Abstract

Introduction

In both South Africa and Canada religions per se have not been principal trouble spots for a very long time. What has been very much at issue is the treatment of religious communities and religious believers by the State and from time to time disputes between rights claimants of one sort in relation to rights claimants of another. There are many differences between the two countries but in this paper I shall look for some common themes to evaluate a few of the more significant areas of conflict that engage religious pluralism. Most importantly, however, I shall examine a change to the proper understanding of the ‘secular’ in the law which, it is hoped, will indicate a new direction for thinking about religion in relation to the public sphere.

Religions have been and continue to be recognized as important to both societies. In Canada, the question of Catholic and Protestant accommodation was central to many of the Confederation debates in the 19th century with, for example, Section 93 of the British North American Act of 1867 (providing for recognition of religious minority rights in education). This set of negotiated compromises continued (and continues in some provinces) until recently when that originating constitutional compromise was abolished in two provinces (Newfoundland and Quebec) by referenda in the late 1990s. The Canadian Constitution Act 1982 in the Charter of Rights and Freedoms contains recognition in its Preamble that Canada is founded on principles that recognize ‘the Supremacy of God and the Rule of Law’ though this has not yet been seen to have particularly foundational relevance. The right to the freedom of ‘conscience and religion’ in Section 2(a) and the reference to religion as an enumerated ground protected from non-discrimination has been the subject of many judicial decisions since the Canadian Charter was re-patriated from the United Kingdom in 1982.

This paper is divided into three parts. First the framework for under-standing religion and the public sphere as developed by the important decision of the Supreme Court of Canada in the Chamberlain decision. Second, the actual Constitutional provisions that recognize religious rights in both Canada and South Africa. Third, the experience of inter-faith cooperation in litigation and the development of a South African Charter of Religious Rights and Freedoms as examples of civil society initiatives that are outside legislation and litigation as such but which inform both politics and law in relation to religious pluralism.

Keywords

freedom of religion, Chamberlain decision, constitutional provisions, inter-faith development, Canada, South Africa

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