Supreme Court to Rule on Hutterian Group Rights

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The Supreme Court of Canada is about to hear a case between the Alberta Government and Hutterian Brethren over the matter of requiring picture photos on drivers’ licenses. (See official case summary here.) The Brethren faith community are convinced that to allow their photos to be taken is a violation of the commandment in Exodus 20:4 (“You shall not make for yourself a graven image.”) Whether or not we agree with that interpretation of Exodus 20 is irrelevant; what is relevant is that this case will be precedent setting.

According to a letter I received from the Evangelical Fellowship of Canada today, the case is important for two reasons: 1) It is the first case in which the religious rights of a group are being tested (over against the individual right of freedom of religion already guaranteed by the Charter of Rights and Freedoms and by precedents in law by previous court challenges; and 2) “this case is about the right of an identifiable faith community (group) . . . to establish and maintain its statement and standard of faith in a manner that does not cause harm to anyone, without government interference.” As the EFC letter goes on to explain, if the Hutterian Brethren lose this case, then there is every possibility that a precedent will be set at the highest judicial level by which other faith communities–confessional churches, schools, mission organizations, and denominations–will be open to future legal challenges to have the right to set its own doctrinal standards.

Without claiming to understand the intricate legalities of this case, I, for one, am alarmed and gravely concerned at what a negative ruling in this case could mean for communal religious groups of any kind, whether Christian or not. If a religious community is forbidden from living in accord to its own fundamental convictions in doctrine and ethics, there will be only two basic options left: 1) To submit to the constitutional and judicial authority on specific issues with which we are challenged; or 2) Find ways to live in civil disobedience so that we can obey God, rather than man. The tricky part, of course, will be knowing when #1 is still living in obedience to God, and when #2 is necessary to remain faithful to God. In a paraphrase of Niebuhr’s prayer, May God give us wisdom and the courage to know the difference.

What word might we Christians have to say about this at this time?

Full disclosure: I am currently serving as a Board member of the Evangelical Fellowship of Canada and therefore take it as my responsibility to encourage you to consider supporting the EFC in prayer and even financial support (if you are able). The EFC legal team will act as an intervener to this case on October 7, 2008.

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9 thoughts on “Supreme Court to Rule on Hutterian Group Rights

  1. i don’t want to be argumentative here, but these interactions between evangelicals and the country are always so complex and unsettling, so i am trying to think it through really careful.

    i’m not sure how this case leaves us “open to future legal challenges to have the right to set our own doctrinal standards”. The right to doctrinal standards is not being limited, it is the benefit of citizenship (a drivers license) that is being limited because of those doctrinal standards.

    correct me if i’m wrong, but didn’t the EFC argue that homosexuals should not be granted the right to be married by the state? isn’t that already a challenge to a group’s “right to set [their] own doctrinal standards”? on one hand we want to limit this one group’s definition of marriage, and on the other hand we don’t want this other group to be limited in society (by their own doctrinal standard). do we want to have our cake and eat it too? can we limit the doctrines of others or can’t we? does it matter which doctrines? is the interpretation of Exodus 20 relevant?

    i don’t know. we are not a christian nation. this is going to pose us some problems (perhaps increasingly), and i do think we should speak up on political issues, in love, ready to take it on the chin for our beliefs. however, we should speak up on politics evenhandedly. (maybe I’m confusing the EFC with other evangelical groups here, so forgive me if i am being unfair in posing this question).

    thankfully, we are a nation that values freedom of religion. but we can’t only value that when it is our religion (or worldview) under consideration. regardless of the interpretation of exodus 20, i’d like to see the EFC argue that everything that can be done should be done to maintain that freedom of religion for Hutterites while also maintaining all the benefits of citizenship. surely in this case an arrangement could be made with the Hutterites, there must be a win-win that can verify their identity without a photo. if that is the spirit of what the EFC is trying to do here, i’m in full support. if not, i guess i have some questions.

    sheesh, it feels risky posting a comment about politics and faith. be gracious with me! trying to think this one through.

  2. Dustin

    Jon,

    You are concerned about two things:

    1. You do not feel that the provincial government of Alberta is infringing on the religious freedom of the Hutterian Brethren because the government is not forcing the Hutterites to get their pictures taken in order to be citizens, only to have pictures on their driver’s licenses.
    2. You think it is inconsistent for the EFC to oppose the requirement of Hutterian Brethren to get pictures on their driver’s licenses and also to have opposed the legislation that allowed same-sex marriage.

