gavelOn November 6-7, McGill hosted the “What is Religion?” symposium in honour of former Dean, Prof. B. Barry Levy. The inspiration of the symposium came from a legal case known in Canada as “Syndicat Northcrest vs. Amselem.” The case, was about a religious dispute in Montreal between a Jewish tenant who wanted to build a succah for a religious ceremony and the building owners didn’t allow him because their contract denied building anything additional to the current structure. The details of the case is found in the Wikipedia article found here: http://en.wikipedia.org/wiki/Syndicat_Northcrest_v._Amselem. The following post is my notes and reactions from that event, which, in short was extremely stimulating (the best lectures I’ve attended at McGill so far).

The following is also a long post, so if you want to read further click on the continuing “read the rest of this entry” link.

Interestingly, when I first heard about the case, I thought (in my ignorance) that the Jewish man was denied permission, which is why the Faculty of Religious Studies (FRS) was up in arms against the verdict… but I surprisingly discovered that the Jewish man got permission from the supreme court to erect the succah; and a member of the Faculty of Religious Studies (Prof. B. Levy), had actually given “expert” testimony on behalf of the building owners!!! In fact the Symposium was in his honour!

So why were the Faculty of Religious Studies (FRS) of McGill having a symposium devoted to this issue? Because the supreme court’s statement provided a “definition” of religion as “subjective”. The verdict began with the words:

Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to his or her 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.

Freedom of religion under the Quebec Charter of Human Rights and Freedoms (and the Canadian Charter of Rights and Freedoms) consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials. This understanding is consistent with a personal or subjective understanding of freedom of religion. As such, a claimant need not show some sort of objective religious obligation, requirement or precept to invoke freedom of religion. It is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection. The State is in no position to be, nor should it become, the arbiter of religious dogma. Although a court is not qualified to judicially interpret and determine the content of a subjective understanding of a religious requirement, it is qualified to inquire into the sincerity of a claimant’s belief, where sincerity is in fact at issue. Sincerity of belief simply implies an honesty of belief and the court’s role is to ensure that a presently asserted belief is in good faith, neither fictitious nor capricious, and that it is not an artifice. Assessment of sincerity is a question of fact that can be based on criteria including the credibility of a claimant’s testimony, as well as an analysis of whether the alleged belief is consistent with his or her other current religious practices. Since the focus of the inquiry is not on what others view the claimant’s religious obligations as being, but what the claimant views these personal religious “obligations” to be, it is inappropriate to require expert opinions. It is also inappropriate for courts rigorously to study and focus on the past practices of claimants in order to determine whether their current beliefs are sincerely held. Because of the vacillating nature of religious belief, a court’s inquiry into sincerity, if anything, should focus not on past practice or past belief but on a person’s belief at the time of the alleged interference with his or her religious freedom.

(quoted from “Judgements from the Supreme Courts of Canada”)

Which is to say, Bary Levy’s testimony that succah’s are not a normative part of Jewish religious life (hence not mandatory for the Jewish person to have one individually in his balcony) was ignored… because there was no need for expert opinion since religion is a matter of individual faith.

The issue that the courts even dared to “define” religion was funny since the academics of religion haven’t been able to arrive at any unanimous definition… still… the under-current issue… was that the “rights” of the institution (or the protection of the institution) was being compromised for individual’s rights. The consequences… if an individual was to assert a view of religion that was completely contradictory to the ‘established’ religion… his view could potentially hold more weight than the traditional/established view. The FRS seemed to want to assert that

1. the courts got the definition wrong
2. especially in that there was BOTH individual and communal dimensions to religion; and BOTH need to be respected.

Well… to structure the Symposium the FRS invited professors from the Law and Religions department at McGill; hoping, it seems, to affirm and clarify these two positions.

What made this Symposium interesting was that it looked as the FRS believed that the Faculty of Law would support their position; when in fact through the conference the Faculty of Law disagreed.

The Conference Summary

The best way to proceed to give a taste of what happened, by summarising the two papers in the first day. One by Prof. P. Glenn (Faculty of Law) and the other by Prof. Young (Faculty of Religion).

Prof. Glenn’s paper was in four points;

i) how have we (the courts) gotten to where we are (in our view of religion)
ii) what’s the ensuing problem (of the view of religion)
iii) how have various courts responded to the question (of religion)
iv) what evaluation can possibly be made of the work of the courts (especially of the Amselem case).

Point (i): Prof Glenn noted the intresent change in history where earlier lawyers were expected to know everything about religion; they were supposed to be masters of religion, but now they need not know anything about religion at all. Yet the true transformation has been the replacement of the authority of the Religion (Church) replaced by the authority of the State (and thus, of individual liberty).

