May 19, 2017

Daphne Bramham: How do secular societies strike a balance between religious and other rights?

Montreal gazette
May 7, 2017

Where religious freedom begins and ends is increasingly bedevilling secular, pluralistic societies, including ours.

Despite constitutions and charters of rights, no single freedom is absolute. Rights frequently overlap, and then jostle for supremacy.

Determining which is more deserving falls to judges, who weigh the harms of one against the harms of another.

That balancing is happening around the world, from the United States to the Indian Supreme Court to a trial in southeastern British Columbia.

In B.C., the issue once again centres on polygamy even though some assumed that question was settled after a lengthy constitutional reference case. In that 2011 judgment, it was determined that polygamy’s inherent harms to women, children and society at large warranted limits to religious freedom. Therefore, the Criminal Code’s sanction against polygamy was found to be valid.

But that reference case was heard in B.C. Supreme Court. It was the first time in Canada that a constitutional reference was held in a lower court (because, despite its name, the province’s Supreme Court is a lower court whose decisions don’t carry the weight of the B.C. Court of Appeal or the finality of the Supreme Court of Canada).

That the polygamy reference was never forwarded to a higher court was a mistake that has brought Canada to this juncture.

Midway through their criminal trial in April, one of the two fundamentalist Mormon leaders accused of polygamy played the religious freedom card.

Justice Sheri Donegan rejected Winston Blackmore’s initial application, telling his lawyer that it needed to be redrafted, reframed and refiled. She also agreed to give his self-represented co-defendant James Oler a chance to consult legal counsel in order to file a similar application.

While Canadians might scoff at the importance of these two former bishops in of the Fundamentalist Church of Jesus Christ of Latter Day Saints asserting their religious right to have multiple wives, the case is being watched internationally.

As The Economist wrote in a blog post last week, it is because “many of today’s hottest arguments about religious freedom involved idiosyncratic micro-communities which impose on themselves (and on their children) norms of life which the rest of society finds bizarre or worse.”

Certainly, the polygamy case is that. Both men are from the tiny community of Bountiful, where Blackmore is charged with having 24 wives, while Oler is charged with having five. Blackmore has 145 children. The number of Oler’s progeny isn’t known.

But it’s not only breakaway sects and “idiosyncratic micro-communities” that are being scrutinized.

Currently, a five-judge panel of the Indian Supreme Court is trying to determine whether some Islamic practices improperly infringe on women’s rights and other basic rights.

The hearings are focused not only on polygamy, but the Islamic law provision that allows men to divorce their wives simply by repeating the word “talaq” three times.

India has the world’s third-largest Muslim population. Two-thirds of failed Muslim marriages in India end with triple talaq and, in these modern times, some men don’t even bothering saying the word. They’re repeating the word three times in texts and via WhatsApp.

Triple talaq has already been discarded in many Muslim-majority countries, including Turkey, Egypt, Pakistan and Bangladesh. But the All India Muslim Personal Law Board has argued that talaq is not only sacrosanct and crucial, it said in an affidavit that it protects women against husbands who might resort to “illegal or criminal ways of murdering or burning her alive.”

In the United States, the question of religious freedom is muddier. On the one hand, President Donald Trump has twice attempted to ban immigration from several Muslim-majority countries. Those bans are still before the courts.

On the other hand, Trump was flanked by Christian leaders last week when he issued an executive order to “vigorously promote religious liberty.” If approved by Congress, religious organizations will be able to become more politically active, and the government will provide “regulatory relief” for individuals and organizations that on religious grounds refuse to provide employees with health services such as contraception.

Almost immediately after Trump’s executive order was signed, Charles McVety sent a news release demanding something similar in Canada. McVety is president of both the Evangelical Association and the Canada Christian College, and has campaigned for the repeal of Canada’s same-sex marriage law and been outspoken against Islam.

More than 1,300 American clerics bought an ad to oppose Trump’s executive order that said in part: “Freedom of religion guarantees us the right to hold any belief we choose and to act on our religious beliefs, but it does not allow us to harm others in the name of those beliefs.”

That echoes the conclusion reached by a variety of Canadian courts, including B.C. Chief Justice Robert Bauman’s decision in the polygamy reference case. But it still leaves open the thorny issue of greater harm to whom.

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