The mayor of Saguenay, Quebec, and his council members were wrong to open their public meetings with prayer.  That was the message of a recent Supreme Court of Canada decision.[i]  The Court was unanimous in its holding that public officials could not favour one religion over another.  The use of the prayer in question, said the Court, was to favour one religious community: Christians, and in particular the Roman Catholic Church

Mr. Simoneau is an atheist living in Saguenay.  He regularly attends the public meetings and was uncomfortable with the reciting of the prayer, the making of the sign of the cross by the mayor and council members after the prayer.  He was also troubled by the religious symbols (crucifix and Sacred Heart statue) that were in the chamber.  The mayor refused Simoneau’s request to stop the practise and remove the symbols.

With the help of the mouvement laïque québécois (MLQ), a group that advocates for secularism in government, Simoneau took  his complaint to the Quebec human rights commission.  The Commission refused to investigate the religious symbols but were of the view that the prayer was discriminatory and there was sufficient evidence to submit to the Quebec Human Rights Tribunal.

MLQ supported Simoneau’s application to the Tribunal.  The Tribunal granted the application stating that the prayer showed a preference for one religion at the expense of others and breached the state’s duty of neutrality.  The City and mayor were ordered to cease the recitation of the prayer, remove all religious symbols and to pay $30,000 in compensatory and punitive damages to Simoneau.  The Quebec Court of Appeal overturned the Tribunal’s decision.  The Court of Appeal said the City’s actions were not in violation of the religious neutrality of the state because the prayer was not identified with one particular religion and the religious symbols were works of art.

The Supreme Court of Canada (SCC) rejected the Court of Appeal’s decision.   Given that Justice Gascon is from Quebec, he got to write the decision.  Gascon noted that over the years there has developed a legal principle that says when it comes to religion the state must be neutral.  It must not interfere in the area of religion and beliefs.  That means it cannot favour nor hinder any belief or non-belief.

Since Canada is a free and democratic society, said Gascon, it must encourage everyone, regardless of beliefs, to participate freely in public life.  That public space must be neutral.  There must be no coercion in matters of spirituality.  Every person’s freedom and dignity must be protected.  Especially is this so in light of the fact that Canada is a multicultural society.

Justice Gascon noted that state neutrality does not mean that the state cannot celebrate its religious heritage.  However, it must not do so in a way that discriminates against other religious and non-religious communities.  The statements from the mayor made it clear that he saw his use of prayer as a personal obligation to maintain the faith of Christ.  “I’m in this battle because I worship Christ,” he said.  “When I get to the hereafter, I’m going to be able to be a little proud. I’ll be able to say to Him: “I fought for You; I even went to trial for You”. There’s no better argument. It’s extraordinary.  I’m in this fight because I worship Christ. I want to go to heaven and it is the most noble fight of my entire life.”[ii]

The mayor and his fellow councillors were of the view that the City has just as much right to claim religious freedom as any other citizen.  The Supreme Court disagreed.  The state is to have no religious opinion – it has no place on this field.  It is to be neutral – plain and simple.  “The state, I should point out,” said Justice Gascon, “does not have a freedom to believe or to manifest a belief.”[iii]

The Court’s reasoning will go a long way to ensure that the religious as well as the non-religious are protected from state interference in matters of conscience and religion.  That is a good thing.  The last thing we want, as people of faith, is to have the government enforcing its own religion on us.  We do not want the state to be interfering with how we live our spiritual lives.  It has no business telling us what we ought to believe or how we are to put those beliefs into practise.  In matters of conscience the state is to be impotent.

Mr. Simoneau felt ostracized at the council meetings in Saguenay.  The council members entered the chamber and prayed.  The meeting began two minutes after the prayer.  This was seen as a compromise for those who did not want to be present for the prayer – they could wait outside until the prayer was over.  When the prayer ended the non-religious entered the chamber for the meeting to begin.  The problem, of course, was that it made the non-religious feel they were “outed” for their conscience.  Their lack of agreement with the prayers were on public display.  It “resulted in a distinction, exclusion and preference based on religion — that is, based on Mr. Simoneau’s atheism” turning “the meetings into a preferential space for people with theistic beliefs.”[iv]

The principle of religious neutrality is a good one.  However, it is still something that must be monitored with a jealous eye.  I am concerned that it could be used to argue that any state recognition of a religious community, a religious institution, or religious individual could be in violation of this principle.  In other words, I would not want to see the principle be seen as requiring a strict separation of church and state.  I argue that there can never be a strict separation.  For example, ministers of religion perform marriages in Canada.  When they do so, they do it as an agent of the state.  The Supreme Court has said that ministers of religion are not forced to perform weddings that would be against their religious belief.[v]  Would it not be ironic if religious neutrality required ministers of religion to marry against their conscience?

