In this article we suggest that the encounter with religious legal traditions has surfaced a distinct vein of formalism in Canadian public law, discernable across the Court’s law and religion jurisprudence. This is so despite the centrality of substantive analysis in the account Canadian public law gives of itself. But there are distinct challenges and a particular anxiety that surrounds the law-religion encounter; we argue that the fraught sovereignty and pluralism problems that this encounter presents has led Canadian public law to rediscover its formalist habits and the comfort that they bring.
The Supreme Court of Canada’s decisions in Wall and Aga serve as a springboard for showing how the Court uses formalism in the law and religion jurisprudence to manage the complexity and risks raised by engagement with religious difference. Having shown that this move to reach for formalist tools is a pattern endemic in the encounter between liberal legal orders and religious pluralism, we explain both the appeal and challenges of this turn to formalism.
We do not offer this as a complete story of the law and religion jurisprudence in Canada, nor do we intend this as pure critique. Instead, we analyze the character and habits of Canadian public law by watching how it behaves in relationship with religion. We suggest that its impulse toward formalism stems from anxiety over its identity as secular, from its claims to authority, from a respect for the multiple sources of authority in people’s lives, or some combination of these. This habit may serve public law well: reinforcing legitimacy and certainty, manifesting a commitment to secular neutrality, or honouring a complicated past with religion. The formalist move, however, is always fragile. It suppresses, rather than addresses, conflict and complexity. Adhering to formalism involves detaching from forms of justice that turn on context and particularity, precisely where the meaning of much religious life is found.
Kislowicz, Howard and Berger, Benjamin, "Religion, Public Law, and the Refuge of Formalism" (2022). All Papers. 346.
This article is subject to minor edits and formatting changes in anticipation of its formal publication in the University of New Brunswick Law Journal - Volume 73, coming Fall 2022. The pagination and citations of this preliminary version should not be relied upon when citing the article.