Supreme court tries my faith

In The Maltese Falcon, Kaspar "the Fat Man" Gutman tells Humphrey Bogart's detective Sam Spade, "By Gad, sir, you are a character. There's never any telling what you'll say or do next, except that it's bound to be something astonishing." I feel the same way about our Supreme Court, whose recent ruling on religion conveys a freedom at once dangerously unbounded and utterly unreliable.

Syndicat Northcrest v. Amselem concerned Orthodox Jews in a Montreal luxury condominium complex. In purchasing their units, they had agreed not to make certain uses of their balconies, but subsequently claimed the right to erect temporary "succah" huts on them anyway. They apparently hadn't read the purchase agreement, but in any event felt they shouldn't be bound by it because they really didn't want to be. And the court agreed.

I have no quarrel with Orthodox Judaism: I simply encourage its adherents to refuse to purchase or rent any property where there is a legal obstacle to its observance. Instead, five justices expressly endorsed "a personal or subjective understanding of freedom of religion" in which "it is inappropriate to require expert opinions" about what a religion actually requires and "(b)ecause of the vacillating nature of religious belief, a court's inquiry into sincerity, if anything, should focus not on past practice or past belief but on a person's belief at the time of the alleged interference with his or her religious freedom."

Excuse me? What possible belief or practice would not qualify under that definition? And if such an open-ended "religious freedom" lets one disregard otherwise legally binding obligations, what freedom or security can any of us count on having?

In Northcrest the court said "The State is in no position to be, nor should it become, the arbiter of religious dogma." But it must, now that it has assumed the task of deciding which beliefs are good enough to override what contracts. I much preferred the old system in which the court only had to decide whether property was being legally used. It safeguarded our liberties well in principle, if not always in practice (humans are fallible). And it could not set us at one another's throats by conferring conflicting "rights."

Under the old English constitution, free speech, free assembly, freedom of religion and so on. were not glorious abstract entities bestowed in toto by a benevolent state that then administered them. Rather, as A. V. Dicey explained in The Law of the Constitution in 1885, they arose from specific legal prohibitions on anyone, private or public, messing with us. You could walk down the street and enter a building provided you owned it or had the consent of the owner. So could I. So could she. In consequence, we could in fact assemble, not because the law gave us "freedom of assembly" but because it let us sue or lay charges against anyone who tried to stop us doing it.

Once inside, we could discuss politics, worship God or eat boiled turnips. But we could not, say, emit toxic smoke into the neighbourhood, regardless of whether we did it to honour God, amuse ourselves or get rid of old tires. What was decisive was our neighbour's right not to be poisoned, not the intensity or direction of our motives. End of story.

The distinction here is not between written and unwritten constitutions. The U.S. Constitution, for instance, is quite unlike the French, Soviet and any number of other written ones. It is essentially an attempt to strengthen the British system by codifying it.

Despite loose talk about "freedom of religion," the U.S. Bill of Rights declares not that citizens may do certain abstract things but that the government may not do certain specific ones. The U.S. First Amendment actually says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Our own Constitution, lamentably, leans the other way. Our Charter grants everyone "fundamental freedoms" including "freedom of conscience and religion." It might be superfluous to add, "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society," since it already says what government should give us, not what it may not take from us.

It's not the Supreme Court's fault, I know. But if our jurists read the Charter with Dicey at their elbows, they could have tried to give us rights we could understand, because they were not unbounded, and could depend on because they did not conflict.

Instead we get the stuff that dreams are made of. Astonishing.

[First published in the Ottawa Citizen]