The Puzzle of Neutrality

While we are waiting for the conclusion of the greatest show on earth, a.k.a. as the Supreme Court’s hearings on the Senate reference, here are a couple of thoughts on an unrelated matter ― the case in which the Court has been asked to consider the validity under the Québec Charter of Human Rights and Freedoms of Saguenay’s practice of opening its town council meetings with a prayer. The Québec Court of Appeal, in Saguenay (Ville de) c. Mouvement Laïque Québécois, 2013 QCCA 936, found that the prayer was not a violation of the complainants’ freedom of religion because it was not religious , and the complainants  have asked the Supreme Court for leave to appeal. In this post, I want to make a suggestion as to what the Supreme Court, should it grant leave, should consider in deciding the matter, and what it should not.

I have very harshly criticized the decision of the Québec Court of Appeal here, arguing that it was bad law and worse logic. Of course a prayer is religious, and so involves the state’s duty of neutrality in religious matters. The real question in this case is not whether we should, as the Court of Appeal, blind ourselves to that fact, but rather how far the duty of neutrality extends.

One example for the Supreme Court (as well as for all of us who think of these issues) to consider is the long-standing (I suppose) and uncontroversial (for all I know) practice of prayer at Remembrance Day ceremonies. At the ceremony in Ottawa (which, being out of the country and unable to attend one, I watched thanks to CBC’s live stream, for which I am very grateful), the prayer  is led by the Chaplain General of the Canadian Forces. It is an integral part of the ceremony. The prayer is certainly deistic and, arguably, noticeably though not overtly Christian (it appeals repeatedly to the “God of Mercy” and “God of Grace”, which I think are Christian concepts). 

And so here are some questions to ponder. Is this prayer a violation of the state’s duty of neutrality and/or of the citizens’ religious freedom? If yes, are courts really prepared to interfere with this practice? If this prayer does not violate the state’s neutrality, what, if anything, makes a town council prayer, or the prayer as it is implemented in Saguenay different? Does it matter that Saguenay’s the prayer is led by the mayor? (Put differently, would the answer for the Remembrance Day prayer be different if it were led by the Governor General?) Does it matter that the Remembrance Day ceremony is just that ― a ceremony, a merely symbolic event, however much importance some of us attach to it ― whereas town council meetings are not symbolic gatherings, and serve to make public decisions and enact public rules? Does the history of prayer at such events matter at all? (The Saguenay practice, it seems, is actually a recent one, although similar prayers have long existed in other assemblies in Canada.) For what little it’s worth, my intuition is that the town council prayer is rather more disturbing than the Remembrance Day one. But it’s not so easy to articulate just why that is ― which of course suggests that my intuition may well be wrong.

One place which, unfortunately, is unlikely to be of much help in thinking about these difficult questions is the decision of the Supreme Court of the United States in Town of Greece v. Galloway, a case which also considers the constitutionality of prayer before a town council meeting. I was more optimistic when I first wrote about the coincidence of the two Supreme Courts considering this issue at the same time, but ― having just attended a lecture on Town of Greece at NYU ― I now have the impression that the differences of constitutional text and precedent between the US and Canada are, in this area, so important as to make reliance on American decisions quite unhelpful. Precedent, in the US, the case of  Marsh v. Chambers, 463 U.S. 783 (1983), which upheld legislative prayer on the basis that it was a long-standing tradition that predated and was continued after the ratification of the Bill of Rights. That case, as Lyle Denniston writes, not only looms large over Town of Greece, but might indeed be the only ground on which a majority could agree to decide it. Yet its originalist logic has long been rejected by the Supreme Court of Canada, at least in cases about rights. Beyond precedent (and the peculiarities of the American constitutional text, which guarantees not a general “freedom of religion” like the Charter and other modern constitutions, but “free exercise” and non-establishment of religion), the parties’ positions are also very different. The plaintiffs in Town of Greece actually accept the permissibility of non-sectarian prayers, of the sort which are provided for by Saguenay’s policy, and indeed apparently take the position that the US Constitution simply does not protect atheists. Although, according to Mr. Denniston’s report, at least some judges seem ill at ease with that position, it probably means that the decision the Court will eventually deliver will respond to concerns quite different from those raised by the Saguenay case.

I hope that, unlike the Québec Court of Appeal, the Supreme Court ― as well as all of us thinking about this case ― will approach the American jurisprudence with caution. All the more important, then, to think carefully for ourselves about the very difficult questions about the extent of state neutrality in matters of religion, including those I have outlined above.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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