For centuries the law in western countries has accommodated religious beliefs and practices. There are many examples, such as the law allowing a Sikh boy to wear a kirpan when he attends school despite the rule that says no knife can be taken to school; or a Hutterite who does not want to have a “graven image” of themselves, because it violates their interpretation of the 10 Commandments, is allowed not to have their picture taken for a gun license. This principle of religious accommodation has served us well as a diverse society. Every religious person has been given space to practice their faith. However, that accommodation is being challenged by legal academics.
I make a bold assertion: within the legal elite there is a legal revolution fomenting that seeks to see the legal accommodations given to religion removed or drastically reduced. They are of the view that giving special recognition to religious practices may have had a place in liberal democracies in the past but they do not work now. It is my position that Ground Zero in this revolution is the Trinity Western University law school case.
In an article published in the latest BYU Law Review I argue that religion is special. It is special, I maintain, because of the historical, practical, and philosophical realities of liberal democracies. Religious freedom is a foundational principle that was instrumental in creating the modern liberal democratic state. To remove religion from its current legal station would be a revolution that would put liberal democracy in a precarious position. This is in part because the right to believe and practice one’s religion has been described as a “prototypical” right. It blazed the trail for other commonly recognized rights such as freedom of association, assembly, speech, and fair trial. There is a broad need for a deeper appreciation of religion; in particular, it is vital to understand how its protection makes democracy work by keeping in check the tendency of the state to demand ultimate allegiance at the expense of individual conscience.
I maintain that the core of religious freedom is the core of humanity’s search for meaning. To suggest religion be removed from its constitutional protection is to strike at the very core of humanity; it would be unethical and immoral.
Religion is an intrinsic part of the human experience and the desire for meaning, and, like science, is part of the search for truth. My reading of liberal democratic theory is that it seeks to maximize the freedom of the individual while maintaining civil peace in the search for ultimate reality.
The special place of religion in the law is under the scrutiny of an influential segment of the legal profession. The denunciation of religious norms on human sexuality is driving this reevaluation of religion’s status. More particularly, the religious norm regarding marriage as between one man and one woman is what offends religion’s legal detractors. The critical position of the legal profession and the legal scholars that reject religion’s special legal status will be a legal revolution.
Read my article in full here: