Although courts in different countries are not infrequently called upon to consider similar issues, it is not very often that they do so at the exact same time. But that might be the case this year with the question the constitutionality of municipal councils opening their meetings with prayers. In Canada, the dispute concerns the prayers read by the mayor of Saguenay, which the Québec Court of Appeal upheld in Saguenay (Ville de) c. Mouvement Laïque Québécois, 2013 QCCA 936 ― as not being really prayers at all, but rather cultural manifestations. The respondents, who had challenged the prayer pursuant to Québec’s Charter of Human Rights and Freedoms, have applied to the Supreme Court of Canada for leave to appeal that ruling. And in the United States, the Supreme Court is set to consider the practice of a small city modestly called Greece of inviting local clergymen or citizens to read prayers at town council meetings, in Town of Greece v. Galloway. (SCOTUSblog’s inestimable Lyle Denison wrote about it here.)
The SCOTUSblog organized an online symposium about Town of Greece, which might be of interest to those thinking about the issue on either side of the border. Constitutional texts, traditions, and precedents differ (and indeed I think that relying on the American decision that is going to be the crucial precedent in Town of Greece, Marsh v. Chambers, 463 U.S. 783 (1983) was one of the more egregious errors in the Québec Court of Appeal’s decision in Saguenay, because that decision employed an originalist logic that is entirely foreign to Canadian rights jurisprudence). There are differences between the relevant facts of Saguenay and Town of Greece too; in the former case, the prayer is non-denominational (supposedly anyway), but read by the mayor himself, while in the latter prayers are those of specific religious groups, but read by members of those groups, at the town council’s invitation, rather than by official representatives of the municipality. Nonetheless, some arguments of principle can cross borders easily enough, and apply to both situations.
Although they must be considered in light of each jurisdiction’s own constitutional text, precedent, and tradition, many of the questions the courts on both sides of the border must address are the same. What does it mean for the state not to take sides in religious controversies, or not to favour one group of believers over others? What is the degree of coercion that makes a governmental practice take sides? Does it matter that a prayer is sectarian or not? How to square ― in a principled way, one hopes ― the fact that religious manifestations and symbols are an ineradicable part of our heritage, whether the biblical references in Abraham Lincoln’s speeches or the crosses on the flags of Canadian provinces, with the modern commitment to the neutrality of the state? And, of course, what are the appropriate respective roles of courts and legislatures in answering these questions?
Those are not easy questions, though this does not mean that there are no clear answers to them. I continue to believe that prayer cannot be re-imagined as a cultural artifact similar perhaps to a biblical reference in a text; that even a non-denominational prayer favours some religious creeds over others (and of course over irreligion); and that official prayers are coercive, even if those who wish not to take part in them are permitted to leave the room where they take place. In my view, which I explained in more detail here, the Québec Court of Appeal’s decision in Saguenay was an aberration. As I said then, this mess deserves a big benchslap. I hope that the Supreme Court of Canada takes the case and delivers one; and that, in the process, it gives us an interesting occasion for comparing our constitutional jurisprudence with that of our neighbours.