From The Law and Politics Book Review

Vol. 9 No. 2 (February 1999) pp. 96-98.

 

RELIGIOUS CONSCIENCE, THE STATE, AND THE LAW: HISTORICAL CONTEXTS ANDCONTEMPORARY SIGNIFICANCE by John McLaren and Harold Coward (editors). Albany: State University of New York Press, 1999. 247 pp. Paper $21.95. ISBN 0-7914-4002-8.

 

Reviewed by Joseph R. Reisert, Department of Government, Colby College. Email: jrreiser@colby.edu.

 

Virtually everywhere, religious freedom is embraced as a fundamental right; many regard it as the most fundamental of all human rights. It is enshrined in the American Bill of Rights, the Canadian Charter of Rights and Freedoms, the Constitution of India, and a host of other national constitutions and international human rights treaties. But just what specific privileges and immunities does this general liberty confer? Here the easy consensus breaks down into an intractable, and often bitter, host of disagreements. The essays McLaren and Coward have assembled in RELIGIOUS CONSCIENCE, THE STATE, AND THE LAW modestly do not aspire to solve this disagreement by articulating a new theory of religious freedom; rather, they seek to explore a number of the practical problems that have arisen and continue to arise when religious believers (typically of minority religions) encounter the power of the state. In so doing, they vividly remind the reader why legislatures and courts have found it so hard to formulate a single, consistent account of religious liberty able to answer the vast range of specific, practical questions to which claims of religious conscience give rise.

McLaren and Coward's volume contains thirteen essays written by scholars of religion, law, and history; they are "the result of a team interdisciplinary research project of the Centre for Studies in Religion and Society" at the University of Victoria in British Columbia, Canada (vii). As one might expect, given the disparate fields represented in this book, the chapters do not share any single theoretical perspective, and they do not advance any single, normative viewpoint. Most of the chapters are case studies of specific episodes of conflict between conscientious religious believers and state authorities. As is typical of most edited volumes, some of the chapters are more interesting and more effectively argued than others.

The best chapters do make fascinating reading, however. Cornelia Hughes Dayton's contribution, "Excommunicating the Governor's Wife," recounts the story of Anne Eaton, wife of Theophilus Eaton, Puritan governor of colonial New Haven. Although Theophilus was a staunch Puritan (Cotton Mather called him "'the Moses' of New Haven and a 'Terror' to 'Evil Doers,'" (31)), his wife adopted the Baptist faith five years after their arrival in New Haven, and despite repeated efforts to convince her to recant, she cleaved to her Baptist views until her death. Dayton ably relates the great tensions Anne's heterodoxy caused in the Eaton household; she explains in detail the efforts of the Puritan minister, the Rev. John Davenport, to reconvert her to her fellow colonists' faith. Nearly two years elapsed after she had rejected the Puritan belief in the efficacy of infant baptism before she was finally excommunicated in May 1645.

It is almost worth reading Dayton's chapter just to be reminded of the utter seriousness with which these early Americans regarded every particular of their religious faith. After reading her account, I found it hard to repress the thought that the cozy ecumenism of today's mainline Protestant churches may reflect the truth of John Stuart Mill's observation in ON LIBERTY that "religious freedom has hardly anywhere been practically realized, except where religious indifference ... has added its weight to the scale." (Mill 1975 [1859], 9). But Dayton's New Haven Puritans are no cardboard villains. They emerge as sensitive and humane believers, deeply committed to saving (as they saw it) Anne Eaton's eternal soul. No civil penalties attached to Mrs. Eaton as a consequence of her excommunication, and although she never rejoined the New Haven church, she continued to live with her husband until his death in 1658. Dayton treats Mrs. Eaton's excommunication as a "window" into the world of early New England dissenters, but the story is no less interesting as a reminder of what we have lost as well as what we have gained in our more tolerant age.

