Secular law and inscrutable faith

Abstract

Liberals often claim that coercive laws can not be justified on religious grounds. Accordingly, they urge citizens to 'bracket' religious arguments in the public square; they often endorse judicial review, as a mechanism for ensuring compliance with these strictures of public reason. Critics complain that this call to bracket religion is arbitrary and unfair, as all viewpoints - religious and secular alike - rest fundamentally upon articles of faith. I offer a reply. I begin by challenging this view that religious and secular viewpoints are on a par, drawing upon jurisprudence under the Canadian Charter of Rights and Freedoms. In Charter jurisprudence, religious beliefs and practices are singled out for especially generous protection (relative to secular beliefs and practices). The justification for this generosity, I argue, is that religious beliefs are taken (by the courts) to be inscrutable. This inscrutability justifies the accommodation of religious beliefs and practices, but it also justifies the bracketing of religion from deliberations over laws and policies of general application, in the way that political liberalism prescribes. I then consider whether my account offends the equality rights of religious believers, or the Charter's commitment to multiculturalism.

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