Can there be any consensus in a pluralist society respecting the common good? Can notions such as 'the dignity of the human person' or 'equality of persons' or 'human rights' be articulated in such a way as to guide effectively our legislators, judges, and those charged with overseeing public welfare? What role should religion play in determining the content of these notions – or in shaping policies on economics, education, health care, scientific research, foreign affairs, or the global community? It is often said that ours is a 'secular' society, but what exactly does that imply? The Pluralism, Religion & Public Policy project is designed to bring together people from academia, law, politics and religious institutions to debate some of the fundamental issues that must be faced in addressing such questions.
Religious Freedom in Education: Ethics and Religious Culture (ERC)
Loyola: On 18 June 2010 L'honorable Gérard Dugré delivered his much-anticipated judgment in Loyola High School and John Zucchi v. Michelle Courchesne, in her capacity as Minister of Education. He concluded (par. 331) that "the obligation imposed on Loyola," as a Catholic school, "to teach the ERC course in a secular manner is totalitarian in nature and essentially tantamount to the command given to Galileo by the Inquisition to abjure the cosmology of Copernicus." (The judgment is available here in English, together with the facta filed on appeal: Government Factum and Loyola Factum.) On 4 December 2012 the Court of Appeal overturned the decision, but on 13 June 2013 leave was granted to appeal to the Supreme Court of Canada. (See memorandum_of_argument.pdf, and commentary here and here; read Loyola's Supreme Court factum.) The oral hearing took place on 24 March 2014, and a decision was delivered on 19 March 2015. It was unanimously in favour of Loyola, though there are interesting differences between the majority and minority reasons and remedies. Among other things, there appears to be some confusion in the majority reasoning about the distinction between 'objectivity' and 'neutrality', as about the relation between pluralism and religious freedom. This ruling, however, marks a major step forward in the jurisprudence on religious freedom in Canada. For further commentary, see Prof. Farrow's forthcoming MQUP volume, Desiring a Better Country.
Drummondville: An earlier Supreme Court decision in S.L. v. Commission scolaire des Chênes, which concerned the right of parents with children in public schools to exempt their children from state-mandated lessons in religion and ethics, went against the appellants: "Parents are free to pass their personal beliefs on to their children if they so wish. However, the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society. The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Quebec government’s obligations with regard to public education. Although such exposure can be a source of friction, it does not in itself constitute an infringement of s. 2(a) of the Canadian Charter and of s. 3 of the Quebec Charter." (par. 40) But was such a suggestion really being made, or were the parents merely asking that the State not interfere with their children's private religious instruction by forcing upon them what they regard as an incompatible form of instruction under the guise of religious literacy? Who should be the judge of compatibility? What is the current relation between the (declining) rights and duties of parents and the (advancing) rights and duties of the State with respect to religious literacy? What kind of literacy is the State aiming at, and under what circumstances might its aims be construed as a violation of parental rights or of religious liberty? Does "the early exposure of children to realities that differ from those in their immediate family environment," which is no doubt "a fact of life," constitute grounds for the State to enforce certain kinds of exposure? Which kinds? And is it really possible for the State to neither favour nor hinder any particular belief or belief-system (ibid., par. 32), or for its neutrality to mean that "the State cannot formally take any position on the true and the good"? What then of the Charter of Rights and Freedoms itself, or of the State's determination to define and defend "the multicultural reality"? Do these not entail such commitments?
Ethics and Religious Culture - Why the Fuss? Listen at McGill Podcasts or download this CREOR lecture contextualizing the issue: creor_erc.pdf. Excerpt: “Stéphane Dion, who as Minister of Inter-governmental Affairs tabled the 1997 resolution to amend the Constitution Act so that Bill 109 could come into effect, observed at the time that ‘the right to religious instruction is still guaranteed under Section 41 of the Québec Charter of Human Rights and Freedoms, a document that has quasi-constitutional status according to the Supreme Court of Canada.’ But this guarantee proved worthless. When Bill 95 was passed in June 2005, the Québec Charter was amended – without public notice, meaningful debate, or a recorded vote. Article 41 was extensively revised, removing the right of parents ‘to require that, in the public educational establishments, their children receive a religious or moral education in conformity with their convictions.’ That right was replaced with a right to give their children private religious instruction as long as it does not violate ‘their children's rights or interests.’ No clarification was offered as to who will decide what those rights and interests are.”
