Indi’s MLQ v Saguenay review: Canadian secularism

Throughout the Mouvement laïque québécois v Saguenay (City) process, no less than five very different approaches to secularism were described. Thus far I’ve described the approaches that were not correct – approaches that were not actually secularism as properly defined. Happily, the final Supreme Court decision got secularism right. So in this instalment, I’ll discuss that.

But in order to get to that point, I’m going to have to wade through the wrong approaches, and explain why they’re wrong and why correct secularism – as described by the Supreme Court ruling – is, well, correct. I’m also going to walk through a bit of the history of secular thought, and identify where some people went down the wrong path, and why, and how that has resulted in the modern confusion about secularism.

First I’ll briefly recap the definitions of secularism that were described over the course of the case.

Solange Lefebvre

Solange Lefebvre

It started at the Tribunal des droits de la personne (TDP; or “Human Rights Tribunal”) hearing, where Solange Lefebvre – one of the expert witnesses for Saguenay and Mayor Jean Tremblay – described four different approaches (the names are mine; they weren’t named in the Tribunal hearing):

  1. Anti-religious extremism: All signs of religion are banned from the public sphere (meaning both the state and its agencies, and all other public interaction).
  2. Secularism-lite: The state must be strictly neutral, though individuals have freedom of religion. However, the state can continue to use “traditional” religious symbols and rituals it has inherited.
  3. Transitional secularism: The state must be strictly neutral in the exercise of its power, but it can be openly religious in its symbols and rituals so long as there is a clear line of separation between the religious stuff and the exercise of power.
  4. Theocracy: The state can be religious, both in its symbols and rituals, and in its exercise of power.

MLQ’s expert witness Daniel Baril pointed out the inconsistencies in Lefebvre’s typology. He noted that although Lefebvre tried to shoehorn Alain Simoneau and Mouvement laïque québécois (MLQ) into type 1 (“anti-religious extremism”), the reality was that what they were asking for – cessation of government prayer – had been recommended by the Bouchard–Taylor Commission, which she classifies as type 2 (“secularism-lite”).

[Photo of Michèle Pauzé]

Michèle Pauzé

In fact, while Lefebvre described the reasonable position as somewhere between type 2 and 3, she spoke glowingly about the Bouchard–Taylor Commission (aka the Consultation Commission on Accommodation Practices Related to Cultural Differences). But when she was confronted with the inconsistencies – such as the fact that the Commission had recommended ceasing government prayer, while she was claiming doing that was tantamount to societal collapse – she had no answer.

Because of all this, Baril said Lefebvre’s typology was of little use. And he turned out to be presciently correct – in the end, no one at any level of the case’s analysis actually found Lefebvre’s typology useful.

Tribunal decision maker Judge Michèle Pauzé didn’t end up using Lefebvre’s typology in her ruling, and the type of secularism she described is not included in it. Pauzé based her version of secularism on previous Supreme Court opinions about state neutrality.

I’m going to pass over Pauzé’s approach to secularism, because it turns out she got it right. Her approach to secularism is secularism, and it is what the Supreme Court finally established in the final review. I’ll be describing it shortly, so I’ll just pass over it for now.

[Photo of Guy Gagnon]

Guy Gagnon

In the Québec Court of Appeal review that tossed out the Tribunal ruling, Guy Gagnon introduced a fifth approach to secularism.

His version of secularism is similar to transitional secularism, except that he specifies that the state cannot favour (or hinder) any specific religion. In other words, the state cannot favour Christianity and hinder Islam, but it can favour a fuzzy blend of Christianity, Islam, Judaism, Sikhism, and Hindu while hindering atheism and Buddhism. So-called ‘ecumenical’ religious practices are okay. Symbols and rituals that are obviously associated with a specific religious tradition are also okay, so long as you can argue they are “traditional”, or part of the state’s heritage.

Gagnon calls this “benevolent neutrality”, but this is an obvious misnomer, because there is nothing ‘neutral’ about it. I have relabelled it to something more correctly descriptive: magnanimous non-neutrality.

I want to say a few words here about the use of the term ‘neutrality’ as opposed to the more technical and specific term ‘secularism’.

If you read through the rulings in this case, you will repeatedly see that ‘secularism’ is treated like a bad thing. Solange Lefebvre, to her credit (and to the credit of her expertise on the topic), used the term ‘secularism’, and by and large used it mostly correctly. Tribunal decision-maker Pauzé didn’t really discuss the topic of state secularism or neutrality, but both Guy Gagnon writing for the Québec Court of Appeal and Clément Gascon writing for the Supreme Court took pains to mark a difference between ‘secularism’ and ‘neutrality’, and to specifically rule out ‘secularism’.

To understand what’s going on, we have to take a step back to look at the larger struggle between ‘North American style secularism’, and ‘European (or French) style secularism’. I will distinguish between them as others have, by referring to the former as ‘secularism’, and the latter as ‘laïcité’.

The history of laïcité vs secularism

[Painting of the Martyrs of Compiègne]

The Martyrs of Compiègne – 14 nuns and 2 externs, the youngest of whom had just turned 29 – were among the last to be executed during the Reign of Terror.

Laïcité finds its roots in the French Revolution, which was in no small part a revolution against the Catholic Church and its stranglehold on France. They certainly had legitimate grievances against the Church – something I’ve brought up examples of in the past – so it’s hardly surprising that pro-republican sentiment against the monarchy included sentiment against the Church, and religion in general. Unfortunately, France’s rejection of religion has never been particularly measured; their first major action toward removing the Church’s power over France is now known among anglophones by the name: “The Reign of Terror”. The French refer to it even more ominously as just la Terreur.

