Religious Freedom Is (a) Right

The Globe’s Doug Saunders has produced a very unfortunate op-ed this morning, arguing that “religious freedom” is at best redundant, at worst positively harmful, and that Canada should not be in the business of promoting it. The occasion for his outburst is the upcoming creation of the Office of Religious Freedom within the Department of Foreign Affairs. That may well be a poor idea, even a sop by the government to religious conservatives. Even if Canada should be in the business of promoting individual rights abroad, there is no reason why religious freedom should be privileged over other fundamental liberties. Yet Mr. Saunders’ arguments are confused and go too far. It is one thing to say that the Office of Religious Freedom is a bad idea; it is another to claim, as he does, that “religious freedom” is either a useless concept or a slogan for religious bigotry and repression.

Mr. Saunders points out that “[t]he phrase ‘religious freedom’ is evoked [sic―I wonder if he meant ‘invoked’]” by all manner of intolerant groups who, in fact, want the state to repress other religious groups with whom they disagree. He argues that “the most important religious freedom is freedom from religion”―the freedom not to have someone else’s religion imposed on you by the state. As for the freedom of belief and worship, it is sufficiently “protected in constitutional freedoms of speech, thought, conscience, assembly and basic equality.” The additional category of “freedom of religion” is hopelessly vague and in any event unnecessary. Indeed, says Mr. Saunders,

the core values of our common culture, the things that make us Western and modern – democracy, equality, the rule of law – were forged through the rejection of religion and the overthrow of spiritual authority.

If there’s anything we should be doing abroad, he concludes, it’s ensuring the separation of church and state. Not fighting for “religious freedom,” whatever that means.

One wonders whether Mr. Saunders has seriously engaged with what has been said and written about religious freedom in the last 300-odd years. His claims about the history and meaning of religious freedom are badly mistaken.

Start with the history. It is not the case that democracy, equality, and the Rule of Law developed in opposition to religion. Arguably the most influential defender of such values was also one of the first great champions of religious freedom―John Locke. So were the American Founders. It would have been much more accurate to say that these values developed in parallel, indeed that religious freedom was historically the first individual freedom. The sovereignty of the individual was first asserted in matters of faith, well before it was thought of asserting it in the realm of politics too.

Now to the meaning of “religious freedom”. Like that of any other individual right, it can be said to be vague. It is not exactly clear what “freedom of expression” means, or “equality”, or “liberty”. That said, it is indisputable that freedom of religion has a negative aspect―that it is, among other things, a right not to have the faith of others imposed on you. The very first Supreme Court case dealing with freedom of religion, R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, was about that. Other rights, by the way, have a similar “negative” aspect―freedom of speech, for instance, is (or should be, notwithstanding the Supreme Court’s decisions to the contrary) not just the freedom to say what you want, but also the freedom not to say what the government wants you to say. That doesn’t detract from the importance of the “positive” side of the right. In the case of religion, we might speak, following the U.S. First Amendment, of the “free exercise” of religion, to go along with non-establishment. And free exercise of religion is not reducible to the other rights on which Mr. Saunders wants to rely for its protection (except maybe freedom of conscience, but this happens (unfortunately) to be poorly theorized and, insofar as it has a modicum of clear meaning, it refers to a protection for specifically non-religious conscientious beliefs). For example, the Sikh boy who felt a religious duty to wear a kirpan to his public school wasn’t exercising a right to free speech (his kirpan was hidden inside his clothing, he wasn’t displaying it to send a message to anyone), or freedom of association (it wasn’t about his right to associate with coreligionists, or anyone else for that matter). It was straightforwardly a claim of religious freedom―a claim, in Lord Acton’s words, “to be unhindered by man in the fulfillment of duty to God.”

That such claims by others can be abusive or self-serving does not mean that we should renounce our commitment to religious freedom. Whether it is a good idea to single it out for promotion abroad is an entirely separate question.

The Fantasy of State Neutrality

This is a translation of my op-ed that that was published yesterday on the website of La Presse.

