MISSISSAUGA, Ontario, October 5, 2005 ( Law is now being seen by Canada’s judges as above religion. That was part of the message of David M. Brown, a constitutional law expert and lawyer who spoke at a September 29 symposium on “The Place of Religion in Society.” His speech marked an introduction to a weekend conference in Mississauga, Ontario sponsored by the Christian Legal Fellowship.

On Friday September 30, the conference featured guest speakers such as Conservative Party Foreign Affairs critic, Stockwell Day, Liberal MP John McKay and Janet Epp Buckingham of the Evangelical Fellowship of Canada.

Brown has often acted as counsel in constitutional cases at the Supreme Court dealing with religious freedom, freedom of expression, division of powers over taxation, education, life-issues, and same sex marriage.

He told an audience of over 100 Canadian lawyers and Christian leaders that a new paradigm is shaping jurisprudence with regard to religious freedom.

“There is what I would describe as a totalist view of law. Law is seen as something which affects every part of your life.”

It is a concept of law first articulated by a Yale professor in 1999, but Brown was astonished to see this adopted in 2004 by Canada’s Chief Justice, Beverley McLachlin. According to McLachlin, the rule of law “makes total claims upon the self and leaves little of human experience untouched.”

“The hierarchy she devises sees the rule of law at the top, and the challenge today is how does the rule of law accommodate religion,” Brown said.

He said a more fruitful approach would view law and religion as cooperating spheres of activity. It’s an approach that was expressed in seminal form by the scriptural command to “render unto Caesar what belongs to Caesar, and unto God what belongs to God.”

“But that is not the way our judges see religion,” Brown said. “They see it as secondary, as something that needs to be accommodated.”

This concept of law represents a departure from the Western democratic ideal that government should be limited, and that law should be silent about some spheres of life.

Brown indicated that the recent struggle over marriage has made it all the more evident that Canada is characterized by a collision of worldviews.

“The argument put forward is that we now live in an equality world. This has come to mean that whatever anyone does is ok, and it is not open to anyone else to criticize and say that is wrong. Equality means you should never have to say you are sorry. But that is not the way religion works, since religion calls to perfection, and invites people to a higher calling,” Brown said.Â

“I think the legal and political challenge in next few years will be finding a way for both to live side by side without one quashing the other.”

Brown said the distinction between “belief” and “conduct” outlined by the Supreme Court of Canada is the current legal test for solving such disputes. This involves “wide license given to belief, but with constraints on conduct.”

He doesn’t see this as a solution. “Most difficulties are about how we actually manifest our belief in practice. To say that belief will have almost absolute protection, but that conduct can be restrained, isn’t offering much in terms of protection for religious liberty,” he said.

The challenge will be to change that paradigm. It means showing the courts “that conduct really is among the most important things about a religion that needs protection.”

During the panel discussion, Brown was asked about how the preamble of the Charter of Rights might help to resolve this cultural collision. The preamble reads that Canada is founded “on the rule of law and the supremacy of God.”

“What the court does is ignore it,” Brown said.

While judges have written at length about the rule of law, they have shied away from the supremacy of God “although they had the opportunity to do so,” he said.