But laïcité really came into its own around the end of the 19th century, when France established secularism as official state policy in matters of education. For a bit of historical context: France had just deposed Napoleon ⅠⅠⅠ, ending the Second Empire and ushering in the Third Republic. Napoleon ⅠⅠⅠ – aka Louis-Napoléon Bonaparte (nephew of the Napoleon) – had been the sole president during the Second Republic, and after a coup d’état, Emperor of the Second Empire, and he had been very friendly to Catholicism. He had not only restored much of the power Catholicism had lost in the First Republic and the First Empire, he was responsible for defending the Papal States against Italy (Italy only managed to take the Vatican after Napoleon ⅠⅠⅠ was finally deposed, and the Vatican lost its defender). When Napoleon ⅠⅠⅠ fell, he left France in a bit of a mess. It was still tangled up in a disastrous war with Prussia (which was basically Catholic France versus a very secular Prussia, and which Napoleon ⅠⅠⅠ had started thinking it would be a cakewalk, and an easy way to fix the problems of national disunity he was facing), and it was losing badly. One of the first things the new provisional government had to deal with was the 1870–1871 Siege of Paris, followed by the revolt and establishment of the Paris Commune (which, by the way, adopted secularism and not laïcité, before it was bloodily wiped out by the French government). Licking their wounds after the war, the provisional government – provisional no longer – decided the way to prevent a repeat of their defeat and the chaos that followed was by creating an educated population with a solid French nationalist identity. They also wanted to remove the lingering Catholic influence that Napoleon ⅠⅠⅠ had reintroduced.

Thus laïcité was introduced as policy to strengthen France nationalism – both to fend off Catholic influence, and as part of a new French national identity. It wasn’t exactly popular with atheism in general at first for a number of reasons – as a gross simplification, you could say that atheism (atheists at the time preferred to refer to themselves as “materialists”) at the time was broadly opposed to nationalism and leaning heavily toward (classical) Marxism (which was also not keen on nationalism) and egalitarianism in general (which was broadly embracing the notion of “global citizenship”, “perpetual peace”, and somewhat disdainful of the idea of individual nations). Making matters worse, part of this indoctrination of French identification included the indoctrination of a disdain for internationalism and cosmopolitanism: children were taught they were French, and they should be proud of that and love France, and that the idea of being a citizen of the world was wrong – even morally wrong.

Those attitudes have persisted into the modern area, and with the rise of the Muslim immigration “crisis”, they have hardened. That is why laïcité is frequently connected to nationalism, and even fascism, and anti-clerical intolerance in general.

Things evolved somewhat differently on the other side of the pond. Americans adopted the ideals of the French Revolution, but not the extremism. Their version of secularism was much more tolerant – it (mostly) lacked the anti-clericalism of the earliest forms of laïcité, and it never adopted the nationalistic and fascistic tones of the later forms. The philosophical basis for American secularism comes not from a desire to stick it to the Church and enhance “American identity”, but rather from the ‘social contract’ political theories of thinkers like Locke, as well as (classical) liberalism, and is strongly influenced by notions of egalitarianism and ‘small government’ (that is, the idea that government has no business interfering in the lives of its citizens unless and until they interfere with the rights of others). (In fact, American-style secularism is essentially identical to the Prussian form of secularism that the French condemned in favour of laïcité.) Modern secularism is still framed in those terms, but it has also been buttressed by modern thinkers like John Rawls.

The principle difference between secularism and laïcité is anti-clericalism. Laïcité in its purest form calls for the removal of all signs of religion from the public sphere… not just the government and its agencies, but the entire public sphere. All religious expression is unwelcome in places where the public are supposed to be able to meet on open and even terms. Expressions of this idea range from banning the wearing of religious symbols to forcing believers to eat things they consider against their religious beliefs.

Unfortunately, far too many anti-clerical activists have passed themselves off as secularists. There is an obvious reason for doing so – secularism is a respectable idea that is almost universally accepted by reasonable people, and in its proper form it is impossible to rationally argue against. Secularism in its proper form is intrinsically related to egalitarianism and freedom. It’s only natural that anti-clerical activists want to hide behind such a well-established and well-respected name. And laïcité has made it easy to do so, because laïcité is anti-clericalism (usually lumped together with nationalism, fascism, and anti-globalism), but the word itself – although technically untranslatable – is usually translated as ‘secularism’… which it is not; we just don’t have any better word to translate it as.

How the laïcité vs secularism struggle has impacted the understanding of secularism

‘Secularism’ translates into French properly as ‘sécularisme’… notlaïcité’. There is no English word that properly translates the French word ‘laïcité’. (Though if I had to choose one, I’d prefer ‘anti-clericalism’ over ‘secularism’.)

But because ‘laïcité’ is usually translated as ‘secularism’, the meaning of ‘secularism’ has become confused. The evidence of that is widespread, but I’ll just focus on examples relevant to the Supreme Court decision at hand.

The first bit of evidence is in the Court of Appeal decision, where Justice Guy Gagnon writes the following (QCCA p.64):

Or, il n’existe pas au Québec une telle chose appelée charte de la laïcité. En l’absence d’un énoncé de principe officiel portant sur les valeurs que l’État entend protéger dans le cadre de son obligation de neutralité, il faut s’en tenir à la règle libérale selon laquelle un état neutre au plan religieux signifie essentiellement qu’aucune vue religieuse n’est imposée à ses citoyens, que son action gouvernementale sous toutes ses formes demeure à l’abri d’une influence de cette nature et qu’il en est véritablement ainsi.

(There is no such thing in Quebec as a charter of secularism. In the absence of an official statement of principle on the values that the State intends to protect in the context of its duty of neutrality, we must stick to the liberal rule that a religiously neutral State essentially means that no religious view is imposed on its citizens and that its government action, in all its forms, remains truly free from any influence of this kind.)