    Have I understood you correctly?
    Dustin

  3. Jon, the courts have, to be clear, ruled in favour of allowing *individual* homosexuals the right to enter into the union of marriage. This was a ruling in favour of individual rights of individual citizens (though I have serious question on how protection on the basis of “sexual orientation” was assumed by the ruling, despite the fact that the Charter explicitly only promises protection for “every individual” on the basis of “race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability”–but I digress…). Whatever the case, the ruling to allow homosexuals to marry was explicitly a ruling in favour of individuals self-identified as homosexuals, not a ruling in favour of an organized group per se. My understanding is that this present case is truly a new set of circumstances, not yet tested in the courts. It is a question of whether, apart from individual rights, there are group rights in regard to religious communities. So we need to be very careful in using comparisons to previous cases. Frankly, the precedents just aren’t there yet. That is why this case is so important.

    I’m intrigued, Jon, by your insistence that we speak up politically (agreed) and that we be prepared to take it on the chin for our convictions (presumably, especially, when it comes to a challenge to our churches and denominations – agreed), but that we do it evenhandedly (agreed, depending on what we mean by evenhandedly, I suppose–that is a fairly abstract idea.) What I’m not sure about is why you think (maybe?) that the EFC speaking up in and through the judicial system at its own legal expense is perhaps not being “evenhanded.” Would it be better not to intervene on behalf of the Hutterian (who, as far as I can tell, are certainly NOT part of the EFC affiliate membership in any way)? That is an option, I suppose, but then who will speak up on their behalf?

    You say, “surely in this case an arrangement could be made with the Hutterites, there must be a win-win that can verify their identity without a photo.” Again, fully agreed. If only there were a way for this to happen, but the Alberta Government has said, “No way–no compromise on this one. Your group’s religious conviction cannot be allowed as an exception to the rule.” Admittedly, I can see perhaps why they don’t want to start getting into exceptions. But the fact remains–the refusal to grant the exception does put the Hutterians in the position where, if they want to make a living by driving their farm trucks and taking their wares to markets, they will have to drive. And if they don’t have a license, they will need either to break the law in civil disobedience, or find a new way to make a livelihood. They won’t have many options left. That some compromise was impossible to come to on this one is the reason it has gone to this judicial level. And keeping in mind that though I’m a board member of the EFC, I do not as a board member have authority to speak on behalf of the EFC; however, I personally think this is why the EFC has decided to go ahead and intervene. Indeed, I think you got the spirit of their intervention just right.

  4. I wonder if the precedent has not already been set, at least in other provincial jurisdictions although I suspect federally. Specifically, there have been couple of issues that impacted the Sikh community, namely the right for RCMP officers who belong to the Sikh community to wear turbans as part of the uniform and ceremonial dress. The other being the right to wear a ceremonial dagger. The drivers licence issue has also been raised by the Muslim community in regards to women although how seriously it has been raised I do not know. I don’t know if the Sikh/RCMP question went all the way through the courts, but that was big news in BC over a decade ago.

    It seems the real question here will become whether these precedents are understood in terms of minority rights (Sikh/Muslim) or religious freedom. Appropriate or not, the Hutterian Brethren might be able to argue the case from either perspective.

    As far as Jon’s concerns, I think I understand that what he is getting at is that it is not so much a question of religious freedom but one of the privileged to drive. In other words, are the Hutterian Brethren prepared to for-go the privilege to drive for the sake of their convictions. Whether of not this is what Jon meant, I would still point back to the other precedents such as the Sikh community issues and suggest that the precedent is that we make allowances for these things in this country.

    I fear what is really at issue is the persistent perspective that this is a Christian country with a Christian majority. In true Canadian fashion we denigrate what we are in favour of “minorities” thus so long as the country considers itself to be dominantly Christian, Christians will not get the same protections as “religious minorities.”

  5. Thanks Dustin for breaking it down like that, it helps me to clarify. For the most part I think I’ve been understood, but I’ll say a bit more.

    First of all, I was going to raise the Sikh/RCMP issue as well. I’m not sure what came of that, but the precedent is that our country seeks to accomodate religious freedom as much as possible, as long as it still allows society to carry on in accord with the rules and laws that it sees as necessary. Defining “necessary” and defining the extent and appropriateness of that “accomodation” are the issue. In the case of the Sikhs I thought it appropriate to allow a turban instead of a Mountie’s hat, but found the possession of the sword to be debatable. I don’t recall how that one turned out.

    Regardless, Bill’s point is valid. There have already been cases of this nature. Maybe not in the Supreme Court. Does anyone remember?