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The Parti Québécois proposes, if it wins the elections, to enact a « Charte de la laïcité » (Charter of secularism) for Québec. This charter would, among other things, prohibit civil servants from  wearing “ostentatious religious symbols.” This prohibition would, to be sure, be motivated by a noble principle, the neutrality of the state. But it is not the right means to realise this principle, and is discriminatory.

Let us grant, first, that the state has a duty of neutrality; that is, it may not grant privileges or favours to a group of its citizens that it does grant to others.

Let us grant, too, that this duty of neutrality applies not only to the contents of legislation but also to its administration. This means that civil servants and other state agents, entrusted with the application of laws, must act impartially, without favouring one citizen over another, including on the basis of his or her belonging to any group, whether religious, ethnic, or other.

Let us grant, finally, that the administration of the law must not only be neutral but also appear to be neutral. It is not enough for a civil servant’s decision to actually be neutral. It is also necessary that a citizen, at least a well-informed and objective citizen, have no reason to doubt the decision’s neutrality.

The prohibition of ostentatious religious symbols would aim at ensuring the appearance of civil servants’ neutrality. At work, at the moment of applying the law, civil servants represent the state rather than the religious groups to which they belong in private life. If they are allowed to identify with members of particular religious groups, do they not risk favouring their co-religionists? Do they not, above all, risk provoking, among the citizens they serve, a reasonable apprehension of bias?

No. The worry that, for example, a civil servant wearing the headscarf will fail to discharge her duty of neutrality is neither objective nor reasonable. The idea that the physical appearance of civil servants must be neutralized in order that they may exercise their functions impartially belongs to the realm of fantasy or hypocrisy. A person’s physical appearance usually reveals his or her belonging to all manner of groups: to a gender, to a race, to a certain age group. We would not think of imposing the burqa as the uniform for civil servants (male as well as female of course) in order to avoid letting citizens know whether they are served by a man or a woman, a White or a Black, a youth or an old person.

We know that the civil servant, the police officer, the judge whom we face belongs to one or many such groups. Yet we ought, as citizens, expect them to act in good faith and with neutrality.

Religious belonging is not different from other forms. It is, sometimes, easily identifiable. But it is no more reasonable to doubt the impartiality of a civil servant who wears a headscarf for the sole reason that she is Muslim than it would be to doubt her impartiality because she is a woman. Prohibiting civil servants from wearing religious symbols is irrational.

It is also discriminatory. Not only does it discriminate between religions, since some religions – including that of the majority of Quebeckers – do not require believers to wear religious symbols of the sort that is now sought to be banned. It also discriminates between members of the same religious group, in the case of religions, such as Islam and Judaism, which impose the wearing of ostentatious religious symbols on one gender but not the other. Thus a prohibition proposed out of a concern for neutrality and equality between men and women would prevent Muslim women, but not Muslim men, from serving the Québec state.

The ban on ostentatious religious symbols in the civil service would be irrational and unjust. It would be a simplistic measure, favouring appearances at the detriment of a real equality and a true concern for living together.

The Good of Religion

Yesterday I attended a discussion with Robert P. George, the Professor of Jurisprudence at Princeton (which of course does not have a law school!) and one of the leading religious conservative public intellectuals in the United States. The topic was “Religious Liberty and the Human Good.” David Blankenhorn – perhaps best known recently as a failed would-be expert in the trial on the constitutionality of Proposition 8, which attempted to change California’s constitution to prohibit same-sex marriage – was the host. He is clearly smarting from the Prop 8 experience, and took some shots at President Obama along the way, but it was quite interesting nonetheless, so here’s a recap.

According to prof. George, freedom of religion is valuable for two reasons.