See what happened there? Gagnon says, in essence, “there is no charter of laïcité… therefore the state should be secular”. Except, because he doesn’t use ‘secular’ – using ‘neutrality’ instead – that leaves him open to interpret exactly what ‘neutral’ means. Which he does. (And he apparently thinks ‘neutral’ means ‘not neutral, but not an asshole about it’. But that’s beside the point here.)

If secularism has been properly understood as secularism… and essentially synonymous with ‘neutrality’ (exactly synonymous in this context), we never would have lost the Court of Appeal review. Because of this extra baggage that laïcité brings, Gagnon assumes that a state cannot be secular without a manifesto enumerating the values the State intends to protect; which, assuming laïcité, would probably include defending some definition of “national identity” or some such. Or maybe just sticking it to religion. (Proponents of laïcité frequently also agitate against multiculturalism and diversity.)

No extra “values” are necessary for secularism. Secularism comes right out of the basic, fundamental rights enumerated in the Constitution. That’s how Judge Michèle Pauzé found it in the Tribunal ruling – effortlessly, I might add – and that’s exactly how Supreme Court Justice Clément Gascon justified it. Secularism is easy and obvious – there’s no need for a ‘Charter of Secularism’. In fact, secularism can’t be avoided, if you want a fair and neutral state. The same cannot be said for laïcité. In fact, laïcité contradicts true fairness and neutrality. (See where this is going yet?)

To be fair to Gagnon, he’s not entirely to blame for introducing this confusion. The same confusion existed in the European Court of Human Rights Grand Chamber judgement in Lautsi v Italy, which Gagnon used as a basis for his own version of ‘neutrality’. And of course, it exists everywhere ‘laïcité’ is used where ‘secular’ (or ‘séculier’) is meant. Observe Gagnon’s final words on the point:

Je retiens de ce qui précède que la laïcité intégrale ne fait pas partie des protections fondamentales énumérées à la Charte et cette idée n’est pas davantage sous-jacente dans la forme négative de la liberté de religion. Au contraire, le principe de la neutralité de l’État implique que tout ce qui pourrait être associé à une forme d’expression religieuse, sans être banni, doit demeurer résolument subordonné aux valeurs fondamentales protégées par la Charte, y compris les libertés de religion et de conscience.

(I conclude from the foregoing that complete secularism is not part of the fundamental protections enumerated in the Charter nor does this idea underlie the negative form of freedom of religion. On the contrary, the principle of State neutrality implies that anything that could be associated with a form of religious expression, without being banned, must remain firmly subordinate to the fundamental values protected by the Charter, including freedom of religion and conscience.)

In reality, of course, not only is state secularism an obvious and unavoidable consequence of the fundamental Charter protections (and the negative form of freedom of religion), what is implied by ‘state neutrality’ is state secularism. Not the fuzzy and incomplete concept of “remaining subordinate” that Gagnon tries to justify. State neutrality and state secularism – in this context – are the same thing.

[Logo of the Supreme Court of Canada]

Supreme Court of Canada

When the Supreme Court took up the challenge to sort all this mess out, they happily got it right. But for the reasons enumerated above, they refused to use the term ‘secularism’ for what is obviously secularism. Instead, Justice Clément Gascon preferred the term ‘neutrality’. He used the phrase ‘complete secularization’ to either describe laïcité, or a more stringent form of secularism that would call for the removal of anything with even the slightest whiff of religious influence from the sphere of power (not the public sphere, as laïcité calls for). He doesn’t connect his ‘absolute neutrality’ with Gagnon’s ‘complete secularization’, but I find the two terms to be synonymous.

So let’s start by writing off laïcité as completely unworkable. Even if one ignores its fascistic roots, laïcité is incompatible with a free society, and incompatible with governing equally and without prejudice. While some CA readers have cheered on efforts in Europe to force religious people to accept certain diets or follow certain dress codes, mandating diets or clothing is antithetical to a free society. That kind of shit is totalitarian bullshit. The same CA readers would freak out if the government ordered them not to wear atheist T-shirts (for example) in public, but because others are being victimized, these hypocrites have no problem with it.

Government should be in the business of administrating the country – keeping it functioning, peaceful, and prosperous; nothing more, nothing less. Anything that falls outside of that duty is the state overreaching – abusing its power. This may shock some, but it turns out that wearing a cloth over one’s face does not destroy the state’s ability to function, does not inexorably lead to violence and chaos, and does not destroy the economy or environment. The state has no need to know the identity of a person walking down the road covered up with a bedsheet like a ghost in photo negative… not unless or until that person commits a crime or otherwise disrupts social order.

So laïcité is out. There is no sane reason to excise religious imagery, symbolism, or identity from the public sphere.

So what about ‘complete secularization of the sphere of power’, or ‘absolute neutrality’. This is the less-extreme form of extremism you’ll often hear associated (wrongly) with secularism. It is the idea that all signs of religion should be removed from the sphere of power – the state and its agents only, not the public sphere. That means that anything even remotely religious should be removed from anything associated with the state – including, as is often insisted, the people working for it.

There are two reasons why this kind of ‘absolute neutrality’ is unworkable – one practical, and one legal.

  • The practical reason is that it’s simply impossible to remove everything religious from the state and its agencies. As in: literally cannot be done. Think about it.

    Suppose a religion forms today that declares the maple leaf to be sacred, and starts using it as their symbol. What should Canada do? Stop using the maple leaf because it is now associated with religion? And if you think a good response is the rather childish “but we had it first”, suppose that instead of being a new religion, we discover a very old religion that used the maple leaf as its standard. Now what?

    Extend the thought experiment, and you’ll quickly realize that there’s no way you can ever be sure that you’ve removed all religious symbols. Even ignoring symbols adopted by new religions, there will always be the possibility of finding an old religion that used the symbol. And more realistically, the plain fact is that pretty much everything we have in the modern world, at every level, is at least somewhat tainted by religion. After all, for many millenia religion has been sticking its fingers into everything – diet, fashion, entertainment, science, money, personal relationships… everything. Even determining what is and isn’t truly neutral is impossible. Removing everything that is even remotely associated with religion is completely impossible – even conceptually ludicrous.

