A Hard Case

Thoughts on the Supreme Court’s dismissal of a religious freedom claim based on Aboriginal beliefs

Last week, the Supreme Court issued its decision in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, which held among other things that the guarantee of religious freedom under the Canadian Charter of Rights and Freedoms does not prevent the state from interfering with the object of one’s worship. Beliefs, says the majority in an opinion by Chief Justice McLachlin and Justice Rowe, are protected ― but not the things that these beliefs attach to. Justice Moldaver, while concurring  in the result, vigorously disagrees with this approach. So does much enlightened opinion. And the critics have a point. But so does the majority. This is a much harder case than some of those who have criticized the decision have allowed.

For my purposes here, the facts are simple. The people of the Ktunaxa Nation have come to believe that allowing the building of any permanent constructions on a large tract of public land “would drive Grizzly Bear Spirit from [that land] and irrevocably impair their religious beliefs and practices” [6] to which the Spirit is central. Meanwhile, a developer wants to build a resort on that land and, after a protracted consultation process, has been granted permission to do so by the provincial government. The question is whether this decision infringes the Ktunaxa’s religious freedom and, if so, whether the infringement is justified under section 1 of the Charter. (There are other important issues in Ktunaxa too, but this post only deals with the religious freedom one.)

The majority concludes that there is no infringement of the freedom of religion. The constitution protects “the freedom to hold religious beliefs and the freedom to manifest those beliefs”. [63] An interference with a person’s or community’s beliefs and manifestation of these beliefs is a prima facie infringement of this guarantee. But there is no such interference here. The Ktunaxa can still believe in the Grizzly Bear Spirit, undertake rituals that manifest this belief, and transmit it to others. However, crucially, “[t]he state’s duty … is not to protect the object of beliefs, such as Grizzly Bear Spirit”. [71] Were it otherwise, “[a]djudicating how exactly a spirit is to be protected would require the state and its courts to assess the content and merits of religious beliefs”. [72]

Justice Moldaver argues that this is too narrow a view of religious practice and, therefore, religious freedom. Religious practice must be, well, religious ― otherwise there is no point to engaging in it. The state must take away its essential character: “where the spiritual significance of beliefs or practices has been taken away by state action, this interferes with an individual’s ability to act in accordance with his or her religious beliefs or practices”. [126] When religious belief involves a “connection to the physical world”, [127] as is the case for many aboriginal religions, a severing of this connection will infringe religious liberty. This, according to Justice Moldaver, is what happened in this case.

That said, Justice Moldaver ultimately upholds the government’s decision, because in his view it represents a proportionate balancing between the statutory objectives of administering and, when expedient, disposing of public lands, and the Ktunaxa’s religious freedom. Since the Ktunaxa themselves insisted that their claim could not be accommodated ― it had to be accepted or rejected ― to give effect to it would have meant giving them a veto over development on, and thus effectively a form of property rights in, a large parcel of public land. The government was “in a difficult, if not impossible, position”, [154] and its decision to allow development notwithstanding the Ktunaxa’s claim was reasonable.

Critics of the majority opinion agree with Justice Moldaver that the majority does not understand religious experience or the variety of religious practice. Avnish Nanda, in a thoughtful Twitter thread, blamed this failure on the lack of diversity on the Supreme Court. He pointed out that “[t]wo of the five pillars of Islam are intrinsically tied to” the Kaaba, and that, therefore, “[i]f the Kaaba were deprived of its spiritual significance, these religious practices core to Islam would be deprived of value”. But I’m not sure that diversity is the key issue here. After all, some forms Christian theology also accords great significance to sacred places and objects ― and one need not even be particularly familiar with this theology to be aware of its traces in the English (or French) language ― in words like “crusade” or “iconoclast”.

Whatever the reason for the majority’s narrow approach to religion, as I said at the outset, I think that its critics raise an important concern. Courts are prone to taking what is arguably too narrow a view of religious concerns, whether with respect to common or more exotic forms of faith. In a somewhat different but related context, Douglas Laycock once cautioned against “assum[ing] that religions lay down certain binding rules, and that the exercise of religion consists only of obeying the rules … as though all of religious experience were reduced to the Book of Leviticus”. (“The Remnants of Free Exercise”, 1990 Sup Ct Rev 1 at 24) Beliefs, obligations, and rituals are not all there is to freedom of religion. Community (the specific focus of Prof. Laycock’s concern) is important too, and so is attachment ― properly religious attachment ― to some aspects of the physical world.

However, as I also said in the beginning, we should not be too quick to condemn the majority opinion. To begin with, its concern about entangling the courts, and thus the ― secular and religiously neutral ― state in determinations of just what the protection of “objects of beliefs” requires is justified. David Laidlaw’s post over at ABlawg underscores this point, albeit unintentionally. Mr. Laidlaw insists that “the result in this case was a failure of imagination to consider the interests of the … Grizzly Bear Spirit”, which should have been recognized through the expedient of the courts granting the Spirit a legal personality and appointing counsel to represent it. For my part, I really don’t think that the Charter allows a court to embrace the interests of a spiritual entity ― thereby recognizing its reality. It is one thing for courts to acknowledge the interests and concerns of believers; in doing so, they do not validate the beliefs themselves ― only the rights of those who hold them. It is quite another to endorse the view that the belief itself is justified. And then, of course, the court would still need to determine whether any submissions made on behalf of the Spirit were well-founded. But even without going to such lengths, it is true that to give effect to the Ktunaxa’s claim, the Supreme Court would have had to hold not only that the Ktunaxa sincerely believed in the existence of and their connection to the Grizzly Bear Spirit, but also that this connection would in fact be ruptured by development on the land at issue. To do so would have meant validating the asserted belief.

There is a related point to make here, which, though it is unstated in the majority opinion, just might have weighed on its authors’ minds. Insisting that the connection between a person’s religious belief and the object of this belief deserves constitutional protection might have far-reaching and troubling consequences. The movement to insist that “defamation of religion” must be forbidden and punished is based on the same idea: things people hold sacred deserve protection, and so the state ought to step in to prevent their being desecrated ― say, by banning cartoons of a Prophet or jailing people for “insulting religious feelings”. Now, perhaps this does not matter. To the extent that the protection of the objects of beliefs is purely “negative”, in the sense that the state itself must not engage in desecration but not need not take action to prevent desecration by others, it need not translate into oppressive restrictions on the freedom of expression (and perhaps of religion) of those whose behaviour some believers would deem to compromise their own faith. But I am not sure that this distinction will always be tenable. If, for instance, a regulatory authority subject to the Charter grants a permit for an activity that a religious group believes to trample on the object of its faith ― say, a demonstration in support of people’s rights to draw cartoons, where such cartoons are going to be displayed ― does it thereby become complicit in the purported blasphemy, and so infringe the Charter? (This argument is not frivolous: it parallels one of those made by those who think that law societies should be free to deny accreditation to Trinity Western’s proposed law school lest they become complicity in its homophobia.)

