WHAT IS THE NEW URBANISM? New Urbanism is a coalition of architects, developers, planners, journalists, and citizen activists who are committed to the maintenance and development of a physical form of the built environment that supports human community. Their convictions on this matter are simple and relatively straightforward: In order to promote community, the built environment must be diverse in population, scaled for the pedestrian, and capable of supporting mass transit as well as the automobile. It must have a well-defined public realim supported by buildings reflecting the architecture and ecology of the region. (Suburban Nation, 254 ) Unlike many utopian or reformist movements that have attempted to articulate a completely new model for shared human life, the New Urbanist movement is distinct in its interest in drawing most of its models from historical forms that have proven themselves viable within actual human communities. New Urbanism is also somewhat of a rarity historically because unlike reformist or utopian movements, they have managed to provide a product for which the market has responded very favorably. New Urbanist projects have been by in large both financially successful and favorably received by the communities in which they have been located. New Urbanism should not be understood as advocating simply for an alternative set of design principles to replace those that were popular in the immediately preceding era. New Urbanism as a design (or form) oriented movement is distinct from other movements of this type in a few significant ways. In the first place, New Urbanism represents an integrated approach to place making. It is opposed to atomistic approaches to development and planning that sees each project as a self-contained whole. New Urbanists, rather are concerned with the urban fabric as a whole. For instance, they are concerned that buildings collectively form a coherent urban space, that public buildings and monuments are arraigned according to sight lines, and that parking be regulated according to district needs rather than by reference to particular buildings. Secondly, New Urbanists are committed to context sensitive urban design. They are committed to development that respects local topography, climate, as well as the tastes and values of the local community. For this last reason, particularly, New Urbanism has tended to move forward not by selling clients a design product, but rather by helping local communities structure their own projects. By necessity, therefore, New Urbanism has been as active in teaching historic principles of urbanism as in developing particular projects. That said, New Urbanism represents a growing number of discrete projects in North America, and it has had immeasurable influence on private developers and municipal planners. Although New Urbanists have chosen to remain politically neutral and they have been extremely cautious about employing value-laden language in support of their advocacy of human-scaled communities, it is possible to discern some normative values under-girding their larger project. In the first place, The Charter for the New Urbanism expresses a concern for increasing racial and income separation which has been a liability of a more suburban style of development. This concern is at least partially addressed in an explicit recommendation that “affordable housing should be distributed throughout the region to match job opportunities and to avoid concentrations of poverty.” This is an admirable goal, but it is in no way a universal conviction of those who have advocated for human-scale community throughout human history. This particular conviction expresses a normative valuing of justice among New Urbanists that is not explicitly supported from within their foundational documents. The second normative value expressed within The Charter for the New Urbanism is a concern for civic life and, more specifically, for democracy. New Urbanists are in favor of a “broad range of housing types” because they can bring a cross-section of the populace “into daily interaction, strengthening the personal and civic bonds essential to an authentic community.” This reference to “authentic community” implies that there exists such a thing as “inauthentic community”. Part of what makes the community authentic, therefore, is the existence of personal and civic bonds. “Personal bonds” clearly refers to the informal network of individual or familial relationships that exist within communities. The reference to “civic bonds,” however, implies certain formalized mediating institutions, but the nature and form of such mediating institutions is not articulated within the document. In a similar vein, The Charter makes reference to “important civic buildings” that “reinforce community identity and the culture of democracy.” Again, the nature and form of such civic buildings is not made clear. Also, qualifying civic buildings as “important” suggests that the local community deems them so. As with justice, these references to civic institutions and civic buildings are somewhat vague, and the Charter does not suggest the mechanism by which such institutions are created or supported. IS IT REASONABLE TO EXPECT THE MOVEMENT TO MEET ITS GOALS? The goals of community enhancement through the built environment with an expressed interest in equitable justice as well as the culture of democracy are admirable goals, and ones likely to overlap with a great number of governmental bodies at all levels. In this, the New Urbanist Movement should be welcomed by governmental bodies as one of the positive forces within the private sector that is working for the common good. Having said this, it is also prudent to inquire as to the prospects and possibilities for the New Urbanist movements meeting their stated goals. This is not to question the motives or character of those within the movement, but rather to inquire as to where their goals might find broader support. The goal of justice by way of equitable housing in decent neighborhoods and the goal of democratic participation are not ones that need explicit justification within a North American context. Since we are aware of a possible disconnect between expressed convictions and actual behavior, it is reasonable to ask whether those who buy into the New Urbanist paradigm demonstrate a commitment to the full range of goals expressed in the Charter in their practices. At present, most New Urbanist projects are prohibitively expensive for the majority of residents of the larger municipality within which projects are located. Now, much of this reflects a normal market response to very popular projects and can’t be directly attributed to the activity of any particular individuals. On the other hand, not all New Urbanist developments currently have as much affordable housing as they could absorb, and New Urbanist developers have not been immune to trying to find ways around meeting affordable housing requirements. Furthermore, I am not aware of any significant advocacy movement for affordable housing emerging from among residents of any particular New Urbanist project. The influence of New Urbanism on older urban neighborhoods is a significant factor in the demographic trend known as gentrification. While the effects of gentrification are not altogether bad for a particular community, New Urbanist in-fill projects have caused displacement among poor and ethnic communities with historic ties to a particular neighborhood. This is not to say that many New Urbanists are not deeply committed to meeting the goal of equitable housing and may, in fact, be developing strategies to alleviate this situation. It is simply an observation that there has not been much evidence of specific action to support the philosophical commitment to justice among New Urbanists. It should also be noted that New Urbanist thinking has had a positive influence on those who hold official responsibility for providing affordable housing. The membership roles of the Congress for the New Urbanist includes several governmental officials who are committed to providing affordable housing. However, the efforts of such agents have not yet been well integrated into the movement as a whole or to the various projects represented by the movement. There are significant limits to what role governmental agencies can do to provide adequate affordable housing without support from developers and community members who have a deep commitment to meeting these goals. The New Urbanist movement is not in a position to leverage the kind of moral capital that would be necessary to bring about this kind of broad ‘buy-in’ to the issue of affordability in housing among developers and residents. As to the second goal of supporting mediating institutions and providing ‘important’ civic buildings that support the culture of democracy, it is difficult to get an accurate picture. As difficult as it may be, it is an important line of inquiry because it is the one element that could potentially substantiate the New Urbanist claim to providing “authentic community” as opposed to the lifestyle enclaves that exist in more privatized suburban development and gated communities. This issue will require further research and must be watched as New Urbanist communities mature. In general because of when these communities were established they may be at a relative disadvantage regarding the establishment of new civic institutions. Additionally, if such institutions do emerge, it is unlikely that they will have the wherewithal to develop any “important” buildings. As Robert Putnam famously noted, civic participation has gone significantly down over the last fifty years or so. Bowling leagues, service clubs, and other mediating institutions are struggling to keep membership roles from floundering. It is the rare exception to see a new group established, and we should not be too optimistic about the prospects for such mediating institutions within New Urbanist communities. Neither of these observations are meant to be a foundational critique of New Urbanism, or even to call in to question the wisdom of including such challenging goals in their foundational document. The question I raise is: if it does turn out that the New Urbanist movement as it now stands is not meeting its own goals for supporting justice and building up a culture of democracy, what can New Urbanists do by way of redoubling their efforts towards meeting these goals? New Urbanists Beyond this type of discussion, New Urbanists have a limited ability to influence the behavior of the developers who build the projects or the residents who live in them. WHAT ROLE MIGHT THE CHURCH HAVE IN MEETING NEW URBANIST GOALS? Churches have been deeply involved in building communities from their very inception. Church congregations have significant experience in building the social networks for the health and vitality of their membership. Churches in many cities and towns have also historically played an anchoring role for the larger community. Most beloved historic towns in the United States were founded by leaders holding deep religious convictions. In some ways what requires explanation is not why municipal leaders and New Urbanists should look to churches as allies in their community building efforts, but rather why religious leaders have been conspicuously absent from the New Urbanist dialogue. It is an open question as to whether authentic community can be built from the physical form of traditional towns without under-girding social structures. Churches provide a key supporting social structure in many communities. Perhaps, the current challenges presented by the issues of economic equity and the lack of mediating institutions are early indicators of limitations in the formal aspects of the New Urbanist approach. In light of the particular shortcomings that I am suggesting within the New Urbanist movement, the church may very well offer some assistance. In the first place, as one civic institution that maintains viability in many neighborhoods, churches can provide the associational cohesion needed to encourage civic participation within the life of the New Urbanist neighborhood or project. Churches not only provide deep and meaningful ties for their members, but churches with buildings can support a variety of civic institutions and community-wide events. Churches can host a variety of meetings (from neighborhood councils to alcoholics anonymous) in their facilities, they can sponsor community-wide events, and they can partner with other institutions to advocate for larger community goals. The church building as an iconic object can serve as a visual anchor for the community and, if executed well, it can become an important civic building. With regard to economic justice issues, New Urbanist communities face a much more difficult problem. The market is very difficult to control, and attempts to mitigate the negative effects of the market on vulnerable population groups are subject to abuse and unintended consequences. However, again, this may be an area in which the Christian community has something valuable to offer. A great many non-profit institutions that work within poor neighborhoods to provide affordable housing are based on a Christian vision for justice. Habitat for Humanity is just one well known example, but I could point to numerous examples scattered throughout cities and towns. This “on the ground” experience in the complexities of affordable housing and the thick network of relationships of trust built up among these institutions are invaluable assets as municipalities and New Urbanists seek to make the goal of equitable housing a reality for residents. There is no more obvious place to turn in seeking solutions to the problem of affordable housing than to those who already have a good track record in providing affordable housing for the residents of a particular community. FREEING THE CHURCH TO FOSTER COMMUNITY The idea of municipalities and New Urbanists teaming up with Christian communities to meet specific communal goals seems like an appropriate and wise partnership. However, both private developers as well as public entities have good reasons for being hesitant to partner with churches in order to meet particular goals. Private developers may be cautious about working with particular churches within their developments because of concerns about religious pluralism. Neighborhood churches seemed to work better when there was a large enough church-going population that specific denominations could reasonably expect a good number of people with the same denominational background to live in the neighborhood of the church. Currently because there is a smaller total church-going population and more denominational (as well as non-denominational) choices it seems unlikely that much more than a very small percentage of the population will be served by a local neighborhood church. While reasonable, this perspective fails to take account of some of the current experiences of neighborhood churches. There are many more denominational choices, but a church’s denominational affiliation is no longer a significant factor in people’s choosing a church. People choose to live in a New Urbanist community or project because they want to walk to as many places as possible. If given the opportunity to walk to a viable and active local church, it is likely that they will attend such a church regardless of its denominational label. The churches that are currently in traditional neighborhood developments report that most of those who attend their church do not have prior experience in their denomination. While it is true that total church attendance is down since the mid-20th century, it is not down as far as many people think. In many parts of the country and among certain ethic communities it is still rather high. Furthermore, even those who are not directly involved with the life of a neighborhood church can benefit from its existence. As mentioned above, a good neighborhood church can function as an important civic building that is valued by all of the residents of a community. It is important for the developer to seek out churches with a philosophy of ministry that understands the important role that a church can play in bringing health and vitality to a neighborhood. Governmental agencies may be concerned about seeking partnerships with churches because of the principle of separation between church and state. It is important that governments who work within this tradition must be careful not to privilege one religious group over another, nor to give preferential treatment on the basis of a group’s religious commitments. However as James Van Hemert of The Rocky Mountain Land Use Institute puts it, “the wall of separation between church and state doesn’t mean that they cannot talk to each other.” In many communities, established churches serve as important ‘nerve centres’ for the communities in which they are situated. Church leaders and members often have a good read on what neighborhood concerns and dreams look like. They also often have significant influence on the residents of a neighborhood which can prove very helpful when trying to put together local meetings. Too often churches are treated with suspicion and they only get impersonal information from governmental entities. It would be advisable for planners responsible for particular areas to develop relationships with religious and other institutional representatives before instigating any formal planning processes. CONCLUSION It has been the particular genius of the New Urbanist movement to challenge many of the orthodoxies of post-WWII development and planning. Among the most significant tenets that New Urbanists called into question was the notion that history had little to teach us about building community and that the various functions of the city could be divided up and treated as completely isolated units of development. New Urbanists re-introduced historical models for community building and an overall integrated approach to development. These very instincts which have done so much to restore a sense of health and wholeness to communities also point strongly in the direction of working with churches to help build community at a local level. Churches historically played an integral as well as a multivalent role in building up and sustaining local communities. Like a network of streets, the function of churches is misunderstood when it is understood too narrowly. Once upon a time, planners acted on the assumption that streets were primarily for moving automobile traffic quickly from one point to another. New Urbanists rediscovered that the sidewalks and streets of a community actually provide a fundamental setting for public life, and they should be designed with those wider functions in mind. From one perspective churches appear to be buildings that serve the needs of a particular worshipping community. However, churches represent an informal network of people who care deeply for their community, and church buildings are community catalysts and anchor points for the entire neighborhood. For these and many other reasons, urban planners and New Urbanists have everything to gain and nothing to lose from looking to churches as partners in their community building efforts.