  • The legal reason for rejecting ‘absolutely neutrality’ is more subtle. Firstly, law generally abhors absolutes – there’s a saying that no absolute law can be a just law. But the more important reason is that the state’s secular duty must be balanced with the religious freedoms of the people who operate within its boundaries.

    You can’t simply tell people that they have to give up their Charter rights if they want to have a public service job – that’s simply friggin’ ridiculous. Yet that has been seriously suggested by some of these anti-clerical extremists, as if Charter rights were so casually valued that they could vanish at the simple signing of a contract. One swipe of the pen and you no longer have your fundamental rights? I think not.

    So public sector workers have the same right to freedom of conscience and religion as do private sector workers, thus it is impossible to completely remove all signs of religion from the public sector.

Justice Clément Gascon covered all of these points, at least in passing or by reference, in his reasoning. He was led to the same place we are at now, which he labelled ‘true neutrality’, but which is more correctly called… secularism.

Accepting that ‘absolute neutrality’ is impossible, Gascon maintains that ‘true neutrality’ is still possible. Furthermore, true neutrality in matters of religion is not – as Justice Gagnon at the Court of Appeal implied – simply favouring atheism over theistic beliefs. True neutrality is abstaining from taking any position on the veracity of religious beliefs. (Except of course for beliefs that interfere with safety, public order, health, and the rights and freedoms of others. We’ll get to that shortly.)

Here is how Gascon described it (SCC pp.132134):

Stressing that absolute state neutrality is impossible to attain, the Court defined its non-absolutist conception of neutrality as follows:

Therefore, following a realistic and non-absolutist approach, state neutrality is assured when the state neither favours nor hinders any particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected.

Thus, a neutrality that is non-absolute is nevertheless a true neutrality. But this true neutrality presupposes that the state abstains from taking a position on questions of religion.

Contrary to the respondents’ argument, abstaining does not amount to taking a stand in favour of atheism or agnosticism. The difference, which, although subtle, is important, can be illustrated easily. A practice according to which a municipality’s officials, rather than reciting a prayer, solemnly declared that the council’s deliberations were based on a denial of God would be just as unacceptable. The state’s duty of neutrality would preclude such a position, the effect of which would be to exclude all those who believe in the existence of a deity.

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. In this regard, I will say that the benevolent neutrality to which the Court of Appeal referred is not really compatible with the concept of true neutrality. As understood by that court, neutrality would in the instant case require tolerance for the state’s profession of a clearly identified religious belief on the basis of tolerance for its history and culture. I do not believe that is the sense of true state neutrality with respect to freedom of conscience and religion.

[Fleur-de-lis]

Fleur-de-lis

As Gascon notes, while we should allow the state some leeway in identifying with its history, traditions, and culture, that doesn’t extend to allowing it to discriminate on that basis (SCC p.116). For example, the fleur-de-lis that is basically synonymous with Québec is actually a religious symbol denoting Mary (mother of Jesus). Of course, in Canada, in the twenty-first century, that association is completely lost (unlike the association with the crucifix with Christianity). While a strictly absolute form of secularism would demand ending the use of the fleur-de-lis, a more reasonable form of secularism can tolerate it now that its religious symbolism is no longer relevant.

(Fun fact: Slaves that tried to escape or steal food were branded with a fleur-de-lis in Mauritius. I’m morbidly curious what those who wish to ban the hijab in Canada because it’s a symbol of oppression elsewhere in the world would have to say about that.)

The finer points of secularism

The remaining wrinkles have to do with how to deal with the rights of individuals working within the sphere of the state’s power. While the state itself must remain strictly secular (within the bounds of reason; not absolutely secular), the state is represented in practice by its agents. The agents are guaranteed freedom of conscience and religion by the same Charter that guarantees a secular state. How do we reconcile this conflict?

The simple answer is: we don’t.

There is no reason to take away individuals’ freedom of conscience and religion just because they get a government job. That just makes no sense at all.

But while individuals should still have the freedom to make whatever choices they want for or as themselves, when they are making choices for or as the state, their personal freedom of conscience or religion is no longer relevant. For example, when an individual is deciding what to wear, they are not acting as the state – the state isn’t choosing that person’s wardrobe. Thus, that person still has their guaranteed freedom of conscience and religion, and can choose what to wear using that freedom. But when the same individual is hosting an official state event, they are now acting as ‘the state’. And as the state, their private freedom of conscience and religion no longer applies; as the state, they have to be secular. Thus they can’t lead a prayer, no matter how religious they may be in their private lives.

(There are complications, of course; specifically when a person’s dress is not being chosen by them privately, but rather is ‘chosen by the state’ for the purpose of identifying them as an official of the state. For example court dress is prescribed by the general procedural rules. In this case, there is an argument that the state is dressing these people (or rather, choosing their wardrobe), thus their clothing choices must be secular and they are not free to wear religious items. (This is not the same as a mere uniform, like what bus drivers wear. In that case, their uniforms are not intended to identify them as ‘the state’, but merely as the bus driver. No one sanely presumes a bus driver in uniform has any official authority as the voice of the state.) That’s a situation worthy of debate: should judges be banned from wearing religious symbols? My personal belief is that this would be a case where a reasonable accommodation exemption would apply. And logically, what is more important? Is dressing judges identically (and not just almost identically) really so important that we’d be willing to deny Sikh men who wear the dastar or Muslim women who wear the hijab the right to be judges? Seems indefensible.)