There is an additional reason why Ktunaxa strikes me as a difficult case ― though perhaps also a less important one than it might seem. Suppose Justice Moldaver’s view of the scope of religious freedom under the Charter is correct, and the state has a prima facie duty not to take away the sacred character of (at least) physical spaces and objects involved in religious belief. But as Justice Moldaver himself says, this seems to be tantamount to giving religious believers a form of property interest in the spaces or objects at issue. That might not be a problem if the believers already own these things in a more conventional sense ― though even in such cases a constitutional quasi-proprietary right would be unusual given the Charter’s lack of protection for ordinary property rights. But, as Ktunaxa shows, in the absence of more conventional interests (whether fee simple ownership or aboriginal title or right), the recognition of such interests can get very problematic, because they amount to giving religious believers control over things that are not actually theirs. And what if the sacred place or object is owned not by the state but by another person? What if more than one religious group lays claim to it? In short, I’m not sure that there will be many, if any, cases where competing considerations would not prevail in a section 1 analysis (whether under the Oakes or, especially, the Doré framework), just as they did in Ktunaxa.

These thoughts, in case that wasn’t clear, are all quite tentative. I’m certainly open to the possibility of being proven wrong. If I am right, however, Ktunaxa really was a very difficult case, and it is not obvious that the majority got it wrong ― though nor is it clear that it got it right. Hard cases, it is often said, make bad law. I’m not sure that this is what happened here ― or that it even matters if it did.

Bashing Bill 62

Criticism of Québec’s face-veil ban coming from elsewhere in Canada is neither hypocritical nor disproportionate

In an op-ed in The Globe and Mail that has generated some discussion, at least in Québec, Jean Leclair remonstrates with “English Canadian politicians and journalists” for their criticism of Québec’s recently enacted legislation that could prevent women who wear face veils (and perhaps other people, such as those who wear sunglasses) from taking the bus or accessing any other public services. Prof. Leclair faults the classes that chatter in English for their hypocrisy and for the excesses of their rhetoric. With respect, it is he who is wrong.

Prof. Leclair thinks that English Canadian criticism of the former Bill 62 is hypocritical because the rest of Canada too has its share of racists and of people who support legislation targeting religious minorities. That is no doubt true. But it is no less true that in no province other than Québec has legislation similar to the “Charter of Values” that was proposed by Québec’s previous government, Bill 62, or beefed-up versions of the latter being proposed by both main opposition parties in Québec been enacted. To my knowledge, no provincial political party has made such legislation official policy. More broadly, no provincial political party has attempted to trade on or pander to the racism that undoubtedly exists in Canadian society in the way that all the main parties in Québec have done. The Conservative Party of Canada, in the death throes of the last federal election campaign, tried to do so, and having failed, abandoned the attempt. Prof. Leclair writes as if there is no difference between discriminatory attitudes existing in society and these attitudes being shared, or indulged for partisan purposes, by those in power. This is not so.

Prof. Leclair also thinks that the critics of Bill 62 are hypocrites insofar as they appear to him to celebrate the wearing of niqabs, or at least to be “stigmatizing all people who do not wish to ‘celebrate’ the right of a woman to wear a veil”. “How many” of them, he asks, “would rejoice if their daughter, one day, chose to wear one?” Prof. Leclair does not mention any names, and I am puzzled as to whether anyone actually is celebrating the fact that niqabs are being worn in Canada. What is worthy of celebration is the fact people are free to act in ways of which many, probably a majority, of their fellow citizens disapprove. Prof. Leclair insists that people should be free to criticize the wearing of the face veils without being accused of being racists, and I agree with him so far as this goes. But, once again, there is a difference between insisting that people are free to criticize others’ choices, even religiously-inspired ones, and defending their purported freedom to support or vote for policies that coerce those who make choices they deem wrong. Criticism is a right in a free society; coercion is not.

Prof. Leclair also argues that the criticism of Québec’s anti-veil (and perhaps anti-sunglasses) legislation is overwrought. After all, “Canada’s approach to the regulation of religious symbols and clothing … is not the only legal path followed in the liberal-democratic world”. A number of European countries have banned full-faced veils, and these bans have been upheld by the European Court of Human Rights. This, to prof. Leclair, proves that, though the bans may be wrong ― as he thinks ―, they are not “synonymous with blind racism”. Yet I fail to see how the fact that some countries ― even some democratic countries ― do something should shield that thing from forceful criticism. Admittedly, I do not know whether Prof. Leclair personally has ever criticized, say, the American criminal justice system as barbaric, but plenty of people in Canada and in Europe do not hesitate to do so. Does prof. Leclair think they should all keep mum? For my part, I think that to the extent that human rights involve universal principles, there is nothing inherently untoward in arguing that the interpretation of these principles by another polity, or group of polities, is perverse.

And the European approach to face veils is indeed perverse. Whether or not it proceeds from “blind racism”, as I have argued here, the reasoning of the Strasbourg Court is repressive, and indeed totalitarian. It rests on the premises that the state is entitled to impose conditions on human interaction that the individuals doing the interacting do not wish to be subject to, and that individuals have some kind of obligation to enter into “open interpersonal relations” with others, whether or not they want to do so. This reasoning is incompatible with belief in a free society, where people decide whether they wish to interact with others, and on what terms, so long as they are refraining from using force or fraud and not harming third parties. Prof. Leclair insists that even if the banning face veils is wrong, it is not arbitrarily repressive, as if the state were “regulating such things as baseball caps or miniskirts”. Face veils are associated with oppression against women, and the desire to outlaw them is therefore comprehensible even if misguided. I’m not sure about skirt length requirements, but certainly prohibitions on women joining certain occupations, or working outside the home at all, or voting, were once justified by claims that these activities took away women’s dignity. We have learned not just to politely disagree with such claims, but to reject them out of hand (which, of course, does not mean to shout them down or censor them). I hope that, in due course, we will also learn to reject out of hand claims that the dignity of women requires them to be prevented from dressing in accordance with their religious beliefs.

