If the Mouvement laïque québécois v. Saguenay (City), 2015 ruling is (as I have tried to argue) important for reasons that have been lost in public commentary and more ambiguous than it might seem, there remains one issue to consider: what do we think of it? It is likely not a surprising ruling, nor one that comes "out of left field." In my view, and however ambiguous it ultimately is, I'd suggest that this ruling is consistent with the general trajectory of individual liberal civil and human rights specified under the Charter. It makes a certain amount of logical sense that (1) non-believers should be accorded the same rights and protections -- the same benefits of the law -- as believers, and (2) that a close relationship between any one particular religious perspective and the state compromises equality and freedom of belief. On this level, I don't think there is any reason to have much concern with this ruling. It does not, on this level, as I've said before, break new ground. More significantly, the important implication of this decision -- that Christians cannot claim that Christianity is heritage and, ergo, not subject to the Charter in the same way as other religions -- is consistent with diversity, multiculturalism, individualism, and the neutrality of the state with regard to different beliefs. Those people who see diversity, individualism, the rule of law, etc., as important elements of a good society, then, don't have much reasons to be concerned about this ruling and some reason to celebrate it (whatever its specific limits might be).
What I have also tried to argue is that this decision is not just a decision, with which one can agree or disagree. It is part of a process through which the relationship between the state, civil society, and the church is being redefined. In this instance, the process of redefinition fell to the courts because key protagonists (the Secularism Movement of Quebec and the Saguenay city government) could not agree on a worthwhile compromise. In effect, they created a yes/no situation in which each side (for their own reasons) asserted that they were right, broached no opposition, and turned to a neutral third party (the courts, as one is want to do is society based on the rule of law) to adjudicate.
Whether or not this is the best way to work out a new relationship is, in my view, a matter of debate, but what we should note is that it is not the only way in which this relationship is being recast. The courts are, of necessity, involved in situations where there are intractable opposing views and, for one reason or another, we have had a few of those lately. The opposition of some Christians, for instance, to same-sex marriage/equality (or, at least the opposition of some people on the grounds of their understanding of Christianity) is another example, whereby activists needed to turn to the courts because, in this case, the route to other paths for change had been blocked (see A Quick Note on the Courts and Change at the end of this blog). But, and this is the important point, this relationship is being recast in many different ways over time. If the courts are being asked to adjudicate on some matters, others are being decided by groups of people working together to build relationships that they find fair, just and mutually respectful. Many people, for example, on a day-to-day level, see a role for the church I attend in the community in which I live. They may or may not like Christianity or organized religion or Baptists. Who knows? But, they hold birthday parties in the gym, play in the men's ball hockey league, go to badminton night, attend concerts, send their kids to youth groups, etc. They may have worries about my church, but they are willing to help us fund raise for cooperatives that look after disadvantaged members of society or take our donations to the food bank.
I say this because there is a temptation to focus on the Supreme Court ruling, the controversy over Christian doctors wanting to refuse service, and the development of explicitly Christian centres of post-secondary learning. These are all institutions where new relationships are being worked out as well. We should pay attention to them because they say something profound about the historical process through which we are moving. And, because, by paying attention to them we can contribute to that historical process. But, the process is broad and we might be involved in it whether we know it or not. It occurs, I think, all around us in a variety of different ways.
Whether we like this particular ruling or not might, then, be beside the point. What we need to understand is that liking it or disliking it is easy. It is, for instance, easy to demonize Christians or cast aspersions on them. For a liberal (based on individualism) society, that misses the point. The question is not "do I like or dislike Christianity" but "how can we assure equal rights protections for all?" I've said before, that I don't think there is a conflict of rights at work in these types of conflict. The issue is freedom of belief (regardless of one's type of belief) and the degree to which the public sphere is open to different perspectives.
Most of the things in the public sphere in Canada will not change as a result of this ruling. Some towns or cities might modify the rituals that begin their council meetings but few people notice these or remark on them anyway. Far more attention is devoted to singing the national anthem than to prayer at public events and I find it difficult to belief that public events that incorporate prayer (say, Remembrance Day and, for Christians, Christmas and Easter) will change significantly. My point here is that one should not over-react. Christianity has not been driven from public view. It has been "downgraded" to a position of equality at some town council meetings.
This said, I find the idea that religion should be confined the private sphere both odd and anathema to the concept of diversity I support. For what it is worth, here is my perspective. Before you line up too quickly behind this idea (that religion should be kept purely in the private domain) -- because it does sound appealing and have the beauty of simplicity -- remember that this is what the so-called "secular charter" in Quebec was about. There were odd things going on with that idea, to be sure, and it hardly represented the nuanced and sophisticated views of the vast majority of Quebecers, but understand that the idea of a secular (no religion) public sphere can and will be used to reinforce the marginalization of those who are not Christians. In fact, I suspect (for reasons I've explained elsewhere) that Christians would do rather well by private sphere secularism. The calendar already follows (more or less) Christian holidays; private institutions respect Christian rights and maintain prayer as part of their ritual, minor sports associations accommodate Christian worship times, there is a network of churches and well-to-do benefactors, a host of magazines, TV networks, radio shows, music, novels, and the like. Heck, if Christians want to vacation, all they have to do is go across the border to the US to find Christian theme parks. If the public sphere is stripped of religion, it will likely be Muslims and Sikhs who suffer for it. The effort, in this regard, to control Christianity's relationship with the state might end up with ironic results. It could become a tool mobilized against ethnic and religious minorities and I doubt that that is what the proponents of secularism want.
