2.1. The Value and Harm of Expression

To make this argument, though, I need to say a little about freedom of expression – about its value or character. Freedom of expression does not simply protect individual liberty from state interference. Rather, it protects the individual's freedom to communicate with others. The right of the individual is to participate in an activity that is social in character and involves the use of socially created languages.Footnote ¹³ We become individuals, capable of thought and judgment, and we flourish as rational and feeling persons when we join in conversion with others and participate in the life of the community. The established accounts of the value of this freedom, which emphasise the contribution of free expression to truth, democracy and self-realisation, all rest on a recognition that human autonomy or agency is deeply social in its realisation and expression. The individual's ideas and feelings take shape in the social process of expression.Footnote ¹⁴ When we speak we bring to explicit awareness, to consciousness, something of which we had only an implicit sense before.Footnote ¹⁵ In this way our knowledge of self and the world emerges in the public articulation and interpretation of experience.Footnote ¹⁶ The individual reflects upon her ideas and feelings by giving them symbolic form and putting them before herself and others as part of an ongoing discourse. She understands her articulated ideas and feelings in light of the reactions of others. At the same time, the views of the listener are reshaped in the process of understanding and reacting to the speaker's words. The activities of speaking and listening are part of a process and a relationship. This relationship is valuable because individual agency emerges and develops in the joint activity of creating meaning.

The established accounts of the value of freedom of expression are generally described as either instrumental or intrinsic. Some accounts see freedom of expression as valuable in itself – as intrinsically valuable – because it permits free and rational beings to express their ideas and feelings.Footnote ¹⁷ Intrinsic accounts assume that freedom of expression, like other rights, is an aspect of the individual fundamental liberty or autonomy which should be insulated from the demands of collective welfare. Yet any account that regards freedom of expression as a liberty (as a right of the individual to be free from external interference) seems unable to explain the social or community-oriented character of the protected activity of expression – of individuals speaking and listening to others – and the special protection that is given to expression over other forms of voluntary human action.

Other accounts see freedom of expression as important because it contributes to a valued state of affairs. Freedom of expression is instrumental to the realisation of social goods such as public knowledge or democratic government. Instrumental accounts of freedom of expression recognise that the freedom protects a social activity and so must be concerned with something more than respect for individual autonomy or the liberty of the individual to do more than simply vent emotions or express thoughts. They assume that the freedom must be concerned with social goals (such as truth and democracy) that are in some way separate from, or beyond, the individual and his or her communicative actions. Yet, if freedom of expression is an instrumental right, its fundamental character seems less obvious. Its value is contingent on its contribution to the goals of truth and democracy, and there is no shortage of arguments that freedom of expression does not (always) advance these goals.

The value (and potential harm) of expression will remain unclear as long as discussion about freedom of expression is locked into the intrinsic/instrumental dichotomy, in which the freedom is concerned with either the good of the community or the right of the individual. The value of freedom of expression rests on the social nature of individuals and the constitutive character of public discourse. Once we recognise that individual agency and identity emerge in the social relationship of communication, the traditional split between intrinsic and instrumental accounts (or individual and social accounts) of the value of freedom of expression dissolves. Expression connects the individual (as speaker or listener) with others and, in doing so, contributes to his or her capacity for understanding and judgment, engagement in community life and participation in a shared culture and collective governance.

The arguments described as instrumental focus on the contribution of speech to the collective goals of truth and democracy. However, we value truth not as an abstract social achievement but rather as something that is consciously realised by members of the community, individually and collectively, in the process of public discussion.Footnote ¹⁸ Similarly, freedom of expression is not simply a tool or instrument that contributes to democratic government. We value freedom of expression not simply because it provides individuals with useful political information, but more fundamentally because it is the way in which citizens participate in collective self-governance. There is no way to separate the goal from the process or the individual good from the public good. In a similar way, attaching the label ‘intrinsic’ to autonomy or self-realisation based accounts of the freedom seems to misconstrue the value at stake. Communication is a joint or public process, in which the individual participants realise their human capacities and personal identities. The individual does not simply gain satisfaction from expressing his or her pre-existing views on matters. Those views and, more broadly, the individual's judgment and identity take shape in the communicative process.

