More court rulings

06.30.04

Religious Jews will be allowed to build succahs, according to the Supreme Court of Canada, who ruled against their condo association that was trying to limit them from doing so:

In a 5-4 decision, the justices said the state can’t regulate personal religious beliefs.

“A claimant need not show some sort of objective religious obligation, requirement or precept to invoke freedom of religion,” Justice Franck Iacobucci wrote for the majority.

“It is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection.

“The state is in no position to be, nor should it become, the arbiter of religious dogma.”

B’nai Brith, which intervened in this case, had the following reaction:

Allan Adel, National Chair of B’nai Brith’s League for Human Rights, reacting to the news, stated: “We are satisfied with the decision of the Supreme Court, which has applied a broad interpretation to the Charter guarantee of freedom of religion and believe it to be in the best interests of all Canadians. The Succah ruling is an important, groundbreaking case that champions the cause of religious freedom in Canada and will have important ramifications well beyond the immediate facts of the case.”

Personally, I agree. While not religious, I tend to think that anyone should have the right and freedom to practice a religious belief that doesn’t harm or infringe upon the rights of someone else. The condo association had no real reason to ban the succahs, and people want to build them on their own private property. There are a lot of fine lines and open questions when it comes to religious freedoms, but this ruling makes sense.

{ 4 comments… read them below or add one }

1 DaninVan 07.01.04 at 2:01 AM

I’m just guessing, but might the issue be that they’re NOT on private property? That in fact they’re on Common Property or Limited Common property? The latter would in many cases include balconies.
Damian (or any other visiting lawyers)? Any thoughts here?

This could open a serious can of worms; how about ritual slaughter of goats on the balconies, or Hare Krishna devotees doing their little ‘Dance of the Symbols’?…all day long.

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2 Hanthala 07.05.04 at 2:43 AM

Good point DaninVan. Not at all straighforward, but these questions never are. ‘Cept I can’t figure what the particular objection to this particular practice is grounded on ‘cept bigotry. Ah well.

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3 Anonymous 07.07.04 at 4:59 AM

I’m just guessing, but might the issue be that they’re NOT on private property? That in fact they’re on Common Property or Limited Common property? The latter would in many cases include balconies.

Yes, sort of. It’s an interesting judgement; you can read it here. As I understood it there were two main steps.

The first was the condominium agreement. The balconies are public areas for private use. The agreement binds that private use to certain rules of appearance and of physical passage (the latter is important for insurance purposes). The agreement implies and, some judges felt, clearly states that something like a succah would not be permitted.

The second step is the provincial Charter. Any article of the condominium agreement which limited rights it guarantees would be void anyhow. Assuming the succah is forbidden by the agreement — the majority didn’t feel that it necessarily was — is such a ban moot anyhow? The majority felt that it did violate the Charter, and that,s where the crux lay (continued next message).

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4 8opus 07.07.04 at 5:06 AM

The lower courts had imposed what they called an objective test: they looked at whether, in their opinion, it was religiously necessary for the succot to be built on the balconies, particularly given the offer to build a communal one in the condominium backyard. The lower courts even looked at the religious observancy of the plaintiffs, to see whether this really fit in with the profile of their religiosity.

The majority for the Supreme Court basically threw that out. It’s not for the courts to decide what religions truly do and don’t require, nor is it for the courts to decide what level of religiosity an individual does or doesn’t adhere to. What counts is a personal and sincere belief that the practice is connected to a spiritual practice having to do with religion, at the time of the practice. I think the decision was eminently sensible, and will hopefully begin to shut the door on the silliness of state courts making religious rulings.

You can see the connection with the hijab issue here. It suggests that all that is necessary is a sincere belief, regardless of whether Islam truly commands it.

On the other hand, though, that belief would have to be uncoerced, something children by definition can’t be, and which has been the major argument made by those have sought to have them forbidden in schools. What’s more, three of the minority judges (the 4 in the 5-4 split decision) were francophones, which doesn’t help matters here in Quebec. So it’s not as strong as it could be.

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