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R eligion , — Fifth, one might suppose that there are other variables at work and that disestablishment, whether by itself or in combination with other, long-standing cultural traditions, is not the whole story. The sociologist Steve Bruce and the political scientist Kenneth Wald identify two variables that, in our view, have considerable plausibility as part of the causal story.

Bruce proposes the social and political structure of minority ethnic groups as one explanation for the vigor of religion in the U. Richard Niebuhr and Will Herberg, 28 Bruce contends that immigrant groups use religious communities to preserve their ethnic identities and to develop support mechanisms at the same time that they seek to assimilate to the larger national economic culture. New immigrants who want to succeed in the United States are expected to become Americans and leave their old civic identities behind, but the larger culture considers it acceptable—even desirable—for them to retain specific religious identities.

These connections between ethnicity and religious communities are, of course, not unique to immigrant communities. Churches in the U. Black churches, for example, have been a source of strength for African-American neighborhoods and communities. Bruce develops this argument largely to account for disparities between American and European religiosity.

Canada, like the United States, is a country of immigrants, so Bruce's argument might seem to have little power to explain disparities in the religious cultures of these two countries. Yet, as Lipset notes, the patterns of immigration to the two countries have been considerably different. Canada, for much of its history, was settled by people from its founding national groups, British and French….

The United States, on the other hand, drew its immigrants from more diverse sources, first more Germans and Irish Catholics, and, from the s on, increasingly other parts of Europe. This pattern changed in the twentieth century, with Canada opening itself to a broader range of immigrants and U.

Nevertheless, even in the last quarter of the century just completed, the contrast between the two North American countries is striking. About one-quarter of entrants to Canada in were from Europe and the United States, while about one-seventh of newcomers to America arrived from Europe and Canada. No European country now places among the top ten sources of immigration to the United States; only Britain ranks in this group in Canada. More than 40 percent of those entering both North American countries in the s have been Asian. Lipset's numbers appear to be based on the number of legal immigrants.

Canada takes in more legal ones per capita, though it too is home to many illegals. David Martin, in a comparative study of Canadian, U. See also Mirko Petricevic, Mosaic of Beliefs , T he R ecord Kitchener-Waterloo, Ontario , June 25, , at P8 indicating that no non-Chrisitan resident was recorded in the Waterloo area until ; non-Christians in the census accounted for approximately 5 percent of the local population. Moreover, U. French-Canadians are concentrated in a province, where they have power and do not have to rely on religious organizations to mediate their relations with the state.

Martin, supra note 33, at Thus, while both the United States and Canada are immigrant nations with relatively diverse populations, their demographic characteristics differ in a way material to Bruce's thesis. The greater variety and dispersion of U. Religious communities might fill this need; if so, the differing character of minority politics and interests in the United States might help to explain why religion there is more robust. One might be able to test this possibility by investigating whether the areas of Canada receiving a higher number of non-British and non-French immigrants—such as, perhaps, some neighborhoods of Toronto—have witnessed the growth of immigrant churches like those commonly found in the United States.

Wald's suggestion focuses on two structural features of U. Because the United States government has multiple veto points, it is less likely to provide the services, such as health care, that people need. Religious organizations can make themselves valuable to people by filling the resulting gaps. There are, in other words, many different jurisdictions or officials whom groups, including religious groups, can influence or control, thereby again delivering value to their members. W ald , R eligion and P olitics in the U nited S tates 23—24, n.

Bruce makes the same point. Press ; Bruce, supra note 27, at Wald uses abortion politics to illustrate this theory. Taken in combination, Wald's two observations point to the fact that political power in the United States is more fragmented than in Canada. This condition generates two opportunities for religious organizations and other organizations to prove their utility to potential members and adherents: by influencing one of the many available government institutions or by responding to needs unmet by government.

Fragmentation in this sense is very different from federalism. Indeed, the Canadian provinces are, in general, more powerful than the U. Fragmentation in the U. Bruce, supra note 27, at ; Bruce, supra note 39, at For a brief discussion of the differences between Canadian and American federalism, see Martha A. P rob. Political fragmentation is an intriguing explanation for the comparative robustness of U. Like the disestablishment hypothesis, it focuses on political structures rather than culture or demography.

