No Religious Freedom for Aztecs

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HERE'S MY TAKE

Most take it for granted that ancient Aztec religious practices, which included human sacrifice, don’t deserve constitutional protection as a freedom of religion issue. In other words, freedom of religion is not absolute. It has reasonable limits. Defining that limit, agreeing who makes that decision, and sorting through enforcement, however, are trickier matters. 

Quebec’s government has announced its intention to act on a recent recommendation to ban public prayer. While the government is careful in its language, it seems clear to most that the immediate motivation for this move involves the weekly prayers that pro-Hamas supporters hold in front of Montreal’s Notre Dame Cathedral, disrupting traffic and conflicting with Christian worship and holy days. This all comes in a province that has adopted a policy of official secularism and has had a secularism minister since 2018. Among other things, provincial law makes it illegal for people in positions of authority, like teachers, police officers, or judges, to wear religious symbols while performing their duties. This includes symbols like crosses, kirpans, hijabs, and turbans. When a Muslim Grade 3 teacher in Chelsea, Quebec lost her job in 2021 for refusing to remove her hijab, her case became a high-profile religious freedom controversy. It’s not an isolated case. There are at least eight similar reported cases and likely many more situations that have not made it to the legal system.

Quebec’s government defends all of this as official secularism, which it calls “state neutrality.” It lists secularism as one of the “key values” in the province. As a key value, the province sees secularism as a way to protect French language and culture, which is a minority within North America. For a time, the secularism policy clashed with the crucifix hanging over the speaker’s chair in the chamber of Quebec’s National Assembly. In the end, the provincial legislature voted unanimously to remove the crucifix from its place, displaying it instead in a museum-style case as a historical piece to highlight its “importance to Quebec's parliamentary heritage.”

Regular Insights readers will know that I count myself on the “religious freedom” side of these debates. Religious freedom is not just one in a list of enumerated freedoms in Western constitutions; it is known as “the first freedom.” In Canada’s Charter of Rights, “freedom of conscience and religion” is literally the first fundamental freedom enumerated and has historically been understood to be a natural right that exists prior to and above state power. The full meaning of that freedom involves centuries of debate and volumes of legal argumentation. At its core, though, religious freedom means that belief must be, obviously, free and that the state must not compel or forbid religious behaviour.

It might seem that historic debates were about compelling religion, but these days, the conversation is primarily about protecting people from religion. However, there are at least two problems with that framing. The first issue is that claims of “neutrality” ultimately encompass a specific religious worldview. Today’s secularism is a proselytizing force. It insists on adherence to a non-transcendent worldview when engaging in public life. But there is no such thing as neutrality. To deny God’s existence is every bit as much of a conviction as it is to affirm His existence. Both denial and affirmation have implications for how we understand our place and obligations within a society. 

Second, neutrality misconstrues religion as private beliefs and practices that can be sequestered into private spaces and kept out of public view. But that’s not how religion works. While obviously different religions work this out differently, adherence to a religion generally becomes a core identity for the devout. Identity—who we are at our core—cannot be closeted. It inevitably leads to public expression.

That doesn’t mean it’s always straightforward. Take the Muslim prayer sessions in Montreal, which are happening in locations chosen to disrupt the freedoms of others. Are they a matter of religious devotion that deserves constitutional protection, or should we understand them as political protests and deal with them in that category? My colleague Brian Dijkema pointed out in a Parliament Hill discussion of these issues earlier this week that governments are choosing to legislate about religious freedom instead of using existing tools to deal with political protest. Protests have their place, and we must defend the right to protest. However, this right does not extend to closing streets or disrupting our fellow citizens to the extent that they cannot safely and freely live their lives. Whether it is Indigenous protestors blocking rail lines and shutting down the rail system for months, convoy protestors occupying Ottawa's streets for weeks, or pro-Hamas protestors showing up weekly to disrupt their neighbours and use public streets for prayer, there are laws on the books to deal with such situations. Authorities should enforce them. 

