Friday, April 17, 2015

Saguenay II: Or, why details are important

The recent ruling regarding prayer before city council meetings (news of which you can find here) is important,  I tried to argue in my last blog, but not because it actually does anything to further advance the idea of freedom of conscience or belief. These ideas are already well advanced in Canadian culture, largely uncontroversial, and subject to only periodic infringement. I'm not trying to minimize this ruling because I do think it is important but consumerism (as I suggested a number of blogs ago) along with a more clear sighted understanding of the problems of prejudice killed off the close relationship between state-church-and civil society in Canada a while ago. This ruling is, in this sense, *not* a victory for freedom of conscience because that victory has already been won, celebrated, and implemented over and over again. Let us be clear: there are some annoying Christians "out there" and I started to write a series of blogs, in part, to try to understand them. Some of the folks at TWU and the so-called Christian doctors and dentists who want the right to deny care are examples. But, they are few and far between. They have some influence on the federal Conservative Party but not as much as people would think and no influence on the NDP, Liberals, or Greens. To celebrate this ruling, then, as something akin to a first recognition of freedom of conscience is, then, to be historically ignorant. Sorry, I sounded harsh there. It comes not from being a Christian but from being an historian.

Instead, I argued, this ruling is important for two reasons (1) it more expressly recognizes the absence of religion as a right that should be protected under the constitution. I would argue that this right was already protected but it is good to have this clarified. And, more significantly (2) it closed off one of the legal/discursive defences used to try to maintain the privileged position of Christianity in the public sphere: heritage. What was being protected, so this argument ran, in maintaining prayer was not Christianity but history. The court (I ultimately think rightly) said "no". And, I explained what I thought were the problematic elements of this argument in my last blog.

There are other reasons, however, to see this "victory" as more limited than it might at first appear, at least for the proponents of secularism. These reasons are partly legal and technical but they are important to overall balance that the court is trying to find in Canada with regard to religion. This balance is important, in turn, because the court is made up of smart people who recognize that Canada is a complex society. The white and black of news stories or Phil 101 (do you support freedom of religion?) debate does not apply as easily to actually existing societies with all their nuances and complexities. Indeed, asserting simple straight forward points of principle, rights, etc., can quickly become ideological (as opposed to legal, constitutional, or useful). What we need to understand when we look at this decision (referenced as: Mouvement laïque québécois v. Saguenay (City), 2015) is that the SCC is trying very hard to both uphold a right it views as fundamental (freedom of conscience) and recognize the complexity of the society and culture in which we live. What I would like to do in this blog entry is to look at some of these complexities precisely because they are important.

First, some of the commentators (particularly those in the CBC new story I cited) were quick to attribute to this ruling a national significance because, they said, decisions of the SCC bind lower courts and interpret law for the nation. This is true: SCC rulings do establish precedent and Canadian judges are far more loathe to violate precedent than American courts (who will issue oddly contradictory rulings depending on legal philosophy ... something which serves to politicize American jurisprudence far more than its Canadian counterpart). This is not really the time or place to discuss differences in Canadian and American jurisprudence (although I think that is a worthwhile endeavour). Instead, what we should note is that Canadian judges are far more conservative in their application of the law than American judges ... most of the time ... and that Canadian judicial review operates by a different set of principles (which, naturally, make more sense to Canadians).

All this is true but it is the very character and nature of judgement that is important and which limits this ruling. This ruling was not a Charter case but rather based on the Quebec Charter of Human Rights and Freedoms. The federal Canadian Charter of Rights and Freedoms is broadly similar in the rights it protects, but the case did not come forward on Canadian Charter but the Quebec Charter. The degree to which we can easily assume, then, that this ruling applies to all of Canada is not clear. I personally find it difficult to see a ruling coming from a different province going a different way but, at this point, it is, in effect, a case of Schrödinger's cat. We simply don't know how the SCC would rule on, say, a Canadian (federal) Charter case or a case emerging out of another provincial human rights act. At the least, we should not assume the broader applicability of this ruling.