There have been efforts by anti-clerical activists to spread disinformation about the Supreme Court ruling, and pretend that it supports banning government employees from wearing religious symbols, which is why I’m belabouring the point. Throughout his reasoning, Justice Gascon repeatedly smacks aside the idea that such a ban is in line with state neutrality.

First, Gascon explains that the problem with state non-neutrality is not merely that it prevents people from expressing their beliefs, but rather that it creates a ‘hierarchy’ where certain beliefs are privileged above others (SCC p.73):

… When the state adheres to a belief, it is not merely expressing an opinion on the subject. It is creating a hierarchy of beliefs and casting doubt on the value of those it does not share. It is also ranking the individuals who hold such beliefs:

If religion is an aspect of the individual’s identity, then when the state treats his or her religious practices or beliefs as less important or less true than the practices of others, or when it marginalizes her or his religious community in some way, it is not simply rejecting the individual’s views and values, it is denying her or his equal worth. [Emphasis added by Gascon J.]

By that reasoning, creating a public sector where people who wear religious symbols are marginalized is utterly antithetical to neutrality. It’s not about saying “Judaism/Sikhism/Islam is wrong”, it’s about creating a state that makes those religions with their customs subordinate to other forms of belief.

And if that wasn’t clear enough, Gascon goes on to be very explicit about this idea of making the public sector uniformly non-religious (SCC p.74):

By expressing no preference, the state ensures that it preserves a neutral public space that is free of discrimination and in which true freedom to believe or not to believe is enjoyed by everyone equally, given that everyone is valued equally. I note that a neutral public space does not mean the homogenization of private players in that space. Neutrality is required of institutions and the state, not individuals. On the contrary, a neutral public space free from coercion, pressure and judgment on the part of public authorities in matters of spirituality is intended to protect every person’s freedom and dignity. …

“Neutrality is required of institutions and the state, not individuals.” That’s still not clear enough for some people, apparently. These people particularly have an ideological axe to grind against multiculturalism (oh, but they insist it’s not because they’re racist of xenophobic, yup yup), and they go to great effort to argue that secularism is incompatible with multiculturalism.

Let’s see what Gascon says about that (SCC pp.7475):

… The neutrality of the public space therefore helps preserve and promote the multicultural nature of Canadian society enshrined in section 27 of the Canadian Charter. Section 27 requires that the state’s duty of neutrality be interpreted not only in a manner consistent with the protective objectives of the Canadian Charter, but also with a view to promoting and enhancing diversity.

I would add that, in addition to its role in promoting diversity and multiculturalism, the state’s duty of religious neutrality is based on a democratic imperative. The rights and freedoms set out in the Quebec Charter and the Canadian Charter reflect the pursuit of an ideal: a free and democratic society. …

Well… shit. Gettin’ harder and harder to be a bigot masqueradin’ as a secularist ’round these parts, eh?

Ah, but the way the anti-clericalists try to confound the issue is to pretend – by great force of will – that Gascon is somehow excluding public sector employees. In other words, the government can neither favour nor hinder the religious freedoms of private citizens… but as soon as you get a public sector job, you lose your Charter rights. The key trick they use to pull this off is a somewhat tortured interpretation of ‘private players’, that completely ignores the surrounding context (and the entire rest of the man’s reasoning, natch).

Of course, Gascon at no point anywhere in his reasoning says anything that can even be remotely interpreted as saying that public sector employees are somehow separate and special. In fact (SCC pp.7576):

… The rights and freedoms set out in the Quebec Charter and the Canadian Charter reflect the pursuit of an ideal: a free and democratic society. This pursuit requires the state to encourage everyone to participate freely in public life regardless of their beliefs. The state may not act in such a way as to create a preferential public space that favours certain religious groups and is hostile to others. It follows that the state may not, by expressing its own religious preference, promote the participation of believers to the exclusion of non-believers or vice versa.

When all is said and done, the state’s duty to protect every person’s freedom of conscience and religion means that it may not use its powers in such a way as to promote the participation of certain believers or non-believers in public life to the detriment of others.

Gascon explicitly states that the state may not encourage or inhibit the participation of certain believers in public life. I cannot imagine any sane interpretation of ‘participation in public life’ that excludes taking government jobs, running for public office, and so on.

All that is required is that people who are state officials acting in their official state capacity do not give the state a religion, or have the state conduct religious practices or favour or inhibit any particular religion or religious beliefs. Gascon spells this out explicitly (SCC p.84).

You know what would be really nice to help clear this up completely? If Gascon actually spelled out, in clear terms, that what state neutrality is really about is the state professing or favouring a religious belief… and precluding the state from doing this does not preclude individuals from having and exercising their freedom conscience… even when those individuals are state officials who are not acting as the state. If only we could be so lucky. (SCC p.119)

I repeat that what is at issue here is the state’s adherence, through its officials acting in the performance of their functions, to a religious belief. The state, I should point out, does not have a freedom to believe or to manifest a belief; compliance with its duty of neutrality does not entail a reconciliation of rights. On the other hand, it goes without saying that the same restrictions do not apply to the exercise by state officials of their own freedom of conscience and religion when they are not acting in an official capacity. Although they are not entitled to use public powers to profess their beliefs, this does not affect their right to exercise this freedom on a personal basis.

Well, shit. That about clears it up.

I want to close with one more bit of Supreme Court wisdom, but not from MLQ v Saguenay. In fact, the following quote is from R. v Big M Drug Mart Ltd. (pp.94–96) – one of the most important cases in Canadian jurisprudence. It was quoted by Judge Michèle Pauzé in the Tribunal ruling (TDP p.205).

A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon section 15 of the Charter. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.

Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

What may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of “the tyranny of the majority”.

That is what secularism is about. It is not about browbeating the religious into shame and submission because the sight of their headdress annoys you.