All of this is context for this week’s filing by the federal government in the ongoing Supreme Court of Canada case to determine whether Quebec’s secularism laws are constitutional. Quebec has relied on Section 33 of the Charter of Rights and Freedoms, the “notwithstanding clause,” to sidestep any attempt by the courts to find its secularism law violates religious freedom. This clause was negotiated as part of the repatriation of Canada’s constitution in the early 1980s as an expression of Parliament’s ultimate supremacy. It provides a way in which Parliament (or a provincial legislature) could prevail if elected officials had passed a law that the courts deemed unconstitutional. Even so, the use of the notwithstanding clause to support legislation is only valid for a five-year period. After that, a legislature needs to renew its use of the clause in order to maintain the validity of an otherwise unconstitutional law. This guarantees that an election will take place between renewals, allowing for the possibility that a different government may make a different decision on the use of the notwithstanding clause. At the end of the day, the clause gives the people, and not judges, the final say. The federal submission “takes no position” regarding the violation of religious freedom that the Quebec legislation represents, but asks the court to restrict the usage of the notwithstanding clause in circumstances like these. It amounts to saying “we’re not going to touch the contentious religious freedom issues, but we think the Supreme Court, not legislatures, should sort through these issues.”

It is tempting to treat questions of freedom in a binary manner, for or against. But it’s not that simple. I am pro-freedom. Over the past decade, I have been involved in strategizing or raising money for multiple legal cases dealing with personal freedom. These cases included arguing that a Catholic high school had a right to choose its own religious curriculum, that a Christian university should not be forbidden in setting up a law school while maintaining a religious code of conduct, that religious parents should not be forced to teach Easter Bunny myths as a condition of being foster parents, and that the federal government’s imposition of the Emergency Act to shut down the Freedom Convoy protest was unconstitutional. For those who might think the Emergency Act example doesn’t fit the list, consider the parallel with Quebec today. The immediate motivation for the banning of public prayer in Quebec stems from pro-Hamas protestors praying in the streets and causing a public disruption.

So, this brings us right back to where we began: Quebec’s extension of restrictions on public expressions of faith by banning public prayer. Would it violate the religious freedom of Muslims? Without judging the sincerity of any participant in these protests, it seems fair to observe that the timing and manner of these prayers seem less tied to religious observance and more akin to flexing political muscle and intimidating others. Fundamental freedoms don’t exist on their own; they exist alongside each other. So, a society that respects and protects fundamental rights, including freedom of conscience and religion, must also consider proportionality, as well as minimally impairing other rights or the rights of others. The government does not need to change laws on religious freedom to deal with this challenge; it simply needs to enforce the existing rules regarding protest.

It's easy to think about religious freedom as a binary right and to default to defending it absolutely. But that would require defending religious freedom for Aztec human sacrifice. The challenging question that these issues raise is not whether there are limits, but what those limits are and who defines them. The federal submission to the Supreme Court is alarming. Whatever the flaws of our constitution, the notwithstanding clause is an expression of parliamentary supremacy and a vital means of protection from judicial excess. I’m not a populist, nor do I always believe that the masses are right. A mob mentality has historically more often led to harm than good. But when tackling core questions of identity and freedom, I prefer structured democratic and parliamentary processes over putting all of our eggs in the basket of the evolving wisdom of nine Supreme Court of Canada justices.

Does this all mean that Quebec’s politically popular secularism, with its impending public prayer ban conveniently coming a year before a rather unpopular government faces its electorate, should stand? Does the protection of Quebec culture and identity require the incorporation into law of the privatization of religion and a forbidding of its public expression? No, not without debate at least. By all means, the issues need to be challenged through the courts and in public debate. Like the generations that preceded us, we need to sort through these challenges. As messy and as expensive as it is, we need to add to the philosophical tomes and legal journals parsing exactly what the five words “freedom of conscience and religion” mean in today’s context.

Wisdom requires a balancing of history, law, and popular sentiment in establishing the principles by which people can live peacefully together amidst all our differences. We must affirm and support bedrock principles, even in opposition to popular sentiment. Public debate is part of a social learning process which is always moving forward but never fully arrives at its destination. But that doesn’t mean we should allow the nuance of circumstances to prevent us from being resolute about principles. 

Where does this leave us?

In a culture that misunderstands and seeks to privatize what is a natural right that precedes the state, we need to defend religious freedom clearly and consistently. Equally, we need to recognize the limits of fundamental rights, lest we end up defending those who similarly misunderstand that their rights don’t cover obviously harmful and dangerous activities. And our political leaders need to stop relying on draconian overreaches to deal with the challenges that arise. Instead they should just pick up the tools that are already in our democratic toolbox.