The Secularity and Neutrality of the State
Is a good 'secular' state one that enforces what Richard John Neuhaus famously called 'the naked public square'? Is it a state, to change the metaphor, that imposes The Yoke of Neutrality?
Saguenay: Whence arises the "duty of neutrality" anyway? In the opening paragraph of Mouvement laïque québécois v. Saguenay (2015 SCC 16), we read: "The state is required to act in a manner that is respectful of every person’s freedom of conscience and religion. This is a fundamental right... Its corollary is that the state must remain neutral in matters involving this freedom." But it is not at all evident that the latter claim is a corollary of the former; it appears rather to be appended to the former quite arbitrarily. The duty of neutrality thus posited is later secured, at par. 147, by another exercise in unexamined assertion: "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." Again, no supportive argument is offered. The following paragraph quotes Lorne Sossin (“The ‘Supremacy of God’, Human Dignity and the Charter of Rights and Freedoms,” , 52 U.N.B.L.J. 227, p. 229): "The reference to the supremacy of God in the Charter should not be construed so as to suggest one religion is favoured over another in Canada, nor that monotheism is more desirable than polytheism, nor that the God‑fearing are entitled to greater rights and privileges than atheists or agnostics" (emphasis added by the court). Sossin's counterintuitive reading is not cited in conjunction with contrary views; nor is it defended. It is simply adopted by the court as congenial, and made the law of the land.
How neutral, we may ask, is neutral? Take, for example, the Government action plan against homophobia 2011-2016, which included "the creation of a university Research Chair on Homophobia," which was filled in the Department of Sexology at Université du Québec à Montréal (UQAM). What are the implications of a 'research' chair designed for combat rather than consultation? Designed, that is, to support a State-approved ideology and ferret out resistance to it? What will be the impact of the action plan as a whole? Drafted in response to the first appearance of the Politique québécoise de lutte contre l'homophobie, The Government Declares War examines the policy and identifies the threat it poses to academic, civil, and religious freedom. Here is a more irenic article that considers some misunderstandings prevalent among both supporters and resisters of the 'anti-homophobia' movement.
Or take another and more notorious example: the state's involvement in abortion: not only in providing abortions but in attacking those who defend the lives that are being ended by abortion. This National Post piece is worth reading: Hard truths about abortion. Another 'hard truth' deserves notice, however, namely that in Canada two religious ladies who have peacefully championed natural justice for the unborn, Linda Gibbons and Mary Wagner, have paid for it repeatedly with jail sentences. Meanwhile, in the UK it has emerged that some hospitals have been burning fetal remains, along with other organic "waste," to help heat their buildings. On Canada's lack of an abortion law see the commentary by (ret.) Justice Mitchell.
Bill 52: Geoffrey Kelley, MNA, is among those who claim that "the principle goal of the proposed legislation is to improve access to palliative care." This is false. What the bill does is redefine suicide and murder as natural death, indeed as a form of healthcare, which is why the pioneers and practitioners of palliative care such as Balfour Mount opposed it, as did many others (see for example mcgill_professors_and_researchers_against_euthanasia.pdf and the statement of the Catholic bishops). Mr Kelley and friends also claim that, as amended, the bill accommodates conscientious objection, which is only partly true. It still requires referral, which is complicity in murder. Practical opposition to Bill 52, if it survives constitutional challenge, will come into focus through civil disobedience at just this point. A constitutional challenge has indeed been launched, but the deepest issues cannot be settled by courts. Our view of euthanasia is our view of who and what we are. Re: the likely impact of the law, if it stands, the Dutch experience is sobering.
