Blog 056: No More Denial

Jacques Savard, atheist freethinker

This is the last of three blogs by three different authors but with a common theme: the April 15th 2015 decision of the Supreme Court of Canada. The other two are Blog 54 by David Rand and Blog 55 by Marco DeRossi.

See also the Declaration of secular associations in Quebec and Canada concerning the 15 April 2015 decision of the Supreme Court of Canada.

The recent decision of the Supreme Court ordering the cessation of prayer at council meetings of the city of Saguenay goes much further than the mere ban on prayer at all deliberative assemblies of government. Indeed, it puts an end to the denial of rights to nonbelievers.[1] Contempt for nonbelievers, shocked by public religious manifestations and vilified as intolerant, is now referred to by it real name: discrimination. In its decision, the Court sets out in a formal and condensed manner several important constitutional principles which it has developped over the last thirty years and it applies these principles to non-belief. In so doing, the Court sets forth the framework for the future of secularism both in Quebec and across Canada.

“Religious Atheism”

Since the inclusion of the Charter of Rights and Freedoms in the 1982 Constitution, the Supreme Court of Canada has, in accordance with Anglo-Saxon legal tradition, adopted a very wide definition of freedom of religion, a definition which includes atheism, agnosticism and other variants of non-belief. In its argumentation before the Supreme Court, the MLQ has asserted that the behaviour of the mayor of Saguenay has been detrimental for citizens’ freedom of conscience rather than their freedom of religion. The reponse of the Court has been to reaffirm its definition of freedom of religion and to classify all stances with respect to religious phenomena, whether for or against, under the category of freedom of religion. This has the effect of leaving to the category of freedom of conscience all other fundamental convictions that the individual may have, relating to topics other than religion, such as environmental or political philosophies. We know of no ruling on the subject which might allow us to see what lurks under the heading of freedom of conscience. We can however postulate that the Court made this choice deliberately, knowing full well that it thus offered non-believers the protection of both section 10 of the Quebec Charter and subsection 15 (1) of the Canadian Charter, both of which specify the bases on which discrimination is prohibited. Religion is one of those prohibited grounds for discrimination, while on the contrary secular convictions, which are matters of conscience, are not included.

In this context, the Court stated that “Sponsorship of one religious tradition by the state in breach of its duty of neutrality amounts to discrimination against all other such traditions.”[2] Thus it concludes that the atheist convictions of Mr. Simoneau were discriminated against. This statement will surely be referred to in future debates on whether to ban conspicuous religious symbols or on whether the Ethics and Religious Culture program in Quebec schools should be called into question as it systematically excludes non-beliefs.

A Treatise on Religious Neutrality

The most unexpected aspect of the Court’s ruling, an aspect largely ignored in media reports, surely involves the detailed description of state neutrality which the Supreme Court elaborates. It goes well beyond what the plaintiffs requested. In many previous cases, the Court recognized the state’s duty of neutrality. However in the case involving prayer in Saguenay, the Court decided to produce a complete exposition of its views on the question, while specifying for the first time the responsibilities of state officials. The Court begins by defining the constitutional requirement of state neutrality while stipulating that it must apply to all religious options, including non-belief. The Court describes “true” neutrality which “requires that the state neither favour nor hinder any particular belief, and the same holds true for non-belief” and “requires that the state abstain from taking any position and thus avoid adhering to a particular belief.”[3] To take a position is thus equivalent to endorsement.

These statements by the Court raise questions about subsidies to private religious schools. Does the teaching of religion in public schools favour one or more religions to the detriment of certain others? According to case law, there are as many religions as there are individuals, so would it not be better to simply abstain from teaching any religious option at all in public schools?

By virtue of the principle of neutrality, the state must maintain a neutral public space, with no distinction, exclusion, preference or endorsement of any given religious option. Within that space all citizens are free to believe whatever they want about religion and adopt whatever practices their convictions entail. Neutrality applies to institutions and not to individuals. The Court tells us, in fact, that “a neutral public space does not mean the homogenization of private players in that space.” [4] This assertion describes a public space in which citizens are not forced to adopt a uniform behaviour in religious matters, that is, they are free to display their beliefs and their convictions as they wish, including the convictions of non-believers.