Recognition that individual agency and identity emerge in communicative interaction is crucial for understanding not only the value of expression but also its potential for harm. Our dependence on expression means that words can sometimes harass, intimidate, deceive, manipulate or denigrate the individual. Expression is valuable because individual agency and identity are shaped by what we say and by what others say to us and about us – but it can also be harmful for the same reason. Expression can create a distorted image of the individual (or group) or undermine his or her standing in the community, particularly in conditions of unequal communicative power. Similarly, while expression is important as a source of knowledge and understanding, it can also serve to deceive or manipulate its audience. Speech is never simply a cause that acts upon its audience, but nor is it ever entirely rational and transparent in its meaning and impact.

At issue in many of the debates about protection of free speech is whether a particular form of expression engages the audience and encourages independent judgment or whether instead it intimidates, harasses or manipulates the audience.Footnote ¹⁹ The judgment that expression is valuable and worthy of protection, or is instead harmful and appropriately subject to restriction, is of a relative nature and will depend on a number of factors, including the form of the expression and the context in which it occurs. The determination that speech is harassing or intimidating and not simply uncivil or confrontational, or that it is manipulative (leading audience members to think and/or act in a particular way without realising the intent behind the speech or the implications of acting on its claims) rather than informative involves a judgment about the character of the communicative engagement. When speech seems intended to harass, deceive or intimidate its audience, it may no longer be viewed as communicative engagement – as part of discourse and entitled to constitutional protection.

2.2. Manipulation and Incitement

A commitment to freedom of expression means that we should not censor speech simply because we object to its message, either because we think the message is wrong or even because we are concerned that some in the audience may agree with the message and act in an anti-social or harmful way. The individual must be free to speak but also to hear what others may say without interference from the state. The answer to bad or erroneous speech is said to be more and better speech.Footnote ²⁰ Importantly the listener, and not the speaker, is seen as responsible (as an independent agent) for his or her actions, including harmful actions, whether these actions occur because the listener agrees or disagrees with the speaker's message. Underlying this commitment to freedom of expression (and the refusal to treat speech as a ‘cause’ of subsequent harm) is a belief that humans are substantially rational beings, capable of evaluating factual and other claims, and an assumption that public discourse is open to a wide range of competing views that may be assessed by the audience.

The courts recognise that these assumptions about agency and independent judgment may not always hold. Freedom of expression doctrine has always permitted the restriction of expression that ‘incites’ or ‘manipulates’ – that occurs in a form and/or context that limits or discourages independent and informed judgment by the audience. For example, in On Liberty Mill thought that the authorities would be justified in preventing a fiery speech given near the home of a corn merchant to a crowd of farmers angry about crop prices. A heated speech delivered to a ‘mob’ appeals to passion and prejudice and might lead to impulsive and harmful actions.Footnote ²¹ Speech, such as the address to the farmers, is described as incitement when the time and (reflective) space between the speech and the action is so limited that the speaker may be viewed as leading the audience into action and not simply as appealing to them to take action. In American free speech jurisprudence the classic example of a failure in the conditions of ordinary rational discourse comes from a judgment of Mr Justice Holmes, who said that ‘[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic’.Footnote ²² The false yell of fire in a crowded theatre represents an identifiable deviation from the conditions of ordinary discourse. The theatre audience in such a case would not have the time to stop and think carefully before acting on the communicated message. The panic that would follow the shout of fire in these circumstances would be likely to result in injury.

