 34).

After an in-depth review of a couple of judicial decisions, one from the US and one from Australia, the court ventures its own definition. Religion, for it, is

a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. … Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science (par. 57).

An additional question is whether the statutory term “religious worship” involves the “adoration of a deity.” Armed with a definition of religion that does not involve a deity, the Court says no. Any religious rites will do. The statute permits

members of a religious congregation, who have a meeting place where they perform their religious rites, to carry out religious ceremonies of marriage there. Their authorisation to do so should not depend on fine theological or liturgical niceties as to how precisely they see and express their relationship with the infinite … Those matters … are more fitting for theologians than for the Registrar General or the courts (par. 63).

The Scientologists are allowed to perform marriages in their church.

This case illustrates a general and increasing reluctance of common law courts to scrutinize religious beliefs. This same feeling was one of the driving factors in the majority decision in Amselem, which held that courts cannot inquire into whether a religious believer was really required to do or not to do something by some correct interpretation of his or her faith. This attitude of the courts is fully justified: judges are not qualified to serve as theological arbiters, and, more importantly, as the agents of a secular state, they have no right to take on that role. That is something that those who defend various forms of prohibitions on the wearing of religious clothing or symbols by arguing that these are not truly required by the religion of those who wear them should keep in mind.

Much Ado About a Living Tree

In preparation for a guest-lecture on constitutional interpretation that I am going to give in a few weeks at McGill, I just re-read the famous “Persons Case”―Edwards v. Canada (Attorney General), [1930] A.C. 124. It is remembered for its invocation of the “living tree” metaphor and for consecrating a “large and liberal” and evolving approach to constitutional interpretation as the law of the land in Canada. But the remarkable thing about it―on re-reading with this little summary in mind―is that the Privy Council’s reasoning is not really an application of these principles. It is, mostly, just an exercise in plain, old, but meticulous statutory interpretation.

The issue in dispute was whether the word “persons” in s. 24 of the Constitution Act, 1867, which enables the Governor-General to “summon qualified Persons to the Senate,” includes women as well as men―and thus, whether women are persons (for the purposes of the Canadian constitution).

Lord Sankey’s judgment begins by responding to that of the majority of the Supreme Court of Canada, which held that the word “persons” did not include women, mostly on the basis of the common law rule that women could not hold public office. Lord Sankey retorts that this rule “is a relic of days more barbarous than ours, but it must be remembered that the necessity of the times often forced on man customs which in later years were not necessary.” After a lengthy review of the ways the common law and statutes excluded women from public office, he concludes that this hasn’t much to do with the meaning of the word “person”―the word is ambiguous, and reading it as referring to men only is the product of a “custom” and “tradition” “the reason for [which] has disappeared.”

Lord Sankey then turns to the task of interpreting this ambiguous word. It is by way of introduction to this part of his reasons that he sets out the sentences for which the case is remembered today:

The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. …

Their Lordships do not conceive it to be the duty of this Board – it is certainly not their desire – to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs.

But what comes next is not an exercise in living constitutionalism, which would have consisted simply in saying that now that we’ve left barbarism behind, of course women are persons and can serve in the Senate. Indeed, remarkably enough, Lord Sankey denies that

their Lordships [are] deciding any question as to the rights of women but only a question as to their eligibility for a particular position. No one, either male or female, has a right to be summoned to the Senate. The real point at issue is whether the Governor General has a right to summon women to the Senate.

His Lordship, one is rather tempted to think, protests too much.

Be that as it may, it is true that the remainder of his reasons is an exercise in dry statutory interpretation. It is something like Ravel’s Bolero, an almost-endless repetition of the same simple theme with different instruments. Just about every technique of statutory interpretation is put to work to show that the word “person” can include women as well as men. Lord Stakey invokes the plain meaning of the words “member” (of the Senate) in s. 21 of the Constitution Act and “person,” both of which can in the ordinary language refer to women. He points to the structure of the Constitution Act, noting that the qualifications which the “qualified persons” described in s. 24 must possess are described in s. 23. He refers to other statutes (having to do with naturalization and property) to show that the coherence of the law is not undermined by the interpretation which he proposes for the provision at issue. He also refers to other sections of the same Act (ss. 41 and 84), which use the term “male subject” rather than “person,” suggesting that the drafters were aware of the difference and chose their wording carefully. He appeals (implicitly) to the maxim inclusio unius est exclusio alterius in saying that the list of qualifications for being a Senator in s. 23―which does not include being male―”must be presumed” to be exhaustive. Finally, he observes that the Canadian Parliament itself has interpreted the word “person” to be gender-neutral, when it felt necessary first expressly to prohibit women from voting and then to repeal this prohibition.

It is this lengthy demonstration that does the real work in the case, not the flowery, forgive the pun, metaphor for which it is now known. This is not to reject that metaphor. I don’t think we have much of an alternative to a “living constitutionalism” approach in some cases at least. Still, I thought it ironic and worth pointing out that in the Persons Case itself is not really about living trees at all, but simply a careful reading of constitutional text and its legal context.