As of the beginning of this year, the Calgary Health Region, as part of its war on bad fat, became the first to regulate your food intake by making it illegal to prepare food for sale if it contains more than two per cent trans fats. Restaurants that violate that limit – one that no doubt will be vigorously enforced by enthusiastic fat police – could lose their licence and therefore be forced out of business. The next step, perhaps as soon as October, will be to police food sold in Calgary supermarkets, etc., for the purpose of limiting trans fats despite the fact levels are already, by legislation, printed on the packages. It is safe to assume that within a couple of years some unfortunate grocer will be busted on charges of selling food that contains trans fats beyond two per cent. This is due to the city’s health department having assessed that the risk posed by trans fats is “unacceptable.” This is an interesting new expansion into the world of personal choice and responsibility. Anti-smoking legislation, at least to the extent that it is practised in most parts of the country, can be justified on the basis of either: a) the majority of people do not smoke nd find smoke objectionable; or b) while people may have the right to engage in unhealthy behaviour they do not have the right to expose others, unwillingly, to those same risks. The latter justification has already been used to insist on the listing of ingredients on food packaging in order that the public can make an informed decision whether to consume it or otherwise. But this latest step has firmly shifted the responsibility for these decisions away from the consumer and into the loving arms of the state which has made it clear Calgarians are incapable of making these decisions themselves. This is not surprising in an age where governments decide which light bulbs you may and may not buy. Certainly the reduction of trans fats in food is a good thing, such a good thing that consumers were already well on the way, with relatively benign assistance from the state, to forcing food providers to change. But adding more fruit and fibre to one’s diet is also a good thing, as is walking a couple of miles a day, drinking eight glasses of water, eating broccoli on a daily basis and avoiding too much sugar or carbohydrates. Alcohol, for that matter, poses considerable – perhaps even unacceptable – risk to personal health as do certain personal behaviours (sexual and otherwise). Having assigned itself the task of guarding our arteries from the clogging caused by abuse of trans fats, it is difficult to understand how our chief medical officer of health can justify standing idly by while people offer rum and coke for sale with apparently no regard for its enormous physical and mental health risks. Nor, for that matter, does it make much sense for men over 50 to be “free” to avoid an annual prostate exam. This is not to be critical of Dr. Brent Friesen. He is a public servant assigned a task of considerable importance in our community and it must be incredibly frustrating for him to watch as people repeatedly make poor decisions. Many Alberta conservatives no doubt feel the same way about Ontario voting patterns as Friesen’s office feels about the average citizen’s attention to health care. What should be of concern, however, is how casually these interventions, whether they be restrictions on the freedom to (wrongly) choose trans fats fries or the increasingly controversial restrictions on freedom of speech by somewhat oxymoronic human rights commissions, are accepted. Freedoms, big and small, are precious and important to a robust democracy. Any time there is a move to expand the scope of their restrictions, there should be vigorous debate and the burden of proof should be firmly placed upon the he or the she who wishes to deny them. That doesn’t happen much anymore. Hardly happens at all, in fact. And that, too, poses an “unacceptable” risk to a healthy society.

OTTAWA - Ray Pennings of the Work Research Foundation expressed support, today, for the federal budget announcements that assist Canadians in caring for their families, to educate and train young people, and to initiate and invest in public infrastructure projects in partnership with government. Download the 2008 Federal Budget Analysis here Said Mr. Pennings, "The creation of Tax Free Savings accounts will assist families and seniors in looking after both regular cost-of-living demands as well as the unexpected. The support for students from low-income and middle-income households and for apprenticeship training will assist families who are primarily responsible for launching the next generation of Canadian workers, who will create the next generation of families. Calling on the know-how of entrepreneurs and investors in public infrastructure development gets at the challenge of restoring Canada's physical infrastructure, much of which was built 50 to 100 years ago." The Work Research Foundation's analysis by Ray Pennings and Russ Kuykendall highlighted the budget's announcements where they make impact, in particular, on families, students, seniors, business and work force, trade and secure borders, environment, and charities. The analysis also includes "Budget ABCs" that describes Canada's budget process. The analysis proposes an independent board of budget forecasters to complement what is already in place in federal budget-making. "The 'business' of the Work Research Foundation is building and enhancing Canada's 'social architecture,' Ray Pennings added. "The federal Budget 2008 moves in the right direction the Canadian conversation about what kind of country - including the built, social, and natural environment - we want to build and pass on." Read the full analysis

I grew up in a race-focused school, and it worked. The high school from which I graduated was among the top academic schools in our province, many of its students were active in the arts, especially in music, and a few excelled athletically. The school represented a cohesive community, enjoyed strong parental support and fostered cordial relationships with faith communities in the neighbourhoods it served. It instilled a deep commitment to public service, encouraged the cultivation of private virtue, and provided a solid foundation for professional achievement. The people who ran our school cared deeply, passionately about the children they were educating. Generations of exclusion from power, economic prosperity and cultural recognition persuaded them that the future of our community depended on the education of its children in an environment that would affirm our heritage, intensify a positive sense of identity and provide us with role models who embodied our community's ideals. Our educators had the best of intentions, and by the time the generation of students of which I was a member found itself in our school, the teachers had largely achieved their objectives. Growing up in an Afrikaner school in apartheid South Africa during the 1970s and 1980s was to enjoy privilege. Generously funded by the government, adequately staffed with diligent and highly qualified teachers, and ideologically in harmony with the community of families it served, a school like ours could not, and did not, fail in its mission to produce students who worked hard and sought to achieve the dreams of their parents. The race-focused education I received worked by every measure it recognized, and it was an abomination. Particularly in our history classes - but also in many informal ways - my fellow students and I had instilled in us a sense of lingering grievance against the British in particular and the West in general: a sense of grievance rooted in the Great Trek of our ancestors out of the British-governed Cape Colony in the 1830s (in part in protest against the abolition of slavery), and in the Anglo-Boer wars that our ancestors lost, and during which the British - with the help of Canadian troops - carried out a scorched-earth policy and interned many of our women and children in concentration camps. Added to this sense of grievance was a sense of superiority. From the education policy pronouncements of our prime ministers to the bawdy humour of our phys-ed teachers, the message to us was clear: White people, Afrikaners in particular, are fundamentally different from black people - we are more intelligent, have greater physical prowess, and enjoy an innate moral superiority. The race-focused education I received succeeded in turning generations of white South Africans into racists, and served as the essential device that assured the apartheid regime of the continued support of that part of the South African population that propped it up. I recognize that there are very big differences between South Africa in the '70s and '80s and Canada today. A race-focused school of white privilege is not the same as a race-focused school serving a troubled black community. But the motivation behind the education system in which I grew up is substantially the same as the Afro-centric school approved this week by the Toronto School Board and its consequence - whether accompanied by high grades, athletic achievement and artistic expression, or not - will be racism. And racism - whether it is the racism of the rich and privileged, or the racism of the poor and marginalized - is a great evil. It mobilizes volatile emotions, provokes acts of aggression and perverts the souls of its perpetrators as much as it violates the human dignity of its victims. I am not arguing against better education for children in poverty. I am not arguing against attention to the troubles of particular cultural communities. And I am not even arguing against educational choices with diverse focuses. But I am arguing, very particularly, against schools that focus on, and therefore valorize, race. The long legacy of racism has certainly not been overcome in South Africa. I am sure that racism will continue to trouble North America in subtle but nonetheless pernicious ways - whether Senator Barack Obama is elected American president or not. I wish black parents and educators in Toronto did not feel it necessary to fight racism with racism. They may achieve their objectives but they will, in a deeper way, fail their children.