The examples given by Mill and Holmes involve circumstances that limit the ability of the audience to carefully or dispassionately assess the communicated message. The assumption is that ordinarily in communicating, the individual makes some form of conscious, non-manipulative, appeal to the audience. Even when it is confrontational and uncivil, speech may still engage its audience. In exceptional circumstances, however, an individual's speech may appeal to passions, prejudices and fears, and may encourage unreflective action. Speech may be treated as a ‘cause’ of audience action and subject to restriction when the time and space for independent judgment are compressed, or when emotions are running so high that audience members are less likely to stop and reflect on the claims being made. The line between rational appeal and manipulation or incitement may not always be easy to draw (and, indeed, is a relative matter) and different people may choose to draw the line in different places. Where the line is drawn, though, will depend not on a balancing of competing interests or claims (the value of expression against its harm) but instead on a judgment about the character or quality of the communicative relationship. In both cases – the fiery speech and the yell of fire – the ‘speech’ may be restricted because it does not appeal to, or engage, its audience in a way that justifies its protection.

2.3. The Line between Audience Engagement and Manipulation

This recognition of the constraints on independent judgment and the limits of communicative engagement may help us to better understand the decision of the Supreme Court of Canada in Irwin Toy v Quebec (AG), the Court's first significant freedom of expression case. In this case the Court considered the constitutionality of a Quebec law that restricted advertising directed at children under the age of 13.Footnote ²³ The Court found that the restricted advertising was protected expression under section 2(b) of the Charter as it ‘attempts to convey meaning’, and therefore that the law breached the section. However, the Court went on to find that under section 1 the law was a justified restriction on the right of freedom of expression because it protects children, a particularly susceptible group, from the manipulative influence of advertising. The justification for the restriction was that advertising directed at children seeks to influence their behaviour, while bypassing or discouraging reflection and judgment. Freedom of expression doctrine ordinarily requires that a willing audience be permitted to receive and assess ideas and information without interference from the state. However, a group such as children, whose reasoning capacities are not yet fully developed, should be protected from deception or manipulation.Footnote ²⁴

In deciding that the restriction was justified under section 1, the Court said that the restricted advertising was less valuable than other forms of expression (and so had less weight in the balancing process) because it was manipulative. Yet, at the same time, manipulation was also the harm of the expression that the Court purported to weigh against its (limited) value in the section 1 balancing process. In other words, the Court took into account the same concern – manipulation – in assessing both the value and the harm of the expression at the section 1 stage of the analysis. This apparent ‘double counting’ of the manipulative impact of the advertising is easier to understand if we recognise that freedom of expression is a relational right: it protects the relationship of communication between speaker and listener. When the Court assesses the ‘manipulative’ impact of expression, it is not simply balancing the distinct interests of separate individuals: the interest in communicating information and ideas against the interest in not being manipulated or deceived. The Court is instead making a contextual judgment about the character or value of the communicative relationship – of the speaker's engagement with his or her audience. In Irwin Toy the ‘value’ of the expression and the ‘harm’ of the expression are not distinct issues, but rather two sides of a single complex issue – and that is whether the speech seeks to influence the audience in a way that should be protected.

In other significant freedom of expression decisions of the Supreme Court of Canada – involving state restrictions on labour picketing, tobacco advertising, hate promotion, election spending and degrading sexual imagery – the Court has said that the restriction is justified because the expression creates a risk of harm to members of the community: it might, for example, lead individuals to start or to continue smoking or to adopt hateful views and engage in acts of discrimination or violence against members of a racial or religious minority group.Footnote ²⁵

As noted earlier, under most accounts of freedom of expression, the speaker does not ‘cause’ (is not legally responsible for) the audience's actions simply because he or she may have persuaded the audience to act in a harmful way or to adopt erroneous or undesirable opinions. The state is not justified in restricting speech to prevent these ‘harms’. (Of course, it is difficult to determine the potential impact of expression on the attitudes and actions of audience members – human agents – who may understand and react to the communication in different ways based on their personal values and experiences). The listener must be free to hear what others may have to say and to make his or her own judgments about its merits. Yet again, as noted earlier, the assumptions that underlie our commitment to freedom of expression do not always hold (and indeed never hold perfectly). Prohibitions on false or misleading product claims have been supported because advertisers have overwhelming power in the ‘marketplace’ of ideas and information (so that others have limited opportunities to correct misleading adverts) and because so much commercial advertising is non-rational or manipulative in its appeal. Similarly, the restriction of defamatory speech rests on a recognition that false claims made about an individual are not easily corrected through ‘more speech’. The harm of defamatory speech may persist, because the audience is not always in a position to assess the false and damaging claims and the correcting speech may not spread as effectively as the original defamation.