Second, the ruling does not ban prayer per se. What it bans is religious practices that are exclusivist and made into, at it were, the price of admission. Said differently, the local state (in the form of a municipal government) cannot force participation in a religious ritual on citizens who wish to participate in local government. Why? Because the right of citizens to participate in government (heck, let's make up a fancy name for this ... let's call it "democracy") is a right. It is not contingent on a religious means test. A state orchestrated religious ceremony (however brief) could alienate citizens, marginalize others, or create a circumstance in which citizens opt out of participating rather than violate the religious ritual. This is, this ruling says, not acceptable.

This is important because this is something different from "banning" prayer, which is how a number of new reports phrased the implication of the decision. Prayer is not banned. In fact, I have a right to prayer. The same document that protects might right to be free from coerced religion protects my right to practice my religion. I just cannot force someone else to participate. There has been some discussion already of the implications of this judgement. Could town councils, for instance, begin with a few moments of reflection, say, conducted in silence, that allow people to reflect on whatever they want to reflect on. I'd argue yes. That is not outlawed or impeded by this ruling. Again, what this ruling prevents is the town council (or, city council, or mayor, etc.) saying "and now everyone we will pray in this way."

Third, this ruling does not affect -- so far as I can tell -- acts of devotion conducted as part of membership in voluntary organizations or by private institutions. Thus, for instance, the Legion, the Lion's Club, the University, can preserve prayer as part of its ritual. The University at which I work -- Mount Allison -- does have a brief prayer as part of its commencement and convocation ceremonies. There is, as far as I can tell, nothing in this ruling that makes that prayer off limits.

The importance of this matter requires that I spell out the logic here in a bit more detail. The ruling does not mean that Mount A can and should use prayer or that Mount A's use of prayer is consistent with the Charter. It might be; it might not be. We would need a ruling on that to determine that case. Mount Allison is a private institution but it takes money from the state and falls, I would therefore argue, into an odd para-public grey area between the state and civil society. The fact that it does take money from the state (on an on-going operating cost basis > again this wording is important, I told you there was a fair amount of technical stuff in this blog entry), it is bound by the Charter. This is why universities like Crandall do not take operating grants from the state: so they can  avoid the Charter. Mount A's prayer might, then, violate the federal Charter of Rights and Freedoms or some NB human rights statue. I don't know. But, and this is my point, this ruling does not require Mount Allison to change its ceremonies and rituals. In and of itself, Mount Allison is not affected.  Mount Allison could, of course, change its rituals itself but a further court case would be needed to force it to change.

The big point I want to make here is that we should be careful about what we see as the scope of this ruling. It is, I think, right that we hold the state (including the municipal state) to a higher level  than we hold private or semi-private or para-public institutions. Why? Because the state is for everyone. Even para-public institutions are not. There is, to be sure, a public benefit to things like post-secondary education; hence the reason that there is public support for it. But, Mount Allison is not a branch of the state even if it is connected to it in ways that commit it to upholding certain principles and which bind it to respecting certain rights. Thus, its prayers are not affected by this ruling (regardless of what we happen to think of prayer).

Fourth, as news stories have noted, it is not clear that this ruling applies to legislatures at the provincial and federal level. Parliament is, in other words, another kettle of fish. There have been moves to do away, for instance, with prayer in the federal Parliament and I suspect that those will continue. But, it appears right now, at least, that the federal Parliament and likely provincial legislatures as well are not affected by this ruling. It addresses, in other words, municipal governments.  Exactly why this should be the case is not entirely clear to me but I think it relates to the fact that municipalities have no independent constitutional status. They are creatures of law (in this case provincial law) and this makes them different from federal and provincial legislatures who have autonomous constitutional standing. This does not mean that they are not bound by the constitution. Indeed, that is the point of having a constitutions (or, one of them) but it does parliaments, in the British tradition do have a measure of privilege and sovereignty. Courts are reticent to intrude on this sovereignty without what they feel is a clear and pressing reason and, in the Canadian case, even then.