Or consider religious schools.  Most Christian elementary, secondary and universities issue diplomas and degrees recognized by the state.  Would it not be an injustice for this principle of state neutrality to force such schools to maintain secular beliefs of the state as the price to pay for issuing state recognized diplomas?

Of course, I may be worrying unnecessarily so.  But given the arguments being used recently in such cases as Trinity Western University law school case – I cannot but be wary.

—–

[i] Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16:  Supreme Court of Canada, judgement given by  Gascon J., 15 April 2015, found online at:  http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15288/index.do

[ii] Paragraph 116.

[iii] Paragraph 119.

[iv] Paragraph 120.

[v] Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79, at paragraph 58.

Thoughts on Religious Neutrality of the State – Yes, but…

  1. Glen Wade

    According to this recent Supreme Court of Canada decision, no government has the right to a religious conviction, thus government (at all levels) must maintain religious neutrality. This allows the citizens, the actual human persons, to function freely according to their own religious or non-religious consciences.

    Organizations such as religious bodies (churches, synagogues, mosques, temples, religiously affiliated schools, etc.) may function under a completely one-sided, unbalanced system of belief and practice. Such still must function under the governance of the government in matters of general law such as not committing murder under the guise of religious practice. And schools must function under the governance of legislation stating schools must teach a minimum of general public needed knowledge such as skills in reading and writing, mathematics, etc., without which the schools would NOT be accredited by the state to issue diplomas indicating the approval and recognition of the state.

    The question is how these issues impinge upon commercial and business organizations. Recently, in the U.S.A., the idea has progressed in law that corporations have the right to act as persons in that they are allowed practices of religious beliefs, eg. The Hobby Lobby case. Freedom of religion has been thrust into the arena of multi-person organizations that are not normally considered religious organizations or religiously affiliated organizations. In fact these organizations are fully for-profit organizations but are allowed a status as if they are not-for-profit religiously affiliated organizations.

    How will Canada’s courts view the issues of personhood for business organizations if that issue comes up as it has in the U.S. and how is Canadian law different than U.S. law (both derived from British law) such that a different decision might be reached?

    Reply
    1. Barry W. BusseyBarry W. Bussey Post author

      Hi Glen – excellent post. You raise a great question. The Supreme Court of Canada had an opportunity in the Loyola Case – released in March 2015 – to deal with the Hobby Lobby situation but unfortunately chose not to decide the matter – leaving it for another day. However, reading between the lines it would appear that the SCC would not have decided the same way as the US Supreme Court. In Loyola Justice Abella noted, ” I recognize that individuals may sometimes require a legal entity in order to give effect to the constitutionally protected communal aspects of their religious beliefs and practice, such as the transmission of their faith.” (Para. 33) (By the way you may find the Loyola decision at: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14703/index.do) She also referred to Loyola “as an entity lawfully created to give effect to religious belief and practice.” It would seem therefore, that the judges of the SCC would see entities that give effect to religious belief and practice, as having religious freedom. Thus, to argue that businesses organized for profit without that essence may have a greater difficulty gaining religious freedom protection in Canada than the U.S.. Of course, every case has its own set of facts and we have yet to see how the SCC will apply this analysis on the appropriate case.

      On your other matters and distinctions as to the basic educational requirements of the state in ensuring that there is a proper educational program at the religious school I whole heartily agree.

      Reply
  2. Glen Wade

    The symbols of religion in this case, a crucifix and a Sacred Heart statue, were disallowed under the ruling of the Supreme Court of Canada. These symbols are very specifically symbols of ONE branch of Christianity, Roman Catholicism.

    Does the Supreme Court ruling apply to a more general symbol, one that all Christians and Jews might hold, a statue of the Ten Commandments of Exodus 20 in the Jewish and Christian Sacred Scriptures? This symbol would not be considered applicable to Hindu or Buddhist faiths or to atheistic beliefs. How does the decision speak to such a symbol?