The less important one is that it allows the existence of organizations that provide all sorts of important social services and are authority structures that act as a buffer between the state and the individual, so that the state does not become the only source of authority. Religious organizations help prevent tyranny, which the judiciary alone is not able to do. For my part, I do not find this persuasive. There are many alternative power centres (the press and NGOs for example) and networks (online social networks for example). Religious structures are, at most, some of many, and perhaps not the best candidates as oppression-resisters (the Catholic church, for example, has a long record of collaboration with temporal powers, as well as one of resistance to them). And of course religious structures can be oppressive in their own right – though they need not be.

The more important reason why freedom of religion is important is that it serves what prof. George called “the good of religion” – that is the human ability to ask, and answer for oneself, fundamental questions about human nature, life, mortality, free will, etc. A life spent without thinking about these questions is impoverished; and it is important to have one’s own answers to them, and to live with integrity in light of the answers one comes up with. Even if these answers are not “religious” as the term is usually understood – even if they are atheistic for instance – they are worthy of protection, because it is the questioning that constitutes “the good of religion.” That seems exactly right to me, whether or not “the good of religion” is the best name for what prof. George is getting at.

A related term (which I might be more inclined to use instead) is “conscience”. Prof. George defines it as “one’s last best judgment informed by reason, belief, or faith as to what one is required to do or not to do.” Referring to Cardinal Newman’s take on the subject, he insists that it is not “in the business of permissions.”

Mr. Blakenhorn brought up the subject of “reason” in religious belief. He is mad at Judge Vaughn Walker, who presided over the trial in the Prop. 8 case, Perry v. Schwarzenegger, for finding that religious motivation could not constitute a “rational basis” for prohibiting same-sex marriage.  Prof. George agrees that religion has an element of reason – we can understand someone acting on his answers to “ultimate questions,” for instance – and argues that Judge Walker has an impoverished, “fideistic” view of religion as consisting only of faith, without a rational element. But it seems to me that the important question here, which he did not get into at all, is whether religious reason can count as a valid one for public law purposes. Even if we agree – as I do – that a person acting on religious (or conscientious) beliefs is not acting irrationally, it is a different matter whether the state (and thus voters) are entitled to act on such reasons – and still a different matter whether they are entitled to act on such reasons only – in making public policy. This is the Rawlsian public reason conundrum, which I cannot possibly get into here (and don’t have firm views about anyway).

Finally, prof. George spoke about religious exemptions – cases where a law that is generally not meant to punish or impede religious belief or practice has that effect on some believers. He thinks that these believers should be exempted from the application of such laws, unless the state can show that not granting the exemption is the least restrictive means of furthering a compelling state objective. There is, however, an interesting question about who – courts or legislatures – should be deciding whether any given case comes satisfies these criteria. That is roughly what I argued in my LL.M. thesis, which was about religious exemptions, so I am glad to have my thoughts confirmed. Now why don’t the law reviews to which I submitted the paper seem interested to publish it?

Religion in School 101

U of T professor Ed Morgan has an excellent op-ed in the Globe on the topic of the place of religion in Canadian public schools, which reviews the relevant case law.

Schools, he explains, cannot themselves endorse religious beliefs qua beliefs (though they can teach about them as facts): “A state agency simply cannot tacitly endorse denominational prayer, especially in a school environment.” The key reference on this point (which he does not name, according to the conventions of the op-ed genre) is Zylberberg v. Sudbury Board of Education.

However, schools may not censor the expression of religious beliefs by their students, as happened recently in a Nova Scotia case about which I blogged here, short of the expression in question becoming hate speech. That expression of belief in one set of religious canons is often (perhaps always) also the expression, implicit or explicit, of belief that (all or most) other sets of religious canons is wrong does not make it hate speech.

Prof. Morgan concludes:

In short, Canadian law generally restricts school authorities from promoting religion, even passively by holding voluntary classes and prayers. It generally does not restrict students from promoting religion, even actively by wearing it on their sleeve or chest. That’s a lesson school boards and principals need to study.

Indeed.

UPDATE: There are two qualifications to be made to prof. Morgan’s exposé.

