At a time when government action seems to pervade all spheres of life, the Supreme Court of Canada has reiterated that there are limits to the state’s authority.
In a unanimous decision released recently, Canada’s top court affirmed that certain disputes are outside of judges’ purview, and ought, generally, to be free from state interference; specifically, those related to the internal, private decisions of voluntary organizations such as religious communities.
Highwood Congregation v. Wall involved a claim brought by a member of a Jehovah’s Witness congregation, who alleged that he was unfairly ejected from the community. The congregation argued that he was treated fairly, but, in any event, the dispute was an internal religious matter such that court intervention was inappropriate. The SCC agreed.
As the court explained, no legal right was engaged in the dispute — there was no property attached to membership, nor was there evidence of an intention to create a contract. As such, the court recognized it could no more regulate the congregation’s membership decision than it could force a bride to include her cousin in her wedding or a bridge club to invite a player to game night. Such relationships are essentially private and, unless they involve some right or cause of action recognized by law, courts have no jurisdiction to intervene.
In addition to lacking jurisdiction, the court observed that, at its core, the issue was a matter of religious doctrine; i.e., whether the claimant had sufficiently “repented.” On this point, the court said it lacked both “legitimacy” and “institutional capacity” to deal with such a matter: “Issues of theology are not justiciable.”
Finally, the court emphasized that certain legal actions are reserved for state decision-making and that private groups such as churches and voluntary organizations must not be subjected to the same scrutiny as government actors. This is true even if those private groups make decisions of potentially broad public importance. Such groups are not state actors; to think otherwise would “fail to distinguish between ‘public’ in a generic sense and ‘public’ in a public law sense.”
In the end, the court said, “Religious groups are free to determine their own membership and rules; courts will not intervene in such matters save where it is necessary to resolve an underlying legal dispute.”
This is as it should be. There ought to be spaces where Canadians are free to pursue certain goals and relationships without state interference or court intervention, particularly in decisions as intimate and personal as worship and prayer.
The SCC’s recognition of its own limitations is refreshing — especially as some fear we are approaching “civic totalism,” in which the state and its agents regulate all aspects of public and private life. The Wall decision may alleviate some of those concerns.
This is not to say that voluntary and religious communities have immunity from civil claims — if there is truly a violation of a legal right, a remedy can and should be sought. But this decision makes it clear that a claimant does not have the right to force a voluntary religious community to accept him as a member or to alter the community’s membership procedures to his benefit.
It’s also important to recognize, as the SCC did, that the Charter of Rights and Freedoms exists to protect Canadians from the state and not from religious communities. An individual’s freedom of religion is exercised by joining or leaving a religious community, not forcing it to change its procedures to suit one’s liking.
Voluntary associations and religious communities play an indispensable role in the free development of citizens’ diverse beliefs and opinions. As the European Court of Human Rights has repeatedly stated, “The autonomous existence of religious communities is indispensable for pluralism in a democratic society.”
In protecting the autonomy of such communities, the SCC has affirmed that free space must be preserved for people of all faiths, including all voluntary associations, religious or otherwise. The Wall decision is not only a victory for church autonomy but for a truly robust and multicultural civil society.
Derek Ross is a constitutional lawyer and represented Christian Legal Fellowship as an intervener in the Highwood Congregation v. Wall appeal at the Supreme Court of Canada.