On the other hand, fragmentation, unlike disestablishment, is not a constitutional institution or principle specifically addressed to religion; it is a much more general structural condition. Political fragmentation should provide opportunities for all sorts of private associations, not just religious organizations. One way to test its importance as an explanation, therefore, would be to compare variations in Canadian and U. If indeed varying levels of political fragmentation were responsible for disparities between U.

It is probably impossible to reach a conclusive judgment about the causal importance of any of the possible variables we have identified: disestablishment, historical culture, minority groups, and fragmentation of political power. Nevertheless, we can offer two comments in response to our question about whether constitutional differences are responsible for the differing levels of religiosity in the United States and Canada.

First, one of the most venerable and frequently mentioned hypotheses about that difference focuses on a cause that is undoubtedly constitutional, namely, disestablishment. Second, it is at least possible that a structural constitutional condition, the comparatively greater fragmentation of political power in the United States, has reinforced the effects of disestablishment. Up to this point, we have been examining how constitutional norms might have shaped religious practice in Canada and the United States; in this section, we reverse the direction of the inquiry to ask whether patterns of religious practice in the two countries might have generated differences in constitutional norms regarding religious freedoms.

To make progress, we must first consider to what extent those norms actually diverge. Scholars comparing U. These jurisprudential parallels, which transcend differences in both the religious sociology and the constitutional texts of the two nations, are significant in their own right, and we shall return them shortly. This is one of those instances, however, where the law on the books can yield a deceptive picture of constitutional practice.

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The exceptions to the general pattern of jurisprudential convergence turn out to be important signals of more dramatic differences in the two countries' attitude toward disestablishment. C onst. Press ; and Robert A. More specifically, Canada and the United States have radically different norms governing public support for religious education. In the United States, the Supreme Court has held that the Constitution prohibits the government from offering religious instruction in public schools; until very recently, the Court also held that the government could not provide financial support to private religious schools.

In a controversial decision, Zelman v. Simmons-Harris , 46 five justices repudiated the latter doctrine the other four dissented vigorously, insisting that the Constitution bars any state aid to religious education. After Zelman , the state may help to defray the costs of religious education provided that it does so through mechanisms that respect parental choice and that do not discriminate among religions or between religion and nonreligion.

Although Zelman allows governments greater freedom to support religious schools, the Zelman majority insisted that the state's funding mechanism must be neutral among religions and between religion and nonreligion. Canadian constitutional norms are much different from either pre- Zelman or post- Zelman U. Funding arrangements vary greatly among the provinces, and they involve both state-operated religious schools and state-funded private religious schools. Many of the provinces discriminate among denominations.

Here is a brief description from Mark Holmes, published in when he was professor emeritus at the Ontario Institute for Studies in Education at the University of Toronto: British Columbia, Manitoba, Alberta, and Quebec all provide partial funding to support independent schools that meet certain conditions. These provinces differ in their treatment of Roman Catholic schools, with British Columbia and Manitoba treating such schools on the same basis as Seventh-Day Adventist or Dutch Reformed Institutions, while Alberta and Quebec have fully funded Roman Catholic systems as well as partially supported religious and secular schools….

Quebec has an elaborate protocol for the funding of private schools….

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Many of [its] private schools are Roman Catholic, which is not the case in the provinces with publicly funded Catholic systems, probably because the public Catholic schools in Quebec, particularly the large secondary polyvalents , have been secularized…. Saskatchewan and Ontario are the most discriminatory provinces in their treatment of independent schools. Both fully fund public Roman Catholic separate schools, but provide no support for the independent schools attended by members of other denominations or religions…. The Maritime provinces are less overtly discriminatory than Ontario and Saskatchewan….

Newfoundland is the only province where parents do not have access to avowedly secular schools. There is little overt demand, probably because the Integrated [mainstream Protestant] schools are often de facto secular. Newfoundland made radical reforms to its school finance laws after two referenda in the late s and no longer funds religious schools; the public schools are now secular.

