Equal, but only Conceptually: Explaining the Trend of Religious Losses in Contemporary Canadian Constitutional Cases Involving Conflicting Rights
Bibliographic record
Abstract
If there is no hierarchy of fundamental rights in Canada, then how is it acceptable that freedom of religion so often seems to lose in cases of conflicts with other rights? This article discusses five recent Canadian cases (involving same-sex marriages, controversial medical practices, the wearing of a niqab, and a Christian university’s sexual conduct policy) in order to expose how the Courts regularly characterize freedom of religion as being conceptually equal to other rights, before ruling against freedom of religion on the facts of the particular cases. This trend within Canadian rights jurisprudence is then justified within the article by reference to a new combination of insights drawn from legal and liberal political theory. The article begins by describing utilitarian proportionality frameworks that, notwithstanding their flaws, are almost universally accepted as the best tools for resolving contested rights claims. Then, after addressing how the five contemporary Canadian cases use these proportionality tools to subordinate religious rights, the article suggests how it is justifiable for freedom of religion to yield in such cases when this right conflicts with other rights, particularly because of considerations relating to: (1) Rawlsian public reason; (2) third-party harms and dignitary harms; and, (3) the special significance of emerging and emancipation rights. The article concludes that freedom of religion is only equal to other rights at a high level of abstraction; at a more pragmatic and concrete level, religious freedom is regularly subordinated to other rights in ways that can be defended where one or a combination of the three enumerated considerations is present.
Fetched live from OpenAlex and de-inverted. Abstracts are not stored in this database: the inverted indexes are 8.6 GB of the frame’s 9.3 GB of text, and the host has 13 GB free.
How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.005 | 0.018 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.006 | 0.007 |
| Science and technology studies | 0.031 | 0.038 |
| Scholarly communication | 0.011 | 0.004 |
| Open science | 0.003 | 0.006 |
| Research integrity | 0.003 | 0.006 |
| Insufficient payload (model declined to judge) | 0.004 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".