Benjamin Berger of Osgoode Hall Law School has posted "Assessing Adler: The Weight of Constitutional History and the Future of Religious Freedom" on SSRN. The article is forthcoming in the National Journal of Constitutional Law.
Abstract: This article approaches Adler v Ontario as a distinctively useful perch from which to survey the history and future of the constitutional interaction of law and religion. The case is positioned at a provocative place in the arc of the development of this interaction and the article uses the reasons in Adler to expose and explore some themes that shape not only our religion jurisprudence, but Canadian constitutionalism more generally. The article begins by examining what the majority’s heavy reliance on religion’s place in constitutional history suggests about the competing logics at work in Canadian constitutional life. That discussion leads to a reflection on the central role that religion has played in Canadian nation-building and federalism, a role that is abiding, not just historical. The article then looks forward from Adler, exploring the central place of issues surrounding the education of children in the development of law and religion jurisprudence in the years after Adler, before turning to consider the question of the group or community aspect of religion — a point that was exposed in Adler, but that, after a period of relative abeyance, has reemerged as a central question for the future of law and religion in Canada. The article concludes by suggesting that, in addition to serving as an entry point into understanding key elements of the history and development of law and religion in Canada, reassessing the holding in Adler might itself be part of our constitutional future.