The spectre of yet another shift of the burden of government to the private sector arose earlier this winter when city hall suggested the housing industry may have to, as the Calgary Sun put it, “reach deeper into their pockets.” The reason for this, according to Mayor Dave Bronconnier, is that the city is increasingly incapable of keeping up with the demand for infrastructure (roads, fire halls, parks, etc.) in new communities. Fair enough. Further, the mayor indicated that “current property taxpayers shouldn’t have to pick up a disproportionate share of the load.” Resident Calgary taxpayers such as those in Crescent Heights, in other words, shouldn’t have to pay more taxes up front for the infrastructure required by people buying in new areas such as Symons Valley. No one is sure why this should be other than that residents of older neighbourhoods feel they are entitled to be excluded from the upfront costs of new civic growth. We do not expect, for instance, that people who have newly arrived in this province should pay higher health-care premiums or income taxes even though the fact of their arrival increases the burden on the healthcare system. And those of us who do not live adjacent to a river do not resent that we are bearing a disproportionate share of the costs of maintaining flood control on the Elbow River – something that benefits only those who live along the river. Somehow, though, we do resent new neighbourhoods being built in Calgary and resentment, in this case, creates opportunity. Among the reasons for Calgary’s unusual surge in real estate prices in 2006 was a shortage of serviced (sewer and water) land. This took place due to delays in negotiating annexation from neighbouring municipalities. Annexation is required before the city’s sewer and water services are extended, which allows the city to maintain control over the supply and therefore cost of serviced land. The annexation delay therefore created a shortage of supply that inflated housing prices. Lack of affordable housing worsened the shortage and the cost of labour. And the high cost of labour in a major contributor to the city’s difficulty in keeping up with the costs of providing new infrastructure. So despite the fact that bureaucracy enhanced its own problems by failing to properly manage the availability and supply of serviced land, it is the housing industry that apparently will be forced to pick up the tab. Or so it seems at first glance. However, if the city increases the already-substantial levies paid by developers, the latter will either pass those costs on directly to the buyer/consumer or choose to do business in other cities or municipalities. Passing the costs along will immediately inflate the price of new housing while chasing developers (most of whom are incensed but too bullied by city hall to do anything about it) elsewhere will shorten the supply of new housing which will also increase housing prices. Either way, prices still go up. Fortunately for the bureaucracy, many media believe that the public sector is inherently good and any new plan will be trumpeted as a victory for the taxpayer whose “burden” is passed along to the “corporate” or “business” world. Few will pay attention to reality: the shift of this “burden” simply increases the cost of doing business in Calgary and that cost will in turn be passed along to the consumer/taxpayer. Alas, there is no money tree. Calgary property taxes are based on market value assessments. So when prices increase, which they will, older neighbourhood taxpayers will still pay more even if the “burden” of new infrastructure is “passed along.” You have to admire the genius of the plan if not its transparency. The city gets more money up front from developers and it still gets more revenue from higher taxes due to the inflation of housing prices even though tax rates themselves stay level. In the end, the city still gets more of your money. The only real burden that gets shifted is the responsibility for doing so.

Stuart Laidlaw of the Toronto Star covers a breakfast seminar , hosted by the Canadian Urban Institute, at which lead research Robert Joustra responds to the topic of religion and urban life. TORONTO - Toronto urgently needs a summit meeting of church leaders and city officials to address everything from homelessness and poverty to the planning process for new churches and parking tickets for Sunday worshippers, a forum has been told. "We need to ask, `How can the city help churches and how can churches help the city?'" Rev. Brent Hawkes of Metropolitan Community Church told the forum on the role of churches in big cities. The Canadian Urban Institute organized the meeting, held Friday at Metro Hall. Churches play a vital role in the life of big cities, Hawkes says. They help feed, clothe and shelter the poor, provide meeting space and volunteers for other groups and advocate on behalf of marginalized people, he says. Hawkes says a summit of church leaders and city hall officials could help direct such efforts to where they are most needed. Ideally, a liaison officer at city hall would help co-ordinate such grassroots work, he says. "Faith-based communities are a great way for government to engage citizens," Hawkes told the breakfast forum. Rob Joustra, a researcher with the Hamilton-based Work Research Foundation, told the forum big cities are growing largely because of the influx of immigrants, who often have strong ties to their faith groups. Engaging them in the life of the city, he says, might be best done through those groups. "It's never been more important," says Joustra, whose foundation specializes in researching the links between church and community. At the same time, churches often find it difficult to continue operating in the city, the forum was told. Rev. John Joseph Mastandrea of Metropolitan United Church says churches often have trouble getting mortgages or loans to expand or even repair their buildings because banks don't want to risk the bad publicity of foreclosing on a church. Even when churches can secure the money, getting through the bureaucracy of city planning and approvals can prove too costly and difficult for church staff and volunteers, who are often strapped for money and lack knowledge of official plan issues and zoning regulations. A summit would also give faith groups a chance to work with city hall on problems, he says. For instance, while at one time there was "flexibility" on issuing parking tickets on Sundays near churches, his parishioners often emerge from services to find their cars have been ticketed.

Followers of political history might keep an eye ajar this weekend when members of Alberta's fourth party vote to merge with the latest creation of a province renowned as an intellectual incubator. Awaiting the 75-per-cent approval of their membership are the newborn Wildrose party and the Alberta Alliance, whose blue and green colours are an obvious display of affection for the old Canadian Alliance and Reform parties. The Alberta Alliance gained its first MLA in 2004, when Edmonton Norwood's Gary Masyk crossed the floor to the opposition benches after a falling-out with the Conservative government. Mr. Masyk did not return to the legislature after the election several months later but, interestingly enough, the Alliance did when the people of Cardston-Taber-Warner elected Paul Hinman as their MLA. He has served as the Alliance's leader ever since and - notwithstanding the Alliance's open courtship of Preston Manning - is designated to be the new Wildrose Alliance Party leader in the next provincial election, expected in March. With a little puck luck, Mr. Hinman could have had a couple of companions in the legislature. His party closely contested a number of rural ridings in 2004 and more often than not finished third in Calgary, ahead of the New Democrats. Overall, the Alliance snagged 9 per cent of the popular vote despite virtually no media profile, compared to the well-exposed New Democrats, whose 10-per-cent share of the popular vote translated into four MLAs, all from Edmonton. But while the Alliance may have the hearts of many of Alberta's true conservatives, as they like to call themselves, conventional wisdom is that it is not sufficiently resourced to be able to grow. Enter the Wildrose Party, which by late 2007 had gathered enough signatures to qualify for official party status. It has drawn the allegiance of a number of credible people from outside the two big cities. But its best known face is that of Link Byfield, erstwhile magazine publisher, columnist, senator-elect and generally respected purveyor of Alberta ideas and causes. Eschewing positions on hot-button social issues, Wildrose has focused on an agenda favouring small government, low taxes and policy innovations, such as the creation of an Alberta Pension Plan. Even those who may not share the Wildrose world view will find them a relatively straightforward read. A smooth merger cannot be assumed. After all, the downside of parties of principle, whether their cause be left, right or environmental, is that the strength of their principles creates an organic disability when it comes to what some call compromise and others refer to as moral flexibility. Should these two small fish emerge as one, they will still be a small fish, one likely to poll in the 12-per-cent range. While clearly siphoning voters that once formed the vanguard of the Klein Revolution away from the Progressive Conservatives, this is not enough to constitute a threat to gain power. But - similar to the NDP - this pull is enough to form a principled power proposition that would force those in the "middle," such as the opposition Liberals and governing Conservatives, to create a stronger policy identity than they might otherwise. In fact, a successful merger creates the possibility that, similar to the Saskatchewan Party to the east, the Wildrose Alliance might be the start of Alberta's Next Big Thing. This is a province, after all, that spawned the CCF, United Farmers and Reform. Not all new ideas succeed as well as those did, but the culture here has always been more open than most to considering new options. And, remember, when change comes to Alberta, which admittedly isn't often, it always comes from beyond the status quo. This probably isn't the moment of that change. But it could be the occasion that starts the process that leads to the moment. Just in case it is, it's worth staying awake for.

This article originally appeared in Appeal #13, pp. 28-50 Abstract In a time where the influx of immigrants with diverse religions conflict with the laws of the majority, the question of how to live together in disagreement when Charter rights collide goes to the heart of pluralism, the 'common good' and the modern liberal exercise in Canada. The recent debates over sharia tribunals, faith-based education, same-sex marriage, and the accommodation of religious marriage commissioners illustrate the difficulties in balancing the religious and 'secular' in the public sphere. This paper looks to liberal theory, freedom of religion jurisprudence, and contemporary thinkers for answers to these timely questions. It advocates for a more deferential, accommodating form of liberalism along the principles of modus vivendi where individual rights are limited only to the extent that they infringe on the rights of others. By moving away from the vague, all-encompassing language of "Charter values" to John Stuart Mill's harm principle, we create a more pluralistic public sphere that gives reasons for religious minorities and ethnic groups to reciprocate such tolerance and participate actively in civil society. If we relegate such views to the private sphere by imposing a 'rational consensus' on a divided public, we do so at our peril. For it will further fragment the civic fabric of Canadian society into scattered islands of faith communities, leaving all sectors impoverished. Introduction Liberalism is not a possible meeting ground for all cultures; it is the political expression of one range of cultures and quite incompatible with other ranges. . . Liberalism is also a fighting creed1 —Charles Taylor Here I stand, I can do no other2 —Martin Luther On the 25th anniversary of Canada's Charter of Rights and Freedoms ("Charter"), the entrenchment of individual rights, the strategic litigation that followed and the policy-laden decisions of the Supreme Court have left some groups rejoicing with others shaking their heads (and pulpits). The rights of women,3 gays and lesbians,4 official language minorities5 and the criminally accused6 have arguably been accelerated beyond what reluctant legislatures would have enacted. On the other hand, the Charter has largely been a disappointment for a range of sectors like poverty advocates,7 law enforcement,8 racialized groups9 and many religious groups.10 Religious leaders would have been shocked had they known in 1982 that this liberal rights document would be the catalyst, and in some cases impetus, for extending civil marriage to gays and lesbians, quashing a school board's decision not to license books depicting homosexual relationships, compelling a religious private printer to serve a gay advocacy organization, and striking down legislation that prohibited Sunday trading. The development of freedom of religion jurisprudence under the Charter has left the Canadian state, judiciary, and society at large grappling with some fundamental questions. How do we balance the equality rights of gays and lesbians asserted under s. 15 with the religious freedoms of marriage commissioners protected under s. 2(a)? How can we reconcile temporal and divine sources of authority when the rule of law and the supremacy of God collide? How can a "secular" state encourage religious diversity, pluralism and the "common good"? Such questions depend on how they are framed and how we define and understand liberalism, pluralism, the 'secular' and the rule of law. In a time where the rights of same-sex couples and the freedoms of religious groups have come to a head, and where the influx of immigrants with diverse