hen the ultra-religious mayor of the city of Saguenay, Quebec, tangled with the Supreme Court of Canada in 2015, he got a rude secular shock. His prayer practices at city council were ruled illegal. This court case settled an important controversy that had been bubbling away in many municipalities across the country for a long time. It is now the law of the land that municipal councils may not have religious ceremonies as part of their meetings.
But the Supremes went much farther than that specific issue. In reaching their conclusion, the learned judges, by a unanimous 9-to-0 decision, established a new constitutional principle of far-reaching import, to wit (drum roll, please): THE STATE HAS A DUTY OF NEUTRALITY IN RELIGIOUS MATTERS. Now we’re talking. Think of the exciting promise this principle offers for secularists of a litigious persuasion: church exemption from property tax; public funding of religious schooling; mottos or inscriptions of a religious nature on coats-of-arms, coinage and logos; civil servants who deal directly with the public while wearing religious accessories – all these should now be illegal. Readers with fertile minds can email me with more candidate subjects for secular justice and with strategies to make “the state” abide by its own laws.
So, how have we achieved this advance in civilized society? Believe or not, with the unintentional help of the very Municipalities which have refused to act in accordance with the Charter of Rights and Freedoms. This provoked some ordinary citizens to successfully challenge their intransigence. So, our new constitutional principle of state neutrality owes its thanks to citizens concerned about the conduct of their local councils.
The Saguenay case brought the issue finally to the Supreme Court. It started out with hero-of-secularism Alain Simoneau. Monsieur Simoneau was appalled that his mayor and council were hijacking public proceedings with aggressively Christian prayer and symbols. So he filed a complaint with the Quebec Human Rights Commission. He won, and Saguenay was ordered to stop their illegal praying. However, being a religious zealot, the mayor pursued an appeal to the Quebec Court of Appeal, using public funds, bien sur.
Now it was getting expensive for Monsieur Simoneau to secure his legal rights. So, others stepped into the fray to help. Enter the MLQ (Mouvement Laique Quebecois), led by another hero of secularism, Michel Virard. Tragically, the learned Quebec Court of Appeal judges ruled that Saguenay’s outrageous prayer practices were justifiable, on the bizarre grounds that the decisions of municipal council were not harmed by prayer. Neither M. Simoneau nor anyone else had argued so! Of course, cynics might agree with me that this is not the first time that religious apologists have missed the point or have advanced irrelevancies.
Fortunately, M. Simoneau and the MLQ were not discouraged by this setback and proceeded to appeal to the highest legal authority in our country, the Supremes. The legal analysis turned on the Charter of Rights section which guarantees Canadian citizens the right to freedom of religion. In deciding what this legal right covers, Supreme lead judge Clément Gascon said it means the state has a duty of neutrality in religious matters. Wonderful! Couldn’t have said it better myself. And to his eternal credit as a fair-minded and right-thinking jurist, it must be noted that Clément Gascon is a Christian of the Roman Catholic faith. However he might be slightly embarrassed if we called him a hero of secularism too.
Before this seminal Supreme Court ruling, the issue of prayer at municipal council had a problematic history. Different lower courts across the country had ruled differently. For instance, in Ontario we had rulings that the Lord’s Prayer was off-side because it was specifically Christian, coming directly from the Gospel of Matthew, whereas a non-sectarian prayer (what dat?) was okay. Clearly this was an unsatisfactory state of affairs, principally because it didn’t address the rights of non-believers.
The reason why municipal councils became a battleground in the first place is that they are not exempt from the Charter of Rights. Provincial and federal legislatures by contrast, being sovereign bodies, get a pass from the courts concerning their prayer practices because of the doctrine of parliamentary privilege, in this instance privilege for their internal procedural and governance matters. This has always been a hard proposition for me to explain to my fellow secularists – that our lawmakers are excused from following the constitutional Charter of Rights.
And so, still today our parliamentarians open their sessions with a generic prayer for guidance from an almighty deity. The best take on this odd situation goes to the late senator Eugene Forsey who is reported to have slyly remarked: “When I look around this chamber, I pray for the country.” And that was before the Mike Duffy expenses scandal! May I suggest that some aggrieved plaintiff ask the courts if it is now time to revisit parliamentary privilege in light of our enlightened new constitutional principle of state neutrality in religion?
A worrisome corollary issue, common to many legal matters, is compliance with the law. While most municipalities have obeyed the Supremes’ no-prayer ruling, there are troubling reports of some defiant scofflaws. We have already been down this shocking road with Ontario municipalities for years. Although the Ontario Court of Appeal had ruled in 1996 that the Lord’s Prayer was illegal in the town of Penetanguishene, dozens of municipal councils (mostly in rural Bible-belt areas) simply ignored the ruling and carried on Lord’s praying. One might ask the obvious question: if our government officials won’t respect the rule of law, why should citizens, if their beliefs differ from laws arrived at by due and democratic process? The slippery slope to anarchy? Are these not the times that can try men’s souls?
The upshot of non-compliance is that enforcement of the law against public prayer is up to private citizens. They have to act as prayer police by taking court cases for injunctions, as there seems no other mechanism to stop rebellious municipal councils. In Ontario, again, I was involved in four cases where we had local heroes of secularism step forward and sue their municipal councils: Bob Allen in Renfrew County, Dagmar Gontard-Zelinkova in North Hastings Township, Veronica Abbass in the City of Peterborough, and Peter Ferguson in Grey County.
Theoretically, provincial ministers of municipal affairs have the power step in, but they seem reluctant to act, no doubt fearful of political blowback from the parties of god. I personally wrote to the Ontario minister of municipal affairs asking him to intervene with his law-breaking councils. The weasely response was that he didn’t want to interfere with local autonomy! Obeying the law is a matter of local option apparently. The privileges of religion are truly remarkable. The eternal verity revealed here is that courageous secularists must be ever-dedicated and vigilant. And now we have a fresh and refreshing constitutional principle on our side: THE STATE HAS A DUTY OF NEUTRALITY IN RELIGIOUS MATTERS.
Volunteers, anyone, to put “the State” to the test? We will always need more heroes of secularism. Courage, Miss Prism, courage...