In my view, then, Prof. Leclair and others who, like him, disagree with Québec’s ban on face veils and proposals to extend this ban are wrong to object to the criticism with which this ban has been received in the rest of the country. This criticism is not made hypocritical by the existence of racist citizens outside Québec, nor is it made disproportionate by the fact that similar bans are regarded as acceptable in Europe. Prof. Leclair and others might view the criticism as an instance of “Québec-bashing”, the application of double standards to their province. Their are mistaken. Not only is there no double standard, as I’ve argued above, but the intensity of the criticism is, at least in part, likely driven by a recognition of the existence of the chauvinist and illiberal tendencies elsewhere in Canada. There might be no need to criticise Québec’s legislation so much if we were certain that it would never be replicated elsewhere. But precisely because there can be no such assurance, it is important that scholars, journalists, and politicians across Canada denounce it for what it is ― a manifestation of bigoted illiberalism.

An Easy Case

Why funding Catholic schools on terms not available to others is an obvious infringement of religious freedom

In Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, the Saskatchewan Court of Queen’s Bench held that funding Catholic schools, and no others, for educating students who do not belong to their religion is contrary to the guarantee of the freedom of religion in paragraph 2(a) of the Canadian Charter of Rights and Freedoms, and not justified under the Charter‘s section 1. In commenting on that decision, I wrote that this “is correct, and quite obviously so. There is no meaningful account of religious neutrality on which singling out one group for a favourable treatment denied others is permissible.” To my enduring surprise, some of my friends disagree with this, so I will try to explain my views further.

Writing for Policy Options, Joanna Baron and Geoff Sigalet argue that in Saskatchewan the province’s duty of religious neutrality has to be understood in the context of “Saskatchewan’s Confederation compromise [which] entailed a built-in elevation of the status of Catholics” and required provincial funding of Catholic schools. In that context, allowing non-Catholic students to access these schools “does not violate a principle of religious neutrality — it is the definition of neutrality.” They add that “the Charter itself does not explicitly require state neutrality vis-à-vis religion” ― in contrast to the First Amendment to the U.S. Constitution, under which the funding of vouchers allowing students to attend religious schools has nevertheless been permitted. They claim, finally, that it is ironic that the Charter, which is supposed “to give individuals rights vis-à-vis the state”, ends up foreclosing the educational choices of non-Catholic students. Finally, they worry about the way in which students would be classified as Catholic or not to determine who is, and who is not, entitled to access Catholic schools.

In an Advocates for the Rule of Law post, Asher Honickman makes some similar points. Religious neutrality is only a judicial construction, and in any event not absolute. Determining who is Catholic enough to attend a Catholic school is problematic. Mr. Honickman adds that it would be discrimination to require “non-Catholics … to attend secular schools, while Catholics would have a taxpayer funded choice to attend either Catholic or secular schools.” While

the government could provide equal funding to all religious schools, but this would prove far too costly. The Charter is by and large a ‘negative rights’ document and the government should not have to break the bank to comply with its provisions.

In any event, since they receive public funding to cover their capital expenses, Catholic schools could charge non-Catholics cheaper tuition to any non-Catholic students who wished to attend, and the additional benefit of receiving funding to cover their individual education is too trivial to count as an infringement of neutrality.

I do not find any of this at all persuasive. Begin with the suggestion, admittedly never fully articulated, that we should not make too much of religious neutrality because it is not expressly referred to in the Charter. Justice Dickson, as he then was, rejected it in the very first religious liberty case R v Big M Drug Mart Ltd, [1985] 1 SCR 295. Dismissing an argument that the Lord’s Day Act was not contrary to the Charter‘s guarantee of freedom of religion because it did not include a proscription of religious establishment, he noted that “recourse to categories from the American jurisprudence” ― free exercise of religion and non-establishment ― “is not particulary helpful in defining the meaning of freedom of conscience and religion under the Charter” because these categories flow from “the wording of the First Amendment”. (339) They do indeed, and the wording is not accidental, as Michael McConnell explained in this excellent lecture.

The Charter only contains a single guarantee of religious liberty, and the question is whether its meaning in 1982 (on an originalist approach) or now ( on a living constitution one) includes state neutrality. The answer to this question is an emphatic yes, whatever one’s reference point. As Justice Taschereau wrote in Chaput v Romain, [1955] SCR 834, “[i]n our country, there is no state religion. … All religious creeds are set on an equal footing.” (840; translation mine.) As a statement of positive law, this was perhaps a tad optimistic while the Lord’s Day Act was still in force; but as a statement of what religious liberty, properly understood, meant by the 1950s (and indeed earlier) and still means, this passage remains unsurpassed in its forceful simplicity.

State neutrality is then, along with a rejection of religious coercion, one of the fundamental principles of paragraph 2(a) of the Charter. The Charter itself contains one  exception to this principle: section 29, which protects “rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.” (The fact that the Charter’s framers thought it necessary to make this exception explicit suggests that they too understood neutrality to be the general principle.) Except insofar as they are “guaranteed by or under the Constitution of Canada”, the privileges of “separate” schools are subject to the general principle.

The constitution’s “built-in elevation of the status of Catholics”, in other words, is set at a precisely calibrated level. It permits the “discrimination” involved in allowing Catholics ― or, more precisely Catholics or Protestants, depending on who happens to be the minority ― a choice between public and “separate” schools, and immunizes it from Charter scrutiny. By necessary implication, it permits and even requires the state to distinguish between Catholics and others, however distasteful we might find the drawing of such distinctions. (That said, as Justice Layh found in Good Spirit, “proof of one’s Catholic identity is baptism in the Catholic tradition, commonly evidenced by a baptismal certificate” [17] ― not an especially intrusive inquiry, all things considered.) The constitution does not, however, permit conferring on Catholics them the further advantage ― whether it is a great or a small one ― of admitting and proselytizing to non-Catholic students at the public expense. It is not for the courts to upset this calibration that is quite clearly set by the constitution itself, whether or not doing so would be convenient or save money. Having found that the admission of non-Catholic students was not “guaranteed by or under the Constitution of Canada”, the Good Spirit court was quite correct to apply the principle of neutrality to it.