WHAT I’M READING

Charlie Kirk and His Impact

When news of Charlie Kirk’s assassination came through just prior to the deadline for writing last week’s newsletter, I had nothing original to add to what many others, who followed Kirk much more closely than I did, were already saying. Since then, I found Tim Challies’ aggregation of the online responses, both in the immediate aftermath and a week later, to be very helpful not only in assessing the impact of Kirk himself, but also in assessing how the responses to his death are affecting culture both generally and specifically within the Christian community.

Let’s Argue

Almost everything Yuval Levin writes is worth considering, but his essay this week, Have an Argument, is one I highly recommend. Levin argues that the divides in US society grow deeper as Americans talk mostly with people who agree with them. As they talk about, not with, those who have a different opinion, it magnifies their differences with the other side. It’s not disagreement that matters. Rather, the damage flows from the loss of the forums to deal with disagreement in a civil way. Instead of rhetoric that ends up dividing the world into friends and enemies, Levin argues we need discussion among fellow citizens who disagree. The argument isn’t new, but Levin reminds us of it in a fresh and timely manner.

How Controversial Should the Media Be?

Radio-Canada suspended its Washington correspondent after she said on the air on Monday that it’s “Israelis, the Jews, that finance American politics a lot,” adding that “the big cities are run by Jews, Hollywood is run by Jews,” and suggesting Jews have a “big machine” influencing American policy. Meanwhile, ABC paused “Jimmy Kimmel Live!” indefinitely after Kimmel accused supporters of President Trump of trying to “score political points” off the death of Charlie Kirk. He suggested they were “desperately trying to characterize” Kirk’s assassin as “anything other than one of them.” There is plenty to distinguish these two cases from one another, but they also have parallels. In each case, it was the media employer who made the decision (although the comments of the state’s media regulators play a role in each as well). Well beyond the immediate issues, these incidents raise bigger questions about free speech and how to deal with controversial perspectives when voiced in public.

An Insider’s Look at CBC Censorship

A just-released book argues that the CBC functioned “as a mouthpiece of government” during the COVID years. But that’s just an excerpt of a much larger story David Cayley, a veteran CBC producer, tells in The CBC: How Canada’s Public Broadcaster Lost Its Voice (And How to Get It Back). Among the many issues covered, the book will explore how the CBC “lost its way,” according to the publisher. Alongside this book, the CBC is dealing with a human rights complaint against the CBC filed by Travis Dhanraj. This former CBC anchor alleges that his editorial independence was compromised as he was pressured to promote CBC perspectives as a “‘token’ brown man” who was expected to “work within the system.”

MEANINGFUL METRICS

MAiDs' False Pretences

A new report from my colleagues at Cardus Health highlights the troubling conclusion that many of the Canadians seeking euthanasia (MAiD) are those who have a disability and who are concerned that they are a burden on others. Noting that the various court decisions that led to the legalization of euthanasia in Canada explicitly concluded that “there is no evidence” of “heightened risk” to vulnerable people, the evidence since the implementation of euthanasia indicates the courts were mistaken. The Cardus report provides various data sets involving those with physical disabilities, mental illness, psychosocial suffering, and neurological conditions. The attached graph shows that almost half of MAiD recipients reported concerns about being a burden to others, while almost one-quarter reported isolation or loneliness as factors in the decision to seek MAiD.

TAKE IT TO-GO

Stealing a Deep Dive

There’s a report of a fishy robbery in Florida this week that gives the phrase “the one that got away” a whole new meaning. The suspect apparently traipsed into a Disney-owned paddleboat seafood restaurant, tied up the staff, and took up to $20,000 US. It only took him a few minutes to put on full scuba gear, jump into the water, and swim away. I know businesses often have a float of cash, but I get a sinking feeling in this case that the blue beanie he was wearing will not be enough to identify him. I do hope police find the thief because crime isn’t funny—and it makes me feel kind of crabby. If the investigation is successful and he is arrested, the courts should make him reef what he did sow.

Thanks for reading Insights. Let’s do it again next Saturday.