And that is what secularism in Canada is about. Justice Clément Gascon spelled it out clearly. Secularism in Canada is about enabling freedom and equality. It is about promoting diversity and multiculturalism. There is no need for a ‘Charter of Secularism’, because secularism arises naturally and unavoidably from the Charter of Rights and Freedoms, and the fundamental freedoms granted to all Canadians. I will shamelessly appropriate Dickson’s words: Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

In summary, secularism means that every individual is free to practice and express their religion, but the state is not. The state must not profess or favour any religion or religious belief, or atheism. This restriction is necessarily not absolute, but should be applied as far as reasonably possible, and certainly the state can never be justified in continuing discriminatory practices merely on the basis of tradition or culture. Individuals who are acting in the capacity of the state – as state officials – must maintain this neutrality in their official activities, but are of course free to have and express religious beliefs whenever they are not acting as the state.

Secularism does not mean the complete abolition of all signs of religion from the public sphere, or even just the government’s sphere of power. That position is irrational, and indefensible. Secularism means only that the state – and those acting as the state – must not profess or favour any religion or religious belief, including atheism.

6 thoughts on “Indi’s MLQ v Saguenay review: Canadian secularism

  1. I think I largely agree with Indi’s main theme here. There was one part that made me pretty uncomfortable. And that’s where he talks about religious exemptions. Rather than giving religious people a free pass, I think we need to look at the rule itself. Is it fair, reasonable and serving a secular purpose? If so, it should be upheld. If not, it should be removed.

    (There are complications, of course; specifically when a person’s dress is not being chosen by them privately, but rather is ‘chosen by the state’ for the purpose of identifying them as an official of the state. For example court dress is prescribed by the general procedural rules. In this case, there is an argument that the state is dressing these people (or rather, choosing their wardrobe), thus their clothing choices must be secular and they are not free to wear religious items… That’s a situation worthy of debate: should judges be banned from wearing religious symbols? My personal belief is that this would be a case where a reasonable accommodation exemption would apply. And logically, what is more important? Is dressing judges identically (and not just almost identically) really so important that we’d be willing to deny Sikh men who wear the dastar or Muslim women who wear the hijab the right to be judges? Seems indefensible.)

    I don’t think we should exempt religious people. I think accomodation should only mean we review and possibly change the rule. We shouldn’t have separate but equal rules.

    So the rules should be changed so that there are a range of option available to the members. Not so that some members have different rules applied to them than others.

    If that’s what you meant, Indi, then fine. But recently we have seen religious accommodation in terms of exemptions, which I oppose. A recent example is someone who had a beard for religious reasons. He wanted to compete in Ontario flyweight amateur boxing. Some thought he should be given an exemption from the rules. Well wait: is there a reason to have that rule, or not? If there is, no exemption. If there isn’t, the accommodation is removing or rewriting the rule.

    • But to be clearly, I think I agree with this. But it was a lot and I read it quickly. I plan to reread this article next week to glean some of the distinctions.

    • I probably crammed too much into this single post. These are *huge* and complex topics – each part of this post could easily have been a post on its own, or several posts.

      I’ll probably have to write a detailed post in the future just on the topic on religious accommodations and how they work, legally. After all, it’s a complex issue, and there are plenty of people spreading disinformation and confusion about it.

      But religious exemptions, as you’re describing them, don’t really exist. It is possible that some form of accommodation can *seem* like an exemption, if you squint and ignore the bigger picture. But the reality is there is no such thing as religious exemptions (in this context).

      Let’s consider the case of a Sikh who wants to be a police officer, but is unable to because the uniform requires a peaked cap, and his religion requires him to wear a turban.

      Resolving this is not as simple as saying, “oh, he gets an exemption from the uniform”. It’s actually a complicated process. The uniform rule exists for a damn good reason – it is vitally important that we can identify police officers, and that we can easily spot impostors. Nevertheless, it would be absurd to deny a perfectly good candidate a police officer job for something as stupid as the headgear. You can try to characterize accommodating his turban as an “exemption”, but I would say that’s a mischaracterization. He is not off the hook from following the rules. In fact, he will likely have *MORE* rules to follow. He may be asked to carry around a card that declares him exempt. He may have to buy his dastar wrap at a special place, and at a higher cost. He may have to have it inspected or certified for safety reasons. This is *NOT* a case of “okay, well, the rule doesn’t apply to you”. It is a case of “okay, the rule *should* apply to you, but because it can’t for practical reasons, here is how we’re going to make this work…”.

      Of course, anyone can *request* the same accommodation… but they shouldn’t get it merely because they request it. The accommodation is a burden both on the officer and on the force. The rule about the uniform exists for a reason (this *must* have been established in order for there to be an accommodation). You need to demonstrate you *NEED* the exemption. If you want to wear a turban just because you think they’re cool… tough cookies. You need to demonstrate that you have some reason under one of the protected grounds – such as religion – for the turban, and if you choose to request it for religious reasons, you will need to demonstrate that your religion is sincere.

      The best advice I can offer to avoid confusion is:

      Don’t confuse the rules about religious *accommodations* with the rules regarding religious *tolerance*. Tolerance always applies – you can’t make discriminatory laws without a practical, secular reason (health, safety, whatever). Accommodation is only triggered in a very narrow set of circumstances: just part of which is that the law that is discriminatory for a damn good reason, so you can’t just change it or waive it.

      Don’t think of religious accommodations as “exemptions”. Firstly, you have a task and a half proving that you *need* the accommodation – you don’t just get an accommodation because some other dude did. More importantly, unlike an exemption, an accommodation doesn’t necessarily mean you have *less* rules to follow than the others… you may in fact have many more rules to follow.

      Nobody gets an accommodation merely by asking for it. Accommodation only happens when there is a rule that exists for a damn good reason, and someone has a damn good reason (under one of the protected grounds) for asking to be specially accommodated. They can reasonably be asked to prove their sincerity.