    Do I think the Hutterites could be accomodated here? Probably, and I hope they are, simply because I think our country needs to seek to be consistent and vigilant in its striving for religious freedom. It is interesting that Bill raises the point that in this case it may hurt somewhat to still be considered the “majority”.

    Now, having said that, let me clarify how I might nuance my problem a bit different than I have come across to Dustin:

    1. I don’t feel the provincial government of Alberta is “infringing” on the religious freedom of the Hutterian Brethren, but I do think they should do more to accomodate them. So I support the EFC standing up for them here. (Did the EFC go to bat for the Sikhs? I think they might have to some degree. Again I don’t recall. If not, then maybe Exodus 20 is at least somewhat relevant here (as a motivation), in that we are now interested because it involves an interpretation of the Bible (however flawed). If so, good for them.).

    I guess the real question I’m raising is what the reason for the involvement is. I’m not sure “the right to set its own doctrinal standards” is in question here. I think the country’s posture toward religious freedom in its application of societal rules and laws is in question.

    2. I am not sure if “it is inconsistent for the EFC to oppose the requirement of Hutterian Brethren to get pictures on their driver’s licenses and also to have opposed the legislation that allowed same-sex marriage.” It feels inconsistent to me, though, and so I pose the question. I am not totally clear why it makes a difference that it is a “group” and not an “individual” in this case.

    I do feel like the evangelical sentiment toward gay marriage was that it shouldn’t be allowed on the basis of “traditional” (read: Judeo-Christian) definitions). That seems a lot like limiting the rights of others to “set [their] own doctrinal standards.” “Doctrinal” might be a stretch, as there is no set group with a published set of dogmas to contend with (far as I know), but the principle is the same. A bunch of people think marriage can be inter-gender. Some of them actually think the Bible supports this. I beg to differ with them. But I’m not certain I can tell them they can’t do it, at least not in a country that allows “religious” freedom. We are accomodating them as a country. I don’t agree with it, but I can’t have my cake (the right to my religious definition of marriage) and eat it too (denying other definitions). Ours is not a Christian country.

    The government was not telling churches they had to marry gays, it was deciding whether it would. I think it exposed a misconception that the state ordains marriage, when really it is ordained before God by the church. The state can do whatever it wants, in my view it has no power to redefine marriage. Now, when the state tells the church it has to marry gays, then we have a problem the likes of infringing on “the right to set [our] own doctrinal standards.” I imagine this could happen in our future, and I have no problem with getting ahead of the legal game on that (as I think the EFC was doing). I just want clarity on what the issue is in each case and the reason for arguing it.

    Sorry to be rambling on. I think I have a decent question in there, even if I am only exposing my own understanding.

  6. Can’t take lots of time here, and though this is a digression, I thought it was important to comment on the marriage issue:

    Jon said: I do feel like the evangelical sentiment toward gay marriage was that it shouldn’t be allowed on the basis of “traditional” (read: Judeo-Christian) definitions). That seems a lot like limiting the rights of others to “set [their] own doctrinal standards.” “Doctrinal” might be a stretch, as there is no set group with a published set of dogmas to contend with (far as I know), but the principle is the same. A bunch of people think marriage can be inter-gender.” [End quote]

    Some quick clarifications:
    1) The traditional view of marriage is not only upheld by Judeo-Christian theology, but also by tradition at law right through to the Greek and Roman period. The definition of marriage as between male and female, while upheld by Jews and Christians, are hardly alone here.

    2) As Douglas Farrow has helpfully pointed out, before Bill C-38, everyone already had the right to marry. Every male could marry a female, and vice versa. The red-herring of Bill C38 supporters was that they were being denied the right to marry–which was not true. They simply couldn’t marry someone of the same gender; they weren’t denied marriage. What they wanted to right to do was to change the definition, which was upheld in law and theology alike.

    A simple analogy is this: People living in Saskatchewan all have the “right” to travel to Alberta if they wish. If they do not exercise that right, they are not thereby denied the right. We are all “equal” here. However, if a bunch of people want the right to change the definition of “Saskatoon” to “a city in North-Eastern Alberta” so that when they go to Saskatoon they can say they are in Alberta, they are not thereby granted that right simply because they want this. They may want to define Saskatoon that way, but this is not an issue of rights; but of a previously, well established previously set legal boundary set and lived by for more than century. Similarly, Bill C38 wasn’t about the “right to marry some of the same sex” but about the “right to redefine marriage to accomodate those who don’t like the traditional legal (and religious) definition.” (or as applied to the analogy above, for those who don’t want Saskatoon to be in Saskatchewan). And that was a right that no one had, certainly not Parliament and certainly not the courts.