    Reply
    1. Barry W. BusseyBarry W. Bussey Post author

      Hi again,
      The Supreme Court of Canada – held that on the matter of religious symbols the Human Rights Tribunal had no jurisdiction to make a decision on them. “The Tribunal’s jurisdiction in discrimination cases is dependent on the Commission’s having first conducted an investigation. There was quite simply no such investigation into the religious symbols contested by Mr. Simoneau.” Because of no Human Rights Commission investigation on whether the symbols were discriminatory the Tribunal had not jurisdiction to rule on the matter. Again it is left for another day……

      Reply
  3. Edward Choi

    I absolutely agree that freedom of religion is an important and positive point, and share your worries about how it would be used given the recent social, political, and legal climate. However, I am disappointed about the result. In my opinion, there is a constitutional convention for Christian prayers to precede council/parliamentary meetings. This started well before Confederation in both England and Canada. Our 1867 constitution recognises that our Constitution is modeled after that of the UK. The UK constitution includes the Church of England, the head of which is our sovereign, Her Majesty the Queen. In our mother country, the House of Lords (similar to our Senate) has a number of Lord Spirituals (legislators who are members of the Church of England). In fact, our 1982 Constitution starts with the preamble that Canada was founded based on the Supremacy of God. It appears to me that it was only relatively recently that God was not allowed to exist in our political, legal, and increasingly in our social context.

    It is disappointing that after this decision, municipal councils from coast to coast to coast have abandoned the prayer. For example, in Fredericton NB, Mayor Woodside abandoned the prayer quite regretfully.

    It is my hope that Councils that do wish to pray tries out a test case to test the limits of this decision. A small municipality in New Brunswick for example decided to continue to pray, but did not include the prayer as part of the agenda. I wonder whether that would be acceptable to the SCC.

    Reply
    1. Nick Curran

      Yeah Edward, I too am disappointed in the decisions of municipal councils to abandon prayers. The simple fact is that these councils should have sought legal advice with which to fashion their prayers in such a way that the practice was not like that of Saguenay or whereby it would have triggered the same result which was objected to in the SCOC ruling. In its ruling the SCOC did not completely rule out prayer in functions that are help by the state or state officials. In deed this same decision referenced the practice of prayer as it existed in the township of Renfrew. There the Court cited that an Ontario judgement deemed that prayer valid and that any violation of the right to be free from religion was so trivial that the prayer would have seen saved by section 1 of the Charter. The SCOC in Saguenay also referenced the prayers which are said before sessions in the Parliament of Canada however it was deemed that this practice is likely saved by some notion of parliamentary privilege. This begs the question further as to what other exceptions can validate public prayer.

      Suffice as to say the abandonment of prayer by these councils was a quick and lazy way to avoid controversy as Canadians often try to avoid controversy and strife which begs the question as to how resolute were they in their prayers prior to the decision to abandon them without even facing a challenge on the practice. What do the scriptures say on lukewarm warm faith again? Yeah here’s to standing up for something.

      Reply
  4. Nick Curran

    My sense is, looking at the facts in Saguenay, that the manner in which prayer was orchestrated as by the City Council was so onerous and non-ecumenically Catholic that this decision was almost a given, safe The City of Saguenay making appeals to the history of Quebec and the deal that was made by the founding of Upper and Lower Canada whereby the Catholic faith was enshrined into law as being endemic to the French Canadian nation and culture whereby the province of Quebec if it wanted to could have invoked section 33 of the Charter to protect one of its municipalities for which it is responsible.

    That being said, Saguenay left the door open pretty wide for current and ongoing instances of prayer in the public space where the state is operating in an official capacity. State Neutrality over matters of religion and conscience cannot mean absolutely no religious observances or affiliation or else the state is taking sides or endorsing a position, that being the side of the irreligious in matters of conscience over that of the religious. The American courts which have decades of jurisprudence and experience over our Supreme Court on the matter of “Separation of Church and State” has come to this position and must be looked to as “expert” in these matters not owing to the fact that they are a more religious society than we are and have been dealing with the issue in a more in-depth fashion and far more often than we have, but because Saguenay is deafeningly silent on many of the issues which their courts have strenuously defined on this issue.

    For instance Saguenay didn’t do a great job defining or differentiating between religion and conscience which was necessary given the competing visions in this case. They didn’t define prayer, nor discuss other religious observances or whether or not prayer can be neutral which many people of faith claim that it can. The court noted that this prayer was a breach of the state’s duty of neutrality, and that is obvious, the prayer in Saguenay was not neutral. However another form of observance similar to a moment of silence or personal reflection minus the signing of the Cross may have not breached this duty. Further to that point, there was no input or reference to Subject Matter Experts on religion or faith, not to give their view on religion itself but to define prayer on conscience as ait relates to religion. Furthermore Saguenay did not completely ban state sponsored prayer, reading the decision it did defer to the federal parliament’s longstanding tradition of prayer owing to its parliamentary privilege. Where one exception exists there can naturally be others that follow.

    That being said, the purpose of my discussion is for legal advisors, who maybe advising their public sector clients not to allow priests, pastors, rabbis and imams to conduct prayer at public gatherings or at official functions. My sense is, given the breadth of space allowed by Saguenay owing to what it did not say, such officiating and state events could continue although cautiously and with some review prior to commencement.

    Reply

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