On the other hand, the Court considers the role of state officials acting in the performance of their duties. Their behaviour would not be subject by the same rules as those applying to citizens in the public space. This constitutes, I believe, a new precedent in case law. The Court goes on to specify: (underlining added)

“First, because of the duty of religious neutrality with which it is required to comply, the state may not profess, adopt or favour one belief to the exclusion of all others. Obviously, the state itself cannot engage in a religious practice, so the practice would be one engaged in by one or more state officials, who would have to be acting in the performance of their functions. Where state officials, in the performance of their functions, profess, adopt or favour one belief to the exclusion of all others, the first two criteria for discrimination mentioned above, namely that there be an exclusion, distinction or preference and that it be based on religion, are met.”

Here we glimpse the special status that the Court applies to representatives of the state in the performance of their functions, as opposed to the complete protection of freedom of conscience and religion granted to citizens in the public space. The Court thus establishes a distinction between two sets of rules: those applying to state representatives while on duty and those applying to citizens in the public space. These details give the lie to the arguments — used by the Quebec Liberal Party and by partisans of so-called “open” secularism in the debate over the Charter of Values proposed by the Parti québécois — according to which the religious freedom of public servants cannot be limited even when they are performing their duties because that freedom must take precedence over state neutrality. Well NO! says the Supreme Court which rules that state neutrality must take precedence.

The Supreme Court goes even further and insists that state neutrality must be “true” and not just “benevolent” as suggested by the Court of Appeal of Quebec, as did the Bouchard/Taylor Report as well with its open secularism. Indeed, Justice Gascon[6], who wrote the decision for the Supreme Court, affirms that:

“… I do not think that the state’s duty to remain neutral on questions relating to religion can be reconciled with a benevolence that would allow it to adhere to a religious belief.”[7]

The Court is not unaware of public debates and categorically rejects any attempt to mask the religious nature of certain realities under the guise of invoking their historical, heritage or cultural nature. The Court also strongly resists to a second suggestion by the Quebec Court of Appeal that the reference to “God” in the preamble of the 1982 Constitution would allow a certain tolerance. These two decisions will be particularly appreciated by supporters of secularism and are of crucial importance.

In its ruling, the Supreme Courts describes an unfailing neutrality and leads us to understand that any accommodation or restriction on that neutrality is unacceptable. State neutrality must be flawless. It can neither favour nor discriminate against any belief system whatsoever in matters of religion. The state must avoid any suspicion of favoritism. It must not only be neutral, but be perceived as neutral as well.

Finally, the Supreme Court totally rejects the argument of the city of Saguenay claiming that the imposition of neutrality implies a preference for non-belief. (underlining added)

“In short, there is a distinction between unbelief and true neutrality. True neutrality presupposes abstention, but it does not amount to a stand favouring one view over another. No such inference can be drawn from the state’s silence.”[8]

As time passes, we will discover more and more situations where the state will have failed in its constitutional obligation to be neutral, often even involuntarily. I plan to seek out, wherever they may be found, breaches of neutrality and discrimination against non-believers. My starting point will be to put at the top of my list that infamous Ethics and Religious Culture (ERC) program, the crucifix in the National Assembly, as well as the privileges granted to fundamentalist religious schools, Prime Minister Harper’s Office of Religious Freedom and the refusal to grant the AHQ (Quebec Humanist Association) the right to celebrate marriages — a blatant example of discrimination.

  1. Mouvement laïque québécois c. Saguenay (Ville), 2015 CSC 16
  2. Id., par. 64.
  3. Id., par. 72.
  4. Id., par. 74.
  5. Id., par. 84.
  6. New judge, appointed in June 2014. The majority of the current Supreme Court judges have been appointed within the last four years. We are dealing with a whole new Court.
  7. Note 1, par. 78.
  8. Id., par. 134

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