The Supreme Court of Canada recently made national headlines with its decision in the case of Mouvement laïque québécois v. Saguenay (City) 2015 SCC 16. The decision affirms the requirement for state neutrality in matters of religious belief. As a result, it seems there is no place for prayers or other forms of religious observance within the council chambers of local governments in Canada.
The case centred on a prayer recited by the Mayor of Saguenay at the commencement of each of the municipal council’s open meetings. The Mayor would recite the prayer after making the sign of the cross while saying “in the name of the Father, the Son and the Holy Spirit”. The prayer 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.
The appellant, Mr. Simoneau, who attended the Council meetings, argued that his freedom of conscience and religion was being infringed. He considered himself an atheist and he asked that the prayers cease. When the Mayor refused to stop the opening prayer, he took his complaint to the Quebec Human Rights Tribunal with the support of the Mouvement laïque québécois (the “MLQ”). The Tribunal concluded the recitation of the prayer was in breach of the state’s duty of neutrality and interfered in a discriminatory manner with Mr. Simoneau’s freedom of conscience and religion. After the Appellant went to the Tribunal, the City adopted a Bylaw that regulated the recitation of the prayer providing for a two minute delay between the end of the prayer and the official opening of the Council meeting. As it turned out, the adoption of this bylaw did not save the municipality’s practice.
In coming to its conclusion, the Tribunal considered the right to equal exercise of freedom of conscious and religion, the purpose and scope of that freedom and the state’s duty of neutrality that flows from it. The Tribunal found the prayer was religious in nature and showed a preference for one religion to the detriment of others and therefore breached the state’s duty of neutrality.
The Quebec Court of Appeal reversed that decision on the basis that the prayer was nondenominational and fundamentally inclusive. In coming to its decision to overturn the Tribunal’s decision, the Court of Appeal adopted the concept of “benevolent neutrality” and concluded that neutrality does not require the state to abstain from involvement in religious matters. It may satisfy the duty in a manner that is consistent with a society’s heritage and traditions and with the state’s duty to preserve its history. The Court of Appeal stated that the protection of diversity of beliefs must be reconciled with the cultural reality of society, which includes religious heritage. The Court of Appeal concluded that the prayer expressed universal values and could not be identified with any particular religion and that any interference with Mr. Simoneau’s freedoms was trivial and unsubstantial and Mr. Simoneau had not been discriminated against.
The Supreme Court of Canada disagreed with the Quebec Court of Appeal.
In the majority decision written by Mr. Justice Gascon, the Supreme Court of Canada stated that the main issue for its consideration was whether the prayer recited at the start of the City’s public meetings, and the Bylaw regulating its recitation, constituted discriminatory interference with Mr. Simoneau’s freedom of conscience and religion, contrary to ss. 3 and 10 of the Quebec Charter. In examining the freedom of conscience and religion, the Court found it necessary to define the scope of the state’s duty of religious neutrality.
In considering the issue of the state’s duty of religious neutrality, the Court considered the evolving interpretation of freedom of conscience and religion. The Court stated that freedom of religion includes the freedom to have no religious beliefs whatsoever. It characterized the concepts of “belief” and “religion” as encompassing nonbelief, atheism and agnosticism. Having reviewed the evolution of the concept of religious neutrality, the Court considered the idea that neutrality requires that the state neither favour nor hinder any particular belief, and that the same holds true for nonbelief. Quoting from Professor R. Moon’s article “Freedom of Religion Under the Charter of Rights: The Limits of State Neutrality” the Court pointed out that religious belief is more than an opinion. “It is the lens through which people perceive and explain the world in which they live. It defines the moral framework that guides their conduct… When the state adheres to a belief, it is not merely expressing an opinion on a subject, it is creating a hierarchy of beliefs and casting doubt on the values of those it does not share.”
The Court concluded that the state preserves a neutral public space that is free of discrimination and in which true freedom to believe, or not to believe, is enjoyed by everyone equally, given that everyone is valued equally. The neutrality of public space “helps to preserve and promote the multicultural nature of Canadian society enshrined in section 27 of the Canadian Charter.”
In concluding that the Court of Appeal’s position was in error, the Court stated that the state must neither encourage, nor discourage, any form of religious conviction whatsoever. If the state adheres to a form of religious expression under the guise of cultural or historical reality of heritage, it breaches its duty of neutrality. The municipality conceded that even a nondenominational prayer is religious in nature. However, the municipality submitted that to prevent the City’s elected officials from expressing their beliefs would be to give atheism and agnosticism precedence over religion. The respondents argued that “a religious prayer is valid because the theism of the Canadian state is entrenched in the Constitution”. They also pointed out that the prayer contained in the Bylaw is one recited by the Speaker of the House of Commons before that body commences its meetings. The respondents argued that the City’s prayer could not be seen to coerce Mr. Simoneau to do anything, and any interference was at most trivial and insubstantial.
The Court pointed out that the prayer was held at the public meetings of the municipal Council while the Councillors were performing their functions. The practice had a religious purpose and displayed conveying and favouring of one belief to the exclusion of all others. Also, the Mayor’s public declarations about the true function of the prayer confirmed that the recitation of the prayer at Council meetings was above all else a use by Council of public powers to manifest and profess one religion to the exclusions of all others. In particular, the Mayor had stated:
“I’m in this battle because I worship Christ … we place much emphasis on this because we have faith. And because we want to show it. The entire municipal council is behind me. Of course, it isn’t a strictly personal fight …”
The Court also confirmed that the individual Councillors were not entitled to use public powers to profess their beliefs, but that this would not affect their right to exercise their freedom of religion on a personal basis.
In discussing the effect that the prayer had on Mr. Simoneau’s rights, the Court concluded that prayer turned the meetings into a preferential space for people with theistic beliefs. Mr. Simoneau had to choose between remaining in the chamber and conforming to the City’s religious practice or removing himself for the duration of the prayer. If he chose to conform he would be acting in direct contradiction to his atheistic beliefs. If he chose to leave while the prayer was being recited, he would be forced to reveal that he is a non-believer. He testified that he had experienced a strong feeling of isolation and exclusion causing him more than trivial or insubstantial interference. The fact that the bylaw created a two minute gap between the end of the prayer and the commencement of the meeting merely exacerbated this interference.
The Court addressed the respondents’ arguments on neutrality. As mentioned, the Respondents argued that not reciting the prayer amounted to taking a stand in favour of atheism or agnosticism. The Court disagreed:
“A practice according to which municipality’s officials, rather than reciting a prayer, solemnly declare that this Council’s deliberations were based on a denial of God would be just as unacceptable. The state’s duty of neutrality would preclude taking this kind of position.
In short, there is a distinction between unbelief and true neutrality. True neutrality presupposes abstention, but it does not amount to a stand favouring one view or another. No such interference can be drawn from the state’s silence.”