Point (ii): while the separation between the state and (church) is blurred, it is still to be said that the courts work with a case-by-case detail basis; balancing the position of church or state, attempting to give neither importance over the other. The key is the balance, however, where each argument must be weighed. (at this point it can added, something that was said later, that the courts try to assess issues on the basis of the details of each case). The problem is that this balance is difficult to achieve, and even to universalise the case findings to other cases.

Point (iii): Prof. Glenn noted that there is no definition of religion that has universal consensus. Earlier there were no such problems, because the Monarch(or Church) determined what religion was; and everyone just accepted it. But now, because of the lack of concensus, which is why it is impossible to look to experts (academicians) exclusively to solve religious problems.

There is even an increasing sentiment that definition of religion is neither possible nor necessary for law. Thus, even the Canadian court’s “outer definition” there was a desire not to be controlling, filled with tentative language. But a definition, because of the plurality of the definitions, is leading towards the view that religion is an individual phenomena.

Point (iv): It is not surprising that religions are subjectively defined. Yet courts look at a few criteria to demarcate true from false religion. Firstly, “sincere belief”; if the defendant is able to display the sincerity of his/her claims, that is taken as valid. Secondly, “religious practice/conduct”; here the court identifies practices rather than simply beliefs, and it helps to conform with larger religious body (“nexus with religion”). Nevertheless, the way things are is that the state interests will invariably get importance above religion interests (when the religion interests work against the state), and thus the subjective/individual definition of religion is natural.

Ultimately, Prof. Glenn seemed to be saying that while the courts cannot define religion; they have to work with subjective definitions of religions, and in that sense, Amselem case’s provisional definition of religion was not wrong.

(There were other points, but I’ve focussed on issue of representation and law/religion definitional relationship).

The surprise of the FRS at this paper was evident when many FRS professors raised questions to Prof. Glenn’s paper… arguing that indeed there was a problem in leaving out a communal aspect of religion explicitly in the Supreme Court verdict; they felt the Supreme Court overreached itself. Yet Prof. Glenn was unmoved, arguing that he didn’t really find it a problem; to him it was a provisional, working-case definition and need not be taken too seriously as a definition of religion.

Prof. K. Young’s Paper thus became somewhat a response, as she argued that religion can and must be defined, and must be defined invididually/corporately. Yet the way Prof. Young argued that there was a problem with the courts definition because their definition was arbitrary and it would be better to use emperical evidence; to see how people really live, to develop a view of religion and the norms that apply to it. To Prof. Young, the defintion of religion is problem in that it cannot be too inclusive or too exclusive. She thus delt with the “definition” of religion with the following typology that used worldview as its controlling idea:

i. Worldview; everyone has a worldview
ii. Religious Worldview; some have a religious worldview, that directly draws from religious discourse
iii. Secular worldview; Some have a secular worldview, that directly draws from secular (non-religious) discourse
iv. Hybrid worldviews; where some people have a mixture of secular and religious worldviews

The point being that if the courts can see peoples as having one of these positions, they can deal with them appropriate to their worldviews. Each worldview comes with certain norms and requirements and the courts must realise that in complex issues like religion, it cannot take an absolutist approach, but must deal with people with some methodological plurality (this last sentence is my word interpreting hers).

Debate

Now these two positions were different in that the courts objected to academy definitions because lack of consensus. And I also think that Prof. Glenn was right, in that the definition of religion, by Young, was not really a definition, but a case through analogy. Yet Young’s point that the norms of different authorities on different individuals was an important one that the courts were not recognising. In the sense; while the Amselem case seemed to protect the individual; the courts were unable to see, because of their limited sense of people and their ‘religions’, that the person could actually have been either insincere or not following religious conduct (or vice versa), when seeing under what authority he was largely functioning.

Nevertheless, I couldn’t help but see the problem of religion show itself so starkly… that even Prof. Young’s definition was problematic… and not universally applicable to all religions (for instance Balagangadhara’s critique of the concept of worldview). There were many, in the FRS, who even were reconciled to the idea that religion cannot be defined… which again I find problematic (because it doesn’t stop them (or prevent) from using ideologically motivated definitions to impose on others).

Anyway… the later sessions, continued this impasse… but most revealingly, the courts seem to display an acute sense of faith in its ability to balance positions (perhaps not realising or ignoring the often religious bent to its own affirmations. Yet there was just no religious response that could offer a consensus to the Law courts, in a language that the courts could USE in its cases).The legal system, it seemed, was bent on protecting the individual rights… and even in cases of community vs community… would see how individuals are affected. Therefore… the courts were naturally leaning towards individualistic definitions from the start.

For me, the learning was that the practical problems of religion in the world-space… were evident. And my project… to ask ‘what is religion’ not sufficiently answered in the conference but certainly I find myself further motivated to move towards answering that very question.

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