In each of these freedom of expression cases about advertising, hate speech, pornography and so on, the state is justified in restricting the ‘expressive’ activity not simply because of the harm it causes but also, and more importantly, because of how it causes that harm. While the focus of the Court's concern in these cases is on the harm that may result if the audience is ‘persuaded’ by the expression, the justification for restriction is based significantly on the way in which the expression influences or impacts upon the audience. The Court upholds the state restriction on expression, at least in part, because the expression takes a particular form or occurs in a particular social context that limits or discourages audience reflection or judgment. The Court has been willing to treat speech as a ‘cause’ of the harm (as the cause of the audience's behaviour) of smoking or engaging in acts of racial discrimination or acts of sexual violence, because of the character and context of the speech. The Court upheld a ban on lifestyle tobacco advertising (but not informational advertising), because the adverts are manipulative. In JTI Macdonald, Justice McLachlin notes that lifestyle advertising ‘evokes emotions and images’ and may ‘subliminally connect a tobacco product with a lifestyle’.Footnote ²⁶ In deciding that the state was justified in restricting hate speech, the Supreme Court of Canada agreed with the Cohen Commission (which had recommended the criminalisation of hate speech) that ‘individuals can be persuaded to believe almost anything if the information or ideas are communicated using the right technique and in the proper circumstances’.Footnote ²⁷ The Court accepts that the audience may be less critical of speech that makes a visceral appeal, seeks to stir anger, and provides a channel for fear and resentment. In a number of early decisions the Court supported injunctions against (secondary) picket lines in labour disputes, because a picket line is a ‘barrier’ and the refusal to cross a line (at least in the case of unionised workers) is ‘Pavlovian’.Footnote ²⁸ In each of these cases the justification for restriction is formally based on the seriousness of the harm that may occur if the audience takes up the speaker's message, but is also, and perhaps more significantly, based on the way in which the expression influences the thoughts and actions of the audience.

The Court, in these cases, is not balancing or trading off the distinct interests of separate individuals. It is instead addressing the single but complex question of whether the expression appeals to audience judgment or whether instead it aims to manipulate or to influence the audience at a non-cognitive level. The Court is marking the point (drawing the line) at which speech ceases to appeal to independent judgment or conscious reflection – the point at which speech no longer seeks to persuade or engage the audience. Realistically, where the Court draws the line between protected speech about sex and unprotected pornography or protected speech about tobacco products and unprotected lifestyle advertising will be affected by the seriousness of the harm that may occur if the audience is influenced by the ‘speech’; nevertheless, the Court's task in these cases is not to balance competing interests but rather to determine whether the ‘speech’ manipulates, incites or otherwise appeals to the irrational and is therefore not worthy of protection. The Court must make a relative judgment about the character of the communicative engagement between speaker and audience. Whether expression is more likely to contribute to understanding and judgment or instead to manipulate and lead to an unreflective response will depend on its form (visceral and non-rational in appeal) and on the social and economic circumstances in which it occurs – on systemic factors such as the overwhelming presence in public discourse of degrading sexual imagery, racist stereotypes and lifestyle product associations.

3.1. State Support for Religious Practice

The Canadian courts have held that section 2(a) (freedom of conscience and religion) precludes the state from preferring or supporting the practices or beliefs of one religion over those of another or religious belief over non-religious belief (and vice versa).Footnote ³² In Big M Drug Mart the Supreme Court of Canada struck down the federal Lord's Day Act, which prohibited various commercial activities on Sundays (in effect requiring members of the general community to honour the Sunday Sabbath).Footnote ³³ It is ‘constitutionally incompetent’, said the Court, ‘for the federal Parliament to provide legislative preference for any one religion at the expense of another religious persuasion’.Footnote ³⁴ In subsequent decisions the Canadian courts have held that the recitation of the Lord's Prayer at the opening of the public school day,Footnote ³⁵ the inclusion of bible lessons in the public school curriculum,Footnote ³⁶ the recitation of the Lord's Prayer at the opening of a town council meeting,Footnote ³⁷ and the recitation of an ecumenical prayer at a town council meetingFootnote ³⁸ violated the Charter. According to the courts, when the state supports the practices of the historically dominant religious group, it sends a message of exclusion to those outside the group. It says that they are less than full members of the political community.Footnote ³⁹