religions conflict with the laws of the majority, this question of how we live together in disagreement goes to the heart of pluralism, the 'common good' and the modern liberal exercise in Canada. In this paper, I will argue that the best way of accommodating different faiths, cultures and worldviews when rights collide is a modus vivendi approach, as articulated by John Gray.11 Modus vivendi is a more honest, accommodating and genuinely tolerant face of liberalism, which seeks pluralistic, peaceful coexistence as its end goal as opposed to a rational consensus dictated by the judiciary in the name of all-encompassing "Charter values." Indeed, liberalism itself was borne out of a theory of the common good that was focused on the individual, free from interference and imposition by the sovereign, the Church or the state. That said, the judiciary does have a duty to mediate this pluralism by ensuring that the assertion of the rights of one individual does not infringe on the rights of another. In delineating that fine line in the sand, this paper will advocate a return to John Stuart Mill's harm principle—using individual rights as deliberative markers of harm. In the conflict between claims of same-sex equality and religious freedom—be it in public education, civil marriage or private businesses—the adversarial, winner-take-all litigation model is poorly designed for peaceful coexistence and should be used as a last resort only when individual rights have been infringed. It is the realm of civil society that is better suited for not simply tolerating difference, but understanding and embracing it. Part I of this paper will canvas the ideas of liberal theorists John Gray, Charles Taylor,12 and John Stuart Mill.13 Part II will examine the freedom of religion jurisprudence in the pre and post- Charter era with respect to Sunday closing laws, residential by-laws, and same-sex equality claims in civil marriage, public education and private businesses. Part III will analyze the Canadian experience of attempting to balance so-called "secular" liberalism and religious freedom, drawing on the writings of Chief Justice Beverly McLachlin,14 Jean Bethke Elsthtain,15 Iain T. Benson,16 Bruce MacDougall,17 and Benjamin Berger.18 Part IV will look at some contemporary examples in Canada like the tension between same-sex civil marriage and religious marriage commissioners, and present the case for a more inclusive, pluralistic liberalism where Charter rights of religious freedom and equality collide. Part I: The Changing Faces of Liberalism Liberalism is one of the most commonly used, yet least understood, concepts in politics and law. Part of the problem lies in its very definition, which varies widely based on different theorists, countries and time periods. This paper does not attempt to explain or reconcile the myriad understandings of liberalism but rather to juxtapose the ideas of certain theorists with contemporary issues in Canada and challenge some of the "liberal" assumptions underlying recent jurisprudence. Liberalism's common features include the high valuation of individual reason, liberty and agency, with an understanding of law as a tool to limit the state's interference in the lives of the individual.19 Liberalism seeks to respect individual moral thought, free from moral or epistemological claims of "truth." However, where these commonly-held views diverge is in the interpretation of tolerance, universal values, and the growing challenge of cultural pluralism. In this paper, I will attempt to illustrate how the "liberal" judicial treatment of civic or Charter values has moved us away from the classical liberal tenets of individual autonomy and negative liberty into the imposition of a societal consensus of the "common good" as defined by the Supreme Court of Canada (the "SCC"). In Two Faces of Liberalism, John Gray presents two contradictory principles that lie at the heart of liberal tolerance. He summarizes these conflicting faces of liberalism as follows: In one, toleration is justified as a means to truth. In this view toleration is an instrument of rational consensus, and a diversity of ways of life is endured in the faith that it is destined to disappear. In the other, toleration is valued as a condition of peace, and divergent ways of living are welcomed as marks of diversity.20 In the first view, "rational consensus" liberalism is rooted in the enlightenment project of a universal civilization. From this perspective, "liberal toleration is the pursuit of an ideal form of life."21 This is the language of universal values or human rights, which has greatly impacted international law in the last fifty years. In Canada, these are articulated as "Charter values" or "civic values" like security, dignity and autonomy. According to Gray, this liberalism of a universal regime is supported by such theorists as John Locke, Immanuel Kant, and in more recent times, John Rawls and F.A. Hayek. Arguably, Ronald Dworkin, one of the chief proponents of Rawls' conception of liberalism, should also be included on this list. In the second view, modus vivendi liberalism is rooted in the peaceful coexistence of warring communities and different ways of life. Modus vivendi embodies an older current of liberal thought about toleration in expressing the belief that there are many forms of life in which humans can thrive.22 The aim here is not for convergence or the "good life", but rather to reconcile individuals and ways of life honouring conflicting values to a life in common.23 According to Gray, theorists like Thomas Hobbes, David Hume, Isaiah Berlin and Michael Oakeshott have expressed this liberalism of peaceful coexistence. As I will explain in greater detail in Part III, this modus vivendi approach is particularly salient in the Canadian context, not only because of the influx of immigrants with diverse faith backgrounds, but because of Canada's "neutral but supportive" position with respect to religious groups. This complex reality is ill served by the false dichotomies of church vs. state, religious vs. secular, the rule of law vs. the supremacy of God and public vs. private religious expression. Far from being mutually exclusive, the accommodation and encouragement of diverse faiths in a pluralistic public sphere can actually strengthen civil society and the social fabric of Canada. Relegating religious views to the private sphere creates the illusion of a secular society where equality reigns supreme. In reality, it will only serve to further isolate, alienate and fragment religious groups in the dark corners of Canada's mosques, churches, synagogues and temples, far removed from public scrutiny, accountability and a common space to live together in disagreement. As a deeply multicultural society built on immigrants of a diversity of ethnic backgrounds, how we understand liberalism in Canada has profound impacts on citizenship, religion and the rule of law. Writing from the Canadian experience, Charles Taylor is critical of the purported neutrality and comprehensiveness of liberal claims, arguing that "[l]iberalism is not a possible meeting ground for all cultures; it is the political expression of one range of cultures, and quite incompatible with other ranges. . .[l]iberalism is also a fighting creed."24 Taylor suggests that people are always acting and finding meaning in a normative context. Therefore, what is considered as the "good" in a liberal polity reflects a certain cultural reality and is poorly designed to meet the challenge of contemporary cultural pluralism. Taylor's view of a liberal society is "one that is trying to realize in the highest degree certain goods or principles or right."25 However, the concept of the good life is deeply value-laden and in a society that is getting more multicultural by the day, Taylor advocates for ethically richer notions of liberalism to meet the demands of such diversity. It is precisely this claim of comprehensiveness, recently espoused by Chief Justice McLachlin with respect to the constitutional rule of law,26 which jars against individual freedom, religious faith, and the submission of devout adherents to an entirely different worldview that cannot simply be relegated to the private sphere. However, if we see liberalism for what it really is — one of many ideological frameworks based in a specific cultural context with its accompanying normative assumptions—we can begin to enlarge the debate and the public sphere to better accommodate religious and cultural groups. Once again, the goal here should not be societal consensus with the SCC as the vehicle for "secular" liberalism, but an expansive pluralism that is limited only by Mill's harm principle. Much guidance can be found in John Stuart Mill's On Liberty, one of the foundational texts on liberalism that remains highly influential in any rights discourse. Mill was primarily concerned by the exercise of power by society over an individual. He is credited as the first to articulate the harm principle in order to delineate the limitations on the rights and freedoms of the state in respect to individuals, and of individuals in respect to each other: The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-preservation. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.27 Mill believed that the individual was sovereign over his own body and mind and he should not be compelled to do what is considered wise, right or moral in the eyes of others. This idea that the rights and freedoms of an individual or group only extend until they infringe on the rights of others has been fundamental to contemporary liberal societies and the rights revolution in Canada. Only by critically examining the historical treatment of liberalism in the writings of theorists like Mill, Gray and Taylor, can we fully understand, and indeed challenge, the values underlying freedom of religion jurisprudence outlined in Part II. As I will explain in greater detail in Part IV, by moving away from the vague language of Charter values to Mill's harm principle, we follow a more honest conception of liberalism that searches for a way of living together in disagreement to better accommodate competing rights in the public sphere. Part II: Freedom of Religion Jurisprudence in Canada To fully understand Canada's "neutral yet supportive" approach to religious groups, a historical analysis of the statutory, constitutional and common law protections of religious freedoms is necessary. With the religious conflicts of the Old World still fresh in the minds of colonial powers, Canada's early history was marked by a robust protection for Protestants and Catholics. The roots of these protections can be traced back to the Articles of Capitulation for Quebec (1759) and Montreal (1760), which granted the inhabitants of the cities "the free exercise of the Roman religion."28 The Treaty of Paris (1763), which put an end to imperial wars in Canada, clearly affirmed the rights of Roman Catholics in Quebec. This was further articulated in the Quebec Act (1774), which expanded religious freedom by replacing the oath of allegiance's reference to the Protestant faith, guaranteeing the free exercise of the Roman Catholic faith (more protection than was given to Catholics in England!) and empowering the Crown to support the Protestant religion and clergy. And although the British North America Act (1867) had no specific freedom of religion provision, s. 93 did entrench the protection of minority Roman Catholic and Protestant schools in Ontario and Quebec. The mid-20th century witnessed a dark chapter in Canada's history for religious groups like the Doukhobors in British Columbia29 and Jehovah's Witnesses in Quebec under Premier Maurice Duplessis. In a series of events beginning in the 1930s up until the Quiet Revolution of the 1960s, the challenges faced by Jehovah's Witnesses at the hands of Quebec police, municipalities and provincial governments were indicative of Canada's early history of religious freedom. The cases that followed illustrated the need for a constitutional remedy to limit the powers of the state. In Saumur v. City of Quebec,30 a Jehovah's Witness challenged the validity of a by-law of the City of Quebec forbidding distribution of any book, pamphlet, booklet, circular or tract without permission from the Chief of Police. The SCC overturned the decisions at the trial and appellate levels by ruling that the by-law did not extend so as to prohibit Jehovah's Witnesses from distributing their writings. Rand J. established religious freedom as a "principle of fundamental character" and stated the following: Freedom of speech, religion and the inviolability of the person, are original freedoms which are at once the necessary attributes and modes of selfexpression of human beings and the primary conditions of their community life within a legal order.31 Thus, religion is interpreted as being much more than mere choice, but rather a fundamental aspect of identity, community and self-expression. This expansive view of religion stands in stark contrast to later Charter decisions like Brockie (before being overturned on this point by the Ontario Divisional Court) and Chamberlain which would restrict religion to the private sphere or to the realm of belief and not action whenever it conflicts with Charter values. I would argue that this view of the comprehensiveness of religious adherence better serves the current debate over conflicting rights which has tended to reduce religious beliefs to one of many rational choices that must be measured against, and limited by, Charter values. A landmark constitutional case involving religious freedom is Roncarelli v. Duplessis.32 The plaintiff Roncarelli, a Montreal restaurant owner, had his liquor license cancelled at the instigation of Premier Maurice Duplessis after he had acted as bailsman for a number of Jehovah's Witnesses charged with violating municipal by-laws prohibiting the distribution of religious literature. Rand J, in his oft-cited reasons for the majority judgement, ruled that Duplessis had exceeded his official powers and the unwritten