      “Fair” is not “everybody follows the same rules”. “Fair” is applying the rules reasonably, taking exceptional circumstances into account (because no rule can be both absolute and fair). If there was a rule “everybody has to stand when the PM enters a room”, that rule applies to everybody, but is not fair to people in wheelchairs, or people without legs. “Fair” would be requiring that wheelchair-bound people merely face the PM and not have anything in their hands (for example). “Fair” would not be then allowing able-bodied people to sit in wheelchairs when the PM comes in merely because the wheelchair bound have to.

      And finally and most importantly: Don’t get hung up on religion. Accommodation is accommodation, and it may be done for any of the protected grounds… which includes religion, yes, but also includes sex, gender, age, physical ability, etc.. It is a good idea to try reframing your argument using one of the other protected grounds to see if it actually holds up. For example, does it really make sense that if you give a wheelchair-bound person an “exemption” from some reasonably necessary physical requirement, that it’s only fair to give anyone else who asks for it the same “exemption” – even abled people?

      • Thanks for taking the time to reply. I’d like to begin by being clear you and I are largely in agreement. It’s some minor details I’d like to work out. And it might be my ignorance causing the problem here.

        Sikh in uniform: Having a uniform is important. But having a uniform that has head gear based on Christian cultures rather than Sikh cultures is arbitrary. I mean, it’s not a ‘damn good reason.’ But when I see a the RCMP with one Sikh member I see a clear uniform with subtle variation. An accommodation should be made for Sikhs. But the uniform should be changed to allow at least two different options. Maybe a third for women wear the Hijab. Unless there is a reason to not allow them. Note: in the above photo there are 3 types of headgear.

        Though you make some good points I will think over about that. On the other hand, I think it’s probably a much easier process for a Sikh (compared to a non-Sikh) to wear his chosen headgear. (I think only men wear it.) It’s probably as easy as a checkbox now that the way has been paved.

        Beards in wrestling: But what about my example above. It’s a wrestling association. Is their rule banning beards reasonable or not? If it’s reasonable for safety reasons, I’m not sure an accommodation should be made. If it’s unreasonable

        If it’s safe for him to wear a beard, everyone should. If not, he shouldn’t.

        Unless there is some other consideration, doesn’t that make sense? I understand this is different than the above.

        • Alright, let me take on the uniform issue first.

          There are some professions where a uniform is vitally important, and where minor variations in the uniform are generally not tolerable. This is not the case for bus drivers (for example) – sure you want them in uniforms so they’re identifiable, but it’s not the end of the world if the bus driver wears a (tasteful) baseball cap or visor along with their uniform suit; you can still tell it’s the bus driver, and if someone is dressed almost-but-not-exactly like a bus driver and they get mistaken for one, well that blows but it’s hardly a life-or-death mistake. Police officers, on the other hand, and military officers… yeah, you want them not only identifiable, you want their uniforms *precisely* specced so that it’s easy to spot frauds. (That actually happened at the last Remembrance Day event – a dude dressed up as a soldier, but got spotted as a fraud because he put the medals in the wrong order.) Correctly identifying an police or military officer, and sussing out frauds, could very easily be a matter of life and death.

          So I get the logic of having a precisely specified uniform, with even minor variations stridently disallowed.

          However, as you noted, our uniforms are the product of our culture – European-Christian, predominantly. If this were India, perhaps turbans would be standard headgear, which eliminates the problem entirely for Sikh officers.

          So we have a problem. We have a uniform code that prevents certain people – otherwise perfectly qualified – from being police officers. Realistically speaking, we can’t fix it by changing the code to something that covers *everyone* – if we make turbans the standard headgear, that might rule out other religions’ headgear (like a colander or whatever).

          Because we can’t simply shrug off the problem – either by ditching the uniform or by telling Sikhs to shove off – we have two options: Either we create a set of variations in the uniform code, or we keep the original uniform code and create an accommodation for anyone who can’t abide by it.

          It sounds like you favour the first option. I don’t.

          Here’s my problem with it. For each variation that is required to accommodate someone’s religious belief, that will require rewriting the uniform dress code. That’s no small order. More importantly, every time you add a new variation to a uniform code, you make it less of a *uniform* code. The purpose of the clearly specced uniform is to make it easier to spot when something or someone is out of place… but if you add a bunch of variations, you make it much harder to do that. You basically defeat the purpose of the uniform. Instead of a line of people all dressed precisely alike, you’ve got a line where some are wearing turbans, some are wearing hijabs, some are wearing yarmulkes, some have full beards, some have face tattoos, etc.. Try and spot the outsider fraud in that lineup.

          (For the record, the variations you noted in that picture were not actually *real* uniform variations. This looks like an artificial line-up for the purpose of illustrating the different uniforms, not an actual line-up that would ever occur in practice. The Stetsons are for the parade uniform, not the regular uniform. The regular uniform hats are the peaked caps on the right, and those are the *only* hats allowed in the regular uniform. RCMP officers can’t simply choose which hat to wear.)

          So I don’t approve of adding official variations to the uniform dress code. The exception would be if the population requiring the variation were significant. Like if ~30% of cops were observant Sikhs… then yes, sure, create an official uniform variation for them. But when you’re talking like 1 or 2%… no. That’s a little silly.

          I prefer that there be a single uniform dress code that everyone has to follow… except in special circumstances. And those special circumstances are handled on a case-by-case basis, with the onus on the person requesting the exemption. The uniform and its uniformity exist for a very good reason, after all. I don’t think it should be handwaved away the first time someone has a problem with it.

          I would require that anyone who wanted an accommodation show that they *really* want it: They should have to show evidence that they really are devout (and they’re not just asking for an accommodation to be a shit disturber), and that their need for the accommodation is real. They should have a very clearly specified set of restrictions on their new headgear. They should have to carry around a note affirming they have an official accommodation. They should be obligated to report to each new commanding officer and inform them of the accommodation. The responsibility for clearing up confusion about their violation of the uniform dress code every time they work with a new group of cops should be on them.