In those cases in which the Canadian courts found that the state had breached section 2(a) because it supported or favoured a particular religious practice, the courts also found that the state action (the breach) could not be justified under section 1. The courts held, in each of these cases, that the purpose of the law is to support a religious practice, and that such a purpose cannot be regarded as compelling and substantial. The restrictive law then fails the very first – or threshold – element of the limitations test, making it unnecessary to address the other elements of the test and to engage in any balancing of competing interests.Footnote ⁴⁰ Section 1 therefore appears to have no meaningful role in those section 2(a) cases in which the breach is based on state compulsion of, or support for, religion. Once it has been decided that the state has supported or preferred a religious practice, and therefore breached section 2(a), the case is at an end. There are no competing interests to be balanced, and so there is no possibility that the breach will be justified under section 1.

There may be debate about what counts as state support or preference for religion – about where to draw the line between religion and politics – but this debate takes place entirely at the first stage of the adjudication (whether there has been a breach or restriction of section 2(a)) and not at the second stage (whether a restriction – or exception – is justified under section 1). The Canadian courts, for example, have recognised that religious practices have shaped the traditions or customs of the community and so they cannot always be erased from the public sphere. According to the Supreme Court of Canada, ‘the state's duty of neutrality does not require it to abstain from celebrating and preserving its religious heritage’.Footnote ⁴¹ The courts, then, have not demanded that governments (literally or metaphorically) sandblast religious symbols and practices from physical and social structures, some of which were constructed long ago.Footnote ⁴² Secondly, the courts have recognised that religion is important in the private and communal lives of citizens. If a large part of the population is Christian, it is difficult to see how the state could not take the practices of this group into account in, for example, selecting statutory holidays or establishing a ‘pause day’ from work. As long as religion remains part of private life, it is bound to affect the shape of public action.

3.2. State Restriction of Religious Practice

On the other hand, in cases involving the restriction of a religious practice, section 1 (the limitations provision) appears to have a major role. Indeed, all of the main judicial analysis in these cases seems to occur at the limitations stage.

According to the Supreme Court of Canada, section 2(a) is breached any time the state restricts a religious practice in a non-trivial way. The Supreme Court has said that a practice will fall within the scope of section 2(a) if it is spiritually significant to the individual.Footnote ⁴³ In various decisions, the courts have said that freedom of religion protects forms of worship or observance (including dress and diet requirements), spiritual ways of life (such as living in an agrarian collective or living ‘separate and apart’ from mainstream society), and proselytisation activities (the teaching or promoting of one's faith to others). It protects also the collective dimension of religious practice – the joining with others in worship or in advancing shared religious purposes.Footnote ⁴⁴ Even when a law advances a legitimate public purpose, such as the prevention of drug use or cruelty to animals or violence in the schoolyard, the state must justify, under section 1 of the Charter, the law's non-trivial interference with a religious practice. This is said to involve a balancing of competing interests: the individual's freedom to practice his or her religion weighed against the state's ability to advance what it understands to be the public good. In Alberta v Hutterian Brethren of Wilson Colony, Chief Justice McLachlin, writing for a majority of the Supreme Court of Canada, said that a law that restricts a religious practice will be upheld only if it satisfies the various elements of the Oakes test, including the proportionality requirements.Footnote ⁴⁵

Yet, despite its formal commitment to ‘proportionality’ in the resolution of freedom of religion cases, the Supreme Court of Canada has been willing to uphold the legal restriction of a religious practice as long as the restriction has a legitimate objective (that is, an objective other than the suppression of an erroneous religious practice) that would be compromised in any way if an exception were made to its application. In other words, the Court has adopted in practice a very weak standard of justification under section 1 so that the right protects only a limited form of liberty, with no requirement that the state compromise its policy to take account of religious practices.Footnote ⁴⁶

