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  1. Barry W. Bussey: Last week, the Supreme Court was asked to do something courts never do: review the solely religious decision of a church On November 2, the Supreme Court of Canada was asked to do something Canadian courts never do: review the solely religious decision of a church community. Until now, the courts have recoiled from getting involved in religious disputes—and for good reason. The case involves Randy Wall, who was dismissed from a Jehovah’s Witness church for failing to repent of his religious offences: getting drunk on two occasions and verbally abusing his wife. Wall’s appeal to another church entity was unsuccessful. He then appealed to a court of law by means of “judicial review,” on the grounds that the church had denied him a proper hearing. In Canadian law, in a process known as “judicial review,” a person can ask a court to “review” (i.e. hear) whether the decision of a “public actor” (such as a government licensing agency) was unfairly decided. Courts rarely review decisions of “private actors” (such as a church); they generally do so only if a private actor’s decision engages property or civil rights. In Wall’s case, the court had to determine whether the Jehovah’s Witness church’s decision involved property or contractual rights, which would then enable the court to review the church’s decision. "The church argued it was a private religious body, not a public body" The church argued it was a private religious body, not a public body, and that its decision did not affect Wall’s property or contractual rights. It also argued that its disciplinary procedure was a religious process involving prayer and scripture reading aimed at reconciling the relationship between Wall and the church. The lower courts both held that religious decisions can be reviewed by courts to determine whether a church gave a fair hearing, even if no property or contractual rights were engaged. However, both courts were also of the view that property rights were an issue in the case. The Supreme Court of Canada must now decide whether those courts were right. The Supreme Court reserved judgment after last week’s hearing; we can expect its decision early in the new year. Courts like to “fix things.” They naturally want to find resolutions to disputes; this is what they exist to do. However, courts have historically avoided getting involved in religious cases, recognizing that they lack the expertise and authority to settle religious disagreements. They handle legal cases, such as contractual disputes, but not religious cases that raise metaphysical truths, such as the definition of God. Wall argued his case did involve a “property right,” because his dismissal from his church meant the church members were no longer willing to do business with him. As a real estate agent, 50 per cent of his clientele were Jehovah’s Witnesses. His business folded from the loss of their support. He says there is a direct line of causation between his loss of church membership and business loss. It’s likely the case that one caused the other, but that doesn’t mean Wall’s claim is a legally enforceable property right. "A church member is not required to patronize the business of a former church member" The reality is, Wall chose to limit his business to Jehovah’s Witnesses and took a personal risk in doing so. The church did not tell him to do so, and certainly there is no known legal principle that says a church is responsible for the economic losses that might flow from a loss of membership. A church member is not required to patronize the business of a former member. In the same way, we would not expect a former husband to maintain business with his ex-wife’s family. At last week’s hearing, Wall’s legal counsel tried to persuade the court that, if there are no grounds under Canadian law for the court to interfere in purely religious matters, the court should then consider adopting U.K. law, which does allow this type of review. “Good luck!” Justice Rosalie Abella quipped, prompting everyone to burst into laughter. That exchange suggested the court was not persuaded that it is time to change the law to allow courts to get tangled up in reviewing decisions of religious bodies. That would be a good thing, as courts don’t have the moral or legal authority or doctrinal expertise to decide such matters. This hearing occurred around the time of the 500-year anniversary of Martin Luther’s nailing of his 95 Theses to a church door in Wittenberg, Germany. If we have learned anything since then, it’s that the law does not need to apply to every nook and cranny of our lives – especially our religious affairs. Barry W. Bussey is Director Legal Affairs at the Canadian Council of Christian Charities. He blogs at lawandreligion.org http://nationalpost.com/opinion/courts-have-no-business-reviewing-religious-decisions

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