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An introduction to a general discussion of the Canadian courts' approach to religious freedom, which argues among other things that despite their formal commitment to state neutrality in religious matters, the courts have applied this requirement selectively - sometimes treating religion as a cultural identity towards which the state should remain neutral and other times (when it touches upon or addresses civic matters) as a political or moral judgment by the individual that should be subject to the give-and-take of politics. Behind the courts' uneven application of the neutrality requirement lies a complex conception of religious commitment in which religion is viewed as both an aspect of the individual's identity and as a set of judgments made by the individual about truth and right. The challenge for the courts is to find a way to fit this complex conception of religious commitment into a constitutional framework that that relies on a distinction between individual choices or commitments that should be protected as a matter of individual liberty, and individual attributes or traits that that should be respected as a matter of equality.
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A recent request for religious accommodation at York University has generated controversy not just about the merits of the particular claim but also about the general practice of religious accommodation under human rights codes and the Canadian Charter of Rights and Freedoms. The issue in this case exposes some of the tensions in our understanding of religious freedom and religious equality – and more particularly the requirement of religious accommodation. “Religion” (religious belief and practice) does not fit comfortably within the model of equality rights or anti-discrimination laws and seeing why this is so might help us to better understand the conflict in this case – the university’s decision to accommodate and the public reaction to that decision. The first difficulty is that religious adherence may be viewed as both an individual commitment and a collective identity. The second, and related, difficulty is that religious belief systems or traditions may be seen as both a set of practices and a set of beliefs about truth and right, which sometimes have public implications.
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There is a strong case to be made that racist, and other forms of bigoted, speech, even when it is not so extreme that it breaches general hate speech laws, should be prohibited on campus. A commitment to academic freedom supports the free and open exchange of ideas and information but also certain standards of communicative engagement – most notably the treatment of others in the academic community as interlocutors, as conversation partners who should be addressed and heard. Racial (and other) stereotypes and insults are inconsistent with the educational mission of the school and the idea of membership in an educational community. More generally, the injury of racist speech may be more acute in the closer environment and tighter community of the campus. However, the regulation of a broad category of racist speech raises a variety of challenges. In addressing the question of the fair and appropriate limits (or forms of regulation) of speech on campus, I will consider the case of Israel Apartheid Week [IAW], an event that takes place each year on several Canadian campuses, and more particularly whether IAW (and its claim that Israel is an apartheid state) is anti-Semitic and appropriately banned from campuses. The recent report of the Canadian Parliamentary Coalition to Combat Anti-Semitism [CPCCA] argues that IAW is anti-Semitic. However, the CPCCA claim appears to rest on the politically contestable view that the existence of Israel is vital to the continued existence of the Jewish people and that any criticism of actions taken by Israel to ensure its viability or any questioning of Israel’s religious ethnic identity constitutes an attack on the Jewish people. But these are politically contestable claims – about the link between nation and state, the treatment of religious-ethnic minorities, and the actions necessary ensure the viability of the state … The challenge to these claims must be treated as a legitimate part of political debate and cannot be excluded from campus.