Download this publication - PULP

84 Chapter 3
‘core' or important than the right to freedom of religion is that it is false. 39
The right to freedom of religion is ‘one of the most basic rights human
beings possess. It would not be a huge exaggeration to suggest that this
freedom is the grain of sand in the oyster of politics around which the pearl
of liberalism gradually formed.’ 40 Some would go further and claim that
the right to freedom of religion takes precedence over the right to equality;
that the right to religious liberty has ‘logical priority’ relative to other
rights; 41 that it is ‘the ultimate freedom' and ‘not merely one of many
rights, but the prototypical human right’. 42
The correct position, however, is that expressed in the context of the
Canadian Charter of Rights and Freedoms by Lamer CJ for the majority
of the Canadian Supreme Court in Dagenais v Canadian Broadcasting Corp: 43
A hierarchical approach to rights, which places some over others, must be
avoided, both when interpreting the Charter and when developing the
common law. When the protected rights of two individuals come into conflict
… Charter principles require a balance to be achieved that fully respects the
importance of both sets of rights.
Accordingly, there cannot be a presumption in favour of the right to
freedom of religion or the right to equality antecedent to the balancing of
these rights. It is illegitimate to assert a presumption either way ‘without
begging the question: which side carries the weight of argument in cases of
conflict’ between the values of free association and religious liberty and
non-discrimination. 44
39 For one version of the claim that the right to equality is the most important
constitutional value, see J Rutherford ‘Equality as the primary constitutional value: The
case for applying employment discrimination laws to religion’ (1996) 81 Cornell Law
Review 1049. As I Benson ‘The freedom of conscience and religion in Canada:
Challenges and opportunities’ (2007) 21 Emory International Law Review 111 148 states,
however, ‘[e]quality is not more important than freedom of religion’.
40 W Galston The practice of liberal pluralism (2005) 178.
41
M McConnell ‘Religion and constitutional rights: Why religious liberty is the “first
freedom”’ (2000) 21 Cardozo Law Review 1243 1244.
42 K Hasson ‘Religious liberty and human dignity: A tale of two declarations’ (2003) 27
Harvard Journal of Law and Public Policy 81 88 89.
43 [1994] 3 SCR 835 877.
44 Gutmann (n 16 above) 11. A further argument may be open to those who seek to
privilege equality over other rights. It may be claimed that the Equality Act itself
privileges equality. On Woolman’s reading of the Equality Act, ‘[t]he Act makes
equality per se an overridingly important goal’ and ‘a trump’ (Woolman (n 16 above)
34). Although it does not ‘engage directly the complicated cluster of issues raised by
conflicts between equality and association’, the Equality Act ‘poses an imminent threat
to associational freedom’ (Woolman (n 16 above) 36), including, presumably, to
religious associations. To the extent that the Equality Act gives equality precedence
over associational freedom and religious liberty, this is illegitimate.