Secular Law and Inscrutable Faith: Religious Freedom, Freedom of Conscience, and the Law's Epistemology

Abstract

Liberals in the Rawlsian tradition hold that the just society is one in which citizens enjoy an equal scheme of rights and liberties. In this paper I consider two apparent asymmetries of rights that arise under the Canadian Charter of Rights and Freedoms: 1. The right to freedom of religion has been defined far more generously than the corollary right to freedom of conscience; 2. Religious arguments are blocked as justifications for law and policy, at least where rights are at stake, and this arguably limits the right of religious believers to participate as equals in the democratic process. I give a careful exposition for these asymmetries, and venture a justification for them. I argue that these two asymmetries both result from certain assumptions about the law's proper epistemic terrain. The law is in the business of pronouncing authoritatively about (e.g.) questions of what best promotes welfare. Conscientious beliefs which reflect calculations of welfare are grounded squarely on the law's epistemic terrain, and cannot be accorded 'reasonable accommodation' of the sort shown religious beliefs. By the same token, these presumptions about the law's epistemic terrain lead to the rejection of religious arguments in debates over (e.g.) same sex marriage, criminal obscenity laws, etc. Some argue that the law should be more inclusive toward religious arguments. On the basis of the foregoing discussion, I argue that such inclusivism may have radical and undesirable implications for the law's implicit epistemology.

Keywords: Canadian Charter of Rights and Freedoms, freedom of conscience, religious freedom, secularism, public reason, Rawls, liberal theory, Canadian constitutional law, multiculturalism