Forthcoming in Rex Adhar, ed.,
Research Handbook on Law and Religion
Mass: Edward Elgar, 2018) (Pre-publication Version)
between religious communities and state authority. Such matters are
inescapably local, historical, political, and particular.
This renaissance of religious institutions and organizations as a
matter for constitutional reflection is, thus, one example of how the facts
associated with the unsettling of secularism have also destabilized the
centrality of liberal rights constitutionalism in our accounts of modern
constitutional law and practice.
Another such example revolves around questions of legal pluralism
and sources of law. As religion demonstrates its energetic public presence,
the normative dimension of religious life also shows itself, pluralizing law
and putting questions around the recognition of religious legal orders and
the authority and supremacy of state law firmly on the table. These are
emphatically constitutional issues, but are not satisfyingly digestible as
issues of rights constitutionalism.
The debate about
in Ontario illustrates this well.
In the fall of 2003, an organization called the Islamic Institute of Civil
Justice proposed the use of arbitration tribunals that would resolve civil
particularly family law and inheritance disputes
application of principles of Islamic law.
Although the law in Ontario had
permitted private arbitration of disputes based on agreed-upon principles
of law for almost 25 years, this proposal produced something of a
and presented a substantial political question: should Islamic
arbitration be permitted? Faced with strong opposition to the use of
religious law to settle civil disputes, the Government of Ontario
commissioned a report on the matter. Although the report came back
recommending that, with the addition of certain safeguards, religious
Adler v Ontario
,  3 SCR 609, sharply dramatized the force of the historical
and particular in matters of religious education, holding that the right to religious funding of
Catholic schools, guaranteed in the 1867 constitution, however discriminatory and reflective of a
state-sponsored privilege for one religion, was immune from attack through doctrines of religious
freedom and equality, reflected in the 1982 Charter.