Wednesday, April 30, 2014

Ontario Allows Students to Opt Out of All Religious Activities in Catholic Schools

An interesting column in the Toronto Star last week discussed the recent ruling by an Ontario trial court that a student attending a publicly-funded Catholic school could opt out of all religious activities.  The ruling was based on an interpretation of the province's Education Act.  The school argued that the student should be required to attend Catholic services held in the school's auditorium and other religious activities, even as it reluctantly allowed the student to opt out of religious instruction courses.  The case is an important one for the future of publicly-funded Catholic schools in Ontario, which have long been a site of controversy.  The judgement will presumably be appealed.

Death Sentence for "Blasphemous" Christian Couple in Pakistan

Pakistan continues to be a hotbed of blasphemy prosecutions.  A few weeks ago, Religion Clause Blog posted about a Christian couple charged with sending blasphemous text messages.  The couple were convicted and sentenced to death, even though they asserted that the phone the texts were sent from had been missing for a month and that the texts were written in a language they could not speak or write.  An appeal is planned.

Thursday, April 17, 2014

Is Section 116 a "right" or merely a "limitation on . . . legislative power"?

I wrote the following as a footnote to a paper on witchcraft, fortune-telling, and what I call "the new spirituality."  After the footnote got longer and longer, I realised I needed to excise it and change the text to avoid the dispute entirely.  Still, I think it's an important topic and one I hope to revisit in the future.
One can quibble about whether Section 116, the Australian Constitution’s provision regarding religious freedom, should be labelled a “right.”  See, e.g., Kruger v. Commonwealth, (1997) 190 CLR 1, 124-25 (per Gaudron, J.) (“It makes no sense to speak of a constitutional right to religious freedom in a context in which the Constitution clearly postulates that the States may enact laws in derogation of that right.  It follows, in my view, that s. 116 must be construed as no more than a limitation on Commonwealth legislative power . . . it cannot be construed as impliedly conferring an independent or free-standing right”).  However, styling Section 116’s religious freedom guarantee as a “limitation on . . . legislative power” rather than a “right” is illogical.  The wording of Section 116 (“The Commonwealth shall not make any law for . . . prohibiting the free exercise of any religion”) and the wording of the First Amendment of the U.S. Constitution (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) are both expressed as direct restraints on legislative power, but the latter has always been understood to confer an individual right to relief.  Further, Justice Gaudron’s reference to Section 116 not restraining the States is irrelevant to whether Section 116 is a “right” or not; rights always prohibit some actors from doing something, but not other actors from doing the same thing.  The First Amendment was held not to restrict state action until the twentieth century; the rights in American state constitutions do not limit the Federal government; domestic constitutional rights instruments rarely, if ever,  provide relief against the actions of foreign governments; few rights documents (the Quebec Charter excepted) provide claims for relief from non-governmental actors at all.  In Australia, as in every jurisdiction that has the equivalent of a “standing” doctrine, a claim for relief will always be brought by a particular organisation or association who asserts that its religious beliefs or actions have been burdened.  It thus makes little sense to talk about a restraint on interference with the free exercise of religion in the absence of an acknowledgement that without individuals (and the associations) they form, there is no exercise of religion to be prohibited in the first place.  Indeed, styling a constitutional provision as a “right” versus a “legislative prohibition” likely goes more to what remedy should be made (invalidation of a statute or a “constitutional exception”) than whether a claim for relief should be allowed at all.

Wednesday, April 9, 2014

"The Spiritual Revolution: Why Religion is Giving Way to Spirituality"

Paul Heelas & Linda Woodhead, The Spiritual Revolution: Why Religion is Giving Way to Spirituality (Blackwell, 2005).

This is a very interesting book, written by scholars of religion, on the topic of whether traditional religion is giving way to those who consider themselves "spiritual but not religious" (known as SBNRs in the literature).  SBNRs, often associated with the New Age movement, might associate with a stunningly wide-variety of practices and beliefs: yoga, crystal magic, homeopathy, tarot, holistic medicine, and more.  As Heelas & Woodhead note, "Even a cursory glance around the local bookshop or a stroll around the shopping centre leaves little doubt that Christianity has a new competitor in 'the spiritual marketplace'" (p. 1)

Helpfully, Heelas & Woodhead fit the rise of SBNRs into a broader social context: that of the rise of subjectivism in general.  Subjectivism is a turn towards individualism, and "has to do with states of mind, memories, emotions, passions, sensations, bodily experiences, dreams, feelings, inner conscience, and sentiments" (p. 4).  The rise of subjectivism can be noted in everything from self-help books to motivational speakers and more, and has a key element that "[t]he subjectivities of each individual become a, if not the, unique source of significance, meaning and authority". (p. 4)  The authors contrast this "subjective-life" with "life-as" culture, which emphasizes external authority, hierarchy, and role-recognition.  Traditional religion is strongly related to "life-as" culture, whilst the new move towards spirituality is strongly related to "subjective-life" culture.

In order to gauge the relative strength and future trends of traditional religion versus the new spirituality, Heelas & Woodhead study what they call the "congregational domain" (traditional religion) versus the "holistic milieu" (SBNRs) in a single small English town (Kendal) of about 27,000 people.  Through an extensive, multiyear project, the authors and their team of researchers gauged the extent of activities taking place in the congregational domain and the holistic milieu.  They reached some very interesting conclusions.  First, and contrary to my own perception, they found very little overlap between participants in the two areas: only 4% of participants in the congregational domain also participated in the holistic milieu (p. 31-32), and only 16% of persons active in the holistic milieu were regular churchgoers (p. 48 n.10).  I found this surprising based on other material I've read which argues that a "cafeteria" spirituality is common, where many people, including regular churchgoers, have picked from the menu of New Age beliefs.  "In Kendal at least, such a  post-modern condition is scarcely in evidence.  Instead, the congregational domain and holistic milieu constitute two largely separate and distinct worlds."  (p. 32)    Second, the authors were able to assess the regular strength of each area: they found that participants in the congregational domain outnumbered those in the holistic milieu by about 5-1.  No overwhelming "spiritual revolution" has taken place yet.  Third, however, they found that trends clearly favour the holistic milieu--not only has there been a dramatic rise in the area in just the past few decades, but there has been a slow but gradual decline in the congregational domain.  Further, the holistic milieu has gained extensive visibility in general culture, as seen by books, classes at gyms, newspaper columns, etc.  It's quite conceivable that in just a few decades, participants in the holistic milieu will exceed those in the congregational domain.

There's a lot of other good material in the book, and I highly recommend it.  The law review article I'm working on now is about what the rise of the "holistic milieu" means for our understanding of religious freedom.

Monday, April 7, 2014

"Noah" Banned as Blasphemous

Catching up on some old news, Religion Clause Blog has a brief post about the recent movie Noah being banned in Bahrain, Qatar, and the United Arab Emirates for offending Islam.