Centre Article: Charity Law Expert Warns Catholic Church, Other Religions to Remain Vigilant Re: Tax Status

February 1, 2007

1/31/2007 (Canadian Catholic News (www.cathnews.net)

OTTAWA, Canada (CCN)—A prominent Canadian public intellectual has set off alarm bells for suggesting the Catholic Church and other religions that don't comply with so-called Canadian values should lose their charitable tax status.

Daniel Cere, who heads the McGill University Institute for the Study of Marriage, Law and Culture, sees "troubling features" in the "growing conversation about religious freedom" in Canada, especially in a an article in the Fall 2006 edition of the Literary Review of Canada by Janice Gross Stein, a political scientist who directs the University of Toronto's Munk Centre for International Affairs.

Entitled "Living Better Multiculturally," and headlined "Whose values should prevail?" the essay raised a series of questions about multiculturalism and religious freedom, when religions have values that go against what Stein described as Canadian values or Charter values.

Focusing on equality for women, she wrote mostly about her own Conservative Jewish synagogue and her efforts to change its traditional attitudes towards women. She questioned whether religions like her own should get charitable tax breaks.

"If religious institutions are able to raise funds more easily because governments give a tax benefit to those who contribute, are religious practices against women a matter only for religious law, as is currently the case under Canadian law, which protects freedom of religion, or should the values of the Charter and of human rights commissions across Canada have some application when religious institutions are officially recognized and advantaged in fundraising?" she wrote.

"Does it matter that the Catholic Church, which has special entitlements given to it by the state and benefits from its charitable tax status, refuses to ordain women as priests?" she asked.

"That's new," Cere said. Five years ago, any mention of charitable status would have been a taboo topic, but now a mainstream public intellectual is talking about using the courts, the "weapon of rights" to pressure religions to conform to so-called Canadian values.

For Stein, it appears the resurgence of religious orthodoxies is problematic. She is not the only one asking these questions about multiculturalism. Other groups, however, while posing similar questions offer different solutions. Last November, the Centre for Cultural Renewal held a symposium entitled "Public Morality? The Limits of Privacy and Community Standards" that looked at how Canada could find a common standards of right and wrong for everyone in the wake of the Swinger's (Labaye) decision that threw out community standards as a guide for public morals. (See LexView 56.0)

The center's executive director Iain Benson describes Stein's attempt "to portray religion as the enemy of 'equality' or 'human rights'" as "fallacious and dangerous." "We need better analysis of what is meant by modus vivendi—how we live together despite disagreement; a subject not dealt with very well by Prof. Stein," he said.

Constitutional lawyer Peter Lauwers said Stein's article reveals her as a "convergence liberal."

"Convergence liberalism says that pluralism is an accident that is going to be erased by the flow of time," he said, describing a "brave new world in the future where we all think the same." The other is the modus vivendi approach that seeks to find accommodation and ways for differing beliefs to share the public space with mutual respect and tolerance.

The Stein article, Lauwers said, is advocating the abrogation of freedom of religion as we understand it. "Freedom of religion is about creating social space in which religious bodies can be themselves."

"The role of the state is not to impose its views about religion on anybody," he said, noting religious issues, are to be worked out within the community of faith.

Lauwers said Stein "crossed the line" in advocating the power of the state to force change on religious bodies. "The state is no longer being neutral but coercing religious bodies."

He warned convergence liberals might also want to see the power of the state used against those religions that advocated traditional marriage or opposed abortion and euthanasia.

One of Canada's foremost charitable tax law experts, Terrance Carter, said he does not believe the church's charitable status is "a current concern." Nor does he see a political will to go after churches' tax status. He said that so far Canada's courts are doing a good job balancing rights, including religious freedom. He noted the amendment in the same-sex marriage legislation that is intended to protect the charitable status of those religious bodies that hold a traditional view of marriage.

He also said the Canada Revenue Agency (CRA) is showing sensitivity and care in interpreting the law.

However, he urged religious institutions to be vigilant and proactive to protect the erosion of charitable status. "Long term, sure, anything can change. Anything."

Carter said churches have to make sure they maintain their charitable status on the basis of "the advancement of religion," one of the so-called traditional "heads of charity" recognized by the courts, and not under some other "head" such as relief of poverty, advancement of education or other purposes advantageous to the community.

"Otherwise the breadth that we currently have under the advancement of religion can be curtailed," he said.

Carter also warned religions to be vigilant against a narrowing of what "advancement of religion" means. For example, where does the right of a priest come from to speak on his understanding of the sanctity of life, marriage and divorce, same-sex marriage, women in leadership? he asked. "They're giving an understanding of their faith, their doctrine," he said.

"If there's a narrowing of what 'advancement of religion is,' a religion may be limited to discussions on the worship of God but not allowed to advance the sanctity of life and still retain charitable status. That may be seen "as a commentary on societal issues and therefore political," he said.

Carter noted that the state has taken over many activities that were formerly religious activities, such as the care for the poor.

He agreed that Canada is losing some of the previous widespread consensus that religion was a social good. In an October 2006 paper on "Advancing Religion as a Head of Charity: What are the Boundaries," Carter noted that society has depended on religions to "teach morality and civility to its members."

In this paper, available at www.charitylaw.ca, Carter wrote: "As broad as freedom of religion is, it is not unlimited. Courts have consistently held that an individual's freedom of religion is limited by the rights of others."

"Both the case law and CRA have taken the position that a 'charity's activities must be legal and must not be contrary to public policy.' It is therefore conceivable that a religious organization could be denied charitable status if CRA determined that its objects were contrary to public policy or inconsistent with Charter values," he wrote.

Religious freedom is being narrowed from a group right to an individualistic notion that narrows religious freedom to conscience rights, Cere said. He noted the Charter affirms both religious freedom and conscience rights, but that interpretations in the courts are narrowing the understanding of group rights for religions.

Republished by Catholic Online with permission of the Canadian Catholic News Service.