Multani v Commission scolaire Marguerite-Bourgeoys is one of the few cases in which the Supreme Court of Canada found that a state restriction on religious practice was not justified. In that case the Court held that the decision by a public school authority to prohibit a Sikh student from wearing a kirpan to school breached section 2(a) and was not justified under section 1.Footnote ⁴⁷ The school did not dispute that the student had a sincere belief in the spiritual significance of the kirpan and, indeed, that he considered himself bound to wear it at all times. The position of the school was that the kirpan was a weapon and so was caught by the school's general ban on weapons. According to the majority judgment of Justice Charron, the school had a duty to make reasonable accommodation for the religious practices of minorities and so could ban the kirpan only if it represented a threat to school safety. Justice Charron observed that ‘while the kirpan undeniably has the characteristics of a bladed weapon capable of wounding or killing a person … for orthodox Sikhs [it] is above all a religious symbol’.Footnote ⁴⁸ She rejected the school authority's claim that ‘kirpans are inherently dangerous’ and noted that there were no recorded incidents in Canada of a Sikh student drawing his kirpan in a public school.Footnote ⁴⁹ Finally, she thought that if the kirpan was sewn into the student's clothes (to which his family and the school administration had previously agreed), there would be little risk of it falling out or being taken by anyone else and used as a weapon. She concluded that the safety of the school would not be compromised in any way if the student was permitted to wear the kirpan. In other words, the Court held that the kirpan should be exempted from the weapons ban only after determining that it was a weapon in form only and presented no actual risk to others.

Where there is concern that a religious exemption will compromise the purpose of the law (public policy) in an identifiable way, the Court has determined that the restriction – the state's refusal to exempt the religious practice – is justified under section 1. The case of Alberta v Hutterian Brethren of Wilson Colony involved a challenge to the regulations in Alberta dealing with driver's licences, which had been amended in 2003 to require that all licence holders be photographed.Footnote ⁵⁰ The licence holder's photograph would appear on the licence and be included in a facial recognition data bank maintained by the province. Members of the Hutterian Brethren of Wilson Colony, who believed that the Second Commandment (Exodus, 20:4) prohibited the making of photographic images, argued that the requirement for a photograph breached their section 2(a) Charter right and could not be justified under section 1. They claimed that no one from the colony would be able to obtain a driver's licence and that this would affect the colony's ability to purchase goods and sell produce, activities that were necessary for the maintenance of their agrarian and communal way of life. The majority judgment of Chief Justice McLachlin accepted that the photograph requirement breached the section 2(a) rights of the Wilson Colony members but found that the breach was justified under section 1. The Chief Justice found that the purpose behind the requirement (to reduce the risk of identity theft by ensuring the integrity of the driver's licence system) is pressing and substantial and that exempting the colony members from the requirement would detract from that purpose. Chief Justice McLachlin rejected the claim for an exemption from the requirement for a photograph because it would compromise the law's purpose – which, of course, any exception must do, unless it is not truly an exception. She also found that the impact of the restriction on the colony was not significant on the ground that driving was a privilege and colony members could hire others to do their necessary driving.

In rejecting the colony members’ claim for exemption from the photograph requirement Chief Justice McLachlin made what is sometimes referred to as a ‘floodgates’ argument: if the courts recognise a particular claim, they may be opening the floodgates to an overwhelming number of additional claims and may, as a consequence, undermine the effectiveness or predictability of the law. She expressed concern that accommodating every religious claim ‘could seriously undermine the universality of many regulatory programs’.Footnote ⁵¹ Yet there were very few claimants in this case, as Justice Abella noted in her dissenting judgment. Had they been granted an exemption, the impact on government policy would have been minor. Chief Justice McLachlin, though, seemed concerned about the possibility of more claimants coming forward later. It is unreasonable, said the Chief Justice, to expect the state (when it is seeking to advance the public interest through law) to respond to, or anticipate, every possible claim for exemption on religious grounds. However, on this reasoning no exemption could ever be given, because it might significantly undermine the law's purpose if additional claimants were to come forward at some future time. Or, as in Multani, an exception could be made only if it was not truly an exception in the sense that its recognition (regardless of how many people sought ‘exemption’) would not undermine the purpose of the law in any real way.