First, religious speech in schools, at least by teachers (and indeed religious speech by teachers outside schools), can be curtailed not only when it becomes criminal hate speech, as defined by the Supreme Court in R. v. Keegstra, a case prof. Morgan quotes, but also when at amounts to discrimination in human rights law sense. Speech that creates “a ‘poisoned’ environment within the school system” can amount to discrimination, as the Supreme Court held in Ross v. New Brunswick School District No. 15, to which prof. Morgan also refers. Although the case is about teachers, and they can surely be held to higher standards than students, it seems reasonable to believe that school authorities have the power, and indeed the duty under human rights law, to prevent the school from becoming a “poisoned environment” as a result of students’, and not just teachers’, speech. However, prof. Morgan is right to argue that this is still a demanding standard, and mere expression of religious belief, even fervent expression, does not meet it.

And second, the Constitution Act, 1867, protects those public religious schools that existed at its entry into force. Indeed, it obliged Ontario and Québec to maintain, respectively, public Catholic and Protestant schools. The requirement is no longer in force as to Québec, following a constitutional amendment in 1997. This is an anachronism today, but in 1867, it was an essential guarantee, without which Confederation might not have happened.

Life is Wasted Without Freedom

A high school student, William Swinimer, is now suspended from his school in Nova Scotia for wearing a t-shirt with the words ‘Life is wasted without Jesus’, the CBC reports. Some people apparently find that offensive. The CBC quotes the school board’s superintendent as saying that  “[w]hen one is able or others are able to interpret it as, ‘If you don’t share my belief then your life is wasted,’ that can be interpreted by some as being inappropriate.” The authorities are now apparently trying to find a “compromise” of some sort. In the meantime, the politicians have jumped in, with the education Minister supporting the school board, and the opposition critical.

Well, at the risk of offending the bleeding hearts of Nova Scotia’s education establishment, I want to say that life is wasted without freedom. And if you can’t stand the sight of an idea that you find offensive, kindly go on and bleed. It is remarkable that in 2012 it is still necessary to insist on and to fight for the recognition of the principle that freedom of expression cannot be conditional on the failure of those who see or hear a statement to take offence. If that were the condition, no statement would be protected from censorship. I, for instance, take offence at politicians and bureaucrats denying my and my fellow-citizens’ rights. (I mean it. I do find it offensive.) What then? All I can do is try to persuade people, as I am trying to persuade you, that they are wrong. What is it that could give me the right to force them to shut up?

But, they will say, their case is different because they are public officials. They have a job to do. They must preserve a nice cozy learning environment in schools, or something like that. There a couple of things to say to that.

First, if school is going to be more than a rote-learning factory, and serve to prepare people for the outside world, it is silly to want to it to be free from any controversial ideas, including claims that some ways of living are better than others. This is especially so in high school, where the students can be expected to have the maturity to deal with unpleasant and critical ideas. If it is ok to suppress such ideas in school, is it also ok in university? Why not? There’s a learning environment to foster there, and lots of bleeding hearts who might get offended. Should we summarily fire all the ethicists and political philosophers, most law professors, and countless others who are in the business of telling people that some ways of living are better than others? Or is it enough to just prohibit normative scholarship in curricula?

And second, schools are not, in fact, free from controversial ideas and value judgments. They teach – well I hope they still do – literature for example, which is full of ideas on how one ought, and how one ought not, to live. If in a discussion of Hamlet, a student expresses the view that hesitation, reflection, and soliloquies are for weaklings, should he be suspended because the less resolute, or more prudent, of his classmates find that kind of claim offensive? Or should Hamlet just not be taught, lest it give some “insensitive” kids the occasion for offending their classmates?

Censoring offence out of existence is never going to work. But attempts to do so will stand in the way of talking about not only religion, but philosophy, politics, and art. It will make the world a very boring place indeed. Life is wasted without freedom.

Laïcité: le diable dans les détails

On a beau défendre la laïcité, le diable reste dans les détails. Un entretien de Radio-Canada sur le sujet de la laïcité avec un philosophe français, Henri Peña-Ruiz, est une bonne occasion pour nous le rappeler.

