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Queen's University
 

Anselem

Do personal beliefs trigger freedom of religion?

Facts

In  1997, in order to fulfill their biblically mandated obligation to dwell in a succah during the nine-day Jewish religious festival of Succot, five Orthodox Jewish residents of a high-end condominium complex erected an open-roofed hut  on each their balconies.  Since decorations, alterations and constructions were strictly prohibited by the complex's by-laws, the Syndicate of Co-ownership requested that the residents remove the huts from their balconies and suggested, instead, that they celebrate Succot in a communal succah to be built, at the expense of all residents, in the gardens of the complex. The five residents refused, claiming that it would interfere unduly with their personal religious belief that they were spiritually obligated to dwell in a succah built on their balconies.The Syndicate applied for and received a permanent injunction from the Superior Court to prohibit and demolish all future religious dwellings built on the balconies of the Sanctuaire. The Superior Court ruled that only objective religious tenets trigger freedom of religion, not subjective convictions such as those of the five residents. The Provincial Court of Appeal supported the ruling of the Superior Court. In 2004, the majority of the Supreme Court  ruled in favour of the residents. [Syndicat Northcrest v. Amselem (2004),2 S.C.R. C.H.]

Questions

  1. Is there a legal test that can be used to determine whether or not a religious belief is protected by law?
  2. If yes, does the belief of the complainants meet this test?

Rulings

  1. Yes
  2. Yes, according to the majority.

Reasoning:

  1. According to the majority, a  belief or practice should be protected by law if, and only if, 1) it triggers religious freedom;  2) it is interfered with in a non-trivial or substantial way; and, 3) it does not interfere, in a non-trivial or substantial way, with the fundamental freedoms or rights of others.
  2. The Supreme Court was split on this question
1) Does it trigger religious freedom?

i.   According to the majority, "freedom of religion is triggered when a claimant demonstrates that he or she sincerely believes in a practice or belief that has a nexus with religion". Because the belief of the five Jewish claimants in this case was religious in nature and sincerely held, it triggered religious freedom.

ii.  According to the minority, however, only  objective religious precepts (divine commands that must be obeyed by all members of a faith group, such as, in this case, the biblical obligation to dwell in a succah during Succot), and not  subjective religious beliefs (personal beliefs held by certain members of a faith group; such as, in this case, the obligation to build a succah on one's balcony), trigger freedom of religion.

2. Is it interfered with in a non-trivial or substantial way?

i.   According to the majority, both the proposed accommodation and the permanent injunction prevented the claimants from practicing their religion according to their personal religious belief system. This constitutes non-trivial, substantial, interference.

ii.  According to the minority, however, the Syndicate discharged its duty to accommodate when it proposed what local Jewish authorities claimed to be an acceptable, even laudable, solution to the conflict of rights and freedoms.  It was unreasonable for the five claimants to refuse this accommodation. The injunction to prohibit and demolish any succah built on a balcony should therefore stand unquestioned.

3. Does it interfere with the fundamental freedoms or rights of others?

i.      According to the majority, the presence of religious dwellings on the balconies does reduce property value, but only for 9 days a year.   This constitutes trivial, insubstantial, interference compared with the obliteration of religious freedom.  Safety is a non issue, because the claimants were ready to build each succah such that it did not block any emergency pathways.

ii.  According to the minority, however, the presence of religious dwellings on the balconies of this high-end condominium complex greatly reduces its property value and endangers the safety and well-being of all its residents. This constitutes non-trivial and substantial interference.

Conclusion:

i.   According to the majority, the personal belief of the five residents passed all three parts of the legal test and should therefore be protected by law.

ii.  According to the minority, the personal belief of the five residents failed all three parts of the legal test and it should therefore not be protected by law.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000