We periodically here that the courts have thrown out law X or Y. I've said before that that is rarely the case. I don't have space to get into a discussion of judicial review in Canada but I urge you to look it up before you make a comment on it. It is usually misreported. Instead, of simply throwing laws out, the courts usually "fire warning shots" and try to limit "collateral damage." For instance, the judicial "activism" on same-sex marriage was pretty slow moving activism. The courts warned the state at least twice that its laws violated the constitution and each time gave time for the feds to fix up the problem (with the feds by and large ignoring it but that is a story for another day). In this case, a ruling that affected the federal government would have to (a) be based on something other than a provincial statute (however important that statute), (b) deal with a matter of law under federal jurisdiction, (c) be related to the federal Charter. In addition, the court would likely not issue a ruling that says "no, you cannot do X." Instead, it would likely say "practice X contravenes provision Y of the Charter. The government has Z amount of time to remedy this situation by making a chance in the law." IOW, Canadian courts have been remarkably reticent to tell legislatures what to do.  This case, from what I can tell, was not sufficiently grave to to warrant intrusion of legislative practice. Hence, the practices of legislatures can be changed by legislatures (they could always do that), and they might be, but they are not compelled to do so (or, at least so it seems) by this ruling.

Finally, this ruling deals only with prayer. It does not address what in Quebec -- but not really elsewhere -- has been the thorny issue of symbols. This was not a matter of consideration in the lower court decisions -- even though it was brought  forward by the complainant -- and so the higher court did not deal with it. This is exactly how judicial review works. The higher courts deal with issues that come up through the lower courts; they don't create new issues (however legitimate those issues might be). Hence, the issue of Christian public symbols -- say, crucifixes in public places -- still awaits judicial adjudication ... if that ever happens. I suspect that the courts were, in fact, happy to not have to rule on the question of symbols because they are central to important public events (Remembrance Day) and long and broadly recognized public holidays (Christmas and Easter). The history of those holidays is, again, important but not something that can be addressed here. Obviously, they are the product of a time when there was a close connection between state, church and civil society. And, just as obviously, this relationship and these holidays are changing. But, the truth is that without the at least some of the symbolism of Christianity, we don't have a very good reason for Christmas and Easter as public holidays. In fact, to change the symbolism would be to ... well ... ditch the holiday. After all, you're not going to give kids four days off school for, say, "Chocolate Egg Day." Instead, something more approximating Valentines Day (a few minutes in class to give our cards) would be more appropriate. I don't want to sound like an idiot but telling someone not to put a cross out at Easter is ... well ... denying what Easter is all about. It would be the equivalent of not showing a maple leaf on Canada Day. It would make no sense.

OK, so ... where does this leave us? It leaves us with an important but limited judicial decision. The courts -- I think ultimately rightly -- defended freedom of belief and the idea that the state cannot unduly discriminate against any particular religious view, including those who do not believe. Exactly what this means is something that Canada will need to work out. The courts -- rightly -- do not give us a ready made solution but instead say "the way you have done things -- forcing everyone down a single path -- is not right. Find another way." Equally importantly, we should note what this ruling does not do. It is not clear that it is a broad and expansive precedent. The ruling is based on a Quebec provincial constitutional statute and not the federal Charter. It deals with municipal governments (and, potentially, only municipal governments in Quebec, although its implications are broader). Federal and provincial legislatures and para-public institutions that can make some claim to being private institutions are not affected. This ruling deals with prayer and not other symbols.

This is, in other words, a far more ambiguous ruling that it first appears. The courts are, with this ruling, addressing issues that are emerging from a new historic context: the context of post-Christianity. In so doing they are being cautious and taking tentative steps ... suggesting which practices are not acceptable but providing limited guidelines on what might actually be done because, they reason, that is not there job. They are their to interpret law; not make it. Put together, then, this ruling is more complicated than it first seems.  And, that might be appropriate.
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