M. Peña-Ruiz soutient que la laïcité n’est pas hostile à la religion. Elle insiste plutôt pour s’assurer que “la religion n’engage que les croyants.” D’où l’importance de la garder séparée de l’État qui, lui, engage tout le monde. La laïcité exige une “stricte égalité” de traitement entre croyants et non-croyants. Donc “pas de privilèges, pas de droits spéciaux,” pas d’ “accomodements avec les religions.” Les traditions historiques ou culturelles, qu’on invoque pour défendre la persistence du religieux dans l’espace public ne sont pas de bonnes justifications. Il faut rompre avec le passé et les inégalités, l’oppression qui l’ont caracrtérisé. La place de la religion est donc dans la sphère privée. Si vous priez dans l’intimité de votre maison ou lieu de culte, c’est votre affaire. La sphère publique, quant à elle, doit être indépendente de la religion, de toute religion, de toutes les religions. Le principe de laïcité pourrait faire consensus si on admettait la stricte égalité de traitement.

Ces idées sont, j’ai l’impression, plutôt populaires non seulement en France, mais aussi au Québec. Or, elles sont, au mieux, simplistes, sinon délibérément trompeuses. À écouter M. Peña-Ruiz, on pourrait être porté à croire que la séparation entre le public/laïc et le privé/religieux-pour-qui-le veut est claire et plutôt simple à réaliser. Il n’en est rien. Le slogan “pas de privilèges, pas de droits spéciaux” n’a de sens que si on s’entend sur le sens des concepts de privilège ou de droit spécial, qui sont, en réalité, sujets à controverse.

Pour exiger la séparation entre le public et le privé afin de cantonner le religieux dans l’espace privé, il faut commencer par se faire une idée de ce qui est public et ce qui est privé. Ce n’est pas si simple, comme le démontre la persistance de certaines controverses bien connues. L’habillement d’un employé de l’État, est-ce public ou privé? Et celui d’un élève d’une école publique? Et ce que cet élève porte sous ses vêtements? Privé, dites-vous? Et si c’est un kirpan? À qui revient de définir le public et le privé? Et selon quels critères? Est-ce l’intention qui compte (le crucifix à l’Assemblée nationale se veut un symbole historique et non religieux; un kirpan, un symbole religieux et non une arme)? Ou est-ce plutôt quelque critère objectif? Mais qui est objectif dans ces débats?

Et que signifie le refus d’octroyer des faveurs aux religions? Quand une règle apparemment neutre a un effet disproportionné sur les adeptes d’une religion particulière (comme les règles sur l’abattage d’animaux ont sur les Juifs et les Musulmans), est-ce favoriser leur religion que de les exempter de son application, ou est-ce plutôt rétablir une égalité que la règle rompt? Ça dépend de notre définition d’égalité, et bien sûr, c’est un sujet d’intenses débats, pas seulement dans le contexte du traitement réservé aux religions. Quand l’État finance les écoles religieuses (qui dispensent aussi les cours requis par le gouvernement) comme il finance, aux mêmes conditions, les écoles privées laïques, favorise-t-il la religion en rendant l’éducation religieuse plus accessible ou ne fait-il que traiter équitablement les groupes privés peu importe leur appartenance religieuse? La encore, on peut donner différentes réponses à la question.

Je pourrais continuer longtemps – mon mémoire de maîtrise porte justement sur la question d’exemptions, et il fait plus de 40 pages à interligne simple. Mais dans ce billet, je veux simplement insister sur le fait que la simplicité des thèses qu’on lance souvent en parlant de laïcité est trompeuse, qu’elle cache beaucoup de questions difficiles, et qu’elle peut servir d’outil rhétorique pour masquer la mauvaise foi trop souvent présente dans ces débats. On peut vouloir sortir Dieu de l’espace public, mais il faut se rendre compte qu’on ne saurait sortir le diable des détails.