constitutional principle of the rule of law meant no public official was above the law. As a result of Saumur and Roncarelli v. Duplessis, the SCC had given implicit constitutional status to freedom of religion, limited only by rational laws of general application. These early cases reflected a more pluralistic liberalism by limiting Duplessis' vision of the "common good" in favour of common institutions that promoted the peaceful coexistence of Jehovah's Witnesses and the Catholic majority in Quebec's public sphere. They also underlined a tension between religious freedom and the laws of the majority that is still playing itself out today. As we will see, the Charter jurisprudence has been far from clear, though the recent SCC decisions in Amselem33 and Multani34 appear to be returning to a more expansive interpretation of religious freedom with a duty of reasonable accommodation. The Scope and Content of Religious Freedom in the Charter Era After the disappointing jurisprudence following the enactment of the Canadian Bill of Rights,35 the Charter articulated Pierre Elliott Trudeau's vision for a constitutionally entrenched individual rights document to unite the country, limit state power and provide the legal protections for a flourishing multicultural society. Following on from the practices of many countries (and in keeping with international human rights doctrine), Canada entrenched a rights document with explicit protections for freedom of religion in a number of places. Religious freedom is upheld in s. 2(a), as well as s. 15 which prohibits discrimination based on religious grounds. Even the Charter preamble itself evokes religious doctrine in establishing that "Canada is founded upon principles that recognize the supremacy of God and the rule of law."36 Although certain commentators and judges have dismissed the supremacy of God as a "dead letter. . .that can only be resurrected by the Supreme Court of Canada",37 its conjunctive inclusion alongside the rule of law speaks to its continuing relevance in our "secular" state, as has been argued by Iain T. Benson.38 Other commentators have also criticized the "dead letter" approach as failing to give proper weight to the history, purpose and relevance of the Charter's preamble.39 According to Bruce Ryder,40 the supremacy of God is best understood as a reminder of the state's role in not just respecting the autonomy of faith communities, but also in nurturing and supporting them in an even-handed manner.41 Following along this line, Gonthier J., writing for Bastarache J. and himself in the Chamberlain dissent, referred to the preamble as having interpretive weight for a more religiously inclusive conception of the "secular" when he notes that "the preamble to the Charter itself establishes that ". . .Canada is founded upon principles that recognize the supremacy of God and the rule of law."42 The scope and content of s. 2(a) was first articulated in Big M. Drug Mart, a leading authority on freedom of religion in Canada. The respondent grocery store, Big M Drug Mart, challenged the Federal Lord's Day Act43 that prohibited retailers from carrying on business on a Sunday. The SCC held that since the purpose of the Lord's Day Act was to compel religious observance of a sectarian Christian ideal, it violated the religious freedom of non-Christian Canadians under s. 2(a) and was not saved by s. 1. In his reasons, Dickson C.J. expressed the core of religious freedom as follows: A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.44 Dickson's language of extending religious freedom only to the point that "such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own"45 relies heavily on Mill's harm principle. He continues along Mill's path in writing that freedom of religion is limited to protect "public safety, order, health or morals or the fundamental rights and freedoms of others."46 In the Court's analysis, such freedom to manifest one's beliefs free from coercion or constraint is grounded in the inherent dignity and rights of the human person. This concept of "dignity" and the way in which it comes to be interpreted and applied has proven to be a critical question in the evolution of freedom of religion jurisprudence in Canada, most notably in balancing s. 2(a) religious freedoms against s. 15 equality rights of same-sex couples. Two other important precedents that flow from Big M Drug Mart should also be noted. First, Chief Justice Dickson refused to limit s. 2(a) to the content of the freedom as it stood in 1982 or in the Canadian Bill of Rights. In doing so, he opened the door to broad judicial discretion as to the content of s. 2(a) that could evolve over time. Any limitations on the scope of s. 2(a) would have to take place under the s. 1 override clause. Second, the formal equality rule that overlooks personal differences in applying equal treatment was rejected in favour of substantive or "true" equality as it relates to religious freedom. Chief Justice Dickson ruled that "[t]he equality necessary to support religious freedom does not require identical treatment of all religions. In fact, the interests of true equality may well require differentiation in treatment."47 Thus, each individual case will be concerned with the impact of the law on different religious groups, which may require differential treatment and a highly contextual analysis. One year later, Chief Justice Dickson considered a similar question in Edwards Books,48 a case which challenged the constitutionality of a Sunday-closing law in Ontario. Four Ontario retailers were charged with failing to ensure that no goods were sold on a Sunday contrary to the Retail Business Holidays Act.49 An exemption existed under s. 3(4) of the Act which allowed stores to open on Sunday if they had been closed on Saturday, with no more than seven employees working and less than 5,000 square feet of retail space to serve the public. Writing for the majority, Dickson C.J. upheld the Act and its partial exemption as a reasonable limit on freedom of religion under s. 1. In distinguishing Big M Drug Mart, Dickson characterized the purpose of the Act as being non-religious, invoking the need for a common day of rest for purely secular reasons. Edwards Books shows greater deference to legislatures in emphasizing the reasonableness of the state's objective (giving people a day of rest) over the infringement itself. After having rejected the distinction between belief and action in Big M Drug Mart, Dickson also rejected the previously-held distinction between direct and indirect burdens on freedom of religion: "all coercive burdens on religious practice, be they direct or indirect, intentional or unintentional, foreseeable or unforeseeable, are potentially within the ambit of s. 2(a)."50 By constitutionally prohibiting indirect burdens that effectively degrade the ability to practice one's religion, Edwards Books affirmed Big M Drug Mart's broad interpretation of freedom of religion, subject only to the infliction of harm, or the infringement on the rights of others. Another important chapter in the freedom of religion story is the recent case of Syndicat Northcrest v. Amselem.51 Although it did not deal with same-sex equality claims, the comprehensive legal test and broad interpretation of religious freedom will undoubtedly influence the balancing exercise when such rights collide in the future. The appellants, Orthodox Jews who co-owned units in luxury buildings in Montreal, set up succahs on their balconies to fulfill the biblically mandated obligation to dwell in temporary huts during the annual 9-day Jewish festival of Succot. They challenged the by-laws in the declaration of co-ownership which prohibited decorations, alterations and constructions on the balconies. In a 5-4 decision, the majority held that the burdens placed upon the appellants constituted a non-trivial interference and thus an infringement of their s. 2(a) rights to dwell in a succah during the festival of Succot. It also broadly defined religion itself as follows: In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual's spiritual faith and integrally linked to his or her self-definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.52 After Amselem, the "value" of a religious belief in the eyes of the Court no longer mattered. What mattered was simply whether the belief was deeply held and integral to the claimant's self-definition. This comprehensive definition, which affirmed religion as integral to identity, was a welcome change from the confused and narrow interpretation in Chamberlain. The majority then established the scope and content of freedom of religion under the Quebec Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms as follows: freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials.53 Thus, Amselem stands for the important precedent that a "religious belief" need not be reasonable, objectively held or sanctioned by official dogma, but rather a "sincerely held belief with a nexus with religion." Once non-trivial interference in a religious belief is established, religious conduct can only be limited if it would potentially cause harm or interference with the rights of others with a view to the underlying context in which the conflict arises. This legal framework broadening the scope of freedom of religion was affirmed in Multani. In a 5-3 decision (Major J. took no part in the judgement), the majority quashed a decision by a public school's council of commissioners to prohibit Multani from carrying a concealed kirpan (Sikh ceremonial dagger) to school. Since the religious belief was sincerely held and the burden was non-trivial, Multani's freedom of religion was infringed. The Court held that this prohibition could not be saved by s. 1 since it was not minimally impairing. After the broad interpretation of reasonable accommodation for the particularities of sincerely held religious beliefs in Amselem and Multani, the SCC appears to be moving in the direction of a more accommodating modus vivendi. By seeking to accommodate the greatest number of viewpoints in the public square, we move away from the "winner take all" litigation approach towards genuine diversity and tolerance. The Same Sex Story: Balancing Religion and Equality Under the Charter The debate over same-sex rights under the Charter has transcended law into the realm of culture, religion, identity and politics. The conflict between same-sex equality and freedom of religion has become the focal point for the competing faces of liberalism, evident in a number of recent cases dealing with civil marriage, freedom of contract and both public and private education. One of the first major cases to balance religious freedom, same-sex equality rights and the civic values articulated by Chief Justice Dickson in Big M Drug Mart was Trinity Western.54 At issue in this case was the refusal of the British Columbia College of Teachers (BCCT) to approve the teacher training program of Trinity Western University (TWU), a private university associated with the Evangelical Free Church of Canada. The BCCT denied the application on the grounds that the student Code of Conduct contained discriminatory practices by having students agree to abstain from "biblically condemned" practices which encompassed "sexual sins. . .including homosexual behaviour."55 A majority of the SCC overturned the decision of the BCCT for lack of evidence that graduates of the TWU program would be unfit to teach in the public school system. As a result, the Court distinguished the protected belief of TWU from the unprotected conduct of graduates in the public school system. Trinity Western implicitly affirmed Mill's harm principle as the most appropriate mechanism to balance competing rights claims. The case was decided in TWU's favour on the absence of evidence that students in the public education system had their rights infringed upon by TWU graduates. Iacobucci J. and Bastarache J. writing for the majority, define the scope of religious freedom as follows: Students attending TWU are free to adopt personal rules of conduct based on their religious beliefs provided they do not interfere with the rights of others. Their freedom of religion is not accommodated if the consequence of its exercise is the denial of the right of full participation in society.56 In the absence of evidence of tangible harm through the conduct of TWU graduates, the imposition of a symbolic affirmation of homosexuality in a private, religious school would lead us squarely down the path of rational consensus liberalism. TWU does not need to agree with or publicly affirm homosexual conduct to give effect to s. 15 rights. The impetus for including s. 15 in the Charter was not to use the law to forge a societal consensus on the "good life." The premise of this paper is that the judiciary's duty to intervene is triggered when tangible harm has been caused. If TWU graduates teaching in the public education system were found to be treating homosexual students differently, or substituting their own religious views on homosexuality in place of the curriculum, then a good case could be made for limiting s. 2(a) for infringing on the rights of individual students. However, to proactively restrict Charter rights to protect students from an abstract, nebulous notion of potential harm would fail to provide the kind of accommodation of difference and disagreement that lies at the heart of pluralism. Moving from the private to the public education context, the Chamberlain decision further complicated this conflict of rights with the sensitive issue of the role of parents and teachers in early childhood education. Under the School Act57 of British Columbia, the Minister of Education confers on school boards the authority to approve supplementary education resource material, subject to Ministerial discretion. At issue was the Surrey School Board's decision not to approve three books depicting same-sex parented families for the family life educational curriculum of Kindergarten—Grade One (K-1) children.58 The Board cited the cognitive dissonance and age-appropriateness