As I have been saying from the beginning, if the province of Saskatchewan does not like the outcome that non-Catholic students and their parents lose the (limited) measure of school choice that was available to them, the obvious solution is to provide more school choice on a non-discriminatory basis. This, in fact, is what the State of Ohio did in Zelman v Simmons-Harris, 536 U.S. 639 (2002), the First Amendment case on which Ms. Baron and Mr. Sigalet rely. As Chief Justice Rehnquist described the scheme at issue in his majority opinion, “[a]ny private school, whether religious or nonreligious, may participate in the program and accept program students so long as the school” meets certain administrative requirements, educational standards, and does not discriminate. (645) The issue was whether the eligibility of religious schools for participation violated the First Amendment. The U.S. Supreme Court held that it did not, and the result would be the same under the neutrality principle of the Charter. But the Zelman-Harris court did not uphold, and would not have upheld, a similar scheme the participation in which was restricted to religious schools only, still to Catholic schools alone. If Saskatchewan want to include Catholic schools in a broader school choice programme, that would have been constitutionally permissible. It is not permissible to limit school choice to such schools alone.

It is not the Charter, then, that limits school choice in Saskatchewan in the wake of the Good Spirit decision, but the political choices made by the province’s legislature. Will it be too expensive to offer meaningful, non-discriminatory choice to students? We don’t know; the province has not, so far as I can tell, even considered the possibility, rushing to override the decision by invoking the Charter‘s “notwithstanding clause”. But whatever the amounts at issue, it will not do to say that it is better to offer a discriminatory benefit to some if we cannot offer the same benefit to all. The Supreme Court rejected this proposition in Schachter v Canada, [1992] 2 SCR 679, and rightly so. No one would accept that a province offer a tax cut to Catholics alone on the basis that it’s better to give one to some people than to none. The same reasons that would make that utterly unacceptable condemn the policy of subsidizing Catholic schools (beyond what is constitutionally required) and no others.

While some aspects of the Good Spirit case were difficult, the Charter issue that it presented was not. Once it is established that the education of non-Catholic students is not a constitutionally entrenched aspect of “separate” Catholic schools, it follows straightforwardly that it can only be subsidized on equal terms with those available to other schools, religious or otherwise. To conclude so is not to impose a new interpretation on constitutional text, but to apply principles that were recognized in Canada well before the Charter‘s entrenchment. Those who would depart from these principles in the name, ultimately, of financial expediency and administrative convenience should re-consider.

No Money for You

Can Saskatchewan fund non-Catholic students in Catholic schools? Raising government ire, a court says no.

A couple of weeks ago, in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, Saskatchewan’s Court of Queen’s Bench held that provincial funding for non-Catholic students of Catholic “separate” schools in the  province was unconstitutional. Saskatchewan’s government is upset, and has proclaimed its intention to invoke the “notwithstanding clause” of the Canadian Charter of Rights and Freedoms to nullify the effects of this decision. In this post, I will summarize the decision and briefly explain why I think it is correct. I will comment on the use of the Charter‘s override provision separately.

The constitution requires Saskatchewan to allow the formation of, and to provide equal funding for “separate” schools for Catholics and Protestants, whenever one of these two groups happens to be a minority in a given school district and if parents belonging to the minority group request it. The mechanics of this requirement are somewhat complex: section 17 of the Saskatchewan Act, 1905, which created the province from the North-West Territories, makes applicable to it a somewhat modified version of section 93 of the Constitution Act, 1867, which guarantee “right[s] or privilege[s] with respect to separate schools which any class of persons ha[d in 1905]” under the then-existing territorial law. Laws enacted in furtherance of this guarantee are constitutional and not subject to scrutiny under the Charter, because its enactment did not abrogate the guarantee. Any other provincial laws relative to education, including the “separate” schools, are subject to Charter scrutiny like all other legislation in Canada.

The case was a challenge by a public school board to the funding received by a Catholic one for non-Catholic students attending one of its schools. If this funding were not available, the students would have attended a school operated by the plaintiff, and the funding would have followed them there. The case raised two main questions. Is the funding of non-Catholic students attending Catholic “separate” schools part of the guaranteed rights or privileges? If not, is it contrary to the Charter? There were a couple of preliminary issues too: whether the plaintiffs had standing to sue, and whether the school at the centre of the proceedings, St Theodore, was a legitimate “separate” school despite the fact that most of its students were not Catholic. Justice Layh answered both of these questions in the affirmative, and I will say no more of them. The decision is 230 pages long, not too much of it superfluous. I will only focus on the key points here.


Justice Layh found that there was no constitutionally guaranteed right for a “separate” Catholic school board to receive public funding for educating non-Catholic students. Only “denominational aspects” of the “separate” schools were constitutionally protected from legislative interference. The aim of the guarantee was to preserve minority religious communities by allowing them to withdraw their children from the majority’s schools and so to avoid assimilation. Moreover, at the time of the guarantee’s entrenchment, Catholics viewed education jointly with non-Catholics with great suspicions, and while constitutional interpretation had to account for new social realities ― notably the fact that Catholics and protestants were no longer the only religious groups of any significance in Canada, making special protections for them anomalies ― it could not import theological developments, such as Catholicism’s greater openness to other religions ― that occurred since the Saskatchewan Act came into force.

As a result, the ability to educate non-Catholics could not be viewed as a “denominational aspect” of the functioning of Catholic schools; it was not essential to their functioning as Catholic institutions. Therefore it was not constitutionally protected. Nor did the requirement of non-discriminatory funding for “separate” schools extend to funding students from outside the religious community for which they were set up. The funding requirement served to protect the distinctive religious character of the schools, not the ability of outsiders to attend them. In short, the provision of funding of which the plaintiffs complained was not a constitutional requirement, but a legislative choice of the province.

This area of the law is quite complicated, and I cannot claim particular expertise on it. To me, however, Justice Layh’s reasons are largely persuasive. It will not come as a surprise to regular readers that I am very skeptical about his take on the role of social change in constitutional interpretation, as I might further explain in a future post, if time permits. But I do not think that this is material here. Justice Layh makes a compelling case about the originalist raison d’être of the constitutional protections for “separate” schools being to allow minority communities to stand on their own, and about there being no legal right to funding for non-Catholic students in 1905. A purely originalist analysis would not, I think, yield conclusions different from his.