Other contributors have brought vividly to life more recent conflicts among conscientious believers and between believers and a secular state. Alvin Esau tells the story of how an internal conflict within the Hutterites of Manitoba found its way to the Supreme Court of Canada. An Anabaptist sect founded in the sixteenth century, the Hutterites live apart from the dominant society in self-contained communities, where all property is owned collectively. In the 1980's the majority of one such community, the Lakeside Colony, brought suit in the Canadian courts in order to seek police assistance in expelling a dissident minority group; in the end, the dissenters were forced out and denied any share in the colony's considerable collective assets. Esau narrates the sequence of events effectively, presents a generally sympathetic portrait of the Hutterite communities (if not of all their members individually), and he offers a cautious defense of the Canadian Supreme Court's conclusion.

In Chapter 11, James [Sákéj] Youngblood Henderson memorably laments that religious liberty has only very recently been extended in any serious way to the aboriginal peoples of North America. Although there are some significant weaknesses in certain aspects of his argument, Henderson forcefully contends that even those few well-meaning European-Americans who have sought to understand aboriginal spirituality have thus far badly mistranslated and misinterpreted the original, and Henderson tentatively proposes more faithful translations. By arguing that the dwindling of aboriginal communities will lead to the extinction of as yet inadequately understood religious traditions, Henderson aims to bolster the claims of the aboriginal peoples for protection. He calls for a prohibition against "Eurocentric evangelization" of aboriginal peoples and for a new commitment on the part of the Canadian government to the defense of the natural environment; he hopes that these measures will contribute to the "healing of Aboriginal peoples" (181).

What struck me as most useful in this volume, however, were the chapters contrasting the contemporary practice of religious liberty in Canada with the sharply contrasting practice of the United States. Two chapters particularly caught my attention. Irwin Cotler's essay contrasts the positions taken by Jewish non-governmental organizations in Canada with those taken by similar organizations in the United States. Although I was familiar with the general legal stance of the American Jewish groups ¾ supporting the free exercise claims of other faiths, supporting disestablishment claims (for example by opposing the advocacy of religion in public schools), and generally opposing restrictions on "hate speech" ¾ I was surprised to learn that parallel Canadian organizations have adopted diametrically opposed positions on all these issues. In a similar vein, Elizabeth Shilton contrasts America's efforts to erect a wall to separate church and state with Canadian efforts to build a "bridge" between them. She observes that section 93 of the Constitution Act of 1867, which in effect requires a degree of provincial government support for certain religious schools, remains in force even after the adoption of the Canadian Charter of Rights and Freedoms in 1982. Based on her reading of the Ontario Court of Appeal's BILL 30 REFERENCE, Shilton contends that the provinces retain a greater degree of authority to fund minority religious schools than they have yet exercised. A student of U.S., not Canadian, constitutional law, I cannot fairly assess her argument. But Shilton's essay, like Cotler's, suggestively contrasts a broadly communitarian practice of religious liberty in Canada with the liberal, individualistic practice here. Neither essay, nor both of them together, has given me enough information to judge whether the communitarian/liberal contrast they suggest can fully be sustained. But it is hard to see how any two chapters could accomplish that task. These essays have left me convinced that a student of religious liberty in the United States would do well to consult the experience of our neighbors to the north, and they have suggested some valuable avenues for pursuing that inquiry further.

None of the chapters in RELIGIOUS CONSCIENCE, THE STATE, AND THE LAW was written by a political scientist; many of the essays' main arguments speak to issues more or less peripheral to the concerns of most law and courts scholars. But several of the essays do convey useful, factual material that scholars interested in problems of religious liberty would do well to think about.

 

REFERENCES

 

THE BILL 30 REFERENCE (1986), 53 O.R. (2d) 513 (C.A.); affirmed [1987] 1 S.C.R. 1148.

 

Mill, John Stuart. ON LIBERTY. Edited by David Spitz. New York: W.W. Norton and Co, 1975.

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