Whence a Nexus with Religion? Religious Institutionalism in a Canadian Context

This essay introduces an alternative account of what are the proper objects of protection under the constitutional guarantee of freedom of religion in Canada. It argues that freedom of religion has an institutional aspect in addition to its individual aspect. Canadian constitutional law after the adoption of the Charter of Rights and Freedoms has focused almost exclusively on the individual aspect of religious liberty and neglected its institutional dimension. In supplementing constitutional theory with an institutional account of religious liberty, the present legal order is better explained, actual religious practice is better reflected, and both institutional and individual religious freedoms are better preserved. Religious individualism does not conform to the historical trajectory of the idea of religious freedom, but rather assumes a very narrow and sectarian view of religion as a matter of exclusive individual conscience. This does not conform to the practice of many — perhaps most — religious practitioners, past or present. Religious individualism cannot explain the current state of positive law, whether statutory recognition of religious institutional authority, or judicial interpretation of the constitutional text which also acknowledges such authority. Thus, exclusive adherence to religious individualism restricts, rather than enhances, both corporate and individual religious liberty, because it is inattentive to important aspects of the actual religious practice it ostensibly protects. In this paper, we argue that the institutional and the individualist accounts of freedom of religion both express important aspects of the concept of religious freedom in the Western legal tradition. Each captures an important dimension of religious practice and belief, but neither does it fully. The legal landscape in Canada bearing on religious freedom contains both individualist and institutionalist features, and the values it protects can be traced to one or the other concept of religious freedom.