Having concluded that the funding of non-Catholic students was not exempt from Charter scrutiny, Justice Layh turned to the plaintiff’s claims that it infringed the constitutional guarantees of freedom of religion and equality. Part of the respondents’ case on this point was that the plaintiff, not being a natural person, was not entitled to make such claims, since only individuals could hold religious beliefs or claim equality rights under section 15 of the Charter. Justice Layh dismissed this argument. In his view, although only an individual could claim that a generally neutral law had a disproportionate or discriminatory effect on him or her, anyone could argue that a legislative measure was unconstitutional on its face, as the plaintiff here was doing. I find this distinction dubious; once the plaintiff is granted standing to sue in the public interest, shouldn’t it be able to advance constitutional claims on behalf of others? Isn’t that the point of public interest standing? But nothing turns on this here.

Justice Layh found that funding non-Catholic students in Catholic schools ― and, importantly, not funding, say, non-Muslim students in Muslim schools or non-Jewish students in Jewish schools ― amounted a breach of the state’s duty of religious neutrality and to discrimination on the basis of religion. Neutrality means treating all religious groups equally, as well as not favouring religion over non-religion or vice versa. Providing money to Catholic schools so that they can educate non-Catholics, instructing them in Catholicism and thus “evangelizing” them, as well as creating goodwill in the community, without providing equivalent opportunities to other religious groups is not acting impartially, and is thus a breach of the Charter‘s religious freedom guarantee as explained, notably in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3 (which I explained and discussed here). It is also, ipso facto, discriminatory. I think this is correct, and quite obviously so. There is no meaningful account of religious neutrality on which singling out one group for a favourable treatment denied others is permissible.

There remained the question of a possible justification of these infringements of Charter rights under section 1, as limitations “demonstrably justified in a free and democratic society”. Justice Layh found that no such demonstration had been carried out. Indeed, the provincial government had not even really attempted one. The defendant school division, for its part, argued that funding Catholic schools for students outside of their faith served to provide educational opportunities to all students, and choice to the parents. Justice Layh rejected these objectives, on the basis that they had nothing to do with the limitation of funding of non-denominational students (if I can be forgive this use of the term) to Catholic schools. Public schools could provide educational opportunities, while the objective of enhancing choice could not be advanced by an inherently discriminatory policy. While these objections seem to me to go to the “rational connection” stage of the section 1 test rather than to invalidate the objectives themselves, nothing turns on this. The objections themselves are well taken, and Justice Layh’s conclusion, correct.

In the result, Justice Layh declares that Saskatchewan’s legislative and regulatory provisions allowing funding of non-Catholic students in Catholic “separate” schools is unconstitutional. He adds that “[a]ppreciating that the implementation of this declaration will cause significant repercussions in the province, this declaration is stayed until June 30, 2018.” [476] The stay, I think, is self-evidently appropriate here, and this case should be kept in mind in any future discussions of suspended declarations of unconstitutionality.

As it works its way up the judicial hierarchy, Good Spirit School Division could also produce important rulings on the constitutional issues it addresses ― and I hope that appellate courts will pay attention to Justice Layh’s reasons, which strike me ― despite some reservations ― as generally very careful, well-argued, and perhaps above all lucid. But all of that is likely to be overshadowed by debates about the Saskatchewan government’s invocation of the “notwithstanding clause” to annul Justice Layh’s decision. I hope to say more on that in short order.

First of All Our Laws

Natural law in a Québec Court of Appeal decision in 1957

Starting with the Reference re Alberta Statutes, [1938] SCR 100, but mostly in the 1950s, the Supreme Court of Canada issued a series of decisions which came to be known as upholding an “implied bill of rights” in the Canada. The actual holdings of these decisions were often relatively narrow ― they held, for example, that provinces could not outlaw political or religious ideas, because doing so was part of Parliament’s criminal law power. Yet both the obiter comments of some judges and the general trend of these cases seemed to give a fairly clear indication that the Supreme Court would, to some extent at least, resist the arbitrary exercise of both legislative and executive power in Canada, and protect civil liberties.

Understandably less well-known are the decisions of the lower courts that tended to the same effect. In Morin v Ryan, [1957] Que QB 296 (CA), for instance, the Québec Court of Appeal awarded damages to a plaintiff it founded to have been defamed by being characterized as a “militant communist” ― a decision F.R. Scott described as “a healthy check on incipient McCarthysm”. Another such decision, which I have recently come across, is Chabot v School Commissioners of Lamorandière, (1957) 12 DLR (2d) 796.  Like many of the “implied bill of rights decisions” it concerned the religious freedom of Jehovah’s Witnesses ― in this instance, in the context of a school system organized along religious lines.

The applicant’s children were attending a Catholic public school ― the only kind there was in their rural municipality. After the family joined the Witnesses, the parents wrote to the school to request that the children not be required to take part in the daily prayers and to study religion-related content. What we would now call a “reasonable accommodation” seems to have worked well enough for a while, but eventually ― perhaps after some trivial misbehaviour by the children, though many of the judges seem quite skeptical of this ― the arrangement broke down. The children were expelled, and the school authorities made it clear that they would only re-admit them on condition that they take part in the full programme of religious activities. The father sought a writ of mandamus to compel the school to admit his children with the condition that they be exempted from religious exercises.

At the Court of Appeal, the case was heard by a bench of seven judges ― testament, I take it, to its special importance. Six sided with the father. Justice Rinfret, as he then was (Édouard Rinfret, that is, not to be confused with his father Thibodeau Rinfret, the Chief Justice of Canada), dissented, protesting that

no one wants to place any obstacles in the way of the religious liberty of the appellant or his children, no one aspires to force him to send his children to the school of the commissioners; if he does it, it is of his own volition, because he wanted to; but if it is his wish and if he insists on sending them there, he is obliged to … follow the regulations [as to religious exercises and studies] established by competent authority. (826)

The law, after all, allowed religious “dissentients” to establish their own schools. If the Chabot family was one of the few or even the only one in its small town, that was not Catholic, the law paid no heed to that; they should still set up their own school, or comply with the rules of the Catholic majority.