When the bill was passed on 5 June 2014, a strong majority of the National Assembly endorsed the thesis of Véronique Hivon, MNA, that "Dying with dignity means dying with the least amount of suffering." What this morally absurd thesis does to the very concept of "dignity" few seem to have pondered. Or for that matter what it does to the concept of sacrificial suffering and death – ironically this was the eve of the 70th anniversary of D-Day. Nor should it be forgotten that it was with similar falsehoods that the Nazis embarked on the road on which we have now embarked: "Whatever proportions these crimes finally assumed, it became evident to all who investigated them that they had started from small beginnings. The beginnings at first were merely a subtle shift in emphasis in the basic attitude of the physicians. It started with the acceptance of the attitude, basic in the euthanasia movement, that there is such a thing as life not worthy to be lived. This attitude in its early stages concerned itself merely with the severely and chronically sick. Gradually the sphere of those to be included in this category was enlarged to encompass the socially unproductive, the ideologically unwanted, the racially unwanted and finally all non-Germans. But it is important to realize that the infinitely small wedged-in lever from which this entire trend of mind received its impetus was the attitude toward the nonrehabilitable sick.” (The New England Journal of Medicine, 14 July 1949: Major Leo Alexander Medical Science Under Dictatorship.pdf)
Carter v. Canada: The Supreme Court of Canada, apparently, does not find the Dutch experience sobering, or the German or the Swiss or the Belgian, etc. In Carter v. Canada it unanimously declared a constitutional entitlement to "physician assisted death." It even managed to turn the Charter "right to life, liberty and security of the person" into a right to kill oneself and to be helped to do so. Denial of help to do so it determined to be unjust, because "it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable." For the Court, "dignity and autonomy" are an hendiadys, a single idea; and fear of losing the power of autonomy over the timing and manner of one's death is sufficient justification for claiming an infringement of one's dignity of the kind and degree of seriousness that the Charter is there to prevent. The Court wasted no time at all considering the experience of jurisdictions that have already taken this path. It expended no effort to justify its own understanding of dignity, or in pondering its implications. It did not try to say why it thinks that taking one's life, prematurely or otherwise, is an action that deserves positive legal sanction or protection, though of course it was decided some time ago that it did not after all deserve punitive legal sanction. The Court did not try to say why a person should be deemed to have control over the timing and manner of his or her death, or why fear of losing control should be actionable, or why it should be actionable only in the case of those competent adult persons who have "a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition." (What is a "medical" condition anyway, and why must it be medical? How is "intolerable" to be measured - will we need a sincerity test? And why must one be an adult?) It did not try to say whether adopting all these rather arbitrary conditions and unexamined assumptions, with their enormous anthropological, theological, sociological, political and professional implications, was a justifiable thing for the Court to do on behalf of Canadian society. It did not pause to consider - though it was asked to consider - whether the move it was making would create conflicts between the new right to assisted suicide/voluntary euthanasia and the fundamental freedoms of religion and conscience to which doctors and nurses and health-care professionals and lawyers and notaries are (like the rest of us) entitled. It did not face the pressing question of how the purveyors of death would be regulated, or how the State's own conflicts of interest, including those generated by the management of health-care costs through the elimination of expensive patients, would be monitored. The Court, it seems, is oblivious to the fact that, whereas rights and freedoms that belong to a coherent moral universe will not produce intractable conflict, however often they may require careful reconciliation in practice, rights that are thus constructed willy-nilly in a chaotic moral multiverse are sure to generate such conflict. In fairness to the Court, it did spend rather a lot of time wrestling with knotty questions as to how the bills for Carter should be paid. But have the bills even begun to come in? And have we the capital, the moral capital, to deal with the ones that will matter most?
What is our responsibility? A Jewish writer reminds us in the New York Times of the harsh reality. Are we more interested in establishing for ourselves a supposed right to die without suffering (is that really a matter of rights and justice?) than in preventing or alleviating the truly unjust suffering of those whose freedom or, indeed, lives are taken from them by violence?