宗教非營利團體於公領域中之宗教自由及其限制──美國與加拿大最高法院兩則判決比較

Religious Freedom of Religious Non-Profit Organizations in the Public Sphere and Its Limits: A Comparative Analysis of Two Decisions by the U.S. Supreme Court and the Supreme Court of Canada

本文針對美國聯邦最高法院於 2021 年所做成之Fulton v. City of Philadelphia 一案，以及加拿大最高法院於 2018 年所做成之Law Society of British Columbia v. Trinity Western University 一案進行比較。兩則案件皆涉及宗教非營利團體因持有被認為對於同志族群構成歧視之政策，而失去其於公領域中運作的機會。然而，兩案在判決結果上卻截然不同：美國最高法院在Fulton 案中以一致決判定，政府拒絕與一個天主教社福機構再次簽訂服務契約的決定為違憲。而加拿大最高法院在Law Society of British Columbia 案中，則以 7-2 之票數認定，公權力機關拒絕認可一所基督教大學新設立的法學院之決定為合憲。本文探究此一判決結果上的顯著差異應如何予以解釋。本文並回顧美加兩國最高法院近十年來在「宗教團體之宗教自由」此一議題上的判決趨勢，以探究兩國法院針對此一議題是否有著明顯不同的處理模式。

This article compares the decision of the U.S. Supreme Court in Fulton v. City of Philadelphia, which was made in 2021, with the decision of the Supreme Court of Canada in Law Society of British Columbia v. Trinity Western University, which was made in 2018. Both decisions involve religious non-profit organizations being prohibited by public authorities from operating in the public sphere because of their discriminatory policies towards LGBT individuals. However, the judgmental outcomes of the two cases are strikingly different: the U.S. Supreme Court held unanimously in Fulton that the government’s refusal to renew a contract with a Catholic social-service agency violates the First Amendment of the U.S. Constitution, whereas in Law Society of British Columbia, by a vote of 7-2, the Supreme Court of Canada held that the public authority’s refusal to approve a new law school established by a Christian university does not violate freedom of religion protected by the “Canadian Charter of Rights and Freedoms.” This article explores the ways in which such differential judgmental outcomes could be explained. This article also examines the decisions by both the U.S. Supreme Court and the Supreme Court of Canada since 2010 on the issue of “religious freedom of religious organizations,” in order to ascertain if the two apex courts have developed divergent approaches to this issue.