of such controversial material in light of some parents' objection to the morality of same-sex relationships. The crux of the case rested upon the interpretation of "strictly secular" and "non-sectarian" requirements of the School Act. McLachlin C.J., writing for the majority, quashed the Board's resolution for acting outside of its mandate under the School Act. According to the majority, the Board violated the principles of secularism and tolerance in s.76 of the Act, departed from its own regulation by failing to consider the relevance of the proposed material and needs of children of same-sex parented families, and applied the wrong criteria by failing to consider the goal that all children be made aware of the diversity of family models in society. McLachlin C.J. measured religious freedoms against the Charter values of dignity and tolerance and found that Charter values prevailed. Importantly, all nine judges of the SCC affirmed the unanimous B.C. Court of Appeal's interpretation of "secular" as being religiously inclusive, rejecting the B.C. Supreme Court's characterization of "secular" as "non-religious" or "not influenced even in part by religion." This important shift away from an a-religious secularism would later be affirmed in the SCC decisions of Amselem and Multani. In a lengthy, strongly worded dissent, Gonthier J. (writing for himself and Bastarache J.) would have deferred to the expertise of the School Board and upheld the resolution on administrative law principles. The lack of a privative clause, the local expertise in balancing interests of different groups, the purpose of the Board's authority to allow for local input, and the highly contextual and polycentric nature of the analysis all weighed in favour of deference to the School Board. Gonthier emphasized the paramount role of parents in the education of children and the state's secondary role (especially with the K-1 age group), respecting the decisions of local school boards who can take into account contextual factors and the needs of parents.59 He joined the majority in criticizing the religiously exclusive interpretation of "secular" espoused by Saunders J. of the B.C. Supreme Court in which one's moral view should not be heard in the public square if it manifests from a religiously grounded faith. The reasoning in the dissent echoes the modus vivendi liberalism articulated by John Gray in seeking peaceful coexistence, as opposed to a rational consensus, on the issue of homosexuality. It is fine if a consensus develops organically as is arguably occurring with the death penalty in Canada. But if we are to be honest with Canada's pluralism of faiths and identities, as well as the very impetus for the liberal state, than it is not the role of the judiciary or the state to impose this societal consensus on a divided public. This is perfectly articulated in Gonthier's dissent: Nothing in the Charter, political or democratic theory, or a proper understanding of pluralism demands that atheistically based moral positions trump religiously based moral positions on matters of public policy. . .The key is that people will disagree about important issues, and such disagreement, where it does not imperil community living, must be capable of being accommodated at the core of a modern pluralism.60 The true measure of tolerance in a liberal state is found not in our ability to reach a societal consensus along the lines of Charter values, but in our ability to live together peaceably in disagreement. This modus vivendi was the impetus for the liberal state, and must be reclaimed by liberal theorists, political leaders and judges if it is to hold promise and meaning for increasingly diverse societies in an age of globalization. From the realm of education to the private sphere, same-sex equality litigation has also had a significant effect upon freedom of contract under provincial human rights legislation. In Brockie,61 a lower-level but oft-cited case from the Ontario Divisional Court, the appellant Scott Brockie challenged an order of the Board of Inquiry of the Ontario Human Rights Commission requiring him to provide printing services to the Gay and Lesbian Archives (GALA) and other organizations existing for the benefit of gays and lesbians. Brockie held the religious belief that homosexual conduct was sinful and while he did serve homosexual individuals, he argued that s. 2(a) of the Charter protected his religious freedom to refuse service to a gay advocacy organization. The Court found the original order to serve GALA and all related organizations to be overly intrusive in achieving its objectives, but still ordered Brockie to pay the $5,000 in damages and provide printing services to gay and lesbian organizations unless the specific material came into direct conflict with the core elements of his religious beliefs. Notably, the Court rejected Brockie's distinction between discrimination based on sexual orientation and discrimination based on the political act of promoting the causes of those who have such characteristics.62 As Peter Pound and Iain T. Benson have noted, when it comes to human dignity, the distinction between a person and a cause (or political organization) is important.63 If Brockie had happily served homosexual clients, how does his refusal to support a political organization and lobby group on religious grounds infringe upon the rights of GALA? If GALA faced undue hardship in its reasonable accommodation of Brockie's religious beliefs (to use the language of human rights legislation), they might well satisfy the harm principle and thus limit Brockie's freedom of religion. If, on the other hand, any other printer in Toronto could provide the same services, it would be difficult to prove tangible harm and compel Brockie to act against his religious beliefs. In fact, the Canadian Civil Liberties Association intervened in Brockie at the Divisional Court level and argued that there was no valid ground to impose a supposed "state policy" of advancing the "visibility" of gays and lesbians over the beliefs of a citizen such as Brockie to express his own beliefs in the public square. In 2003, EGALE Canada Inc. v. Canada (A.G.)64 was the first of a series of cases across the country that expanded the common law definition of marriage to include same-sex couples. At the time, only Holland, Belgium and Spain had legalized same-sex marriage. In a rapid and radical transformation, the EGALE decision was followed by the Ontario Court of Appeal in Halpern v. Canada (A.G.)65 and the Quebec Court of Appeal in Hendricks c. Quebec (P.G.)66. By 2005, same-sex marriage was legal in all other provinces and territories except for Alberta, P.E.I., Nunavut and the Northwest Territories. In a controversial policy move, the federal government did not appeal any of the decisions, and instead referred draft legislation to the SCC following the Reference Re Same Sex Marriage.67 This led to the enactment of the Civil Marriage Act68 in July 2005, which extended the right of civil marriage to same-sex couples across the country. In the landmark Halpern decision, the Court held that the common law rule in Hyde v. Hyde69 which prescribed marriage as a union between a man and a woman violated s. 15(1) of the Charter by denying homosexual couples access to the regulatory regimes that govern and constitute marriage at law. The Ontario Court of Appeal found that the human dignity of same sex couples had been violated by the discriminatory effect of the formal distinction based on sexual orientation and this could not be saved under s. 1. Accordingly, the existing definition was declared invalid and was reformulated as "the voluntary union for life of two persons to the exclusion of all others."70 The same-sex trilogy of cases and the piece meal evolution of the common law that followed forced the federal government's hand in enacting the Civil Marriage Act on a fiercely divided public in the name of Charter rights. Part III : In Good Faith to Whom? Reconciling Competing Sources of Authority As the case law has shown, the Canadian state is now conceived, in popular and constitutional discourses, as officially "secular" yet supportive of religious pluralism and multiculturalism.71 Religious freedom has been given a wide interpretation, subject only to potential interference in the rights of others. In contrast to the US position at law of an impregnable wall between church and state, the Canadian position is more nuanced. While there is an underlying separation of church and state, Canada's approach to multiculturalism has been translated into a fostering of religious expression and conduct, provided that it is done in a neutral, evenhanded manner. We have only to look at our comparative constitutional elements to explain this difference. According to the First Amendment of the United States Constitution (1791), "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof".72 This non-establishment clause stands in marked contrast to the Charter Preamble, which recognizes both the supremacy of God and the rule of law. The reconciliation of sacred and secular sources of authority, coupled with Canada's commitment to nurture communities of faith in an even-handed manner, is no simple task for Canada's increasingly pluralistic society of diverse faiths, cultures and identities. Early Charter cases established an expansive definition to religious freedom in an attempt to foster religious practice in an even-handed manner, yet religious values are ultimately evaluated against the values of the rational, non-religious actor, articulated in Canada as the constitutional rule of law. When such worldviews collide in a conflict of rights, religious 'choice' will be only be accepted in belief not action (Trinity Western), private not public (Big M Drug Mart), or if in public, only in accordance with Charter values (Chamberlain). This is a problem that Chief Justice McLachlin, Jean Bethke Elshtain, Iain T. Benson, Bruce MacDougall and Benjamin Berger have all attempted to resolve by finding the proper balance between religious freedom and the 'secular' rule of law. Religion and the Rule of Law: A Dialectic of Citizens or Normative Commitments? Chief Justice McLachlin's article entitled "Freedom of Religion and the Rule of Law: A Canadian Perspective"73 offers us a rare glimpse into the reasoning underlying decisions of the SCC. Far from a cloistered, modest perspective, McLachlin C.J. makes the bold assertion, borrowed from Yale professor Paul Kahn, that the rule of law "makes total claims upon the self and leaves little of human experience untouched."74 As religion exerts a similarly comprehensive claim, the law must assert its own ultimate authority while carving out a space for individuals and communities to manifest alternative, often competing, sets of ultimate commitments. This view demonstrates a "dialectic of normative commitments" which McLachlin C.J. explains as follows: What is good, true, and just in religion will not always comport with the law's view of the matter, nor will society at large always properly respect conscientious adherence to alternate authorities and divergent normative, or ethical, commitments. Where this is so, two comprehensive worldviews collide. . .It is the courts that are most often faced with this clash and charged with managing this dialectic.75 This language of "total claims upon self" echoes what was once the exclusive realm of metaphysical claims of complete submission to this ultimate authority. As Iain T. Benson has noted, this worldview positions law as "capable of determining not only what is just but what is 'good' and 'true'."76 The definition and imposition of the "common good" as a sort of objective truth is precisely what liberalism was reacting against. Individual autonomy, not societal consensus as dictated by the state or judiciary, is liberalism's true vehicle for self-fulfillment and the determination of what is "good" and "true." The irony is that the very same liberal values are used by the Chief Justice as a justification of the absolute comprehensiveness of the rule of law. In her response to Chief Justice McLachlin, political philosopher and ethicist Jean Bethke Elshtain questions this characterization of religion and the rule of law as a dialectic of normative commitments. Instead of assuming that law is a comprehensive worldview capable of managing this dialectic, Elshtain views the adversarial legal system as a last resort. Her alternative to McLachlin's "clash of commitments" can be summarized as follows: I believe that the 'dialectic of normative commitments'. . .is (or should be) primarily a dialectic of citizens, variously located, through a culture of democratic argument: citizens engaging one another and sorting things out, as often they will, in a rather untidy, rough and ready way.77 Elshtain's view of the goods at stake are not totalistic religious or legal goods, but more complete understandings of a public good, variously derived. Instead of reducing differences of opinions to the rights trump card in the adversarial courtroom, the Courts should take a more modest approach and allow the pluralism of the public sphere to flourish free from pre-emptive adjudication. Only when that pluralism inflicts tangible harm on other groups and individuals should the courts intervene. This "dialectic of citizens" would necessarily take place in the realm of civil society, which I will analyze in greater detail in Part IV. Elshtain also correctly notes that "religious faith is not a private matter: it is constitutive of a form of public membership in a church, temple, synagogue, or mosque."78 Religious adherents79 cannot leave their faith at the gate when they enter the public square. Elshtain's views of the totality of religion are echoed by Benjamin Berger: When religious conscience is properly understood as a pervasive claim upon the lives of believers, a liberalism that demands the severance of moral claims and political positions and a vision of secularism that requires an a-religious public space are irreconcilable with the freedom of