Under U. Moreover, Canada delivers its funding to the religious schools through a variety of mechanisms that Americans would find equally jaw-dropping, such as school board elections in which only registered Catholics can vote and taxes that vary with one's religion. For a description of some of these arrangements, see A lbert J.

M enendez , C hurch and S tate in C anada 47—68 Prometheus In Adler , Jewish parents sued the Ontario government demanding that Ontario fund Jewish schools along with Catholic ones. Joining them were other parents who sought state subsidies for independent Christian schools. It bears mention that the U. Supreme Court likewise invoked historical practice to approve denominational favoritism in Marsh v.

Chambers , U. The Marsh Court declared it irrelevant that a Presbyterian minister had held the Nebraska post for sixteen consecutive years. Unlike its Canadian counterpart, the American Court could not point to any explicit textual provision to justify its departure from the basic constitutional principle prohibiting the government from discriminating among sects. United States observers would expect that the Canadian laws on public support for religious education would be highly controversial, both because the laws seem outrageous by U.

As Adler indicates, some Canadians—especially Jewish parents and some other minority religious believers in Ontario—do find the discriminatory laws offensive. In response to a complaint from some of these parents, the United Nations Human Rights Committee held in that Ontario's education laws violated the International Covenant on Civil and Political Rights. Canada, No. Stephen Gowans, Fairness in School Funding? It's Just Not On , www. Gaustad, Edwin S. Gey, Steven G. Gregory, David L. Gamwell, Franklin. The Meaning of Religious Freedom.

Glendon, Mary Ann. Goldwin, Robert A. Green, Steven K. Religion and the Constitution. Religious Convictions and Political Choice. Oxford University Press, Gunn, Jeremy T. New York: Garland Publishing, Hall, Timothy L. Hamburger, Philip A. Separation of Church and State. Hamilton, Marci. God vs. Gavel: Religion and the Rule of Law. Hammar, Richard R.

Hammond, Phillip. Hammond, Phillip E. Machacek, and Eric M. Handy, Robert T. Houtman, Roxanne. Howe, Mark DeWolfe. Cases on Church and State in the United States. Idleman, Scott C. Johnson, Alvin N. Separation of Church and State in the United States. Katz, Wilber G. Kauper, Paul G. Dallin H. Kelsay, John, and Sumner B. Twiss, eds. Religion and Human Rights. Kramnick, Isaac and R.

Laurence Moore. New York: Norton, Kurland, Philip. Chicago: Aldine, Marshall, Bill. McConnell, Michael. Religion and the Constitution , 2nd ed.

1. Do constitutional differences cause differences in religiosity?

New York: Aspen, Miller, William Lee. New York: Alfred A. Knopf, Monsma, Stephen v. Monsma, Steven V. Lanham, MD: Rowman and Littlefield, Monsma, Steven v. Equal Treatment of Religion in a Pluralistic Society. Morgan, Edmund S. The Church and the State. New York: Harcourt, Brace and World, Morgan, Richard E. New York: Pegasus, The Supreme Court and Religion. New York: Free Press, Murray, Bruce T. Neuhaus, Richard John. Noonan, John. Noonan, John T. Paulsen, Mike. Pepper, Stephen. Picarello, Anthony, Jr. Pfeffer, Leo. Church, State and Freedom , 2nd ed. Religion, State, and the Burger Court.

Powell, H. Rogers, Melissa. David K. Ryden and Jeffrey Polet. Sandel, Michael. Sandoz, Ellis. Smith, Michael E. Smith, Rodney K. Wilmington, DE: Scholarly Resources, Smith, Steven D. Steinberg, David E. Stokes, Anson Phelps. Up to this point, we have been examining how constitutional norms might have shaped religious practice in Canada and the United States; in this section, we reverse the direction of the inquiry to ask whether patterns of religious practice in the two countries might have generated differences in constitutional norms regarding religious freedoms.