But the court’s majority did not see it this way. For them, the issue was one of religious liberty ― and indeed of natural rights. On its face, to be sure, the case was about interpreting the applicable legislation and regulations, and deciding whether they were ultra vires the province, notably in light of some of the already-decided “implied bill of rights” cases. Justice Casey, for instance, starts by putting the case before the court in this context:

During the past few years our Courts have been called upon to consider those fundamental rights commonly called freedoms of speech and of religion, and while differences have arisen in solving specific problems, never has the existence of these rights been put in doubt. (805)

But, more than in those cases, the judges who decided Chabot were explicit in their references to implicit rights prior to positive law, which guided their interpretation and application of that law. Thus Justice Pratte says that “it appears useful to recall that the right to give one’s children the religious education of one’s choice, like freedom of conscience, is anterior to positive law”. (802) Having quoted a couple of English decisions to this effect, and a passage from Aquinas cited in one of them, Justice Pratte writes that

if one considers natural law, first of all our laws, it is necessary to conclude that children who attend a school are not obliged to follow a religious teaching to which their father is opposed. (802)

Similarly, Justice Casey was of the view that “[w]hat concerns us now is the denial of appellant’s right of inviolability of conscience [and] interference with his right to control the religious education of his children”, which rights “find their source in natural law”. (807). Justice Hyde (with whom Justice Martineau agreed), also took the position that the school authorities’ position amounted to an assertion that they could

force upon [non-Catholic children attending Catholic schools] the teaching of the Roman Catholic Church and oblige them to go through forms of worship in accordance with that faith. It requires no text of law to demonstrate that this cannot be so. (813; paragraph break removed.)

Justice Taschereau (that is André Taschereau, not to be confused with his cousin Robert Taschereau, then judge on the Supreme Court and later Chief Justice of Canada), sounded a perhaps slightly more Dworkinian note:

It would … be contrary to natural law as well as to the most elementary principles of our democratic institutions that a father could not exercise the right or fulfil his obligation to instruct his children without renouncing his religious faith (834; emphasis added.)

Of the majority judges, only Justice Owen was more cautious, saying that “[t]here are differences of opinion as to the nature of [religious freedom], whether it is a civil right
or a political or public right”, although he too had no difficulty in concluding that it “is a right which is recognized and protected in Canada”, while pointing to limited legislative, and no constitutional, authority.

Now, it is not entirely clear quite what relationship between positive and natural law the judges envisioned. Certainly they were prepared to let natural law guide their choice between plausible interpretations of ambiguous legislative provisions, and either to read down or to declare ultra vires regulatory provisions inconsistent with their chosen interpretation and thus with natural law. But would they go further and actually invalidate positive law for inconsistency with natural law? None of them finds it necessary to do so, but there is at least a hint that they might. Justice Hyde seems to suggest that compliance with natural law might be a constitutional requirement, saying that the school authorities’ power to determine the curriculum

cannot be construed to override [a] basic principle of natural law. It would require very specific provisions in the Act to that effect to justify any such interpretation and then, of course, the constitutionality of such provisions would be a matter for consideration. (813)

Justice Casey might be going further still, stating that rights which

find their existence in the very nature of man … cannot be taken away and they must prevail should they conflict with the provisions of positive law. Consequently if the regulations under which, rightly or wrongly, this school is being operated make it mandatory that non-Catholic pupils submit to the religious instructions and practices enacted by the Catholic Committee then these regulations are ultra vires … and invalid. (807; emphasis added)

That said, the same Justice Casey cautions that

while in principle no one should be coerced into the practice of a religion, or subjected to compulsion in following outwardly the dictates of conscience, or prevented from practising as he sees fit the religion of his own choice, this immunity disappears if what he does or omits is harmful or opposed to the common good or in direct violation of the equal rights of others. (805)

Meanwhile, Justice Pratte suggests that Québec’s education system was designed so as to “take into account the rights of the family in the matter of education.” (800) His and his colleagues’ decision, then, might only rely on natural law the better to advance the positive legislator’s objectives, as well as to protect natural rights.

The majority’s overt invocation of natural law reads like something of a curiosity sixty years later. The rights it sought to uphold have, more or less, been subsumed in the positive protections of the Canadian Charter of Rights and Freedoms ― and, perhaps even more so, in Québec’s Charter of Human Rights and Liberties. Nevertheless, the questions the Court addresses are also very modern. The issue as stated by Justice Taschereau ― whether a parent “[c]an … be obliged to renounce his religious beliefs as a condition to the admission of his children to a public school of the school municipality where he lives?” (832) ― is exactly the same as that which faced the Supreme Court in Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256, the kirpan case. The answer the Supreme Court gave was not as novel as its critics keep on pretending it was, nor did it have to hinge on constitutional provisions which some of them affect to find illegitimate. Half a century before Multani, Québec’s highest court came to similar conclusions, on the basis of what it ― rightly in my view ― saw as truths antecedent to, and more permanent than, any constitution.

“Intolerant and Illiberal”

The BC Court of Appeal is right to insist on tolerance for an intolerant institution

In a decision issued yesterday, Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423, the British Columbia Court of Appeal held that the Law Society acted unreasonably when its benchers, following its members, voted “not to approve” the University’s proposed law school, preventing its graduates from practicing in the province and causing it to lose the government’s permission to grant recognized degrees. The unanimous decision “by the court” is not always straightforward to follow in its administrative law analysis, which is surely at least in part the consequence of the convoluted approach that the Supreme Court has taken to analyzing Charter issues when they arise in administrative decision-making. But on the constitutional issue of balancing the allegedly competing considerations of religious liberty and equality rights, the Court gets it quite right when it concludes that “[t]his case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.” [193] Let me explain.

Trinity Western requires its student to sign a “Covenant” which, among other things, seeks to prevent them from having sex outside marriage, and defines marriage as strictly heterosexual. Whether or not this is intended to discriminate against LGBTQ students, it obviously does discriminate. Although there apparently are some such students at Trinity Western, the Covenant is obviously a greater burden on most of them (except those who do not view celibacy as a burden) than on most heterosexual students (though it’s worth noting that the Covenant does restrict the liberty of such students too, and in a way that would surely be unconstitutional if this restriction were imposed by the state). A great many people, within and outside the legal profession, and within and outside the LGBTQ community, are offended by the Covenant’s existence, and have campaigned for Trinity Western’s proposed law school not to be recognized, preventing its graduates from entering the profession. For some, this seems to be a means of putting pressure on Trinity Western to repent its discriminatory sins. But Trinity Western has made it quite clear that, as befits religious fanatics, they will do no such thing. There will be a Trinity Western Law School with the Covenant, or there will not be one at all. There is no tertium quid.