  7. RE: [Jon] Regardless, Bill’s point is valid. There have already been cases of this nature. Maybe not in the Supreme Court. Does anyone remember?

    —–

    According to the CBC archives, “In 1996, the Supreme Court of Canada dismissed an appeal by three former RCMP officers who were challenging the right for Sikhs to wear turbans while on duty.” (http://archives.cbc.ca/politics/rights_freedoms/clips/3302/).

    The government had approved the wearing of Turbans by Sikh officers in 1990 on the basis of “accommodating religious belief” (Pierre Cadieux, Solicitor General, 1990 – as recorded by the CBC, accessed on http://archives.cbc.ca/politics/rights_freedoms/clips/3302/).

  8. Dale Harris

    There are a couple things that stand out to me here. In your post, David, you said that when a religious community is forbidden from living in accord to its own fundamental convictions there will be only two options left: compromise (submit to legal authority) or civil disobedience.

    I may be misreading you there, but I wonder about the polarized either/or that this position forces us into. Are those really the only two options? Just off the cuff I can think of a whole handful of other options, options that various religious groups have, and still do chose, such as: non-participation (like the Amish, who don’t need to worry about drivers licenses because they’ve chosen not to drive), migration (I think a lot of Old-Colony Mennonite groups exercise this option when they feel the state has infringed on their religious autonomy), or a thoughtful re-examination of the fundamental conviction (Would the biblical text and its interpretation be relevant if, instead of Exodus 20, a religious group wanted to use 2 Sam 12:8 to justify polygamy?).

    Please understand: I am not saying that non-participation, migration, or re-examination of the conviction are necessarily better options than compromise or civil disobedience (some of them would be very difficult, painful choices to make); I’m simply trying to point out that it’s not true to say there are only two options left; and to express my concern that when we frame the issue as an absolute either/or like this, we tend to promote confontation and close off possibilites for healthy dialogue.

    Even if you don’t find this line of thought is helpful, at any rate it is not yet clear to me how in this particular case, a group is actually being forbidden from living in accord with its own fundamental convictions. As far as I can tell, the fundamental conviction in question is that they should not have their pictures taken, and no one is “forbidding” them from this: no one is photographing them against their will. I agree with Jon, I feel like the Alberta Government could and should do more to accomodate, but I don’t feel they are “infringing” on their religious freedom.

    More directly, however, I am having difficulty seeing how your analogy for “rights” and “gay marriage” doesn’t obtain in this particular case, too. You wrote about how people living in Saskatchewan have the ‘right’ to travel to Alberta, but if they don’t exercise that right, they are not thereby denied the right; and that if a bunch of people want the right to change the definition of “Saskatoon” to “a city in North-Eastern Alberta” so that when they go to Saskatoon they can say they are in Alberta, they are not thereby granted that right simply because they want this. Could we use the same argument for the license issue: people living in Alberta have the right to obtain a license (a document which includes photo-identification) so that they may legally drive a car; if they don’t exercise the right, they aren’t being denied it; nor, if people wished to redefine “drivers license” to “a document without photo identification” they are not thereby granted that right simply because they want this.

    The analogy maybe doesn’t work quite as well as it does for gay marriage, but it seems like the logic is the same.

  9. i find douglas farrow’s point helpful, but it doesn’t change the fact that in that case a group of people thought marriage should be different than it has been and we evangelicals were trying to refuse them the right to change it. whether history or interpretation is on their side or not is no more “irrelevant” than whether the hutterites are interpreting exodus 20 correctly.

    don’t get me wrong, i think the state re-definition of marriage was worth arguing about, and so is the hutterites case for accomodation, but i think it is crucial how we frame such arguments. for my part i do not agree with homosexuals regarding marriage, but this is the bind of being in a country with such freedoms as ours has. i do think accomodating state-marriages of this nature brought in a host of other issues (such as parenthood and clergy requirements) that were and are worth speaking out against reasonably as well.

    so i don’t disagree with the EFC’s involvement, nor its position, but i was trying to pose questions about the idea that this was an unprecedented case, that it was an infringement on their doctrinal standards, or even that exodus 20 was irrelevant. i think dale, bill, david, and dustin have all made points that make me wiser in this regard. a sticky situation to be sure, and i’m thankful for this brief form which allowed us to hammer it around.

    i’m also thankful for the EFC and i do really hope that the hutterites are accomodated here. dale is right that there may be creative solutions for them, but this is still deeply troubling and i feel for them as one who respects their strong convictions, even while seriously disagreeing with them.

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