Saguenay prayer decision: Canadian Supreme Court forbids sectarian prayer at government council meetings.

The Canadian Supreme Court, Unlike the United States’ Supreme Court, Understands That Sectarian Prayer Is Sectarian

The Canadian Supreme Court, Unlike the United States’ Supreme Court, Understands That Sectarian Prayer Is Sectarian

The law, lawyers, and the court.
April 17 2015 6:13 PM

Amen, Canada!

The Canadian Supreme Court, unlike the United States’ Supreme Court, understands that sectarian prayer is sectarian.

Canadian Supreme Court.
The official portrait of the Canadian Supreme Court Justices in Ottawa, 2002.

Photo by Reuters

Canada is often mocked as the Land of the Never-Setting Apologies, a place where other people’s feelings are prized over authenticity and people pound one another in secret with hockey sticks simply because they are so tired of saying sorry all the time. To which I have sometimes been known to say: Well, suck it, non-Canadians.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Canada’s reputation as the world’s most sensitive nation was showcased again on Wednesday, when its Supreme Court ruled, unanimously, in Mouvement laïque québécois v. Saguenay (City) that the municipal council in the Quebec town of Saguenay could not open its meetings with a Catholic prayer because, as the opinion explains, “When all is said and done, the state’s duty to protect every person’s freedom of conscience and religion means that it may not use its powers in such a way as to promote the participation of certain believers or non-believers in public life to the detriment of others.”

For those who watched in some dismay last spring when the U.S. Supreme Court ruled (along almost perfect religious lines) that city councils may indeed begin their meetings with sectarian prayer, it is quite an astonishing opinion. Canada does not have an Establishment Clause, but it does have a Canadian Charter of Rights and Freedoms and a Quebec Charter, which provide that the state has a duty to ensure that no particular belief should be favored or hindered. While a good bit of the decision was a very technical analysis of how the case got there, and the legal framework for this week’s decision is not the same as that deployed in last year’s U.S. case Town of Greece v. Galloway, the questions of neutrality, coercion, minority religions, and what it means to promote religion are remarkably similar.

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The battle over the sectarian prayers in Saguenay started nine years ago with a complaint filed by Alain Simoneau and a secular-rights organization over the fact that council members recited a 20-second Catholic prayer and crossed themselves before city meetings. As the opinion explains, Simoneau, an atheist identified in the opinion as “S”:

regularly attended the public meetings of the municipal council of the City of Saguenay [Quebec]. At the start of each meeting, the mayor would recite a prayer after making the sign of the cross while saying [translation] “in the name of the Father, the Son and the Holy Spirit.” The prayer also ended with the sign of the cross and the same words. Other councillors and City officials would cross themselves at the beginning and end of the prayer as well. In one of the council chambers, there was a Sacred Heart statue fitted with a red electric votive light. In another, there was a crucifix hanging on the wall. S, who considers himself an atheist, felt uncomfortable with this display, which he considered religious, and asked the mayor to stop the practice. … He argued that his freedom of conscience and religion was being infringed, contrary to ss. 3 and 10 of the Quebec Charter, and asked that the recitation of the prayer cease and that all religious symbols be removed from council chambers.

In 2011, Quebec’s human rights tribunal ordered that the prayers stop, demanded that the crucifix in the city council chamber be removed, and awarded $30,000 in damages to Simoneau. That decision was overturned in 2013 by Quebec’s Court of Appeals, which determined that the prayers “expressed universal values” and “could not be identified with any particular religion.” The mayor of Saguenay argued that this was a fight to preserve the city’s Roman Catholic heritage. According to the Court of Appeals, Simoneau had not been discriminated against on the ground of freedom of conscience and religion, any interference with his beliefs was “trivial or insubstantial,” and the religious symbols were works of art.

This dispute arose amid a much larger conflict in Canada about religion, race, and identity, as well as the historic preservation of religious symbols and values. But the Supreme Court found, without question, that the Saguenay prayers infringed on Simoneau’s religious and conscience rights:

The prayer recited by the municipal council in breach of the state’s duty of neutrality resulted in a distinction, exclusion, and preference based on religion—that is, based on S’s sincere atheism—which, in combination with the circumstances in which the prayer was recited, turned the meetings into a preferential space for people with theistic beliefs. The latter could participate in municipal democracy in an environment favorable to the expression of their beliefs. Although non‑believers could also participate, the price for doing so was isolation, exclusion, and stigmatization. This impaired S’s right to exercise his freedom of conscience and religion.
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The Canadian high court’s discussion about religious freedom and identification, with references to “evolving,” would drive Justice Antonin Scalia to drink, if not heroin. The court found itself tasked with considering “an evolving interpretation of freedom of conscience and religion.” Its decision went on to talk about “freedom” and “dignity” and the “multicultural nature of Canadian society.” (That last bit comes right out of the 1982 Charter of Rights and Freedoms, if you can even believe it.)

Moreover, the Supreme Court determined that the city’s fix for the sectarian prayer—offering a moment or two of silence before prayer so that objectors could exit and then re-enter the council chamber—actually “had the effect of exacerbating the discrimination.” (It cited a similar previous case concerning school prayer).

The court also took pains to explain that asking for religious “neutrality” does not mean that atheism wins out over religion: “Barring the municipal council from reciting the prayer would not amount to giving atheism and agnosticism prevalence over religious beliefs. There is a distinction between unbelief and true neutrality. True neutrality presupposes abstention, but it does not amount to a stand favoring one view over another.”

By unapologetically standing for no-religion over religion-dressed-as-OK-religion, the Supreme Court announcement means that it is now clear that sectarian prayer before legislative sessions will be barred throughout Canada. Cities around the country are trying to assess what that means, and some plan to simply flout the ruling.

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Nowhere in the opinion does anyone mention that Canadian Supreme Court justices dress an awful lot like Santa, although there is mention that “the reference to the supremacy of God in the preamble to the Canadian Charter cannot lead to an interpretation of freedom of conscience and religion that authorizes the state to consciously profess a theistic faith.” This is sowing some confusion around the country as it suggests that some references to God are OK while others are not.

The Supreme Court did not answer the question—from Simoneau's original complaint—over whether the crucifix and a Sacred Heart statue of Jesus must be removed from Saguenay’s council chambers. But certainly the language of the decision suggests that the justices understood the difference between what the majority says (that a prayer is “inclusive”) and what a religious dissenter hears (our religion is superior to whatever you do or don’t believe). “Even if it [a practice] is said to be inclusive, it may nevertheless exclude non-believers,” the Supreme Court ruling read. “Neutrality is required of institutions and the state, not individuals. … On the contrary, a neutral public space free from coercion, pressure, and judgment on the part of public authorities in matters of spirituality is intended to protect every person’s freedom and dignity.”

Laugh all you want at the Wiccans and the Flying Spaghetti Monsters and the Satanists. But religion is a serious business, and as the Canadian Supreme Court has just painstakingly explained, it is as serious for religious dissenters as it is for everyone else.