Trinity Western argues that denial of accreditation to its law school by the BC Law Society infringes its religious liberty. The Law Society claims that it has balanced religious liberty and the equality rights of the LGBTQ people, which are infringed both by being put to the choice of either refraining from going to Trinity Western or going there and living in the closet for the duration of their studies. Moreover, the Law Society says that it should not put itself in the position of effectively endorsing the Covenant by accrediting the law school despite the Covenant’s existence. As the Court’s judgment shows, the Law Society did no such thing. Although its benchers were aware of these various concerns, they punted on the decision whether to accredit Trinity Western or not, and let the Society’s members effectively make that decision through a referendum, authorizing it through a resolution that made no mention of the religious liberty side of the ledger.

How should these concerns be balanced, then? More to the point, are these concerns even real? Trinity Western’s clearly are. Its ability to exist as a religious institution is denied when the government (or its delegate the Law Society) denies it an accreditation, that would otherwise be available to it, on the basis of its religious beliefs. Sure, Trinity Western doesn’t have to have a law school. But if the only reason the state will not let it have one is its religious belief, then the state is in default of its duty of religious neutrality, which applies as much to prevent the state from singling out a set of beliefs for a particular burden as to prevent it singling out a set of beliefs for special support (the proposition upheld by the Supreme Court in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3).

The Law Society’s constitutional concerns, by contrast, are simply made up. The moral concerns are real enough ― Trinity Western’s Covenant is profoundly illiberal (though nobody seems actually concerned about that) and homophobic in effect if not in intent. But that is not enough. As the committee of the Federation of Law Societies that considered Trinity Western’s proposed law school pointed out,

approval of the [Trinity Western] law school would not result in any fewer choices for LGBT students than they have currently. Indeed, an overall increase in law school places in Canada seems certain to expand the choices for all students. [Quoted at 174]

The Court stated that “[t]hese findings are entitled to deference”, which may or may not be right. But quite apart from any deference, this statement is self-evidently correct. Even assuming (plausibly even if not entirely accurately) that no LGBTQ student would want to attend Trinity Western, the number of law schools open to such students does not change whether or not Trinity Western’s is allowed to operate. And the idea that Trinity Western might be “persuaded” to drop its homophobia is, as already noted, patently wrong. As the Court concludes, “it is incontrovertible that refusing to recognize [Trinity Western] will not enhance accessibility” [175] of legal education for LGBTQ people.

The Court is also right to reject “the submission that the approval of [Trinity Western’s] law school would amount to endorsing discrimination against LGBTQ individuals”. [183] As it observes, all manner of people and organizations seek and obtain regulatory approval for all sorts of projects and undertakings. It cannot be the case that such approvals are always synonymous with endorsement of these people’s and organizations’ beliefs. If it were otherwise, and the state had to refrain from communicating such endorsements, “no religious faculty of any kind could be approved”. [184] Arguably, no political activity should be either, since the state ought (morally and arguably constitutionally) be politically as well as religiously neutral.

Ultimately, as the Court rightly notes, the issue here is hurt feelings ― people’s outrage at the idea of a homophobic institution being allowed to freely operate not too far from the seat of power in society. The Court’s response to this is spot on:

While there is no doubt that the Covenant’s refusal to accept LGBTQ expressions of sexuality is deeply offensive and hurtful to the LGBTQ community, and we do not in any way wish to minimize that effect, there is no Charter or other legal right to be free from views that offend and contradict an individual’s strongly held beliefs … Disagreement and discomfort with the views of others is unavoidable in a free and democratic society. [188]

I would add just a couple of observations. The first is that the whole Trinity Western imbroglio, which is of course not over as the case is likely to be headed for the Supreme Court, is one illustration of the perniciousness of the regulation of legal services in Canada (and elsewhere). The existence of law societies, which are at once state-sanctioned cartels and permanently-captured regulators, is a problem. The law societies that denied Trinity Western its accreditation, especially those that did it on the basis of referenda, put their members’ political agenda ahead of the public interest in having reasonably-educated (as all concede Trinity Western’s graduates will be) lawyers competing to provide legal services. That the agenda of LGBT equality is on the whole a very good one does not in any way stop this being a case of capture. If legal services were deregulated, and the law societies denied their privilege of erecting barriers to entry into the market, this would not have happened.

The second observation I wanted to make here concerns contrast between the reactions to the Trinity Western Covenant’s discriminatory effects and some other, similar, issues. One of these, which I have already referred to, is that same Covenant’s illiberalism. “No sex outside marriage” is an illiberal, near-totalitarian position. (It was one which actual totalitarians, in the Soviet Union and elsewhere, were quite keen on. They were also quite keen on homophobia, of course.) It would be so even if “marriage” were defined irrespective of gender or sexual orientation. Yet nobody, it seems, has been particularly concerned by Trinity Western’s illiberalism. Only its discrimination got people worked up.

Nor is anyone apparently concerned by other Canadian universities’ questionable approach to individual rights. I am not aware of a comprehensive Canadian resource similar to the Speech Codes Database of the Foundation for Individual Rights in Education, but consider just one example from British Columbia. UBC’s Student Code of Conduct provides that “[a]ny conduct on the part of a student that has, or might reasonably be seen to have, an adverse affect on the integrity or the proper functioning of the University … is subject to discipline under this Code”. What this means is not defined; although there follows a list of examples of what this prohibition might encompass, the Code is careful to state that they are no more than illustrations. Given the absurd vagueness of this rule, one can only conclude that due process rights are not held in very high regard at UBC; nor is freedom of speech, it would seem, considering the UBC Statement on Respectful Environment for Students, Faculty and Staff purports to proscribe such things as “gossip”. Again, these things do not seem to trouble anyone.

My point, to be clear, is not that these things are necessarily worse than, or even as bad as, the discrimination in the Trinity Western Covenant. It is only that the indignation that the Covenant has aroused seems at least somewhat selective. The law societies that have pounced on it to deny Trinity Western its accreditation are not all that concerned with individual rights. They are, mostly, concerned with one specific right, which just happens to be at the leading edge of contemporary progressivism ― for the time being, anyway (and perhaps not for much longer, as trans rights take over that position). However important that right ― and it is important ― signle-minded obsession with it does not show the law societies in a very good light as regulators in the public interest.