To make progress, we must first consider to what extent those norms actually diverge. Scholars comparing U. These jurisprudential parallels, which transcend differences in both the religious sociology and the constitutional texts of the two nations, are significant in their own right, and we shall return them shortly. This is one of those instances, however, where the law on the books can yield a deceptive picture of constitutional practice. The exceptions to the general pattern of jurisprudential convergence turn out to be important signals of more dramatic differences in the two countries' attitude toward disestablishment.

C onst. Press ; and Robert A. More specifically, Canada and the United States have radically different norms governing public support for religious education. In the United States, the Supreme Court has held that the Constitution prohibits the government from offering religious instruction in public schools; until very recently, the Court also held that the government could not provide financial support to private religious schools.

In a controversial decision, Zelman v.

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Simmons-Harris , 46 five justices repudiated the latter doctrine the other four dissented vigorously, insisting that the Constitution bars any state aid to religious education. After Zelman , the state may help to defray the costs of religious education provided that it does so through mechanisms that respect parental choice and that do not discriminate among religions or between religion and nonreligion. Although Zelman allows governments greater freedom to support religious schools, the Zelman majority insisted that the state's funding mechanism must be neutral among religions and between religion and nonreligion.

Canadian constitutional norms are much different from either pre- Zelman or post- Zelman U. Funding arrangements vary greatly among the provinces, and they involve both state-operated religious schools and state-funded private religious schools. Many of the provinces discriminate among denominations. Here is a brief description from Mark Holmes, published in when he was professor emeritus at the Ontario Institute for Studies in Education at the University of Toronto: British Columbia, Manitoba, Alberta, and Quebec all provide partial funding to support independent schools that meet certain conditions.

These provinces differ in their treatment of Roman Catholic schools, with British Columbia and Manitoba treating such schools on the same basis as Seventh-Day Adventist or Dutch Reformed Institutions, while Alberta and Quebec have fully funded Roman Catholic systems as well as partially supported religious and secular schools…. Quebec has an elaborate protocol for the funding of private schools….

Many of [its] private schools are Roman Catholic, which is not the case in the provinces with publicly funded Catholic systems, probably because the public Catholic schools in Quebec, particularly the large secondary polyvalents , have been secularized…. Saskatchewan and Ontario are the most discriminatory provinces in their treatment of independent schools. Both fully fund public Roman Catholic separate schools, but provide no support for the independent schools attended by members of other denominations or religions….

The Maritime provinces are less overtly discriminatory than Ontario and Saskatchewan…. Newfoundland is the only province where parents do not have access to avowedly secular schools. There is little overt demand, probably because the Integrated [mainstream Protestant] schools are often de facto secular. Newfoundland made radical reforms to its school finance laws after two referenda in the late s and no longer funds religious schools; the public schools are now secular. Under U. Moreover, Canada delivers its funding to the religious schools through a variety of mechanisms that Americans would find equally jaw-dropping, such as school board elections in which only registered Catholics can vote and taxes that vary with one's religion.

For a description of some of these arrangements, see A lbert J. M enendez , C hurch and S tate in C anada 47—68 Prometheus In Adler , Jewish parents sued the Ontario government demanding that Ontario fund Jewish schools along with Catholic ones. Joining them were other parents who sought state subsidies for independent Christian schools. It bears mention that the U. Supreme Court likewise invoked historical practice to approve denominational favoritism in Marsh v. Chambers , U. The Marsh Court declared it irrelevant that a Presbyterian minister had held the Nebraska post for sixteen consecutive years.

Unlike its Canadian counterpart, the American Court could not point to any explicit textual provision to justify its departure from the basic constitutional principle prohibiting the government from discriminating among sects.

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United States observers would expect that the Canadian laws on public support for religious education would be highly controversial, both because the laws seem outrageous by U. As Adler indicates, some Canadians—especially Jewish parents and some other minority religious believers in Ontario—do find the discriminatory laws offensive. In response to a complaint from some of these parents, the United Nations Human Rights Committee held in that Ontario's education laws violated the International Covenant on Civil and Political Rights.