religion accorded by the Charter.80 To the devout adherent, religious belief infuses all aspects of being. It flows from a divine authority and at the same time "asserts the complete pervasiveness of this transcendent principle."81 Liberalism's fundamental flaw is that while it tolerates different worldviews, it ultimately asserts its superiority over them. It fails to recognize that adherence to a faith community, whether it be religious or non-religious, is more than an individual choice in the rational liberal exercise; it is another valid way of experiencing reality. It is deeply tempting for all of us who view the world through a liberal lens to see religion, like every other decision in life, as a matter of individual choice. However, this approach is blind to the deeper issues at play. When we measure an irrational, divine source of authority against objective reason in the form of the rule of law, the decision is an easy one. This flawed assumption means that the terms of the debate are already decided before religious groups even get to court. However, by failing to understand the values underlying the constitutional rule of law and liberalism itself, we fail to see law and religion for what Berger has described as a "cross-cultural encounter."82 Understanding the "Secular" Central to the debate at hand is the way in which basic terms like "secular" are defined and understood. Iain T. Benson has written extensively on the use (and misuse) of "secular" and "secularism" which are frequently cited in defining the contours of law and politics in Canada.83 According to Benson, the "secular" has come to incorrectly signify a realm that is neutral or "religion-free," something which poses a challenge to all religions. He critiques the Chamberlain decision's confused understanding of a-religious "secularism" and the religiously inclusive "secular": Its confusion about secularism led to practical results that did not so much uphold diversity as undermine it. Contrary to the court's own principles, the Chamberlain decision produced a rank-ordering of rights in which the sexual dogma of same-sex advocates effectively trumped all challengers, including those of parents with religious convictions about their children's education. By delving into the historical uses of the term "secular," Benson explains that the Roman Catholic distinction between "secular" and "religious" is purely jurisdictional in the sense that "secular clergy" served in the world (ie. parishes) and "regular clergy" were those who lived according to a "rule" (ie. those who took vows of poverty and obedience) and served outside of the parish.84 From these religious origins, the concept of secularism has become a belief system or faith unto itself. Its purported neutrality and objectivity is dangerously misleading, as it has been elevated to a new form of sectarianism which places explicit belief systems at a marked disadvantage in politics, public education and law itself. Benson advocates for a religiously inclusive view of the state which is not run or directed by a particular religion, but aims to develop a notion of moral citizenship with the widest involvement of religious and non-religious faith groups: A proper understanding of the secular, however, will seek to understand what faith claims are necessary for the public sphere, and a properly constituted secular government (non-sectarian not non-faith) will see as necessary the due accommodation of religiously informed beliefs from a variety of cultures.85 By correctly understanding the "secular" as non-sectarian as opposed to non-faith, the terms of the debate, whether they be in the courtroom, classroom or public square, are enlarged to not simply tolerate, but to better understand, and seek guidance from, Canada's diverse faiths. However, if religious expression goes completely unchecked by the judiciary in the name of pluralism, there is a danger of tacitly encouraging and accepting religious extremism, preaching hatred and the infliction of tangible harm on others in the name of a superior metaphysical claim to truth. If Benson's perspective is one of largely unmitigated pluralism that hopes for a much more modest, deferential SCC in regards to religious groups and civil associations, then Bruce Mac- Dougall presents the opposite view. MacDougall compares the distinctions of heterosexual and homosexual rights made by the SCC in Trinity Western and the B.C. Court of Appeal in Chamberlain (which was overturned in certain aspects on appeal at the SCC) and the refusal of marriage commissioners to officiate at same-sex civil marriages to similar, yet unacceptable distinctions based on race or gender. On the marriage commissioner issue, he argues that it is constitutionally inappropriate to accommodate religious freedom in that it would deny equality of access for same-sex couple through the use of a "religious veto."86 In any other competing rights claim in the public sphere, MacDougall argues that freedom from discrimination on the basis of sexual orientation should prevail over religious sensibilities, though he is quick to say that this does not set up a hierarchy of Charter protections. In marked contrast to Benson, MacDougall posits that "in order for true equality to exist, the members of a group must not be shown just compassion and condonement, but must be celebrated by the state"87 (emphasis added). In sum, the full realization of dignity based on s. 15 rights not only requires equal treatment, but the public affirmation of homosexuality by the Canadian state and judiciary. The values of "tolerance" and "equality" would therefore become the vehicles for imposing a societal consensus on a divided public in the name of Charter values. The flaw in MacDougall's analysis is in the belief that greater social cohesion and understanding will flow from imposing this consensus in the name of dignity and the public affirmation of homosexuality. By relegating the dissenters to the private sphere, MacDougall fails to tackle the problem head on (ie. through dialogue, civil society and Elshtain's "dialectic of citizens") and compounds the lack of understanding and fragmentation of Canadian society. Lastly, MacDougall takes issue with the religious characterization of homosexuality as an issue of morality, arguing that such moralities of aspiration are not well suited to legal adjudication in a secular world. I would argue that different individual moralities of aspiration are exactly what are needed to reflect and affirm genuine tolerance and a plurality of worldviews in the public sphere.88 Somewhere in between Benson's religiously inclusive conception of the state and MacDougall's public affirmation of Charter values is Benjamin Berger's view of increased cultural pluralism in the public sphere, subject only to the "civic values" of security, dignity and autonomy. Berger writes that conventional approaches to liberalism and secularism have intensified the challenge of reconciling freedom of religion in a secular polity by providing a misguided vision of an a-religious and hyper-rational public space devoid of moral commitments.89 He goes on to describe the constitutional rule of law and religious freedom as a distinctly "cross-cultural encounter". Berger criticizes the fact the rule of law has been positioned as the arbiter of competing worldviews when rights collide, instead of a participant in a pluralistic public sphere. Accordingly, his solution to the doctrinal requirements of religion and law is "the invocation of a core set of civic values—the values that will guide liberalism and mediate pluralism."90 While this language of civic values appears to strike a balance between religious freedom and the security, autonomy and dignity of the individual, the interpretation of these broad, illdefined "values" has the potential to lead us back down the path of convergence. By elevating certain rights as Charter or civic "values," it imposes a "one size fits all" remedy when rights collide. The judicial treatment of dignity illustrates this vague and potentially overbroad application.91 If dignity were interpreted to mean public affirmation of homosexuality (as MacDougall has argued), then failure to affirm such dignity in the public sphere would leave little room for disagreement. In an indirect way, Berger's language of "civic values" could be used to impose a societal consensus and strip the public sphere from the cultural and religious pluralism he espouses. According to Benson: If citizens (religious and non), continue to attempt to speak to surrounding cultures in confused language (such as by misusing the term "secular" or using the pseudo-moral language of "values" when they mean an objective category of truth and meaning), they will never succeed in communicating those matters that are deepest and most essential to citizenship and culture."92 Only by identifying and challenging some of the normative assumptions of underpinning the law, can we create a public sphere that accommodates a diversity of faiths, identities and cultures. However, the point of this paper is that pluralism should be mediated by the harm principle, not by civic values that can unwittingly bind liberalism to a rational consensus. Part IV: Liberalism Unbound: Towa rds a More Inclusive Public Sphere Liberalism needs to be reclaimed. Imposing a societal consensus as to the common good based on ill-defined "Charter values" flies in the face of liberalism's raison d'être and the modus vivendi principles that should guide a pluralistic society. Borrowing heavily from Kant, Hannah Arendt offers guidance with her theory of judgement based on an "enlarged mentality."93 It maintains that judgement is distinct from provable truth claims because it involves the act of reflecting on a matter from the perspective of others. Since judgement is seen as inherently subjective, it cannot compel others in the same way as an objective truth. We see these same ideas reverberating in Charles Taylor's discussion of the normative "good" and John Gray's principles of modus vivendi. Far from being universal, liberalism's exclusive focus on the individual is a relatively recent phenomenon that is grounded in the unique circumstances of the West. The ultimate supremacy of the individual and "secular reason" is deeply problematic for Aboriginals, ethnic groups in an increasingly multicultural landscape, and the millions of Canadians who cannot simply relegate their faith to the private sphere. But even the most pluralistic, accommodating liberalism is not a panacea. Since the courts and the state reason from a liberal paradigm with its faith in rationalism, skepticism, individualism and objectivity, liberalism is not seen as an ideology or cultural system in itself, but rather the impartial arbiter of ideological or cultural encounters in the public sphere. When rights collide, religion must ultimately "listen to reason."94 Applying Charter values should not mean relegating "dissenters" to their own private realms. Human dignity and religious accommodation are not mutually exclusive. The impact of litigating these polarizing positions in a "winner take all" courtroom is felt by more than just some irate fundamentalists. By stripping away religion from the public sphere, diversity is subtly transformed into fragmentation. When ethnic and religious groups are alienated in an a-religious and a-cultural public sphere (ironically, in the name of greater integration), such groups withdraw into their own ghettoized communities. If there is no space in the public sphere for moderate religion, it will retreat into greater extremism, stereotyping and lack of understanding. To take a recent example from Quebec, if Muslim girls are not allowed to play soccer while wearing the hijab for so-called safety reasons, they will simply stop (or be forced to stop) playing the game entirely.95 If elements of sharia law are not allowed to co-exist in family law arbitrations and tribunals, such disputes will disappear into the dark corridors of the private sphere, far from the scrutiny, accountability and civic value of the public sphere.96 If children of deeply religious families are faced with a public school system that does not accommodate certain views on early childhood education, the proliferation of home schooling and private, religious education could be close behind. This would have disastrous consequences for the public school system, not just financially, but in terms of the fundamental civic lessons of understanding, compromise, debate and respect for difference. To avoid this problem with the vague language of civic values, I have argued for a more accommodating form of liberalism limited only by Mill's harm principle. This principle was affirmed by Dickson, C.J. in Big M Drug Mart and Ross v. New Brunswick School District No. 1597 where the Court stated that an individual's freedom to express one's religious beliefs "is restricted by the right of others to hold and to manifest beliefs and opinions of their own, and to be free from injury from the exercise of the freedom of religion of others."98 Without elevating certain vague 'civic values' above all others (be they religious or not), it allows for a more clearly defined and modest balancing of competing rights in the public sphere. Viewing the same-sex marriage debate through the harm principle would go a long ways to pre-empt the valid criticisms of the courts imposing a rational consensus in the name of Charter values. It would be much more difficult to demonstrate the tangible harm inflicted on heterosexual couples by extending civil marriage to same-sex couples, especially considering the exemption in the Civil Marriage Act for religious marriage, which allows officials of religious groups to refuse to perform same-sex marriages. In The Collapse of the Harm Principle,99 Bernard Harcourt deconstructs the normative dimensions of the harm principle to show how it has been widely used in the United States for the de facto enforcement of morality. He illustrates how the harm principle has justified the regulation of pornography, prostitution, disorderly conduct, homosexuality, intoxication, drug use and fornication in support of a conserv