Be that as it may, it is a relief that five judges of the BC Court of Appeal saw this case for what it was ― an attempt by a majority, however well-meaning, to impose its views on a minority, however bigoted, to indulge its own moral preferences, however correct, rather than to defend anyone’s rights from legally cognizable injury, however slight. One can only hope that at least as many of their colleagues on the Supreme Court will see it that way too. Just as municipal functionaries in Québec should not be able to use their regulatory powers to silence a turbulent imam, Canadian law societies should not be able to use theirs to clamp down on turbulent pastors. The contrary result would be, as the Court notes, intolerant and illiberal.

Marriage Drama

A row about civil and religious marriage in Québec is quite unnecessary

In early February, Québec’s Superior Court delivered what should have been a fairly routine judgment dismissing a weak constitutional challenge to provisions of the province’s Civil Code that have usually ― although not always ― been regarded as requiring a person celebrating a marriage to notify the registrar of civil status. Instead, Justice Alary’s decision, Droit de la famille — 16244 has, not unlike some trivial incidents in a couple’s life, sparked a furious row. The row is, as usual, meaningless ― though it can make us reflect on the institution of marriage.

The case before Justice Alary involved a man who objected to the financial consequences of a divorce, and argued that he had been unconstitutionally compelled to enter into a civil as well as a religious marriage. Unbelievers, he said, have the option of simply cohabiting if they do not wish their relationship to have the legal and economic consequences the law attaches to a marriage. People of the “Judeo-Christian faith” (his terminology) lack that option, as their religion requires them to get married in order to live together. So the legal consequences of a marriage are, in his view, an infringement of the believers’ freedom of religion and of their equality rights. They should have the option of getting married religiously without incurring the legal consequences of a civil marriage.

Justice Alary easily dismissed this argument. She held that while the plaintiff’s belief that he had to be (religiously) married to cohabit with his (formerly) beloved was sincere, he had not shown that the state had interfered with this belief.  “The impugned provisions,” she observed, “certainly [did] not prevent [him] from holding beliefs having a nexus with religion. Nor did they prevent him from ‘engaging in a practice’ having to do with religion, that is to say, from getting married.” [45; translation mine] Indeed, the reason for the plaintiff’s objections is not so much his faith as his economic assessment of the family law regime. As a result, there is no infringement of freedom of religion. Subsequently, Justice Alary also finds that there is no infringement of equality rights.

This strikes me as quite obviously correct. When the law forces a person to do something that his or her religion prohibits, or prohibits him or her from doing something religion requires, that person’s religious freedom is infringed. But nothing of the sort is happening here. As Justice Alary notes, neither the plaintiff or anyone else is prevented from entering into a religious marriage. Nor is anyone required to do so. What’s happening here is that the law attaches some (unpleasant) consequences to the plaintiff’s choice to do something ― namely, to get married. This choice is religiously determined, to be sure, but I don’t think that law can take notice of that, any more than it could take notice of the fact others might get married simply because their prospective spouse pressures them to do so and they feel that they have no meaningful choice. The law simply does not look into people’s reasons for getting married. The plaintiff’s argument is identical to a religious person’s claim to a tax rebate on the ground that he or she is required, by his or her faith, to spend money on charity or tithes while non-believers need not do so. The believer chooses to comply with religious obligations, and has to live with the civil consequences of that decision.

Perhaps unfortunately, Justice Alary was not content with this conclusion. She went further and, in an obiter, opined that a religious officer who celebrates a religious marriage need not perform a simultaneous civil ceremony and notify the registrar of civil status. A religious marriage can be purely religious ― without civil consequences. It is this obiter that provoked ― about a month after the decision was published! ― furious reactions in large sections of Québec’s legal community, which saw it as exposing women and children to detrimental consequences. Some are even calling for the notwithstanding clause of the Canadian Charter of Rights and Freedoms and its provincial equivalent to be invoked to defend “Québec’s family law” and the “collective values of Québec’s society” (translation mine).

I find these reactions perplexing. Religious marriages without civil consequences are not exactly a shocking, unheard-of thing. As Yves Boisvert pointed out in a (somewhat flippant, but fundamentally correct) column in La Presse, there are all manner of religious groups in Québec. Some of them may perform marriage ceremonies that do not comport with the Québec Civil Code’s requirements for authorizing religious officers to perform civil marriages, and these ceremonies will, then, result in religious marriages without civil consequences. Before same-sex marriage was recognized by law, some religious groups blessed same-sex unions. (Indeed, one such group was a plaintiff in the case of Halpern v. Canada (Attorney general), in which the Court of Appeal for Ontario struck down the opposite-sex definition of marriage.) Such marriages also could not have any civil consequences. As Anne-Marie Savard asks in a thoughtful post over at À qui de droit, “why must we regard this possibility as nothing more than a way for men to avoid their civil obligations,” (Translation mine) rather than a way for couples to organize their own affairs as they wish? As for calls for the notwithstanding clause to be invoked, they simply ignore the fact that Justice Alary found no infringement of freedom of religion. It is difficult to avoid the impression that the issue is simply being used, the facts be damned, by a cadre of nationalist jurists who seek for other reasons to break the existing taboos on the resort to the notwithstanding clause.

All that said, we can take the occasion for reflecting on the relationship between state, religion, and marriage. To me at least, it illustrates the folly of entangling the state in intimate relationships between men, women, and God (not all three being necessarily involved, of course). Why exactly do we need to attach civil consequences to marriage ― the sacrement, the ceremony that is? If it is the case that intimate relationships or cohabitation invariably produce unique dependency and require legal protections for their vulnerable members, then these protections should attach to cohabitation ― as indeed they already do in every province other than Québec. If this it is not the case that people involved in such relationships are incapable of meaningful choice, as Québec believes, then they should be free to contract into, or perhaps out of, an optional legal regime based on cohabitation. (For what it’s worth, I prefer the Québec position, but that doesn’t really matter now.) Either way, there is no need, and no reason, to attach civil consequences to a ceremony, whatever its name, and whether performed by a civil servant or a religious officer. If people believe that God attaches importance to a ceremony, that’s their right of course. But civil marriage simply has no raison d’être.

Attempts to point out to parties to a family row that they are fighting over trifles and should stand down seldom end well. I don’t suppose that my own belated intervention in this debate is going to change anything. Still, I thought that it was important take a calm look into what is going on.

NOTE: My apologies for the lack of posting in the last few weeks. I do have something to show for it though. More on that in a few days, hopefully.