Howard Kislowicz on "Sacred Laws in Earthly Courts: Legal Pluralism in Canadian Religious Freedom Litigation"

We are pleased to inform you about the new article of Prof. Howard Kislowicz (Faculty of Law, University of New Brunswick) on "Sacred Laws in Earthly Courts: Legal Pluralism in Canadian Religious Freedom Litigation".

Abstract: 

In three cases, Amselem, Multani and Hutterian Brethren of Wilson Colony, the Supreme Court of Canada examined conflicts between state law and the religious practices of litigants. While much has been written about the holdings in these cases, less is known about the experience of the participants. Based on in-depth interviews with litigants, lawyers and experts involved in these cases, this article examines how the participants viewed their relationship to the Canadian legal system. Drawing on critical legal pluralist scholarship, the author demonstrates that in many instances, participants (i) considered their religious norms as legally binding; (ii) placed their religious obligations above Canadian law; and (iii) filtered state law through the lens of their normative, religious beliefs. The author also examines how participants, in their submissions to the court, challenged the status of Canadian law as the sole legal system governing their lives. For many participants, these cases represented a conflict between religious law and state law that could not be easily reconciled. The overlap of legal systems in the participants’ lives is complex and the boundaries between state and religious principles are often blurred. With a greater awareness of these issues, courts could be more conscientious in applying the proportionality test of section 1 of the Charter of Rights and Freedoms in religious freedom cases.