3.3. Making Space for Religion

The Multani and Wilson Colony decisions, and other religious ‘accommodation’ cases (which appear to have resulted in no actual accommodation) are understandable once we recognise that the task for the courts is not to balance or trade off competing state (public) and personal/communal (private) interests but instead is to determine the boundary (locate the line) between the civic/public sphere and the religious/private sphere. Law and religious practice can conflict in several ways. This conflict may be described as indirect when the religious practice conflicts with the means chosen to advance a public purpose and not with the purpose itself;Footnote ⁵² for example, the government may have decided on a particular route for a new highway only to discover that its preferred route runs through an area that is sacred to an Aboriginal group.Footnote ⁵³ In such a case it may be possible for the state to advance its purpose as, or almost as, effectively in a different way, through different means, so that it does not interfere with the religious practice or interest. Of course, even in the case of what might be described as an indirect conflict between law and religion, the adoption of different means will often detract to some extent from the ability of the law to advance a particular policy. In the example given, an alternative highway route may add to construction costs or detract from ideal road conditions. The issue for the court is whether the state can pursue its objective as, or almost as, effectively in another way which does not interfere to the same extent with the religious practice. In these cases the courts do not engage in anything that could properly be described as the ‘balancing’ of competing public and religious interests (in which the state's objectives might sometimes be subordinated to the claims of a religious community). The court, though, may require the state to compromise, in a minor way, its pursuit of a particular objective to make space for a religious practice, and so in such cases there may be some trading-off of competing claims.

Sometimes the conflict between law and religious practice is more direct in the sense that the law is pursuing a policy (a public value) which is directly at odds with a particular practice. In such a case the conflict between the law and the religious practice cannot be avoided or reduced by the state simply adjusting the means it has chosen to advance its civic purpose. Yet the court's task in these cases is not to decide the proper balance or trade-off between these distinct and competing interests or claims. After all, the court has no way by which to attach a specific value or weight to the religious practice. From a secular or public perspective, such a practice has no intrinsic value; indeed, it is said that the court should take no position concerning its value. The practice matters only because it is important to the individual; but there is no way to balance this ‘value’ against the purpose or value of the restrictive law. The court's task, instead, is to determine whether a religious individual or group should be exempted from the law – whether space should be made for a different normative system – and the court will do this only if the exception will have no real impact on others in the community.

The issue in the ‘religious accommodation’ cases, then, is not the balance between competing religious and public interests, but instead the location of the line between the political sphere (of government action) and the private sphere (of religious belief and practice). The courts may create some space for religious practice – such as for an alternative normative system or way of life – only if this can be done without directly challenging the state's authority to govern in the public interest and to establish public norms. In other words, a religious practice will be accommodated only if it will have little or no impact on the rights and interests of others.

There are several reasons why the state may be asked to make space for religious practice and community. There may be concern that the exclusion or marginalisation of a religious group will negatively affect the social standing of its members and their tie to the larger community – their sense of belonging. More positively, it may be seen as important that space be preserved for religious community because it is a source of value and meaning for community members. The courts have sometimes sought to create space for religious practices at the margins of law by adjusting the boundary between ‘private’ liberty (the sphere of religious life) and civic or public action (the sphere of politics). The court will require the state to exempt (accommodate) a religious individual or group from the law only if the exempted activity is ‘self-regarding’ (for example, the refusal to wear a motorcycle helmet for religious reasons), or is part of the internal operation of a religious association and so will have no significant impact on others in the community.Footnote ⁵⁴ In such a case the practice will be treated as personal to the individual or internal to the group and insulated from the application of the law.