Canada, No. Stephen Gowans, Fairness in School Funding? It's Just Not On , www. Thus far we have only described discrepancies between norms of religious freedom in Canada and the United States without asking whether they derive in any way from the differing religious histories and sociologies of the two countries. There is no doubt that they do. Canada's system of preferences results from its history and its religious sociology—in particular, from the existence of an oligarchic structure in which dominant churches were quasi-established within a particular region and relegated to minority status elsewhere.

Many scholars have documented the influence of the Protestant tradition on the United States' embrace of disestablishment. Toronto Press In practice, though, this expectation turns out to be disappointed. For the most part, Canada's jurisprudence of religious freedom is no less individualistic than its U.

Within both the United States and Canada, constitutional controversies over religious freedom divide into two rough categories. The first category involves questions about the limits on the government's power to burden the practices of nonmainstream religious groups and individuals. In the United States, these cases arise under the First Amendment's free exercise clause.

Prominent examples from the United States include issues about whether Native American religious rituals should be exempt from state laws banning the use of peyote; 62 whether the Amish must comply with state laws requiring children to attend school until the age of fourteen; 63 and whether a city may prohibit the ritual slaughter of animals.

Smith, U. Jones, [] 2 S. British Columbia College of Teachers, [] S. Gruenke v. The Queen [], 3 S. See also the discussion in Denise J. As the controversy over the peyote case Smith v. Department of Employment Services in the United States makes clear, people disagree sharply about how to resolve these cases. Some theories emphasize the importance of enabling religious minorities to flourish unimpeded by government, while other theories emphasize the need to protect minorities from hostility, neglect, and other varieties of unequal treatment.

Religious minorities may care intensely about burdened practices even if the nation, as a whole, is secular. And a majority may have either secular or religious reasons for treating religious minorities badly or well. Perhaps for these reasons, the differences between U. The convergence is remarkable because there are some pertinent textual differences between the two constitutions. The U. Court has rarely made mention of the U. Nevertheless, U.

The second category of religious freedom issues involves limitations on the government's ability to endorse or favor popular religions, or to promote religion in general. In the United States, these claims are treated under the establishment clause. In Canada, the most prominent cases have dealt with state subsidies for religious education 70 and Sunday closing laws. Big M. Drug Mart Ltd. Edwards Books and Art, Ltd. One might expect that the differences in Canadian and U.

It is with regard to disestablishment that the constitutional practices of the two countries differ most dramatically, both historically and today. Moreover, the intrusions upon religious freedom in many of the establishment clause cases are more subtle than are the harms in free exercise cases. Like most civil liberties cases, free exercise cases involve a readily apparent injury to an identifiable group—those who want to engage in a religious practice that is burdened or prohibited by law.

In that respect, free exercise cases are much like cases about freedom of speech, reproductive autonomy, criminal procedure, and so on. In at least some establishment clause cases, by contrast, the character of the injury is less clear. You may, of course, find the display offensive, and you might wish—fervently—that the government had spent its money on something else.

But these sorts of complaints do not usually give you a constitutional claim. For example, you may dislike flying into Reagan National Airport, but your choice is to put up with the name or go to Dulles or Baltimore-Washington International instead. Likewise, you may disapprove of the choices the government makes about what artwork to display in the National Gallery, or about which nations to favor with foreign aid, but you are not entitled to complain in court. Indeed, establishment clause claims are sufficiently distinctive in American jurisprudence that they require their own special jurisdictional doctrines.

Alleging that your tax dollars were used for an unconstitutional purpose will sometimes suffice to give you standing as a plaintiff if you are asserting an establishment clause claim, but not if you are complaining about the violation of some other constitutional provision. Cohen, U. This argument is controversial within the United States. Some U. One might hypothesize that a country such as Canada, in which religious divisions seem less politically salient than in the United States, would have less reason to worry about whether the government had identified itself with one or another religious group.

If so, that would be another reason to expect the constitutional courts of the two countries to reason differently about disestablishment. Weisman, U. In an important respect, Canadian and U. A prominent strand in U. This strand can no longer claim majority support on the Supreme Court after Zelman. Supreme Court cases. It retains considerable support in U.