The scene on Indianapolis’s east side seemed almost symbolic. On one side of the street was Shepherd Community Ministries, a center that served vulnerable and disadvantaged families. On the other side was a narrow alley where crack deals were made on a regular basis. It was as though the forces of good and evil were facing off across Washington Street. Shepherd’s director, Pastor Jay Height, was tired of worrying that the children he worked with every day might wind up on the wrong side of the street. So he came up with an idea: turn the crack alley into a park, a well-lit green area that drug dealers would shun. There was only one problem. To have the alley vacated, he would have to work with more than fifty separate contacts—agencies within city government, neighborhood organizations, utilities, assessors, and others. Most people would have thrown up their hands and walked away. Instead, Pastor Height contacted the Front Porch Alliance (FPA), a city agency that works with value-shaping organizations, particularly faith-based organizations.Because the FPA employees understood how city procedures worked, they could help Pastor Height vacate the alley. “Granted, it is not always as successful as you would like, but in this case, we were able to make it work through teamwork,” said Pastor Height, “And the neat thing to me is to be able to look at it and say, “Here is something beautiful.” Once the FPA cleared away government obstacles, many concerned organizations sprang forward to help make the neighborhood safer. Keep Indianapolis Beautiful, a private nonprofit group, designed the new park and supervised its construction. The two businesses that adjoined the old alley agreed to become the park’s nominal owners. Volunteers from Youth for Christ put down soil and planted flowers. This raises some important questions about why and how much government should get involved in troubled neighborhoods. Suppose you told Pastor Height’s story to two political theorists, one traditionally conservative, the other traditionally liberal. The conservative would nod knowingly and explain that once cumbersome government regulations were out of the way, the neighborhood improved on its own. “Not at all,” the liberal would retort. “The alley couldn’t have been vacated if government hadn’t become actively involved.” The director of the FPA, Isaac Randolph, puts it another way. “Everyone agrees that government has a core responsibility,” he says. “But the core has a circumference, and the controversy is over the size of the circumference. Conservatives use a microscope to measure it; liberals use a yardstick.” In Indianapolis, we have realized that neither approach is right. The traditional liberal belief in massive governmental intervention is misguided, but so is the idea that government should abandon neighborhoods altogether. There is a role for government to play in neighborhood revitalization. But what is it, if it is not the oversized federal programs that plague our cities today? Indianapolis’s experience of outsourcing municipal services may provide a useful comparison. Although we have attracted national attention for privatizing services, it wasn’t simply privatization that allowed us to save over $420 million. Rather, it was competition between government agencies and private companies: whoever offered to do the best job at the lowest cost won the contract. In other words, it didn’t matter whether municipal services were performed by the government or by the private sector; what mattered was that government outsourced those services fairly, supervised them closely, and made sure they were being provided well. The same principle, with a few modifications, can be applied to neighborhood revitalization. City government is certainly responsible for urban neighborhoods, just as it is responsible for trash collection, for example. But just because government is responsible for making sure a service is provided doesn’t mean that government has to provide that service itself. Just as government can work with private companies to collect trash, it can work with nonprofit organizations to improve neighborhoods. One job that government can do is simply helping neighborhood organizations understand rules and regulations—especially those for which government itself is responsible. The FPA’s part in vacating the crack alley is a good example. Or consider Lakeview Christian Center, a suburban congregation on the west side of Indianapolis. Lakeview had been planning to build another church in the inner city for years, but it was worried about the complicated process of land acquisition. The FPA helped it through the process. But then the FPA did something else—something even more important. It noticed that one of the city’s worst-performing public schools was located near the site of the new church. So the FPA proposed a partnership between Lakeview and the school. Now Lakeview sends tutors to help struggling students, provides food to needy families identified by the school’s social worker, and helps run an after-school program for advanced students. The FPA had become what Michael Joyce calls a “civic switchboard,” a central body that connects various groups for the public good. Those two functions—helping neighborhood organizations wade through government rules and acting as a civic switchboard—are comparatively uncontroversial, even when the organizations in question are faith based. The real controversy arises when government begins funding services provided by faith-based organizations. While this controversy isn’t surprising, the history of the FPA may show why it is misplaced. The FPA was founded in 1997, two years into my second term. We had already invested a record $1.35 billion in the city’s infrastructure to rebuild the physical structure of neglected inner-city neighborhoods. Then we had turned our attention to an even bigger challenge, strengthening those neighborhoods organizationally. We did that by helping the neighborhoods form umbrella organizations, paying for a full-time neighborhood coordinator for each umbrella, and funding all of them with Community Development Block Grant dollars. That program was a limited success. We discovered that even though we had budged a little from the traditionally conservative hands-off approach, neighborhoods couldn’t provide all the services they needed by themselves. So in 1997 we formed the Front Porch Alliance. We spent months canvassing the city, explaining to community leaders that we wanted to start working with them, supporting them, and even funding them. Once we had a strong base of support in the community, we went public. The point is that the FPA wasn’t intended to include only faith-based organizations. All sorts of value-shaping nonprofits were approached and invited to join us. Some of the organizations had existing specific relationships with city hall, for example, community development corporations worked with (or sometimes against) the Development Department. But as time went on, we discovered that most frequently the new and smaller organizations that chose to become most actively involved in the FPA were faith based. That wasn’t because we were discriminating in favor of faith-based groups. When the Robinson Community African Methodist Episcopal Church decided to open a community center for summer camps, after-school programs, tutoring, and so forth, we leased an abandoned fire station to it cheaply. When the Indianapolis Black Firefighters Association decided to convert another abandoned fire station into a community center, we supported it as well. Our job was to help value-shaping organizations improve their neighborhoods, whether those organizations were faith based or not. Nevertheless, the most frequent and enduring partners surrounded their physical assistance with faith. Not only should government be sure never to discriminate in favor of religion, it should never force anyone to participate in a religious program. For example, the FPA has initiated a program called Community Involvement, in which youths in the juvenile justice system are referred to faith-based organizations in their neighborhoods. However, the court provides various secular programs as well, which are just as accessible as Community Involvement. No one is assigned to a pastor without choosing that option. Now let’s examine a more difficult question. It makes sense not to discriminate against faithbased organizations when contracting for social services. For instance, when Safe Haven, a foundation that helps victims of domestic violence, needed to find a way to transport children to its programs, we didn’t hesitate to set up a partnership with several churches, which were paid to transport the children. But what about hiring faith-based organizations to provide social services that include religious elements? Should government have any part in that? Many people would say no emphatically—and I think this is a subject about which reasonable people can disagree. However, my view is that so long as government doesn’t fund religion directly, it should be able to support social services to which faith-based organizations may add a religious component. That is, if a church runs a homeless shelter with beds paid for by government, it shouldn’t be prevented from asking its guests to pray once a day. Again, government should always be sure to support secular shelters as well, so that no one is compelled to enter one with a religious component. One way to steer clear of some of these issues is to work with nonprofit bodies set up by faith-based organizations. If a church sets up a homeless shelter next door, and if the shelter is an independent 501(c)(3), it is much easier to preserve separation between the church’s religious function and the shelter’s social service. Programs like the FPA would be in good shape if the only opposition they faced was from people concerned with the separation of church and state. But we learned the hard way that there was a bigger obstacle: the churches didn’t trust us. Faith-based organizations in Indianapolis had long grown accustomed to a negative relationship with government: they were ignored at best and mistreated at worst. When we approached pastors and proposed an alliance, they were highly skeptical. “What’s in it for the government?” they kept wondering. “What political hoops do we have to jump through?” In the end, we secured their support in three ways. First, we established an advisory board and spent time consulting with the organizations and getting their advice before publicly announcing the FPA. This showed them that we wouldn’t spring any surprises on them and that we were serious about incorporating their suggestions into our plans. Second, we assisted them immediately and strongly, instead of just talking about it. And third, we invested heavily in the FPA. We tripled its work force from three people to nine—and that’s unusual in an administration that has cut the payroll by a quarter. We wanted every pastor who worked with an FPA representative to know that he or she was working with someone who had the mayor’s ear. Once we won over the churches, we faced an even bigger problem— that government employees returned their distrust. Just because my administration formed the FPA didn’t mean that every city employee supported the idea. Public employees lacked confidence in the capacity of faith-based organizations. Grant monitors in particular paid closer attention to procedural details—with which the organizations were understandably unfamiliar—than to programs’ outcomes. This is still a problem, but the FPA has improved relations by translating between government bureaucracy and informal, good-hearted but not paper-work-minded faith organizations. Faith-based organizations are a badly underused resource for improving the lives of disadvantaged Americans. As government begins working with them, it will come to realize what we in Indianapolis discovered two years ago: that faith-based organizations are infinitely more capable of handling neighborhood problems than government is. Unlike government officials, faith-based organizations tend to be tied closely to neighborhoods. By working with government officials, faith-based organizations can be part of solid solutions. When I looked out of my window on the twenty-fifth floor of the City-County Building, I saw the whole city, but not any individual neighborhood very well. When a pastor looks out of his window, he sees the people who need help and the houses that need rehabilitation. Sometimes, if he is motivated enough, he even sees the crack alley that needs to be vacated and cleaned up. But there is another reason that faith-based and value-shaping organizations are such a vital part of our communities. No matter how hard local governments work to keep taxes low, improve municipal services, repair the infrastructure, and so on, true urban strength can only be built on values. Without a population that cares about maintaining a civil society, a city will crumble. Values are best transmitted in two ways, through families and through local value-shaping organizations, particularly faith-based organizations. If government begins to partner with those organizations, they will not only provide services better than government can, they will teach our youth about citizenship, civility, charity, and a host of other values more effectively than ever before. This is an idea whose time has come. More public servants are beginning to explore the world of possibilities that government-faith partnerships offer. If we succeed—if we encourage organizations like the FPA in cities all over the country, if we promote similar initiatives on a national scale—we will be harnessing the nation’s greatest energy to deal with the nation’s greatest problems.   Originally published in What’s God Got to do with the American Experiment?, E.J. Dionne Jr. and John J. DiIulio, Eds., p: 72-80. Permission granted by Brookings Institution Press.