This might be a bit too simplistic but the idea that equality means no religion in the public sphere is actually not equality. It favours a particular perspective. This is not a religious perspective but the absence of religious perspective. In effect, it makes the public sphere atheist. Whether we like this or not is beside the point. The point is -- as the SCC said -- to not favour a particular defined perspective. Would not a completely secular public sphere be, in fact, a form of favouritism, maintained, as it were, by law? (I am honestly not sure. The question is not rhetorical. Feel free to comment.)
What is the alternative? The alternative, I think, is a public space that becomes more vibrant by embracing diversity. It eschews singular and too simplistic views (religion over there; other things over here) in favour of diversity and dialogue between different perspectives. There are practical steps that could be taken to promote this kind of public sphere. Consider, for instance, the Saguenay issue of prayer before city council meetings. One city about which I read addressed this issue by inviting people to reflect in silence (as opposed to telling them what to pray). Hence, a ritual was modified and diverse views were accommodated. If asked, I'd favour that approach because it accords the choice to the individual (in a way that forced prayer or forced no prayer) does not.
As Canadians rebuild the relationship between state, civil society, and religion, we will need to think about issues on a fundamental level. Simple answers will lead us in the wrong direction, almost certainly. We will need to respect individual rights, of course, but also understand that doing so might lead us to respect the rights of people with which we disagree. It might lead us to embrace diversity, rather than trying to avoid it. It might lead us to see diversity as a sign of vibrancy and not a problem for heritage, tradition, or rights. Who knows? What I do know is that this process is likely not at an end and so, if you want, you still have time to contribute to it. You should, it will affect your life.
PS: A Quick Note on the Courts and Change
We periodically heard people say, particularly during the debates about same-sex marriage and equality for gay and lesbian Canadians that gay and lesbian Canadians were doing something wrong by pursuing their agenda, as it were, through the courts. They could not get what they wanted through Parliament, so this story ran, and so used the courts. The implication, here, is that using the courts is (a) illegitimate and (b) a sneaky way to subvert democracy.
I've argued before that this is not the case and I see no reason to change my mind. In a society -- like Canada -- whose central philosophy is supposedly the rule of law, pursuing matters through the courts is normal, natural, and legitimate. It is what you are supposed to do so that the rule of force or the rule of individuals does not prevail. It is a right of citizenship. Moreover, the courts are not a "soft touch"-- as implied by this discourse -- where one can get things denied by the more reasoned, democratic, Parliament. In fact, it is clear that Parliament -- and not the courts -- was in this case thwarting the will of democracy. The majority of Canadians believed that equality rights should be extended to all Canadians regardless of sexual orientation. A significant well-organized and vocal minority did not and this minority succeeded in convincing federal governments that it would become their political suicide to take them on. So, they didn't. Those who opposed equality for gay and lesbian Canadians continued, in fact, to say "this should be addressed by Parliament", I suspect precisely because they reasoned that a politically scared Parliament would be loathe to address this issue regardless of what the majority of Canadians felt.
But, even if this were not the case, there is nothing wrong with taking matters to court when one has a disagreement with others or the law or the state. It is what mature societies do when confronted with conflicts that admit no compromise. When each side "digs in," we take matters to court as opposed to, say, fighting over them or manipulating government. The courts have become so common in Canada that we forget that other places do not operate this way. There is nothing wrong with going to court, as well, because Charter cases are about rights and rights are, by definition, not subject to democratic sanction. If they were, they would not be rights, would they?
Rights are a complicated issue but, generally, Canadians agree that some things are too important to be left to the will of the majority or Parliament. Some important things must be protected. Why? (1) To protect democracy. Rule of law, freedom of speech, freedom of assembly, and like matters, are necessary for a democratic order (however much that order may or may not be respected). The equation here is actually pretty straight forward: societies that lack free speech, equality, rule of law, are not democratic because they are subject to arbitrary authority. Some people are favoured over others for no good reason; alternatives to policy cannot be discussed; the state can jail you without cause, etc. (2) Because they are important to the self-fashioning of individuals (expression, belief, for instance). Here, what we decide is that some things are so important to individuals that the majority should not be able to coerce alternative behaviours or beliefs. Your spirituality, for instance, is your business and vitally important to you, so important, in fact, that I should not be allowed to mess with it. Courts, for good or ill, protect rights.
This is not a long discussion but you can, I am sure, see the point: the idea that using the courts is somehow bad form is misplaced. It is consistent with democracy and the rule of law and our conception of rights and protection from arbitrary authority. In taking matters to court, one is doing nothing wrong but instead, playing by the rules of the game as they have been set out by others.