          This accommodation would create some headaches, for sure. There will undoubtedly be incidents where the cop with the alternate uniform was challenged, and the confusion would have to be cleared up (by showing their note and confirming it with whoever authorized the variation, for example). But if we’re talking about a variation only needed by a tiny number of cops, it’s an acceptable headache when balanced against getting a few more good cops.

          So, in summary, when it comes to uniforms:

          * If uniformity is not life-or-death critical, just don’t specify that stuff that will conflict with special needs clothing. For example, don’t specify headgear. Let people wear turbans, hijabs or whatever the hell else they like. (Also, for example, don’t specify the shoes beyond maybe a colour range, so if people need special footwear it’s not a problem.)

          * If uniformity *is* critical, but the requested variation is fairly common, either make that variation the new single standard (if it is *really* common) or (less ideally) introduce it as an official variation.

          * If uniformity is critical and the requested variation is rare, just allow it on a case-by-case basis, with the onus on the person requesting it to handle any confusion that arises.

          I’m sure there are people who will look at the last case and cry “unfair”, arguing that if one dude gets to wear a turban, everyone else should be able to as well. But that’s a profound misunderstanding of “fair”. By that same “logic”, an officer who was shot in the line of duty and thus allowed to be in a wheelchair for a parade would mean that everyone else should be allowed to be in a wheelchair for the parade as well.

          It might help to think of religiously-necessary accessories as similar to medically-necessary accessories. I know that will make many atheists’ heads explode, but that *is* the reality of how religious people see their gear. It’s not a “don’t want to take it off” thing so much as it is a “*CAN’T* take it off” thing… even if refusing to take it off means they miss out on things. Atheists may not like it, but that is the reality of religious belief. And we’re *supposed* to be basing our worldview and policies on reality… not on what we *want* reality to be.

          Alright, on to the boxer case.

          Now I’m not an expert on boxing, but as I understand, the rule against facial hair *does* have a legitimate basis. Facial hair would obscure cuts to the face, which a referee has to be able to see to know when to call the fight. Facial hair would also increase the probability of infection from a cut to the face. There might also be a concern about a *lot* of facial hair cushioning the face, thus giving the bearded fighter an unfair advantage – but I’m just speculating on that for the sake of argument.

          So what we have here is a) a discriminatory rule that b) has a legitimate basis, yet c) there is someone who cannot comply with it due to one of the protected grounds. That’s the recipe for accommodation.

          As a private organization, the boxing association would be well within their rights to simply refuse to accommodate. Even if they were a public organization, this is a health and safety issue, and there doesn’t seem to be any practical way to accommodate that avoids the health and safety problems. This is arguably a case where an accommodation could be denied. (And if you note in the link you offered, the boxing association wasn’t compelled to accommodate, but came to a voluntary agreement.) But I would assume a boxing association would be keen to accommodate if at all practical… why say no to a bunch of paying Sikh fans?

          If the organization opts to allow beards, they could require a number of concessions from the boxer. They could require special checks between rounds or at the ref’s discretion for facial wounds – even something as simple as rubbing his beard with a white cloth, and if blood shows up, fight’s over… even though the blood *may* have come from somewhere else, such as the opponent, and just got matted in the beard. They could even demand a points handicap in every fight if the beard cushions the face.

          So basically:

          For the RCMP uniform: I don’t think it’s necessary, or wise, to include RCMP uniform variations for every possible accommodation that might come along. That would defeat the purpose of the uniform, which has a logical and necessary purpose. Instead, I would suggest allowing variations on a case-by-case basis only, and only when need has been clearly demonstrated. And in those cases, the onus should be on the officer requiring the variation to inform their commanding officer and their coworkers, and to handle any other confusion that might arise.

          For the boxer with facial hair: If there really is a health concern, then the boxing association is under no obligation to allow beards under any circumstances – this would be true whether they’re private or public. But if they *opt* to allow boxers with facial hair, it makes perfect sense to only allow it for special cases – such as when the beard is religious – and not for just any boxer that requests it. And of course, boxers with beards could easily be subject to special restrictions and requirements.

          In summary, I don’t agree with the logic that if one person gets an accommodation, everyone should get the same one. That’s not reasonable, and that’s not fair. If the rule exists for a damn good reason, it should only be exempted for a damn good reason. That is, *only* when necessary, and with whatever additional restrictions or requirements are necessary to balance the damn good reason.

          The larger point I want to make is that accommodations – whether they’re religious accommodations or not – are never simply “meh, this rule doesn’t apply to you, but it still applies to everyone else”. If there is a discriminatory rule, and it can be just handwaved away, then you don’t need an accommodation, the rule needs to change. Accommodation only happens when there is a discriminatory rule that exists for a good reason… which means it *can’t* be simply shrugged off when it’s inconvenient. In that case, you need a special accommodation… which is by definition a burden on both the accommodator and the accommodatee. An accommodation is a reasonable, civil understanding between two parties; a compromise where both have to give a little to find a workable solution. The same basic reasoning applies for *all* accommodations, which may be under *any* of the protected grounds – which, yes, includes religion, but also includes age, sex, physical ability, and more.

  2. What a great post. I’ll be going through it for weeks. I think what I’ll find is that the job of debunking religion will be left to us, privately, with no support of any kind from any democratically elected representatives or publically funded institutions.

    When you look back on our history of massive political support for religions, it seems unfair that individuals, on their own dime, are left clean up what was largely created by public financing and institutions.

    The people in France were probably more than a little motivated by the unfairness of it all. Religion was paid to spread their shit all over and the citizens had to buy their own doggy bags to pick it up.

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