What does it mean for the state to be neutral in religious matters?
In a recent column in the Toronto Star, Tonda MacCharles highlighted what she saw as an inconsistency between the argument currently being made before the Supreme Court of Canada in the Bill 21 case, that governments should remain neutral in religious matters, and the assertion by Prime Minister Carney in a recent speech that “religious values can and should frame how politicians act”.
While the Supreme Court of Canada in several of its judgments has said that s. 2(a) of the Charter of Rights (freedom of conscience and religion) requires that the state remain neutral in matters of religion and should not support or favour the practices of a particular religion, the Court has not interpreted section 2(a) as excluding religion entirely from the political decision-making. Notably, in Chamberlain v Surrey School District No. 36, the Supreme Court of Canada held that elected officials may draw on their religious values (or the religious values of their constituents) when making political decisions. Chief Justice McLachlin recognized that, “[r]eligion is an integral aspect of people’s lives and cannot be left at the boardroom door”.
It is sometimes argued that religious values should be excluded from political decision making because state law must be based on reasons that are accessible to all members of the community. Because religious beliefs rest on faith or familial and cultural socialization rather than reasoned judgment, they cannot provide a publicly acceptable basis for law making. To base state action on religious values would be to impose the beliefs of some members of the community on other members or to favour unfairly the beliefs of some over those of others. Political actors, then, must base their actions on nonreligious values or must be able to defend their actions on nonreligious grounds (offer a non-religious reason), even if their deeper motives are religious in character. That, at least, is the familiar argument.
Two objections are often made to the exclusion of religious values from political decision making. The first is that preventing religious adherents from relying on their deeply held values and concerns when making political decisions will have the effect of excluding them from meaningful involvement in civic life. Because religion matters so deeply to its adherents and is often the foundation for their views about justice and the collective good, it is unreasonable or simply unrealistic to expect them to leave their beliefs behind when they participate in public life.
The second and more substantial objection is that religious and secular values are not different in a way that can justify the exclusion of the former from political decision making. Fundamental secular values, such as respect for human dignity or equality, rest, no less than religious values, on a basic acceptance of their truth and are the premises rather than the conclusions of reasoned political debate. Religious values, particularly when they are framed in general terms, may be the subject of reasonable debate, no less than secular values. Charles Taylor argues that there is no clear distinction “in rational credibility between religious and non-religious discourse . . . If we take key statements of our contemporary political morality, such as those attributing rights to human beings as such, say the right to life, I cannot see how the fact that we are desiring/enjoying/suffering beings, or the perception that we are rational agents, should be any surer basis for this right than the fact that we are made in the image of God.”
In deciding that the state is not required to remain neutral towards religious ‘values’, the Supreme Court of Canada relies, at least implicitly, on a distinction between the spiritual and civic elements of a religious belief system. A religious belief should not play a role in political decision making if the action it calls for is spiritual in character (is concerned with the worshipping or honouring of God). However, if the religious belief relates to a civic matter (individual rights or collective welfare), then it may play a role in political decision making, and the action it calls for will be viewed as public or civic.
The courts then must draw a line between the spheres of spiritual and civic life, even if the line’s location is contestable or moveable. Where the line between the civic and spiritual elements of a religious belief system is drawn will reflect the courts’ views about the nature of human welfare, and the proper scope of political action. The claim that a religious belief or value may play a role in political decision-making when there is a parallel secular argument (when the same or a similar position can be stated in non-religious terms) points to this distinction between spiritual and civic. When a religious value or position, such as supporting the eradication of poverty or banning drug use, or abortion, has a secular analogue, it will be seen as addressing a public or civic concern — as seeking to advance the public interest or to prevent harm to others. However, when there is no parallel secular argument, non-adherents are bound to see the religious ‘practice’ as simply the way in which adherents choose to honour God’s will. In other words, a religiously motivated action will be viewed as a spiritual practice (as the worshipping or honouring of God) if non- adherents cannot understand it as relating to human welfare. If the state were to support Sunday Sabbath observance or a particular form of prayer or the wearing of hijab or if it were to ban the consumption of pork, it would be seen as supporting a spiritual practice contrary to freedom of religion. These actions are viewed as exclusively spiritual, as acts of worship, because they cannot be understood by non-adherents as concerned with the advancement of human good.
If law makers are permitted to draw on religious ‘values’ when formulating public policy, they should also be free to reject or repudiate those values. In other words, (religiously grounded) civic values should be neither excluded nor insulated from political decision making. The state must remain neutral on spiritual matters, such as whether or when to pray (in other words it should not compel or support such practices) but it cannot be neutral on civic issues, such as the recognition of same-sex marriage, the prohibition of gender discrimination, or the regulation of abortion.
Religious ‘practices’, on the on the other, should be protected from state restriction. The Supreme Court of Canada has held that any time the state restricts a religious practice (even when it is pursuing a legitimate public objective) it must justify the restriction under section 1, the Charter’s limitations provision, by balancing the competing civic and religious interests. If the court finds that the restriction is not justified, the restriction will be struck down as contrary to the Charter of Rights.
The (honest or dishonest) mistake of the Quebec government, when enacting Bill 21 (which prohibits certain provincial civil servants from wearing religious symbols while at work) was to view the wearing of a religious symbol by a civil servant as a state act that breaches the requirement of state neutrality rather than simply an expression of personal faith or group identity by an individual who works as a civil servant.
