Law Review: What Religious Freedom Jurisprudence Reveals About Equality

Carissima Mathen, What Religious Freedom Jurisprudence Reveals About Equality (2009). Journal of Law and Equality, Vol. 6, No. 2, 2009. Available at SSRN:

In this article I compare jurisprudence arising under the religious freedom and the equality provisions of the Canadian Charter of Rights and Freedoms. I suggest that religious freedom jurisprudence is actually more consonant with equality ideals (what Justice Peter Cory referred to as “the foundation for a just society”). I first argue that, while Canada’s approach to its constitutional equality guarantees has much to laud, establishing an equality rights claim has become increasingly complex, beset by multi-part tests and providing numerous opportunities for the state to justify discrimination. Then, I show how religious freedom jurisprudence has developed quite differently, invoking powerful purposive descriptions of the right; a clear focus on the individual; a clear recognition and respect for difference; and an expectation of compelling state justification. On the whole, Canadian courts display a sympathy to the religiously devout that often is absent in equality cases. I conclude with some observations about why it seems to be easier for courts to “get” religious freedom claims compared to equality claims (despite their many points of analytical intersection), and some thoughts on whether equality law could actually be reinvigorated by religious freedom jurisprudence. In an addendum, I consider the implications for my analysis posed by the Supreme Court of Canada’s 2009 decision in Hutterian Brethren of Wilson Colony.